(flornell Ham ^rlyonl IGibrarg KFM4344 C A3 e, 1876 er8 " y Ubrary ^J&BnatoJLnMLmrli in th Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024689022 THE LAW AND PEACTICE — OF — PROBATE COURTS — IN THE— STATE OF MICHIGAN, INCLUDING THE ENTIRE PROBATE STATUTES, REPRINTED AND REARRANGED, WITH NOTES UNDER EACH SECTION SHOWING THE PRACTICE AND DECISIONS OF THE COURTS IN CONNECTION WITH THE SAME. A COMPLETE APPENDIX OF THE FORMS Necessary to be used in the Probate Courts. By NOAH W. j^HEEVER, Attorney at Law and Judge of Probate for Washtenaw County. DETROIT: RICHMOND, BACKUS & COMPANY, Publishers. Booksellers and Stationers, 1876. Sm. Entered according to Act of Congress in the year eighteen hundred and seventy -five, by NOAH W. CHEEVER, In the Office of the Librarian of Congress, at Washington. tin EXPLANATION OP REFERENCES AND ABBREVIATIONS. The figures at the beginning of each section, as "1367 (4309), refer to the pages and bracket sactions of the Compiled Laws of 1871. The letters C. L. stand for Compiled Laws of 1871. The following are the editions of some of the works referred to : Third Edition of Redfield on the Law of Wills. Fifth American Edition of Williams on Executors. Second American Edition of Jarman on Wills. Second Edition of Smith's Probate Law of Massachusetts. Our probate statutes are copied largely from the statutes of Massachusetts, so that the decisions of the courts of that state are very valuable in regard to the law and practice of our probate courts. PROBATE LAW AND PRACTICE. LENGTH AND NATURE OF NOTICES TO BE GIVEN OP PRO- CEEDINGS -IN THE PROBATE COURTS. It is best to have four weekly insertions of the orders, for three weeks' notice, etc., and have the day of hearing or sale within a week after the last insertion in the cases indicated below. Of course three weekly insertions will give the three weeks' notice> when the day of hearing is a full week after the last insertion. No. of No. of weeks insertions. C. L. 1374 (4330.) Probate of a will . May be by publication or personal service. C. L. 1375 (4343.) Allowance of a will proved in another state ..... May be by publication or personal service. 0. L. 1389 (4396.) Appointment of administrator Must be by publication. C. L. 1389 (4399.) To determine who are legal heirs and entitled to real estate Musi be by publication. C. L. 1397 (4421.) By Commissioners of time and place for examination and allowance of claims By publication or otherwise, as court shall direct. Must also post notices in four public places in the county. 0. L. 1402 (4449.) By administrator, etc., on appeal from disallowance of his own claim. Last insertion four weeks before hearing of the appeal. May be by publication or personal service. C. L. 1403 (4452.) Of application for extension of time to pay debts and legacies Must be by publication. D LENGTH AND NATURE OF NOTICES. C. L. 1405 (4462.) Notice of limitation of time for payment of debts . .... Must be by publication. L. 1873, p. 127, Act. No. 95. Of hearing of annual accounts of executors, administrators and "guar- dians .... . . . . Must be personally served upon the executor, etc., but to other persons interested, the notice may be given by publication or personal ser- vice, as the court shall direct. L. of 1875, p. 212, Act No. 184. Of application for spe- cific perfor mance of land contracts by executors, etc. May be by publication or personal service. C. L. 1424 (4548.) and C. L. 1428 (4570.) and C. L. 1430 (4582.) 01* application for license to sell real estate by executors, administrators and guardians May be by publication or personal service, four- teen days before the day of hearing. C. L. 1426 (4560.) and C. L. 1428 (4570.) and C. L. 1430 (4582.) Notice of sale of real estate by exec- utors, administrators and guardians Notice must be posted in three of the most pub ■ lie places in the township or ward in which the real estate is situated. Must be by pub- lication. C. L. 1435 (4607.) Application by guardian for license to sell real estate, to expend or invest the proceeds ........ May be by publication or personal service four- teen days before the day of hearing. C. L. 1436 (4614.) Notice of sale of real estate by guardian, to expend or invest the proceeds. Same as Sec. (4560) above .... Must be by publication. C. L. 1482 (4822.) and (4826.) Of application for ap- pointment of guardians for insane and incompetent persons and spendthrifts. No. of No. of Weeks. Insertions. LENGTH AND NATURE OF NOTICES. 7 Nn. Of No. of Weeks. Insertions'. There must be fourteen days previous notice given by personal service upon the alleged insane person, etc., and the same notice should be given to some one of his nearest relatives if possible. 0. L. 1489 (4855.) Of application of an adult for change of name. The last insertion must be six weeks prior to making the application . , 3 3 Must be by publication. In the following cases, the manner of giving the notice or the length of the notice is discretionary. C. L. 1564 (5235.) Where notice is required by law, or is deemed necessary by the Judge of Probate, and the manner of giving the same is not directed by statute, he may give such notice to all persons interested as he shall deem reasonable under the circumstances. C. L. 1373 (4333.) Of the possession of the will by the court to the executors or other persons inter- ested. L. 1398 (4427.) Of the hearing of a special claim by the court. ...... 3 4 May be by publication or personal service. Of hearing claims generally by the court, same notice must be given as by commissioners. C. L. 1401 (4442.) Of appeal from the decision of the commissioners on claims and of hearing, etc . 3 4 May be by publication or personal service; should be by personal service if possible. Notice of appeal to a claimant when not a resident of the state or his residence is un- known, must be by publication. C. L. 1411 (4494.) Of the examination and allowance of accounts of executors and administrators . 3 4 May be by publication or personal service. Of application for decree of assignment of residue of estate . .34 O SURETIES ON BONDS. May be by publication or personal service. C. L. 1413 (4501.) Of application for partition May be by publication, or personal service upon all persons -interested, who reside in this state, or their guardians, and upon the duly ap pointed agents, attorneys, or guardians of those residing out of the state. C. L. 1428 (4569.) Of adjournment of sale of real es- tate. There must be a public declaration of the adjournment at the time and place of sale; if the adjournment is for more than one day, notice thereof must be given by publication and posting as in first instance. C. L. 1360 (4276.) Of application for assignment of dower ...... May be by publication or personal service. C. L. 1486 (4842.) Of application for appointment of guardian where ward resides out of the state May be by publication or personal service. No. of No of Weeks, Insertions. BONDS. The following bonds require two sureties, all others but one : All bonds on the sale or mortgage of real estate. C. L. (4552.) etc Bond to prevent the sale of real estate. C. L. (4554.) Bond of residuary legatee. C. L. (4366.) The bond or bonds where there are two executors or administra- tors. C. L. (4376.) and (4395.) Bond of agent in partition. C. L. (4517.) Bond to pay future instalments on contract for purchase of lands, &c. C. L. (4572.) CONSTITUTIONAL AND GENERAL PROVISIONS, ETC. 9 OATHS. The oath to all accounts of executors, administrators, guardi ans and trustees, must be administered by the judge of probate, or probate register in court, or may be administered by the judge of probate or probate register out of court, when the executor, etc., is unable to attend court. Or in such case, the judge of probate, by a special order for that purpose, may authorize any justice of the peace or notary public to administer the oath to the accountant out of court. All other oaths, required in any proceedings in probate courts, may be administered by the judge of probate, probate register, or by any justice of the peace, or notary public. 0. L. 1561 (5212.) and (5213.) and C. L. 1566 (5246.) PROBATE COURT AND JUDGES OE PROBATE— CONSTITUTIONAL AND GENERAL PROVISIONS. C. L., P. 63, Art. 6. Sec. 13. In each of the counties organized for judicial purposes courts of there shall be a court of probate. The judge of such court shall be 9 Micb. e 227. elected by the electors of the county in which he resides, and shall hold his office for four years, and until his successor is elected and qualified. The jurisdiction, powers, and duties of such court shall be prescribed by law. Sec. 15. The supreme court, the circuit and probate courts of . each county, shall be courts of record, and shall each have a com- rccord - mon seal. C. L., P. 63, Art. 6. Sec. 14. When a vacancy occurs in the office of judge of the vacancies; supreme, circuit, or probate court, it shall be filled by appointment of the governor, ^hich shall continue until a successor is elected and qualified. When elected, such successor shall hold his office the residue of the unexpired term. C. L., P. 270. (633.) Section 1. The People of the State of Michigan enact, county ofa- That whenever a vacancy shall occur in any county office, and such ed by«ove£ vacancy shall have been filled by appointment by the governor, 2 10 CONSTITUTIONAL AND GENERAL PROVISIONS. tin expira- such appointment shall continue, and the person so appointed shall lar term. hold said office during the unexpired portion of the regular term limited to such office, unless the governor shall sooner revoke and determine such appointment. Repeal of (634.) Sec. 2. That all acts and parts of acts which in any wise contravening acts. contravene the provisions of this act be and the same are hereby repealed. This act is ordered to take immediate effect. For resignations, vacancies and removals from office. See C. L. 265 and 266. C. L., P. 64, Art. 6. Election of ^ec. 21. The first election of judges of the probate courts shall probate ' De held on * ne Tuesday succeeding the first Monday of November, one thousand eight hundred and fifty-two, and every fourth year thereafter. See also C. L. 108 (32.) When term of office begins. See C. L. 264, (614.) C. L., P. 64, Art. 6. what deem- ^ EC - 22. Whenever a judge shall remove beyond the limits of !mch M Rep. the jurisdiction for which he was elected, or a justice of the peace from the township in which he was elected, or by a change in the boundaries of such township shall be placed without the same, they shall be deemed to have vacated their respective offices. C. L., P. 78, Art. 18. Oath of of- fice. Section 1. Members of the legislature, and all officers, execu- tive and judicial, except such officers as may by law be exempted, shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation : "I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of this State, and that I will faithfully discharge the duties of the office of according to the best of my ability.'' And no other oath, declaration, or test shall be required as a qualification for any office or public trust. See C. L. 263 (608,) etc. For time of election of county officers, C. L. 80, Art 19, Sec. 6. CONSTITUTIONAL AND GENERAL PROVISIONS. 11 Judge of probate entitled to a copy of the statutes. C. L. 94 (5.) Reservation of jurisdiction to probate courts. 0. L. 83, Sec. 11. When judge of probate shall be one of the district canvassers. 0. L. 121 (90.) C. L., P. 87. Sec. 28. The terms of office of all State and county officers, of Termsof the circuit judges, members of the board of education, and mem county offl bers of the Legislature, shall begin on the first day of January next succeeding their election. 496 of L. 1873, Act. No. 197 (7435.) Sec. 1. The judges of pro- saiaryof bate now elected, or to be elected hereafter, shall each receive an judge, annual salary, to be paid quarterly out of the county treasury of their respective counties, and which shall be in full compensation for all services required to be performed by them except for copies of records or papers on file, and certificates and exemplifications, which shall be furnished for ten cents per folio, and twenty-five cents for certifying, sealing, and attaching the same. Approved April 30, 1873. 188 of L. 1873, Act No 140 (7436.) Sec. 2. Said salary shall salary; how be fixed by the board of supervisors of their respective counties, at a sum not exceeding one thousand five hundred dollars, except in the county of Wayne, where the salary of the judge of probafte shall be two thousand seven hundred and fifty dollars. 2046 (7437.) Sec. 3. The county clerk shall report the amount How paid. of the salary allowed in pursuance of the preceding section to the county treasurer, who shall pay the same to the judge of probate of his county, as hereinbefore provided. Power of board of supervisors over county officers, whose salary is paid by the county. C. L. 233, 14th. Judge of probate may approve bond of county treasurer to auditor general. C. L. 387 (1063.) Judges of Probate may appoint an inspector of alcoholic liquors, and approve his bond. C. L. (488.) (1450,) (1452.) See case of People v. Lawton, Probate Judge, decided Oct. T. of S. C. 1 874. For style of all process in courts of record, etc., see 0. L. 1663. 517 (1559.) Section 1. The People of the State of Michigan Certaiinday enact, That the following days, viz: the first day of January, com- ^S y> monly called New Year's Day, the twenty-second day of February, j^^SSf 12 CONSTITUTIONAL AND GENERAL PROVISIONS. commonly called Washington's birthday, the fourth day of July, the twenty-fifth day of December, commonly called Christmas Day, and any day appointed or recommended by the Governor of this State or the President of the United States, as a day of fasting and prayer, or thanksgiving, shall, for all purposes whatsoever, as regards the presenting for paymeut or acceptance, and of the pro- testing and giving notice of the dishonor, of bills of exchange, bank checks, and promissory notes, made after this act shall take effect, also for the holding of courts, be treated and considered as is the Proviso. first day of the week, commonly called Sunday: Provided, That in case any of said holidays shall fall upon a Sunday, then the Mon- Furtherpro- day following to be considered as the said holiday: Provided, viao relative J ° to return or That in case the return or adjourn day in any suit, matter, or hear- adjourn day J J ** etc any SU "' * n % before any court, shall come on any day so appointed or recom- mended by the Governor of this State, or the President of the United States, as a day of fasting and prayer, or thanksgiving, such suit, matter, or proceeding, commenced or adjourned as aforesaid, shall not by reason of coming on any day recommended by the Governor of this State, or the President of the United States as a day of fasteng and prayer, or thanksgiving, abate, but the same shall stand continued on the next succeeding day, at the same time and place, unless the next day shall be the first day of the week, or a holiday, when in such case the same shall stand continued to the day next succeeding said first day of the week or holiday, at the same time and place. Powers of probate courts in regard to railroad companies. L. 757. Proceedings in the probate court should be commenced by peti- tion or complaint duly verified. The petition may be signed and sworn to by the agent or attorney of the petitioner. The court may require further verification, before acting upon the petition. If the respondent desires to introduce testimony, be should file an answer to the petition, or in some other way make an issue, other- wise the case must stand upon the sufficiency of the allegations of the petition. Estate of Wm. H. Robinson; 6 Mich. 148, See also Foster v. Wilbur, 1 Paige 540; 6 Barb. 344; 3 Bradf. 101. For form of answer see Appendix. On the filing of a petition, the court should fix a day for hearing it, and direct that due notice CONSTITUTIONAL AND GENERAL PROVISIONS. 13 of the hearing be given to all persons interested. If the parties interested and appearing request it, the case should be adjourned, and the petitioner required to serve a copy of the petition upon the parties so appearing, within a reasonable time, and they should be required to file an answer thereto on or before the adjourned day. The proceedings in the probate court should be made as aim- pie as possible, and at the same time sufficiently formal to protect the rights and interests of all persons. Due notice must be given of all proceedings, to all the persons interested therein, or to their legal representatives. Erwin v. Lowry,7 How. TJ. S. 172; Bum- stead v. Read, 31 Barb. 661 ; Beckett v. Selover, 7 Cal. 215. It should be remembered that notice by publication is about equiv- alent to no notice at all, and in all cases where it is possible to reach all persons interested, and when it is important that all should be notified of the proceeding, citations ought to be used. There should be no subscribing witnesses to instruments where the law does not require them; because if you have subscribing wit- nesses, you must prove the signature by them or show that they are dead, or beyoDd the jurisdiction of the court, or cannot be found etc., but if there are no subscribing witnesses, the instrument is sufficiently proved by any competent evidence that the signature is genuine 1 Greenleaf on Ev. 757 to 768.- For amendments of process, pleading or proceeding, see C. L. 1732. For general provisions concerning courts, some of which apply to probate courts, see C. L. 1651, Chapters 181 and 182. 1558 (5192.) Sec. 1. Every judge of probate shall hold a probate Jaiges of court in his county, at the times and places established by law hokTcourts, and may adjourn the same from time to time as occasion may joumthe same. require. 1654 (5676.) Sec. 17. The sittings of every court within this sittings of court to be State shall be public, and every citizen may freely attend the same public. 68, Art. 10, Const. Sec. 4. The sheriff, county clerk, county officers at treasurer, judge of probate, and register ot deeds shall hold their offices at the county seat. Authentication of records, etc., of courts, and all other public acts, records, etc., of other States. 14 CONSTITUTIONAL AND GENERAL PROVISIONS. Legislative 2251. Act of Congress May 26, 1790. Sec. 1. Be it enacted, etc., acts authen- — , ticatedby That the acts of the Legislatures of the several States shall be State Seal. h Judicial pro- authenticated by having the seal of their respective States affixed ceedmgs by J ° clerk, seal thereto; that the records and judicial proceedings of the courts of ii^n^rI 6 an y State shall be proved or admitted, in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, Faith and that the said attestation is in due form. And the said records and Courts with- judicial proceedings, authenticated as aforesaid, shall have such intheUDited ~ . . t . ■ tt • states. laitn and credit given to them, in every court within the United States, as they have, by law or usage, in the courts of the State from whence the said records are or shall be taken. 2251. Act of March 27, 1804, Sec. I. Be it enacted, etc., That Record and exempiifica- from and after the passage of this act, all records and exemplifi tiousofof- f b ' f fice books, cations of office books, which are or may be kept in any public kept ill any ' J r J r public office, omce f an y State, not appertaining to a court, shall be proved, or cate, etc. admitted, in any other court or office in any other State, by the attestation of the keeper of the said records or books, and the seal of his office thereto annexed, if there be a seal, together with a cer- tificate of the presiding justice of the court of the county or dis trict, as the case may- be, in which such office is or may be kept; or of the Governor, the Secretary of State, the Chancellor, or the keeper of the great seal of the State, that the said attestation is in due form, and by the proper officer; and the said certificate, if given by the presiding justice of a court, shall be further authenti- cated by the clerk or prothonotary of the said court, who shall cer- tify under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified; or if the said certificate be given by the Governor, the Secretary of State, the Chancellor, or keeper of the great seal, it shall be under the great seal of the State Records, etc. ™- which the said certificate is made. And the said records and and credit exemplifications, authenticated as aforesaid, shall have such faith them, etc. and credit given to them in every court and office within the United States, as they have, by law or usage, in the courts or offices of the State from whence the same are or shall be taken. The provis- Sec. 2. That all the provisions of this act and the act to which act, etc, to this is a supplement shall apply as well to the public acts, records CONSTITUTIONAL AND GENERAL PROVISIONS. 15 office books, judicial proceedings, courts, and offices of the respect- apply to the public acts, ive Terrritories of the United States, and countries subject to the etc., of the States, etc. jurisdiction of the United States, as to the public acts, records, office books, judicial proceedings, courts, and offices of the several States. 1564 (5231.) Sec. 40. There shall be a probate court held in Probate x ' x courts; each county on the first Monday of each month, and on such other v'jj 11 ,?^ 6 days as the judge of probate shall appoint; and in case any matter p - 66 - shall not be heard at the time appointed for hearing the same, such matter shall stand continued until the next stated term of the court, unless the parties interested otherwise agree. Where a regular session of the court is held on the first Monday in each month only, then a case not heard on the day appointed stands continued to the first Monday in the next month, unless the parties interested otherwise agree; but when by appointment or long practice, a regular session of the court is held on any other days in the month, the case may be adjourned to the next estab- lished court day. When the case is partly heard on the day appointed, then it may be adjourned a reasonable length of time, and from time to time, as will be most convenient for all parties interested until the case is fully heard. It is best in all cases to adjourn the case to a day certain, and enter a regular order of adjournment in the journal; the principal object of this section is to prevent the lapsing of causes when for any reason they cannot be disposed of on the day appointed for them to be heard. 1559 (5195.) Sec. 4. The probate court shall be deemed open at courtaiways all times for the transaction of any ordinary business which may be tai^purpo- necessary therein, when previous notice is not required to be given to the person interested. 1564 (5232.) Sec. 41. The Supreme Court of this State shall supreme v . . Court to have power from time to time, to make uniform rules for regulat- mak e rules. ing the proceedings in all the probate courts of the State, and to alter, amend or modify the same as it may judge necessary, in all cases not expressly provided for by law. 1558 (5193.) Sec. 2. Every probate court shall be a court of rec- Tobeacourt ord, and have a seal ; and each judge of probate shall keep a true andproceed- and fair record of each order, sentence, and decree of the court, and corded, etc 6 of all wills proved therein, with the probate thereof, of all letters 16 CONSTITUTIONAL AND GENERAL PROVISIONS. testamentary and of administration, and of all other things proper to be recorded • and, on the legal fees being paid, shall give true copies of the files, records, and proceedings of the court, certified by him under the seal of such court. J ro d i£teto 247 ( 5 %7-) Sec. 51. The judge of probate for each organized for four yr's; county shall be elected at the general election for the term of four tody"? pro- y ears > and sha11 have possession of the seal, records, books, files, bate records. and p aperg belonging to the court of probate, and shall keep a rec- ord of all orders, decrees, and other official acts made or done by him, which record may be inspected by all persons interested, without charge. To keep his (528.) Sec. 52. The iudge of probate shall hold his court at the office at seat % ' J ° . of justice ; se at of i ustice of the county, and he shall receive such compensa- compensa- tion. tkm for his services as shall be allowed by law. Effect of at- 1553 (5194.) S EC . 3. All copies so attested shall be legal evi- tested copies \ / r => i842 Viden io7 dence in a ^ tne courts of law and equity in this stabe ; and certifi- cates of probate, of administration, or of guardianship, attested by the judge of probate, may be given in evidence,, and have the same effect as any probate, letter of administration, or letter testament- ary or of guardianship, made out in due form of law. See also 0. L., 1707 (5931.) county to 220 of L. 1873, Act No. 165, Sec. 39. Each county shall provide for° 1 ^d ebC ''f a ^ books, printed blanks, and other stationery necessary for keeping probate. ^q recor( j s j n the office of the judge of probate, and such amount of fuel each year as may be needed for the use of said office. RECORDS. The records may be wholly written or partly written and partly printed. The printed books of record are made by inserting in them the printed probate blanks, which are filled up as needed to complete the record. In preparing these printed records it will be found convenient to keep all proceedings of a particular class in one book, such as proceedings on probate of a will, or sales of real estate, etc. These printed records are now used, I believe, in most of the older counties, and are more convenient, cheaper, and more likely to be accurate than the wholly written records. It is not necessary to record annual or final accounts and invent- ories. The warrant and report of commissioners on claims should CONSTITUTIONAL AND GENERAL PROVISIONS. 17 be recorded in all cases, because the claims are a lien in the nature of a mortgage upon the real estate. The statutes do not require the judge of probate to sign the records. Each order, sentence and decree, etc., should be recorded in full, including the time of filing indorsed thereon, and the official signature of the judge of probate to such orders and indorsements. A journal should be provided in which to record the daily orders or proceedings of the court which are not recorded elsewhere, such as orders for adjourn- ment etc., and each day's proceedings may be signed by the judge of probate. It is also convenient to have a large diary, with not more than three days on a page, in which to minute all future hearings, sales, etc. The court may record prior decrees, Ives vs. Kimball, 1 Mich. 308. If an order, decree, or other paper is not properly recorded, it is best to re record it, but the court may perfect the record already made. L. 1873, p. 220, Act. No. 165. Sec. 39. Each county shall', pro- County to vide all books, printed blanks, and other stationery necessary for books, etc., for judge of keeping the records in the office of the judge of probate, and such probate. amount of fuel each year as may be needed for the use of said office. Approved April 25, 1873. P. 78, Art. 18 of Const. Sec. 6. The laws, public records, and the Laws, etc., to be hi En- written judicial and legislative proceedings of the State, shall begKshian- conducted, promulgated, and preserved in the English language. 1654 (5683.) Sec. 24. All writs, process, proceedings, and rec- Process, etc. to be in the ords in any court within this State, shall be in the English Ian- English lan- guage, etc. guage (except that the proper and known names of process, and tech- nical words, may be expressed in the language heretofore and now 18 Const, commonly used), and shall be made out on paper or parchment, in a fair, legible character, in words at length, and not abbreviated ; but such abbreviations as are now commonly used in the English language may be used, and numbers may be expressed by Arabic figures, or Roman numerals, in the customary manner. Wills are frequently written in a foreign language, and before such wills are admitted to Probate, they should be translated by some competent person, who should attach to his translation an affidavit, as per form given 3 Redfield on Wills, 54; 1 Williams on 3 18 CONSTITUTIONAL AND GENERAL PROVISIONS. Ex'rs, 488 and 489; Willard on Ex'rs, 165. This translation how- ever, is not conclusive and absolutely binding upon other courts; the original may always be resorted to for the purpose of correcting any errors in the translation. L'Fit v. L'Batt, 1 Piere Williams, 526. It would be well to have the person making the translation record the will in the foreign language, and then have the register or clerk record the translation of the will and the affidavit immedi- ately after the original. There should be attached to the letters testamentary a copy of the translation of the will, and the affidavit, and also a copy of the will in the foreign language if possible. The books, papers and records of the probate courts are public property, and it is a mis- demeanor to mutilate, carry away, or destroy any of them. C. L. 2130 (7751.) and L. 1875 p. 237, Act No. 208. index of rec- 1564 (5236.) Sec. 45. Each judge of probate shall make an bate office, alphabetical index to the records of proceedings in the probate 1845, p. 66. '.,«.'" court, and keep the same in his office. Seals oi 1564 (5233.) Sec. 42. The seals of the several probate courts courts now in use. 1842, now used by them respectively, shall continue to be the seals of such courts, until others shall be provided according to law. how procur- 1564 (5234.) Sec. 43. In case the probate court of any county ed, etc., 1842 , „ . ,,.,,,, , ,. i • p. 107. shall have no proper seal, the judge shall, at the expense ot his county, cause a seal to be made for his office, with such device as he shall think proper, and with the words, "Probate seal," and the name of the county inscribed thereon, and shall deliver a des- cription thereof to the Secretary of State, to be deposited and recorded in his office. 93. Sec. 14. In all cases in which the seal of any court or public office shall be required to be affixed to any paper issuing from such court or office, the word "seal" shall be construed to mean the im- pression of such seal on such paper alone, as well as the impression of such seal affixed thereto by means of a wafer or wax. See also C. L. 1652 (5664.) and (5665.) Powers and 1559 (5196.) Sec. 5. The judge of probate for each county shall "rebate 80 * have power to take the probate of wills, and to grant administra- tion of the estate of all persons deceased, who were at the time of their decease inhabitants of, or residents in, the same county, and of all who shall die without the State, leaving any estate within CONSTITUTIONAL AND GENERAL PROVISIONS. 19 such county to be administered; and to appoint guardians to min- ors and others in the cases prescribed by law, and shall have and exercise all such other powers and jurisdiction as are or may be conferred by law. The probate court is a court of statutory or limited jurisdiction, and can exercise jurisdiction only in the cases and in the manner prescribed by statute. Although they are courts of special juris- diction, they may exercise any powers which by a liberal construc- tion of the statutes may be found to be conferred upon them. Kohler v. Knapp, 1 Bradf. 241; 2 Bradf. 90; Cleveland v. Whiton, 3.1 Barb. 544; Sibley v. Waffle, 16 N. Y. 180. The probate court is a court of record. 0. L. 63, Sec. 15. Where any action of the court is necessary to carry out the design of the statute, or the authority therefor can be fairly and reasonably inferred from the language of the statute, it may be considered as granted. Seaman v. Duryea. 10 Barb. 253; Skidmore v. Davies, 10 Paige 318; Ish- am v. Gibbons, 1 Bradf. 69. Where the court assumes - powers not conferred by the law as aforesaid, its acts are void. People v. Cerlies, 1 Sandf. 228; People v. Barnes. 12 Wend. 492; Paff v. Kinney, 1 Bradf. 1; Sheldon v. Wright, 5 N. Y. 494, The decrees of the probate court upon subjects within its jurisdiction are con- clusive and final, unless appealed from. A writ of error will not lie to a judgment of the probote court, nor will certiorari lie from the supreme court to the probate court; Parker v. Oopeland, 4 Mich. 528 ; Holbrook v. Cook, 5 Mich. 225, 9 Mich. 445; Peters v. Peters, 8 Cush. 542. An irregular decree of the probate court is a nullity, and may be set aside in any collateral proceeding by plea and proof. Wales v. Willard, 2 Mass. 120; Hunt v. Hop- good, 4 Mass. 117; Smith v. Rice, 11 Mass. 507; Chase v. Hatha- way, 14 Mass. 227; 3 Redfield on Wills, 58. The most appropri- ate remedy in case of an erroneous decree is to appeal under the statute. Jurisdiction of the subject matter connot be conferred up- on the court by consent of parties. Dakin v. Deming, 6 Paige 95 ; Tucker v. Tucker, 4 Abb. Ct. App. Dec. 428. If the court has juris- diction of the subject matter, it may obtain jurisdiction of the per son by consent. Bumstead v. Reed, 31 Barb. 661 ; McCormick v. P. C. R. R., 49 N". Y. 303. Mere irregularities in the proceedings will not divest the court of jurisdiction. Bloom v. Burdick, 1 Hill 20 CONSTITUTIONAL AND GENERAL PROVISIONS. 130 ; Lawrence v. Parsons, 27 How. Pr. 26 ; Atkins v. Kinnan, 20 Wend. 241 ; Will of Warfield, 22 Cal. 51. The objection of want of jurisdiction may be taken on appeal. Dudley v May he w, 3 N. Y. 9. The jurisdiction of the probate court will not be presumed in proceedings in another court, but all the facts necessary to give the court jurisdiction should be alleged and proved. — 3 Redfield on Wills 58 ; Bolton v. Jacks, 6 Robt. 203 ; Van Dusen v. Sweet, 51 N. Y. 378; Barber v. Winslow, 12 Wend. 102; Potter v. M. B. 28 N. Y. 653.; Belden v. Meeker, 47 K Y. 307 ; Albridge v. Cobb ; decided October T. of S. C. 1874. Where the jurisdiction depends upon certain facts, and after due notice to all persons interested, the court determines that all the facts exist necessary to give juris diction, it cannot be attached collaterally. — Erwin v. Lowry, 7 How. U. S. 172; Bumstead v. Read, 31 Barb. 661;Morrell vs. Dennison, 8, Abb. Pr. 401; 5 N. Y. 497; 16 Conn. 127; Brittain v. Kinnard, 1 Brod and Bing. 432. The court has power to open a decree and allow a re-hearing, where it is ma'de by accident or mistake. Waters v. Stickney, 12 Allen 1; Dobke v. McClaren, 41 Barb. 491; Campbell v. Logan 2 Bradf. 90, 1 Bradf. 283; Sipperly v. Baucus, 24 N. Y, 46. Where all persons interested are duly notified of the hearing, and the court has made a final decree in the premises, it has not, as a rule, the power to give a re hearing upon the ground that the court has erred in a matter of law or fact. Brick's Estate, 15 Abb. Pr. 12; 1 Johnson's Cases, 180. Under its implied powers the court may appoint guardians ad litem, for minors or incompetent persons, when it is necessary to protect their interests in any of the proceedings in the probate courts. Brick's estate, 15 Abb. Pr. 12. Where the administrator is also guardian of one of the minor heirs, and in any proceedings his double trust becomes hostile to the interest of the minor, a guardian ad litem should be appointed. Townsend v. Tallant 33 Cal. 45. The court may also enter an order nunc pro tunc. Butler v. Emmet, 8 Paige 21. This should not prevent an appeal being taken within the statutory period after the order is actually made. The probate court has no power to order money to be paid into court. Willson v. Hernandez, 5 Cal. 437. 1559 (5197.) Sec. 6. The judge of probate shall have jurisdic- CONSTITUTIONAL AND GENERAL PROVISIONS. 21 tion of all matter relating to the settlement of the estates of such Jurisdiction of probate deceased persons, and of such minors, and others under guardian- judge. ship: Provided however, That the jurisdiction hereby conferred shall Proviso. cir- cuit court in not be construed to deprive the circuit court in chancery, in the chancery 1 * not deprived proper county, of concurrent jurisdiction as originally exercised ° f Junsdic- over the same matters. . See People v. Wayne Circuit Court, 11 Mich. 393 This decis- ion was rendered before this statute was passed. 1559 (5198.) Sec. 7. The judge of probate shall have power to power of administer all oaths necessary in the transaction of business before ministering the probate court, and all oaths required by law to be administered to persons executing trusts under the appointment of such court. For mode of administering oaths see C. L. 92, Sec. 11, and C. L. 1714 (5960.) 1559 (5199.) Sec. 8. The several judges of probate shall have Process. power to issue all warrants and processes in conformity to the rules of law, which may be necessary to compel the attendance of wit- nesses residing in any part of this State, or to carry into effect any order, sentence or decree of the probate courts, or the powers granted them by law. For witness' fees see C. L. 2047 (7442.) For manner of serving subpoenas see C. L. 1 703. 1559 (5200.) Sec. 9. If any person shall refuse or neglect to orders, etc., i n f i i now enforc- perform any order, sentence, or decree ot a probate court, sucn ed. court may issue a , warrant, directed to any sheriff, constable, or other proper officer in this State, requiring him to apprehend and imprison such per«on in the common jail of the county, until he shall perform such order, sentence, or decree, or be delivered by due course of law. See also C. L. 1656, Chap. 182. 1559 (5201.) Sec. 10. All sheriffs, deputy sheriffs, coroners, and who shall constables shall serve and execute all legal warrants and processes cess, to them directed by any judge of probate. It is quite a general practice to deputise persons who are not the officials above mentioned to serve citations, etc.; but there is no statute authorizing this practice, and it should not be followed un- less absolutely necessary. 1559 (5202.) Sec. 11. When a witness whose testimony is nee- 22 CONSTITUTIONAL AND GENERAL PROVISIONS. How testi- essary to be used before any court of probate, or the commission- tained when ers appointed by such court, shall reside out of this State, or within witness is j- i. • l unable to at- this State but more than thirty miles from the place ot trial or tend. 2 Doug , . Mich. 515. hearing, or by reason of age or bodily infirmity shall be unable to attend in person, the court may issue a commission under the seal of said icourt and signed by the judge thereof, or the register, if there be one, to one or more competent persons to take the testi- mony of such witness. Such commissions, when issued and the Deposition; deposition taken thereon according to the provisions of Jaw for tak- nsea. may e ing depositions to be used on the trial of civil causes, may be used on the trial of any question before the probate court, or. before the commissioners appointed by such courts, when such testimony may be proper. Such deposition, when so taken, shall, in all cases, be where re- returnable to the court from which the commission to take the turnable. May be used same nas i ssuea , an< J ma y De use d in evidence by either party in as evidence, ^ e j rcu j t cour t when any matter or proceeding in which they were taken shall be appealed to such court. The commission is generally issued and the interrogatories set- tled by stipulation; but when this cannot be done, then proceed in the manner prescribed by the following sections, for all courts of record. The provisions of law for taking depositions to be used on the trial of civil causes in the circuit court, and the circuit court rules upon that subject, should be followed in taking deposi- tions in the probate court, so that tbey may be used in the circuit court in case of an appeal. For forms of application, etc., see appendix. For taking testimony conditionally, C L. 1690. For taking depositions of witnesses out of the state, 0. L. 1694 to 1696. For taking depositions to perpetuate testimony in civil cases, where witness lives more than thirty miles from place of trial, or is so sick, infirm, or aged, that he will not probably be able to attend the trial, 0. L. 1699. Five days notice in writing should be given of application to settle interrogatories, and a copy of the proposed interrogatories should be attached to and served with the notice. The cross-interrogatories should be proposed and settled at the time and place of settling the direct interrogatories, unless further time is given. When the deposition is returned it is the duty of the judge of probate to forthwith open and file the same, and indorse on the deposition and on the. wrapper thereof, the time of its recep- CONSTITUTIONAL AND GENERAL PROVISIONS. 23 tion, and immediately notify the party on whose behalf it was taken, or his attorney, who shall immediately give notice thereof to the opposite parties. All objections of form to any such depo- sition should be deemed to be waived, unless the same shall be filed in writing, and served on the opposite party, within two days after such notice. See rules No. 49 and 51 of Circuit Court Rules. These rules of course are not binding in the probate court, but it would be well to adopt the practice there indicated. For import- ant decisions of supreme court upon this subject, see Cooley's Mich. Digest "Practice in the Circuit Courts," See's 89 to 103 inclusive. For competency of certain witnesses heretofore excluded, such as criminals, persons interested in the suit, relatives of parties to the suit, and parties to the suit in certain cases, C. L. 1715 and 1716. L. 1875, p. 184, Act. No. 155 (5968.) Sec. 101. That when a Parties not suit or proceeding is prosecuted or defended by the heirs, assigns, reiatkmYo" 1 devisees, legatees, or personal representatives of a deceased person, ters. m ma the opposite party, if examined as a witness on 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 such deceased person ; and when any suit or proceeding is prosecuted or defended by any surviving partner or partners, 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 the deceased partner, and not within the knowledge of any one of the surviving partners. Approved April 39, 1875. Claimants frequently evade the provisions of this statute by assigning their claims to third persons, who present them for exam- ination and- allowance, and use the original holders of the claim as witnesses to establish them. This might be remedied by inserting the words "or his assignors," after the words, "opposite party," in the statute. 1560 (5203.) Sec. 12. The judge of probate shall have power to contempts keep order in his court, and to punish any contempt of his author- ished PUms " ity, in like manner as such contetnpt may be punished in the cir- s Denioj 537. cuit court. See C. L. 1652 (5666.) etc., also C. L. 1656, Chap. 182, for manner of punishing contempts of court The action of the pro- 24 CONSTITUTION AND GENERAL PROVISIONS. bate court in punishing for contempt is not liable to review, and is not the subject of appeal, Watson v. Williams, 36 Miss. 333 ; Vertner v. Martin, 10 S. & M. 103 ; Walker's R. 310. When juris- 1560 (5204.) Sec. 13 The jurisdiction assumed in any case by tobeoontes- a judge of probate, so far as it depends on the place of residence of any person, or the location of his estate, shall not be contested in any suit or proceeding whatever, except in an appeal from the pro- bate court in the original case, or when the want of jurisdiction appears on the same record, when court I 560 (5206.) Sec. 14. When a case shall be originally within cognilanc 1 ? tne jurisdiction of the probate, court of two or more counties, the rtodicUon.''' 1 court which shall first take cognizance thereof by the commence- ment of proceedings shall retain the same throughout. Piesumpti'n ^0 (5206.) Sec. 15. When the validity of any order or decree orders OI etc °^ a P r °bate court shall be drawn in question in any other suit or years. tWenty proceeding, everything necessary to have been done or proved to render the order or decree valid, and which might have been proved by parole at the time of making the order or decree, and was not required to be recorded, shall, after twenty years from such time, be presumed to have been done or proved, unless the contrary appears on the same record, whencir 1560 (5207.) Sec. 16. If a judge of probate shall remove out of periorm^the n ' s county, or shall die, resign, or otherwise become incapacitated probat? *" or executing the duties of his office, the judge of the circuit court judge. f or guo j 1 coun ty sna n hold tn e court, and have all the powers, and perform all the duties, of judge of probate therein, until such inca- pacity is removed, or until another judge shall be elected and qual- ified. Ibid 1561 (5208.) Sec. 17. When a judge of probate, his wife or child, shall be an heir or legatee, or when such judge shall be an executor or administrator of a deceased person, he shall be deemed incapacitated for executing the duties of his office in relation to that estate; and the judge of the circuit court for the same county shall perform such duties. 1561 (5209.) Sec. 18. When the judge of probate, as creditor or otherwise, shall be interested in any question to be decided by the court, he shall be deemed incapacitated for acting in the decision of that question, and the judge of the circuit court for the same county in such case, shall perform the duties of judge of probate. Ibid CONSTITUTIONAL AND GENERAL PROVISIONS. 25 See C. L. 1654 (5677.) and the four following sections. See also Cooley's Constitutional Limitations, page 410. A judge of probate having a demand against the estate of a deceased person, is interested in the estate, and can have no juris- diction over the estate, unless he will relinquish his demand. David Cottle, appellant, 5, Pick. 482. 1561 (5210.) Sec. 19. No judge of probate shall be retained or when judge . . of probate employed as solicitor, attorney or counsel in any suit or matter not to be employed as which may depend on, or in any way relate to, any sentence or att'rney, etc. decree made or passed by him ; nor shall he be solicitor, attorney, or counsel, for or against any executor, administrator, or guardian, appointed within his jurisdiction, in any suit brought by or against the executor, administrator, or guardian, as such, nor in any suit relating to the official conduct or duty of such party. 1561 (5211.) Sec. 20. No clerk or other person employed in Clerk, etc., x ' r r f in probate the office of any probate court shall be commissioner, appraiser, or otRce, not to 1,1 3 x L be appraiser, divider of any estate, in any case that is within the iurisdiction of ?*?■> in cer " J 'J J tain cases. such court. 1563 (5228.) Sec. 37. In all cases that shall be contested, either costs in con- tested cases. in the probate court or in the circuit court, such court may award 6 Paige, 12. r _ •'26 Barb. 316 costs to either party, in its discretion, to be paid by the other, or to be paid out of the estate which is the subject of the controversy, as justice and equity should require. 1564 (5229.) Sec. 38. When costs are awarded to one party, to Execution K J x J for costs. be paid by the other, the said courts, respectively, may issue execu- tion therefor, in like manner as is practiced in the circuit courts in other cases. As a general rule, costs should not be awarded to either party in the probate court, and this is the general practice. 1566 (5244.) Sec. 53. The judge of probate may,' when it shall judge may . require secu- appear reasonable and proper, require either party to any proceed- rity for costs ing before him to give sufficient security for all such costs as may be awarded against him. 1564 (5235.) Sec. 44. When notice of any proceedings in a pro- Notice of pro Gc 6 din firs bate court shall be required by law, or be deemed necessary by the in certain C3cS6S "1845 judge, of probate, and the manner of giving the same shall not be p. 66 directed by any statute, the judge of probate shall order notice of such proceedings to be given to all persons interested therein in 4 26 CONSTITUTIONAL AND GENERAL PROVISIONS. such manner and for such length of time as he shall deem reason- able. Probate 1564 (5237.) Sec. 46. Each judge of probate may appoint a clerk, ap P dnT ay to be denominated the probate clerk, and may revoke such appoint- cIgfIc etc ment at his pleasure ; which appointment and revocation shall be filed in the probate office. The Supreme Court shall, by general rules, from time to time, prescribe the powers and duties of such clerk: Provided, The salary of said clerk shall be paid by the judge of probate, and no additional costs or expenses shall be made either to the counties or estates of deceased persons in consequence of the appointment of such clerk. Supreme Court rule, adopted July 14, 1864, Ordered, That pro- bate clerks appointed in pursuance of paragraph 3652 of the Com- piled Laws (it being Sec. (5237) of C. L. of 1871), shall have power to file all probate papers and papers pertaining to the business of the probate court, to record all its orders and proceedings, and such papers as shall be directed to be recorded by the court, and to issue subpoenas for the appearance of witnesses in said court, and to give certified copies of all papers and proceedings. when judge 1566 (5246.) Section 1. The People of the State of Michigan may'appoint enact, That the judge of probate of any county, the population of which, according to -the last census taken by legal authority, exceeds forty thousand, may appoint a probate register for such Salary of. county, who shall receive such annual salary as the board of super- visors shall prescribe, not exceeding six hundred dollars, payable Power oi monthly from the county treasury. Said register shall have power to receive petitions, fix the time of hearing, administer oaths, and do all other acts required by the judge of probate, except judicial acts. Feesforcop- 1566 (5247.) Sec. 2. Attested copies, or exemplifications, of any record proceeding entered in such probate court, and furnished on request to any person, shall be paid for at the rate of eight cents per folio. This section is virtually repealed by act No. 197, page 496 of L. 1873, which gives to the judge of probate ten cents per folio for copies of records and files, and twenty-five cents for certifying, etc., the same. Powers of probate courts in regard to railroad companies, C. L. page 757. CONSTITUTIONAL AND GENERAL PROVISIONS. 27 Powers and duties of the probate court in regard to insane per- sons in indigent circumstances, C. L. 636 (1934), etc., and (1954), etc. A petition under oath should be filed in the probate court by some relative or friend of the insane person, setting forth, as fully as may be, his mental condition, and also that his estate is insuffi- cient to support himself under the visitation of insanity, or himself and family, if he have one, and that he is not a pauper, and also praying the court to make an order, admitting such insane person into the Michigan Asylum for the Insane, to be there supported at the expense of the county. When such petition is filed, a day should be fixed as soon as possible for the hearing of the same, and a citation issued to be personally upon such alleged insane person, and upon the members of his family, or upon some one of his near- est relatives in case he has no family, and the judge of probate ought also to notify the prosecuting attorney of the time and place for hearing the. petition. Two respectable physicians must be sub- poened to testify as to his insanity, and it is best to subpceua phy- sicians who have attended the insane person, if possible; if not, then have the physicians thoroughly examine the case before giving their testimony. If the case presents any difficulties, other wit- nesses who are familiar with the insane person ought to be sub. pcened. All the testimony taken in these cases should be written down by the judge, as fully as possible, and subscribed by the wit- ness, and the usual jurat attached. It should then be filed with the other papers in the matter, and preserved, for the inspection of the Board of Supervisors, or any other persons interested. This section provides that a jury may be called, but does not provide how it shall be called, nor is there any general statute upon the subject, in regard to probate courts. In most cases it is not best to take time to call a jury. If, however, the court, in any case, should think it best, a jury of twelve free holders should be sum- moned. These jurors must have the same qualifications as required in other courts of record. The jury may be selected by the judge, and a venire issued, and on the return of the venire, talesmen may be summoned, if necessary, until the jury is full. The jury should be sworn to well and truly try the question whether the person mentioned in the petition is insane or not, and a true verdict give 28 CONSTITUTIONAL AND GENERAL PROVISIONS. according to the evidence. The judge of probate must determine whether the person is in indigent circumstances, and may subpoena witnesses for this purpose. The original certificate or order must be recorded, and a certified copy sent to the superintendent of the asylum. It would be well for judges of probate, when entering upon the duties of their office, to write to the superintendent of the asylum for general instructions as to the best manner of getting patients to the asylum, as they will be called upon to give advice in such matters. If it appears from the petition that the insane person is very violent, so that delay is dangerous, it is a very general practice for the judge of probate to direct the friends or some officer to take the patient to the Asylum, and write the superintendent the particu- lars of the case, and that hie will forward the proper certificate as soon as possible. The case may be afterwards determined as stated above. I do not think there can be any serious objection to this practice. This statute does not seem to give the probate court power to commit a person to the Asylum, but simply power to make a certificate that the person shall be admitted into the Asylum, and be there supported at the expense of the county. It is provided on page 2218 (8135) that all judgments and com- mitments of juvenile offenders to the Reform School shall be ap- proved by the probate court. Too much care cannot be exercised in performing the duties required by this section. The judge of probate should require the justice making the commitment to file in the probate office the originals or certified copies of the complaint, the warrant and return, and all the testimony taken on the trial. In the matter of Patrick O'Leary, 25 Mich. 144. The testimony should be taken as fully as possible, and each witness be required to sign his deposition, and the justice add the usual jurat. The probate judge, before approving the commitment, should also require the justice to obtain an approval of the commitment in writing indorsed thereon, by the state agent for the care of juvenile offend- ers, if there is one appointed for his county. See L. 1873, p. 229, Act. No. 171. The certified copies of the papers above mentioned should be filed and preserved in the probate office. The judge of probate may be called upon to advise with such state a»ent in regard to binding out such children, etc., and he will find his duties CONSTITUTIONAL AND GENERAL PROVISIONS. 29 fully defined in L. 1873 p. 229, Act No. 171. Although our Re- form School is well managed, it should be remembered that a com- mitment to any penal institution has a tendency to blunt, if not destroy the child's self-respect, which is the most potent of all con- trolling powers. It is also well known that some are sent there who cannot be reformed, and their influence must be injurious upon the other young and susceptible minds around them. Children should not, therefore, be sent there meVely because they are way- ward and troublesome, but only as a last resort. The township drain law, L. 1875 p. 167, Act No. 140, provides that the judge of probate may appoint the commissioners to act in the place of a jury to ascertain the necessity of taking private prop- erty tor the purpose of ditches and water courses, and the compen- sation to be paid therefor. Bench v. Otis, 25 Mich. 29. A peti- tion should be filed in the probate court by the drain commissioner, giving a full description of the proposed ditch, stating its length, where it begins and ends, its general size, and also a description of the lands it passes over, and who owns them, and praying the court to appoint three disinterested freeholders, residing in the vicinity of such land, as commissioners to ascertain the necessity of taking the property for the purpose of such ditch, and assess the damages to be paid therefor. The court should then fix a day for hearing the petition, and cite ,the owners of such lands to appear and ans wer the petition. After hearing the parties, if they cannot agree, the court should proceed to make the appointment. The order ap- pointing the commissioners should describe the ditch, the lands it passes over, and who owns them, etc., as set forth in the petition. A certified copy of this order should be delivered to the commision- ers, and the original order recorded. To this certified copy of the order should be attached the oath required by the statute, duly taken and subscribed by the commissioners. These commissioners, after examining the premises described in the order, must make a return to the drain commissioner, signed by them, which should contain a description of the ditch as set forth in the order, the dis- tance it passes over each person's land, and the general nature of the ground, and also whether it is necessary to take such lands for the ditch, and the compensation or damages therefor to be paid to each of the owners, naming them. The certified copy of the order of appointment and the oath ought to be attached to the return. 30 WILLS. WILLS. Eules of 92, I. All words and phrases shall be construed and understood of"tatutes™ according to the common and approved usage of the language ; but technical words and phrases, and such as may have acquired a pecu- liar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning. 92, 2. Every word importing the singular number only, may extend to and embrace the plural number, and every word import- ing the plural number, may be applied and limited to the singular number ; and every word importing the masculine gender only, may extend and be applied to females as well as males. 92, 9. The word "land," or "lands," and the words "real estate," shall be construed to include lands, tenements, and real estate, and all rights thereto, and interests therein. 93, 16. The word "will," shall be construed to include codicils, as well as wills. 93, 17. The words "written," and "in writing," may be con- strued to include printing, engraving, and lithographing; except that in all cases where the written signature of any person is required by law, it shall always be the proper handwriting of such person ; or, in case he is unable to write, his proper mark. 82, Section 1. The common law and the statute laws now in Common and statute force, not repugnant to this Constitution, shall remain in force un- law to re- main in til they expire by their own limitations, or are altered or repealed by the Legislature. Aliens may ^ 9 > Sec - 13 - Aliens who are, or who may hereafter become, bona hold proper- ^ g residents of this State, shall enjoy the same rights in respect to the possession, enjoyment, and inheritance of property, as native-born citizens. For provision in regard to wills in ordinance of 1 787 for North- west Territory, C. L. 25, Section 2. A married woman may dispose of a policy of insurance upon the life of her husband by will C. L. 1479 (4809.) WILLS. 31 whether born at the time of making the will or afterwards, to con- Barb. ' 1481 (4819.) Sec. 10. Every father may, by his last will, in writ- Ap pointm't ing, appoint a guardian or guardians for any of his children, Dy wm^'wi • lie. - .465. tinue during the minority of the child, or for any less time ; and every such testamentary guardian shall have the same powers, and shall perform the same duties with regard to the person and estate of the ward, as a guardian appointed by the judge of probate. 1477 (4803.) Section 1. The People of the State of Michigan Property oi enact, That the real and personal estate of every female, acquired women not before marriage, and all property, real and personal, to which she husband's may afterwards become entitled by gift, grant, inheritance, devise Mien.' 223, . 377. 10 llicb or in any other manner, shall be and remain the estate and prop- 333, 538. 11 Mich. 33, 457 erty of such female, and shall not be liable for the debts, obliea- 470. ' " 14 Mich. 91. tions and engagements of her husband, and may be contracted 21 Mich. 215. sold, transerred, mortgaged, conveyed, devised, or bequeathed by tractseu™ her, in the same manner and with the like effect as if she were un- married. married. Some very important provisions in regard to real estate, many of which may apply to wills, may be found in the Compiled Laws from page 1324 to 1341, under the heads of "Estates in Real Property," " Uses and Trusts," and " Powers." Certain ' grants to 1329 (4111.) Sec. 44. All grants and devises of lands, made to ff"? es " v ' ° ' tates in com- two or more persons, except as provided in the following section, ^°"j ass 61 shall be construed to create estates in common, and not in joint cod°e n oi ufo tenancy, unless expressly declared to be in joint tenancy. ' ]8 27 261. ° 1329 (4112.) Sec. 45. The preceding section shall not apply to Application of last sec- mortgages, nor to devises or grants made in trust, or made to exec- tion. 6 Mich utors, or to husband and wife. Fisher v. Provin, 25 Mich. 347. 1366 (4305.) Sec. 35. Any alien may acquire and hold lands, or Aliens may any right thereto or interest therein, by purchase, devise, or descent, woodward and he may convey, mortgage, and devise the game, and if he shall 45! ' P ' ' die intestate, the same shall descend to his heirs ; and in all cases 32. such lands shall be held, conveyed, mortgaged, or devised, or shall p. 272. descend, in like manner, and with like effect, as if such alien were a native citizen of this State or of the United States. 1366 (4306.) Sec. 36. The title to any lands heretofore conveyed Title to v ' J J lands here- shall not be questioned, nor in any manner affected, by reason of tofore con- 32 WILLS. veyed, not the alienage of any person from or through whom such title may to be ques- . tionedonac- have been derived. count of al- ienage. See Fisher v. Provin, 25 Mich. 347. Whomay L. 1873, 13, Act. No. 15, (4322.) Sec. 1. Every person of full devise lands. .,.-,. , , , - l j age and sound mind being seized in his own right ot any lands or of any right thereto, or entitled to any interest therein descendable to his heirs, may devise and dispose of the same by his last will and dis n osed 0t of testament in writing, and all such estate not disposed of by the will, by win. ^^1 d esC e n d as the estate of an intestate, being chargeable in both cases with the payments of all his debts. Approved February 21, 1873. The words "Every person" includes married women. C. L. 1477 (4803.) and 77, section 5. A person, male or female, is of full age when twenty-one years old. 2 Kent Com. 265; C. L. 66 and 1480 (4816.) The Common Law is adopted by our constitution. C. L. 82, Section 1. The burden of proof to establish testamentary capacity is upon the proponent of the will in the first instance, and remains with the proponent to the end of the trial. Beaubien v. Cicotte 8 Mich. 9; Aikin v. Weckerly, 19 Mich. 482. In regard to testamentary capacity, the proponent need only make a prima, facie case by his testimony in chief, and after the contestant has introduced his testimony, the proponent can intro- duce further affirmative proof if necessary. The proponents open and clo3e the case, both with the evidence and on the argument. Taff v. Hosmer, 14 Mich. 309; Aikin v. Weckerly, 19 Mich. 482; Kempsey v. McGinnis, 21 Mich, 123. The following charge in regard to testamentary capacity, held to be satisfactory : " That to make the testator competent, he must have sufficient active memory to recollect in his mind, without prompting, the elements of the business to be transacted, and to hold them in his mind a sufficient length of time to perceive their obvious relations to each other, and to be able to form a rational judgment in regard to them, and that it is not sufficient in law that the testator be of memory, when he makes his will, to answer familiar and usual questions." Aikin v. Weckerly, 19 Mich. 492 and 506. WILLS. 33 Declarations of the testator made at, or before, or subsequent to the making of the will, are admissable to show undue influence or testamentary capacity. In these cases, a wide range of inquiry into the family relations of the testator and his family, ard the terms upon which they have lived is allowed. Former wills and other pecuniary arrangements of the deceased connected with them, may be received in evidence. " It cannot be claimed that a will is valid unless the testator not only intends of his own free will to make such a disposition, but is capable of knowing what he is doing, of understanding to whom he gives his property, and in what proportions, and whom he is depriving of it as heirs or devises under the will he revokes." Beaubien v. Cicotte, 12 Mich. 190. In regard to testamentary capacity to make the will in question, any witness may give his opinion based upon his own observations. The witness should first state how long and intimately he has been acquainted with the testator, and give as far as possible the facts upon which he bases his opinion. Beaubien v. Cicotte, 12 Mich. 459. "White v. Bailey, 10 Mich. 155. Hairing v. Allen, 25 Mich. 505. " A less degree of mind is requisite to execute a will than a contract ; and though the testator must understand, substantially, the nature of the act, the extent of his property, his relations to others who might, or ought to be, objects of his bounty, and the scope and bearing of the provisions of his will, and must have suf- ficient active memory to collect in his mind, without prompting, the elements of the business to be transacted, and to hold them in his mind a. sufficient length of time to perceive at least their obvious relations to each other, and be able to form some rational judg- ment in relation to them ; yet it is quite clear from the great weight of authority, that he need not have the same perfect and complete understanding and appreciation of any of these matters in all their bearings, as a person in sound and vigorous health of body and mind would have, nor is he required to know the precise legal effect of every provision contained in his will." Kempssy v. McGinnis, 21 Mich. 141. A medical expert may give his opinion in regard to the mental capacity of the testator to plan and execute the will in question, based upon the testimony of other witnesses. In such cases, the 5 34 WILLS. physician should either be present at the trial and hear all the tes- timony of the witnesses upon whose testimony he is to base his opinion, or the hypothetical question put to him should recite all the facts to be assumed, and he should then be asked, "Supposing this testimony, or these facts, to be true, was the testator, in your opinion, mentally competent to plan and execute such an instru- ment as is here offered as his will?" In all cases the question must be, " "Was the testator mentally competent to plan and execute the will in question?" If the jury find that any of the facts sought to be established by the testimony, when the expert hears the testi- mony, or any of the facts assumed, when a hypothetical question is put, are not true, then the opinion of the expert must be rejected. Kempsey v. McGinnis, 21 Mich. 123. McGinnis v. Kempsey, 27 Mich. 363. Sanchez v. People, 22 N. Y. 147, 1E4. The subscribing witnesses also may give their opinions in regard to the testamentary capacity of the testator. Clapp v. FullertoD, 34 N. Y. 190. The following charge to a jury held to be correct : "That there is a legal presumption raised by the law in favor of the sanity of all men, and although this presumption is not conclusive, still the jury should consider it in weighing the evidence in the case, of which, for practical purposes, it forms a part." The following re- quest to charge was properly refused: "If the jury should find that, upon the other testimony relating to the testator's mental sound- ness, the evidence was balanced, the jury should permit the legal presumption of sanity to decide the question in the testator's favor." The legal presumption of sanity is not sufficient to establish the fact of sanity without evidence. McGinnis v. Kempsey, 27 Mich. 363 and 373. Deaf, dumb, and blind persons who are able to communicate with others may make wills. In the case of such persons, the wit- nesses should be able to communicate with and understand the tes- tator. In the case of blind persons, the will should be read over to the testator in the presence of the witnesses. It has been held that this is not absolutely necessary, but it is better in all cases to do so. An insane person may make a will during a lucid interval ; but the testator must have the same soundness of mind as is indicated to be necessary in the foregoing cases. WILLS. 35 For a more complete discussion of these subjects than we have space to give here, see 1 Kedneld on Wills, 30 ; 1 Jarman on Wills, 50; 1 Williams on Executors 17. Undue influence, to render a will void, must be exercised by coercion, imposition or fraud, and will not be inferred, but must be proved. Kihnie v. Johnson, 60 Barb. 69. It may be established by circumstantial evidence. The influence must be such as to de- prive the testator of the free exercise of his will. Gardiner v. Gardiner, 34 N. Y. 155. 1371 (4323.) Sec. 2. Everv devise of land in any will hereafter Contraction ' ' J of devise. made shall be construed to convey all the estate of the devisor 3 Denio. 458. J 21 Wend. 402 therein which he could lawfully devise, unless it shall clearly ap- pear by the will that the devisor intended to convey a less estate. 1372 (4324.) Sec. 3. Any estate, right, or interest in lands, Estate in lands ac- acquired by the testator after the making of his will, shall pass quired after . . making will. thereby in like manner as if possessed at the time of making the 5 pick - u 2 - J r & 6 Mass. 129. will, if such shall manifestly appear by the will to have been the L?"^" 8, intention of the testator. mon > 67 - 1372 (4325.) Sec. 4. Every person of full age and sound mind whomaybe- queath per- may, by his last will and testament, in writing, bequeath and dis- sonai estate. pose of all his personal estate remaining at his decease, and all his i6 mmi- 405. rights thereto and interest therein ; and all such estate not disposed of by the will shall be administered as intestate estate. If there is any estate not disposed of by the will, it should be fully described as intestate property in the final account of the executor, and in the order of distribution it should be distributed among the heirs at law of the deceased according to the statutes of descent. C. L. 1367 and 1383. The presumption that a testator means to die intestate, as to a part of his estate, will not be raised when the will does not nat- urally lead to that inference. Bailey v. Bailey, 25 Mich. 185. A testator cannot by his will deprive his widow of her right of dower in his real estate. C. L. 1362 (4286.) and (4291.) A testator cannot by his will deprive his widow of her rights in his personal property, under C. L. 1383 (4377.) "First," " Second," "Third" and " Fourth ;" and C. L. 1376 (4350.) Miller v. Step- per, decided June T. of S. 0. 1875. 3 4Greenl.220. 36 WILLS. In construing a, will, the general intent, as gathered from the whole instrument will govern, and neither the usual sense of tech- nical language, nor the order of clauses, will be allowed to change the real purpose of the testator. Jones v. Jones, 25 Mich. 401. Where a legacy is given upon condition that the legatee shall separate from her husband, the condition is void as against public policy. Conrad v. Long, decided October T. of S. C. 1875. Howwiiiato 1372 (4326.) Sec. 5. No will made within this State, except lKeman, such nuncupative wills as are mentioned in the following section, 320. r 3 Barb. Ch. shall be effectual to pass any estate, whether real or personal, nor R. 158. 16 Barb. 198. to charge or in any way affect the same, unless it be in writing, u Mass' 431' an< * a ^S a6 ^ by tne testator, or by some person in his presence, and 9 Pick sU k v bis express direction, and attested and subscribed in the pres- ence of the testator by two or more competent witnesses; and if the witnesses are competent at the time of attesting the execution of the will, their subsequent incompetency, from whatever cause it may arise, shall not prevent the probate and allowance of the will, if it be othewise satisfactorily proved. This section does not apply to wills of personal estate executed without the State by persons domiciled within the State. Such wills are valid if executed according to the requirements of the Common Law, whish does not require witnesses. Rue High Appellant, 2 Doug. (Mich.) 515. Wills executed according to the requirements of the law of the testator's last domicil will pass his personal estate wherever found, and if not so executed they are invalid. Wharton on Conflict of Laws, Sec. 585. Wills of real estate must be executed according to the law of the State in which the real estate is situated. Wharton on Conflict of Laws, Sec. 587. Wills of personal property are con- construed according to the law of the testator's last domicil, but wills of real estate according to the law of the State where the real estate is situated. Wharton on Conflict of Laws, Sec. 592 and 597. This section does not require the will to be written in ink, or on any particular substance, or in any particular form or language. It does not require the will to be executed under seal. It does not require the testator to sign his name in the presence of the witnes- ses, or in any particular place on the will. Tt does not require the testator or the witnesses to sign in any .particular manner. It does WILLS. 37 not require the subscribing witnesses to sign the will at the same time, or in the presence of each other. It does not require that there should be an attestation clause to the will. It does not require that an executor shall be appointed in the will. It does not require a formal publication of the will. It does not require that the testator shall expressly request the witnesses to attest his will. The courts should not require more than the statutes, because they may deem a particular formality very important. It is a suf- ficient answer to any such proposition, that the Statute does not require it. The courts have repeatedly decided that a seal is not necessary, not because it is a useless formality, but because the statutes do not require a seal. The same decisions have been made in regard to the publication of wills, and for the same reason. The language of the statutes also, should not be stretched in order to include some supposed beneficial requirement, because a large num- ber of very important wills are drawn by ordinary business men, who understand the language of the statutes in its plain, ordinary sense, as the statutes themselves require that they shall be under, stood and interpreted. C. L. 92, Sec. 1. If a strained and enlarged interpretation is placed upon them by the courts, it will render half the wills void. And, furthermore, if such a course is pursued, we would have no established formalities for the execution of wills, but the peculiar opinions of each judge or court, would govern each case, and the rules might change as often as there was a change of judges. One might require a seal, another publication, and a third that the will should be duly acknowledged, because it is a solemn and very important instrument, and might dispose of large and very impor- tant estates. The only safe course is to follow the express direc- tions of the statutes, and require nothing more. THE WILL MUST BE IN WRITING. A will may be written or printed, engraved or lithographed, except the signatures of the testator and witnesses ; or partly written and partly printed, engraved or lithographed. C. L. 93, Sec. 17. 2 Bl. Com. 376 Chitty's Notes ; Schneider v. Norris, 2 M. & S. 286; 1 Redfield on Wills, 165; Temple v. Mead, 4 Vt. 536; Henshaw v, Foster, 9 Pick. 312. 38 WILLS. It has been decided that a will written in pencil, and signed by the testator and witnesses in pencil would be good. 1 Jarman on Wills, 111, note; In Re Dyer, 1 Hagg, 219; 1 Williams on Exec- utors, 96, notes; Mence v. Mence, 18 Ves. 348; 1 Redfield on Wills, 165. All the circumstances connected with the execution of wills in pencil, should be very cauefully scrutinized. A will thus made should not of itself, have the same weight as a will written in ink. For attestations of wills in pencil and ink, see same authorities. There is no particular form required, and no particular forms of expression need be used in making a will. Hue High appellant, 2 Doug. Mich. 515 ; 1 Williams on Executors, 89 and 92 ; McGinnis v. Kempsey, 27 Mich. 375 ; 1 Jarman on Wills, 13 ; 1 Eedfield on Wills, 166 A will may be executed on Sunday. 3 Washburn on Real Pr. 428. The testator may write his will on any material he pleases, but the material used is important in determining whether he intended the instrument to be his will or not. 1 Redfield on Wills, 165; 1 Jarman on Wills, 111, note; 1 Williams on Executors, 96. A will may be written in a foreign language, and it is best that it should be, when the testator does not thoroughly understand the English language. The witnesses need not understand the lan- guage of the will; it is sufficient if they can understand and com- municate ■with, the testator. 1 Redfield on Wills, 166 and 167, note. The will can be translated when admitted to probate. 3 Redfield on Wills, 54; 1 Williamson Executors, 338, 488 and 489; Wil- lard on Executors, 165. This translation is not conclusive and absolutely binding, but the original may always be resorted to for the purpose of correcting errors. L'Fit v. L'Batt, 1 Peere Wins, 526. The will must be signed by the testator, or by some person in his presence, and by his express direction. C. L. 93, Sec. 17. The words "written," and "in writing," may be construed to include printing, engraving and lithographing ; except that in all cases where the written signature of any person is required by law, it shall always be the proper handwriting of such person ; or, in case he is unable to write, his proper mark." It is impossible to tell whether the Supreme Court will construe ' WILLS. 39 the statute as mandatory or merely directory. It is, in terms mandatory, and if so construed by the courts, it does away with many of the decisions upon the question of signature. It has been decided that a mark was sufficient, although the tes- tator was able to write. One signature is sufficient, where the will is written on several sheets of paper attached together. It is not material in what part of the will the testator places his signature; but it must appear that he intended to sign and execute the instru- ment as his will. I Jarman on Wills, 111 ; 1 Williams on Execu- tors, 67. Where the will is in the handwriting of the testator, and he commenced it as follows, '■ I. A B, do make," etc., it is held to be a sufficient' signing. It is held that signing by the initial letters of the name, or signing a fictitious name, or signing a wrong name against the mark, is sufficient. And where the testator, by illness, is unable to write his name, and a person guided his hand in mak- ing his mark, and the testator adopted it as his signature, it is suf- ficient. A will need not be executed under seal. 1 Redfield on Wills, 203 1 Greenleaf on Evidence, 307, Par. 272 ; 2 Greenleaf on Evidence, 587, Par. 674. A witness to the will or any other competent person may sign the name of the testator to the will, in his presence and by his ex- press direction. It is not material that the person directed to sign the testators's name signs his own name by mistake. The person signing the testator's name to the will must be directed, in some distinct manner, by the testator to do so, before he writes the name, and the act must be done in the presence of the testator, or where he could see the act, if he chose to do so. It is held that where the testator signs his will assisted by a person who guides his hand, it is sufficient. Smith's Probate Law, 17 ; Stevens v. VanCleve, 4 Wash. C. C. 292. It is best in all cases to have the testator make his mark, if he is unable to sign his name. C. L. 93, Sec. 17. The will muse be attested and subscribed, in the presence of the testator, by two or more competent witnesses. It is not necessary that the testator should sign the will iu the presence of the wit- nesses, and they need not see him sign, and the testator need not in express words acknowledge the signature to be his. Coffin v. Coffin, 23 N. Y. 9. If the testator clearly indicates to the witnes- ses that the instrument is his, and that he desires them to attest it, 40 WILLS. either directly or through a third person, it is sufficient. McDon- ough v. Loughlin, 20 Barb. 238; Brown v. DeSelding, 4 Sand. 10; Coffin v. Coffin^ 22 N. Y. 9; Vaughn v. Burford, 3 Bradf. 83; Doe v. Doe, 2 Barb. 200; Rutherford v. Rutherford, 1 Denio, 33 ; Gamble v. Gamble, 39 Barb. 373; Remsen v. Brinkerhoff, 26 "Wend. 336. It will be observed, however, on examination of our statute, C. L. (4326), that it does not, like the Statute of New York, require that the testator shall request the witnesses to attest his will. It would, however, seem to be necessary, from the nature of the proceeding, that the testator should at least in some distinct manner sanction or approve the act. The approval may as well be expressed by acts as by words. This acknowledgement may be made to the witnesses separately and at different times and places. The word " subscribe," has been construed to mean the same as the word "sign." A witness may subscribe by making his mark. C. L. 93, Sec. 17. A witness should never sign by his mark, unless he is unable to write. The witnesses should attest the will in the presence of the testator. The following language is used in the case of Aikin v. Weckerly, 19 Mich. 504: "The condition and posi- tion of the testator when his will is attested, and in reference to the act of signing by the witnesses, and their locality when signing, must be such that he has knowledge of what is going. forward, and is mentally observant of the specific act in progress, and, unless he is blind, the signing by the witnesses must occur where the testa- tor, as he is circumstanced, may see them sign, if he chooses to do so. If, in this state of things, some change in the" testator's pos- ture is requisite to bring the action of the witnesses within the scope of his vision, and such movement is not prevented by his physical infirmity, but is caused by an indisposition, or indifference on his part to take visual notice of the proceeding, the act of wit- nessing is to be considered as done in his presence." The testator should be conscious at the time his will is attested, and mentally competent to understand the nature and object of the act. An attestation in the same room with the testator, is presumed to have been made in his presence, but when not made in the same room, the presumption is that it was not in his presence. The presump- tion in either case may be rebutted by testimony. There is also a presumption that the attestation was made in the most convenient WILLS. 41 part of the room for that purpose. 2 Greenleaf Ev. Sec. 678. It has been, decided that a witness may subscribe by signing the initials of his name, or by signing some other name or designation for his own, in good faith ; and if he cannot write, his hand may be guided by another. It is however much the safest practice to have the witness make his mark, where he is unable to write his name. C. L. 93, Sec. 17. A blind man should be conscious of the presence of the wit- nesses as far as his condition will permit. An attestation clause is not necessary, but should be added in all cases, as it may aid very materially in refreshing the recollection of the witnesses. 1 Red- field -on Wills, 229 and 230, note; Smith's Probate L. 17 and 19 ; 2 Greenleaf Ev. Sec. 675, etc.; 1 Cooley's Bl'k, Bk 2d. p.377, note; 1 Jarman on Wills, 115; Lawyer v. Smith, 8 Mich. 411. It is not necessary to prove by both witnesses that all the statu tory requirements were complied with. Wier v. Fitzgerald, 2 Bradf. 42. When it is not possible to establish the due execution of the will by the subscribing witnesses, other witnesses may be called for this purpose. Butler v. Benson, 1 Barb. 526 ; Lawrence v. Norton, 45 Barb. 448. The will may be established by the testimony of other witnes- ses, in opposition to the testimony of the subscribing witnesses. Chaffee v. Baptist M. 0. 10, Paige, 85 ; Peebles v. Case, 2 Bradf. 226; Jackson v. Christman, 4 Wend. 277. It is not necessary to appoint an executor in a will. 1 Wil- liams on Executors, 7. This statute does not require a publication of the will. The testator need not in any manner inform or indicate to the subscribing witnesses, that the instrument they attest is his will. It is sufficient if he plainly indicates to them that the instrument is his, and requests them to attest it as witnesses, without in any manner indicating the nature of the instrument. McGinnis v. Kempsey, 27 Mioh. 375 and 376; Smith's Probate Law, 17 and 18 ; 1 Williams on Executors, 75; 1 Kedfield on Wills, 213 and note; 2 Greenleaf on Ev. p. 727, Sec. 673 ; 1 Chitty's Practice, 358. If it should appear that the testator was incapable of reading, from any cause, it would be incumbent upon the proponents to establish the fact that the contents of the will was made known to 42 WILLS. him in some proper manner. Sweet v. Boardman, 1 Mass. 262 ; Pelter v. Brigham, 10, N. H. 514. A codicil to a will must be executed with the same formalities as a will. C. L. 93, Sec. 16. Notwithstanding the courts have been so liberal in construing the statutes, still in drawing and executing a will, all the ordinary formalities should be complied with. Surplusage will do no harm. Technical words ought to be avoided as much as possible, and the simplest and plainest language used. The will ought to be so ex- pressed that the testator will understand every part of it. After the will is drawn and carefully read over to the testator, and signed by him, he should be asked, in the presence of the witnesses, whether the instrument is his last will and testament, and whether he desires the persons present to sign it as witnesses. Tunison v. Tnnison, 4 Bradf. 138. In case the testator does not desire to dis- close to the witnesses or others, that he has executed a will ; he may simply state to the witnesses that the instrument, and the signa- ture thereto are his, -and request them to sign it as witnesses. If he clearly indicates to the witnesses that the instrument is his, and that he desires them to sign it as witnesses, they should sign their names immediately after the usual attesting clause. Will of Mer- chant, 1 Tucker's, N. Y. Sur. 51. The attestation clause is impor- tant, and should be carefully read by the witnesses, or read over to them. Lawyer v. Smith, 8 Mich. 411 ; Hitch v. Wells, 10 Bear 84 ; Peebles v. Case, 2' Bradf. 226. The testator must sign the will before the witnesses. 3 Wash- burn on Real Property, 429. WITNESSES TO A WILL MUST BE COMPETENT. No witness is incompetent on account of his religious belief, and he shall not be questioned in regard to it. 0. L. 65, Sec. 34, and p. 1714 (5963.), etc. Certain per- *715 (5966.) Sec. 99. No person shall be excluded from giving duded°irom evidence in any matter, civil or criminal, by reason of crime, or for de™. some other writing, signed, attested, and subscribed in the manner provided in this chapter for the execution of a will; excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or cir- cumstances of the testator. Where the revocation is by burning, etc., it must appear that the act was done by the testator with the intention of revoking his will. When a will thus mutilated is found in the possession of the testator at his decease, the intention to revoke will be presumed; but when thus found, in the possession of another, the intention to revoke must be shown. Where the intention to revoke is clear, but slight burning, etc., is necessary. The revocation by destruction or cancellation may extend only to a part of the will. The testator may change his determination to revoke, at any time before the revocation is complete, and restore his will, if it is not so far destroyed as to be incapable of restoration. Cutting is the same as tearing. Where it clearly appears that the testator intended to revoke his will, but through the deception of others, the will is not injured, it has been held to be a complete revocation. The same soundness of mind is required to revoke, as to make a will. Where a will has been executed, and was last seen in the possession of the testator, and after his death it cannot be found, it is presumed that the will has been destroyed by the testator with the intention of revoking it. Mere abandonment is not a revocation ot a will. Erasures, alterations, and obliterations in pencil are merely delib- erative, but when made in ink they are final and absolute. 1 Cool- ey's Blk. Bk. 2d, 375, note; 2 Greenleaf on Evidence, Par. 680; McPherson v. Clark, 3 Bradf. 92. 1 Redfield on Wills, 305 to 331 ; 1 Jarman on Wills, 155 ; Lawyer v. Smith, 8. Mich. 411 ; Smith's Probate L., 38. Where the questions litigated are, whether the decedent had 46 WILLS. not destroyed the will in such manner as to revoke it, and whether the will was not originally procured by undue influence, and the fact of its destruction by the decedent is disputed, declarations of the decedent, manifesting dissatisfaction with the dispositions of the will, though not made at the time of the alleged acts of spolia- tion, are competent evidence, bearing both upon the question of the destruction of the will by the decedent, and upon the intent of his acts. Harringv. Allen, 25 Mich. 505. A later will, containing no revoking clause, and a codicil, revoke a former will so far only as they are inconsistent with the former will. Nelson v. McGiffert, 3 Barb. Oh, 158; Robinson v. Smith, 13 Abb. Pr. 359; Conover v Hoffman, 15 Abb. Pr. 100. A later will disposing of the entire estate of the testator, revokes all former wills. Simmons v. Simmons, 26 Barb. 68. IMPLIED EEVOCATIONS. A sale or mortgage of real estate by the testator, which is devised in his will, revokes the will to the extent of the sale or mortgage. The marriage of a man together with the birth of issue, revokes his will previously made disposing of all his estate. The rule is the same where the child dies before the testator, or is born after his death. These rules will not apply where the testator by his will or by some other instrument makes provision for his future wife and child. Tt is held that the presumed revocation may be rebutted by circumstances showing a different intent. 1 Redfield on Wills, 293 and 334; Smith's Probate L., 42 ; 1 Cooley's Blk., Bk. 2d, 375, note; 1 Jarman on Wills, 145 and 166; 2 Greenleaf on Evidence, Par. 684. In preparing wills, ell erasures and interlineations should be noted at the foot of the will, and over the signatures of the witness- es, and their attention should be particularly called to them. All alterations of a will after it is executed should be by a codisil, or it' the alterations are very extensive, a new will should be executed, when win 1373 (4331.) Sec. 10. Any will in writing, being enclosed in a ported with sealed wrapper, and having indorsed thereon the name of the tes- bate. tator and his place of residence, and the day when and the person by whom it is delivered, may be deposited by the person making the same, or by any person for him, with the judge of probate in WILLS. 47 the county where the testator lives, and the judge of probate shall receive and safely keep such will, and give a certificate of the deposit thereof. On receipt of a will, the judge of probate should enclose it in an envelope and seal it, and then endorse upon one end of the envelope its proper number ; below this the name of the testator and his res- idence, and the name of the person who deposits the will, and the proper filing, which should be signed officially by the judge. It is very convenient to have a. blank book alphabetically indexed in which to enter under the proper letter, the name of the testator, the number of the envelope, the name of the person depositing the will, and the time it is filed. When a will is removed from the file, the time of its removal, and the name of the person to whom it is delivered, can be entered in this book. 1373 (4332.) Sec. 11. Such will shall, during the lifetime of the H? w such testator, be delivered only to himself, or to some person authorized dteposTdof. 11 by him by an order in writing, duly proved by the oath of a sub- scribing witness ; and after the death of the testator, and at the first probate court after notice thereof, it shall be publicly opened by the judge of probate, and be retained by him. The orders mentioned in this section should be filed and care- fully preserved in the files of wills. The will must not be opened or read during the life of the testator, except by his express direc- tions. 1373 (4333.) Sec. 12. The judge of probate shall give notice of judge ofprc such will being in his possession to the executor therein appointed, notice of hi. . . . possession of if there be one, otherwise to the persons interested in the pro- the will visions of the will; or if the jurisdiction of the case belongs to any other court, such will shall be delivered to the executor, or to some other trusty person interested in the provisions of the same, to be presented for probate in such other court. 1373 (4334.) Sec. 13. Every person other than the judge of others hav- probate, having the custody of any will, shall,, within thirty days Svriii^tode- after he has knowledge of the death of the testator, deliver the thirty days. same into the probate court which has jurisdiction of the case, or to the person named in the will as executor. 1373 (4335.) Sec. 14. Every person named as executor in any withinwhat will shall, within thirty days after the death of the testator, or t,™to e pre- U 48 WILLS. sontwiii to within thirty days after he has knowledge that he is named execu- ?ourt ate tor, if he obtains such knowledge after the death of the testator, 16MIoh.405. ' , , ,.. . ,.,.,. ,,, present such will to the probate court which has jurisdiction ot the case, unless the will shall have been otherwise deposited with the judge of probate; and shall, within the period above mentioned, signify to the court his acceptance of the trust, or make known in writing to such court his refusal to accept it. LHbiiityfor 1374 (4336.) Sec. 15. Every person who shall neglect to per- autiMincer- form any of the duties required in the last two preceding sections, without reasonable cause, shall be liable to each and every person interested in such will, in the sum of ten dollars damages for each and every month he shall so neglect, after the thirty days above mentioned, to be recovered in an action on the case, with costs. . When per- 1374 (4337.) Sec. 16. If any person, having the custody of any custody of will, after the death of the testator, shall, without reasonable cause, will may be ....... committed neslect to deliver the same to the probate court having jurisdiction fornegl'ctto & r ° ° deliver same f jj after he shall have been duly notified by such court for that to probate ' ^ ^ B°Q rt ' 274 P ur P ose > ne ma 7 be committed to the jail of the county, by warrant t Pick'!! 7 ' i ssue d by such court, and there be kept in close confinement until he shall deliver the will as above directed. A petition should be filed by some person interested, as per form given, and a citation issued to be personally served upon the per- son having the will, requiring him to produce and file the same in court, or show cause why he is unable so to do. . If no good cause is shown, it is the duty of the court to commit the person to the county jail, to be there confined until he shall produce the will. Notice of 13l7 4 (4338.) Sec. 17. When any will shall have been delivered place™' 1 i n *° or deposited in any probate court having jurisdiction of the proving will. same; sucn cour t ghaii a pp i n t a time and place for proving it, when all concerned may appear and contest the probate of the will, and shall cause public notice thereof to be given by personal service on all persons interested, or by publication under an order of such court, in such newspaper printed in this State as the judge shall direct, three weeks successively, previous to the time appointed; and no will shall be proved until notice shall be given as herein provided. Powersand 1559 (5196.) Sec. 5. The judge of probate for each county shall of judges of have power to take the probate of wills, and to grant administration WILLS. 49 of the estate of all persons deceased, who were at the time of their decease inhabitants of, or residents in, the same county, and of all who shall die without the State, leaving any estate within such county to be administered; and to appoint guardians to minors and others in the cases prescribed by law, and shall have and exercise all such other powers and jurisdiction as are or may be conferred by law. When a will is filed for probate,, a petition should in all cases be filed by some person interested, as per form given. The statute does not require a petition, but it is very desirable to have one in all cases. Smith v. Remington, 42 Baib. 75; Foster v. Wilber, 1 Paige, 537. The order for hearing may be published three suc- cessive weeks, or personally served upon all persons interested. It has been decided that a will more than thirty years old proves itself; but the almost universal rule in this country is, that a will cannot be proved and established by lapse of time. 3 Bedfield on Wills, 7, note. The statutes also do not permit a will to be established by lapse of time. The statute provides that this order may be published in any newspaper printed in this State; but the court should always direct them to be published in a newspaper printed in the county, if there is one, if not, then in a newspaper published in an adjoining county or in a newspaper published nearest to the county, if there are none published in the adjoining county. C. L. 2056 and 1389 (4397.) It is always best to have four insertions of the order; that is, the order should be published in an issue of the newspaper once each week for the four successive weeks immediately previous to the day of hearing. Of course three insertions will give three weeks' notice, if the last insertion is one week previous to the day of hear- ing. 1 understand that it has been decided in one of the southern States, that where one side of the newspaper is printed out of the State and the other side within the county or State, that it is not a newspaper printed in the State within the intent of such a stat- ute. If the entire paper is printed out of the State, it of course would not be safe to publish legal notices in it ; but the newspaper would be a complete newspaper without the "patent outside," and surplusage never vitiates. Where one-half of the newspaper, including the legal notices, is printed within the State or county, 7 "Folio" de- fined. 50 WILLS. and the newspaper has its principal circulation within the State or county, I do not see any technical or other good reason for not inserting legal notices in it. FEES FOE PUBLISHING PROBATE NOTICES. Feesforie- 2056 (7454.) Sec. 1. For publishing any other legal notice, or tisements. any order, citation, summons, or any other proceedings or adver- tisement, required by law to be published in any newspaper, the costs of publishing such advertisement shall not exceed the rate of seventy cents per folio for the first insertion, and thirty-five cents per folio for each subsequent insertion. 2057 (7459.) Sec. 32. The term "folio," when used as a meas- ure for computing fees or compensation, shall be construed to mean one hundred words, counting every figure necessarily used, as a word; and any portion of a folio, when in the whole draft or paper there shall not be a complete folio, and when there shall be any excess over the last folio, shall be computed as a folio. Judge of 1566 (5245.) Section 1. The People, of the Stale of Michigan notify'for" enact, That whenever it shall appear, upon application to any pro- elgn co ' bate court for letters of administration, or to prove the will of any deceased person, that the heirs-at-law of said deceased, or any of them, are residents of a foreign country, it shall be the duty of the judge of probate to notify the consul of the foreign nation where the said heir or heirs may reside, in the city of New York, of the pen- dency of such application; and said notice may be given by letter addressed to such consul and deposited in the postoffice, at the city or village where such application was made. 1374 (4339.) Sec. 18. If no person shall appear to contest the When pro- , „ ... . bate may be probate ot a will at the time appointed for that purpose, the court granted on ... . testimony of may, in its discretion, grant probate thereof, on the testimony of one witness. 8 Mich. 9. one of the subscribing witnesses only, if such witness shall testify that such will was executed in all the particulars as required in this chapter, and that the testator was of a sound mind at the time of the execution thereof. If no one appears to contest the probate of the will, it is suffi- cient to take the testimony of one of the subscribing witnesses. If contested, an issue should be. made, by the proponents filing a dec- laration, and the contestants a plea of the general issue, as per WILLS. 51 forms given. Generally, the contestants simply file written objec- tions to the probate of the will ; but the other is the better prac- tice, as it is like the practice in the circuit court. Aikin Executor, etc., v. Weckerly, 19 Mich., 482; Beaubien v. Cicotte, 8 Mich., 9; Taff. v Hosmer. 14 Mich. 309; Kempsey v. McGinnis, 21 Mich., 123. The issue may also be made by filing an answer to the peti- tion, as the petition contaiDS allegations of a'l the statutory require- ments necessary for the valid execution of a will. Where the will is contested, all the subscribing witnesses to the will and the codi- cils must be produced. The testimony of the subscribing witnesses to a codicil must be taken the same as witnesses to the will. The testimony of the witnesses should be taken as fully as possible, and be subscribed by them and the usual jurat attached. The court may issue subpoenas for witnesses as per form given. Lawyer and others v. Smith, 8 Mich., 411. No one can contest a will which only disposes of property, except the heir-at-law. or next of kin of the testator; but where the will appoints a guardian for a minor, -any one may oppose it who would be entitled to be heard in oppo- sition to an application for guardianship. Taff v. Hosmer, 14 Mich., 249. The death of the testator must be proved, j,s the will only becomes operative at his death. 3 Redfield on Wills 3; Wash- burn on Real Pr., 429. There is a presumption of law that a per- son who has not been heard from for seven years is dead; but there is no presumption of his death at any particular period of the seven years. There is no legal presumption that a person shown to be alive at a given time, has continued to live for any particular period after that given time. 3 Redfield on Wills, 6, note. Decrees in the probate court in regard to the probate of wills are always, within reasonable limits of time, subject to revocation or modification upon the discovery of new and important facts essentially affecting the basis of such decrees, although not fraudu- lently withheld at the time the decree was made. 3 Redfield on Wills, 123 and 124, note. Part of a will may be refused probate, and a codicil may be rejected, leaving the will to stand. It is not necessary that the whole will stand or fall. Burger v. Hill, 1 Bradf. 360 ; In re Welsh, 5 K Y. (1 Redf.) 238; 3 Redfield on Wills, 52. 52 WILLS. when other 1374 (4340.) Sec. 19. If none of the subscribing witnesses shall may b,- ad- reside in this State, at the time appointed for proving the will, the mitted to . r , .. prove will, the court may, in its discretion, admit the testimony ot other wit- 2 Doug. 615. " . 8 Mich. 9. nesses to prove the sanity of the testator and the execution ot the will; and, as evidence of the execution of the will, may admit proof of the handwriting of the testator and of the subscribing witnesses. "Where the subscribing witnesses are dead, or cannot be found, or have become disqualified or incompetent, or have removed be- yond the jurisdiction of the court, it is necessary and sufficient to prove their handwriting and the handwriting of the testator, and when it is not possible to prove the handwriting of the witnesses, it has been held sufficient to prove the handwriting of the testator. Smith's Probate L., 47; 3 Redfield on Wills, 42; 1 Jarman on Wills, 221; 1 Greenleaf on Evidence, 614, Par. 570. Takingtesti- 1^92 (5857.) Sec. 11. Whenever all or any of the subscribing ness^out of*" witnesses to any will heretofore executed, or hereafter to be exe- provewin. euted, shall reside within this State, and out of the county, to the judge of probate of which exclusive power is given to take the proof of such will, and cannot, by reason of infirmity or sickness, attend before such judge of probate to prove such will, the testi- mony of such witness may be taken in the manner hereinafter prescribed, whomavap- 1692 (5858.) Sec. 12. Any person interested in the proof of such vits afflda wi\\, mav > on the day specified in the notice required by law, on which the proof of any such will is to be taken, present to such judge of probate, an affidavit, stating the names and residence of the subscribing witness or witnesses to such will, whose attendance cannot be procured before such judge of probate by reason of infirm- ity or sickness, accompanied by the affidavit of some disinterested person, of the sickness or infirmity of such witness or witnesses. Ordert t k 1693 (5859.) Sec. 13. If such judge of probate shall be satisfied Kre°an y - * n at an y su0 ^ w i tness i s s0 s ^ c ^ or infirm that it is not probable his of probat on hearing the case, it shall appear to Knied 7 the court that the instrument ought to be allowed in thi3 State, as andrecorded fa e i ast will and testament of the deceased, the copy shall be filed WILLS. 55 and recorded, and the will shall have the same force and effect as if it had been originally proved and allowed in the same court. 1375 (4343.) Sec. 24. When any will shall be allowed, as men- Lett'rs testa- mentary,etc. tioned in the preceding section, the probate court shall grant letters °n such will, testamentary, or letters of administration, with the will annexed ; and such letters testamentary or letters of administration shall extend to all the estate, of the testator in this State ; and such estate, after payment of his just debts and expenses of administra- tion, shall be disposed of according to such will, so far as such will may operate upon it ; and the residue shall be disposed of as is pro- vided by law in cases of estates in this State belonging to persons who are inhabitants of any other State or country. Before issuing letters testamentary or of administration with the will annexed, the court should require the same bond to be filed as in other cases. See C. L. 1429, 1430 and 1432 (4591.) LOST WILLS, ETC. Where a will has been lost, it may be admitted to probate upon secondary evidence, the same as lost deeds and other writings. 2 Greenleaf on Evidence, Par. 688, a. The petition should show the contents of the will as near as may be, that it was duly executed, when and where it was executed, and who were the subscribing witnesses. The substance of every bequest, provision and condi- tion of the will must be alleged and established by evidence. It should also be alleged in the petition that the will was in existence at the testator's death, and has been lost or destroyed accidentally or fraudulently since his death, or accidentally or fraudulently before his death, without his consent or knowledge ; or was destroyed by the testator while not of sound mind. Too great caution cannot be exercised by the courts in admitting to probate lost or destroyed wills, and they should never be allowed unless the substance of the entire will is most clearly and satisfactorily established. If the will has been lost, the testimony must show that .a most thorough search has been made for it in all places where it might possibly be found. A copy of the lost will is of course the best evidence of its con- tents, and the memoranda made by the draughtsman, when he drew the will, would be valuable evidence in connection with the testimony of the draughtsman. 3 E-edfield on Wills, 15, and note; 1 Jarman on Wills, 223; Smith's Probate L. 51. 56 WILLS. Provisionfor 1375 (4346.) Sec. 25. When any child shall be born after the ohildr'n born . . ', ■ , after making making of his fathers will, and no provision shall be made therein of will. B ' r ^ for him, such child shall have the same share in the estate of the testator as if he had died intestate; and the share of such child shall be assigned to him as provided by law in case of intestate estates, unless it shall be apparent from the will that it was the intention of the testator that no provision should be made for such child. 1375 (4347.) Sec. 26. When any testator shall omit to provide vision for in his will for any of his children, or for the issue of any deceased child omitl'd ..,,,.-., , . . , by mistake, child, and it shall appear that such, omission was not intentional, etc. . ... but was made by mistake or accident, such child, or the issue of such child, shall have the same share in the estate of the testator as if he had died intestate, to be assigned as provided in the preceding section. Whether the omission was by mistake or accident may be deter- mined from the will. Where it appears from the provisions of the will that the child was not forgotten by the testator, it has been held sufficient evidence that he intended to omit the child. Terry v. Foster, 1 Mass. 146; Church v. Crocker, 3 Mass. 17; Wild v. Brewer, 2 Mass., 570; Wilder v. Gross, 14 Mass., 357. Parol evi- dence is admissible to show that the omission was intentional, and the statements of the testator to the subscribing witnesses have been admitted for this purpose. Wilson v. Fasket, 6 Met., 400 ; Converse v. Wales. 4 Allen, 512. The statute applies to children born after the will is executed and before the death of the father. Bancroft v. Ives, 3 Gray, 367. It does not apply to illegitimate children. Kent v. Barker, 2 Gray, 535. When the final acsount of the executor is rendered, the child so omitted in the will should apply to the court for an assignment to him of his share of the estate. The haj-pening of either event only works a revocation of the will to the extent of the share or portion of any such child. Prom what 1376 (4348.) Sec. 27. When any share of the estate of a testator viston P to'"be slla11 be assi g ne d to a child born after the making of a will, or to a 11 child, or the issue of a child, omitted in the will, as hereinbefore mentioned, the same shall first be taken from the estate not dis- posed of by the will, if any. If that shall not be sufficient, so much as shall be necessary shall be taken from all the devisees or legatees, in proportion to the value of the estate they may respect- WILLS. 57 ivoly receive under the will, unless the obvious intention of the tes- tator, in relation to some specific devise or bequest, or other pro- vision in the will, would thereby be defeated ; in which case, such specific devise, legacy, or provision may be exempted from such apportionment, and a different apportionment may be adopted, in the discretion of the probate court. 1376 (43490 Sec. 28. When a devise or legacy shall be made to when the is- any child or other relation of the testator, and the devisee or leg- ceased lega- J _ ° tees, etc., to atee shall die before the testator, leaving issue who shall survive take estate. the testator, such issue shall take the estate so given by the will, in the same manner as the devisee or legatee would have done if he had survived the testator; unless a different disposition shall be made or directed by the will. This section is to prevent the lapsing of legacies, Before this statute was passed, lapsed legacies went to the residuary legatee. 2 Redfield on Wills, 157. 1376 (4350.) Sec. 29. All the estate of the testator, real and Eotateoftes- v ' ' tator liable personal, shall be liable to be disposed of for the payment of his £ ° r ,Pff m ™ t CI Q6ut , 6tC, debts and the expenses of administering his estate, and the probate allowance for r or mainteoance court may make such reasonable allowance as may be judged nee- ofwidow . etc cessary for the expenses of the maintenance of the widow and minor children, or either, constituting the family of the testator, out of his personal estate, or the income of his real estate, during the pro- gress of the settlement of the estate, but never for a longer period than until their shares in the estate shall be assigned to them. It will be noticed that the language of this section is " widow and minor children, or either, constituting the family of the testa- tor," etc., while in case of intestates C. L. 1383 (4377) "Second," the language is "widow and children constituting the family of the deceased," etc. The allowance may be a certain sum per week or month during the settlement of the estate, payable at stated times or may be a gross sum payable at- once, as the judge of probate may deem best, and most convenient for all parties interested. In some cases it will be found very convenient and economical to direct the executor to provide for the widow and family of the deceased, and render an account of his expenditures in his annual account. The order in such cases should limit the gross sum to be expended dur- ing the year. After the allowance is made, it cannot be decreased, 58 WILLS. but an order for further allowance may be made. Pettee v. Wil- marth, 5 Allen, 144; 3 Redfield on Wills, 124. Estate a. P - 1376 (4351.) Sec. 30. If the testator shall make provision by by winto d be his will, or designate the estate to be appropriated, for the payment pa?ment°of of his debts, the expenses of administration, or family expenses, they shall be paid according to the provisions of the will, and out of the estate thus appropriated, or so far as the same may be suffi- cient. 1376 (4352.) Sec. 31. If the provision made by the will, or the When pro- . vision insuf- estate appropriated, shall not be sufficient to pay the debts, expen- floient, etc. rr r sses of administration, and family expenses, such part of the estate, real or personal, as shall not have been disposed of by the will, if any, shall be appropriated according to the provisions of the law for that purpose. The personal estate of the deceased shall be first used to pay debts and expenses, and if this is not sufficient, then his entire real estate, except the widow's dower, may be sold for this purpose. 0. L. 1392 (4406.), and C. L. 1403, 1407. The personal property given to the widow by C. L. 1383 (4377.) cannot be used to pay debts. C. L. 1392 (4405.) Miller v. Stepper, decided June T. of S. C. 1875. 1377 (4353.) Sec. 32. The estate, real or personal, given by Estatea giv- en by will n- will to any devisees, or legatees, shall be held liable to the payment ment of f the debts, expenses of administration, and family expenses, in iii.' hts, etc.; when oert'in proportion to the amount of the several devises or legacies, except devises, etc., x L ° r t0b t 6 d *kat specific divises and legacies, and the persons to whom they shall 6 Mass. us. De ma de, may be exempted, if it shall appear to the court necessary in order to carry into effect the intention of the testator, if there shall be other sufficient estate. Estates i 1377 ( 4354: -) Sec - 33 - When the estate given by any will shall and b iiab1e' ^ e li aD le f° r * ne payment of debts and expenses, as mentioned in oJdebtsmay *^ e preceding section, or is liable to be taken to make up the share by executor of a cllil(i hom after tne execution of the will, or of a child, or of signed! 8 the issue of a child, not provided for in the will as hereinbefore provided, the executor shall have a right to retain possession of the same until such liability shall be settled by order of the probate court, and until the devises and legacies so liable shall be accord- ingly assigned by order of such court ; and when the same can pro- WILLS. 59 perly be done, any devisee or legatee may make his claim to such court, to have such liability settled, and his devise or legacy assigned to him, 1377 (4355.) Sec. 34. All the devisees and legatees, who shall, when dCTi - v y ^ J see or lega- with the consent of the executor or otherwise, have possession of te ? . t0 hold . the estate given to them by will before such liability shall be set- ^tribute tied by the probate court, shall hold the same subject to the several ctc liabilities mentioned in the preceding section, and shall be held to contribute according to their respective liabilities to the executor, or to any devisee or legatee from whom the estate devised to him may have been taken for the payment of debts or expenses, or to make up the share of a child born after the making of the will, or of a child or the issue of a child omitted in the will ; and the per- sons who may, as heirs, have received the estate not disposed of by the will as provided in this chapter, shall be liable to contribute, in like manner as the devisees or legatees. 1377 (4356.) Sec. 35, If any of the persons liable to contribute, when liable according to the provisions of the preceding section, shall be insolv- ease of insol- ent and unable to pay his share, the others shall be severally liable son fiabie to ... tribute. for the loss occasioned by such insolvency, m proportion t,o, and to the extent of, the estate they may have received ; and if any of the persons so liable to contribute shall die before having paid his share, the claim shall be valid against his estate, in the same manner as if it had been his proper debt 1378 (4357.) Sec. 36. The probate court may, by decree for that settlement •i* ■ • i i • of liabilities purpose, settle the amount of the several liabilities, as provided m by decree of _ probate the preceding sections, and decree how much, and in what manner, court. each person shall contribute, and may issue execution as circum- stances may require; and the claimant may also have a remedy in any proper action or complaint in law or equity. 1378 (4358.) Sec. 37. Every will, when proved as provided in willsand this chapter, shall have a certificate of such proof indorsed thereon ^artl^^ or annexed thereto, signed by the judge of probate, and attested by his seal; and every will so certified, and the record thereof, or a transcript of such record, certified by the judge of probate, and attested by his seal, may be read in evidence in all courts within this State, without further proof. 60 WILLS. To be a 1558 (5193.) Sec. 2. Every probate court stall be a court of corf, and" record, and have a seal; and each judge of probate shall keep a to berecord- true and fair record of each order, sentence and decree of the court, and of all wills proved therein, with the probate thereof, of all let- ters testamentary and of administration, and of all other things proper to be recorded; and, on the legal fees being paid, shall give true copies of the files, records, and proceedings of the Court, certi- fied by him under the seal of said court. Effect of at- 1558 (5194.) Sec. 3. All copies so attested shall be legal evi- If evidence 8 dence in all the courts of law and equity in this State; and certifi- ' p ' ' cates of probate, of administration, or of guardianship, attested by the judge of probate, may be given in evidence, and have the same effect as any probate, letter of administration, or letter testament- ary or of guardianship, made out in due form of law. Attested L - of 1875 ' P- 183 ' Act No - 153 ( 4359 -) Sec - 38 - An attested °h P fi tf ^re- C0 P V °f ever y "will devising lands, or any interest in lands, and of office of red- *^ e P^bate thereof, shall be recorded in the office of the register of deeds° f deeds of the county in which the lands thereby devised are situated; "and it shall be the duty of the judge of probate to cause such reg- istration to be made, and the expense thereof shall be a charge against the estate, and shall be paid in the same manner as other expenses of administration are." Approved April 29, 1875. The executor should not be discharged until he exhibits evidence to the court that the provisions of this section have been complied with. The best way to insure a compliance with the provisions of this section, is, for the court to withold letters testamentary, until a certified copy of the will is recorded. Constructi'n 1378 (4360.) Sec. 39. The word "executor," in this and thesub- " executor." sequent chapters, shall be construed to include an administrator with the will annexed. Transfer oi 1378 (^ 361 -) Section 1. The People of the State of Michigan tate held in ~ enact > '^' nat whenever any personal estate shall be holden by any trust. trustee or trustees, under the last will and testament of any person who died resident of this State, for the benefit of any person per- manently residing in any other State of the Union, such trustee or trustees .may transfer, assign, and deliver such estate so holden in trust, to and trustee or trustees lawfully appointed in the State WILLS. 61 where said beneficiary resides, to be by said trustee or trustees in such State holden upon the same trust, confidence, and limitation as the same is holden in this State under the will of the testator, and under the same securities as the trustee or trustees hold the same in this State. Executors are so far trustees, that the provisions of this section should apply to them, and that is evidently the design of the stat- ute. SeeBonvier's Law Dictionary, 616, "Trustee." 1378 (4362.) Sec. 2. The person or persons entitled to the ben- proceedings r • p ofpersonen- efit of such estate shall first procure the appointment of a trustee titled to the ™ . . . . . . benefit of or trustees m the State where such beneficiary resides, to receive such estate. and hold such estate, and shall obtain a copy of such appointment, certified conformably to the act of Congress relating to the certifi- cation of judicial proceedings between one State and another, and file the same in the probate court where such will was proved and approved ; and shall also proffer a petition to said court, asking the court to direct the transfer and delivery of such trust estate to a trustee or trustees so appointed in another State. For the kind of certificate required, see Act of Congress of March 27, 1804, found in C. L. 2251, and also Appendix of Forms. For removal of property of minors to other states, see L. 1872, p. 77, Act No. 47. 1379 (4363.) Sec. 3. The court of probate aforesaid may, at its court of probate to discretion, authorize and direct such transfer, assignment, and de- authorize such trans- livery of such trust estate to the said trustee or trustees so appoint- fer. ed in another State; and said trustee or trustees of such estate, after such assignment and delivery of such estate, shall procure a written acknowledgment of the reception of such estate, and the same being recorded in the probate court where such will was j£S£j"n°of proved and approved, the trustee or trustees in this State shall be estate - thereafter discharged from the care and responsibility of the said trust. L. 1873, p. 232, Act No. 172, provides that all bequests to the State, or the treasurer or people thereof, in trust for any insane per- son, shall be valid. The bequest must be at least five hundred dol- lars, and the insane person, at the time the will becomes operative, must be confined in some place under the control of the public authorities. The will must be executed the same as other wills. 62 WILLS. When such a will is filed in the probate office, and the judge of pro- bate is informed that the testator is deceased, he should immediately notify the State Treasurer and the Attorney General of these facts. As soon as the estate is settled, the probate court should order the executor to pay the bequest to the State Treasurer and take his receipt therefor. LETTERS TESTAMENTARY, ETC. Letters tea- 138 ° 0*364.) Section 1. When a will shall have been duly tamentaiy. proved and allowed, the probate court shall issue letters testameD tary thereon, to the person named executor therein, if he is legally competent, and shall accept the trust, and give bond as required by law. A bond must be given in all cases, even when the testator expressly requests in the will that no bond be required, as the statute makes no exceptions. A married woman may act as execu- trix, under our statutes and decisions, without the consent of her husband. Tillman v. Shackleton, 15 Mich., 447; Byrger v Jacobs, 21 Mich., 215 ; DeVries v. Conklin, 22 Mich., 255 ; Bankin v. West, 25 Mich., 195; Leonard v. Pope, 27 Mich., 145; 3 Redfield on Wills, 68. At common law it was held that a married woman could not act as executrix, without the consent of her husband, be- cause they muBt join and be joined in all actions. Under the canon law, by which married women could prosecute and defend actions alone, they could perform the duties of executrix without the con- sent of their husbhnds. 1 Williams on Executors, 201 ; Smith's Probate L., 61, note. Bond to be 1381 (4365.) Sec. 2. Every executor, before he shall enter upon fcutor. y e * * ne execution of his trust, and before letters testamentary shall issue, shall give bond to the judge of probate in such reasonable sum as he may direct, with one or more sufficient sureties, with condi- tions as follows : 8 pick., 526. 'First. To make and return to the probate court, within three asB '' ' months, a true and perfect inventory of all the goods, chattels, rights, credits, and estate of the deceased, which shall come to his possession or knowledge, or to the possession of any other person for him ; See Sec 4362. Second, To administer, according to law and to the will of the testator, all his goods, chattels, rights, credits, and estate, which WILLS. 63 shall at any time come to his possession, or to the possession of any other person for him, and out of the same to pay and discharge all debts, legacies, and charges, chargeable on the same, or such divi- dends thereon as shall be ordered and decreed by the probate court ; Third. To render a true and just account of his administration to the probate court within one year, and at any other time when required by such court; Fourth. To perform all orders and decrees of the probate court, by the executor to be performed in the premises. Letters testamentary must not issue until the bond is approved. The sureties ought to be inhabitants of the county where the will is proved; but it is sufficient if they are inhabitants of the State. There should usually be two sureties on the bond, although one will answer the requirements of the statute. The penal sum in the bond should be double the value of the personal estate, and also double the estimated value of the real estate, because no additional bond is required on the sale of real estate, where the executor only asks for license to sell sufficient to pay the debts; and it may be- come necessary to sell the entire real estate for that purpose. C. L. 1425 (4552.) The judge of probate may require an additional bond whenever he may deem it necessary. L. 1875, p. 47, Act No. 50. If the first bond is not cancelled, the sureties on both bonds will be liable, in proportion to the penalties in their respective bonds. Loring v. Bacon, 3 Cush. 465. A bond should never be cancelled until a new bond is filed and approved, or until the executor, etc., has ren- dered, settled and adjusted his accounts, and fully settled the mat- ters of his administration. C. L. 1387 (4388:); L. 1875, p. 47, Act No. 50. Any change in a bond without the consent of the principal and sureties will release them from liability. Howe v. Peabody, 2 Gray, 556. A married woman should not be accepted as surety on a bond. DeVries v. Conklin, 22 Mich., 255 ; West v. Laraway, 28 Mich. 464. On issuing letters testamentary or of ad- ministration, guardians should be appointed for all minor or incom- petent heirs ot the deceased, to look after their interests during the settlement of the estate. 1562 (5215.) Sec. 24. No bond required by law to be given to Bo °<^ wh «j the judge of probate, to be filed in his office, shall be deemed suffi- sufficient cient unless it shall have been examined and approved by the judge, JX^Jtc 64 WILLS. and his approval thereof indorsed thereon in writing, and signed by him. Separate or 1383 (4376.) Sec. 13. When two or more persons shall be ap- joint bonds v ' may be tak- pointed executors of any will, the judge of probate may take a sep- arate bond from each of them with sureties, or a joint bond from all of them with sureties. Where two executors give a joint bond, both are liable for a default by either during the joint executorship, but if one executor dies his heirs and legal representatives are not liable for the subse- quent misconduct of the survivor. Brazer v. Clark, 5 Pick, 96; Hill v. Davis, 4 Mass., 137; Towne v. Ammidown, 20 Pick., 535; Newcomb v. Williams, 9 Met., 525 ; Sparhawk v. Buel's Adm'r, 9 Vt. 41 ; Boyd v. Boyd, 1 Watts, 368 ; Bostwick v. Elliott, 3 Head., 507. See also Baxton v. State, 25 Ind., 82. 3 Redfield on Wills, 93. See, however, Wood v. Brown, 34 N. Y. (7 Tiff.) 337; .Robinson's Estate, 7 Phila (Pa.) 61; Pulton v. Davidson, 3 Heisk '(Tenn.) 614. Bond in case ^^l (4366.) Sec. 3. If, however, the executor shall be residu- reslduary 18 arv legatee, instead of the bond prescribed in the preceding section, 1(11 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. The court may accept such a bond or require a bond in the usual • form. If the executor gives the bond required by this section, he must pay the debts and legacies whether the assets are sufficient for that purpose or not. If he gives a bond in the usual form and retnrns an inventory, he will only be liable to the extent of the assets. Colwell v. Alger, 5 Gray, 67 ; Jones v. Richardson, 5 Met. 247. It is of course always safest to give a bond in the usual form. Por defense or prosecution of wills by executors or administra- tors in case of death of one of the parties to a suit, see C. L. 1686. _ fl 1381 (4367.) Sec. 4. No person named as executor in any will, ^s'ect to yfao shay refuse to accept the trust, or shall neglect to give bond as prescribed in this chapter, for twenty days after the probate of such will, shall intermeddle or act as executor. This neglect is equivalent to a resignation. WILLS. 65 1381 (4368.) Sec. 5. If a person, named executor in any will, when „ ee . shall refuse to accept the trust, or shall, for the space of twenty toTccept 1868 days after the probate of the same, neglect to give bond as required to'b'e'ffs'ued by law, the probate court may grant letters testamentary to the ° ° era " other executors, if there be any who are capable and willing to accept the trust, and if there be no such other executor who will give bond, the court may commit administration of the estate, with, the will annexed, to such person as would have been entitled to the same, if the testator had died intestate. As to the persons first entitled to receive administration in case ' of an intestate, see C. L. 1385 (4379.) An administrator with the will annexed may also be appointed where no executor is appointed in the will, and where the executor appointed in the will resigns. An administrator with the will annexed cannot discharge any special trust reposed in the executor, and cannot sell real estate without license, under a power of sale to the executor in the will. Ross v. Barclay, 18 Perm. St., 179; Roome v. Phillips, 27 N. T., 357; 3 Redfield on Wills, 101 and 240. The order for hearing in the case of the appointment of an admin- istrator with the will annexed, must be published three successive weeks. See C. L. 1389 (4396.) 1382 (4369.) Sec. 6. When the person named executor in any Administra- will is under full age at the time of proving the will, administration of minority . of executor. shall be granted, with the will annexed, during the minority of the executor, unless there shall be another executor who shall accept the trust and give bond; and, in that 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 a joint executor, on giving bond according to law. The office of the administrator with the will annexed expires by its own limitation when the executor becomes of age. 3 Kedfield on Wills, 106. 1382 (4370.) Sec. 7. Every person who shall be appointed Administra- tor with the administrator with the will annexed shall, before entering upon the will annexed to givebond, execution of his trust, give bond to the judge of probate, in the same etc. manner, and with the same conditions, as is required of an execu- tor, and shall proceed in all things to execute the trust in the same manner as an executor would be required to do, 9 66 WILLS. When exec- 1382 (4372.) Sec. 9. If an executor shall reside out of this State, utor may be _ removed, or shall neglect, after due notice given by the judge of probate, to render his account and settle the estate according to law, or to per- form any decree of the court, or shall abscond or become insane, or 17 Mass. 341. J 14 Mass. 295. otherwise incapable or unsuitable to discharge the trust, the pro- bate court may remove such executor. When re- 1382 (4373.) Sec. 10. When an executor shall die or be ecutortoex- removed, or his authority shall be extinguished, the remaining exec- ecute trust, . ,- , , ,, , etc. utor, if there be any, may execute the trust; and it there shall be no other executor, administration, with the will annexed, may be granted of the estate not already administered. See C. L. 1387 (4387.) The person so appointed would be styled, an administrator de bonis non with the will annexed. A new petition must be filed and the order for hearing published three successive weeks, the same as for the appointment of an original administrator. C. L. 1389 (4396.) whenaiiex- 1382 (4374.) Sec. 11. When all the executors appointed in any authorized w iU shall not be authorized, according to the provisions of this ized may ex- chapter, to act as such, such as are authorized shall have the same w m. authority to perform every act and discharge every trust required and allowed by the will, and their acts shall be as valid and effect- ual for every purpose as if all were authorized and should act together; and administrators with the will annexed shall have the same authority to perform every act and discharge every trust as the executor named in the will would have had, and their acts shall be as valid and effectual for every purpose. Executor of 1382 (4375.) Sec. 12. The executor of an executor shall not, as to adminis- such, have any authority to administer the estate of the first testa- tor ; but, on the death of the only surviving executor of any will, administration of the estate of the first testator, not already admin- istered, may be granted with the will annexed, to such person as the probate court may judge proper. A person is not rendered an executor de son tort by mere acts of .kindness in endeavoring to save the property of the estate and pro- perly provide for the family of the deceased, etc. Bennett v. Ives, 30 Conn. 329, 332; Brown v. Sullivan, 22 Ind., 359; Emery v. Berry, 28 N. H., 473, 483; Maguer v. Ryan, 19 Mo., 196, When WILLS. 67 letters of administration are issued to an executor de son tort, tbey relate back to the death of the deceased and render legal all the acts that he might have done, had he been appointed in the first instance. Bellinger v. Ford, 21 Barb., 312; Rattoon v. Overacker, 8 Johns, 126; 2 Hill, 225; 12 Allen (Mass.) 603; 15 Mass., 322. APPOINTMENT OF ADMINISTRATORS OF THE ESTATES OF INTESTATES. 1385 (4378.) Sec. 2. When any person shall die intestate, being whatpro- an inhabitant of this State, letters of administration of his estate have juris- shall be granted by the probate court of the county of which he was an inhabitant or resident, at the time of his death ; if such deceased person, at the time of his death, reside in any other State or coun try, leading estate to be administered in this State, administration thereof shall be granted by ;the probate court of any county in which there shall be estate to be administered; and the adminis- 5 Pick. 20 370, 518. tration first legally granted shall extend to all the estate of the deceased in this State, and shall exclude the jurisdiction of the pro- bate court of every other county. An administrator may be appointed at any time after the death of the intestate. 3 Redfield on Wills, 103. The death of the intes- tate and the fact of intestacy must be established ; but usually no further evidence is required than the allegations of these facts in the petition duly verified. Intestacy is sufficiently established by showing that diligent search has been made, and no will can be found. Buckley v. Redmond, 2 Bradf. , 281. It will be presumed that a person is deceased, who has not been heard from for seven years; but there is no presumption of his death at any particular - time. 3 Redfield on Wills, 6, note. The title to the estate vests in the administrator from, or relates back to, the death of the intestate. 3 Redfield on Wills, 126. This title by relation cannot have the effect to legalize the acts of the administrator before his appointment, which were prejudicial to the estate. Gilkey v. Hamilton, 22 Mich., 283. For form of petition see Appendix. The appointment of an administrator upon the estate of a person not then in fact deceased, although supposed to be, is entirely null and void, and not merely voidable on appeal. Jochumsen v. Suffolk S. Bank, 3 Allen, 87. 68 WILLS. Noticeofap- 1389 (4396.) Sec. 20. When application shall be made to the appointm'nt judge of probate for the appointment of an administrator on an intes- etc. ' tate estate, or for letters of administration with the will annexed, he shall cause notice of the same, and of the time and place of hear- ing thereof, to be published for three successive weeks in such newspaper as he may direct. How pro- 1389 (4397.) Section 1. The People, of the State of Michigan bateandcer- , . . . . tain other enact, That all probate and other legal notices, required by law to legal notices to be pub- be published by the judge of probate of any county, or any other county officer, shall be published in some newspaper printed in the county where said probate judge shall hold his court, or where such other county officer shall reside, if there be one printed in said county : Provided, That this act shall in no wise affect notices which are now required to be published previous to the sale of real estate, by executors, administrators, and guardians. Jud fpro- 1566 (5245.) Section 1. The People of the State of Michigam ryforeien' 1 enaci > That whenever it shall appear upon application to any pro- ° om ■■ bate court for letters of administration, or to prove the will of any deceased person, that the heirs at- law of said deceased, or any of them, are residents of a foreign country, it shall be the duty of the judge of probate to notify the consul of the foreign nation where the said heir or heirs may reside, in the city of New York, of the pen- dency of such application; and said notice may be given by letter addressed to such consul and deposited in the postoffice, at the city or village where such application was made. Semite 2056 ( 7435 -) Sec - 2 - A11 !egal advertisements shall be published toc'o U unty ed "* a newspaper printed in the county in which the proceedings are MeainjJTare carried on , if there be one, and if no newspaper be printed in such on. county, then such advertisements shall be published in a newspaper published in an adjoining county, or in a paper published nearest to said county in which such proceedings are had F Tad° rle " 2066 (7454.) Sec. 1. For publishing any other legal notice, or tisements. any order, citation summons, or any other proceedings or advertise- ment, required by law to be published in any newspaper, the costs of publishing such advertisement shall not exceed the rate of seven- ty cents per folio for the first insertion, and thirty-five cents per folio for each subsequent insertion. WILLS. 69 . 2057 (7459.) Sec. 32. The term "folio,'' when used as a meas- " FoUo " de . ure for computing fees or compensation, shall be construed to mean ed ' one hundred words, counting every figure necessarily used, as a word ; and any portion of a folio, when in the whole draft or paper there shall not be a complete folio, and when there shall be any excess over the last folio, shall be computed as a folio. The notice must be given by publication. The regularity of an order appointing an administrator will not be considered in a collateral proceeding, where the probate court has by subsequent proceedings treated it as valid. Woods v. Monroe, 17 Mich., 238. A foreign administrator has no interest in the real or personal property of his intestate in this State. Thayer v. Lane, Walk. Ch. 200. When a person dies in another State leaving property in this State, an administrator should be appointed here to settle the estate here. Thayer v. Lane, Walk. Ch. 200. The administration at the domicil of the deceased is technically the principal adminis- tration, and all others are ancillary. The assets in this State should be first applied to pay the expenses of administration and the debts here, even though the principal administration be insolvent. The ancillary administrator is only accountable to the court from which he receives his appointment. An administrator appointed here only has control of and -is only accountable for property within the State. When the ancillary administration is closed, the court should order any balance of estate to be delivered to the principal administration, but it may order the balance to be paid directly to the heirs. All persons having claims against the deceased may have their claims allowed, both in the principal and ancillary admin- istration. Mead, assignee, etc., 1 American Law Times, R. 108. The fact that the claim is allowed in another administration should be mentioned in the allowance, and all dividends upon such claims at the principal administration should be retained by the adminis- trator until the ancillary administration is closed, when he can ascer- tain how much remains unpaid upon such claims. When the claim is allowed in one State it does not give the creditor any right to assets under the administration in another State. Wharton on Con- flict of Laws, Sec. 604 to 640; Story on Conflict of Laws, Sec. 512, etc.; 3 Redfield on Wills, 25. Legacies and distributive shares are 70 WILLS. to be paid in the currency of the country where the decedent was domiciled. Wharton on Conflict of Laws, Sec. 641. On the appointment of an administrator, a guardian should be appointed for the minor or incompetent heirs to take charge of the real estate, to rent it, etc., as executors and administrators now have no control over the real estate of the deceased. whoentiti'd 1385 (4379.) Sec. 3. Administration of the estate of a person to letters of x ' l administra- dying intestate shall be granted to some one or more of the persons hereinafter mentioned, and they shall be respectively entitled to the same, in the following order : First The widow or next of kin, or both, as the judge of pro- bate may think proper, or such person as the widow or next of kin may request to have appointed, if suitable and competent to dis- charge the trust ; Second. 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 will ing to take it ; Third. If there be no such creditor competent and willing to take administration, the same may be committed to such other person or persons as the judge of probate may think proper. The degrees of kindred are fixed by our statute in C. L. 1367, (4309.) " First," " Second," " Third," " Fourth." Rowley v. Strays, decided April T. of S. C. 1875. The degrees of kindred must be computed according to the rules of the civil law, where they are not determined by the statute. C. L. 1369 (4313.) The deceased person is the point from whence the degrees are numbered. Rela- tions by the father's side and mother's side are in equal degree of kindred. 1 Williams on Executors, 369. For the degrees of kin- dred, see table under " Descent of Real Property." Where persons are in the same degree, as the parents and children of the deceased, the children, if competent, are preferred, because under our statute of 'descents they are most interested. The next of kin are entitled to administration in the following order: First, children of the deceased and their issue; second, father; third, mother, brothers WILLS. 71 and sisters, and their children ; fourth, grandfathers and grand- mothers ; fifth, uncles or nephews; sixth, great grandfathers and great grandmothers; lastly, cousins. 0. L. 1367. 1 Williams on Execu- tors, 370. The lineal kindred in the same degree should be preferred to the collateral as they are most interested. C. L. 1367 (4309.) First, etc. In actual practice these questions seldom arise. The widow and next of kin usually agree upon one of their own number to act, or select some disinterested person. It is always best to have but one administrator. Thousands of dollars are frequently lost by delay, because the administrators cannot agree. If the set- tlement of the estate is evidently simple and easy, the widow should be appointed, if she desires it and is competent. If some one of the next of kin is competent and satisfactory to the others, he should be appointed. If the judge determines that the widow and next of kin are not suitable or competent, he should reject them, and appoint such person as the widow or next of kin may request to have appointed, if suitable and competent. If the widow and next of kin, or the person selected by them, are determined by the court to be unsuitable or incompetent, or if they shall for thirty days after the death of the deceased, neglect to apply for administration, the court should grant administration to a creditor of the deceased, if competent and willing to accept the trust. The decision of the court, that any of the persons first entitled to administration are unsuitable or incompetent must be based upon proper testimony produced in court at the hearing. 1 Williams on Executors, 372. If, however, for any sufficient reason, the court shall determine that any of the above preferred persons are unsuitable or incompe- tent, administration should be granted to some other competent and suitable person. The person appointed should be of full age. Mc- Gooch v. McGooch, 4 Mass., 348. The administrator may be a citizen of another State; but the sureties on his bond should be cit- izens of this State. In case of a creditor, the amount of his claim is immaterial ; but it must be a claim which by law survives. Arn- old v. Sabin, 1 Cush., 525 ; Smith v. Sherman, 4 Cush., 408 ; Steb- bins v. Palmer, 1 Pick., 71. After an administrator has been appointed and during his continuance in office, the heirs cannot in their own names enforce the collection of a claim in favor of the deceased. Hollowell v. Cole, 25 Mich., 345. 72 WILLS. The appointment of an administrator must be proved by the record of the proceedings for the appointment in the probate court, or by a certified copy of the letters of administration ; it cannot be proved by parole. The appointment cannot be established by showing that the person has acted and been recognized as adminis- trator. Albright v. Cobb, 30 Mich. 355. The judge of probate should not be required to remove the files and records from his office, for the purpose of using them as evidence in other courts, and it is very doubtful whether he can be compelled to do so. The statute seems to indirectly provide that this shall not be done by providing that certified copies shall be evidence. 0. L. 1558 (5194.) An administrator has no authority to use the funds of the estate in carrying on partnership business. Estate of Knight, 1 2 Cal., 200. Bond to be 1386 (4380.) Sec. 4. Every administrator, before he enters upon mTnistrator. tne execution of his trust, and before letters of administration shall be granted to him, shall give a bond to the judge of probate, with such surety or sureties as he shall direct and approve, with the same conditions as required in the case of an executor, with such variations only as may be necessary to make it applicable to the case of an administrator. For form of bond, see Appendix, and also C. L. 1381. This bond must be approved by the judge of probate. C. L. 1562 (5215.) The sureties should be residents of this State. Letters of adminis- tration have no extra territorial force. Sheldon v. estate of Rice, 30 Mich., 296. For assessment of property of an intestate, see C. L. 362. Whensped'i 1386 (4381.) Sec. 5. When there shall be a delay in granting torm'ay'be' letters testamentary or of administration, occasioned by an appeal ''" " '"" "" from the allowance or disallowance of a will, or from any other cause, the judge of probate may appoint an administrator to act in collecting and taking charge of the estate of the deceased, until the question on the allowance of the will, or such other question as shall occasion the delay, shall be terminated and an executor or administrator be thereupon appointed; and no appeal shall be allowed from the appointment of such special administrator. Proceedings L. 1875, p. 142, Act No. 105, (5225.) Sec. 34. After an appeal stayed by . ■ \ * " appeal. is claimed and notice thereof given at the probate office, all further proceedings in pursuance of the sentence, order, decree, or denial ESTATES OF DECEASED PERSONS. 73 appealed from shall cease until the appeal shall be determined: Provided, That when an appeal is taken from a decree, admitting Proviso— ap- pointment or denying probate of a will, the probate court may appoint one or of special more special administrators to take charge of and protect the estate, tora > etc - with such powers, not exceeding those of a general administrator, as the said probate court may deem necessary, and by order may confer in the particular case; and no appeal shall be allowed from the appointment of such special administrator or administrators. A special administrator may be appointed to take charge of the estate, while proceedings are pending and notice is being given for the appointment of a general administrator. Where a special administrator is appointed under above Act No. 105, L. 1875, the administration of the estate may be proceeded with, the same as in case of general administration. There can however be no assign- ment and distribution of the estate, until the will is finally dis- posed of. The court may appoint commisioners on claims and appraisers, and grant license to the special administrator to sell real or personal estate to pay debts, etc. The proceedings on appoint- ment of a special administrator cannot be attacked collaterally. Cook v. Stevenson, 30 Mich. 243. The widow, next of kin, etc., have no prior right to administration, as in case of general admin- istrator above provided. The petition should state fully the reasons for the appointment. 1386 (4382.) Sec. 6. An administrator, appointed according to Duties of special ad- the provisions of the preceding section, shall collect all the goods, ministrator. chattels, and debts of the deceased, and preserve the same for the executor or administrator who may afterwards be appointed, and for that purpose may commence and maintain suits as an adminis- trator, and may sell such perishable and other personal estate as the probate court may order to be sold. For sale of personal property, C. L. 1409 (4489.) 1386 (4383.) Sec. 7. Such special administrator shall not be lia- Administra- ble to an action by any creditor, or to be called upon in any other t>ie except way, to pay the debts against the deceased, except on special appli- of judge. cation of any creditor the judge of probate may, for special reasons, on the usual notice in such cases, allow any one or all claims against such estate to be proved before him; and if so proved, said judge of 10 74 ESTATES OP DECEASED PERSONS. probate may order and direct the payment of said special adminis- trator, of all or any of such claims so allowed by him. Bond to be 1387 (4384.) Sec. 8. Every such special administrator shall, IJJecMad- before entering upon the duties of his trust, give a bond to the ministrator. j udge of pro b ate as he shall direct, with a condition that he will make and return a true inventory of all the goods, chattels, rights, credits, and effects of the deceased which shall come to his possession or knowledge, and that he will truly account for all the goods, chat- tels, debts, and effects of the deceased which shall be received by him, whenever required by the probate court, and will deliver the same to the person who shall afterwards be appointed executor or administrator of the deceased, or to such other person as shall be legally authorized to receive the same. For form of bond see Appendix. The bond must be approved. . 0. L. 1562 (5215.) 1387 (4385.) Sec. 9. Upon granting letters testamentary or of powers to administration on the estate of the deceased, the power of such cease, etc. special administrator shall cease ; and he shall forthwith deliver to the executor or administrator, all the goods, chattels, money, and effects of the deceased in his hands ; and the executor or adminis- trator may be admitted to prosecute to final judgment any suit commenced by such special administrator. 1387 (4386.) Sec. 10. If any person, before the granting of let- Liability of , , . , _ person em- ters testamentary or of administration, shall embezzle or alienate bezzling or alienating any of the moneys, goods, chattels, or effects of any deceased person, goods, etc., before let- suc h person shall stand chargeable and be liable to the action of the ters granted. ° executor or administrator of such estate, for double the value of the property so embezzled or alienated, to be recovered for the benefit of such estate. 1387 (4387.) Sec. 11. When any sole executor or administrator tiorTwiththe shall die, without having fully administered the estate, the probate to be grant- court may grant letters of administration with the will annexed, or on death of . . . . . soleexecu- otherwise, as the case may require, to some suitable person, to tor. . . administer the goods and estate of the deceased, not already admin- istered. The administrator thus appointed is styled an administrator de bonis non with the will annexed, or de bonis non. This means an administrator of the estate left unadministered. The same petition ESTATES OF DECEASED PERSONS. 75 should be filed and the same notice given as in the case of the appointment of the original administratior. C. L. 1389 (4396.) The petition should set forth the fact of the death, resignation, or removal of the executor or administrator, and also allege that something remains to be done to settle the estate. The widow and next of kin have no preferred claim to administration under this section. Russell v. Hoar, 3 Met., 190. 1387 (4388.) Sec. 12. If an administrator shall reside out of wbenad- * ' mmistrator this State, or shall neglect, after due notice by the judge of probate, *° b tl e " to render his account and settle the estate according to law, or to uMetcai? 9 ' perform any decree of such court, or shall abscond or become g°c„ sh 324 insane, or otherwise unsuitable or incapable to discharge the trust, i(j^Jien 3 \ti the probate court may, by an order therefor, remove such adminis- trator; and every executor and administrator, upon his request, may be allowed to resign his trust, when it shall appear to the judge of lowed tore- resign. probate proper to allow the same: Provided, Such executor or . . . ... Proviso. administrator shall, prior and up to the time of his resignation, set- tle and adjust his accounts with the estate of which he may be executor or administrator: Provided further, That the sureties of ^!£ therpro " such executor or administrator shall not be released from liability until such executor or administrator shall have fully settled and adjusted his accounts as aforesaid. The person seeking the removal of an administrator for any of the above causes, should file a petition alleging fully the reasons for removal. Upon filing the petition, a citation should be issued and served upon the administrator, requiring him to appear and ans- wer to "the petition, or where this cannot be conveniently done, notice should be given by publication. C. L. 1564 (5235.) The court of chancery cannot remove an administrator. Holbrook v. Campau, 22 Mich., 288. Ad appellate court will not interfere in the matter of removing an executor, etc., unless there has been gross abuse of discretion. Deck's Estate v. Gherke, 6 Cal., 666 A writ of error will not lie to review proceedings for the removal of an administrator, even when the case is removed to the circuit court by appeal. Conrad v. Button, 28 Mich., 365. An order should be made revoking former letters before new letters of admin- istration are granted. Haynes v. Meeks, 20 Cal., 288. 76 ESTATES OP DECEASED PERSONS When re- 1388 (4390.) Sec. 14. When an administrator shall be removed mainiDg ex- eetnr to ex- ecute trust. mainiDg ex- . t . . , . . eetnr to ex- or his authority shall be extinguished, the remaining administrator, if any, may execute the trust. If there shall be no other, the court of probate may commit administration of the estate not already administered, to some suitable person, as in case of the death of a sole administrator. The person thus appointed would be styled an administrator de bonis non. The appointment of the original administrator must be vacated, before an administrator de bonis non is appointed. The appointment of an administrator de bonis non will not have this effect. 3 Redfield on Wills, 102. Powers.etc. 1388 (4391.) Sec. 15. An administrator appointed in the place tratoJd'ebo- of any former executor or administrator, for the purpose of admin- istering the estate not already administered, shall have the same powers, and shall proceed in settling the estate in the same manner, as the former executor or administrator should have had or done; and may prosecute or defend any action commenced by or against the former executor or administrator, and may have execution on any judgment recovered in the name of such former executor or administrator. This section makes the two administrators the same as one, and the administrator de bonis non may complete anything commenced by the administrator. It would seem that the administrator de bonis non might complete a sale of real estate commenced by the administrator, that he might sell real estate under a license granted to the administrator, or give a deed upon a sale by the administra- tor, etc. By the second appointment the office is revived and continued; it is the same office with exactly the same powers, and the admin- istrator de bonis non is, under the statute, the same official, only he is a different person. Admimstra- 1388 (4392.) Sec. 16. If, after the granting of letters of admin- vokedon™ 5 istration by any probate court, on the estate of any deceased per- son, as if he had died intestate, a will of such deceased person shall be duly proved and allowed by such court, the first administration shall, by decree of said court, be revoked, and the powers of the administrator shall cease,, and he shall thereupon surrender his let- « ters of administration into the probate court, and render an account of his administration, within such time as the court shall direct. proving will. ESTATES OF DECEASED PERSONS. 77 After the will is admitted to probate, an order should be made revoking the former administration, and a citation should be issued and served upon the administrator, requiring him, within a reason- able time, to appear and surrender his letters of administration to the court and render his account, and deliver up the property of the estate in his possession to the executor of the will. 1388 (4393.) Sec. 17. The executor of the will shall, in such Pow " 80 ^ * ' ' executor m case, be entitled to demand, sue for, and collect all the goods, chat- such case - tels, rights, and credits of the deceased, remaining unadministered, and may be admitted to prosecute to final judgment any suit com- menced by the administrator, before the revocation of his letters of administration. 1388 (4394.) Sec. 18. All acts of an executor or administrator Acts of exec- utor, ect., as such, before the revocation of his letters testamentary or of admin- before rero- J cation valid. istration, shall be as valid to all intents and purposes as if such executor or administrator had continued lawfully to execute the duties of his trust. 1389 (4395.) Sec. 19. When two or more persons shall be Administra- tors may appointed administrators to any estate, the judge of probate may eive -> oint or take a separate bond from each with sureties, or a joint bond with bonds - s ureties from all. "Where two administrators give a joint bond, both are liable for a default by either during the joint administration; but if one dies his heirs and legal representatives are not liable for the subsequent misconduct of the survivor. Brazer v. Clark. 5 Pick, 96; 3 .Red- field on Wills, 93. Administrators on the same estate are treated- as one person, and the act of one is the act of all. Willis v. Far ley, 24 Cal., 490 ; Dean v. Duffield, 8 Texas, 235 ; Gardner v. Miller 19 Johnson, 188; 2 Barb. Ch. 151; Burt v. Burt, 41 N. Y., 46; 1 Wend. 583 ; 9 Cow, 34. 1565 (5238) Sec. 47. Whenever it shall become necessary or Jud s eot J probate to convenient in the settlement or distribution of the estate of a a PP° int trustees. deceased person to appoint a trustee to take charge of or invest and distribute any portion of such estate, the judge of probate shall have power, and it shall be his duty, on the application of any per- son interested in the estate, to appoint such trustee. For form of petition see Appendix. 78 ESTATES OF DECEASED PERSONS. Notice. 1565 (5239.) Sec. 48. No such trustee shall be appointed with- out notice to all persons interested in the estate, and such notice may be given personally to such persons as the probate court shall judge to be interested, or by public notice, under the direction of the court. Bond 1565 (5240.) Sec. 49. Every trustee appointed under the fore- going provisions shall, before he enters upon the execution of his trust, and before any warrant of appointment shall be delivered to him, give a bond to the judge of probate in such sum and with such surety or sureties as he shall approve, with conditions as follows : First. To account before the probate court for all moneys and effects received by him as such trustee, at such time or times as the judge of probate shall order ; Second. To faithfully perform all the duties of the trust to which he is appointed. For form of bond see Appendix. Duty of 1565 (5241.) Sec. 50. It shall be the duty of such trustee to trustee. invest or distribute the estate which shall be received by him, according to the direction of his warrant of appointment, and to account for such estate and the interest thereon in such manner and at such times as the judge of probate shall order. For form of warrant see Appendix. Compensa- 1565 (5242.) Sec. 51. Such trustee shall receive the same com- pensation for his services as administrators are by law entitled to for like services. SeeC. L. 1411 and 2047. Bund may 1565 (5243.) Sec. 52. The bond required by the provision of j piosecu - gect i on forty.nine ghajj De f or th e seC urity of all persons interested in the estate, and such bond may be prosecuted in the same man- ner that executors' and administrators' bonds may be prosecuted, according to chapter ninety-nine of the Compiled Laws, and any execution issued upon any judgment rendered upon such bond shall be collected for the use of the persons interested, according to their respective interests. See C. L. 1417. ESTATES OF DECEASED PERSONS. 79 INVENTORY. L. 1875, p. 163, Act No. 136 (4401.) Section 1. Every execu- Making and tor or administrator shall, within thirty days after his appointment, veutory. make and return into the probate court a true inventory of the real estate, and of all the goods, chattels, rights and credits of the deceased which shall have come to his possession or knowledge, excepting only that an executor who shall be a residuary legatee, and shall have given bond to pay all the debts and legacies, as pro- vided by law, shall not be required to return an inventory. It is the business of the executor or administrator to make and rettwrn the inventory. The appraisers simply insert their valuation of the property. The inventory must contain a full and complete description of all the real estate, goods, chattels, rights and credits of the deceased, which shall have come to the possession or knowledge of the executor or administrator. Personal property situated in another State must be inventoried. Matter of Butler, 38 N. Y. 397. It is the duty of the executor, etc., to make diligent search and inquiry for property belonging to the estate. All kinds of produce, and growing crops of grain, grass, and fruit must be inventoried. See Sec (4406.) following. Also provisions left by the deceased. Griswold v. Chandler, 5 N". H., 492. The interest of the deceased in copartnership property should be noted simply, because only the surplus after the settlement of the partnership matters belongs to the estate. Thompson v. Thompson, 1 Bradf. 24. An administra- tor need only return one inventory ; if additional property comes to his possession, he must account for it in his annual or final ascounts. Hooker v. Bancroft, 4 Pick, 50. In the inventory of personal property, describe each animal, article or other item separately, except sheep, swine, poultry, etc. In some cases it may be very convenient and proper under the direction of the judge of probate to inventory the household furniture, etc., in groups, as bed and bedding, stove and furniture, book-case and books, crockery, glass- ware, silver-ware, etc. The court may require the executor or administrator to show cause why he should not be required to amend his inventory. Sheldon v. Bliss, 8 N. Y., 31. In describing mortgages, notes and judgments, give their dates, the principal sum, the rate of interest and the names of the persons executing them, or against whom the same are held, and the dates 80 ESTATES OF DECEASED PERSONS. and amounts of all indorsements thereon. Give accurate descrip- tions of the real estate. If these cannot be obtained from deeds or other papers, then employ a surveyor and have the land surveyed. These descriptions are used so much during the settlement of the estate that the greatest care should be exercised in getting them accurate. If there are any incumbrances upon the land by mort- gage or otherwise they should be described the same as indicated above for mortgages, etc., belonging to the estate, except that the names of the persons to whom such incumbrances belong should be given. It is best, where the estate is large, to first make the inven- tory on a separate paper and have the appraisers place the value opposite each article or description. The administrator may then take this list to the widow, and have her select the two hundred and fifty dollars of household furniture, and two hundred dollars of other personal property to be selected by her, to which she is enti- tled under 0. L. 1383 (4377.) These should then be copied into the inventory under the headings, " Household furniture selected by the widow," "Other personal property selected by the widow," and the balance of the property with its valuation can then be inserted after these items, and the inventory can then be signed by the appraisers and signed and sworn to by the administrator. The court should require the executor or administrator to procure and attach to the inventory a complete abstract of the title of all the real estate belonging to the deceased, from government or as far back as the court shall deem necessary. This abstract should show all mortgages, tax titles, or other incumbrances, and all leases, with their terms and conditions. Money due a deceased person upon a land contract executed by him, no deed having been executed, should be inventoried and dis- posed of as real estate. U. L. 1414 (4503.) In Illinois it is treated as personal property. Skinner v. Newberry, 51 111., 203. Where deceased was a member of a partnership,, the surviving partner is entitled to exclusive possession and management of the firm assets for the purpose of selling the same and closing the business. Pfeffer v. Steiner, 27 Mich., 537; Barry v. Briggs, 22 Mich., 201; Waring v. Waring, 5 N. Y. Sur (1 Redf.),J05. The administrator of the deceased partner may insist that the partner- ship assets be sold and the business closed. Evans v. Evans, 9 ESTATES OF DECEASED PERSONS. 81 Paige, 178. The court on its own motion may enforce the return of an inventory. Thompson v. Thompson, 1 Bradf., 24. It has been held that great lapse of time may excuse the making of a formal inventory and account. LeRoy v. Bayard, 3 Bradf., 228. If the executor, etc., finds in the possession of the deceased any property which contains conclusive evidence that it belongs to another, he may deliver it to the owner. Trecothick v. Austin, 4 Mason, 29. The executor or administrator should use reasonable diligence in collectingVlebts due the estate. Shultz v. Pulver, 11 Wend., 361 ; Buggies v. Sherman, 14 Johns, 446. If the settlement of the estate is delayed, and there are consid- erable funds of the estate in the hands of the executor, etc., he should loan the monies on good and sufficient securities. In mak- ing such loans he must exercise the same prudence and care as a prudent man would in the management of his own business. He should never loan on personal security. Bogart v. VanVelsor, 4 Edw'd Ch., 722; Lockhart v. Pub. Adm'r, 4 Brad., 21; King v. Talbot, 40 N. Y., 76; McBae v. McB&e, 3 Bradf., 199. Foreign assets may be included in the inventory, but their loca- tion should be carefully stated. Matter of Butler, 38 N. Y., 397; 1 Tuck., 87. 1 391 (4402.) Sec. 2. The estate and effects comprised in the Estate to be • t • i appraised, inventory shall be appraised by two or more disinterested persons etc. appointed by the judge of probate for that purpose, who shall be sworn to the faithful discharge of their trust; and if any part of such estate or effects shall be in any other county, appraisers thereof may be appointed, either by the judge of probate having jurisdic- tion of the case, or by a disinterested justice of the peace of such other county. It is not the duty of the appraisees to prepare the inventory. The original appraisers may appraise all the property of the estate, no matter where situated, and it is seldom, if ever, more convenient to have appraisers appointed in another county. The appraisers should be sworn before some officer authorized to administer oaths before making the appraisal. No clerk or other person employed in the probate office can be appraiser. C. L. 1561 (5211.) Apprais- ers' fees are two dollars a day, and one dollar for each half day for 11 82 ESTATES OF DECEASED PERSONS. their services, and six cents a mile for travel going and returning. L. 1873, p. 183. The appraisal is not conclusive, but may be reviewed by the court and corrected. Ames v. Downing, 1 Bradf., 321; Appleton v. Cameron, 2 Bradf., 119. Certain war- 1562 (5214.) Sec. 23. Any warrant or commission for ^he rants, etc., may be re- appraisement of any estate, for examining claims against estates, for partition of real estate, or for the assignment of dower, may be revoked by the judge of probate for sufficient cause, and the judge may thereupon issue a new commission, or proceed otherwise therein, as the circumstances of the case shall require. Appointme't 1391 (4403.) Sec. 3. When appraisers shall be appointed by a b/justujes" 1 justice of the peace he shall issue an order to them in substance as of the peace. «... follows : County of ss. To of in said county. You are hereby appointed to appraise, on oath, the estate and effects of late of deceased, which may be in said county; and when you have performed that service, you are required to deliver this order, and your doings in pursuance thereof, to executor (or administrator, as the case may be) of said deceased. Given under my hand this day of in the year Justice of the peace. compensa- L> 1873 ' ?■ 183, Act Na 135 ( 7499 -) Sec - 17 - Au appraisers of nrSs°r ap es * a * es °f deceased persons, appraisers of property taken on any erTetc. 8 ' " w " t °^ attachment or replevin, persons appointed under any legal process or order for assigning dower, or making partition of real estate, sheriff's aids in criminal cases, or in the execution of legal process, where no express provision is made for compensation there- for, shall be entitled to two dollars for each day and one dollar for each half-day for their services, and six cents a mile for travel in going and returning. Appraisal ^ 39 ^ (4404.) Sec. 4. The appraisers shall set down opposite to anLTrUfied eacl1 item in sucl1 inventory, distinctly, in figures, the value thereof in money, and deliver the same, certified by them, together with their appointment, if made by a justice of the peace, to the executor or administrator. ESTATES OF DECEASED PERSONS. 83 1392 (4405.) Sec. 5. A separate and distinct inventory and separate in- i ,.„,,, ventory and appraisement shall be made and returned as aforesaid of all the appraisal of household household furniture and other personal property which may be furniture, allowed to the widow, pursuant to the provisions of the preced- ing chapter; but the same shall not be considered assets in the hands of the executor or administrator. L. 1875, p. 163, Act No. 136 (4406.) Sec. 6. The personal estate Personal e8 . of the deceased, including all growing crops of grain, grass, and fruit, chargeable not disposed of by special mention in the will of the deceased, and mentoi y by said will plainly directed to pass with the real estate, which no t sum- shall come into the hands of the executor or administrator, shall tate to be be first chargeable with the payment of the debts and expenses; and if the goods, chattels, rights, and credits in the hands of the execu- tor or administrator shall not be sufficient to pay the debts of the deceased and the expenses of administration, the whole of his real estate, except the widow's dower, or so much thereof as may be necessary, may be sold for that purpose by the executor or admin- istrator, after obtaining license therefor in the manner provided by law. Approved April 27, 1875. To ascertain whether the personal estate is sufficient to pay the debts and expenses there should be deducted the allowance to the widow and minor children for their support, and the four hundred and fifty dollars allowed to the widow under C. L. 1383 (4377.) There should also be allowed a considerable margin for shrink- age in value on the collection and sale of the personal estate. The creditor of the estate has a claim in the nature of a lien upon the real estate for the payment of his debt, and the heirs and all per- sons claiming under them take the land subject to this lien. Streeter v. Patton, 7 Mich. 350. L. 1873, p. 13, Act No. 15. L. 1875, p. 232, Act No. 203 (4407.) Sec. 7. The executor or Time execu- administrator shall be entitled to the possession of the personal mimstrator estate of the deceased until assignment or distribution of the same titled to pos- session of to heirs, legateees, or other persons entitled thereto, by order of the personal es- tate. probate court, or until the estate is finally settled. Approved May 3, 1875. 84 ESTATES OP DECEASED PERSONS. The title of the administrator to the assets of the estate relates back to the death of the intestate. Gilkey v. Hamilton, 22 Mich., 283. In regard to the right of the administrator to the possession of the real estate, see Campau v. Campau, 25 Mich. 127. Proceedings 1392 (4408.) Sec. 8. If any executor or administrator, heir, leg- suspected atee, creditor, or other person interested in the estate of any embezzle- 1 ment, etc. deceased person, shall complain to the iudee of probate, on oath, 9 Mich. 87. r » . r J Bev. ofis27, that any person is suspected to have concealed, embezzled, conveyed away, or disposed of any money, goods, or chattels of the deceased, or that such person has in his possession or knowledge any deeds, conveyances, bonds, contracts, or other writings, which contain evi- dence of, or tend to disclose the right, title, interest or claim of the deceased to any real or personal estate, or any claim or demand, or any last will and testament of the deceased, the said judge may cite such suspected person to appear before the court of probate, and may examine him on oath, upon the matter of such complaint. for form of complaint see Appendix. This statute is for discovery merely, and is intended to save the expense of a proceeding in chancery for discovery. If any property is discovered replevin and trover are the proper remedies to recover it. Wales v. New Bould, 9 Mich. 87 ; Selectmen of Boston v. Boyls- ton, 4 Mass., 322; O'D v. McCrate, 7 Green'l, 467. As this proceeding takes the place of a proceeding in chancery it should be governed by similar rules. In the proceeding for discovery in chancery it has been decided, that a defendant would not be compelled to disclose the nature, extent and condition of his private business, for the purpose of showing, that as executor he had mingled the moneys of the estate with his own, and obtained considerable profits thereby. The courts should not compel a person to disclose the amount of his property, its nature and condition, or the nature, extent and condition of his private business, for the purpose of showing that he has obtained or has in his possession any property belonging to an estate. Wig- ram on Discovery, 166 to 170. The inquiry is not confined to any issue or for the purpose of any particulor case, as in chancery, because there is no issue or case pending. The inquiry might perhaps properly be allowed to extend to any matters that would tend directly to disclose any of the facts that might be alleged under this statute. ESTATES OF DECEASED PERSONS. 85 1393 (4409.) Sec. 9. If the person so cited shall refuse to appear Persons . cited refus- and submit to such examination, or to answer such interrogatories ine; to ap- pear and an- as may be put to him touching the matter of such complaint, the swer, etc., may be com- court may, by warrant for that purpose, commit him to the com- mitted. mon jail of the county, there to remain in close custody until he shall submit to the order of the court; and all such interrogatories and answers shall be in writing, and shall be signed by the party examined, and filed in the probate court. For form of warrant see Appendix. The questions and answers should be fully taken down by the court, and signed by the person answering, and the usual jurat attached. Only the testimony of the parties called upon to dis- close can be taken, other witnesses cannot be sworn. It would be well to have the interrogatories prepared and settled by the court, before the day of hearing. 1393 (4410.) Sec. 10. The judge of probate, upon the complaint p rocee< i[ nB on oath of any executor or administrator, may cite any person, who account by shall have been intrusted by such executor or administrator with trusted with any part of the estate of the deceased person, to appear before such estate. court, and may require such person to render a lull account, on oath, of any money, goods, chattels, bonds, accounts, or other papers belonging to such estate, which shall have come to his possession, in trust for such executor or administrator, and of his proceedings thereon; and if the person so cited shall refuse to appear and ren- der such account, the court may proceed against him as provided in the preceding section. The same form of complaint may be used as above and the same warrant. 1393 (4411.) Sec. 11. When any debtor of a deceased person when exec- x ' J r utor, etc. to shall be unable to pay all his debts, the executor or administrator, compound r J ' > ^tn debtor. with the approbation of the judge of probate, may compound with such debtor, and give him a discharge upon receiving a fair and just dividend of his effects. The executor or administrator should file a petition setting forth fully the nature of the debts and the reasons for the compromise, and request the court to fix the amount at which the claim may be compromised. If the matter is important it would be well to give all persons interested notice of the hearing. If a compromise is iDterest in 86 ESTATES OP DECEASED PERSONS. desirable the judge of probate should make an order fixing the amount at which the debt may be compounded and the debtor released. 1393 (4412.) Sec. 12. When any mortgage of real estate, or any mortgaged ass ig ne e of such mortgage, shall die without having foreclosed the be consider- r igjjt f redemption, all the interest in the mortgaged premises con- assets, etc. vevec i by- such mortgage, and the debt secured thereby, shall be con- sidered as personal assets in the hands of the executor or adminis- trator ; and he may foreclose the same, and have any other remedy for the collection of such debt which the deceased could have had if living, or may continue any proceeding commenced by the deceased for that purpose. The executor or administrator alone can transfer mortgages belonging to the estate during administration. The heirs have no control over mortgages until they are assigned to them on the set- tlement of the estate. Albright v. Cobb, 30 Mich., 355. When exec- IS93 (4413.) Sec. 13. In case of the redemption of any such may'give re- mortgagage, or the sale of the mortgaged premises by virtue of a premises bid power of sale contained therein or otherwise, the money paid there- executor, on shall be received by the executor or administrator, and he shall etc.-, to be ,. , 1 seized. thereupon give an necessary releases and receipts, and if, upon a sale of the mortgaged premises, the same shall be bid in by the executor or administrator for such debt, he shall be seized of the same, for the same persons, whether creditors, next of kin, or oth- ers, who would have been entitled to the money if the premises had been redeemed or purchased at such sale by some other person. _ . 1394 (4414.) Sec. 14. Any real estate so held by an executor purchased or administrator, or which may be purchased by him as such upon under 6 s ° ld a aa ^ e on execu tion for the recovery of a debt due the estate, may 6Mich; 119. *>e sold for the payment of debts or legacies, and the charges of administration, in the same manner as if the deceased had died seized thereof, upon obtaining a license therefor from the probate court in the manner provided by law. 1394 (4415.) Sec. 15. If any land so held by an executor or If such land . . be not sold, administrator, as mentioned in the preceding section, shall not be • how assign d A ° uted diStrilJ so ^ ky hi™ as therein provided, it shall be assigned and distribu- ted to the same persons, and in the same proportions, as if it had been part of the personal estate of the deceased; and if, upon such ESTATES OF DECEASED PERSONS. 87 distribution, the estate shall come to two or more persons, partition thereof may be made between them in like manner as if it were real estate which the deceased held in his lifetime. 1394 (4416.) Sec. 16. When there shall be a deficiency of w^n suit v ' ^ to be proso- assets in the hands of an executor or administrator, and when the cu t ed t° r e- 7 cover lands, deceased shall, in his lifetime, have conveyed any real estate, or any feutivMm^ 11 " right or interest therein, with the intent to defraud his creditors ™iSed by de or to avoid any right, debt, or duty of any person, or shall have so 237. ernan ' conveyed such estate that by law the deeds or conveyances are 9 Mich.' 358 void as against creditors, the executor or administrator may, and io inch. 300. it shall be his duty, to commence and prosecute to final judgment, any proper action or suit, at law or in chancery, for the recovery of the same, and may recover, for the benefit of the creditors, all such real estate so fraudulently conveyed; and may also, for the benefit of the creditors, sue and recover for all goods, chattels, rights, or credits which may have been so fraudulently conveyed by the deceased in his lifetime, whatever may have been the manner of such fraudulent conveyance. Norton v. Norton, 5 Cush. 524. 1394 (4417.) Sec. 17. No executor or administrator shall be Executors bound to sue for such estate as mentioned in the preceding section, bound to for the benefit of the creditors, unless on application of creditors of excepTon the deceased, nor unless the creditors making the application shall of creditors, pay such part of the costs and expenses, or give such security to the executor or administrator therefor, as the probate court shall judge just and equitable. 1395 (4418.) Sec. 18. All real estate so recovered as provided Disposition in the sixteenth section of this chapter, shall be sold for the pay- covered, ment of debts, in the same manner as if the deceased had died seized thereof, upon obtaining a license therefor from the probate court, and the proceeds of all goods, chattels, rights, and credits recovered as aforesaid, shall be appropriated in payment of the debts of the deceased, in the same manner as other assets in the hands of the executor or administrator. 88 COMMISSIONERS ON CLAIMS. COMMISSIONERS ON CLAIMS. Commission 1396 (4420.) Section 1. When letters testamentary or of ineandad- administration shall be granted by the judge of any court of pro- whentohe' bate, such judge may in his discretion, or upon the written appli- appoiated. . , 8 Mich. 34. cation of the executor or administrator, appoint two or more suita ble persons to be commissioners, to receive, examine, and adjust all claims and demands of all persons against the deceased, except in the following cases : First. When it shall appear that there are no debts existing against such deceased person ; Second. When the value of the whole estate, exclusive of the furniture and other personal property, allowed to the widow, shall not exceed one hundred and fifty dollars, and shall be assigned for the support of the widow and children, as provided by law, in which case such assignment shall be deemed a full and final admin- istration, and bar to all claims against the estate. The commissioners must be disinterested persons. Cooley's Const. Limitations, 410. They should be residents of the county, and hold their meetings at or near the residence of the deceased. It is best in all cases to have claims heard and the estate regularly settled. Where there is real estate, the greatest care should be exercised, that the statute may be fully complied with, and all claims barred. Heirs always find it difficult to sell the real estate where claims have not been heard, because creditors have a claim, which is in effect a lien upon the real estate, for the payment of their debts. The personal estate of the deceased is first chargeable with the payment of his debts; but if this is not sufficient the real estate may be sold for this purpose. C. L. 1392 (4406.) and L. 1873, p. 13, Act No. 15. The commissioners should be allowed from two to five dollars per day, or more, for their services, as may appear to be reasonable and proper in each case. The statute does not fix the compensation for their services, and it should not be limited. COMMISSIONERS ON CLAIMS. 89 A surviving partner may present his claim to the commissioners on claims against the estate of his deceased partner, for monies advanced to deceased, without first resorting to a court of equity. Wheeler v. Arnold, 30 Mich. 304. The statute gives the commis- sioners about the same powers that a court of equity would have to adjust such claims. 1562 (5214.) Sep. 23. Any warrant or commission for the Certain waT . appraisement of any estate, for examining claims against estates, SJJJb^fj- for partition of real estate, or for the assignment of dower, may be T0 e ' revoked by the judge of probate for sufficient cause, and the judge may thereupon issue a new commission, or proceed otherwise therein, as the circumstances of the case shall require. 1397 (4421.) Sec. 2. When such commissioners shall be appointed, commission- it shall be their duty to appoint convenient times and places when pointUme and where they will meet, for the purpose of examining and allow- meet?n^and ing the claims ; and within sixty days after their appointment they shall give notice of the times and places of their meeting, and of the time limited for creditors to present their claims, by posting a notice thereof in four public places in the same county, and by pub- lishing the same at least four weeks successively in some newspa- per printed in this State, or in any other manner that the court may direct. The notice to creditors should be published in a newspaper printed in the county where the court is held, but if no paper is published in the county, then in a newspaper published in an adjoining county, or one published nearest to the county. . C. L. 1389 (4397.) and C. L. 2056 (7455.) The commissioners usually meet twice during tho six months, but may have as many meetings as may be necessary. The first meeting should be at least four weeks after the last insertion of the notice in the paper, to give time for posting the notices. The commissioners may adjourn their meetings from time to time as may be necessary. The last regular meeting should be on the last day of the time limited; thus if the warrant is dated January 1st, and six months from date are allowed in which to present claims, the last regular meeting should be on the first day of July follow- ing, and all claims presented on that day should be received. If such last day comes on Sunday or a holiday, then the next day after 12 90 COMMISSIONERS ON CLAIMS. should be fixed as the last day of hearing. The most liberal rules for computation of time should be adopted in these matters. The commissioners may adjourn after the last meeting to complete the hearing of any claim presented. in time. 0. L. 1399 (4430.) Where one agrees in writing to give another a lien upon his farm for services, and dies without giving the lien, his estate will be holden for the amount of the written agreement. Sword y. Keith, 31 Mich., 247. 1397 (4422.) Sec. 3. The judge of probate, in the commission probate to issued to the commissioners, shall designate the paper in which designate . paper in . such notice shall be published, and the number of places in the sev- which notice to be pub- eral townships in which it shall be required to be posted, and any is no ii, 6nc> other mode of notifying which he may deem necessary and proper, wheneom- 1397 (4423.) Sec. 4. If any commissioner, appointed by the pro- Si die* ^ a * e court, sna ll a * an y ti me die, remove out of the State, refuse, appoint an-° or become in any other way incapacitated to perform the duties of place. m S his appointment, the court may appoint another commissioner in his place ; and no further notice of the meetings of the commissioners shall be required in consequence of such appointment. The name of the new commissioner may be inserted in the origi- inal commissioner's warrant. Time allow- ^^ (^424.) Sec. 5. The probate court shall allow such time as senttaK 16 ® jB circumstances of the case shall require for the creditors to pre- iBMich.204. sen ^ their claims to the commissioners for examination and allow- ance, which time shall_ not, in the first instance, exceed eighteen months, nor be less than six months; and the time allowed shall be stated in the commission. Six months is the time usually allowed to creditors to present their claims. Timema be 13 ^ 7 (4425.) Sec. 6. The probate court may extend the time notexceed- a U° we d *° creditors to present their claims, as the circumstances of ie E Mteh. 204! ^ e case ma y require; but not so that the whole time shall exceed two years from the time of appointing such commissioners. Mandamus will not lie against a judge of probate to compel him to extend the time allowed for creditors to present their claims. People v. Judge of Probate of Monroe, 16 Mich., 204. The appli- cation for extension of time should be by petition, and may be made by any person directly interested in the estate or by a credi- COMMISSIONERS ON CLAIMS. 91 tor. If the prayer of the petition is granted, the court should make an order extending the time, and have it attached to the original commissioner's warrant and return the same to the commissioners. 1397 (4426.) Sec. 7. On the application of a creditor who has when judge ^ ' L * of probate failed to present his claim, if made at any time before the estate is ma y r ? n ^ w 1 'J commission closed, the judge of probate may revive the commission, and allow £iS^°| further time, not exceeding three months, for the commissioners to S^en" *° examine such claim, in which case the commissioners shall cause c alm ' personally to be notified the parties of the time and place of hear- ing, and, as soon as may be, make return of their doings to the pro- bate court: Provided, That all costs and charges resulting from Proviso such application and the proceedings thereon, had in the probate court, shall be paid by the party making the application. The estate is closed when the final account of the executor or administrator is regularly heard and allowed, and the assets of the estate are distributed among the heirs or legatees. The commis- sion should not be revived after this has been done, although the executor or administrator may not have been technically discharged. Where no opportunity has been given to creditors to present their claims for examination and allowance during the administration of the estate, they may, at any time before their claims are outlawed, apply to the probate court for the appointment of an administrator and commissioners on claims, even after the assets of the estate have been distributed among the heirs and the administrator dis- charged. The claims thus allowed would ,be a lien upon the real estate of the deceased, no matter into whose hands it had passed, and there would seem to be no good reason why the heirs might not be called upon to contribute toward their payment, in propor- tion to the amount of personal estate each had received. See notes under Sec. (4430.) following. The application to revive the com- mission should be in writing, and allege that the estate is not closed, and the nature' and amount of the claim, and also show some good reason why the claim was not presented in time. The statute does not require that notice of the hearing of the applica- tion shall be given to the persons interested, but it will be found more satisfactory to fix a day for hearing, and give notice in most cases. The order reviving the commission may be attached to or indorsed upon the original warrant, and the warrant returned to 92 COMMISSIONERS ON CLAIMS. the commissioners. The judge of probate should not compel the commissioners to return their report, and if they return it he should not file it, until the claimant, pays into court or to the administra- tor all the costs and charges resulting from the application. The amount of the costs and charges must be determined by the judge of probate. The statute is very broad in its terms; but should receive a reasonable construction. The claimant should be required to pay all the costs and charges, which the estate would not have incurred if the claim had been presented in time, such as the per diem, and expenses of the administrator, the charges and expenses of the commissioners, and any other extra costs and charges result- ing from the failure to present the claim in time. The charges and expenses which the estate must have incurred had the claim been presented in time ought not to be taxed to the claimant. It is the duty of the judge of probate to require security for costs before reviving the commission, where there is any doubt about the responsibility of the claimant. C. L. 1566 (5244.) yf, . . 1398 (4427.) Sec. 8. In all cases where it is competent for the may'adjilt J a( ^g e °^ probate to appoint commissioners to receive, examine, and sell™ 8 hun ' adjust claims against estates of deceased persons, or to revive or con" tinue a commission already granted, the judge of probate may, if he shall think proper, instead of appointing commissioners or reviving or continuing a commission, appoint a time and place for the exam- ination' and adjustment of claims against the estate before himself; and in such case, if the object be to hear claims generally, he shall give the same notice of the time and place when he will sit to hear claims, and of the time limited for creditors to present their claims, Proceeding as * s required by law to be given by commissioners; and if the particular object is to examine and adjust some particular claim he shall cause notice of the time and place and object of the hearing to be given to all persons interested, or by publication in such newspaper of the county as he shall designate; and when a hearing shall be Action of thus as aforesaid had before a iudge of probate, on filing proof that judge same j o r > or ascommis- notice has been given as herein prescribed, the action of the judge cf probate in passing upon and adjusting claims shall have the r ; ime effect upon all claims against the estate as the action of com- missioners would have had if commissioners had been appointed and had acted according to law, and subject to the same provisions in reference to appeal. COMMISSIONERS ON CLAIMS. 93 If the hearing is for claims generally, the same notice must be given as is required by Sec. (4421.) above. There are no technical rules regulating the form for exhibiting claims in the probate court, or for framing issues for their trial on appeal. Substance is more regarded than form, and the simpler the statement the better, if suf- ficient to apprise the court and the parties interested of the real nature of the claim. The highly artificial rules of common law pleading have no pro- per application, and it must frequently occur that the forms of dec- larations in action ex contractu cannot be conveniently employed at all. The true subject of dispute should clearly appear, and where this is the case, the form is of little consequence. The petition or statement of the claim need not allege that the evidence of the claim is in writing, in order to introduce in evidence a written instrument. Comstock v. Smith, 26 Mich., 306. For provisions in regard to appeal, see post Sec. (4439.) 1398 (4428.) Sec. 9. When a creditor against whom the deceased set-ofia. had claims, shall present a claim to the commissioners, the execu- tor or administrator shall exhibit the claims of the deceased in off- set to the claims of the creditor, and the commissioners shall ascer- tain and allow the balance against or in favor of the estate, as they shall find the same to be ; but no claim barred by the statute of lim- itations shall be allowed by the commissioners in favor of or against the estate, as a set-off or otherwise. The general law of offsets does not apply to claims before com- missioners, but they are governed by the provisions of this section which allows a proper offset in all cases; but the offset must be, confined to claims which belonged to the deceased. The fact that the claim is secured by collaterals does not prevent its being pre- sented as an offset. Willard v. Fralick, 31 Mich., 431. It is the duty of the executor or administrator not only to pre- sent all the offsets that he can find, but also to thoroughly contest all claims which he has good reason to believe are not proper claims against the deceased. It is necessary and best in most cases for the administrator to employ counsel to assist him in contesting impro- per claims, and their reasonable charges should always be allowed by the court. Wood v. Goff, 7 Bush. (Ky.) 59; Abington v. Tyler, 6 Colder (Tenn.) 502; Willard on Executors, 43; Satterwhite v. 94 COMMISSIONERS ON CLAIMS. Littlefield, 13 S. & M. (Miss.) 302; 2 Williams on Executors, 1684, 1685 and 1686, notes; 3 Redfield on Wills, 415. The executor or administrator should appeal from the allowance of claims, which he believes have been improperly allowed, and if he has any doubt about the matter, he should consult with the judge of probate as to the best course to pursue. If he is guilty of corrupt conduct in regard to these matters, he will be liable to an action on his bond. Parsons v. Mills, 2 Mass. 80. If the administrator acts fraudulently and collusively in permit- ting the allowance of a claim, the payment of the same may be con- tested on the hearing of his final account. The allowance is not conclusive as regards the administrator. G-rovier v. Hall, 23 Mich., 7. For the statute of limitations of personal actions, see C. L. 1977. Case of 1979 (7157.) Sec. 10. If any person entitled to bring any of the either party, actions before mentioned in this chapter, or liable to any such actions, shall die before the expiration of the time herein limited, or within thirty days after the expiration of the said time, and if the cause of action does by law survive, the action may be commenced by or against the executor or administrator of the deceased person, or the claim may be proved as a debt against the estate of the deceased person, as the case may be, at any time within two years after granting letters testamentary or of administration, and not afterwards, if barred by the provisions of this chapter. Commission 1399 (4429.) Sec. 10. The commissioners shall be sworn to the sworn, and faithful discharge of their duties, and any one of them shall be uter oaths! authorized to administer oaths to parties and witnesses, when the same shall be required or proper for the investigation and trial of questions before them. The commissioners should be sworn before the first day of hear- ing claims, and may be sworn by the judge of probate, by a justice of the peace or notary public. 0. L. 1561 (5213.) Report of 1399 (4430.) Sec. 11. At the expiration of the time limited, or as soon thereafter as they shall have time to complete the hearing of the claims presented, the commissioners shall make a report of their doings to the probate court, embracing lists of the claims pre- sented, or exhibited in offset, and stating how much was allowed, and how much disallowed, together with the final balance, whether commission- ers. COMMISSIONERS ON CLAIMS. 95 in favor of the creditor or the estate; and the report shall state par- ticularly the manner of giving notice to the claimants. The commissioners' warrant contains general instructions for the direction of the commissioners in the performance of their duties. The commissioners should not receive or in any manner entertain any claim presented after the expiration of the time limited for hearing claims. They may complete the hearing, of any claims pre- sented in time, after the expiration of the time thus limited, and may adjourn for that purpose. If the warrant is dated January 1st and six months are given in which to present claims, the commis- sioners should receive, examine and adjust all claims presented before, and on the first day of July following. If the first day of July should be Sunday or a holiday, then all claims presented on the next day after such Sunday or holiday should be received and heard. The return ought to be made as soon as possible after the last day of hearing. The commissioners must compute interest on the claims to the last day of hearing, and state that fact over their signatures. The report should be dated on the day it is completed and ready to be filed in court. All persons who have objections to the allowance of any claim should be present on the last hearing day, and make their objections and have the commissioners enter their names in the report under the proper heading. I do not think that it is absolutely necessary to appear at the hearing of the claims and object in order to give the party aggrieved the right to appeal from the allowance of any particular claim, under 0. L. 1400 (4441.) "Second." The claim o f appeal is a suffi- cient objection to the allowance. Any other construction would tend to deprive persons interested of valuable rights without good reason, and without any actual benefit to the estate or the creditors. See 0. L. 1400 (4441.) "Second." The claims as allowed draw interest at the rate specified in the note, etc., which is the basis of the claim, from the date of the report of the commissioners. The commissioners should require a written itemized statement of all claims to be filed with them, together with all the written evidence in any manner bearing upon the same, and return all such papers to the probate court and file them with their report. The judge of probate should file and enclose all such papers in an envelope and place them where they can only be examined under his direction and control. 96 COMMISSIONERS ON CLAIMS. Every creditor of the estate has a claim, in the nature of a lien upon the real estate for the payment of his debt, and the heirs and all persons claiming under them take the land subject to this lien. L. 1873, 13, Act No 15 (4322.) and C. L. 1376 (4350.), and 1392 (4406.) Streeter v. Paton, 7 Mich. 350; Hall v. Partridge, 10 How. Pr. 188; Stiver v. Stiver, 8 Ohio, 217; Piatt v. St. Clair, 6 Ohio, 227; McDonald v. Aten., 1 Ohio, S. 293; Eddy v. Traver, 6 Paige, 521 ; Ramsdel v. Craighill, 9 Ohio, 197. This lien ceases or is discharged after the expiration of five years from the granting of administration. Hoffman v. Beard, decided June T. of S. C, 1875. Where the mortgagee of the deceased gives up his mortgage and takes one of the heirs in its place his rights will be protected. Hyde v. Tanner, 1 Barb., 75. A purchaser from an administrator, under an order of sale, takes the land discharged of the liens for debts. Bank of Muskingum v. Carpenter's Admr's, 7 Ohio, 21 ,; Stiver v. Stiver, 8 Ohio, 217; Miller v. Greenham, 11 Ohio S., 486. The heir cannot by purchasing the land at a tax sale, discharge the lien of the creditor. Piatt v. St. Clair, 6 Ohio, 227. Where heirs convey part of the lands, a court of chancery will compel the creditor to first resort to the lands still held by the heirs for the payment of his claim. Piatt v. St. Clair, 6 Ohio, 227. what claims 1399 (4431.) Sec. 12. The commissioners shall have power to er™may 8 try" try and decide upon all claims which by law survive against or in etc. e ' favor of executors and administrators, except claims for the posses- sion or title of real estate, and may examine and allow all demands at their then present value, which may be payable at a future day, including claims payable in specific articles, and may offset such demands in the same manner in favor of the estate. The general rule is, that actions of contract, upon the death of either party, survive to or against the personal representatives of each, unless the contract by its terms, or by operation of law, is ter- minated by the death of either party. 1 Chitty on Pleadings, 68; 2 Cooley's Bl'k Bk., 3d, 302; 1 Bonvier's Law Diet., 73 "Acto per- sonalis-;' 3 Redfield on Wills, 177. See also C. L. 1687 (5828.) The claims must be debts of the deceased and not matters con- tracted since his death. Gurnee v. Malone, 38 Cal., 85. The commissioners on claims are in reality a part of the probate court, and constitute a tribunal having very extensive powers over COMMISSIONERS ON CLAIMS. 97 matters within their jurisdiction. They are to receive, examine and adjust, all claims and demands of all persons, against the deceased, and all offsets thereto, with but very few exceptions. The judge of probate has no control over their proceedings, and does not confirm their report. All appeals from their decisions must be to the cir- cuit court of the same county, as hereinafter provided. It has been decided in Massachusetts, in case of insolvent estates, that where a claim is secured in whole or in part, by mortgage or otherwise, the claimant cannot have his entire claim allowed, unless he first sur- render this security to the estate. He may be allowed the balance of his claim, after deducting the value of the security. The value of the security may be determined by the commissioners, or by a sale of the security, or by agreement between the claimant and administrator. Farnum v. Bou telle, 13 Met., 159; Hooker v. Olmstead, 6 Pick., 481; Middlesex Bank v. Minot, 4 Met., 325; Haverhill Loan Ass. v. Cronin, 4 Allen, 144; 16 Mass., 308; 13 Met., 164; 16 Pick., 235. This should be the rule in all cases, because it is practically impossible to determine whether an estate is insolvent or not, until the estate is closed. If the secured claim is allowed, the claimant cannot receive any portion of the proceeds of the sale of real esCate, because the estate provides that the land shall be sold subject to all incumbrances, and in case the estate shall in any way be liable for the amount secured by any incumbrance, the sale shall not be confirmed until the purchaser shall execute a bond with sufficient sureties to be approved by the judge of probate, conditioned that he will pay such amount, and indemnify the exec- utor, etc., against all demands, costs, charges and expenses, by reason of any such claim, etc. See C. L. 1429 (4576.) and Sec. (4572.) and (4573.) The Massachusetts rule as established by the above cases, can. not work in any case to claimants whose claims are secured, and in case the estate proves to be insolvent it will tend to increase the dividends upon the unsecured claims. It would be well to adopt the rule in all cases. The circuit court in chancery cannot make an order to enforce the payment of alimony by an administrator, etc. Shafer v. Sha- tter, 30 Mich., 163. A certified copy of the decree granting alimo- ny should be presented to the commissioners on claims, and allowed 13 98 COMMISSIONERS ON CLAIMS. as a contingent claim. Only the amount fixed by the decree can be allowed. It would also seem to be competent for the commis- sioners to ascertain the present value of the alimony by the annu- ity tables, and allow such value as a claim, instead of allowing it as a contingent claim. The claims of executors and administrators stand upon the same footing as other claims, as regards allowance and payment. Treat v. Fortune, 2 Bradf., 116. A surviving partner may present a claim against the estate of a deceased partner for contribution. Wheeler v. Arnold, 30 Mich., 304. Sfatafu^ 1399 ( 4432 ) Sec - 13 - Nothing in the preceding section shall be ture day. construed to prevent any executor or administrator from paying any debt which shall be payable at a future day, according to the terms, and at the time, specified in the contract. Persons fail- 1399 (4433.) Sec. 14.. TCvery person having a claim against a tobe*l»rr S d deceasec l person, proper to be allowed by the commissioners, who SeeSeo 4480. sna n no t ; after the publication of notice as required in the second section of this chapter, exhibit his claim to the commissioner within the time limited by the court for that purpose, shall be forever barred from recovering such demand, or from setting off the same, in any action whatever. This is only so after the estate is closed. The commission on claims may be revived at any time before the estate is closed. See C. L. 1397 (4426). Nosuittobe 1399 (4434.) Sec. 15. When commissioners shall be appointed, commenced rr ' efutoforad- aS P rovided iri this chapter, for examining and allowing claims muustrator, against any estate, no action shall be commenced against* the exec ejectment, utor or administrator, except actions of ejectment, or other actions to recover the seizin or possession of real estate, and actions of replevin, nor shall any attachment or execution be issued against the estate of the deceased, until the expiration of the time limited by the court for the payment of debts. ^ndhftobe 13 " ( 4435> ) Seo - 16 ' A - U actions an d suits which may be pend- to Tud^ent ing a g ainst a deceased person at the time of his death, may, if the ment^be cause of action survives, be prosecuted to final judgment, and the certined,etc. executor or administrator may be admitted to defend the same; and if judgment shall be rendered against the executor or adminis- COMMISSIONERS ON CLAIMS. 99 trator, 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. When the cause of action survives, see authorities cited under Sec. (4431) above. A person having a judgment in his favor against a deceased person, may present the judgment to the commissioners on claims for allowance, or he may wait until the expiration of the time limited by the court for the payment of debts, and then have execution issued against the estate of the deceased. See Sec. (4434) above. For manner of proving judgment see Cooley's Mich. Digest " Evidence," 238 to 243. 1744 (6108.) Sec. 34. If any person taken in execution against h defendant his body shall die while so charged, the judgment upon which such charged in execution, execution issued shall not be deemed to be extinguished, but mav judgment to ° ' •'be certified be certified to the judge of probate, and shall be paid in the course etc - of administration, in like manner as if no execution had issued on such judgment. 1399 (4435.) Sec. 16. All actions and suits which may be pend- Actions * ' j r p'ndingtobe ing against a deceased person at the time of his death, may, if the P r o. se c utel1 cause of action survives, be prosecuted to final judgment, and the m 3 ent'to 8 be executor or administrator may be admitted to defend the same; certlfled ' etc and if judgment shall be rendered against the executor or adminis- trator, 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. 1400 (4436.) Sec. 1 7. Nothing in this chapter shall be construed Executor or x o i administra- te prevent any executor or administrator, when he shall think it tor p°'P re - r J Tented from necessary, from commencing and prosecuting any action against any twinging other person, or from prosecuting any action commenced by the 4 Micn ' 182 - deceased in his lifetime, for the recovery of any debt or claim to final judgment, or from having execution on any judgment. 1400 (4437.) Sec. 18. In such case, the defendant may set off set-offs in any claim he may have against the deceased, instead of presenting ecutors, etc it to the commissioners, and all mutual claims may be set off in such action; and if final judgment shall be rendered in favor of the defendant, the same shall be certified by the court rendering it, to the probate court, and the judgment shall be considered the true balance. 100 COMMISSIONERS ON CLAIMS. This -would not be the case where the cause of action arose after the death of the intestate. Fry v. Evans, 8 Wend., 530; Hill v. Tallman's Admr's, 21 Wend., 674 ; 2 Hill, 201 ) 6 Barb., 330. Buits fl b in ex 1680 ( 5800 -) Seo - 30 - In suits brought by executors and admin- ecutors, etc. i s trators, demands existing against their testators or intestates, and belonging to the defendant at the time of their death, may be set off by the defendant in the same manner as if the action had been brought by and in the name of the deceased. Judgment 1680 (5801.) Sec. 31. When a setoff is established in a suit utors, etc., brought by executors or administrators, and a balance found due the evidence of . debt estab- defendant, the judgment shall be against them in their representa- lished. tive character, and shall be evidence of a debt established, to be paid in the course of administration. Execution 1411 (4493.) Sec. 13. When costs, in any case, are allowed for costs, x ' when award- against an executor or administrator, execution shall not issue against ed against ° executor, the estate of the deceased in his hands therefor, but shall be award- etc. ' ed 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 cost shall be taxed, shall have been prosecuted or resisted without just cause. Joint con- 1400 (4438.) Sec. 19. When two or more persons shall be ib5 iCh ' ReP ' indebted on any joint contract, or upon a judgment founded on a joint contract, and either of them shall die, his estate shall be liable therefor, and it may be allowed by the commissioners, as if the con- tract had been" joint and several, or as if the judgment- had been against him alone, and the other parties to such joint contract may be compelled to contribute or to pay the same, if they would have been liable to do so upon payment thereof by the deceased. The effect of this section is to place partnership debts and indi- vidual debts upon the same footing in regard to allowance and pay- ment. When the administrator pays the partnership debt, he becomes a creditor of the partnership to that amount, and may col- lect the same of the surviving partners. Sparhawk, Executor v. Russell, 10 Metcalf, 305; Camp v. Grant, 21. Conn., 41; Jewett V. Phillip, et al., 5 Allen, 151; Wilby v. Phinnoy, 15 Mass., 116. After the partnership claim is allowed against the estate, the claimant should not be permitted to prosecute his claim against the surviving partners, otherwise he might collect his debt twice. COMMISSIONERS ON CLAIMS. 101 APPEALS FROM THE DECISION OF COMMISSIONERS ON CLAIMS. 1400 (4439.) Sec. 20. Any executor, administrator, or creditor ^g^ 1 - h s ™ may appeal from the decision and report of the commissioners, to s^iich. 34 the circuit court for the same county, if application for such appeal be made in writing, filed in the probate office within sixty days after the returning of the report of the commissioners. The appeal can be taken within sixty days from the filing of the report. In computing the time, the day of filing the report should be excluded, so that if the report is filed April 1st, the appeal may be taken on the 31st day of May following. In case the executor or administrator appeals, he will not be required to file an appeal bond, and his appeal will be perfected on filing his written applica- tion for appeal. If the last day is Sunday, the appeal must be perfected on the Saturday previous. Dale v. Lavigne, 31 Mich., 149; Harrison v. Sager, 27 Mich., 476. It would seem that the rule would be the same where the last day is a holiday. L. 1875, p. 192. The guardian of a minor heir should appeal from the decisi6n of the commissioners on claims or the judge of probate, whenever he is clearly of the opinion that the interests of his ward require it. The guardian should sign the claim or notice of appeal and execute the appeal bond. The minor might perhaps sign the claim of appeal, and have a guardian ad litem, appointed by the circuit court ; but he could not execute the appeal bond. The application for appeal may be made by attorney. Estate of Win. H. Robinson, 6 Mich., 137. The executor or administrator and the claimant are the only necessary parties to the appeal under this section. 1408 (4480.) Sec. 61. If any person shall fail to appeal from the S.' decision and report of commissioners, in pursuance of section twenty of said chapter, he may be authorized to appeal in pursuance of sec- tion thirty, chapter ninety-one, of the Revised Statutes, in the same manner as in cases of appeals from orders or decrees of judges of probate. 1563 (5221.) Sec. 30. If any person aggrieved by any act of the ^™ ^ judge of probate shall, from any cause, without default on his part, ^,™^ llovir have omitted to claim or prosecute his appeal according to law, the 4 Metcaif 225 circuit court, if it shall appear that justice requires a revision of L 102 COMMISSIONERS ON CLAIMS. • the case, may, on the petition of the party aggrieved, and upon such terms as it shall deem reasonable, allow an appeal to be taken and prosecuted with the same effect as if it had been done season- ably. Bond to be 1400 (4440.) Sec. 21. In case of an appeal by a claimant against E1V6I1 bv j claimant on the estate, he shall, within the time aforesaid and before such appeal. 2 Mich. Rep. appeal shall be allowed, give a bond to the adverse party, with suf- ficient surety to be approved by the judge of probate, and filed in his office, with a condition that he shall prosecute his appeal to effect, and pay all damages and costs which may be awarded against him on such appeal. This bond must be filed within the sixty days, to perfect the appeal, and it must be approved within that time by the court. Van Slyke v. Schmeck, 10 Paige, 301. The claimant must execute the appeal bond; it is not sufficient for a stranger to execute and file the bond. The claimant may execute the bond by his agent or attorney. In matter of the estate of Eaton, 2 Mich., 337. The judgment on determination of the appeal, cannot be against the sureties on the appeal bond, as well as the principal, they must be proceeded against in a separate action. Willard v. Fralick, 31 Mich., 431. The penalty in the bond should be double the amount of the claim and probable costs, as the sureties are liable for damages as well as costs. See last case cited, and notes under Sec. (4448.) It is sufficient if the bond in substance complies with the statute. O. L. 1759 (6186.) Foster v. Foster, 7 Paige, 48. The condition in the bond to prosecute the appeal to effect, means to pro- secute it to a reversal, and the principal and sureties will be liable for the damages as well as costs on the affirmance of the order or decree below. Skidmore v. Davies, 10 Paige, 316. It is not suf- ficient, after the expiration of the time for appeal, to allow the bond to be filed nunc pro tunc. Spotts v. Dumesnil, 12 Abb. Pr., N. S. 117. The bond may be amended after the expiration of the time for appeal and be sufficient. Marvin v. Marvin, 11 Abb. Pr., N. S. 97. SeeC. L. 1759. If a claimant appeals, the bond should run to the executor or administrator; if the executor, etc., appeals, the bond of course runs to the claimant. The executor or administra- tor sufficiently represents the other persons interested. COMMISSIONERS ON CLAIMS. 103 1400 (4441.) Sec. 22. No appeal shall be allowed from the Cases in . . f. i . . ■ which ap- decision and report of the commissioners, except in the following peal may be allowed, cases : First. When such commissioners shall disallow any claim in favor of any creditor or of the estate, in whole or in part, to the amount of twenty dollars ; Second. When the commissioners shall allow any claim, in whole or in part, and the sum allowed, being objected to, shall amount to twenty dollars; in either of which cases the aggrieved party may appeal. The claim for appeal should set forth the facts required by this section. 1401 (4442.) Sec. 23. In all cases of appeal from the decision of Noticeofap- the commissioners, the person appealing shall give notice of such hearing. appeal and of the hearing thereof, in the circuit court, in such man- ner as the judge of probate shall direct ; and in case of an appeal by an executor or administrator, if it shall be made to appear to the judge of probate that the claimant is not a resident of this State, or that his residence is unknown, notice of such appeal shall be given by publication, under an order of the probate court, in such news- paper and for such time as the judge of probate shall direct. The court usually requires the party appealing to serve upon the opposite party personally a certified copy of the claim of appeal and of the order allowing the appeal, within thirty days from the date of the order. The statute does not require personal service, and it will be sufficient for the court to order that the certified copies be served upon the opposite party personally, or by leaving the papers at his residence or place of business, with his clerk or some member of his family of a suitable age to understand their nature. If the executor or administrator on taking an appeal shall file with the court an affidavit stating that the claimant is not a resident of this State, or that his residence is unknown, the court should order notice of the appeal to be given by publication, as per form in the Appendix. The notice should be published at least three successive weeks from the date, of the order. In case a claimant appeals, notice should be given to the executor or administrator, and if the executor, etc., appeals, notice, of course, must be given to the claim- ant. The executor or administrator sufficiently represents the other persons interested in this class of cases to answer for them. Trial of ap- 104 COMMISSIONERS ON CLAIMS. Party a P - 1401 (4443.) Sec. 24. The party appealing shall procure and procure and file in the circuit court to which the appeal is taken, at or before record. the next term of such court after the appeal is allowed, a certified copy of the record of the allowance or disallowance appealed from, of the application for the appeal, and the allowance of the same, together with the proper evidence that notice has been given to the adverse party according to the order of the probate court. The party appealing should procure a certified copy of the com- missioner's warrant and report, of the application for appeal and the appeal bond, and the order allowing the appeal, and also copies of the papers served on the opposite party, with the affidavit or return of service indorsed thereon ; or, in case notice is published, then the printer's affidavit of the publication of the notice, and file the same in the circuit court before the next term of the court after the appeal is allowed. The case must be noticed for hearing in the cir- cuit court the same as any other case at law. 1401 (4444.) Sec. 25. When such certified copy shall have been filed in the circuit court, such court shall proceed to the trial and 8 Mich. 34, . 631. determination of the same according to the rules of law, allowing a 18 Mich. 194. . . . trial by jury of all the questions of fact in cases where such trial may be proper; and such court may direct an issue to be made up between the parties in a brief form when it shall be deemed neces- sary; and questions of law may be carried to the supreme court, and costs may be allowed or denied, in the discretion of the court; and in case the notice of such appeal is given by publication, if the claimant fail to appear in such circuit court, at the next term after such appeal shall have been perfected, or within such further time as such court shall direct, such claim shall be disallowed, and such court shall certify the disallowance thereof to the probate court. Where no new issue is formed and no declaration filed, the report of the commissioners will be considered as the declaration in the case, and the judgment in the circuit court cannot be larger than the claim presented. Hatch v. White, et al, 18 Mich., 194. It would seem from this case, that where a declaration is filed claiming a larger sum than was claimed before the commissionerSj and a new issue formed, the judgment might be larger. "There are no technical rules which regulate the form for exhibiting' claims in the probate court, or for framing issues for their trial on COMMISSIONERS ON CLAIMS. 105 appeal, and it is not desirable that there should be. Substance is more regarded than form in such cases, and the simpler the state- ment the better, if sufficient to apprise the court and parties inter- ested, of the real claim. The highly artificial rules of common law pleading have no proper application, and it must frequently occur that the forms of declarations in actions ex contractu cannot be con" veniently employed at all. The true subject of dispute should clearly appear, and where this is the case, the form is of little con- sequence." It is not necessary to allege in either court that the evidence of the claim is in writing in order to introduce a written instrument in evidence. Comstock v. Smith, 26 Mich., 322. The correct form of judgment in the circuit court on appeal from the allowance of a claim, would be an adjudication of the allowance of the claim at a certain sum, or a disallowance, and not a judgment against the administrator in the common law form. The statute regards the action of the court as analogous to that of the commis" sioners. A formal judgment may not be erroneous in law, but is liable to misapprehension, inasmuch as it cannot be literally enforced according to its terms. LaRoe v. Freeland, 8 Mich., 531. 1401 (4445.) Sec. 26. The final decision and judgment in cases Judgm'ntto be certified so appealed shall be certified by the circuit court or Supreme Court, to probate ,. court, etc. as the case may be, to the probate court ; and the same proceedings shall be had thereon as if such decision had been reported by the commissioners. For form of judgment in circuit court, see Appendix. When such a judgment is rendered, the attorney of the party in whose favor the judgment is rendered, should obtain from the clerk of the circuit court a certified copy of the judgment and file it in the probate court. When the certified copy of judgment is filed in the probate court, it is disposed of the same as other claims allowed by the commissioners. The court should always direct the admin- istrator to retain in his hands assets enough to meet any such claim when finally disposed of. 1402 (4446.) Sec. 27. If any claimant, appealing on account of ^^ claim the disallowance of his claim by the commissioners, shall fail to barrea - prosecute his appeal in the circuit court to which the appeal is 14 When cir- 106 COMMISSIONERS ON CLAIMS. taken, such claim shall be forever barred, and said court may allow costs to the appellee. 1402 (4447.) Sec. 28. If the person objecting to a claim, and shliuffi™ appealing on account of the allowance of such claim, shall neglect »"peXi e to prosecute his appeal, the court to which the appeal shall be taken, on motion of the adverse party, and on his producing an attested copy of the record of the probate court showing such appeal, shall affirm the allowance appealed from, and may allow costs against the appellant. whenany 1402 (4448.) Sec. 29. When an executor or administrator ested in es- declines to appeal from the decision of the commissioners, any per- tate may ap- 1 . . . . peal. son interested m the estate as creditor, devisee, legatee, or heir, or any surety or sureties in the executor's or administrator's bond, may appeal from such decision in the same manner as the executor or administrator might have done, and the same proceedings shall be had in the name of the executor or administrator: Provided, Proyiso. ' That the person appealing in such case shall, before the appeal shall be allowed, give a bond, to be approved by the judge of probate, as well to secure the estate from damages and costs, as to secure the intervening damages and costs to the adverse party. Any person, coming within the provisions of this section, desir- ing the appeal to be taken, should request the executor or admin- istrator to appeal, and if he declines to do so, then the person mak- ing such request may file his application for appeal and the bond required by this section. For form of application and bond see Appendix. It is quite difficult practically to carry out all the pro- visions of this section. It evidently designs that the claim of appeal and bond shall be executed by the person making the appeal the same as any other case; but provides that "the same proceed- ings shall be had in the name of the executor or administrator." There is certainly no reason for having the proceedings in the name of the executor or administrator, and it would be very awkward and unnatural to frame the papers and conduct the proceedings in that manner. If the proceedings are conducted in the name of the executor, etc., he might discontinue proceedings or otherwise med- dle with and control the case to the predjudice of the appellant, which is certainly not the design of the statute. As there can be no possible object in having the proceedings conducted in the name of COMMISSIONERS ON CLAIMS. 107 the executor, etc., and as the object of the statute might be entirely subverted, this clause may be treated as directory merely and disre- garded. People v. Doe, 1 Mich., 451; Parks v. Goodwin, 1 Doug., 51 ; Hickey v. Hinsdale, 8 Mich., 267; Rawson v. Parsons, 6 Mich., 401. The language might perhaps be construed to mean, that the same proceedings shall be had, as if the appeal had been taken by the executor, etc. The person appealing must comply with all the provisions ol the statute in regard to appeals by executors, etc., so far as they are applicable, together with the additional require, ments of this section. The word "damages" in this section and in section (4440) will probably be construed to mean the entire claim or judgment recovered, and the penalty in the bond should be double the amount of the claim and probable costs; but of course the sureties on the bond should only be held for the claim or judg- ment (when the estate is insolvent or that part of the claim or judg- ment) which the estate cannot pay. If the sureties in the first instance should be required to pay the claim, they should hold, the same as a claim against the estate. See Willard v. Fralick, decided April T. of S. C, 1875. The appellant and the claimant are the only necessary parties tp the appeal under this section. 1402 (4449.) Sec. 30. When an executor or administrator shall Notice in * ' case of ap- have a claim against the estate which he represents, which shall be ^vio^etc' disallowed by the commissioners, and he shall take an appeal there- anc^ofhis" from to the circuit court, notice of such appeal shall be given to cla,,nl all concerned, by personal service thereof, or by publication, under an order of the probate court, in some newspaper which circulates in the county, three weeks successively, the last publication of which shall be four weeks before hearing of the appeal. APPEALS FROM THE DECISIONS 'OF THE JUDGE OF PROBATE. 1562 (5216.) Sec. 25. In all cases not otherwise provided for, Appeaisto j , j , j j - -i r- circuit court any person aggrieved by any order, sentence, decree, or denial ot a 5 men. 225. judge of probate, may appeal therefrom to the circuit court for the 34Maine,'4iJ same county, by filing a notice thereof with the judge of probate 153. within sixty days from the date of the act appealed from, with his reasons for such appeal, together with such bond as is required in the next section. 108 COMMISSIONERS ON CLAIMS. No one can appeal from a decree of the judge of probate, unless he has an interest in the subject matter of the decree, which may be injuriously affected by it, so as to render him a party aggrieved. The surety on a guardian's bond may appeal from the allowance of the account of his principal. Livermore v. Bemis, 2 Allen, 394; Earrar v. Parker, 3 Allen, 556. See also upon this subject, Lewis v. Bolitho, 6 Gray, 137; Northampton v. Smith, 11 Met., 390; Deering v. Adams,'34 Maine, 41; Bancroft v. Andrews, 6 Cush., 493; Bryant v. Allen. 6 N. H., 116; Smith v. Sherman, 4 Cush., 408; 16 Pick, 264. A creditor -cannot appeal from a decree refus- ing license to sell real estate of the deceased to pay debts. Henry v. Esty, 13 Gray 336. In case of an appeal from the allowance or disallowance of a will or a final account, etc., all persons interested as legatees or heirs at law, or their legal representatives, must be made parties to the appeal either as appellants or respondents. Brown, v. Evans, 34 Barb, 594; Gilman v. Gilman, 35 Barb, 591; Kellinger v. Roe, 7 Paige, 362. Where the appeal is from the decree of assignment and distribution, all persons interested in the decree should be made parties to the appeal. Willcox v. Smith, 26 Barb., 316; Gilchrist v. Rea, 9 Paige, 66. Where the interests of the estate of a deceased person or minor are affected by the decree, the administrator or guardian may appeal. Wiggin v. Sweet, 6 Met., 1 94. The guardian would be obliged to appeal, as the ward could not execute the appeal bond. Several parties whose interests are identical, and are affected by a decree, should join in the appeal, and not appeal separately. Brockway v. Jewett, 16 Barb., 590; Jackson v. Hosmer, 14 Mich., 88. The court has no power to enlarge the time fixed by statute for appealing. Stone v. Morgan, 10 Paige, 615. Where a legacy is directed to be paid, and there is sufficient assets to pay it, and -there is no reason to suppose that the legatee will be called upon to contribute toward the payment of contingent claims, he has no right to interfere with the settlement of the estate after his legacy is paid. Labar v. Nichols, 23 Mich., 310. The collusive allowance of a claim by an administrator for his own benefit, may be contested on the hearing of his final account, and the allowance of the claim by the j udge of probate is not con- clusive in such a ease. Grovier v. Hall, 23 Mich., 7. The notice COMMISSIONERS ON CLAIMS. 109 or claim of appeal must be in writing, and must contain a complete and specific statement of all the reasons for appeal, because the appellant will be restricted on the trial in the circuit court, to the reasons specified. Prescott v. Tarbell, 1 Mass., 205 ; Hatch v. Powell, 21 N. EL, 544; Twitchell v. Smith, 35 N H., 48; 18 Pick, 1 ; 27 Me., 78. In computing the time for making the appeal, the day of the date of the order should be excluded. If the last day is Sunday, the appeal must be perfected on the Saturday pre- vious. Dale v. Lavigne, 31 Mich., 1 49 ; Harrison v. Sager, 27 Mich., 476. It would seem that the same rule should apply, in case the last day is a holiday. L. 1875, p. 192, Act No. 163. 1562 (5217.) Sec. 26. The party appealing shall, at the time of Bond on ap- peal, filing notice thereof, file with the judge of probate a bond to the 1842, p. 107. adverse party, in such penalty, with such surety or sureties, as the judge of probate shall approve, conditioned for the diligent prose. cution of such appeal, and the payment of all such damages and costs as shall be awarded against him in case he shall fail to obtain a reversal of the decision so appealed from. The bond should be executed by the appellant, to all the persons adversely interested, whether they appear in the probate court or not. Where an heir at law appeals from the allowance of a will, the bond should run to the legatees and the executor, and where a legatee appeals from the disallowance of a will, the bond should run to the heirs at law, and the legatees adversely interested, if any. In case of an appeal by an executor, etc., from an order disallowing his account, the bond should run to the legatees or heirs at law. When an appeal is taken by one of the legatees or heirs at law from a decree of assignment, the bond should run to the other legatees or heirs at law, etc. 1562 (5218.) Sec. 27. The appellant shall give notice of such Noticeofap v ' _ peal to ad- appeal to the adverse party, with his reasons therefor, in such man- verBe P"*y. ner as the probate court shall direct, at least fourteen days before the same shall be entered in the circuit court. The adverse party should be served with a certified copy of the notice and reasons for appeal, and the order allowing the appeal at least fourteen days before the case is entered in the circuit court. In case notice is given by publication, the last insertion should be fourteen days before the case is entered. Notice must be given to 110 COMMISSIONERS ON CLAIMS. all persons adversely interested, whether they have appeared in the probate court or not. 1562 (5219.) Sec. 28. The person appealing shall procure and Appellastto v ' ,.,,,- , i •/. , procure cer- file in the circuit court to which the appeal is taken, a certified tifiedcopyof record. copy of the record or proceedings appealed from, of the notice of such appeal filed in the probate court, and the reasons for such appeal, together with evidence of filing of the requisite bond, and that notice has been given to the adverse party, according to the order of the probate court. It is best to file a certified copy of the appeal bond, a certified copy of the notice and reasons for appeal, together with the return or affidavit of service of the same on the adverse party, and where notice is published the printers' affidavit should be filed. The case must be noticed for trial in the circuit court the same as other cases at law. on filing 1562 (5220.) Sec. 29. When such certified copy shall have been copy of re- v ' . cord, circuit filed in the circuit court with the evidence of filing the requisite court to try x question, bond, and of giving notice as aforesaid, such court shall proceed to the trial and determination of the question according to the rules of law; and if there shall be any question of fact to be decided, issue may be joined thereon, under the direction of the court, and a trial thereof had by jury. There are no technical rules which regulate the form of exhibit- ing claims in the probate court, or for framing issues for their trial on appeal, and it is not desirable that there should be. Substance is more regarded than form in such cases, and the simpler the state- ment the better, if sufficient to apprise the court and the parties interested of the real claim. Oomstock v. Smith, 26 Mich. 322. For further authorities on forming the issue in the circuit court see Sec. (4444) above. 1563 (5221.) Sec. 30. If any person aggrieved by any act of the cuit court judge of probate shall, from any cause, without default on his part, may allow . . , , . appeal. nave omitted to claim or prosecute his appeal according to law, the DMich.,225. . . . r ° 4 Metcaif, circuit court, if it shall appear that justice requires a revision of the case, may, on the petition of the party aggrieved, and upon such terms as it shall deem reasonable, allow an appeal to be taken and prosecuted with the same effect as if it had been done seasonably. For form of petition see Appendix. 371 COMMISSIONERS ON CLAIMS. Ill 1563 (5222.) Sec. 31. No such appeal shall be allowed, without Noticeofap- i , .... plication to due notice to the party adversely interested, nor unless the petition circuit court for aUow'nce therefor shall be filed within one year after the making of the of appeal, decree or order complained of, except as provided in the following section. As the statute and rules have not prescribed the length and nature of the notice to be given to the party adversely interested, the the court should, on the filing of the application, make an order fixing a day for hearing the same, and requiring the petitioner to serve upon the adverse party or his attorney, a copy of the petition, and notice that the application will be brought on for hearing on the day fixed by the order. The court may direct notice to be given by publication whenever it is shown to be necessary. 1563 (5223.) Sec. 32. If the petitioner shall be without the ? ime *°J. fil " A ' F ing petition United States at the time of passing the decree or order, he may ^oner P wa6 file his petition within three months after his return : Provided, It unt'd'states tie done within two years after the act complained of. ^, g | the* 1563 (5224.) Sec. 33. The petition may, in all cases, be filed in p e J t . e ' the clerk's office, in vacation, as well as in term time, and the clerk "SJ b . e *'? d ' > ' with clerk in shall note upon it the time when it is filed. vacation. L. 1875, p. 142, Act No. 105, Section 1. The People of the State 8ection of Michigan enact, That section five thousand two hundred and amen e twenty-five of the compiled laws of eighteen hundred and seventy- one, be and the same is hereby amended so as to read as follows : (5225.) Sec. 34. After an appeal is claimed and notice thereof Proceedings _ ' ' r _ sta'edbyap- given at the probate office, all further proceedings in pursuance of p»i. the sentence, order, decree, or denial appealed from shall cease until the appeal shall be determined: Provided, That when an Proviso — appeal is taken from a decree, admitting or denying probate of a appointm'nt _ of special will, the probate court may appoint one or more special adminis- administra- tors, CuC- trators to take charge of and protect the estate, with such powers, not exceeding those of a general administrator, as the said probate court may deem necessary, and by order may confer in the pratic- ular case; and no appeal shall be allowed from the appointment of such special administrator or administrators. Sec. 2. This act shall take immediate effect. Approved April 23, 1875. 112 COMMISSIONERS ON CLAIMS. It will be noticed that the power to appoint special administra- tors, with the same powers as general administrators, is confined to cases of appeal from the allowance or disallowance of a will. The order-of appointment and the letters granted to the special admin- istrator, should specify the extent of his powers. Where the pow- ers granted are the same as those of a ge.eral administrator, the special administrator may proceed in the administration of the estate in the same manner as if there had been no will, and he had been appointed general administrator, except that there can be no assignment and distribution of the estate until the will is finally disposed of. Commissioners may be appointed to receive, examine and adjust all claims, and the special administrator may be licensed to sell sufficient of the personal and real estate to pay the debts and expenses of administration, etc. Powers of 1563 (5226.) Sec. 35. The circuit court may reverse or affirm, on appeal, in whole or in part the sentence or act appealed from, and may 8 Mich. 531. , , •■ , , , . , r- i make such order or decree thereon as the judge of probate ought to have made, and may remit the case to the probate court for further proceedings, or may take any other order therein, as law and jus- tice shall require. A certified copy of the order or decree of the circuit court should be filed in the probate court for further proceedings thereon. On an appeal to the circuit court from the allowance of an administration account, the judgment of the circuit court should settle and deter- mine the account, and such determination must be certified to the probate court for further proceedings; but the circuit court cannot fix the time of payment by the administrator of the balance found against him, and such part ^f the judgment should be treated as surplusage. Hall v. Grovier, 25 Mich., 428. when cir- 1563 (5227.) Sec. 36. In the appellant shall fa to prosecute his afflrmX" appeal with reasonable diligence, the circuit court, upon evidence that such appeal was taken, and on the motion of any person inter- ested in the case, shall affirm the decree or act appealed from, and may allow costs against the appellant. LIMITATION OF TIME FOE PAYING DEBTS AND LEGACIES, order allow- 1402 (4450.) Sec. 31. The probate court, at the time of grant- pafinTdebts in S letters testamentary, or letters of administration, shall make Mich., 350. an order allowing to the executor or administrator a time for dis- COMMISSIONERS ON CLAIMS. lid 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. 1403 (4451.) Sec. 32. The probate court may, on the applica- Court may extend tiine. tion of the executor or administrator, from time to time, as the cir- cumstances of the estate may require, extend the time for paying debts and legacies, not exceeding one year at a time, nor so that the whole time allowed to the original executor or administrator shall exceed four years. The application should set forth fully the reasons for the proposed extension of time for paying the debts and legacies of deceased. In case of Hoffman et al. v. Beard et al., decided June T. of S. C, 1875, held, that after five years had elapsed from the granting of administration without any order made continuing the adminisra- tion, or granting further time in which to settle the estate or pay the debts, the administrator and probate court had no further power or jurisdiction over the estate, to provide for the payment of any claims by the sale of real estate or otherwise, and that after the expiration of such time the claims against the estate were barred by this statute, and ceased to be claims against the estate. It would seem that by the provisions of this section all the debts and lega- cies would be barred and cease to be claims against the estate after the expiration of four years from the time administration is granted, and that the court would have no power to extend the time beyond that period unless an administrator de bonis rum is appointed within the four years, and then the court can extend the time so that the whole time allowed for such purpose shall not exceed four years and six months. See Sec. (4453) below. It will be noticed that the statute applies to legacies as well as debts. While the couit in the above case clearly hold that the estate is released from the payment of the debts after five years, yet this would not release the executor or administrator from his personal liability to pay the debts and legacies. The executor or administrator could only be released from liability to pay debts by giving the notice provided in C. L. 1405 (4462.) When not otherwise provided in the will, as a general rule leg- acies become due and payable and draw interest after one year from the granting of administration. Hepburn v. Hepburn, 2 15 114 COMMISSIONERS ON CLAIMS. Bradf., 74; Bradner v. Faulkner, 12 N. Y, 474; Campbell v. Cow- dry, 31 How. Pr., 172; Marsh v. Hayne, 1 Edw., 174. It has been held that legacies draw interest from the death of the deceased in the following cases : Where the legacy consists of the interest or income of money to be invested — Pierce v. Chamberlin, 41 How. Pr., 501 ; Fish Estate, 19 Abb. Pr., 209; Cook v. Meeker, 42 Barb., 533; where no pro- vision is made for the maintenance of the child other than the leg- acy in the will — King v. Talbot, 40 N. Y., 76; Lupton v. Lupton, 2 Johns Ch., 614; a bequest to a widow in lieu of dower, and to a child during life— Hepburn v. Hepburn, 2 Bradf., 74, 77 and 193; Williamson v. Williamson, 8 Paige, 298. 1403 (4452.) Sec. 33. When an executor or administrator shall Application \ ' Ind notice of ma ke application to have the time for paying debts and legacies hearing. extended beyond one year and six months from the time of granting letters testamentary or of administration, the probate court shall appoint a time for hearing and deciding on such application, and shall cause notice of such application, and of the time and place of hearing, to be given to all persons interested, by publication, three weeks successively, in some newspaper to be designated by the court ; and no such order extending the time shall be granted, unless such notice shall have been previously given. The time forsettling the estate should be extended with caution. The majority of estates ought to be closed within a year. Admin- istration should be commenced as soon as practicable after the death of the testator or intestate, and closed as soon as possible. The heirs always feel kindly toward each other soon after the loss of a near relative, and are disposed to be liberal in the adjustment of their respective claims. Estates are frequently rendered insolvent by a long administration. Never delay settlement because there is a prospect that the property of the estate may bring a better price, but sell at once, if a sale is necessary and a reasonable price can be obtained, and distribute the proceeds. Interest and expen- ses always exceed any ordinary advance in the value of property. when new 1403 (4453.) Sec. 34. When an executor or administrator shall tor appoint- die, or become incapable of discharging his trust, and a new admitt- ed, court- may extend istrator of the same estate shall be appointed, the probate court may extend the time for the payment of the debts and legacies beyond COMMISSIONERS ON CLAIMS. 11-j the time allowed to the original executor or administrator, not exceeding one year at a time, and not exceeding six months beyond the time which the court might by law allow to such original exec- utor or administrator, upon due notice being given as required in the preceding section. A legacy or distributive share of the residue of the estate may- be recovered by the legatee or heir at law, by suit upon the bond of the executor or administrator, after the probate court has by decree, fixed the amount and directed the same to be paid. C. L. 1417 and 1418. It has been held that a legatee may recover a specific leg- acy by an action at law, after the executor has acknowledged that it will not be necessary to retain the same to pay debts, etc. The court of equity, however, in all cases affords the most complete and adequate remedy to recover a legacy or distributive share, and in most cases it affords the only remedy. Willard's Eq. Jur., 498 ; 3 Redfield on Wills, 311. The probate court may order the sale of real estate to pay leg- acies and the distributive shares of an estate. C. L. 1428 (4570.) DISTRIBUTION OF ASSETS AMONG CREDITORS. AND OF INSOLVENT ESTATES. 1403 (4454.) Sec. 35. If, after the report of the commissioner's, When cxec- .... . utor, etc., to and ascertaining the claims against any estate, it shall appear that w ricbt«, 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 or appointed for that purpose. A note or bond secured by mortgage must be allowed the same as any other claim before it can be paid. Clark v. Davis, decided June T. of S. C, 1875; Estate of Knight, deceased 12 Cal, 20(1. 1403 (4455.) Sec. 36. If the assets which the executor or admin- „ , x ' Order of istrator may have received, and which can be appropriated to the P a -™ cnt - 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 : First. The necessary funeral expen- ses; Second. The expenses of the last sickness; Third. Debts hav- ing a preference by the laws of the United States; Fourth, Debts due to other creditors. 116 COMMISSIONERS ON CLAIMS. All the claims mentioned in this section must be allowed by the commissioners on claims before they can properly be paid. The power and authority of an executor or administrator is limited to the State or country where it is granted, with but few exceptions. Where there is estate belonging to the deceased in another State, there may be ancillary administration granted in that State. The principal administration and ancillary administration are entirely independent of each other. All the claims established under the ancillary administration should be paid before any of the estate is transferred to the principal administration, and it is entirely within the discretion of the probate court granting ancillary admin istration to determine whether the residue of the estate shall be distributed among the heirs there as remitted to the principal administration for distribution. Makey v. Coxe, 18 How., U. S., 100; Carmichael v. Ray, 5 Iredell, Eq., 365; Heirs of" Porter v. Heydock, 6 Vt., 374; Jennison v. Hopgood, 10 Pick., 77; Church- ill v. Boyden, 17 Vt., 319; Parsons v. Lyman, 20 N. Y., 103. All claimants, except creditors within the state where ancillary admin- istration is granted, should present their claims for allowance at the principal administration. Richards v. Dutch., 8 Mass., 506; Daws v. Boylston, 9 Mass., 337. Unless it is perfectly clear that the assets at the ancillary admin- istration are sufficient to pay all the debts there, the claimants should have their claims allowed at the principal administration. Fay v. Haven, 3 Met., 109; Wheelock v. Pierce, 6 Cush., 288. JB'or a more complete discussion of these questions see 3 Redfield on Wills, 27. A husband is liable for the necessary expenses for the burial of his deceased wife in a manner suited to their station in life and financial resources. Schouler's Domestic Rel., 166. Such expenses might be a proper claim against her separate estate, in case it is not possible to collect them of her husband. when cred- 1404 (4456.) Sec. 37. If there shall not be assets enough to paid divi- 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 those of the preceding class shall be fully paid. COMMISSIONERS ON CLAIMS. 117 A probate court, in decreeing distribution of the effects of an insolvent estate, takes the claims as allowed by the commissioners without including interest which accrued between the rendering of the report and the passing of the decree. Camp v. Grant, 21 Conn., 41. Whenever the equitable distribution of the assets requires it, the court may add interest on the claims allowed to the time of dis- tribution. Williams v. American Bank, 4 Met. 317. The amount or dividend to be paid to each may be ascertained by proportion, as follows : A dies indebted as follows: to B $800.30 j to C $250; to D $375.10; to E $500, and to F $115. The claims are allowed at these amounts, as appears by the commissioner's report. After the payment of all allowances and expenses of administration the administrator's account shows that there is $612.12 to distribute among these creditors. First add together the claims, and the sum is $2040.40, and then by proportion ascer- tain what can be paid on one dollar : $2040.40 : 8612.12 : : §1.00= 30 cents. That is, multiply $612.12 by $1.00 and divide the pro- duct by $2040.40, which will give thirty cents. The sum on hand will pay thirty cents on the dollar. Next multiply each claim by thirty cents, and it will give what is to be paid to each claimant. B will receive $240. 09; C$75; D $112.53; E $150, and F $34.50, which sums added equal $612.12. The administrator is liable to the other creditors, if he pays any one creditor more than his pro- portion. Abbott v. Cole, 5 Ohio, 86. The administrator may recover any such excess paid to any creditor. Rogers v. Weaver, 5 Ohio, 536. 1404 (4457.) Sec. 38. After the return of the report of the com- when court to order pay- missioners, and at or before the expiration of the time limited for ment of debts and the payment of debts, the probate court shall make an order or distribution OI Jisssts. decree for the payment of the debts, and the distribution of the assets which may have been received by the executor or adminis- trator at the time for that purpose, among the creditors, as the cir- cumstances of the estate shall require, according to the provisions of this chapter. 1404 (4458.) Sec. 39. If an appeal shall -have been taken from court may the decision of the commissioners as provided in this chapter, and cree in case l ii " • .ill ii ofappealun- shall remain undetermined, the probate court may suspend the determined decree for the payment of debts mentioned in the preceding section, 118 COMMISSIONERS ON CLATMS. or may order a distribution among the creditors whose claims shall have been allowed, leaving in the hands of the executor or admin- istrator sufficient assets to pay the claim which may have been dis- puted and appealed. when dis- 1404 (4459.) Sec. 40. When the disputed claim shall have been puted claim \ ' L ° T m atobe finally settled, the probate court shall order the same to be paid out of the assets retained, to the same extent, and in the same propor- tion as the claims of the other creditors. Further de- 1404 (4460.) Sec. 41. If the whole of the debts shall not have crcG for diS" tribution. been paid by the first distribution, and if the whole assets shall not have been distributed, or if other assets shall afterwards come to the hands of the executor or administrator, the probate court may, from time to time, according to the circumstances of the case, make further decree for the distribution of assets. when exec- 1404 (4461.) Sec. 42. Whenever a decree shall have been made utor, etc., ..,.„, personally by the probate court for the distribution of the assets among the liable to creditor. creditors, the executor or administrator, after the time of payment shall arrive,' shall be personally liable to the creditors for their debts, or the dividend thereon, as for his own debt; or he shall be liable on his bond, and the same may be put in suit, on the appli- cation of a creditor whose debt or dividend shall not be paid, as above mentioned. Notice of 1405 (4462.) Sec. 43. When the time for paying the debts of a tor payment deceased person shall be finally limited by order of the probate of debts. court, or by the expiration of the time allowed for that purpose, whether the estate shall be insolvent or not, the probate court may, on the application of the executor or administrator, by an order for that purpose, cause notice to be given to the creditors of the time appointed or limited for the payment of such debts, which notice shall be given by publishing the same at least three weeks succes- sively in some newspaper to be designated by the court, and in such other manner as the court may direct, creditor 1405 (4463.) Sec. 44. If, after notice shall have been given as "o demand provided in the preceding section, any creditor shall neglect to years may demand from the executor or administrator his debt, or the divi- dend thereon, within two years from the time so limited for the payment of the debts, or if the notice shall be given after such time within two years from the last publication, the claim of such cred- , itor shall be forever barred. COMMISSIONERS ON CLAIMS. 119 CONTINGENT CLAIMS. 1405 (4464.) Sec. 45. If any person shall be liable as security Contingent claims may for the deceased, or have any other contingent claim against his be presented estate, which cannot be proved as a debt before the commissioners, or allowed by them, the same may be presented, with the proper proof, to the probate court, or to the commissioners, who shall state the same in their report, if such claim was presented to them. The court or commissioners should enter the claim in their report and describe it fully, giving the date, amount, rate of inter- est, and as far as possible the nature of the liability and the contin- gency by which the claimant may become liable to pay the claim. This is all the court or commissioners can do, and they should not attempt to examine and allow the claim or make any finding or decision upon it. 1405 (4465.) Sec. 46. If the court shall be satisfied from the when court report of the commissioners, or by the proof exhibited, said court sufficient es- , . ... ..,.,.„ tate retained may order the executor or administrator to retain in his hands sut- for payment n • l • in °f claims. ficient estate to pay such contingent claim when the same shall become absolute, or, if the estate shall be insolvent, sufficient to pay a proportion equal to the dividends of the other creditors. 1405 (4466.) Sec. 47. If such contingent claim shall become contingent absolute, and shall be presented to the probate court, or to the exec- coming ab- solute may utor or administrator, at any time within two years from the time be presented limited for other creditors to present their claims to the commis- sioners, it may be allowed by the probate court upon due proof, or it may be proved before the commissioners already appointed, or before others to be appointed for that purpose, in the same manner as if presented for allowance before the commissioners had made their report ; and the persons interested shall have the same right of appeal as in other cases. Where the deceased leaves real estate and sufficient personal estate to pay part, or all of his debts, including notes secured by mortgage on his real estate, but such notes are not presented to the commissioners on claims for allowance, but the heir at law on final distribution makes application to the court to have the notes thus secured paid out of the personal estate. Held, that the failure of the mortgagee to have his notes allowed as claims against the estate, cannot affect the rights of the heirs to have such notes paid out of 120 COMMISSIONERS ON CLAIMS. I the personal estate. The heir should present a contingent claim to the court or commissioners on claims, based upon such notes and mortgage and have the same entered and allowed as provided in this statute. Daniel Clark v. John J. Davis, Adm'r, etc., decided June T. of S. C, 1875. Would this be the case where the mort- gage is a purchase money mortgage 1 when claim- 1406 (4467.) Sec. 48. If such contingent claim shall be allowed to payment, as mentioned in the preceding section, or established on appeal, the creditor shall be entitled to receive payment to the sam e extent as other creditors, if the estate retained by the executor or administra- tor shall be sufficient for that purpose; but if the claim shall not be finally established, as provided in the preceding section, or if the assets retained in the hands of the executor or administrator shall not be wholly exhausted in the payment of such claims, such assets, or the residue of them, shall be disposed of by order of the probate court to the persons entitled to the same according to law. uiaim ac- ^06 (4468.) Sec. 49. If the claim of any person shall accrue or timeHmtted become absolute, at any time after the time limited for creditors to ing claims, ~ present their claims, the person having such claim may present it proved in to the probate court, and prove the same at any time within one court. year after it shall accrue or become absolute ; and if established in the manner provided in this chapter, the executor or administrator shall be required to pay it if he shall have sufficient assets for that purpose, and shall be required to pay such part as he shall have assets to pay; and if real or personal estate shall afterwards come to his possession, he shall be required to pay such claim, or such part as he may have assets sufficient to pay, not exceeding the pro- portion of the other creditors, in such time as the probate court may prescribe. When crcd- 1406 (4469.) Sec. 50. "When a claim shall be presented within cover of one year from the time when it shall accrue, and be established as heir.s. . mentioned in the preceding section, and the executor or adminis- trator shall not have sufficient to pay the whole of such claim, the creditor shall have a right to recover such part of his claim as the executor or administrator has not assets to pay, against the heirs, devisees, or legatees, who shall have received sufficient real and personal property from the estate. COMMISSIONERS ON CLAIMS. 121 1406 (4470.) Sec. 51. If an action shall be commenced against Defense by . . ii« . • executor, an executor or administrator on such claim, as is mentioned in the etc., to ac- tion, forty-ninth section, and for the payment of which sufficient assets shall not have been retained, as before provided in this chapter, the executor or administrator may give notice, under his plea to such action, that- he has fully administered the estate which has come to his possession or knowledge. 1406 (4471.) Sec. 52. If it shall appear on the trial of such When defe „. action that the defendant had fully administered at the time the charged etc. claim was presented, and had no assets which could be lawfully appropriated for that purpose, he shall be discharged, and shall have judgment for his costs; but if it shall be found tha*; he had assets sufficient to pay only a part of such claim, judgment shall be rendered against him for such sum only as shall be equal to the amount of assets in his hands. 1407 (4472.) Sec. 53. "When the heirs, devisees, or legatees shall to what ex have received real or personal estate, and shall be liable for any h,^ elre debts as mentioned in this chapter, they shall be liable in propor- tion to the estate they may have respectively received; and the creditor may have any proper action or suit in law or equity, and shall have a right to recover his claim against a part or all of such heirs, devisees or legatees, to the amount of the estate they may have respectively received, but no such action shall be maintained, unless commenced within one year from the time the claim shall be allowed or established. 1407 (4473.) Sec. 54. If, by the will of the deceased, any part oontribut'n of his estate, or any devisees or legatees, shall be made exclusively e c ' liable for the debt, the devisees or legatees shall be liable to contrib- ute among themselves only according to the will. 1407 (4474.) Sec. 55. If all the persons liable for the payment when an of any such debt shall not be included in the action or suit as wenot h> i p ■ -in ill* i- eluded in defendants, the suit or action shall not thereby be m any way dis- suit, others missed or barred; but the court before which it shall be pending brought in. may order any other parties brought in, by any proper process, and may allow such amendments as may be necessary to make them defendants, on such terms as the court shall prescribe. 1407 (4475.) Sec. 56. If more than one person shall be liable as Proeeedin , rs aforesaid, and the creditor shall bring a suit in chancery against all "' chancer J • 16 122 COMMISSIONERS ON CLAIMS. or a part of the persons so liable, and the persons liable shall dis- pute the debt or the amount claimed, the court of chancery may- order an issue to be formed, and direct that the amount may be ascertained by a jury in the circuit court of the county in which the estate is settled; and] the court of chancery shall ascertain and determine how much each is liable to pay, and may award execu- tion therefor. when estate 1 1407 (4476.) Sec. 57. If any of the heirs, devisees, or legatees OI (it. C6£LS€ i- 1 heir etc., shall dje without having paid his just share of the debts, his estate shall be liable therefor, as for his own debt, to the extent to which he would have been liable if living. contribufn. 1407 (4477.) Sec. 58. "When any of the heirs, devisees, or lega- tees shall pay more than his share of such debt, the other persons liable shall be holden and compelled to contribute their just propor- tion of the same, as is provided in the case of devisees and legatees in the preceding sixty-eighth chapter, if appoint- 1408 (4478.) Sec. 59. If the, appointment of commissioners to missioneers allow claims shall in any case be omitted, the judge of probate shall ciaimantsnot perform the duties devolving upon such commissioners by law, from suing, [and] no person, having any contingent or other lawful claim against a deceased person, shall thereby be prevented from prose- cuting the same against the executor, administrator, heirs, devisees, or legatees, as provided by law, and in such case a claimant having a lien upon real or personal estate of the deceased, by attachment previous to his death, may, on obtaining judgment, have execution against such real or personal estate. Noactionto 1408 (4479.) Sec. 60. In no other case, except such as are ted agufnst expressly provided for in tn is chapter, shall any action be com- etc., except menced or prosecuted against an executor or administrator; nor as provided - ,, •< n t- j. — i in this chap- snail any writ of attachment or execution issue against such exec- utor or administrator, or against tie estate of tne deceased in his hands, during the time allowed nim for the payment of debts, except in the case provided' for in tte preceding section. See Manning v. Drake, and otters, 1 Mich., 34. GUAJBDJANS. 123 APPOINTMENT OF GUARDIANS. 1479 (4810.) Section. 1. The judge of probate in each county, judge of when it shall appear to him necessary or convenient, may appoint appoint may guardians to minors and others, being inhabitants or residents in u Mich. 249. the same county, and also to such as shall reside without the State and have any estate within the same. It has been decided under a statute similar to 0. L. 1654 (5677) that a surrogate may appoint any of his relatives to act as guard- ian, where the relative has no interest in the subject matter of the proceeding. Underbill v. Dennis, 9 Paige, 205; In matter of Hopper, 5 Paige, 489. Such appointments however should be made with caution, and only upon the request or consent of all persons interested. Prima Facie the residence or domicil of the minor is that of his parents or the survivor of them. Brown v. Lynch, 2 Bradl, 214 ; Matter of Hughes' Infant, 1 Tucker (N. Y. Sur.), 38 ; Schouler's Domestic Rel., 412. The residence must be actual, not legal, to confer jurisdiction. Matter of Pierce, 12 How. Pr., 532 ; Ex'p. Bartlett, 4 Bradf., 221. In case of the separation of the parents, the residence of the mother is prima facie the residence of their children under twelve years of age ; and the residence of the father is prima facie the residence of all their children of the age of twelve years and upwards. L. 1873, p. 482, Act No. 192 ; Schouler's Domestic Rel.,- 406. An infant cannot himself change his residence. Parents may change the residence of their minor children, as may also a guardian acting in good faith. Letters of guardianship obtained in the wrong county are null and void, and may be collaterally impeached in any court. Schouler's Dom- estic Rel, 412 and 452. A petition should be filed as per form given, by the father, mother, next of kin, or some friend of the minor. If the petition is made by the father, or in case of his death by the mother, no notice need be given to other parties interested. See Sec. (4814) below. Schouler's Domestic Rel., 420. If the father of the minor' 124 GUARDIANS. or in case of his death the mother, should request or consent in writing by letter or otherwise, to the appointment of any particu- lar person guardian of the person and estate of their children, there would seem to be no necessity for giving notice to other persons interested. If the petition is made by any other person, while the father or mother are living, a citation must be issued to be personally served upon the father and mother or the survivor of them in case of the death of either, requiring them to appear and show cause if any, why a guardian should not be appointed. No- tice may be given to the parents by publication, in case it is not possible to serve them with citations. In case both parents are deceased, notice of the application should be given to all other persons interested by publication or citation, and the citation should be used as far as possible. Taff v. Hosmer, 14 Mich., 249 ; Tong v. Marvin, 26 Mich., 35 ; More- house v. Cooke, Hopk. Ch. 226. A person who is not a resident of the county or State may be appointed guardian, but it is seldom done, and it is not good prac- tice, especially if they reside out of the State. The sureties on the guardian's bond must be residents of the State, and should be res- idents of the county. Schouler's Domestic Rel., 419. Neither an infant nor guardian, while the infancy continues, has authority to determine whether a voidable contract of the infant shall be affirmed or annulled, but such matters must be determined by the infant after he becomes of age. Dunton v. Brown, 31 Mich., 182. Where a minor has been adopted into a family and performed labor for his adopted father as a child would for a parent, in the absence of any agreement or understanding to that effect, he would not be entitled to recover for services thus performed dur- ing his minority; but where such services have been performed under an understanding or agreement that they were to be paid for, they would constitute a valid consideration for a subsequent promise to pay. Sword v. Keith, 31 Mich., 24V. s The parents are guardians by nature, and as such have control of the person of their minor child, but this gives them no con- control over the minor's property. If the minor has any property, a guardian must be appointed by the court to take charge of, and manage it. Schouler's Domestic Rel., 391 and 344. nom- inate guard- ians. GUARDIANS. 125 For assessment of property of minors and others under guard- ianship, see C. L. 362 and 368. Minors may deposit moneys in savings banks the same as per- sons of full age. C. L. 733 (2249.) Parents or guardians may take and hold shares in building and saving associations in behalf of minors. C. L. 939 (2828.) 1480 (4811.) Sec. 2. If the minor is under the age of fourteen W hoto years, the judge of probate may nominate and appoint his guard ian, and if he is above the age of fourteen years, he may nominate Mich™ e is3. his own guardian, who, if approved by the judge, shall be appoint- ed accordingly. The judge of probate has full control over the nomination and appointment of guardians, but such nomination and appointment should only be made after notice to all persons interested, as indi- cated under last section above, and the court should listen to all suggestions by parties interested, and should appoint some person satisfactory to the nearest relatives to the infant, if possible. Taff v. Hosmer, 14 Mich., 356; Schouler's Domestic Rel., 416. The nominations of minors over fourteen years of age should always be carefully and critically examined. Persons of that age are very liable to be influenced by improper persons. The judge of probate should take more than an official interest in these matters, as he stands in a measure in the place of the parents, and the future happiness and welfare of the minor may depend largely upon his judicious action. It is decided in case of Palmer v. Oakley, 2 Doug. (Mich.) 433, that a married woman with the assent of her husband might act as guardian, and if appointed without his assent, her acts would be valid until she is removed. The assent of the husband will be presumed unless his dissent expressly appears. Where an administrator is also guardian of one of the minor heirs, and in any proceedings his double trust becomes hostile to the interests of the minor, a guardian ad litem should be appointed. Townsend v. Tallant, 33 Cal., 45. In regard to disaffirmance of a deed by a minor, see Prout v. Wiley, 28 Mich., 164. For manner' of conducting suits for and against infants see C L. 1835 (6530.), etc., and also Schouler's Domestic Rel, 462. The 126 GUARDIANS. guardian may submit to arbitration controversies in r.egard to the interests and property of his ward, and he may compromise mat- ters affecting the interests of his ward if he acts with the utmost good faith and discretion. SchouJer's Domestic Rel., 463. The guardian may, without the order of the court, pay the interest upon mortgages on the land of his ward, and in good faith may use the personal estate of his ward to pay off such incumbrances, and also judgment debts, and he may redeem his ward's estate .from foreclosure. The guardian may invest the personal estate of his ward in real estate, under the order and direction of the court, Sehouler's Domestic Rel, 467. The judge of probate may appoint a guardian ad litem for an infant upon his own motion, whenever he shall deem it necessary, without the consent of the minor even when he is over fourteen years of age. Brick's Estate, 15 Abb. Pr. 12. in whatcase *^° (4812.) Sec. 3. If the guardian nominated by such minor nominate ■ s ^ a ^ not ^e a PP r °ved by the judge, or if the minor shall reside out of this State, or if, after being cited by the judge, he shall neglect for ten days to nominate a suitable person, the judge may nominate and appoint the guardian; in the same manner as if the minor were under the age of fourteen years. It will be seen by this section that the judge of probate is not obliged to adopt the nomination of the minor over fourteen years • of age, so that in all cases he is the final arbiter in the matter. In case the minor shall reside out of the State, notice of appointment of guardian must be given as required by C. L. See. (4842.) In case a citation is issued, it should require the minor to appear at the probate office, and within ten days after the return day of the citation nominate his guardian. The judge of probate cannot nominate and appoint a guardian for a minor over fourteen, without first citing him to appear and choose his own guardian. If upon the hearing, after citation, the court determines the minor to be under fourteen, a nomination and appointment by the court will be valid until reversed, although he is over that age. An appointment without citation is void for want of jurisdiction, and a sale of land by a guardian so appointed would not divest the title of the minor. Palmer v. Oakley, 2 Doug. (Mich.), 433. GUARDIANS. 127 1480 /48l#.)> Sae. 4. When such minor, being above the age of whennom- iii-T t •! ti <• ma tion n^y fourteen years, snail reside more than ten miles from the place of be certified . by justice of holding the probate court, his nomination of a guardian, made in the peace, writing and signed by himself, may be certified to the judge of probate by a justice of the peace, or by the township clerk of the township in which such minor resides, which shall have the same effect as if made in the presence of the judge; Provided, That if such minor shall be temporarily away from this State, in any 6ther State or Territory of the United States, such nomination when to b6 may be certified with like effect by any civil or military officer of of testate, the United States in such State or Territory, holding a commis- sion 1 from the President of the United States or the G-overnor of this' State. 1480 (4814.) Sec: 5. The" father of the minor, and in case of whoentitra his decease, the mother, being respectively competent to transact of minor. ,J - 14 Mich. 249. their own business, and not otherwise unsuitable, shall be entitled to the Custody of the person of the minor, and to the care of his education. The parents and next of kin are' entitled to notice of the pe- tition for the appointment of a guardian for minors. TafE vs. Hosmer, 14 Mich., 249 ; Tong vs. Marvin, 26 Mich., 35. See also notes above undef Sec. (4810) ; and (4811.) This section would seem to give the parents the first right to the' guardianship of their children. The court may reject the parents and appoint others, if they are determined to be unsuitable after a- full- hearing. The surviving mother may be guardian until she majrrieSj and may then continue in the office with the assent of her husband. Palmer vs. Oakley, 2 Doug., (Mich.) 433. I* 1873, p. 482:. Act No. 192, Section 1. The People of the ' r ' ' r J Care and State of Michioan enact. That in case of the separation of hus- custody of J J ' r minor child- band and wife, having minor children, the mother of said children ran when 7 ° 7 husbandand shall be entitled to the 1 care amd custody of all of such children *¥» ae P a - J rate. under the age of twelve years; and the father of such children shall be entitled to the care and custody of all of such children of the age of twelve years and over : Provided, That nothing in this p rov iso. act shall prevent amy court of competent jurisdiction from making and' enforcing any such order or orders as it may deem just and- proper as to the care and custody of such minor children, in 128 GUARDTA.N8. the same manner and with like effect as it could if this act had not been passed. Approved April 29, 1873. Wheng'ard- 1480 (4815.) Sec. 6. If the minor have no father or mother custod/of" living and competent to have the custody and care of the educa- tion of such minor, the guardian so appointed shall have the cus- tody and tuition of his ward. It would seem from the reading of this and the preceding sec- tion (4814,) that the parents were to have the custody of the person of the minor, and the care of his education, even after the appoint- ment of a general guardian, unless after a hearing, the court determines that the parents are unsuitable to have the charge of their children, and in the order appointing the guardian expressly gives the guardian the custody of the person of the minor and the care of his education. Powers and 1480 (4816.) Sec. 7. Every guardian appointed as aforesaid guardians, shall have the care and management of the estate of the minor, 3 1 4 ,,. , »„„ and shall continue in office until such minor shall arrive at the aee 15 Mich. 226. ° Har. ch. r. f twenty-one years, or until the guardian shall be discharged according to law. , See Sec. (4836.) The guardian should not be discharged and his bond cancelled until his final account is rendered and allowed. Three weeks notice of the hearing of the account should be given by publication same as in case of executors, etc. "When the minor becomes of age he may settle the matters of his estate with the guardian, without the intervention of the court. When such a settlement is made the" guardian need not render an account, but should be discharged on presenting to the court the receipt in full of the minor for all his property and estate. Hooper vs. Hooper. 26 Mich., 435. A guardian cannot be removed without cause. The petition for removal should be made by the next of kin if there are any, and notice of the hearing of the petition should be given to the guardian. "When the minor arrives at the age of fourteen years, he may come into court and nominate another guardian, who may be ap- pointed without notice to the former guardian in a case where this GUARDIANS. 129 course seems best. It is best however, upon such nomination being made, to cite the former guardian to render his account and be discharged, and not make the second appointment until this is done. Schouler's Domestic Rel., 430 to 432. The guardian has the care and management of the estate of the minor, and with a few exceptions has the same control over it as he has over his own property. He must observe the strictest fidelity and good faith in all his dealings; he should keep his ward's estate entirely separate from his own, and his every act connected there- with should be done in his name as guardian; he should make his bank deposits of his ward's money as guardian, sign all receipts and other papers as guardian, etc. ; he must exercise such diligence and prudence as prudent men exercise in the ordinary affairs of life; he must keep the moneys of his ward safely invested, and must obtain as much income as is consistent with proper use, from the real estate and other property of the ward. The guardian has control of his ward's real estate, and may lease the same. This is important now that executors and administrators have no longer control of the real estate of the deceased. The guardians may keep the ward's premises in repair; but should not make perma- nent improvements without the order of Court. The guardian may use a reasonable portion of the income from the estate, for the ward's support and education ; but it is always best to have the court make an order in writing, specifying how much and for what purpose the income shall be used, before making any ex- penditures. Schouler's Domestic Rel., 457 and 461 to 479. 1481 (4817.) Sec. 8. Every such guardian shall give bond, Bond of t guardian. with surety or sureties, to the judge of probate, m such sum as 2 Doug, the judge shall order, with condition as follows: 15 Mich. 226. First. To make a true inventory of all the real estate, and of all the goods, chattels, rights and credits of the ward, that shall come to his possession or knowledge, and to return the same into the probate court at such time as the judge shall order; Second. To dispose of and manage all such estate and effects according to law, and for the best interest of the ward, and faith- fully to discharge his trust as such guardian; Third. To render an account, on oath, of the property in his hands, including the proceeds of all the real estate which may be 17 130 GUARDIANS. Bonds when not deemed sufficient unless ap- proved by judge, etc. Judge of probate to notify exec- utors and guardians to appear and render account. Notice of meeting for purpose of hearing account. Failure tc appear or give account cause for re- moval. sold by him, and of the management and disposition of all such property, within one year after his appintment, and at such other times as the judge of probate shall direct; and: Fourth. At the expiration of his trust, to settle his accounts with the judge of probate, or with the ward, or his legal represen- tatives, and to pay over and deliver all the estate and effects re- maining in his hands, or due from him on such settlement, to the person or persons who shall be lawfully entitled thereto. 1562 (5215.) Sec. 24. No bond required by law to be given to the judge of probate, to be filed in his office, shall be deemed sufficient unless it shall have been examined and approved by the- judge, and his approval thereof indorsed thereon in writing, and signed by him. L. 1873, p. 127, Act No. 95, Section 1. TJie People of the State of Michigan enact, That it shall be the duty of the judge of pro- bate of any county in this State to notify and require all persons appointed executor or administrator of any estate, or guardian of any minor children, or of any incompetent person within his county, to appear at his office within one year from the date of their ap- pointment as such administrator, executor, or guardian, and at least once in each year thereafter during the continuance of the administration or guardianship, and at such other time as he may direct, to render unto him an accurate account of all moneys and other property in their hands as such executor, administrator or guardian, and the proceeds and expenditure thereof. Sec 2. The judge of probate shall give at least two weeks' notice of the time and place of meeting for the purpose of hearing such account, which notice shall be personally served upon such administrator, executor, or guardian; and to all other persons interested in said estate, such notice may be given personally or by publication under the direction of said judge of probate. Sec. 3. In case any such executor, administrator, or guardian shall fail to appear at the time and place specified in the notice, or to render to the judge of probate a satisfactory statement of his accounts, then it may be lawful and shall be the duty of the judge of probate to remove such executor, administrator, or guardian, and to appoint some suitable person in his place, who shall give the same bonds, discharge the same duties, and be liable to the same penalties as is now provided by law. GUARDIANS. 131 Approved April 15, 1873. Three appraisers are required. See Sec. (4834.) The executor or administrator of a deceased guardian may ren- der his final account as guardian, and transfer the property of the ward to his successor. Schouler's Domestic Rel., 426; 3 Redfleld on Wills, 459. A person who has been under guardianship is bound by notice of the various proceedings and files in the probate court relating to his estate ; such a person cannot claim that any fact concerning the guardianship accounts has been concealed from him, which he could have ascertained from the files and records in the probate office. Robert vs. Morrin, 27 Mich., 306. The sureties are not bound unless the guardian signs the bond. Any material alteration of the bond after it is executed, releases the sureties. If two guardians execute a joint bond, each is res- ponsible for all the acts of the other. The sureties on the special bond given on the sale of real estate should be held responsible for any misappliction by the guardian, of the proceeds of the sale. Schouler's Domestic Rel, 493. In Massachusetts the sureties on the general bond are held liable for any such misapplication. Smith's Probate L., 237. The sureties must be residents of the State, and they ought to be resi- dents of the county where the appointment of the guardian is made. Schouler's Domestic Rel., 419. The penal sum in the bond should be double the amount of the personal property and the income of the real estate. Where there are several minors, one bond will be sufficient for all, though separate bonds for each may be required. The sureties are liable as long as the guardian is liable, and his resignation or death does not terminate their liability. Where the guardian files an addi- tional bond the sureties on both bonds are liable for any default in proportion to the penal sums in the bonds. Where the sure- ties on the original bonds are released and a new bond substituted, the sureties on both bonds are liable as co-sureties for any default previous to the approval of the new bond, and the sureties on the new bond are alone liable for any subsequent default. Schouler's Domestic Rel., 489 to 492. See, however, Paw Paw v. Eggles- ton, 25 Mich., 36, which would hardly seem applicable to bonds of 132 GUARDIANS. this nature. See also L. 1875, p. 47, Act No. 50, and p. 191, Act No. 162, Sec. 4. A probate bond may be good, if substantially in compliance with the statute. Schouler's Domestic Eel., 490. The personal representative of a deceased guardian should render the guardian's final account, and sometimes the adminis- trator of the deceased, surety of a guardian, may render the guardian's final account. Schouler's Domestic Eel., 498. When ex- 1481 (4818.) Sec. 9. If any minor, who has a father living, has ucatfonto' " property, the income of which is sufficient for his maintenance from income and education, in a manner more expensive than his father can of minor. y reasonably afford, regard being had to the situation of the fath- er's family, and to all the circumstances of the case, the expenses of the education and maintenance of such minor may be defrayed out of the income of his own property, in whole or in part, as shall be judged reasonable, and shall be directed by the probate court, and the charges therefor may be allowed accordingly in the settlement of the accounts of his guardian. See Schouler's Domestic Eel., 458. Appoint- 1481 (4819.) Sec. 10. Every father may by his last will in writ- guardian by ing appoint a guardian or guardians for any of his children, whether 19 vvend. ie. born at the time of making the will or afterwards, to continue 23 Barb. 465. during the minority of the child, or for any less time ; and every such testamentary guardian shall have the same powers, and shall perform the same duties, with regard to the person and estate of the ward, as a guardian appointed by the judge of probate. The testator can only appoint a guardian for his own children; he cannot for other children, although he gives them his property. Gilbert v. Hebard, 8 Met. 127. It will be noticed that the appointment of testamentary guar- dians is confined to the father, but it would seem that this term should also include the mother considering, C. L., 92, Sec. 2, and the statutes and decisions giving married women power to make a will, testa- 1481 (4820.) Sec. 11. Every such testamentary guardian shall men rdSn to gi ve bond in like manner, and with like condition, as is hereinbefore give bond. re q U i r ed of a guardian appointed by the judge of probate: Pro- Proviso 1'i'ilril, That when the testator, in the will appointing the guardian, GUARDIANS. 133 shall have ordered or requested that such bond shall not be given, the bond shall not be required, unless, from a change in the situa- tion or circumstances of the guardian, or for other sufficient cause, the judge of probate shall think proper to require it. See Sec. (4817) above. On the filing and approval of this bond, letters of . guardian- ship should issue the same as in other cases, except that they should recite the fact that the person was duly appointed guardian by the will of the deceased person, naming him. A duly certi- fied copy of the will should be attached to the letters of guardian- ship. As a will does not become operative until it is admitted to probate, the appointment would not be in force until the will is proved and the b.ond given as required by this section. A firm cannot be made guardian of an infant, nor probably can a corpor- ation. Schouler's Domestic Rel, 409. The will may confer pow- ers upon the guardian in addition to those conferred by statute. Schouler's Domestic Rel., 408. 1482 (4821.) Sec. 12. Nothing contained in this chapter shall Powers 0( impair or affect the power of any court of common law, probate pointguarf- court, court of chancery, or court of a justice of the peace, to ap- Mmids to ii>-ii- !>■ -ill- i prosecute or point guardians to defend the interests of minors impleaded m such defend suits, etc. court, or interested in any matter there pending, nor their power to appoint or allow any person, as next friend for a minor, to commence, prosecute, or defend any suit in his behalf. GUARDIANS FOR INSANE AND INCOMPETENT PERSONS. 1482 (4822.) Sec. 13. "When the relations or friends of any Application . ' ' for guardian insane person, or of any person who, by reason of extreme old of insane age or other cause is mentally incompetent to have the charge and il 1 " ass -. 222 - management of his property, shall apply to the judge of probate Sec. 19. to have a guardion appointed for him, the judge shall cause a notice to be given to the supposed insane or incompetent person, of the time and place of hearing the case, not less than fourteen days before the time so appointed. 92 (7.) The words " insane person," shall be construed to include an idiot, a non compos, lunatic, and distracted person. Upon filing the petition, the judge should issue a citation, which ought to recite the nature and substance of the petition, 134 GUARDIANS. Appoint- ment of guardian. Special guardian. Powers of. Te:-ms of of- fice. and also contain a direction that it be served upon the alleged incompetent person personally, fourteen days before the return day therein mentioned. Notice by publication should never be given in these cases, because it would then be very easy for the evil disposed to take advantage of infirm and weak minded per- sons, and rob them of their property. 148'.! (4823.) Sec. 14. If after a full hearing and examination, upon any such application, it shall appear to the judge of probate that the person in question is incapable of taking care of himself and managing his property, he shall appoint a guardian of his person and estate, with the powers and duties hereinafter speci- fied: Provided, That the judge of probate of any county, upon a proper showing, upon such notice as he shall direct, pending any application for the appointment of a general guardian as afore- said, or pending any appeal or litigation in relation to the appoint- ment of such general guardian, may, if he shall deem it fit and proper under the circumstances of the case, appoint a special guardian of such person. Such special guardian shall be vested with the powers and duties, and shall give the security, specified in the next section. He shall hold his office until the question of appointment of a general guardian be decided, or till he shall be discharged by the judge of probate; and from the appointment of such special guardian there shall be no appeal. This section requires that some testimony should be taken by the court upon the question of incompetency. The appointment should not be made upon the failure of the alleged incompetent person to appear, or upon his consent to the appointment, "But in all cases some testimony must be taken. In cases presenting any doubt the clearest evidence should be required. The court, in all this class of cases, should act with the utmost diligence and cau- tion. If a petition is filed for the appointment of a special guard- ian a citation should be issued returnable as soon as possible, to be served personally upon the alleged incompetent person. Some testimony should be taken in- regard to his incompetency. As there is no appeal from this appointment, great care must be exer- cised in selecting the guardian, and he should be required to give the most satisfactory sureties on his bond. The special guardian may lease the lands of his ward, but can- not create a term thereby which should extend beyond the life of GUARDIANS. 135 the ward. Campau v. Shaw, 15 Mich. 226. If the guardian resigns or is discharged before the ward becomes sane or compe- tent, the same notice must be given to the incompetent person, and the same proceedings in all respects must be taken, before a successor can be appointed, as is required to authorize the appoint- ment of an original guardian. Allis v. Morton, 4 Gray, 63. 1482 (4824.) Sec. 15. Every guardian so appointed as provided p owersam i in the preceding section, shall have the care and custody of the such guard- person of his ward, and the management of all his estate, until 15 Mich. 226. such guardian shall be legally discharged ; and he shall give bond to the judge of probate, in like manner and with the like condition, as is before prescribed with respect to the guardian of a minor. The same form of bond should be used as provided in Sec. (4817.) Before the guardian is discharged he should render his final account. In case the ward becomes sane, he can settle the matters of his estate with his guardian without having the guard- ian's accounts passed upon by the court. Hooper v. Hooper, 26 Mich., 435. The law as declared by this case must prove disas- trous to the interests of all wards, and particularly insane persons. A statute should be passed providing that no guardian shall be released from the liabilities of his trust, until his accounts are duly heard and allowed by the probate court. It would be well also to provide that no insane or incompetent person or spend- thrift shall be released from guardianship without the order of the probate court after a full hearing in the matter. The special guardian has the same rights and powers as a gen- eral guardian over the ward and his estate. Campau v. Shaw, 1 5 Mich., 231. The guardian may be discharged on his own appli- cation or the application of his ward or any person interested, whenever the court is satisfied that the ward has become compe- tent to have the charge and management of his own estate. C. L. Sec. (4837.) Lunacy of the principal operates as a revocation of an agency, unless it is coupled with an interest vested in the agent. 1 Par- sons on Contracts, 71 note. GUARDIANS FOR SPENDTHRIFTS. 1483 (4825.) Sec. 16. "When any person by excessive drinking, when guar- or by gaming, idleness, or debauchery of any kind, shall so spend, a^inted 136 GUARDIANS. forspend- waste, or lessen his estate, as to expose himself or his family to thrift. , . , , danger of want or suffering, or the county to charge or expense 12 Pick. 152. f° r the support of himself or his family, any superintendent of the poor of the county, or director of the poor, or justice of the peace of the township of which such spendthrift is an inhabitant, or in which he resides, may present a complaint to the judge of probate, setting forth the facts and circumstances of the case, and praying to have a guardian appointed for him. 1486 (4848.) Sec. 39. The word "spendthrift" in all the provi- sions relating to guardians and wards contained in this or any other statute, is intended to include every person who is liable to be put under guardianship on account of excessive drinking, gaming, idleness, or debauchery. This section provides that certain officials may make the com- plaint. The relatives and friends of the spendthrift may also make the complaint. Notice to 1483 (4826.) Sec. 17. The judge of probate shall cause notice to supposed . spendthrift, be given to such supposed spendthrift, of the time and place of hearing the case, not less than fourteen days before the time so appointed; and if, after a full hearing, it shall appear to the court that the person complained of comes within the description con- tained in the preceding section, he shall appoint a guardian of his person and estate, with the powers and duties hereinafter specified. The same notice and hearing is required as under sec. (4822) above. CopyoJcom- 1483 (4827.) Sec. 18. After the order for notice has been is- plaint may . # be flit d with sued, the complainant may cause a copy of the complaint, with the register of deeds. order for such notice, to be filed in the office of the register of 3 Pick. 229. & deeds for the county, and if a guardian shall be appointed upon such application, all contracts, except for necessaries at reasonable prices, and all gifts, sales, and transfers of real or personal estate, made by such spendthrift after the filing of a copy of such com- plaint and order as aforesaid, and before the termination of the guardianship, shall be utterly void. Allowance 1483 (4828.) Sec. 19. When a guardian shall be appointed for oTdtfendtag an insane person or a spendthrift, the judge shall make an allow- ance, to be paid by the guardian, for all reasonable expenses in- curred by the ward in defending himself against the complaint. GUARDIANS. 137 1483 (4829.) Sec. 20. Every guardian appointed for a spendthrift Powers and duties of shall have the care and custody of the person of the ward, and guardian of spendthrift. the management of all his estate, until the guardian shall be le- 5 Mass. 427. gaily discharged; and he shall give bond to the judge of probate, in like manner, and with like condition, as is hereinbefore di- rected with respect to the guardian of an insane person. The guardian has the same powers and duties as indicated above in case of guardians for incompetent persons. For form of bond see Sec. (4817) above. 1483 (4830.) Sec. 21. Every guardian appointed under the pro- Guardian to visions of this chapter, whether for a minor or any other person, ward out of his estate. J shall pay all just debts due from the ward out of his personal es- tate and the income of his real estate, if sufficient, and if not, then out of his real estate, upon obtaining license for the sale thereof, and disposing of the same in the manner provided by law. 1484 (4831.) Sec. 22. Every such guardian shall also settle all Guardian to accounts of the ward, and demand, sue for, and receive all debts counts and , ,. .,, ,. „ . . , . collect debts due to him, or may, with the approbation of the judge of pro- of ward, bate, compound for the same, and give a discharge to the debtor, on receiving a fair and just dividend of his estate and effects; and he shall appear for and represent his ward in all legal suits and proceedings, unless where another person is appointed for that purpose as guardian or next friend. When the guardian desires to compound a claim in favor of his ward, he should proceed in same manner as in case of deceased persons under C. L. 1393 (4411,) and same petition may be used. 1484 (4832.) Sec 23. Every guardian shall manage the estate How estate to be man- of his ward frugally and without waste, and apply the income and aged, profits thereof, as far as may be necessary, for the comfortable and suitable maintenance and support of the ward, and his fam- ily, if there be any; and if such income and profits shall be in- sufficient for that purpose, the guardian may sell the real estate, upon obtaining a license therefor as provided by law, and shall apply the proceeds of such sale, so far as may be necessary, for the maintenance and support of the ward, and his family, if there be any. The guardian should first expend the income of his ward's es- tate for his support; if this proves insufficient, he should next use 18 138 GUARDIANS. the principal of the personal property, and lastly should make ap- olication to sell the real estate for that purpose. The guardian may expend the income of the estate for the support of the ward without having obtained an order for that purpose of the court, but cannot use the principal without a previous order. It is best in all cases to have the court, by an order, fix the amount that the guardian shall spend for the support of his ward. Schouler's Domestic Eel, 457. Guardian 1484 (4833.) Sec 24. The guardian may join in and assent to ^partition a partition of the real estate of the ward, in the cases and in the dowCT. Slgn manner provided by law, and he may also assign and set out dower in the said estate to any widow entitled thereto. A raia l of HSi (4834.) Sec. 25. Upon the taking of any inventory re- estate. quired by this chapter, the estate and effects comprised therein shall be appraised by three suitable persons, to be appointed and sworn in like manner as is required with respect to the inventory of the estate of a deceased testator or intestate ; and every guard- Personaiea- ian shall account for and dispose of the personal estate of the tatehowdis- . . posed of. ward, in like manner as is directed with respect to executors and administrators. For manner of appointing appraisers and preparing the inven- tory, see inventory in estates of deceased persons. Transfer of 14 84 (4835.) Sec. 26. The judges of probate in their respective stocks, etc. counties, on the application of a guardian, or of any person inter- ested in the estate of any ward, after such notice to all persons interested therein as the judge of probate shall direct, may author- ize or require the guardian to sell and transfer any stock in pub- lic funds, or in any bank or other corporation, or any other per- sonal estate or effects held by him as guardian, and to invest the proceeds of such sale, and also any other moneys in his hands, in real estate, or in any other manner that shall be most for the interest of all concerned therein; and the said probate court may make such further orders, and give such directions, as the case may require, for managing, investing, and disposing of the estate and effects in the hands of the guardian. Removals 1485 (4836.) Sec. 27. When any guardian, appointed either tionsof by a testator or the judge of probate, shall become insane or oth- guardians. i Kernan, erwise incapable of discharging his trust, or evidently unsuitable GUARDIANS. 139 therefor, the judge of probate, after notice to such guardian and all others interested, may remove him; and every guardian may, upon his request, be allowed to resign his trust, when it shall ap- pear to the judge of probate proper to allow the same ; and upon every such resignation or removal, and upon the death of any guardian, the judge of probate may appoint another in his place. The guardian must render his final account before being dis- charged. See notes under Sees. (48 16) and (4817) above. A guardian cannot be removed without cause shown. A guardian cannot be removed without previous notice, as required by this section, and a new appointment, made after the removal of a former guardian without previous notice, would not be valid. Schouler's Domestic Eel,, 430 and 431. For causes which the courts have decided to be sufficient to authorize the removal of a guardian, see Schouler's Domestic Rel., 430. 1485 (4837.) Sec. 28. The marriage of any female who is un- jiarrWe f der guardianship as a minor shall terminate such guardianship ; tlrminatef 1 and the guardian of any insane person, spendthrift, or other per- UJJJj ^£" son may be discharged by the judge of probate when it shall ap- ^.aitf ° pear to him, on the application of the ward or otherwise, that such guardianship is no longer necessary. A new guardian should be appointed to have the care and man- agement of the estate of the female minor after marriage, and the husband need not, and in many cases should not be appointed. 2 Kent's Com., 251, note. The above statute was passed, when the husband had entire control of the estate of his wife, so that, upon the marriage of a female ward, there was no longer any necessity for a guardian. But now, in this State, as the husband has no control over the estate of his wife, a new guardian must necessa- rily be appointed, to control and manage the estate of the married minor until she becomes of age. See C. L., 1477, (4803.) It would be well to amend the above section by striking out the first sentence, and add to the section a provision, that the control of a guardian over the person of a male or female ward shall cease upon his or her marriage ; but that the guardianship of their es- tate shall continue until they become of age. At common law, the control of the guardian over the person of a male or female ward, ceases upon the marriage of the ward; ian in certain casee 140 GUARDIANS. but the guardian would still have the control and management of the estate of a male ward until he becomes of age. Schouler's Domestic Rel., 425. Whennew 1485 (4838. ) Sec. 29. The judge of probate may require a bond to be - . given, etc. new bond to be given by any guardian whenever he shall deem it necessary, and may discharge the existing sureties from future responsibility, after due notice given as such court may direct, when it shall satisfactorily appear that no injury can result there- from to those interested in the estate. Before the sureties are released the guardian should be required to render an account, showing the exact condition of the estate, and if there has been any default, the sureties should not be re- leased until it is made good. L. 1875, p. 47, Act No. 50, and p. 191, Act No. 162. For liability of sureties, see notes Under Sec. (4817) above. 1485 (4839.) Sec. 30. Any bond given by a guardian may be putin suit. p U t m su it by or( i er f the judge of probate, for the use and ben- efit of the ward, or of any person interested in the estate; and the proceedings in such suit shall be conducted in like manner as is provided with respect to suits on the bonds of executors or ad- ministrators. „„ , . , 1485 (4840.) Sec. 31. No action shall be maintained against Within what v ' ° time action the sureties in any bond given by a guardian, unless it be com- eSes 18 ' 8 ™" mence( i within four years from the time when the guardian shall Proviso. have been discharged ; Provided, That if at the time of such dis- charge the person entitled to bring such action shall be out of the State, or under any legal disability to sue, the action may be com- menced at any time within four years after the return of such person to the State, or after such disability shall be removed. 1485 (4841.) Sec. 32. Upon complaint made to the judge of in case of probate by any guardian, or by the ward, or by any creditor or 6 Ql D6ZZ1G " ment, etc. ther person interested in the estate, or by any person having any prospective interest therein, as heir or otherwise, against any one suspected of having concealed, embezzled, or conveyed away any of the money, goods, or effects, or any instrument in writing, be- longing to the ward, the judge may cite and examine such sus- pected person, and proceed with him, as to such charge, in the same manner as is provided with respect to persons suspected of GUARDIANS. 141 concealing or embezzling the effects of a deceased testator or in- testate. 1486 (4842.) Sec. 33. When any minor or other person liable Guardianfor v ' # _ minora, etc., to be put under guardianship, according to the provisions of this residing chapter, shall reside without this State, and shall have any estate state - therein, any friend of such person, or any one interested in his estate, in expectancy or otherwise, may apply to the judge of probate of any county in which there may be any estate of such absent person; and after notice given to all persons interested, in such manner as the judge shall order, and after a full hearing and examination, if it shall appear to him proper, he may appoint a guardian for such absent person. See C. L., Sec. (4812.) A citation should be mailed to the minor, and if .any of the relatives of the minor are living near, they should be personally served with a citation, and at least three weeks' notice should be given by publication of the time and place appointed for hearing the application. 1486 (4843.) Sec. 34. Every guardian appointed according to Powers and . . , duties of the provisions of the preceding section, shall have the same pow- such eruard- ians. ers and perform the same duties with respect to any estate of the ward that shall be found within this State, and also with respect to the person of the ward, if he shall come to reside therein, as are prescribed with respect to any other guardian appointed by force of this chapter. 1486(4844.) Sec. 35. Every such guardian shall give bond to Bondofsuch the judge of probate, in bke manner, and with the like condition, guar lan ' as is hereinbefore provided with respect to other guardians, ex- cepting that the provisions respecting the inventory, the disposal of the estate and effects, and the account to be rendered by the guardian, shall be confined to such estate and effects as shall come to his hands in this State. 1486 (4845.) Sec 36. The guardianship which shall be first Extentof guardian- lawf ully granted, of any person residing without the State, shall ship of ab- sent minors, extend to all the estate of the ward within the same, and shall etc. exclude the jurisdiction of the probate court in every other county. 1486 (4846.) Sec 37. Every guardian shall be allowed the compensa- amount of his reasonable expenses incurred in the execution of dians. 142 GUARDIANS. his trust, and he shall also have such compensation for his serv- ices as the court in which his accounts are settled shall deem to he just and reasonable. Guardians are usually allowed the same compensation as exec- utors and administrators. Account of I486 (4847.) Sec. 38. When an account is rendered by two or c»ans SUar more joint guardians, the judge of probate may, in his discretion, allow the same upon the oath of any one of them. Excepted 362 C 9 ^.) Fourth. All personal property belonging to minors cases ' under guardianship shall be assessed to the guardian in the town- ship where he is an inhabitant, and the personal property of every other person under guardianship shall be assessed to the guardian in the township of which the ward is an inhabitant. Removal of L - 1872 > P- ^^ Act Na 4>i '■ Section 1. The People of the State non-resident °f Michigan enact That in all cases where any guardian and his thorized! ward may both be residents of any other State or Territory of the United States, and such ward may be entitled to property of any description in this State, such guardian, on producing to the pro- bate court or other court of competent jurisdiction of the county in which such property or the principal part thereof is situated, a full and complete transcript from the records of a court of compe- tent jurisdiction in the State or Territory in which he and his ward reside, duly exemplified or authenticated, showing that he has been appointed guardian of such ward, and that he has given a bond and security in the State or Territory in which he and his ward reside, in double the value of the property of such ward, and also showing to such court that he still remains such guard- ian, and that a removal of the property of such ward will not con- flict with the terms and limitations attending the right by which the ward owns the same, or be or become prejudicial to his inter- est therein, then such transcript may be entered of record in such court, and such guardian shall be entitled to receive letters or a certificate of guardianship of the estate of such ward from such court, which shall authorize him to demand, sue for, and recover any such property and remove the same to the place of residence of himself and his ward; and such court may order any resident guardian, executor, or administrator having any of the estate of Proviso. such ward to deliver the same to such non-resident guardian, Pro- GUARDIANS. 143 vided, All debts in favor of residents or citizens of this State known to exist against such estate, whether due or to become due, have been first paid or payment tendered; And provided also, That proviso, the benefit of this act shall not extend to any resident of any State or Territory in which a similar law to this does not now exist or may not hereafter be passed. Sec. 2. This act shall not apply to any case where the parent of when this rL J J r act will not the ward, being a resident of this State at the time of his death, apply, shall have appointed by last will and testament a guardian or guardians for said ward, and which guardian or guardians are still living and residing in this State; unless the assent of such testamentary guardian or guardians to the removal of said pro- perty shall be satisfactorily shown to the court to which applica- tion shall be made as hereinbefore provided. For authentication of records see C. L. p. 2251. There should be filed duly authenticated copies of the petition for the appointment of guardian, the bond, the order appointing guardian, and the letters of guardianship. The judge of the court making the appointment should also make and attach to the above authenticated copies of papers a certificate certifying that the bond is signed by good and sufficient sureties, and that the penalty in the bond is double the value of the property of the ward, and that the guardian and ward both reside in the State or Territory where the appointment is made; that the person making the appli- cation has been duly appointed guardian and still remains such guardian, and that the removal of the property of the ward from the State where it now is to the State where the guardian and his ward reside will not conflict with the terms and limitations attending the right by which the ward owns the same, or be or become prejudicial to his interests therein. The guardian should also file a petition as per form given. The guardian making the petition should procure a copy of the act or law similar to the law in this State upon this subject, duly authenticated as provided by the above statute of the United States, and also a certificate of the governor or secretary of State that the law is still in force. The usual printed volume contain- ing the law should also be admitted as prima facie, evidence that such a statute is in force. C. L. 1708 (5935.) 144 GUARDIANS. It then devolves upon the contestant to show that there is no such law in force in that State. Any other rule would render this statute practically inoperative. Greenleaf Ev., Sec. 489. The other facts alleged in the petition must be established by evidence if denied. For removal of personal property held in trust to other States see C. L. 1378 (4361.) GUARDIANS FOR INCOMPETENT MARRIED WOMEN. When judge 1488 (4851.) Section 1. The People of the State of Michigan enact, may r appoint That whenever any married woman, residing in any county of this "' " ""'* ''"' State, and owning real or personal estate, shall be insane, or men- tally incompetent to have the charge of her property, the judge of probate of the same county, when it shall appear to him necessary, may appoint a guardian for such incompetent or insane person, to have the care, custody, and management of her property, and may also, for the same purpose, appoint guardians for such married women, being insane or mentally incompetent as aforesaid, as shall reside without this State and have any estate within the Proviso. same: Provided, That, as against the rights of the husband, such guardian shall not be entitled to have the care and custody of the person of the ward. 92 (7.) The words "insane person,'' shall be construed to in- clude an idiot, a non compos, lunatic and distracted person. The husband should be the guardian, if he is clearly the most proper person ; if there is any doubt about it, some other person should be appointed. Proceeding's 1488 (4852.) Sec. 2. "When application shall be made for the cationfor 1 appointment of a guardian for a married woman who is insane or Sent of mentally incompetent to have charge of her property, the pro- ceedings upon such application and in the appointment of the guardian shall be the same in all respects as in the appointment of guardians for other insane persons ; and the rights, duties, and ob- Powersand ~ r ' & ' ' duties of ligations of such guardian, in relation to the care, custody, and disposal of the estate of the ward, shall be the same as are pro- vided by law in cases of guardians appointed by the probate court, for other insane persons. Notice of ap- 1488 (4853.) Sec 3. Whenever application shall be made, by plication to x ' rr be given to any person other than the husband, for the appointment of a GUARDIANS. 145 guardian under the provisions of this act, notice thereof shall be given the husband, in such manner as the judge of probate shall direct. Por such cases notice should be given to the husband of the proceedings by citation personally served. 19 146 CHANGE OF NAME. ADOPTION AND CHANGING NAME OF MINORS AND ADULTS. Adopted 1488 (4854.) Section 1. The People of the State of Michigan children. enac ^ That whenever any person shall have adopted any minor child, with the consent of the surviving parent, or the parents of such child, or, in case of orphanage, with the consent of the near- est of kin to such child, or of the principal officer of a public or incorporated orphan asylum, of which such child may have been an inmate, or of two of the" superintendents of the poor, or the directors of the poor, or of any authorized officers or agent of any institution, public or private, in this State or elsewhere, in whose care such orphan child may have been, and, if such child be above the age of seven years, then with the consent of such child, and shall desire to change the name of such child, and to Bestowal bestow upon him or her the family name of the person adopting iiyname am " such child, with intent to make such child his or her heir, the said person, together with his or her wife or husband, if any there be, and the surviving parent or next of kin of such child, or such officer of a public or incorporated orphan asylum, or superintend- ent or directors of the poor, or any authorized officer or agent of any institution, public or private, in this State or elsewhere, may make under their hands an instrument in writing whereby they Declaration s h a U declare that such child, naming him or her by the name he to be hi"'"" 1 or sne nas usually borne, is adopted as the child of such person or w tu>s ' persons first above referred to, and that he, she, or they, intend to make such child his, her, or their heir, and stating the full name they desire such child shall bear; and the execution of the said instrument shall be, by the persons so signing the same, acknowl- edged before any officer authorized by law to take acknowledg- ments of deeds; and thereupon the same may be presented to and where filed, filed with the judge of probate of the county where such person orderdf'pro- or persons adopting such child reside. Such probate judge, on bate court. ^eing sa ti s fied of the good faith of such proceeding, and that the CHANGE OF NAME. 147 person or persons adopting such child is or arc suitable to have charge thereof, shall make an order to be entered in the journal of the probate court, that such person or persons do stand in the place of a parent or parents to such child, and that the name of such child be changed to such name as shall be so designated in said instrument for that purpose; whereupon said child shall be thereafter known and called by said new name, and the said per- Effect there . son or persons so adopting such child shall thereupon stand in the of ' place of a parent or parents to such child-in-law, and be liable to all the duties, and entitled to all the rights, of parents thereto; and such child shall thereupon become an heir-at-law of such per- sons, the same as if he or she were in fact the child of such person or persons. First, the consent in writing of the parents or the surviving pa- rent must be obtained. If there are no parents, then any of the nearest of kin, or any of the public officers mentioned may con- sent. If the child is above the age of seven years and an orphan. its consent must also be obtained in addition to the consent of the officials, etc., named. Secondly, the husband and wife adopting the child, and the parents, if any, or one of the officials named, in case there are no parents, must make, execute and acknowledge an instrument in writing, whereby they shall declare that such child, naming him, is adopted as the child of such husband and wife, and that they intend to make such child their heir, and stating the full name they desire the child to bear. This instrument should then be filed in the probate court, together with the consent above men- tioned. The court may make an order that such child be adopted by such persons, and that such persons do stand in the place of parents to such child, and that the name of the child be changed from its original name to the name adopted. Little difficulty is experienced in carrying out the provisions of this section, because as a rule none but worthy persons will adopt poor children. For forms see Appendix. CHANGING THE NAME OF ADULTS. 1489 (4855.) Rec. 2. The probate court of any county of this p °™ a ™' State shall have power, by an order to be entered on its journal, ^""^° the to change the name of any adult person who has been one year a JJJJf 6 of " A ~ Publication 148 CHANGE OF NAME resident of such county, who may apply to such court in writing for that purpose, upon such person showing a sufficient reason for such proposed change, to the satisfaction of such court, and that such change is not sought with any fraudulent or evil intent; and provided that notice of intention to make such application shall be published six weeks prior to the making of such application, of notice. an( j £ QV three successive weeks in a newspaper printed and pub- lished in said county where the application is to be made, if there be one, or in a newspaper printed and published in an adjoining county, or in the nearest county in which a newspaper is or may be printed and published. Pee 1490 (4856.) Sec. 3. Such probate judge shall require of the person making the application under the second section of this act, to pay over to the county treasurer, for the use of the county, a fee of three dollars, and shall furnish to such applicant, if de- sired, a certified copy of the order made in such matter. The notice of intention to change the name of the applicant should have four weekly insertions in the newspaper, and the last insertion must be six weeks before the day fixed for hearing the application. For forms of notice, petition and order, see Appen- dix. The petition need not be filed until the day fixed for the hearing, and should allege the name and age of the petitioner, that he has resided in the county one year previous to making the application, and state fully all the reasons for the proposed change of name, and there must be a specific allegation that the proposed change of name is not sought with any fraudulent or evil intent. Evidence that the notice of intention to change the name of the applicant has been duly published, and also that he has paid the fee of three dollars to the county treasurer, must be filed with the court on the day of hearing. The judge of probate may act upon the sworn petition, or require further evidence, as he may deem best in each case. SALES OF REAL ESTATE. 149 SALES OF REAL ESTATE BY EXECUTORS AND ADMINISTRATORS TO PAY DEBTS. 1423 (4545.) Sec. 1. "When the personal estate of any deceased When real person, in the hands of his executor or administrator, shall be be sold for insufficient to pay all his debts, with the charges of administering debts, his estate, his executor or administrator may sell his real estate in. J 2 Mich. Eep. for that purpose, upon obtaining a license therefor, and proceed- 226, 531. ing therein in the manner hereinafter provided. 5 Mich. 119. D r 6 Mich. 506. Before license to sell real estate is granted, guardians should 19 Mich 29S - be appointed for all minor or incompetent heirs, if any, although the omission to do so does not render the sale void. Coon v. Fry, 6 Mich., 506; Holmes v. Beal, 9 Oush., 226. The debts must be the debts contracted by the deceased, and not debts contracted after his death. Dorman v. Tost, 13 111., 27; Fitzgerald v. Glancy, 49 111., 465. The widow's dower cannot be sold for any purpose without her consent. C. L. 1359 and 1392 (4406.) Except in cases of par- tition, C. L. 1783, 1785 and 1786. The homestead of deceased is exempt from the payment of his debts, as follows: 77 Sec. 3. The homestead of a family, after the death of the ibid, owner thereof, shall be exempt from the payment of his debts con- tracted after the adoption of this Constitution, in all cases during the minority of his children. Sec. 4. If the owner of a homestead die, leaving a widow but ibid, no children, the same shall be exempt, and the rents and profits thereof shall accrue to her benefit during the time of her widow- hood, unless she be the owner of a homestead in her own right. 1749 (6137.) Sec. 1. Be it enacted by the Senate and Souse o/ Homestead Representatives of the State of Michigan, That a homestead, consist- fxenmted nd ing of any quantity of land not exceeding forty acres, and the ArTwseJ.?' dwelling-house thereon and its appurtenances, to be selected by 472.'° "' 150 SALES OF REAL ESTATE. 3 Mich. 448. the owner thereof and not included in any recorded town plat or 7 Mich'. 488. city or village, or instead thereof, at the option of the owner, a 8 Mich. 51. J ° , . . !!■•-,- 10 Mich. 291. quantity of land not exceeding; in amount one lot, being withm a 11 Mich. 527, J ° 358. recorded town plat or city or village, and the dwelling-house 17 Mich.,465 y J o > a is n. y. 489. thereon and its appurtenances, owned and occupied by any resi- dent of this State, shall not be subject to forced sale on execution, or any other final process from a court, for any debt or debts growing out of or founded upon contract, either express or im- plied, made after the third day of July, in the year of our Lord eighteen hundred and fifty-eight. This section shall be deemed and construed to exempt such homestead in the manner aforesaid during the time it shall be occupied by the widow or minor child or children of any deceased person, who was, when living, entitled to the benefits of the act. It would seem to be competent to sell all the interest of the heirs in the homestead to pay debts, subject of course to all the rights of the widow and minor children therein, as above provided. The purchaser of course, would not be entitled to the possession of the lands until the expiration of the rights of the widow and minor children. Before granting license to sell real estate the court, in all cases, should require the administrator to procure and file in court, a complete abstract of the title of all the real estate to be sold, as far back as the court shall deem best. This abstract should show all mortgages, tax titles, or other incumbrances, and all leases, with their terms and conditions. "Where land is conveyed to an executor, etc., and to his succes- sors and assigns, he may sell and convey the same without obtain- ing license of the court for that purpose. Little v. Lesia, 5 Mich., 119. When a person bids in land on execution sale, and dies before the deed is made, the deed should be made to his executor, etc., and such lands may be sold to pay debts in the same manner as other lands of the deceased. C. L. 1448 (4661) and (4662.) If land is bid in by the executor or administrator on a mort- gage or execution sale, license must be obtained to sell the land, the same as in case of other lands of the deceased. C. L. 1393 (4413) and (4414.) SALES OF REAL ESTATE. 151 An executor who is a residuary legatee and gives a bond to pay all the debts and legacies, acquires an absolute title to the real estate of the testator, and may sell and convey the same without obtaining license of the probate court. Clark vs. Tufts. 5 Pick., 337. An executor who is authorized by the will to sell and convey real estate, may do so without obtaining license; but this power does not extend to an administrator with the will annexed. (Battelle v. Parks, 2 Mich., 531); Alley v. Lawrence, 12 Gray, 373: Tainter v. Clark, 13 Met, 220; Greenough v. Wells, 10 Cash., 571; Lamed v. Bridge, 17 Pick., 339; Conklin v. Egerton's Admr., 21 Wendell, 430; 3 Eedfield on Wills, 240 and 135; Contra Com- monwealth v. Forney, 3 W. & S., 356. C. L. 1382 (4370), (4374), and 1388 (4391) provide that an administrator with the will annexed shall have the same powers and shall proceed in settling the estate in the same maner as the executor should have had or done. The language is very broad, but still it is doubtful whether this would be construed to permit him to execute a special trust. It would be well in drafting a will to provide that only the executor named should execute the special trust. It has been held that these statutes do not apply to discretionary trusts or personal confidences, but only to the gene- ral functions of executors in settling estates. 2 Perry on Trusts, 21, Sec. 500. An executor who is also a trustee under the will, with power to sell lands for trust purposes, may execute the trust, and sell lands for that purpose, after he has resigned as executor. Clark v. Tainter, 7 Cush., 667. The power given by will to the executor to sell and convey real estate, does not give the executor power to mortgage the real estate of the deceased. Bloomer v. Waldron, 3 Hill, 366; Cum- ming and Pollock v. "Williamson and others, 1 Sanford's Chan. R., 25; Albany Fire Insurance Co. v. Bay, 4 Comstock, 19; 2 Story's Bq. Jur. (8th Ed.), 257 par 1061 a; Devaynes v. Robinson, 24 Beavan, (Eng. Ch.) 86; Waldron v. McComb, 1 Hill, 111. Contra 2 Story's Eq. Jur., (8th Ed.) 265 par 1064 b and note; Ballv. Harris, 4 Mylne & Craig R., 264; Mills v. Banks, 3 P. Will, 1 ; Williams v. Woodard, 2 Wendell, 487. 152 SALES OF REAL ESTATE. The statute, C. L. 1438 (4625.) gives the probate court power to grant license to mortgage real estate, and the courts differ so much in regard to the right of the executor to mortgage under a power of sale in a will, that it is best always to obtain license of the court for this purpose. Under a power to sell real estate in a will, the executor must make the sale in person, he cannot act by agent or attorney. 3 Kedfield on "Wills, 237; 2 Williams on Executors, 849. Where power to sell real estate is given to two or more exec- utors and only one accepts the trust, he may execute the power. Warden v. Eichards, 11 Gray, 277; Taylor v. Morris, 1 Const., 341. A trust for sale will not, in general, enable the trustees to exe- cute a valid mortgage. 3 Kedfield on Wills, 566. License must be obtained to sell standing wood or timber. Richardson v. Orooker, 7 Gray, 190; and also a pew in a church. McNab v. Pond, 4 Bradf., 7. Petition to 1424 (4546.) Sec 2. In order to obtain such license, the exec- be present- , . . in • ■ ed : what to utor or administrator shall present a petition to the probate court be set forth. . _. ln . . ., irom wnicn he received his appointment, setting forth the amount of personal estate that has come to his hands, and how much thereof, if any, remains undisposed of; the debts outstanding against the deceased, as far as the same can be ascertained; ades- 6 Mass. 149. cription of all the real estate of which the testator or intestate died seized, and the condition and value of the respective portions or lots; which petition shall be verified by the oath of the party presenting the same. The statute does not seem to require that the claims shall he allowed, and the report of the commissioners filed, before license to sell may be granted. Generally it is best to delay the granting of license to sell real estate until the report of the commissioners on claims is filed, but it is not necessary to do so. Tenny v. Poor, 14 Gray, 500. The petition should give the name of each creditor, and the amount and nature of his claim, where the commission- er's report has not been filed. After the filing of the report the petition need only state the gross amount of claims, and refer to the report for the items. By the provisions of this section, the petition must contain a description of all the real estate of which SALES OF REAL ESTATE. 153 the testator or intestate died seized, and must show the condition and value of the different portions or lots. The license cannot be broader than the petition as regards the land to be sold. Verrj v. McClellan, 6 S. C, Gray, 50(1 ; Hoffman v. Beard, et al., decided June T. of S. C, 1875. See, however, Howard and wife v. Moore and wife, 2 Mich., 227. Where there is more than one executor, it is best that all should join in the petition. Hunnen v. Day, 105 Mass., 33; Fitch v. Whitbeck, 2 Barb., Oh. 161. One of several executors however, may make the application. Jackson v. Kob- inson, 4 Wend., 436; Osman v. Traphagen, 23 Mich., 80. As strict proof is not required of ancient probate proceedings upon which titles are based as if they were recent. This is especially the case where the proceedings were had in the early history of our State, because the records are to a considerable ■extent lost or destroyed. Willetts v. Mandlebaum, 28 Mich., 521. The exeputor may be licensed to sell sufficient real estate to pay a larger sum than the amount of the debts and charges of administration alleged in the petition. Tenny v. Poor, 14 Gray, 500. It is sufficient if the petition contains all the statute requires; it must contain all jurisdictional facts. Stow v. Kimball, 28 111., 93; Iverson v. Loberg, 26 III, 179; Dorman v. Tost, 13 III, 127, 23 111., 484. It would seem to be competent for a duly authorized attorney to sign and swear to the petition, but in proceedings of this nature, it would be well to require a regularly executed power of attorney, and record the same with the other proceedings in the case. Es- tate of Wm. H. Kobinson, 6 Mich., 137. 1424 (4547.) Sec. 3. If it shall appear by such petition that Proceedings • • when person there is not sufficient personal estate in the hands of the executor. ai estate is insufficient or administrator to pay the debts outstanding against the deceased, to pay debts. and the expenses of administration, and that it is necessary to sell the whole or some portion of the real estate for the payment of such debts, the judge of probate shall thereupon make an Dut 0( order directing all persons interested in the estate to appear before {,ate?°' pr0 him at a time and place therein to be specified, not less than four weeks and not more than eight weeks from the time of making such order, to show cause why a license should not be granted to the executor or administrator applying therefor, to sell so much of 20 154 SALES OF REAL ESTATE. the real estate of the deceased as shall be necessary to pay such debts, copy of or- 1424 (4548.) Sec. 4. A copy of such order to show cause shall ved'or'pub- be personally served on all persons interested in the estate, at 16 N. d y. 180. least fourteen days before the time appointed for hearing the pe- tition, or shall be published at least four successive weeks in such Proviso. newspaper as the court shall order; Provided however, If all per- sons interested in the estate shall signify, in writing, their assent to such sale, the notice may be dispensed with. The notice must be published in a newspaper printed in the county, if there be one, if not, then in a newspaper published in an adjoining county, or in one published nearest to the county, if there are none in the adjoining counties. C. L. 2056 (7455.) Notice must be given as required by this statute to give the court jurisdiction. There need be only one insertion in each week, although published in a daily paper. Sheldon v. "Wright, 5 N.Y., 497; Rigney v. Coles, 6 Bosw., 479; Sibley v. Woffle, 16 N. Y., 180. Affidavits of 1706 (5925.) Sec. 68. When any notice of a sale of real pro- saifsof real P ertv i s required by law to be published in any newspaper, an estate. affidavit of the printer of such paper, or of his foreman or princi- pal clerk, annexed to a printed copy of such notice taken from the paper in which it was published, and specifying the times when, and the paper in which it was published, may be filed at any time within six months after the last day of such publication, with the county clerk of the county in which the premises sold are situ- ated; or if such sale were made in pursuance of the order of any judge of probate or court of chancery, such affidavit may be filed with such judge of probate, or with a register of such court of chancery, as the case may be. Hearing. 1424 (4549.) Sec. 5. The judge of probate, at the time and place appointed in such order, or at such other time as the hearing shall be adjourned to, upon proof of the due service or publication of a copy of the order, or upon filing the consent, in writing, to such sale, of all the persons interested, shall proceed to the hear- ing of such petition, and if such consent be not filed, shall hear and examine the allegations and proofs of the petitioner, and of all persons interested in the estate who shall think proper to op- pose the application. SALES OF REAL ESTATE. 155 1424 (4550.) Sec. 6. The executor or administrator may be petitioner examined on oath, and witnesses may be produced and examined S es may be by either party, and process to compel their attendance and testi- mony may be issued by the judge of probate, in the same manner and with the like effect as in other cases. 1425 (4551.) Sec. 7. If it shall appear to the court that it is Probate court may necessary to sell a part of the real estate, and that by a sale of license sale of whole or such part, the residue of the estate, or some specific part or piece part of real thereof, would be greatly injured, said court may authorize the * Mich. sos. ' b J J J 13 Wads., 162 sale of the whole estate, or of such part thereof as may be judged 1B Mass -> B8 ' necessary, and most for the interest of all concerned. Where creditors have lost their remedy against the executor or administrator by lapse of time, the court will not grant license to sell the real estate to pay the claims thus barred. License to sell will not be granted seventeen years after the estate is reported insolvent. In matter of estate of Gabriel Godfrey, deceased, 4 Mich., 308; Campau v. Gillett, 1 Mich., 416. In case of Hoffman, et al. v. Beard, et al., decided June T. of S. C, 1875, held, that after five years had elapsed from the grant- ing of administration, without any order made continuing the ad- ministration, the administrator and probate court had no further power or jurisdiction over the estate for the purpose of granting license to sell real estate to pay the claims allowed against the estate, as they were barred and ceased to be claims against the estate after the expiration of that time. See notes under Sec. (4451) above. See also Moers v. White, 6 Johnson's Ch, 360, 377. The heirs are estopped from denying the validity of a sale, when they have represented to the purchaser that the executor has power to sell. Favill v. Koberts, 50 N. Y., 233 and 547. 1425 (4552.) Sec. 8. When the executor or administrator is Executor, etc., to give authorized to sell more than is necessary for the payment of debts, bond in cer- tain cases he shall, before the sale, give bond to the judge of probate, with before sale. sufficient sureties, to account for all the proceeds of the sale that shall remain after payment of the debts and charges, and to dis- pose of the same according to law; and in all cases where license „ „. , • ° ' 8 Pick., 526. is granted for the sale of real estate, the judge of probate may re- 3 Q«eni. 282 quire a further bond from the executor or administrator, when he shall deem it necessary. 156 SALES OF REAL ESTATE. Bonds when 1562 (5215.) Sec. 24. No bond required by law to be given to sufficient un the judge of probate, to be filed in his office, shall be deemed suf- lessapprov'd _ . -i-ii by judge, etc ficient unless it snail nave been examined and approved by the judge, and his approval thereof indorsed thereon in writing, and signed by him. "Where license is granted to sell only so much of the real estate as is necessary to pay the debts and expenses of adminis- tration, no sale bond is necessary. Fay v. Valentine, 8 Pick. 526; Tenny v. Poor, 14 Gray, 500; Sewell v. Raymond, 7 Met., 459. It is best, however, to require a sale bond in all cases. Stewart v. Bailey, 28 Mich., 251. Two sureties at least are required on the sale bond. Proceeds of 1425 (4553.) Sec. 9. The proceeds of any real estate sold for tusetst wnd ^ e payment of debts, and the charges of administration, as pro- Sor as"such. vided in this chapter, shall be deemed assets in the hands of the executor or administrator, in like manner as if the same had been originally part of the goods and chattels of the deceased ; and the executor or administrator, and the sureties in his administration bond, shall be accountable and chargeable therefor. The sureties on the sale bond required above, are liable for any failure of the executor or administrator to comply with all the prerequisites of the sale, and also for any misconduct in con- ducting the sale, and it would also seem that they should be jointly liable with the sureties on the general bond, for any failure to dispose of the proceeds of the sale according to law. The pre- vious section requires that the condition of the bond shall be, that the executor, etc., shall account for all the proceeds of the sale that shall remain after payment of the debts and charges, and dispose of the same according to law. Schouler's Domestic Eel., 493; Smith's Probate L., 237. Whennoii- l±15 (4554.) Sec. 10. No license to sell real estate shall be granted" on granted, if any of the persons interested in the estate shall give given. emg bond to the judge of probate, in such sum and with such sureties as he shall direct and approve, with condition to pay all the debts, and the expenses of administration, so far as the goods and chat- tels, rights and credits of the deceased shall be insufficient there- for, within such time as the judge of probate shall direct. The condition of this bond is not broken until it has been as- certained by an account settled in the probate court, that debts SALES OF REAL ESTATE. 157 have been found due from the estate and the goods, chattels, etc. of the deceased are insufficient to pay them. Studley v. Josselyn, 5 Allen, 118. 1425 (4555.) Sec. 11. The bond mentioned in the preceding For whose section shall be for the security, and may be prosecuted for the may be pros- ecuted, benefit of the creditors, as well as the executor or administrator. 1425 (4556.) Sec. 12. If the judge of probate shall be satisfied, when court n i ■ ■ -, • ■ ma y order after a full hearing upon the petition, and an examination upon sale, the proofs and allegations of the parties interested, that a sale of the whole or some portion of the real estate is necessary for the payment of valid claims against the deceased, and charges of administration, or, if such sale be assented to by all persons interested, he shall thereupon make an order of sale, authorizing the executor or administrator to sell the whole, or so much and such part of the real estate described in the petition, as he shall judge necessary or beneficial. The consent to the sale should be in writing, signed by all the legatees or heirs at law, and filed in the probate court, and the license should recite the fact that such assent has been given. License to sell real estate to pay debts, should not be granted after the expiration of the two years' limited for the commence- ment of actions against executors and administrators to recover claims, as provided in G. L. 1405 (4463.) In matter of Godfrey Estate, 4 Mich. 308; Campau v. Gillett, 1 Mich., 416. See also notes under Sec. (4551) above. 1426 (4557.) Sec 13. The order shall specify the lands to be orderot sale , # to specify sold; and the judge of probate may therein direct the order iniandsto.be J ° r J sold, and the which several tracts, lots or parcels, shall be sold; and if it appear order »t the that any part of such real estate has been devised, and not charged in such devise with the payment of debts, the judge of probate shall order that part descended to heirs to be sold before that so devised; and if it appear that any land, devised or descended have been sold by the heirs or devisees, then the lands in their hands remaining unsold shall be ordered to be first sold. The sale of two parcels together at one bid is a mere irregu- larity, and does not invalidate the sale when attached collaterally. Such a sale can only be disturbed by an appeal from the confirm- ation. Asman v. Traphagen, 23 Mich., 80. 158 SALES OF REAL ESTATE. Specific devises and legacies may be exempted from the pay- ment of the debts and expenses of administration, at the discretion of the court, if there shall be other sufficient estate. C. L. 1377 (4353.) The property should be sold in parcels, or altogether, as it will bring the highest price for the whole. It is not an invariable rule that property will bring the highest price when sold in parcels; but it will frequently be the case that the best price can be ob- tained for the entire property sold as one parcel. The persons interested should make some showing on the day fixed for hearing the petition for license to sell, in regard to the best manner of dis- posing of the lands, and the judge of probate should specify in the license whether the lands shall be sold in parcels or all together as one parcel, and he may also direct which parcel shall be sold first. It would be entirely proper for the judge of probate to direct that any number of parcels be offered for sale together as one parcel, as he may be satisfied that the land will bring the most. See upon this subject Bwing v. Higby, 7 Ohio, 293 ; Stahl v. Macalester, 9 Ohio, 19. Certified 1426 (4558.) Sec. 14. Upon the making of such order, and S be de- the filing with the judge of probate of such bond as is required by executor, the provisions of this chapter, a certified copy of the order of sale 2 Mich. Rep. shall be delivered by the judge of probate to the executor or ad- ministrator, who shall thereupon be authorized to sell the real estate as therein directed, within one year after the making of the order, but not after that period. The sale must be within the year; but the deed may be exe- cuted after the expiration of the year. Howard v. Moore, 2 Mich., 226; Orman v. Traphagen, 23 Mich., 80. Sale of re- 1426 (4559.) Sec. 15. License to sell real estate, as provided version of . , ■• . , ., ., dower in tins chapter, may extend to the reversion of the dower of the HN.Y.281. ., , widow of a deceased person, and if such reversion be not sold with the other real estate, it may be sold after the expiration of the widow's term. A license to sell the whole of the real estate of the deceased, includes the reversion of the widow's dower. Bancroft v. An- drews, 6 Cash., 493. S" 060 * 1426 ' ( 4560 -) Sbc ' 16. When a sale is ordered, notice of the wn.'yJso. time and place of noldm g tb -e same shall be posted up in three of SALES OF REAL ESTATE. 159 the most public places in the township or ward in which the land is situated, and shall be published in a newspaper, if there be one printed in the same county, and if there be none, then in such paper as the court may direct, for six weeks successively next before such sale ; in which notice the lands and tenements to be sold shall be described with common certainty. When the sale was advertised to be on Friday, the 17 th, whereas Friday was the 1 6th, and the sale was made on the 1 6th, held that the sale was void. William v. Lawrence, 15 Mass., 326. It should be particularly noticed, that the notice of sale must be posted in the township or ward in which the land is situated. Incorporated cities and villages within a township are not a part of the township. The People v. Knight, 13 Mich., 424. Where the real estate is situated in the township, and outside of the corporate limits of the city or village, the notice of sale must be posted in the township, and outside the corporate limits of the city or village. There may be some question whether incorporated villages come within this rule, because for many purposes they are a part of the township; but it is a safe practice to post notices outside the corporate limits of the village where the land to be sold is located out of the corporation. L. 1875, p. 57, Act No. 62, Sec. 5. Non-compliance by a guardian with the requirements of the statute relative to the notice to be given of the sale of the lands of his ward, under license of the probate court, will not invalidate the title of a bona fide purchaser. Palmer v. Oakley, 2 Douglass (Mich.,) 443. 1706 (5925.) Sec. 68. When any notice of a sale of real prop- A ^££ of erty is required by law to be published in any newspaper, an am- fjj^' rea ' davit of the printer of such paper, or of his foreman or principal clerk, annexed to a printed copy of such notice taken from the paper in which it was published, and specifying the times when and the paper in which it was published, may be filed at any time within six months after the last day of such publication, with the county clerk of the county in which the premises sold are situated; or if such sale were made in pursuance of the order of any judge of probate or court of chancery, such affidavit may be filed with such judge of probate, or with a register of such court of chancery, as the case may be. *^n 160 SALES OF REAL ESTATE. Feesforie- 2056 (V454.) Sbo. 1. For publishing any other legal notice, or tisements. any order, citation, summons, or any other proceedings or ad- vertisement, required by law to be published in any newspaper, the costs of publishing such advertisement shall not exceed the rate of seventy cents per folio for the first insertion, and thirty- five cents per folio for each subsequent insertion. Legal adver- 2056 (7455.) Sec. 2. All legal advertisements shall be pub- tisements to v ' be published lished in a newspaper printed in the county in which the proceed- in county L L L J J. where pro- j n g S are carried on, if there be one, and if no newspaper be printed ceedings are ° a i x- carried on. m such county, then such advertisements shall be published in a newspaper published in an adjoining county, or in a paper pub- lished nearest to said county in which such proceedings are had. Where there is no affidavit of posting the notices, but it appeared from the report of sale that they were posted, and it appeared by other proof that the notices were duly published, held to be suf- ficient. "Woods v. Monroe, et al, 17 Mich., 238. Where.when 1426 (4561.) Sec. 17. Such sale shall be in the county where to be made, the lands are situated, at public vendue, between the hours of nine o'clock in the morning, and the setting of the sun the same day. An agreement by an administrator or guardian to sell the real estate to a certain person for an agreed price, provided no higher sum should be bid, is valid. Hunt v. Frost, 4 Oush., 54. The executor, administrator or guardian should proceed to the place of sale at the time appointed, and open the sale by reading in full the printed notice of sale. After reading the notice of sale, he should announce fully the terms of sale; that is, he should state how much is required to be paid down, which cannot be less than one-quarter of the bid, and that the balance will be required to be paid in one, two or three years with interest, the balance to he secured by bond and mortgage of the premises sold. No more than three years' credit can be given. It is best to require the balance to he paid in two or three equal annual instalments, with interest payable annually ; but the entire balance may be allowed to run the three years, with interest payable annually. The amount unpaid upon all incumbrances should be ascertained, and fully and explicitly announced to the bidders, before any bids are received. See notes under Sec. (4576) below. If the sale is large and important, SALES OF REAL ESTATE. 161 it is best to employ an auctioneer, because his memorandum of the sale is sufficient to satisfy the requirements of the statute of frauds. An auctioneer is an agent lawfully authorized by the pur- chaser, either of lands or goods, at auction, to sign the contract of sale for him as the highest bidder; and writing his name as the highest bidder in the memorandum of the sale by the auctioneer, immediately on receiving his bid and knocking down the hammer, is a sufficient signing of the contract within the statute of frauds, so as to bind the purchaser. McComb v. "Wright, 4 Johnson's Chan. R., 658. See also the numerous cases cited in 3 Parsons on Con., 11 note (5th ed.) The executor, administrator or guardian should be present at the sale, if possible, but the sale may be made by a duly author- ized agent. In such case the agent should make affidavit of his proceedings at the sale, which should be attached to the report of sale by the executor, etc. The sale must be at public vendue and to the highest bidder. Instant payment of the bid may be required, but it is not best to make such requirement, because it would have a tendency to repel bidders. Buchoz v. "Walker, 19 Mich., 229. In very large sales it might be best to announce as one of the conditions of the sale, that the purchaser will be required to pay into court immediately, that portion of the bid to be paid down, the same to be paid to the executor, etc., as soon as the sale is confirmed. In such case it would be best to hold the sale open, or adjourn it one day to allow the purchaser to comply with this condition, and if he failed to do so, the property might be again offered for sale, and if the previous purchaser should bid again, his bid should be rejected. Isabel v. Kenyon, decided October T. of S. C, 1875. A party claiming to be the highest bidder at a guardian's sale, in order to entitle himself to the rights of a pur- chaser, must tender payment and performance within a reason- able time. The People v. The Circuit Judge, etc., 19 Mich., 296. The executor, administrator or guardian may bid in the pro. perty for the benefit of the estate, when they shall deem it neces- sary to prevent loss to the estate. Clark v. Clark, 8 Paige, 152. The purchaser cannot refuse to take the land and pay his bid because the title is not good. Halleck, etc., v. Guy, 9 Cal., 181. 21 162 SALES OP REAL ESTATE. The probate court can compel the executor, etc., to execute a deed after the confirmation of the sale. Estate of Lewis, 39 Cal., 306. Executor, 1426 (4562.) Sec. 18. The executor or administrator making den'topur- the sale, and the guardian of any minor heir of the deceased, 2 Mich., Rep. shall not directly or indirectly purchase or be interested in the 830. 20 Ohio b., purchase of any part of the real estate so sold, and all sales made 2 Gray, 145. contrary to the" provisions of this section shall be void ; but this section shall not prohibit any such purchase by a guardian for the benefit of his ward. Dwight v. Blackmar, 2 Mich., 330; Beaubien v. Poupard, Har. Ch., 206; Hoffman v. Harrington, 28 Mich., 90; Sheldon v. Estate of Rice, 30 Mich., 296. A judge of probate cannot become interested in a sale made under his order. Walton v. Torry, Har. Ch., 259. The fact that the purchaser in good faith, conveys the land to the judge of pro- bate will not invalidate the sale. Woods v. Monroe, IV Mich., 238. An equitable title should be sold in the same manner as a legal title. Idem. A purchaser has the right to presume that the sale is conducted under the provisions of the general law, and the fact that there is a special statute covering the case which is disregarded, will not invalidate the sale. Browning v. Howard, 19 Mich., 323. The executors, etc., may bid in the property for the benefit of the estate, when in their descretion it is necessary to save the estate from loss. Olark v. Clark, 8 Paige, 152. crediton 1426 (4563.) Sec. 19. On such sale, the executor or adminis- trator may give such length of credit, not exceeding three years, and for not more than three-fourths of the purchase money, as shall seem best calculated to produce the highest price, and shall have been directed or shall be approved by the judge of probate, and shall secure the moneys for which credit is given by a bond of the purchaser and by a mortgage of the premises sold. It is best usually to require one quarter of the bid to be paid down, and the balance in three equal annual instalments with interest payable annually. The balance is to be secured by a hond of the purchaser and by mortgage of the premises sold. Other securities may be taken, but at the risk of the executor, and he aale SALES OF REAL ESTATE. 163 will be personally responsible for such securities. Palmer and others, 1 Doug. (Mich.), 422. The entire balance of the purchase money may be allowed to run three years, but the interest should be paid annually. See notes under Sec. (4561) above. 1427 (4564.) Sec. 20. The executor or administrator making Return by GX6GlXfcOr any sale shall immediately make a return of his proceedings upon etc., and' proceedings the order of sale m pursuance of which it is made, to the judge of of the court thereupon. probate granting the same, who shall examine the proceedings, and may also examine such executor or administrator, or any other jj comstock, person on oath, touching the same; and if he shall be of opinion that the proceedings .were unfair, or that the sum bid is dispropor- tionate to the value, and that a sum exceeding such bid, at least ten per cent, exclusive of the expenses of a new sale, may be obtained, he shall vacate such sale and direct another to be had; of which notice shall be given, and the sale shall be in all respects conducted as if no previous sale had taken place. It is the duty of the executor, etc., to sell the real estate in parcels, if the entire property will produce the most, if sold in par- cels. Horton v. Horton, 2 Bradf., 200. This may be done although it is advertised to be sold as one parcel. The judge of probate should order a re-sale of any parcel which he is satisfied will bring ten per cent, more than the bid, exclusive of the expen- ses of a new sale. Delaplaine v. Lawrence, 3 Comstock, N. Y., 301. The sale must be confirmed if fairly made, unless it can be shown that a sum exceeding the bid by ten per cent, exclusive of expenses can be obtained. Horton v. Horton, 2 Bradf., 200. The sale should be confirmed, if the land has been sold at an adequate price, even if a larger bid may be obtained. Kain v. Masterton, 16 N. Y., 174. 1427 (4565.) Sec. 21. If it shall appear to the judge of probate if sale fair, etc., order that the sale was legally made and fairly conducted, and that the of confirma- & J J tiontobe sum bid was not disproportionate to the value of the property made, sold, or, if disproportionate, that a greater sum as above specified &**■ cannot be obtained, he shall make an order confirming such sale, J® 1 - and directing conveyances to be executed. m An agreement between parties not to bid against each other at the sale, will render the title of the purchaser void in equity and at law, and the deed made in pursuance of the sale will convey no title. Loyd v. Malone, 23 111., 43. 164 SALES OF REAL ESTATE. The judge of probate should indorse the usual confirmation on the back of the report of sale, and also make a separate order of confirmation, as per form given. The indorsement on the back of the report is not a sufficient confirmation. Where there are two executors, etc., the court may grant license to one of them to sell real estate, and after confirmation the sale cannot be attacked collaterally. Osman v. Traphagen, 23 Mich., 80. An administrator with the will annexed, or de bonis non, may complete a sale commenced by an executor or adminis- trator, no matter in what stage of the proceedings he is appointed. The official is the same, he simply bears a different name. 0. L. (1382 {±2,10) and (4374) and C. L. 1388 (4391.) The sale may be confirmed in part and vacated in part. The appellate court may correct any gross abuse of discretion on the part of a judge of probate in confirming or refusing to confirm a sale of real estate. Delaplaine v. Lawrence, 3 N. Y., 301. It is quite a general practice in some of the probate courts, and I see no objection to it, to instruct the administrator to have some responsible person present at the sale, and in case there are no bidders or the bids are too low, and no prospect of raising them by an adjournment, to have such person bid off the property at a price considerably below what it can probably be sold at in a future private sale, and have the administrator strike off the pro- perty to such person and report the sale, with the express under- standing and agreement that the sale is not to be confirmed until a purchaser is found who will pay a fair price for the land, and a price satisfactory to the court and the persons interested. The administrator can then take time to find a purchaser, and further advertise the land if necessary. This gives all the benefit of a public and a private sale, and invariably results beneficially to the estate. Parties will not bid at the auction sale as much as they are willing to give, unless compelled by competing bidders, and in many cases there are none; but when they find that the admin- istrator can hold the land and sell it at private sale, they always come to reasonable terms without delay. When a desirable pur- chaser is found, the auction sale can be confirmed and the pur- chaser at such sale can quit claim his title to the last purchaser, who can pay the portion of purchase money required to be paid SALES OF REAL ESTATE. 165 down, and give bond and mortgage of the premises to the admin- istrator to secure the payment of the balance. This practice is of course in reality, although not technically, an evasion of the requirements ,of the statute ; but as it invariably saves expense and results greatly to the benefit of the estate, and is entirely safe, as the entire proceedings are under the control of the court, and is technically in strict compliance with the statute, it would seem to be a safe practice, and in many cases very desirable. Ives v. Ashley, 97 Mass., 198. The probate court cannot compel the payment of a bid and the taking of a conveyance. Butler v. Emmett, 8 Paige, 12. Defects in the recitals in an executor's deed may be healed by a second deed. Sheldon v. "Wright, 7 Bradf., 39; Thomas v. LeBaron, 8 Met., 355; 2 Cush., 184. The deed should recite the order of sale. Atkins v. Kinna, 20 Wend., 241 ; Sheldon v. Wright, 5 N. Y., 497. It sometimes happens that there are no bidders at the sale, and then the land may be struck off to some person as above indicated, and save the expense of re-advertising the property for sale. 1427 (4566.) Sec. 22. Every executor or administrator au- Executor, etc., to take thonzed to sell real estate as provided in this chapter shall, before oath before sale. making such sale, take and subscribe an oath before the judge of a Metcaif. probate, or some other officer authorized to administer oaths, that in disposing of the real estate which he is licensed to sell, he will exert his best endeavors to dispose of the same in such manner as will be most for the advantage of all persons interested; which oath shall be filed with the judge of probate before confirmation of the sale. The sale may be made in parcels, or altogether, as it will bring the best price for the whole. Weed v. Terry, 2 Doug., 349. 1427 (4567.) Sec. 23. An affidavit of the executor or admin- Affidavit of istrator, or of some other person having knowledge of the fact, sale. .,,.,., 17Mich.,238. mat notice of any such sale was given as provided m this chapter, being made before the judge of probate, or some other officer au- thorized to administer oaths, and filed and recorded in the probate court, together with a copy of the notice, shall be admitted as evidence of the time, place, and manner of giving the notice. Where there was no affidavit of posting the notices of sale, but it appeared from the sworn report of the administrator, duly con- 166 SALES OF REAL ESTATE. firmed, that such, notices were posted, and also by other proof that such notices were duly published in a newspaper : Held, that this was sufficient evidence. Woods v. Monroe, et al., 17 Mich., 238. See also C. L. 1706 (5925.) Postpone 1427 (4568.) Sec. 24. If, at the time appointed for any such 5 ureeni. 246 sale, the executor or administrator shall deem it for the interest of persons concerned therein that the sale should be postponed, he may adjourn the same from time to time, not exceeding in all three months. Noticeofad- 1428 (4569.) Sec. 25. In case of such adjournment, notice of™™ 611 * thereof shall be given by a public declaration at the time and place first appointed for the sale; and if the adjournment shall be for more than one day, further notice shall be given by posting or publishing the same, or both, as the time and circumstances may admit. If it is determined that an adjournment will be best, before the day of sale, the usual notice of adjournment may be inserted under the notice of sale, and the original notice with the notice of ad- journment should be posted as in the first instance. There will then be no break in the notices. When the day of sale arrives the executor, etc., or his agent, should proceed to the place of sale, read the notice of sale, and publicly announce that the sale is ad- journed to the day determined upon. It is not necessary to offer the property for sale before adjourning. In case it is not decided to adjourn the sale until the day of sale, then the adjournment should be announced as above mentioned, and the original notice of sale with the notice of adjournment inserted under it, should he published in the newspaper up to the adjourned day. This notice with the notice of adjournment should be posted as soon as possible after the first publication, and in the same manner as the original notice. These notices should be both published and posted if possible. The failure to do either of these would be an irregu- larity, which would be cured by confirmation, or at least shielded from attack in a collateral action. Osman v. Traphagen, 23 Mich., 80. Where the sale is adjourned from day to day, it is only nec- essary to go to the place of sale at the hour appointed, and read the notice of sale and announce the adjournment to the next day. When the day appointed for the sale is rainy and inclement, and SALES OF REAL ESTATE. 167 but few persons appear and bid, and the bids do not exceed half the value of the property, it is the duty of the administrator to adjourn the sale. Beaubien v. Poupard, Har. Ch, 206. SALES OF REAL ESTATE BY EXECUTOR TO PAY LEGACIES, OR BY AN ADMINISTRATOR FOR THE PURPOSE OF DISTRIBUTION. 1428 (4570) Sec. 26. When a testator shall have given any insuffici'ncy of assets to legacy by a will that is effectual to pass or change real estate, and pay legacy, his goods, chattels, rights, and credits shall be insufficient to pay such legacy, together with his debts and charges of administration, the executor or administrator, with the will annexed, may be licensed to sell his real estate for that purpose ; or when a person Reaiestate r r ' r to be sold. shall die intestate, and it shall be shown, to the satisfaction of the Case of an intestate. probate judge having jurisdiction of the case, that it is necessary or for the interest of the persons interested in the estate of such intestate, to sell the real estate of such intestate persons for the purposes of distribution, the administrator may be licensed to sell the real estate of such person, in the same manner and upon the same terms and conditions as are prescribed in said chapter in the case of a sale for the payment of debts. The petition should be filed as per form given. The proceedings for the purposes mentioned in this section should not be taken until after the decree of assignment provided for in C. L. 1412 (4496.) SALES OF THE INTEREST OF A DECEASED PERSON IN LAND, UNDER A CONTRACT FOR PURCHASE. 1428 (4571.) Sec. 27. If a deceased person, at the time of his ^^^j,, death, was possessed of a contract for the purchase of land, his iJnderoon- interest in such land, and under such contract, maybe sold on the s™" maybe application of his executor or administrator, in the same cases, and n lc ' °' in the same manner, as if he had died seized of such land ; and the same proceedings may be had for that purpose as are prescribed in this chapter in respect to lands of which he died seized, except as hereinafter provided. The petition and license should contain a copy or statement of the substance of the contract. The license should be for the sale of all the right, title and interest of the deceased in the lands des- 168 SALES OP REAL ESTATE. cribing them, under and by virtue of the contract describing it. The notice of sale should follow the license in describing the property to be sold. Sale to be 1428 (4572.) Sec. 28. Such sale shall be made subject to all jeottopay- payments that may thereafter become due on such contract; and come due, if there be any such payments thereafter to become due, such sale nity to be shall not be confirmed by the judge of probate, until the purchaser given. shall execute a bond to the executor or administrator, for his ben- efit and indemnity, and for the benefit and indemnity of the per- sons entitled to the interest of the deceased in the lands so con- tracted for, in double the whole amount of payments thereafter to become due on such contract, with such sureties as the judge of probate shall approve. Condition of 1428 (4573.) Sec. 29. Such bond shall be conditioned that such demn?ty. n " purchaser will make all payments for such land that shall become due after the date of such sale, and will fully indemnify the exec- utor or administrator, and the person so entitled, against all demands, costs, charges, and expenses, by reason of any covenant or agreement contained in such contract; but if there be no pay- ment thereafter to become due on such contract, no bond shall be required of the purchaser. Assignment 1429 (4574.) Sec. 30. Upon the confirmation of such sale, the of contract, ... and rights of executor or administrator shall execute to the purchaser an assign- purchaser. ment of such contract; which assignment shall vest in the pur- chaser, his heirs and assigns, all the right, interest, and title of the persons entitled to the interest of the deceased in the land sold, at the time of the sale; and such purchaser shall have the same rights and remedies against the vendor of such lands, as the deceased would have had, if he were living. Proceeds of 1429 (4575.) Sec 31. The proceeds of every such sale of the sale how dis- . . '. posed of. interest of the deceased person m lands under contract, as herem- befere mentioned, shall be disposed of in all respects in the same manner as the proceeds of the sale of lands of which the deceased died seized, according to the provisions of this chapter. sales to be 1429 (4576.) Sec. 32. All sales and conveyances of land made jeottoTn-" by executors or administrators, pursuant to the provisions of this ' chapter, shall be subject to all charges thereon, by mortgage or otherwise, existing at the time of the death of the testator or intes- SALES OF REAL ESTATE. 169 tate; and in case the estate of the deceased shall be in any way liable for the amount secured by any such mortgage, or for any such charge, such sale shall not be confirmed by the judge of pro- bate until the purchaser shall execute a bond to the executor or administrator, as required in this chapter in the case of a sale of a contract for the purchase of land on which payments are to become due. The executor, etc., should ascertain what incumbrances there are upon the lands to be sold, by examination of records and oth- erwise, and if possible, compute the amount due upon each on the day of sale. Before receiving any bids, the executor, etc., should announce to the bidders the nature, condition and amount due on each incumbrance, and all facts connected therewith which it would be important for the purchaser to understand in making his bids. Eames v. Barnes, 16 Mich., 348. It is of the greatest importance to have these sales conducted with entire candor and fairness on the part of the executor, because such a course will always inspire confidence in bidders, and very much assist in obtaining a fair price for the land. By-bidders should never be employed. The court should require the bond provided in this section to be filed and approved, before confirming the sale of any real estate incumbered by mortgages, for the payment of which the estate is, or may become liable. Where the land is sold for its full value, and not subject to all incumbrances by mortgage or otherwise, the administrator may, out of the proceeds of the sale, pay in full a mortgage upon the lands duly recorded, and he will be chargeable only for the balance of such proceeds. See, however, Clark v. Davis, decided June T. of S. C. 1875; Church, et al, v. Savage, 7 Cushing, 440. The purchaser gets only the title of the deceased. If the land is subject to any lien or incumbrance by mortgage or otherwise, the purchaser takes the land subject to the incumbrance. The purchaser should carefully examine the condition of the title, and never purchase lands of an estate unless the claims have been barred by proper proceedings in the probate court. Walden v. Gridley, 36 111., 523; McConnel v: Smith, 39 III, 279. 22 3 Mass., 514. 170 SALES OP REAL ESTATE. SALES OF REAL ESTATE BY EXECUTORS, ETC., APPOINTED IN ANOTHER STATE OR COUNTY. Foreignex- 1429 (4577.) Sec. 33. "When an executor or administrator shall ecutor, ett\, ... . ~ . „ . may file be appointed m any other State, or in any foreign country, on the copy of his appointm'nt estate of any person dying out of this State, and no executor or administrator thereon shall be appointed in this State, the foreign executor or administrator may file an authenticated copy of his appointment in the probate' court of any county in which there may be any real estate of the deceased. For manner of authentication of records see C. L. 2251. There should be required authenticated copies of the petition, bond, order appointing, and letters testamentary or of adminis- trtaion issued. An administrator who has received letters of administration under the authority of another State, cannot prosecute or defend an action in the courts of this State, by virtue of such letters of administration. Goodwin v. Jones, 3 Mass., 513. A foreign administrator has no right to take possession of, or control the estate of the deceased in this State. Wharton on Conflict of Laws, Sec. 604. It will be noticed that except for the purpose of selling real estate, there is no statutory provision for the transfer of a foreign administration to this State, except C. L. 1378 (4361), etc. The foreign administration, however, upon com- plying with the provisions of our statute, would be entitled to receive letters of administration in this State. Wharton on Con- flict of Laws, 608. , A debtor of a deceased person should never pay the debt to a foreign administrator; but should require the appointment of an administrator in this State. It has been held that payment to a foreign administrator, where there are no creditors in the ancillary jurisdiction, and no ancillary administration, is a good discharge of the debt. Wharton on Conflict of Laws, 626; Story on Con- flict of Laws, 881. It is not best, however, to pay a debt to a foreign administrator, because it is impossible to tell without a judicial determination, whether there are debts of the deceased in this State, and there is a conflict in the authorities whether such payment is a discharge of the debt. In case a discharge of mort- gage is required, it would be very unsatisfactory to have a dis- SALES OF REAL ESTATE. 171 charge executed by a foreign administrator, because there would be no opportunity to examine the legality of his appointment. It would be a much better practice to require the appointment of an administrator in this State in all cases, and particularly where the debt is secured by mortgage. 1429 (4578.) Sec. 34. Upon filing such authenticated copy of ^J^" his appointment, such foreign executor or administrator may be payment 8 of licensed by the same probate court to sell real estate for the pay- f e ^ie° d ment of debts or legacies, and charges of administration, in the same manner and upon the same terms and conditions as are prescribed in the case of ah executor or administrator appointed in this State, excepting in the particulars in which a different provision is here- inafter made. 1430 (4579.) Sec. 35. When it shall appear to the court grant- when no ing the license that such foreign executor or administrator is necessary, bound with sufficient surety or sureties, in the State or country in which he was appointed, to account for the proceeds of such sale, for the payment of debts or legacies, and charges of administra- tion, and a copy of such bond duly authenticated shall be filed in such probate court, no further bond for that purpose shall be required of him by the court. 1430 (4580.) Sec. 36. If an authenticated copy of such bond shall when bond v ' # _ required and not be filed as mentioned in the preceding section, such foreign what to con- executor or administrator, before making such sale, shall give bond with sufficient sureties to the judge of probate, with condi- tion to account for and dispose of the proceeds of such sale for the payment of the debts or legacies of the deceased, and the charges of administration, according to the law of the State or country in which he was appointed. 1430 (4581.1 Sec. 37. When such foreign executor or adminis- whcniicens- V ' . . . , ed to sell trator is licensed to sell more than is necessary for the payment more than is . . . necessary to of debts, legacies, and charges of administration, as before pro- pay debts, ' & ' ° etc., bond to vided for in this chapter, he shall, before making the sale, give be given, bond with, sufficient sureties to the judge of probate, with condi- tion to account to him for all the proceeds of the sale that shall remain after payment of the said debts, legacies, and charges, and to dispose of the same according to law. 172 SALES OF REAL ESTATE. SALES OF REAL ESTATE BY GUARDIANS TO PAY DEBTS. Guardian, 1430 (4582.) Sec. 38. When the goods, chatties, rights, and when may be licensed credits in the hands of the guardian of any minor, or of any idiot to sell real estate of or insane person, or any person under guardianship on account of ward. 12 Mich., 356 excessive drinking, gaming, idleness, or debauchery, shall he in- sufficient to pay all the just debts of his ward, with the charges of managing his estate, the guardian may be licensed by the probate court of the county in which such guardian was appointed, to 5 Pick., 482. se H his real estate for that purpose, in like manner and upon the same terms and conditions as are prescribed in this chapter in the case of a sale by executors or administrators, excepting in the particulars in which a different provision is hereinafter made. A report and confirmation of a guardian's sale are necessary to authorize a conveyance by the guardian. A party claiming to be the highest bidder at a guardian's sale, in order to entitle him- self to the rights of a purchaser, must tender payment and per- formance within a reasonable time. The People v. The Circuit Judge, &c, 19 Mich., 296, Where one procures the appointment of a guardian for a minor, without the knowledge or consent of the parents or other friends of such minor, for the purpose of secretly obtaining title for his own benefit to the minor's lands, such proceedings not being for the benefit of the minor, are a fraud upon his rights, and void, and it makes no difference that the lands were sold for their full value. Tong v. Marvin, 26 Mich., 35. The petition by a guardian for license to sell real estate for any purpose, should set forth the condition of the estate, the purpose for which the sale is asked, and the necessity or propriety of the sale, to give the court jurisdiction. Ryder v. Flanders, 30 Mich., 336. Court may 1430 (4583.) Sec. 39. If it shall be represented by the guardian license sale x ' r J ° of whole or in his petition, and shall appear to the court, that it is necessary tate d ' s 6S to se ^ some P art 0I tne rea l estate of the ward, and that by such SALES OF REAL ESTATE. 173 partial sale the residue of the real estate, or of some specific piece or part thereof, would be greatly injured, the court may license a sale of the whole of the estate, or of such part thereof as the court shall judge necessary and most for the interest of all con- cerned. 1431 (4584.) Sec. 40. The guardian shall give bond to the judge g^f^ t0 of probate to account for the surplus of the proceeds of the sale, in like manner as is prescribed in this chapter in the case of a like sale by an executor or administrator. See C. L. (4552) and (4553.) A sale bond must be filed in all cases, but no formal order for that purpose is necessary. Stewart v. Bailey, 28 Mich., 251. 1431 (4585.) Sec. 41. No license shall be granted to any guard- when ian to sell real estate of his ward as provided in this chapter in tobepant'd without the any case excepting that of minors, unless the superintendents of approbation J r ° r of supenn- the poor of the county of which the ward is an inhabitant, or in indents of r J 1 poor. which he resides, shall certify to the judge of probate; in writing, their approbation of such proposed sale, and that they deem it It is provided in C. L. 603 (1818), that a majority of the per. sons appointed superintendents of the poor, shall be at all times competent to transact business, and to execute any powers vested in the board of superintendents. Osborne v. Supt's of Poor, 26 Mich., 66. 1431 (4586.) Sec 42. All those who are next of kin and heirs ^ n Xeof d apparent or presumptive of the ward shall be considered as inter- neann s- ested in the estate, and may appear as such and answer to the petition of the guardian; and when personal notice of the time and place of hearing the petition is required to be given, they shall be notified as persons interested, according to the provisions respect- ing similar sales by executors and administrators, contained in this chapter. As to who are next of kin, see "descent of real estate.'' See C. L. (4548). SALES OF REAL ESTATE BY FOREIGN GUARDIANS. 1431 (4587.) Sec. 43. When any minor, insane person, or spend- Foreign , . . guardian thrift, residing out of this State, shall be put under guardianship may file copy of his in the State or country in which he resides, and shall have no appointm'nt 174 SALES OF REAL. ESTATE. guardian appointed in this State, the foreign guardian may file an authenticated copy of his appointment in the probate court of any county in which there may be any real estate of the ward. In regard to what papers should be filed, and how authenti- cated. See Sec. (45 1 7) above. Maybeiicen 1431 (4588.) Sec. 44. After filing an authenticated copy of his sed to sell v ' rJ ™ a ^ es ' ate appointment, such foreign guardian may be licensed to sell the real estate for the payment of the debts of the ward, and the charges of managing his estate, in the same manner and upon the same terms and conditions as are prescribed in this chapter in the case of a guardian appointed in this State, excepting in the particulars wherein a different provision is hereinafter made. Guardian's sales are conducted the same as sales by executors and administrators. See Sec. (4582) above. Whenbond 1431 (4589.) Sec 45. "When it shall appear to the judge of and when probate that the foreign guardian is bound, with sufficient surety or sureties, in the State or country where he was appointed, to ac- count for the proceeds of such sale, and an authenticated copy of such bond shall be filed in the probate court, no further bond shall be required here ; otherwise he shall give bond in like manner as is prescribed in this chapter in the case of sales by foreign execu- tors or administrators. When a t ^ 4 ^ (4590.) Sec. 46. "When such foreign guardian is authorized than™° re to se ^ more than i s necessary to pay the debts and charges, he pay r debts slla h> before making the sale, give bond, with sufficient surety ^°ven. t0 be or suret i es > to the judge of probate, with condition to account be- fore such judge, for all the proceeds of the sale that shall remain after the payment of the said debts and charges, and to dispose of the same according to law. DISTRIBUTION OF THE SURPLUS OF PROCEEDS OF SALE OF REAL ESTATE. be'comw" 1432 ( 459L ) Sec - 47 - In a11 cases of a sale by an executor, ad- tate 1 real eS ' ministrator, or guardian, of part or the whole of the real estate of his testator, intestate, or ward, under a license granted by any pro- bate court, by virtue of the provisions of this chapter, whether such executor, administrator, or guardian was appointed in this State or elsewhere, the surplus of the proceeds of the sale, remain- 9 Pick'' 130 ing ° n tlle final settlement of the accounts, shall be considered as SALES OF REAL ESTATE. 175 real estate, and disposed of among the persons, and in the same proportions, as the real estate would have been by the laws of this State, if it had not been sold. The sale and conveyance by the administrator, under the order of the probate court, pass all the estate, right and interest of the deceased in the lands at the time of his death, and cuts off all the title of the heirs and all persons claiming under them ; but the surplus of the proceeds of the sale belongs to the heirs. If at the time of the sale, there are liens upon the lands by mortgage, exe- cuted by the heirs, or those claiming under them, or by judgment or decree against the heirs or those claiming under them, it is equit- able, that on a claim filed in the probate court, such liens should be admitted as a valid charge against the shares of the heirs in the surplus. Sears v. Mack's Assignees, 2 Bradford's Sur. R, 394. Close v. VanHusen, 19 Barb., 505. Campau v. Godfrey, 18 Mich., 27. The Hen of course would not technically become operative until after foreclosure or sale; but the courts seem inclined to treat the hen as an assignment of the surplus, to the extent of the lien. "When the heir sells and conveys all his interest in the real estate to another, the grantee takes all the interest of the heir in the surplus after sale. C. L. 1413 (4502). 1432 (4592.) Sec. 48. Every guardian, whether appointed in G " ardia ? *" this State or elsewhere, when licensed to sell real estate, as pro- before sale, vided in this chapter, shall, before making such sale, take and sub- scribe an oath like that required in the same case of an executor or administrator; and notice shall be given, and the proceedings shall be conducted, in the like manner as is prescribed in the case of an executor or administrator, and the evidence of giving such notice may be perpetuated in the same manner. For oath see C. L. (4566.) Notice of sale C. L. (4560.) 1432 (4593.) Sec. 49. If any person shall appear and object to To" 91 ""^ the granting of any license prayed for under the provisions of this C0SDS - chapter by an executor, administrator, or guardian, and if it shall appear to the court either that the petition or the objection thereto is unreasonable, the court may, in its discretion, award costs to the party prevailing, and may enforce the payment thereof. 1432 (4594.) Sec. 50. No action for the recovery of any estate Limitation , . . of actions to sold by an executor or administrator under the provisions of this recover es- J tate sold. 176 SALES OF REAL ESTATE. chapter shall be maintained by any heir or other person claiming under the deceased testator or intestate, unless it be commenced within five years next after the sale; and no action for any estate sold in like manner by a guardian shall be maintained by the ward or by any claiming under him, unless it be commenced within five years next after the termination of the guardianship, except as hereinafter provided. Caseofmin- 1432 (4595.) Sec. 51. The preceding section shall not apply to d™ b°rt r P ersons ou t of the State, nor to minors or others under any legal disability to sue at the time when the right of action shall first accrue; but all such persons may commence such action at any time within five years after the removal of the disability, or their return to this State. when sale 1433. (4596.) Sec 52. In case of an action relating to any on account estate sold by an executor, administrator, or guardian, in which tiesfwheiT an heir or other person claiming under the deceased, or in which etc. the ward or any person claiming under him, shall contest the 2 Mich. ,226, 531. validity of the sale, it shall not be avoided on account of any 6 Mich., 506. . 17 Mich., irregularity in the proceedings, provided it shall appear, — is Mich., First. That the executor, administrator, or guardian was licensed to make the sale by the probate court having jurisdiction; Second. That he gave a bond which was approved by the judge of probate, in case a bond was required upon granting a license; Third. That he took the oath prescribed in this chapter; Fourth. That he gave notice of the time and place of sale, as in this chapter prescribed; and 15 Mass., 175 Fifth. That the premises were sold accordingly, and the sale 9Cushing, confirmed by the court, and that they are held by one who pur- chased them in good faith: Provided, That in all cases where any Proviso. ° ' J person, or those under whom he holds, has been in actual posses- sion of any lands or premises for the period of ten years, holding and claiming under and by virtue of a deed executed by any exec- utor, administrator, or guardian, such deed shall be prima facie evidence of the regularity of all the proceedings from and includ- ing the application to sell such lands or premises, to the date and execution of the deed inclusive. A testator may by his last will direct his executors to sell his real estate to the best advantage, and invest the proceeds. This SALES OF REAL ESTATE. 177 is a general power in trust, and the executors or administrators are authorized to sell and convey such real estate without license from the probate court. Battelle v. Parks, 2 Mich., 531. Irreg- ularities in the proceedings by an administrator for the sale of real estate, will not affect the title of the purchaser, where there has been a compliance with the essential provisions of the statute, and the good faith of the purchaser is not questioned. Coon v. Fry, 6 Mich., 506; Howard v. Moore, 2 Mich., 226; Palmer v. Oakley, 2 Doug., 433. Where the petition for license to sell was not verified by oath, guardians were not appointed for infant heirs, and the report of sale did not show the price at which the land was sold, held, that none of these omissions affected the title of the purchaser. Coon v. Prey, 6 Mich., 506. "Where the license to sell did not contain a description of some of the lands, but the mistake was corrected in a supplemental order, held sufficient. Also held, that a failure to publish notice of the application for license to sell, the length of time required by statute, will not render the proceedings void. Where there was no affidavit of posting the notices of sale, but the administra- tor's sworn report duly confirmed showed that they were posted, and there was other proof that they were published in a newspa- per, it was held sufficient. Affidavits of posting notices made ten years after the sale, without the consent of the court, are not legal evidence. Woods v. Monroe, et al., 17 Mich., 238. 1433 (4597.) Sec. 53. If there shall be any neglect or miscon- Damages re duct in the proceedings of the executor, administrator, or guard- for miscon- -i- ti-ii'i - -i't duct in rela- ian m relation to such sale, by which any person interested m the tion to sale. 5 Pick., 521. estate shall suffer damages, such aggrieved party may recover the same in a suit on the probate bond, or otherwise, as the case may require. 1433 (4598.) Sec. 54. If the validity of a sale made by an exec- saienot utor, administrator, or guardian shall be drawn in question by certain ir- any person claiming adversely to the title of the deceased testator when title ' ... t .... contested by or intestate, or of the ward, or claiming under any title that is adverse claimant. not derived from or through the deceased person or the ward, the 12 Mich. 356. sale shall not be held void on account of any irregularity in the proceedings: Provided, It shall appear that the executor, adminis" 23 178 SALES OF REAL ESTATE. trator, or guardian was licensed to make the sale by a probate court having jusisdiction, and that he did accordingly execute and acknowledge, in legal form, a deed for the conveyance of the premises. After a guardian's sale, a person claiming adversely to the title of the ward, could not contest the validity of the sale, because the petition for license to sell was defective. A third person not claiming under the ward cannot contest the sale of real estate on the ground that the sale was a fraud upon the rights of the ward. A guardian has a clear right to redeem his ward's land from a mortgage sale. Marvin v. Schelling, 12 Mich., 356. Liability of 1434 (4599.) Sec. 55. Any executor, administrator or guard- executor, etc., for lan who shall fraudulently sell any real estate of his testator, intestate, or ward, contrary to the provisions of this chapter, shall be liable in double the value of the land sold, as damages, to be recovered in an action on the case by the person having an estate of inheritance therein. As to who has an estate of inheritance see " Descent of Real Estate." SALES OF REAL ESTATE. 179 SALES OF LANDS BY GUARDIANS FOR THE PURPOSE OF INVESTING THE PROCEEDS. 1434 (4600.) Section 1. "When the income of the estate of any y^^ p, ar . person under guardianship, whether as a minor, insane person, or stnVSss- spendthrift, shall not be sufficient to maintain the ward and his formppon, family, or to educate the ward when a minor, or the children of i9Mich.,296. such insane person or spendthrift, his guardian may sell his real estate for that perpose upon obtaining a license therefor, and pro- ceeding therein as provided in this chapter. 1434 (4601.) Sec. 2. When it shall appear satisfactorily to the wnensaie court, upon the petition of any such guardian, that it would be made, and for the benefit of his ward that his real estate, or any part thereof, out at inter- est, etc. should be sold, and the proceeds thereof put out on interest, or ■ invested in other more productive real estate, or in some produc- tive stock, his guardian may sell the same for that purpose, upon obtaining a license therefor, and proceeding therein as hereinafter provided. Parents are under obligation to support and educate their children. C. L. 1225 (3737), etc., and C. L. 1480 (4814). Schou- ler's Domestic Eel., 316. This fact should be considered by the court, in granting license to sell real estate for that purpose. 1435 (4602.) Sec. 3. If the estate is sold for the purpose men- Application of proceeds tioned in the first section of this chapter, the guardian shall apply of sale for r b rr J support, etc. the proceeds of the sale to such purpose, so far as necessary, and shall put out the residue, if any, on interest, or invest it in the best manner in his power, until the capital shall be wanted for the maintenance of the ward and his family, or for the education of the ward when a minor, or the children of such insane person or spendthrift, in which case the capital may be used for that pur- • pose, as far as may be necessary, in like manner as if it had been personal estate of the ward. 180 SALES OF REAL ESTATE. It is best always to get the previous order of the court, before using any of the ward's estate for the purposes mentioned in this section. Schouler's Domestic Eel., 457. investment 1435 (4603.) Sec. 4. If the estate is sold for the purpose of of saiefor S putting out or investing the proceeds, as provided in the second ward. section of this chapter, the guardian shall make the investment according to his best judgment, or in pursuance of any order that may be made by the probate court. Residue on 1435 (4604.) Sec. 5. In every case of the sale of real estate, as - mentconsid- provided in this chapter, the residue of the proceeds, if any, estUa 8 real remaining upon the final settlement of the accounts of the guard- 544. ' ianship, shall be considered as real estate of the ward, and shall be disposed of among the same persons, and in the same propor- tions, as the real estate would have been, if it had not been sold. See "Descent of Eeal Estate." Petition f 1435 (4605.) Sec. 6. In order to obtain a license for such sale, lo Mich 562 ^ e guardian shall present to the probate court of the county in which he was appointed guardian, a petition therefor, setting forth the condition of the estate of his ward, and the facts and circumstances on which the petition is founded, tending to show the necessity or expediency of a sale; which petition shall be ver- ified by the oath of the petitioner. "When the petition stated that a part only of the land was un- der improvement, and the balance unproductive ; that it is neces- sary that a portion of the proceeds of the land should be used to pay certain debts, incurred in behalf of the ward, and that in the opinion of the petitioner, it would be for the interest of the minor to have the land sold, and the proceeds' after paying the debts, put out at interest, is a sufficient compliance with the statute. Nich- ols v. Lee, 10 Mich., 526. The petition must show the condition of the ward's estate, and the necessity and purpose of the sale. Ryder v. Flanders, 30 Mich., 336. A guardian should not make an absolute sale of the real estate of his ward, and then apply to the court to ratify his sale; but should obtain leave of the court in the first instance. Dorr, peti- tioner, etc., Walk. Ch. 145. It would seem to be competent to have the petition signed and sworn to by an attorney in fact duly appointed; but in petitions of this nature, it would be best to re- SALE8 OF REAL ESTATE. 181 quire a power of attorney duly executed, and record the same with the other papers in the case. Estate of Wm. H. Eobinson, 6 Mich., 137. 1435 (4606.) Sec. 7. If it shall appear to the court from such orderto x ' shuw cause. petition, that it is necessary, or would be beneficial to the ward, that such real estate or some part of it should be sold, the court shall thereupon make an order, directing the next of kin of the ward, and all persons interested in the estate, to appear before such court at the time and place therein to be specified, not less than four nor more than eight weeks from the time of making such order, to show cause why a license should not be granted for , the sale of such estate. The same form of order for hearing may be used as in C. L (4547), by inserting the words "the next of kin of the ward." 1435 (4607.) Sec. 8. A copy of such order shall be personally service, etc., served on the next of kin of such ward, and on all persons inter- ested in the estate, at least fourteen days before the hearing of the petition, or shall be published at least three successive weeks in such newspaper circulating in the county as the court shall specify in such order. 1436 (4608.) Sec. 9. No such license shall be granted for the when certtf- i i p t • icate of su- saie of any real estate of a ward, excepting that of a minor, unless perintendnt of poor nec- the superintendents of the poor of the county of which the ward essary. is an inhabitant, shall certify in writing their approbation of the proposed sale. See Notes under Sec. (4585) above. 1436 (4609.) Sec 10. The judge of probate, at the time and Hearing of place appointed in such order, or at such other time as the hearing shall be adjourned to, upon proof of the due service or publication of the order, and upon filing the certificate of approbation of the superintendents of the poor, when necessary, shall hear and exam- ine the proofs and allegations of the petitioner, and of the next of kin, and all other persons interested in the estate who shall think proper to oppose the application. 1436 (4610.) Sec 11. On such hearing, the guardian may be Examina- examined on oath, and witnesses may be produced and examined dian, etc. by either party, and process to compel their attendance and testi- mony may be issued by the judge of probate, in the same manner and with like effect as in other cases. 182 SALES OF REAL ESTATE. when h- 1436 (4611.) Sec. 12. If, after a full examination, it shall appear CCOS6 to t)G granted. to the court, either that it is necessary, or that it would be for the benefit of the ward that the real estate or any part of it should be sold, such court may grant a license therefor, specifying therein whether the sale is to be made for the maintenance of the ward and his family, or for the education of the ward or his children, or in order that the proceeds may be put out or invested as afore- said. Bond to be 1436 (4612.) Sec. 13. Every guardian licensed to sell real estate guardian., as aforesaid shall, before the sale, give bond to the judge of pro- bate, with sufficient surety or sureties, to be approved by such judge, with condition to sell the same in the manner prescribed by law for sales of real estate by executors and administrators, and to account for and dispose of the proceeds. A sale bond is essential in all cases, and the omission of such a bond is a fatal defect. No formal order that a sale bond be filed is required. Stewart v. Bailey, 28 Mich., 251; Kyder v. Flanders, 30 Mich., 336. Where there has been a failure to properly account for the pro- ceeds of the sale of real estate, there seems to be some conflict in the authorities, as to the respective liability of the sureties on the general bond and on the sale bond. It has been held that where, as in our statute, 0. L. 1481 (4817) "Third," the original bond requires the guardian to account for the proceeds of the sale of real estate, the sureties on this bond are liable for any misapplica- tion of such proceeds, and the sureties on the sale bond are only liable for the failure of the guardian to properly discharge his duties in conducting the sale. Fay v. Taylor, 11 Met., 529; Withers v. Hickman, 6 B. Monroe, 292; Andrews' Heirs, 3 Humph., 592. Where a guardien sold land to invest the proceeds, but made no investment, and charged himself with the proceeds and the interest thereon as it accrued, held that the sureties on the sale bond were liable for the principal, and the sureties on the original bond for the interest. Mattoon v. Cowing, 13 Gray, 387. The weight of authority however seems to be in favor of holding the. sureties on the sale bond responsible for the proper application of the pro- ceeds of a sale of real estate by a guardian. Williams v. Morton, 38 Maine, 47; Brooks v. Brooks, 11 Oush., 22; Potter v. State, 23 SALES OF REAL ESTATE. 183 Ind., 607. For general discussion of this subject, see Schouler's Domestic Eel., 493, and Smith's Probate L., 237, note. 1436 (4613.) Sec. 14. Such guardian shall also, before making Oatnofof- such sale, take and subscribe an oath, in substance like that required in the preceding chapter to be taken by an executor, administrator, or guardian when licensed to sell real estate pur- suant to the provisions of that chapter. The oath may be taken at any time before sale. This section was amended by Act No. 104, L. 1871; so that case of Ryder v. Flanders, 30 Mich., 336, does not apply. 1436 (4614.) Sec. 15. He shall also give public notice of the Noticeof time and place of sale, and shall proceed therein in like manner J? ,-* 5 , 82 - r > r 19 Mioh. 296. as is prescribed in the case of a sale by a guardian in the preced- ing chapter; and the evidence of the giving of such notice may be perpetuated in like manner, and with the same effect, as is provided in like cases in that chapter. The notice must be the same as required in sales by executors and administrators. C. L. (4582) and (4560). 1437 (4615.) Sec 16. No license granted in pursuance of this License not chapter, shall be in force more than one year after granting the force mOT e same. y ear - See notes under Sec. (4558). SALES OF REAL ESTATE BY FOREIGN GUARDIANS. 1437 (4616.) Sec. 17. When any minor, insane person, or when for- - ■ - - - eign giiardi- spendthrift, residing 'without this State, shall be put under guard- an may aie copy of his ianship in the State or country in which he resides, and shall have appoint- * J 4 ment. no guardian appointed in this State, the foreign guardian may file an authenticated copy of his appointment in the probate eourt, in any county in which there may be any real estate of the ward. See notes under Sec. (4577). 1437 (4617.) Sec. 18. After filing such authenticated copy of Fo ^ n his appointment, such foreign guardian may be licensed by the "JL^Jj" probate court of the same county, to sell the real estate of the seU - ward in this State, in the same manner and upon the same terms and conditions, as are prescribed in this chapter in the case of a guardian appointed in this State, excepting in the particulars here- inafter mentioned. See Sec. (4582) and (4556). 184 SALES OF REAL ESTATE. Manner of 1437 (4618.) Seg. 19. Every foreign guardian so licensed to sale, etc. sell real estate shall take and subscribe the oath required in the like case of guardians appointed in this State, and shall give notice of the time and place of sale, and conduct the same in the man- ner prescribed for guardians appointed here, and may perpetuate the evidence of notice in the same manner. See Sec. (4592) and (4566) and (4582) and (4560). Disposition 1437 (4619.) Sec. 20. Upon every such sale by a foreign guard- on final set- ; an the proceeds of the sale, or as much thereof as may remain guardian U P 011 the final settlement of the accounts of the guardianship, shall fSaas. 518. ^ e considered as real estate of the ward, and shall be disposed of 9 Pick., 130. amon g the same persons and in the same proportions as the real estate would have been according to the laws of this State, if it had not been sold ; and such foreign guardian shall in every case, before making the sale, give bond with satisfactory surety or sure- ties to the judge of probate, with condition to account for and dis- pose of the same accordingly. A sale bond must be required in all cases, and the omission of such a bond is a fatal defect. No formal order that a sale bond be filed is necessary. Stewart v. Bailey, 28 Mich., 251. When the 1437 (4620.) Sec. 21. If any person shall appear and object to award costs the granting of any license prayed for under the provisions of this to prevail- ° ° J r j r ing party, chapter, and it shall appear to the court that either the petition or the objection thereto is unreasonable, said court may, in its discre- tion, award costs to the party prevailing, and enforce the payment thereof. Limitation 1437 (4621.) Sec. 22. No action for the recovery of' any estate ward, etc., sold by a guardian under the provisions of this chapter, shall be to recover estate sold maintained by the ward, or by any person claiming under him, bygnardian. . . n . „ unless it be commenced within five years next after the termina- tion of the guardianship; excepting only that persons out of the State, and minors, and others under legal disability to sue at the time when the cause of action shall accrue, may commence their action at any time within five years next after the removal of the disability, or after their return to the State. Sale not 1438 (4622.) Sec. 23. In case of an action relating to any account of estate sold by a guardian under the provisions of this chapter, in uiarities. which the ward, or any person claiming under him, shall contest 19 Mich. 296. J e ° SALES OF REAL ESTATE. 185 the validity of the sale, the same shall not be avoided on account of any irregularity in the proceedings, provided it shall appear — First. That the guardian was licensed to make the sale by a probate court of competent jurisdiction; Second. That he gave a bond which was approved by the judge of probate, in case any bond was required by the court upon granting -the license. A sale bond must be filed in all cases, and the omission of such a bond is a fatal defect. No formal order that such a bond be filed is necessary. Stewart v. Bailey, 28 Mich., 251. Third. That he took the oath prescribed in this chapter; Fourth. That he gave notice of the time and place of sale as prescribed by law ; and Fifth. That the premises were sold accordingly by public auc- tion, and are held by one who purchased them in good faith. 1438 (4623.) Sec. 24. If, in relation to such sale, there should lability of x ' . _ guardian for be any neglect or misconduct in the proceedings of the guardian, misconduct, by which any person interested in the estate shall suffer damage, such aggrieved party may recover such damage, in a suit on the bond of such guardian, or otherwise, as the case may require. 1438 (4624.) Sec 25. If the validity of any sale, made by a when sale guardian under the provisions of this chapter, shall be drawn in yoid, In case question by any person claiming adversely to the title of the ward, claimant, or claiming under any title that is not derived from or through the ward, the sale shall not be held void on account of any irreg- ularity in the proceedings: Provided, It shall appear that the guardian was licensed to make the sale by the proper probate court, and that he did accordingly execute and acknowledge, in legal form, a deed for the conveyance of the premises. A confirmation of the guardian's sale is necessary, to author- ize the conveyance by the guardian. A party claiming to be the highest bidder at a guardian's sale, must tender payment and per- formance within a reasonable time, to entitle himself to the rights of a purchaser. The People v. The Circuit Judge, 19 Mich., 296. 24 186 MORTGAGE OF REAL ESTATE. MORTGAGE OF REAL ESTATE BY EXECU- TORS, ADMINISTRATORS, OR GUARDIANS. Judge of 1438 (4625.) Section 1 . The People of the State of Michigan enact, order exS That the several judges of probate may, by order, license and g^e estate empower any executor, administrator, or guardian, for the pur- purposes, pose of paying the debts against the estate of any deceased per- son, or supporting or paying the debts of any ward, to borrow money by the way of mortgage on such estate, or any part thereof, or otherwise pledge the same. For forms see Appendix. Affidavit for 1439 (4626.) Sec. 2. Such order shall be obtained by petition ° rdCT - to the proper Judge of probate, which petition shall contain the like statements as are required in a petition for license to sell real estate by such executor, administrator, or guardian, of which Notice of. application the same notice shall be given, with the same effect, as is now required in the case of an order to sell the estate of deceased persons or wards; and such order shall specify the Contents of. amount to be secured by such mortgage or other security, the rate of interest to be given, and the length of time for which such mortgage or other security shall be given, and also the description of the property to be mortgaged or otherwise pledged; which mortgage, or other security, the said executor, administrator, or guardian shall execute with all the formalities required by law for such securities. For petition see (4546.) Notice see (4548.) The order granting license must specify the amount to be secured by the mortgage, the rate of interest, length of time it is to run, and a description of the property mortgaged. The petition and order should be for a larger amount and greater length of time than is actually required, and should fix the interest at ten per cent., pay- able semi-annually, because in actual practice it is hardly possible to obtain just the amount the administrator requires, or get the MORTGAGE OF REAL ESTATE. 187 exact time or rate of interest that is desired. A report of the mortgage should always be made to the court, and a confirmation of the report for a less sum than is ordered or for a less time and rate of interest would be valid. Such a mortgage could not cut off or affect the widow's dower, or the homestead rights of the widow and minor children. C. L. 1392 (4406) and 1359, etc., and C. L. 77, See's 3 and 4, and 1749 (6137.) All proceedings under this statute should be taken expressly subject to these rights. The reversion of the widow's dower might perhaps be mort- gaged under this statute. C. L. (4559.) 1439 (4627.) Sec 3. That before executing such order, such Executor, , . . , ,. .,,...,.,.., etc., togive executor, administrator or guardian shall give bond m like man- bonds. ner and form, as near as may be, as is now required from them by law in case of the sale of such estate, to faithfully execute the trust, and apply and account for moneys thereby received; and said proceedings of the said executor, administrator, or guardian, Conflrma _ in mortgaging or otherwise pledging such estate, shall be reported S" e o£ mor<> to the judge of probate, and by him be subject to be confirmed or vacated, and new proceedings to be had, to the same extent and in the same manner, as near as may be, as is now provided by law in the case of the sale of real estate. For bond see Sec. (4552.) Report see Sec. (4564.) 188 LAND CONTRACTS. SPECIFIC PERFORMANCE BY EXECUTORS AND ADMINISTRATORS OF THE CON- TRACTS OF DECEASED PERSONS FOR THE CONVEYANCE OF REAL ESTATE. FIRST.— CONTRACTS NOT EXCEEDING ONE THOUSAND DOL- LARS, WHERE NO ACTION OF THE COURT TS REQUIRED. 1395 (4419.) Sec. 19. That in case a person shall have con- bxecutorsor K ' L administra- tracted or shall contract, for a sum not exceeding one thousand tors may en- ' ° Sent on con- dollars, expressed in the contract, to convey any land, or right, by^oraiSgn- interest, or claim in or to lands, and shall have died, or shall die, ceaaedper- before, he shall have executed, or shall execute, deeds or con- sons ' veyances in pursuance of such contract, leaving such contract subsisting and in force, or if such contract shall have been assigned, or shall be assigned, then if the assignee of such contract,, entitled to the benefit thereof, and grantee of such contracted premises subject to the contract, shall have died, or shall die, before the deeds or conveyances shall have been executed of the contracted premises in pursuance of such contract, leaving such contract sub- sisting and in force, the executors or administrators of such deceased person, whether the party contracting or his assingee, may demand and enforce payment of the moneys part due or fall- Andmayde- ^°S due on su °h contract; and in case a cause of forfeiture of such traotsTor" contract shall have accrued, or shall accrue, and not waived, may certain case, declare such contract forfeited; and when such contract shall have been performed so as to entitle the party thereto, or his assigns, And may ex- ecute and to nave a deed or conveyance to mm executed under the terms ot deliver deeds at the contract of the premises thereby contracted, the executors or their option. administrators shall be authorized and empowered (if they shall deem it expedient) to execute, duly acknowledge, and deliver deeds or conveyances of the contracted premises in pursuance of the terms of the contract, to the party contracting to purchase, or LAND CONTRACTS. 189 his assigns, with like effect as if the party contracting to convey had himself executed and delivered such deed or conveyance: Provided, That every deed or conveyance to be executed as afore- proviso. said shall contain a reference to the date and respective parties to Deed to con- the contract in pursuance of which it purports to have been made; encetodate, and a copy of the original contract under which the grantee tract. named in such deed or conveyance makes' his claim, and of any original con- tract and of assignment thereof under which he claims, shall be annexed to or any assign- ment there- embodied in every such deed or conveyance, and shall be deemed °f part and parcel thereof, and as such shall be recorded therewith; . and whenever the persons who contracted to purchase shall have sued to . . r r name of de- deceased, the deed or conveyance for the contracted premises, and l^^ r con ' embodying the substance of the contract, or a copy of it, may be executed and issued to and in the name of such deceased person, and when so executed and issued shall have the same effect as though it had been executed and delivered during the lifetime of such person: And provided further, That when the contract for Further pro- any lands, or any right, interest, or claim in or to lands heretofore " contracted to be sold, shall have been forfeited, and shall have etc., under ' been duly declared to have been forfeited, as aforesaid, all such contracts to be treated. lands, and rights, interests, and claims in or to lands; shall, to all intents and purposes, be thenceforth deemed to be held, and shall be treated in the same menner, as lands purchased at mortgage sales by executors or administrators under and in pursuance of section thirteen of said chapter ninety-five of the Compiled Laws. Money due the testator at his decease upon a contract for the sale of real estate made by him, no deed having been executed, is to be treated as a part of his real estate. 0. L. 1414 (4503). In case such contracts are forfeited and the executor, etc., re- covers back the land, and it is not sold .to pay debts, it is to be distributed among the heirs the same as personal estate, and in case partition becomes necessary, it must be partitioned in the same manner as real estate. See foot of above Sec. (4419.) And also C. L. 1393 (4413) and (4415). Sec. 13, of Chap. 95 of C. L., referred to at the foot of the above section is C. L. 1393 (4413). No action of the probate court is required under this section, the executors, etc., act and are governed entirely by their own 190 LAND CONTRACTS. discretion. An administrator has no authority to waive or release a contract made by his intestate for the purchase of lands, unlesB the personal property is insufficient to pay the debts, and then only by order of the probate court duly obtained. Hunt v. Thorne, 2 Mich., 213. An administrator must obtain license in the same manner as for the sale of real estate, to sell the interest of the estate in an executory contract for the purchase of lands. Baxter v. Robin- son, 11 Mich., 520. SECONDLY.— CONTRACTS REQUIRING THE ACTION OF THE' PROBATE COURT. when court 1419 (4530.) Section 1. When any person who is bound by a may decree conveyance contract in writing to convey any real estate shall die before mak- b\ executor, ° J J etc. ing the conveyance, the probate court may make a decree author- 9 Jfich., 246. j zm g a nd directing the executor or administrator to convey such real estate to the person entitled thereto, in all cases where such deceased person, if living, might be compelled to execute such conveyance. The probate court should only act in case of contracts complete in themselves. If the case presented is such that it requires a decree of the court, to determine first, that the instrument is a contract, the parties should be left to their remedy in a court of chancery. See See's (4535) and (4536) below, and C. L. 1559 (5197.) The only decree the probate court can make, is a decree authorizing and directing the executor, etc., to make and execute a conveyance of the land to the petitioner. See Sec. (4533) below. The probate court should not entertain jurisdiction of a parol contract for conveyance of land. It seems that the courts may decree specific performance where the land is located out of the State. Fry on Specific Performance of Con., 69; Holcombe's Instruction to Equity, 127. Notice of L - 1875, p. 212, Act No. 184 (4531.) Sec. 2. On the presents- petMonfor tion of a petition by any person claiming to be entitled to such o?"eai es-° e conveyance from any executor or administrator, setting forth the ceased per- facts upon which such claim is predicated, the judge of probate shall make an order appointing a time and place for hearing such petitition, a copy of which order shall be published at least once LAND CONTRACTS. 191 in each. week for four successive weeks, before the time fixed for such hearing, in such newspaper or newspapers in this State as the court shall direct, or cause a copy of such order to be person- ally served upon the heirs at law or other parties interested in said estate, at least twenty days before the day of said hearing. Approved May 1, 1875. 2056 (7455.) Sec. 2. All legal advertisements shall be published Legal adver- . . , . ^ . tisements to in a newspaper printed m the county m which the proceedings are be published in comity carried on, if there be one, and if no newspaper be printed in such where pro- ceedings are county, then such advertisements shall be published in a newspa- carried on. per published in an adjoining county, or in a paper published nearest to said county in which such proceedings are had. 1420 (4532.) Sec 3. At the time and place appointed for such Examina- v ' tion of peti- hearing, or at such other time as the same may be adjourned to, tioner, etc. upon proof by affidavit of the due publication of the notice, the court shall proceed to a hearing, and all persons interested in the estate may appear before the probate court and defend against such petition; and the court may examine on oath the petitioner and all others who may be produced before him for that purpose. 1420 (4533.) Sec. 4. After a full hearing upon such petition, wjiende- and examination of the facts and circumstances of such claim, if veyance to " the judge of probate shall be satisfied that the petitioner is enti- tled to a conveyance of the real estate described in his petition, according to the provisions of this chapter, he shall thereupon make a decree, authorizing and directing the executor or admin- istrator to make and execute a conveyance thereof to such peti- tioner. 1420 (4534.) Sec. 5. Any person interested may appeal from Appeal from Q6CF66. such decree to the circuit court for the same county, as in other cases; but if no appeal be taken from such decree within the time limited therefor by law, or if such decree be affirmed on appeal, it shall be the duty of the executor or administrator to execute the conveyance according to the direction contained in such decree; and a certified copy of the decree shall be recorded with the deed, in the office of the register of deeds in the county where the lands lie, and shall be evidence of the correctness of the pro- ceedings, and of the authority of the executor or administrator to make the conveyance. For appeals see C. L. 1562 (5216.) 192 LAND CONTRACTS. whenpeti- 1420 (4535.) Sec. 6. If, upon a hearing in the probate court as dismissed, hereinbefore provided, the judge of probate shall doubt the right of the petitioner to have a specific performance of the contract, he shall dismiss the petition without prejudice to the rights of the petitioner, who may at any time thereafter have a bill in chancery to enforce a specific performance of tne contract, as hereinafter provided. THIRDLY— CONTRACTS ENFORCED IN CHANCERY. Biiisinchan- 14 20 (4536.) Sec. 7. Whenever any person who is bound by a cfficper- 8pe ~ contract in writing to convey any real estate, shall die before mak- 9°Mich n °246. i n g the conveyance, the person entitled thereto may have a bill in the court of chancery, to enforce a specific performance of the contract by his heirs, devisees, or the executor or administrator of the deceased party who made such contract. For decisions of the supreme court of this State upon the sub- ject of the specific performance of contracts, see Cooley's Digest, 354, "Specific Performance." A defective deed may be enforced in chancery, as a contract for the conveyance of the land. See L. 1873, p. 240., Act No. 174. Decree in 1421 (4537.) Sec. 8. The court of chancery shall hear and determine every such case brought in said court, according to the course of proceedings " in chancery, and shall make such decree therein as justice and equity shall require, who to be 1421 (4538.) Sec. 9. If it shall appear that the complainant is to make con- entitled to have a conveyance, the court may authorize and require the executor or administrator of the deceased party to convey the estate in like manner as the deceased party might and ought to have done if living; and if the heirs or devisees of such deceased person, or any of them, shall be within this State, and competent to act, the court may require them, or either of them, instead of the executor or administrator, to convey the estate in the manner before mentioned, or may require them, or either of them, to join in such conveyance with the executor or administrator. Effect of 1421 (4539.) Sec. 10. Every conveyance made in pursuance of conveyance. & <} ecree f the probate court or the court of chancery, as pro- vided in this chapter, shall be effectual to pass the estate contracted LAND CONTRACTS. 193 for, as fully as if the contracting party himself was still living, and then executed the conveyance. 1421 (4540.) Sec. 11. A copy for the decree for a conveyance, Certified made by the probate court, and duly certified and recorded in the <*ee may be . recorded; registry of deeds in the county where the lands lie, or a copy of eBe f of re - the decree of the court of chancery for that purpose, duly certi- fied by the register of said court and recorded as aforesaid, shall give the person entitled to such conveyance a right to the posses- ion of the lands contracted for, and to hold the same according to the terms of the intended conveyance, in like manner as if they had been conveyed in pursuance of the decree. 1421 (4541.) Sec. 12. The recording of any decree, as provided Decree may in the preceding section, shall not prevent the court making such by process, decree from enforcing the same by any proper process, according to the course of proceedings therein. 1421 (4542.) Sec. 13. If the person to whom the conveyance in ease of death of per- was to be made, shall die before the commencement of pro- son entitled, his heirs, etc ceedings according to the provisions of this chapter, or before the may com- mence or conveyance is completed, any person who would have been entitled prosecute J j. / ^ j. proceedings. to the estate under him as heir, devisee, or otherwise, in case the 9 Mich -» M6 - conveyance had been made according to the terms of the contract, or the executor or administrator of such deceased person, for the benefit of the person so entitled, may commence such proceedings, or may prosecute the same if already commenced; and the con- veyance shall thereupon be so made as to vest the estate in the same persons who would have been so entitled to it, or in the executor or administrator for their benefit. SPECIFIC PERFORMANCE, BY GUARDIANS, OF THE CONTRACTS OF DECEASED PERSONS FOR THE CONVEYANCE OF LANDS. 1422 (4543.) Sec 14. Whenever in the distribution or partition when pro- of the estate of any person, whether such person died testate or may author- . , . ize guardian intestate, any moneys due or to become due upon a contract m ofaminorto convey real writing for the sale of real estate made by such deceased in his estate, lifetime, or any such contract or lands therein described, shall be assigned or set off to any minor, the probate court having juris- diction of the estate of such minor may make a decree authoriz- 25 194 LAND CONTRACTS. ing and directing the guardian of such minor to convey such real estate to the person entitled thereto, in like cases, and upon the the presentation of a like petition, either by the person entitled to such conveyance, or by the guardian of such minor; and the same proceedings shall thereupon be had, and with like effect, as herein provided for conveyance by executors and administrators. 1422 (4544.) Sec. 15. The guardian of any such minor may, in the cases provided for in the last section, embrace any number of such contracts that may have been so assigned and set off to such one petition, minor, in one petition, and such probate court, on the hearing of such petition, may decree a conveyance of the real estate, pursu- ant to the terms of such contracts, to the several persons entitled thereto, in the same manner and with like effect as hereinbefore provided. Guardian may em- brace any number of assigned contracts in ACCOUNTS. 195 RENDERING ACCOUNTS BY EXECUTORS AND ADMINISTRATORS. 1409 (4481.) Section 1. Every executor and administrator what elcecu . shall be chargeable in his account with the whole of the goods, chargeable chattels, rights, and credits of the deceased, which may come to 7 Mich., 350. his possession; also, with all the proceeds of the real estate which may be sold for the payment of debts and legacies, and with all the interest, profit, and income which shall in any way come to his hands from the estate of the deceased. In making up bis account, the executor, etc., should first charge himself with all moneys received, no matter whether for property inventoried or not, and should state from whom and for what each item is received. He should then credit himself with all moneys paid out, showing to whom and for what each item was paid. This is generally all that it is necessary to include in any account, except the final account. In the final account there should be added to the above, an itemized statement of all the property remaining, or on hand, giving full descriptions of the real estate, and as complete as possible, condensed descriptions of the personal property, and also stating as near as possible the con- dition and value of each item or description. The account should also show how much of the balance of cash, or other personal property, is the proceeds of the sale of real estate. The final account should contain a statement, that the funeral charges, expenses of the last sickness of the deceased, and of administering his estate, together with all claims allowed against it have been paid. It should also contain the names of the legatees or heirs at law, their ages and places of residence, if possible. In case an executor or other trust officer dies before rendering his account, it should be rendered by his executor or administra- tor. Gregg v. Gregg, 15 N. H., 190. It has been held that the account in such cases may be settled by the administrator of one of the sureties. Curtis v. Bailey, 1 196 ACCOUNTS. Pick., 199. It is doubtful whether the probate court can compel the legal representative of the deceased executor, etc., to render the account. Farnsworth v. Oliphant, 19 Barb., 30. If the account is not voluntarily rendered by the representative of the deceased executor, etc., the administracor de honis non of the estate requir- ing the account should present a claim against the estate of the deceased executor, etc., to recover any balance due from him. Dakin v. Demming, 6 Paige, 95. It might be best, however, to' to take proceedings in the court of chancery in suchcases. C. L. 1559 (5197); 2 Williams on Executors, 1817 to 1819; Dayton on Surrogates, 583. A general accounting of matters extending over more than one State, should be had in the forum of the home administration, rather than in that of an ancillary administration. Spoon v. Bax- ter, 31 Mich., 279. The statute, C. L. 1857, p. 882 (2904), giving the executor or administrator the right to the possession of all the real estate and authority to receive the rents, issues and profits of the same, was repealed by Act No. 66 of L. 1871, p. 80. Campau v. Campau, 25 Mich., 127. Now the real estate descends to the heir, who alone is entitled to the possession, and to all subsequent rents and profits, and may sell it, subject to the right of the executor, etc., to sell or mortgage it for the payment of debts. Streeter v. Paton, 7 Mich., 350; Thayer v. Lane Wal. Ch, 200; Marvin v. Schelling, 12 Mich., 356; Campbell, appellant, 2 Doug., 146. Even if the estate is insolvent, the heirs are entitled to all rents and profits from the real estate after the death of the deceased, until the land is sold under the license of the court for the pay- ment of debts. Gibson v. Farley, 16 Mass., 280; Boynton v. P. & S. Bailroad, 4 Cush., 469. If the executor, etc., should occupy and use the real estate, he will be charged with the rent therefor. Walls v. Walker, 37 CaL, 424. The executor or administrator having no authority or control over the real estate, should not pay the taxes assessed upon it sub- sequent to the death of the deceased, and should not pay mort- gages on real estate conveyed by the deceased or whereof he died seized, which he was not under personal obligation to pay, for such payment cannot be allowed in his account. They are charges ACCOUNTS. 197 on the real estate which the heir must pay. Willcox v. Smith, 26 Barb., 316 and 337; 4 Bradl, 216, and 3 Bradl, 207. The real estate of deceased persons should be assessed to the widow and heirs. Cooley on Taxation, 278. The personal estate of deceased persons must be assessed to the executor or administra- tor until it is distributed. C. L. 362. The real and personal estate of a minor should be assessed to the guardian. C. L. 362; Cooley on Taxation, 271. The executor, etc., paying such charges may be allowed to deduct them from the distributive share of the heirs in the personal estate. Banks v. Tayler, 10 Abbott, Pr. B. 199. The executor, etc., has no authority to pay notes and bonds secured by mortgage until they are allowed as claims against the estate the same as other claims. Clark v. Davis, et al., decided June T. of S. C, 1875. 1409 (4482.) Sec. 2. Every executor and administrator shall To account for personal account for the personal estate of the deceased, as the same shall estate at ap- praisal. be appraised, except as provided in the following sections. 1409 (4483.) Sec. 3. An executor or administrator shall notNottopro- ' fit by in- make profit by the increase, nor suffer loss by the decrease or crease, or r J J lose by des- destruction, without his fault, of any part of the personal estate; traction, J r r etc., without and he shall account for the excess, when he shall sell any part of M « fault - the personal estate for more than the appraisal; and if he shall sell any for less than the appraisal he shall not be responsible for the loss, if it shall appear to be beneficial to the estate to sell it. An executor or administrator should not be charged with inter- est upon moneys received by him unless he has made some profit- able use of it or has been guilty of negligence in accounting for it. Hallv. Grovier, 25 Mich., 428; Wyman v. Hubbard, 13 Mass., 232; Stearns v. Brown, 1 Pick., 530; Boynton v. Dyer, 18 Pick., 1; Spear v. Tinkham, 2 Barb. Ch., 211; Jacot v. Bmmett, 11 Paige, 142; Saxton v. Chamberlain, 6 Pick., 422. An executor, etc., is not expected to invest the moneys received, unless authorized to do so by the will, but should deposit them in his name as executor, etc., in a bank that is reputed to be safe and able to meet its liabilities. 3 Bedfield on Wills, 394. If the executor, etc., refuses to pay over the moneys in his hands after an order of court to do so, or after demand when it is his duty to pay without an order, he will be chargeable with interest. Wyman 198 ACCOUNTS. v. Hubbard, 13 Mass., 232. If the delay is not by his fault he will only be chargeable with the interest he receives on the moneys. Lamb v. Lamb, 11 Pick., 374. Each case should be determined upon its own merits. Olarkson v. DePeyster, 2 Wend., 77; Schiffelin v. Stewart, 1 Johns Oh., 620; Jennison v. Hopgood, 10 Pick., 77. If the executor, etc., employs the trust funds in his own business, he will be liable to be charged with compound inter- est. Boyntonv. Dyer, 18 Pick., 1; Bobbins v. Hayward, 1 Pick., 527; 1 Johns Ch., 620. For general discussion of the subject see 3 Redfield on Wills, 396. The executor, etc., should exercise the same care in regard to the keeping, preservation and management of the estate, as a pru- dent man would exercise in the management of his own affairs. 3 Redfield on Wills, 394. The executor, etc., should be allowed interest on all moneys which he is obliged to advance for the benefit of the estate, as in case repairs are absolutely necessary, or a mortgage must be redeemed to preserve the estate, etc. 3 Redfield on Wills, 404. Goodrich v. Leland, 18 Mich., 110. when sale of 1409 (4484.) Sec. 4. The probate court, on the application of tatemaybe * ne executor or administrator, may, at any time, order the per- ordered. son al estate be sold at private sale or at public auction, when it shall appear to be necessary for the purpose of paying debts or legacies, or expenses of administration, or for the preservation of the property, or when it shall be requested by all the heirs resid- ing in this State ; or the court may order such personal estate to be sold, either at private sale or public auction, as the executor or administrator may find most beneficial. If the order be to sell at auction, the probate court shall direct the mode of giving notice of the time and place of sale. Executor, 1410 (4485.) Sbc. 5. When the executor or administrator shall count "for sell personal estate, under an order of the probate court, he shall saie Cee " account for the same at the price for which it shall be sold. When the executor, etc., can sell the personal property for its appraised value, he may sell without the order of court, and report the same in his account, and the allowance of the account is equivalent to a previous order, Smith's Probate L., 111. When the executor sells upon credit he ought to take proper ACCOUNTS. 199 security. Rareman v. Pless, 65 N. H., 374; Hasbrouck v. idem 27 N. Y. (13 Smith,) 182. The fact that the executor, etc., violated his duty on making the sale, will not invalidate the title of the purchaser. Seitch v. "Wells, 48 N.Y., 585. It is best however, in very large sales, and when there is dan- •ger of trouble with the heirs, to get a previous order before sell- ing personal property. This statute is directory merely, and personal estate, including notes and mortgages, may be sold, assigned and transferred, by executors, etc., without obtaining license. Burt v. Ricker and others, 6 Allen, 77; 3 Re'dfield on Wills, 129 and 226. The exec- utor, etc., should describe himself as executor, etc., in the assign- ment. The executor, etc., may transfer and endorse notes and bills payable to the order of the deceased, but should make the endorsement without recourse. The executor, etc., may sell choses in action, belonging to the estate, at a discount, if it is best to do so. 3 Redfield on Wills, 236. If the executor, etc., becomes the purchaser of the personal estate, he will be held to account for the utmost value of the property. Williams on Ex'rs, 801; Campbell v. Johnson, 1 Sand. Oh. 148; Van Epps v. Van Epps, 9 Paige, 237, 1 Bradf., 34. Property sold by executors and administrators is exempt from auction duties. C. L. 415, "Third." 1410 (4486.) Sec. 6. No executor or administrator shall be ^ accountable for any debts due to the deceased, if it shall appear f^™^| bIe that they remain uncollected without his fault. cSUlt The executor, etc., should proceed to collect all debts as soon as they are due, unless he is willing to become personally respons- ible for them. Cooley v. Vansycle, 1 McCarter, (N. J.,) 496; Roberts v. Sommers, 47 Ga., 435; Oglesby v. Howard, 43, Ala., 144. 1410 (4487.) Sec. 7. The executor or administrator shall also To amount be accountable for the income of the real estate while it shall f real es- remain in his possession; and, if he shall use or occupy any part of it, he shall account for it as may be agreed upon between him and the parties interested, or adjudged by the probate court with their assent; and if the parties shall not agree upon the sum to be 200 ACCOUNTS. allowed, the same may be ascertained by one or more disinterested persons, to be appointed by the probate court, whose award, being accepted by such court, shall be final. The statute giving executors, etc., possession of the real estate and the right to the rents and profits thereof, has been repealed. See notes under (4481). If, however, the executor, etc., gets pos- session of the real estate by agreement with the heirs, or other- wise, he must account for the rents and profits thereof as above provided. Executor, 1410 (4488.) Sbo. 8. When an executor or. administrator shall countable neglect or unreasonably delay to raise money by collecting the casionedby debts or selling the real or personal estate of the deceased, or shall 19 Mich'., neglect to pay over the money he shall have in his hands, and the value of the estate shall thereby be lessened, or unnecessary cost or interest shall accrue, or the persons interested shall suffer loss, the same shall be deemed waste, and the damages sustained may be charged against the executor or administrator in his account, or he shall be liable therefor on his administration bond. Accounts, 1410 (4489.) Sbo. 9. Every executor or administrator shall be rendered, render his acconnt of his administration within one year from the 6 Pick 422 'time of his receiving letters testamentary or of administration, unless the court shall give permission to delay, in consideration that the time for selling the estate and paying the debts shall be extended; and he shall render such further accounts of his admin- istration from time to time, as shall be required by the court, until the estate shall be wholly settled; and he may be examined on oath upon any matter relating to his account. Judge of L - 1873 > P-. 127 > Act - No - 95 - Sec - l The People of the State notify exec- °f Michigan enact, That it shall be the duty of the judge of pro- guardians to bate of any county in this State to notify and require all persons render ac- appointed executor or administrator of any estate, or guardian of any minor children, or of any incompetent person within his county, to appear at his office within one year from the date of their appointment as such administrator, executor, or guardian, and at least once in each year thereafter during the continuance of the administration or guardianship, and at such other time as he may direct, to render unto him an accurate account of all moneys and other property in their hands as such executor, administrator or guardian, and the proceeds and expenditure thereof. count. ACCOUNTS. 201 Sec. 2. The judge of probate shall give at least two weeks' Notice of ■ o i meeting for notice of the time and place of meeting for the purposes of hear- purpose of bearing ac- ing such account, which notice shall be personally served upon count, such administrator, executor, or guardian, and to all other persons interested in said estate, such notice may be given personally or by publication under the direction of said judge of probate. Sec. 3. In case any such executor, administrator, or guardian, FaUuret0 shall fail to appear at the time and place specified in the notice, or ^Je^count to render .to the judge of probate a satisfactory statement of his moral, accounts, then it may be lawful and shall be the duty of the judge of probate to remove such executor, administrator, or guardian, and to appoint some suitable person in his place, who shall give the same bonds, discharge the same duties, and be liable to the same penalties as is now provided by law. This act is mandatory, and the court can exercise no discretion in the premises. It makes it the duty of the judges of probate, upon their own motion, to require executors, etc., to render an account of their administration at least once in each year, and to give the notice of the hearing of the same, as above provided. It is the evident design of this statute that notice shall be given of the hearing, examination, and allowance of the account in every instance, and that the accounts shall in all cases be disposed of ( so that the matters of the administration during each year may be fully settled at the expiration of the year. This statute prop- erly enforced will tend greatly to preserve all estates, and protect executors, etc., and their sureties against loss. Smith v. Law- rence, 11 Paige, 206. The annual account duly heard and allowed is only conclusive upon the items actually included in it. Walls v. Walker, 37 Oal., 424. 1561 (5212) Sec. 21. When any executor, administrator, when oath i . - i i -l x ma y ^ e *"*" guardian, or trustee, who is required to make oath to any account, ministered . j by judge out is unable, by reason of sickness or otherwise, to attend personally of court, or by a justice in the probate court for that purpose, the judge may either pro- of the peace ceed himself to administer the oath to the accountant, out of court, or may, by his order, authorize any justice of the peace or notary public to administer it; and a certificate of the oath with the account, and the vouchers therewith, and the order, if any, shall 26 202 ACCOUNTS. be returned into the office of the judge of probate, and be there filed and recorded, otheroaths 1561 (5213.) Sec. 22. All other oaths required to be taken by eTby"judge executors, administrators, guardians and trustees, commissioners, or^justioe, a pp ra j serS] an £ dividers of estates, or by any other persons, in relation to any proceeding in the probate court, may be adminis- tered either by the judge of probate or by any justice of the peace or notary public; and a certificate thereof, when taken out of the court, shall be returned into the probate court, and there be filed and recorded. The oaths to accounts of executor, etc., and all the other oaths mentioned in the above sectons, may be administered by probate registers. C. L. 1566, (5246). Noticeofex- 1411 (4494.) Sec. 14. Before the administration account of any count" S ot° executor or administrator shall be allowed, notice shall be given and°a cheated pi operty. transferred to the State, and for other purposes," approved Feb- sec. 277. ruary seventeen, eighteen hundred and forty-two, shall take charge of all lands or other property which may hav.e escheated or which may hereafter escheat to the State, by reason of the owner thereof dying intestate and leaving no legal heirs thereto, according to the statutes in such case made and provided; and the said trustees may sell or otherwise dispose of the said lands or property, in such manner as they may deem for the best interests of the State, and they shall have power to convey, by deed to the purchaser thereof, all the rights of the State therein; and they shall deposit all proceeds arising therefrom in the State Treasury, to the credit of the general fund. The trustees referred to in this section are, the Auditor Gen- eral, State Treasurer, and Secretary of State. See C. L. 198 (357.) ILLEGITIMATE CHILDREN. 1368 (4310.) Sbc 2. Every illegitimate child shall be consid- illegitimate ered as an heir of his mother, and shall inherit her estate, in like inherit from manner as if born in lawful wedlock; but shall not be allowed to claim, as representing his mother, any part of the estate of any of her kindred, either lineal or collateral. 1368 (4311.) Sec. 3. Tf any illegitimate child shall die intes- Estate of ii- tate without lawful issue, his estates shall descend to bis mother, child, to , whom to de- If she be dead, it shall descend to the relatives of the intestate on seend. 4 Pick. 93. the part of the mother, as if the intestate had been legitimate. 1368 (4312.) Sec 4. When, after the birth of an illegitimate when child child, his parents shall intermarry, and his father shall, after the sidered le- marriage, acknowledge him as his child, such child shall be con- OassCod'e, sidered as legitimate to all intents and purposes. ADVANCEMENTS. 1369 (4314.) Sec. 6. Any estate, real or personal, that may Effect of ad- have been given by the intestate in his lifetime, as an advance- ment to any child or other lineal descendant, shall be considered as a part of the estate of the intestate, so far as it regards the 222 DESCENT OF PROPERTY. l Pick. 161. division and distribution thereof among his issue, and shall be taken by such child or other descendants toward his share of the estate of the intestate. This provision confines the effect of the advancement to the division and distribution of the estate among the issue, and does not extend-to the widow. The widow is entitled to her portion of the personal estate exclusive of the advancements or after deduct- ing the advancements. Stearns v. Stearns, 1 Pick., 161. The language of the statute is, "When any person shall die possessed of any personal estate, etc., the same shall be applied and distrib- uted as follows." C. L. 1383 (4377); Smith's Probate L., 200. It would hardly seem competent for a husband to transfer any of the personal property mentioned in C. L. 1742 (6101), except that enumerated under the "Eighth" subdivision, as an advancement to his children, unless by bill of sale signed by his wife. See "Ninth" under said section. Other personal property a husband may dispose of without the consent of his wife. Stearns v. Stearns, 1 Pick., 161. A married woman may dispose of all her personal property and real estate without the consent of her husband, the same as if she were unmarried. " 0. L. 1477 (4803.) The widow would be entitled to her dower in real estate con- veyed to the heir as an advancement, unless she joined in the deed. C. L. 1360. May v. Tillman, 1 Mich., 262 and 187; Richmond v. Robinson, 12 Mich., 193; Weed v. Terry, 2 Doug., 344; Cran- son v. Cranson. 4 Mich., 230; Newton v. Sly, 15 Mich., 391. This statute has no application to advancements to the widow of decedent. The transfer of any property, real or personal, by the husband to the wife does not in. any manner affect her inter- est in the estate of her deceased husband. Barnes v. Allen, 25 Ind., 222. This statute does not apply to testate estates. The testator in the will may provide, that property he has advanced to his heirs may be deducted from the amount of the legacy given them in the will, so that they will receive the legacy less the advancement. 3 Redfield on Wills, 432. If the will is revoked it does not in any manner affect the question of advancements. Hartwell v. Rice, 1 Gray, 587. Interest should not be charged on advancements. Osgood v. Breed's Heirs, 17 Mass., 356, 358. DESCENT OF PROPERTY. 223 1369 (4315.) Sec. 7. If the amount of such advancement shall ^,ll^!\o exceed the share of the heir so advanced, he shall be excluded f/om'djBtr?- from any further portion, in the division and distribution of the estate, but he shall not be required to refund any part of such advancement; and if the amount so received shall be less than his share, he shall be entitled to as much more as will give him his full share of the estate of the deceased. 1369 (4316.) Sec. 8. If such advancement be made in real Advance- ' ment, how estate, the value thereof shall, for the purposes mentioned ,in the estimated. preceding section, be considered a part of the real estate to be divided; and if it be in personal estate, it shall be considered as part of the personal estate; and if, in either case, it shall exceed the share of real or of personal estate, respectively, that would have come to the heir so advanced, he shall not refund any part w Mass. 200. of it, but shall receive so much less out of the other part of the estate, as will make his whole share equal to those of the other heirs who are in the same degree with him. All questions in regard to advancements are heard and deter- mined by the court on making the decree of assignment of the estate. C. L. 1415 (4510.) 1369 (4318.) Sec. 10. If the value of the estate so advanced Value of ad- x ' vancement, shall be expressed in the conveyance, or in the charge thereof, Jowwwer- made by the intestate, or in the acknowledgement of the party receiving it, it shall be considered as of that value, in the division and distribution of the estate; otherwise, it shall be estimated according to its value when given, as nearly as the same can be ascertained. See Sec. (4319) at foot of page. 1369 (4317.) Sec. 9. All gifts and grants shall be deemed to Sc^fta"' have been made in advancement, if they are expressed in the vancement! 4 Pick 21 gift or grant to be so made, or if charged in writing by the intes- 5 Pick.' 527. tate as an advancement, or acknowledged in writing as such by the child or other descendant. It has been held that books of account in the ordinary form, containing charges by the deceased for money advanced to his heirs, are not sufficient evidence of an advancement. Ashley, Appellant, 4 Pick., 21. Held, also, that a promissory note by a son to his father for money advanced, is not sufficient evidence of an advancement. Barton v. Bice, 22 Pick., 508. A deed that 1370 (4319.) Sec. 11. If any child, or other lineal descendant, so advanced, shall die before i ncaoeo fd eat >, the intestate, leaving issue, the advancement shall be taken into consideration, in the division of hei J" ad " ~* vanced, amount and distribution of the estate, and the amount thereof shall he allowed accordingly, bv the J° te alIowed & •" J by represen- representatives of the heir so advanced, in like manner as if the advancement had been made Stives. directly to them. 224 DESCENT OF PROPERTY. does not upon its face show that the land is conveyed as an advance- ment, is not sufficient evidence of an advancement. Bullard v. Bullard, 5 Pick., 527; Adams v. Adams, 22 Vt, 50. It has heen held, that it could not be shown by parol that the gift was intended as an advancement. 3 Redfield on Wills, 431. In the distribution of the estate of an intestate, a debt due from the heir to the deceased cannot be deducted from the distribu- tive share of the heir. 3 Redfield on Wills, 432. It would seem that in some respects the foregoing cases con- strue the statute too literally, and in a manner that will tend to render of no value all evidence of advancements. If a father charges his son with money, or takes his note, that very act shows that he intends he shall repay it, and it is just as much a charge as an advancement as if he had used those words, and no one would dream that such words were necessary or would add any- thing to the force of the charge, unless expressly instructed by counsel. Some late cases seem to favor this view. Fellows v. Little, 46 N. H., 27; Parker v. McCluer, 3 Keys, 318; Langdon v. Astor, 16 N. Y., 9. To ascertain the distributive share of each heir where advance- ments have been made: First, deduct the widow's portion of the estate. Secondly, to the remainder add the advancement of each heir who has received less than a full share, and divide the sum by the number of such heirs, and the quotient will be the full share of each heir. To ascertain the share of an heir who has received an advancement, deduct the advancement from such quo- tient or full share. To ascertain whether the advancements to any heir are equal to, or more than, his portion, add to such remainder the sum of all the advancements and divide by the number of all the heirs. If the quotient is less than the sum of the advancements to any one heir, then such heir should be excluded in the division. DESCENT OF PROPERTY. 225 "Widow and three children, "A," "B,"and "C." Balance of estate Widow's share heirs $4,000 1,000 00 00 00 00 $6,000 00 2,000 00 To be divided among A's advancement B's advancement C's advancement $4,000 00 $5,000 00 $5,000 00 3)9,000 00 Share of each heir which is less than A's advancement, $3,000 00 'A" is therefore excluded in the division. Balance of personal estate above $4,000 00 B's advancement 1,000 00 To be divided between "B" and "C" 2)5,000 00 C's share $2,500 00 B's advancement 1,000 00 B's share $1,500 00 In regard to advancements of real estate, the same rule is to be observed. The dower is first to be set off. Then if any land has been conveyed to an heir as an advancement it is to be treated in the distribution and partition as part of the estate of the deceased. The court must give a description and fix the value of each advancement, in the decree assigning the estate, and in the war- rant to the commissioners in partition. C. L. 1415 (4510). Then the share of each heir is determined by the rules given above. TO ASCERTAIN AND DETERMINE WHO ARE THE HEIRS OF A DECEASED PERSON AND ENTITLED TO HIS ESTATE. 1389 (4398.) Section 1. The People of the State of Michigan Court deter enact, That when any person shall have deceased, having title to {JJJJ 8 le ^ sl any lands in this State, it shall be lawful for any person or per- sons claiming an interest in said lands, whether as heir-at-law, or through or under such heir or heirs, to apply to the probate court of the county in which said lands or any part thereof are located, which said court shall adjudicate and determine who are or were 29 226 DESCENT OF PROPERTY. the legal heirs of said deceased person, and entitled to the lands of which the deceased died seized. This statute would seem to be designed for real estate where there has been no administration, but is broad enough in its terms to cover all cases, both where there has been administration and where there has not. Ryan v. Andrews, 21 Mich., 229. In cases where administration is granted, the court would not be obliged to follow the provisions of this statute in determining who are heirs to the real estate. Where the estate has been adminis- tered, the court has the power under G. L. 1412 (4497) to deter- mine who are the heirs and the portion of the estate that each shall receive. 1389 (4399.) Seo. 2. The application shall be made by filing a cation shall petition in the said court, subscribed by the petitioner, his, her, action of the or their attorney, duly verified, setting forth the name of the 11 deceased; that he died seized of lands in this State, a portion of which (and describing such portion) the said petition shall show to be located in the county where said petition is to be filed; the names and residences of the heirs of the said deceased person, so far as the same are known to the pe'titioner, and shall conclude with a prayer for the determination and adjudication aforesaid; and thereupon said court shall make an order setting forth the time and place of hearing such petition, and shall cause notice of such petition, and of the time and place assigned for the hearing there- of, to be published for three successive weeks in such newspaper as the said court shall direct. 1390 (4400.) Sec. 3. At the time assigned for hearing the filing of said petition, the court may hear proof taken by commission or by witnesses produced in open court, of the facts set forth in said petition, and shall thereupon, if the evidence be sufficient, find and adjudge who are or were the heirs of the deceased, and entitled by the laws of this State to inherit the real estate of the deceased, which finding and adjudication shall be entered on the journal of said court, and which entry, or a duly certified copy thereof, shall be prima facie evidence of the facts therein found. Taxdeedsto 3 " ( 1115 -) Sec. 149. In all cases of sale of land for taxes, if persons 3, tne purchaser or his assigns shall die before a deed shall be exe- cuted on such sale, the deed may be executed by the Auditor Time and place of hearing.; Decision of the court DESCENT OP PROPERTY. 227 General to and in the name of the deceased person, if such deceased person being still alive would be entitled to a deed; •which deed shall vest the title in the heirs or devisees of such deceased person, in the same manner and liable to like claims of creditors and other persons as if the same had been executed to such deceased person immediately previous to his death, or the executor or administrator may assign the certificate of purchase, A / 8i s?.™ en . t or cji t incuts and the deed may issue to the assignee thereof, and in like cases £y executor, which have heretofore occurred, the same rule shall apply, and all reedshere . deeds heretofore issued in the name of any deceased person who, Jo'deceS d if living at the time of the execution thereof, would have been P ersons - entitled thereto, shall have like effect as above provided. 228 DISTRIBUTION AND PARTITION, t ASSIGNMENT, DISTRIBUTION, AND PARTI- TION OF ESTATES. Provision 1412 (4495.) Seotion 1. Before any partition or division of unto 'seven an y estate among the heirs, devisees, or legatees, an allowance 19 Mich, ml shall be made for the necessary expenses of the support of the children of the deceased, under seven years of age; and the pro- bate court may order the executor or administrator to -retain in his hands sufficient estate for that purpose; except where some provisions shall have been made by will for their support. The amount of the allowance for the support of the children under seven years of age, must be determined by all the circum- stances of each case. For manner of taxing undivided real and personal estate of deceased persons, see C. L. 362. After pay- 1412 (4496.) Seo. 2. After the payment of the debts, funeral debts, resi- charges, and expenses of administration, and after the allowances signed to made for the expense of the maintenance of the family of the persons en- titled there- deceased, and for the support of the children under seven years to. , « 2 Pick. Eep. of age, and after the assignment to the widow of her dower and of her share in the personal estate, or when sufficient effects shall be reserved in the hands of the executor or administrator for the above purposes, the probate court shall, by a decree for that pur- pose, assign the residue of the estate, if any, to such other per- sons as are by law entitled to the same. All the requirements of this section should be fully complied with, before the decree of assignment is made. 1412 (4497.) Seo. 3. In such decree the court shall name the Decree, x ' what to persons, and the proportions or parts to which each shall be enti- tled; and such persons shall have right to demand and recover their respective shares from the executor or administrator, or any person having the same. The decree of assignment should set forth the full name of each heir, and the proportion or part of the estate to which each DISTRIBUTION AND PARTITION. 229 shall be entitled, and also the balance of cash and other personal estate, and the proceeds of the sale of real estate, and a descrip- tion of the real estate remaining. It should also show what advancements have been made to the heirs, and to whom made, and recite that all the requirements of the previous section (4496) have been fully complied with. For form of decree see Appen- dix. Personal estate must be distributed according to the law of the domicil of the deceased ; but the real estate according to the law of the State in which it is situated. 3 Redfield on Wills, 426; Wharton on Conflict of Laws, 561; Story on Conflict of Laws, Sec. 480 to 483. 1413 (4498.) Sec. 4. Such decree may be made on the applica- No person v ' J rr entitled to tion of the executor or administrator, or of any person interested share of ea- J r tate, until in the estate, but no heir, devisee, or legatee shall be entitled to a debts > e i°-> ° paid, unless decree for his share, until payment of the debts and allowances b ? nd be and expenses mentioned in the preceding section shall have been made or provided for, unless he shall give a bond to the judge of probate, with such surety or sureties as the court may direct, to secure the payment of his just proportion of such debts and expenses, or such part thereof as shall remain unprovided for, and to indemnify the executor or administrator against the same. After the final account is allowed, the executor or administrator or some person interested in the estate, should file an application for a decree of assignment, as per form given, and have the court fix a day of hearing, and give due notice thereof to all persons interested. The statute does not expressly provide that notice of the hearing of this application shall be given to the persons interested, but such notice should always be given, to protect the administrator, etc., and enable the heirs to bring suit on the administration bond. Loring v. Steinman, 1 Met., 204. On the hearing of the application, the judge of probate must determine, and particularly specify in the decree of assignment, who are entitled to the estate as heirs at law or legatees of the deceased, and the proportion or part of the estate to which each is entitled, and also the nature and value of all advancements made to the heirs, if any, and to whom made. See Sec. (4497) above and Sec. (4510) below. 230 DISTRIBUTION AND PARTITION. The court should also determine the value of all the residue of real and personal estate, and before making the decree should require the administrator to file a complete abstract of title of all the real estate to be distributed. The proceeds of real estate must be assigned the same as real estate. See C. L. 1432 (4591). If any mortgages are by the decree assigned to any heir, it would be best to have the executor, etc., also assign them to the heir by an ordinary form of assignment. If the executor, etc., should purchase the mortgages at the request of the heirs, he must, as executor, assign them to a third party, before he is discharged, so that they may be assigned to him individually. In most cases the court will be obliged to assign the entire real and personal estate to the heirs, only specifying the proportion each shall receive. The heirs, if all are of age, can then agree upon a par- tition of the estate, and all the others convey to each heir their title and interest in the portion set off to each. Their wives should join in the execution of these partition deeds. If any of the heirs are minors, or if they cannot agree upon a partition, then they will have to proceed as hereinafter provided. In most cases it is not difficult to determine who are heirs and entitled to the estate. In some cases however the relatives of the deceased are not much acquainted with each other, and frequently reside in different States, and too far from the court to be able to appear at the hearing without very great expense. In such cases the court should not stand upon too rigid technicalities, in regard to proofs of heirship, but use all the ordinary means to ascertain who are heirs. Much valuable information can often be obtained by writing to the heirs that are known and getting their affidavits, and in doing so specific questions should be asked, such as, what is the name of your father and mother, brothers and sisters, aunts and uncles, etc.? Affidavits for this purpose should of course be received with caution, but they are frequently satisfactory and sufficient to establish heirship without other testimony. If an heir has been absent from the State, and not heard from by those persons most likely to hear from him, for the period of seven years, he will be presumed to be dead, but there is no presumption of his death at any particular time. It must appear that search has been made DISTRIBUTION AND PARTITION. 231 for him by such, persons without success. France ( v. Andrews, 15 Adol. and E., 756 ; Watson v. King, 1 Stark R, 97. There is no presumption of the marriage of the absent person, and if his marriage is established, there is no presumption that he left issue. Such facts must be established by sufficient evidence. Loring v. Steinman, 1 Met., 211 ; Doe v. Griffin, 15 East, 293 ; 3 Redfield on Wills, 4, note. In the division and distribution of the estate, neither the court nor the administrator can deduct from the portion of any heir, a debt due from such heir to the deceased, although such heir may be insolvent. It might perhaps be a matter of off-set in case the heir should sue for his distributive share. Hancock v. Hubbard, 19 Pick., 167 ; Proctor v. Xewhall, 17 Mass., 93 ; Bell v. Bell, 17 Sim., 127; Dearborn v. Preston, 7 Allen, 192, 194, See, however, Smith v. Kearney, 2 Barb., Ch. R, 533. If an heir or legatee dies, his legacy or distributive share should not be paid or delivered to his heirs ; but an administrator should be appointed of his estate to receive and distribute the legacy or distributive share. 1 Citty's Practice, 109, note (p). The reason for this rule is, that the heirs of a deceased person are not entitled to his estate, until his debts are paid and his estate regularly administered, and the property of the estate reg- ularly assigned to the heirs by the decree of a court of competent jurisdiction. PARTITION OF REAL AND PERSONAL ESTATE. 1413 (4499.) Sec. 5. When the estate, real or personal, assigned to two or more heirs, devisees, or legatees, shall be in |^ may be common and undivided, and the respective shares shall not be separated and distinguished, partition and distribution may be made by three discreet and disinterested persons, to be appointed commissioners for that purpose by the probate court, who shall be duly sworn to the faithful discharge of their duties before the judge of probate or a justice of the peace; and the judge of pro- bate shall issue a warrant to them for that purpose. It should be noticed that the commissioners are to be sworn before the judge of probate or a justice of the peace. See, how- ever, C. L. 1561 (5213.) 232 DISTRIBUTION AND PARTITION. The partition should be of the entire estate that remains undi- vided. The court should require the administrator, in all cases before partition is made, to obtain a complete written abstract of the title to all the real estate, showing the chain of title from Gov- ernment, or as far back as the court may judge best, and also all mortgages, tax titles or other incumbrances, and all leases, giving the conditions of all. This should be attached to the warrant, and the commissioners should take all these into consideration in making the partition. Commissioners' fees are two dollars per day and six cents per mile for travel going and returning. L. 1873, p. 183 Act No. 135. Certain war- 1562 (5214.) Sbc. 23. Any warrant or commission for the may 8 !)? re- appraisement of any estate, for examining claims against estates, " lld for partition of real estate, or for the assignment of dower, may be revoked by the judge of probate for sufficient cause, and the judge may thereupon issue a new commission, or proceed other- wise therein, as the circumstances of the case shall require. 1413 (4500.') Sec. 6. If the real estate shall lie in different Proceedings V / wtateuesin coun ties, the probate court may, if it shall be judged proper, counties. appoint different commissioners for each county, and in such case, the estate in each county shall be divided separately, as if there was no other estate to be divided; but the commissioners first appointed shall, unless otherwise directed by the probate court, make division of such real estate wherever situated within thus State. 1413 (4501.) Sec. 7. Such partition and distribution maybe for Pli artiSon ordered on the petition of any of the persons interested ; but before any partition shall be ordered, as directed in this chapter, notice shall be given to all persons interested, who reside in this State, or their guardians, and to the agents, attorneys, or guard- ians, if there be any in this State, of such as reside out of the State, either personally or by public notice, as the probate court shall direct. The petition may be signed by one or all of the parties inter- ested in the real estate. It has been held, that in case all the owners join in the petition, the court will not act upon it, but leave them to make partition among themselves by deed. "Win- throp v. Minot, 9 Cush., 405; Sweet v. Bussey, 7 Mass., 503. I DISTRIBUTION AND PARTITION. 233 see no good reason for such a practice, and do not think it should be followed. The heirs may all desire a partition, and yet not be able to agree upon a division, and therefore ask the aid of the court to make the division for them. Courts are established for the very purpose of assisting people out of difficulties when they cannot come to an agreement among themselves. The petitioners should state what their respective interests in the estate are, and also the interests of all the other heirs, and in what capacity they claim, whether as heirs or devisees. The petition should also give the names, ages and residence of all the heirs as far as possible, and if any are under guardianship, the name and residence of the guardian. If any of the land is held in common with others, a full description of the same, and the exact interest of the estate therein should be given, and the names of the cotenants and their residence as far as known, and the amount of the advancements, if any, to whom made, and whether of real or personal estate, and a description of each. "Where there are minors or cotenants inter- ested, notice should be given by citation personally served on them or their guardians, and this would be the best course in all cases. It would be well where there are very remote heirs and not well known, to give notice both by citation personally served on all that are known, and by publication, to cover all contin- gencies. 1415 (4507.) Sec. 13. Before any partition shall be made, or Guardians any estate divided, as provided in this chapter, guardians shall be etc., ami ' appointed for all minors and insane persons interested in the non-resi- estate to be divided ; and some discreet person shall be appointed 17 n. y. 218. to act as agent for such parties as shall reside out of the State; and notice of the appointment of such agents shall be given to the commissioners in their warrant; and notice shall be given to all the parties interested in the partition, their guardians or agents, by the commissioners, of the time when they shall proceed to make partition. Guardians ad litem may be appointed, but it is better to appoint general guardians. Notice in writing signed by all the commis- sioners, stating the time when they will proceed to make the par- tition should be served upon all the parties interested or their agents or guardians, by giving to each a copy thereof, or by leav- 30 ™i 234 DISTRIBUTION AND PAETITION. ing a copy at their places of abode. Where there is land held in common with others, notice should also be served on all persons having an interest in the land. See Sec. (4506) below. An affi- davit of the service should be made on a copy of the notice, and attached to the report of the commissioners. Whenoourt 1416 (4516.) Seo. 22. When any estate shall be assigned by ™int P fo° mt decree of the court, or be distributed by commissioners, as pro- dent esl " vided in this chapter, to any person residing out of this State, and having no agent therein, and it shall be necessary that some per- son should be authorized to take possession and charge of the same, for the benefit of such absent person, the court may appoint an agent for that purpose, and authorize him to take charge of such estate, as well as to act for such absent person in the par- tition and distribution. Agent to 1416 (4517.) Sec. 23. Such agent shall give a bond to the judge of probate, to be approved by him, faithfully to manage and account for such estate, before he shall be authorized to receive the same ; and the court appointing such agent may allow a reason- able sum out of the profits of the estate for his services and expenses. If it shall appear from the petition or otherwise that any heir resides out of the State, the court should make an order appoint" ing some responsible and discreet person his agent, to act in the matter of the partition and distribution, with authority to receive, manage and control the estate set off to such person, and the fact of such appointment must be stated in the warrant to the com- missioners. The above mentioned bond should be required before the appointment is made. Guardian 1484 (4833.) Sec. 24. The guardian may join in and assent to ^partition a partition of the real estate of the ward, in the cases and in the dower. manner provided by law, and he may also assign and set out dower in the said estate to any widow entitled thereto. Partition 1413 (4502.) Sec. 8. Partition of the real estate may be made, h»ve 1 been res as provided in this chapter, although some of the original heirs or devisees may have conveyed their shares to other persons; and such shares shall be set to the persons holding the same, in the same manner as they otherwise should have been to such heirs or devisees. DISTRIBUTION AND PARTITION. 235 The court should require very satisfactory evidence of such conveyance or assignment, before substituting the grantee in the place of the orignal heir, in the warrant 1414 (4503.) Sec 9. The several shares in the real and per- Distribution sonal estate shall be set out to each individual m proportion to 19 Mich. 122 his right, by such metes and bounds or description, that the same may be easily distinguished, unless any two or more of the par- ties interested shall consent to have their share, or any portion thereof, set out so as to be held in common and undivided, in m common - which case the same shall be set out according to such consent; Money due and where the estate shall consist in whole or in part of money, on Iand "W r uy contract. due or to become due on contract made by the deceased for the sale of real estate, the land described in such contract shall be set off in fee, with the contract, to the individual entitled to such con- tract, but subject to the terms thereof. This section provides that money due on a contract for the sale of land by the deceased, shall be treated in the distribution and partition, the same as real estate. It has been decided in Illinois that it must be treated as persanal property. Skinner v. New- berry, 51 111., 203. The entire estate should be partitioned, unless two or more heirs consent to receive and hold their shares in common. In making the partition the commissioners should appraise the entire real estate to be partitioned, and each share or portion separately, and give in their report the appraisal of the whole and of each portion. The commissioners, with the admin- istrator, ought to employ a competent surveyor to assist in mak- ing the division, and with his assistance set off, by metes and bounds, the shares of the respective heirs, equally, quality and quantity respectively considered. All corners ought to be marked by stakes and stones. A careful survey should be made of each portion, and a plat made of the whole by the surveyor, and attached to the report. The warant to the commissioners con- tains some general directions for their action. The commission- ers must follow the decree of distribution, which is recited in the warrant, in regard to the persons entitled to the estate and the share or portion of each. 1414 (4504.) Sec. 10. When any such real estate cannot be y^^ 2^^ divided without prejudice or inconvenience to the owners, the dwded, 236 DISTRIBUTION AND PARTITION. court may probate court may assign the whole to one or more of the parties wStoone entitled to shares therein, who will accept it, always preferring the males to the females, and, among children, preferring the Proviso. elder to the younger : Provided, The party so accepting the whole shall pay to the other parties interested their just proportion of the true value thereof, or shall secure the same to their satisfaction ; and the true value of the estate shall be ascertained by com- missioners appointed by the probate court, and sworn for that purpose. The assignment should be made on the express condition that the heir accepting it shall pay or secure the payment to the other parties interested, their portion of the true value of the land as agreed upon, or determined by commissioners appointed for that purpose, within such reasonable time as the court shall fix in the decree of assignment. The court may also grant license to the administrator, to sell such real estate for the purpose of distribution. C. L. 1428 (4570) last half of section. When tract 1414 (4505.) Sec 11. "When any tract of land, messuage, or tene- vaiuetnan ment shall be of greater value than either party's share in the either par- ty's share, estate to be divided, and cannot be divided without iniury to the and cannot be divided, same, it may be set off by the commissioners appointed to make off to one of partition, to either of the parties who will accept it, giving prefer- Proviso. ence as prescribed in the preceding section: Provided, The party so accepting it shall pay or secure to one or more of the others, such sums as the commissioners shall award to make the partition equal, and the commissioners shall make their award accordingly; but such partition shall not be established by the court, until the sums so awarded shall be paid to the parties entitled to the same, or secured to their satisfaction. The report of the commissioners in partition should not be confirmed in such cases, until such award shall be paid or secured to the satisfaction of the parties interested, and proper evidence of such payment or security filed in the probate court.* Jenks v. Howland, 3 Gray, 536. when estate 1414 (4506.) Sec 12. When partition of real estate among lies in com- heirs or devisees shall be required, or dower is to^ be assigned to first 'severed a widow in the same, and such real estate shall be in common and DISTRIBUTION AND PARTITION. 237 undivided with the real estate of any other person, the com- missioners shall first divide and sever the estate of the deceased from the estate with which it lies in common, and such division so made and established by the probate court shall be binding on all the persons interested. Notice should be given by the commissioners, of the time when they will proceed to make the division and partition provided in this section, to all the persons interested in any such land held in common, as indicated in notes under Sec. (4507) above. The notice should contain a description of the land held in common, and a statement of the interest the estate claims in the premises. 1415 (4508.) Sec. 14. The commissioners shall make report Report of of their proceedings to the probate court in writing; and the court ers and pro- may, for sufficient reasons, set aside such report, and commit the thereon, same to the same commissioners, or appoint, others; and the report, when finally accepted and established, shall be recorded in the records of the probate court; and a copy thereof, attested by the judge of probate, under the seal of the court, shall be recorded in the office of the register of deeds of the county where the lands lie. The executor or administrator ought not to be discharged until he has procured such copy of the commissioner's report, to be recorded in the office of the Kegister of deeds of the county where the land lies. The report of the commissioners should not be set aside except upon the most satisfactory evidence. The presump- tions are all in favor of the report, and that it makes a just and fair division of the estate. Jenks y. Howland, 3 Gray, 536. The court should make an order accepting, confirming and establishing the report which completes the partition. Sec. (4512) below. 1415 (4509.) Sec. 15. Wnen the probate court shall make awhenparti- decree, assigning the residue of any estate to one or more persons dispensed entitled to the same, it shall not be necessary to appoint com- missioners to make partition or distribution of such estate, unless the parties to whom the assignment shall be decreed, or some of Ijjiem, shall request that such partition be made. 1415 (4510.) Sec 16. All questions as to advancements made Questions or alleged to be made by the deceased to any heirs, may be heard advance- ment, how and determined by the probate court, and shall be specified m determined. 238 DISTRIBUTION AND PARTITION. the decree assigning the estate, and in the warrant to the com- missioners; and the final decree of the probate court, or, in case of appeal, of the circuit or Supreme Court, shall be binding on all persons interested in the estate. For the manner of determining the portion of the heir when advancements have been made, see notes under C. L. 1369 (4317.) Appeal. 1415' (4511.) Sec 17. Any person aggrieved by any order, decree, or denial of a probate court, in pursuance of the provisions of this chapter, may appeal therefrom, as provided in other cases. The appeal should be taken according to the provisions of C. L. 1562 (5216), etc. Partition, L - 1875 > P- , 182 > Act No - 151 (4512.) Sec. 18. The partition, dusive™ when finally confirmed and established, shall be conclusive on all the heirs and devisees, and all persons claiming under them,, and Certified upon all persons interested; "and the judge of probate shall cause port, where a duly certified copy of the report to be recorded in the office of recor e ,e c ^g re gi s t er f deeds for the county, and the expense thereof shall be a charge against the estate, to be paid out of the funds thereof in the same manner as other costs of administration; and such record shall be notice of all matters therein contained, and Shall be evidence thereof." Approved April 29, 1875. The administrator, etc., should not be discharged until this provision is complied, with. When exec- 1415 (4513.) Sec. 19. If, at the time of the partition or dis- may ply ex- tribution of any estate as provided in this chapter, the executor partition, or administrator shall have retained sufficient effects in his hands, which may lawfully be applied for that purpose, the expenses of such partition or distribution may be paid by such executor or administrator, when it shall appear tft the court just and equitable, and not inconsistant with the intention of the testator, when ex- 1416 (4514.) Sec 20. But if there are no effects in the hands pSoypiu? of tne executor or administrator which may be lawfully applied e»ted? ter " to tnat purpose, the expenses and charges of the petition, being ascertained by the probate court, shall be paid by all the parties interested in the partition, in proportion to their respective shares or interests in the premises; and the proportions shall be settled and allowed by the probate court; and if any one shall neglect DISTRIBUTION AND PARTITION. 239 to pay the sum assessed on him by the court, an execution may be issued therefor against him by such court, in favor of the persons entitled to the same. In case the estate is closed and the administrator discharged before the death of the widow, it will not be necessary to have another administrator appointed, but on the petition of one or more of the heirs, the court should proceed to assign and dis- tribute the dower lands in the same manner as other lands of the deceased. 240 DOWER. DOWER. widow en- 1359 (4269.) Section 1. The widow of every deceased person dower. shall be entitled to dower, or the use during her natural life, of Mich . 141. one-third part of all the lands whereof her husband was seized of I Mich., l. . i Mich., 230. an estate of inheritance at any time during the marriage, unless 19 Mich. 224. J ° ° 12 Barb. 537. she is lawfully barred thereof. II Wend. 392 J l Paige, 634. For statutory requisites for valid marriage see C. L. 1462. See Shotwell v. Harrison, 22 Mich., 410; For void marriages see C. L. 1465. "Whatever the form of ceremony, even if all ceremony had been dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together profess- edly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties, and which would subject them and others to legal penalties for a dis- regard of its obligations." Hutchins v. Kimmel, 31 Mich., 130. An estate of inheritance is one which may descend to heirs. Dower would not attach to estates for life, estates for years and estates at will. The widow is entitled to dower in wild lands. Campbell, Appellant, 2 Doug., 141. She is entitled to dower in mines and quarries actually opened. Stoughton v. Leigh, 1 Taunt. 402; Coates v. Cheever, 1 Cowen, 460; Billings v. Taylor, 10 Pick., 460. She is entitled to dower in lands held in common; but not in partnership lands until after partnership debts are paid. Dyer v. Clark, 5 Met., 562 and 582; Bumside v. Merrick, 4 Met., 537; 2 Scribner on Dower, 151. Whenwife 1469 (4756.) Sec. 24. "When the marriage shall be dissolved entitled to 1 ., 1 . _ . . , dower. by the husband being sentenced to imprisonment for life, and when a divorce shall be decreed for the cause of adultery com- mitted by the husband, or for the misconduct or habitual drunk- enness of the husband, or on account of his being sentenced to imprisonment for a term of three years or more, the wife shall be entitled to her dower in his lands, in the same manner as if he DOWER. 241 were dead; but she shall not be entitled to dower in any other case 13 Mass. 231. of divorce. The widow's dower cannot be sold to pay debts. C. L. 1392 (4406.) The widow cannot be compelled to sell her dower for any pur- pose except in partition. C. L. 1783 to 1786. Where the hus- band contracts to sell real estate, his wife cannot be compelled to release h er dower, and she is not a proper party to a bill for the specific performance of such a contract. Eichmond v. Eob- inson, 12 Mich., 193; Weed v. Terry, 2 Doug., 344. She may, however, sell her dower interest in the lands of her deceased hus- band, and join with the heirs or administrator in a conveyance of the same to the purchaser. She should not convey her dower interest to the administrator; she may convey it to the heir. 2 Scribner on Dower, 288 and 295. The amount of money that the widow should receive for her dower is usually determined by tables prepared for this purpose. The following table corresponds with the Northampton table, and shows the value of an annuity of one dollar, at six per cent., on a single life, at any age from one year to ninety-four, inclusive. The present value of such an annuity, at any given age, is called " the number of years' purchase the annuity is worth," it being the present value of the sum of all the future payments. It is also the sum, which, being loaned at compound interest, will pay the annuity. 2 Scribner on Dower, 765. 31 242 DOWER. No. of Years No. of Years No. of Years Purchase the Purchase the Age. Purchase the Age. Annuity is Age. Annuity is Annuity is Worth. Worth. Worth. 1 $10,107 33 $11,423 65 $6,841 2 11,724 34 11,331 66 6,625 3 12,348 35 11,236 67 6,405 4 12,769 36 11,137 68 ) 6,179 5 12,962 37 11.035 69 J 5,949 6 13,156 38 10,929 70 5,716 7 • 13,275 39 10,819 71 5,47a 8 13,337 40 10,705 72 5,241 9 13,335 41 10,589 ' 73 4,781 10 13,285 42 10,473 74 '4,565 11 13,212 43 10,356 75 4,354 12 13,130 44 10,235 76 4,154 13 13,044 45 10,110 77 3,952 14 12,953 46 9,980 78 3,742 15 12,857 47 9,846 79 3,514 16 12,755 48 9,707 80 3,281 17 13,655 49 9,563 81 3,155 18 12,562 50 9,417 82 2,926 19 12,477 51 9,273 83 2,713 20 12,398 52 9,129 84 2,551 21 12,329 53 8,980 85 2,402 22 12,265 54 8,827 86 2,266 23 12,200 55 8,670 87 2,138 24 12,132 56 8,509 88 2,031 25 12,063 57 8,343 89 1,882 26 11,992 58 8,173 90 1,689 27 11,917 59 7,999 91 1,422 28 11,841 60 7,820 92 1,136 29 11,763 61 7,637 93 0,806 30 11,682 62 7,449 94 0,518 31 11,598 63 7,253 32 11,512 64 7,052 The dower of course is computed out of the entire value of the real estate. First ascertain the value of all the real estate in •which the widow has a dower interest. Compute interest at seven per cent, upon one-third of this sum, for one year. Multi- ply this interest by the number of years' purchase set opposite the person's age in the table, and the product is the, cash value of the widow's dower. Suppose the widqw's age is forty, and she is entitled to dower in real estate worth $1,500; one third of this is $500; interest on §500 for one year at seven per cent, is $35; DOWER. 243 multiply this by 10,705, the number of years' purchase set oppo- site her age, and you have $374.67, the cash value of her dower. To find the present value of any annuity, multiply the annuity by the sum found opposite the person's age in the table. Person's age, 40; annuity $250 per year; 10,705, the sum opposite 40, multiplied by 250, gives $2,676.25, the present value of the annuity. 1359 (4270.) Sec. 2. If a husband seized of an estate of inher- Dower in itance in lands exchange them for other lands, his widow shall change of land by hus- not have dower of both, but shall make her election to be band, endowed of the lands given, or of those taken in exchange; and if such election be not evinced by the commencement of proceed- ings to recover her dower of the lands given in exchange, within one year after the death of her husband, she shall be deemed 7 Barb0UI . to have elected to take her dower of the lands received in 6S8 ' exchange. 1359 (4271.) Sec. 3. When a person seized of an estate of M inheritance in lands shall have executed a mortgage of such land - estate before marriage, his widow shall be entitled to dower out of the lands mortgaged, as against every person except the mort- 3 P - k gagee and those claiming under him. 1359 (4272.) Sec. 4. When a husband shall purchase lands MortEra during coverture, and shall at the same time mortgage his estate Sememe in such lands to secure the payment of the purchase money, his io°fS' ^9 widow shall not be entitled to dower out of such lands, as against wN.r.',in. the mortgagee or those claiming under him, although she shall not have united in such mortgage, but she shall be entitled to her dower as against all other persons. 1360 (4273.) Sec 5. When, in either of the cases mentioned ._. *• ' When wid- in the two last preceding sections, or in case of a mortgage in °^ in ^ Hle t d which she shall have joined with her husband, the mortgagee, or moSft " those claiming under him, shall, after the death of the husband, 8Barb -. 618 - cause the mortgaged premises to be sold by virtue of such mort- gage, and any surplus shall remain after payment of the moneys due thereon and the costs and charges of the sale, such widow shall be entitled to the interest or income of one-third part of i5 P mms 4 278 such surplus, for her life, as dower. 244 DOWER. 1360 (4274.) Sec. 6. If, in either of the cases above specified, the heir, or other person claiming under the husband, shall pay and satisfy the mortgage, the amount so paid shall be deducted from the value of the land, and the widow shall have set out to her, for her dower in the mortgaged lands, the value of one-third of the residue after such deduction. ow h enutie"d -^ ^ evv an< ^ sa ^ e un der an execution does not cut off the wid- resid™after ow ' s dower, and the purchaser at such a sale occupies the same amountpaid position in regard to improvements made by him, as if the prem- Tm°h tB m. ises had been conveyed to him by the husband. 2 Scribner on Dower, 37 and 579; Snyder v. Snyder, 6 Mich., 470. Where the holder of a mortgage executed by husband and wife, became the owner of the husband's equity of redemption by exeeution sale, and subsequently conveyed the lands with warranty, held, that, in proceedings by ejectment for recovery of dower by the wife against the grantee, the amount of the mortgage must be deducted from the value of the premises, and the dower set off from the residue. Snyder v. Snyder, 6 Mich., 470. Dower in 1360 (4275.) Sec. 7. When a widow shall be entitled to dower ed°by hra° out of any lands which shall have been aliened by the husband in estimated, his lifetime, and such lands shall have been enhanced in value after the alienation, such lands shall be estimated, in setting out e McLean e. the widow's dower, according to their value at the time when they were so aliened. As between the widow and heirs at law, before partition, the dower may be assigned out of any portion of the estate, and out of any one separate tract, as the commissioners may judge best for all parties interested. The statute, C. L. 1412 (4496), provides that the dower shall be set off before partition, but this is not always complied with. Where there has been partition before the dower is assigned, one-third of the portion of each heir should be set off as dower. Where a testator has devised his real estate to different persons, and the widow rejects the provision made for her in the will and asks to have her dower assigned, there should be set off to her one-third of the lands of each devisee. Where the widow- petitions for dower out of lands aliened by her husband in his lifetime, and there are other lands of the estate, one-third of each should be set off as dower. Where the lands are aliened DOWER. 245 or devised in small parcels, this rule would tend to decrease the value of the dower; but in cases of partition she should assert her rights in time, and in other cases the statute does not seem to provide any other way to adjust the rights of all parties. As there seems to be no' adequate remedy at law for cases of this kind, it would be advisable to proceed in equity, where the rights of all parties could be much better adjusted. For equity juris- diction over this subject, see Willard's Equity Jurisprudence, 693; Miller v. Stepper, et al, decided June T. of S. C, 1875; C. L. 1559 (5197), 2 Scribner on Dower, 137. The principles here asserted are discussed in 2 Scribner on Dower, 551 and 565; Coulter v. Holland, 2 Harring (Del), 335. 1360 (4276.) Sec. 8. "When a widow is entitled to dower in when dower lands of which her husband died seized, and her right to dower is signedby not disputed by the heirs or devisees, or any person claiming under court. them or either of them, it may be assigned to her, in whatever counties the lands may lie, by the judge of probate for the county in which the estate of the husband is settled, upon application of the widow or any other person interested in the lands ; notice of which application shall be given to such heirs, devisees or other 9 Mass 9 persons, in such manner as the judge of probate shall direct. The guardian of minor heirs may make the petition. 0. L. 1484 (4833.) The application should allege the marriage of tne parties, the death of the deceased, that the widow has a right of dower in certain lands, describing them ; of which land the deceased died seized; that such right of dower is not barred, and is not disputed by the heirs or devisees or those claiming under them. The application should also give the names, ages and residence, as far as possible, of the heirs at law. Notice may be given by citation or publication; the order is usually published three weeks. The jurisdiction of the probate court is confined to lands of which the deceased died seized. 2 Scribner on Dower, 169 and 170. The sworn petition is usually all the evidence required on the hearing. If at the hearing, the widow's right to dower is dis- puted by the heirs or devisees, or any person claiming under them, or if it is shown that the deceased did not die seized of the lands, all proceedings should be discontinued. In such cases the 246 DOWER. dower may be determined by the action of ejectment. C. L. 1764 (6205), second, (6213) and C. L. 1775 (6261), or in the court of chancery. Willards Equity Jurisprudence 693; 2 Scribner on Dower 137; C. L. 1559 (5197). The assignment of dower is not an incident to the administration of estates. Smith's Probate L., 214. The proceeding is one in which only the widow and heirs at law are interested, and the administrator is not entitled to notice of the proceedings. Camp- bell, Appellant, 2 Doug. 146.. Proceedings may be had to assign dower, before administration, during administration, or after administration is closed. The right to dower is unlike any other right to land known to the law, and its peculiar nature is such as to exempt it from the operation of all general statutes of limitations, however broad and comprehensive, in which it is not named or by unavoidable impli- cation included. May v. Eumney, et al., 1 Mich., 1. The widow is entitled to all crops growing on the land at the time the dower is assigned, whether sown by the deceased or his heirs. She is also entitled to all crops sown by her, and they will go to her administrator and not to the heirs of her husband. 2 Scribner on Dower, 727 to 729. The widow should keep the buildings and fences on the dower lands in reasonable repair, and must pay all taxes assessed thereon. C. L., Sec. (4290); 2 Scribner on Dower, 730. I find no decisions that the widow shall keep the buildings on the dower lands insured. fit she should insure them in her own name, it would seem that she would be entitled to the insurance moneys in case the build- ings are burned. The tenant for life and the remainderman are ' .r^ually interested in preserving the buildings, and it would per- haps be just to compel them to bear an equal portion of the expense of keeping them insured. If the heirs insure the buildings, and they are burned, the widow should receive the income from the insurance moneys during her life, less the premiums paid and the efienses of collecting the same. For general discussion of this Ject See 2 Scribner on Dower, 730 to 734 and 560. The 3W may cut necessary fire-wood for her use, and also timber necessary for repairs, and may clear land where this is absolutely necessary for its proper use and enjoyment. 2 Scribner on Dower DOWER. 247 747. The tenant in dower is liable for any waste committed or suffered to be committed by her during the term of the tenancy. C. L. 1792 (6353.) Before assignment dower is a mere right of action. Eayner v. Lee, 20 Mich., 384. Guardians should be appointed for all minor heirs, before the hearing of the widow's application. Dower may be set off by agreement between the widow and the heirs, or their guardians.- 2 Scribner on Dower, 65. Dower and homestead rights are entirely independent of each other, and the homestead is only subject to its proportion of the dower. Peyton v. Jeffries, 50 111., 143 and 477. When buildings subject to dower are insured, and, after the death of the husband, are destroyed by fire, the widow is entitled to a share of the insurance money. 2 Scribner on Dower, 560. Before assignment the widow may convey her right of dower, and the purchaser may take proceedings in the name of the widow to have the dower set off. 2 Scribner on Dower, 41 and 43. See, however, 2 Scribner on Dower, 40. A release by a widow to a stranger will not bar dower. The grantee must have some title to the land, out of which the dower is to be assigned, to bar the widows rights. 2 Scribner on Dower, 288 and 295. A release by a widow to an executor or administra- tor would not bar dower. 1360 (4277.) Sec 9. For the purpose of assigning such dower Warrant for the judge of probate shall issue his warrant to three discreet and ^awe™* disinterested persons, authorizing and requiring them to set off the dower by metes and bounds, when it can be done without injury to the whole estate. The warrant may be revoked for a sufficient cause, and a new warrant issued. C. L. 1562 (5214.) Commissioners fees are two dollars per day and six cents a mile for travel, going and returning. L. 1873. p. 183, Act No. 135. 1360 (4278.) Sec. 10. The commissioners shall be sworn before commis- a judge or justice of the peace to the faithful discharge of their sw"rn%tc., e duties, and shall, as soon as may be, set off the dower according OSgnmfnt; to the command of such warrant, and make; return of their doings, 248 DOWER. with an account of their charges and expenses, in writing, to the probate court; and the same being accepted and recorded, and an attested copy thereof recorded in the office of the register of deeds of the county where the lands are situated, the dower shall remain fixed and certain, unless such confirmation be set aside or reversed on appeal ; and one half of the cost of such proceedings shall be paid by the widow, and the other half by the adverse party. C. L. 1561, (5213.) The commissioners should serve a notice of the time and place when they will meet to set off the dower, as per form given, upon the widow and heirs or upon the guardians of such as are under guardianship. 2 Scribner on Dower, 16V. When it is necessary they should employ a competent surveyor to assist in making the assignment, and a plat of the lands set off as dower, and attach the same to their report. On filing the report the court should make an order confirming or rejecting it. The court should require the widow and heirs to record, in the register's 'office, a certified copy of the report and the confirmation of the same. When estate 1361 (4279.) Sec. 11. When the estate out of which dower is mill, etc., to be assigned consists of a mill or other tenement which cannot how dower . . . n assigned, be divided without damage to the whole, and in all cases where the estate cannot be divided by metes and bounds, the dower may be assigned of the rents, issue, and profits thereof, to be had and received by the widow as a tenant in common with the other owners of the estate. One-third of the rents, issues and profits, less necessary repairs, taxes and insurance, should be assigned to the widow. It is best for the commissioners to determine what the net income is, and assign to the widow a specific sum per annum. 2 Scribner on Dower, 601. When wid- 1361 (4280.) Sec. 12. When the widow is entitled to dower cupyvrith " in the lands of which her husband died seized, she may continue 7 Mch., 3« to occupy the same with the children or other heirs of the deceased, or may receive one-third part of the rents, issues, and profits thereof so long as the heirs or others interested do not object, without having the dower assigned. How dower 1361 (4281.) Sec. 13. A married woman residing within this may be . ' barred. State may bar her right of dower in any estate conveyed by her DOWER. 249 husband or by his guardian, if he be under guardianship, by 7 Mass. 14. ■ 3 Mason 347. joining in the deed of conveyance, and acknowledging the same 8 Pick. 536. as prescribed in the preceding chapter, or by joining with her husband in a subsequent deed, acknowledged in like manner. The acknowledgment of the wife must be in strict compli" ance with all the requirements of C. L. 1343 (4214) to bar dower. Barstow v. Smith, Wal. Ch., 394; Sibley v. Johnson, 1 Mich., 380; Dewey v. Campau, 4 Mich., 565. L. 1875 p. 142, Act No. 104, Section 1. The People of the State section of Michigan enact, That section four thousand two hundred and repea e fourteen of the compiled laws of eighteen hundred and seventy- one, relative to alienation by deed, be and the same is hereby repealed. Sec. 2. Hereafter the acknowledgment of any married woman to a deed of conveyance or other instrument affecting real prop- erty, may be taken in the same manner as if she were sole. Approved April 22, 1875. There is a further provision that a wife may join in a convey- ance by the guardian of her husband and release her dower. 0. L. 1475 (4789), and under our present statute. C. L. 1477 (4803), it would seem that she might release any interest she has in real estate by her individual deed. For proceedings in chancery to obtain the release of the dower of insane, imbecile, or idiotic married women, see L. 1873, p. 479, Act No. 191. A will made before marriage and disposing of all the estate will not cut off dower. After the dower is established the widow is entitled of course to her share of the mesne profits since death of her husband. Miller v. Stepper, decided June T. of S. 0., 1875. 1361 (4282.) Sec. 14. A woman may also be barred of her how dower dower in all the lands of her husband, by a jointure settled on toned! 1 Wash her with her assent before the marriage, provided such jointure Real Prop., consists of a freehold estate in lands for the life of the wife at least, to take effect in possession or profit immediately on the death of the husband. 1361 (4283.) Sec. 15. Such assent shall be expressed, if the ibid, woman be of full age, by her becoming a party to the conveyance by which it is settled, and if she be under age, by her joining with her father or guardian in such conveyance. 2 Paige ' 669- 32 250 DOWER. ibid. 1361 (4284.) Sec. 16. Any pecuniary provision that shall be e John! ch.' made for the benefit of an intended wife, and in lieu of dower, 194. . . ' shall, if assented to as provided in the preceding section, bar her right of dower in all the lands of her husband. Election in 13Q2 (4285.) Sec. 17. If any such jointure or pecuniary pro- caae of joint- v j s i on ]-, e ma( j e before marriage, and without the assent of the 194° n ' ' intended wife, or if it be made after marriage, she shall make her election after the death of her husband, whether she will take such jointure or pecuniary provision, or be endowed of the lands of her husband ; but she shall not be entitled to both. Election in 1362 (4286.) Sec. 18. If any lands be devised to a woman, or vision by™" other provisions be made for her, in the will of her husband, she eGray, 307. shall make her election whether she will take the lands so devised 12 Pick! ue! or the provisions so made, or whether she will be endowed of the 9 N Y 502 32N.Y.319. lands of her husband; but she shall not be entitled to both, unless it plainly appears by the will to have been so intended by the testator. whenwid- 1362 (4287.) Sec. 19. When a widow shall be entitled to an °o W haveefe> election under either of the two last preceding sections, she shall jointure.etc. he deemed to have elected to take such jointure, devise, or other provision, unless, within one year after the death of her husband, she shall commence proceedings for the assignment or recovery of her dower. The widow is entitled to know the true condition of the estate before making her election. She must make the election in per- son and within the time prescribed. An election made under a mistake in regard to the estate, or when induced by fraud, is not binding. 2 Scribner on Dower, 469. In the case of John Walton's Estate, 1 Tucker's N. Y. Sur. E., 10, it was held that a petition filed by a widow for admeasurement of dower, is not the ' commencement of proceedings for the recovery of dower, as con- templated by the statute. Nor is a letter to the executors, that she rejected the provisions of the will, and that she did thereby "elect to claim dower," such an election. The court held that the admeasurement was simply to ascertain the extent and loca- tion of the dower lands. That in order to compel an assignment or recover possession of the dower, she must bring an action of ejectment. The conclusion seems to be that the proceeding com- menced must be such as will compel an assignment of the dower, DOWER. 251 or recover the possession of the same. This seems rather tech- nical; still as our statute is so similar in this regard to the New York statute, it would be best in all cases to bring the action of ejectment within a year after the death of the husband. This of course would not be necessary where the heirs consent to the admeasurement of the dower and the widow is permitted to take possession of the same within the year. When a widow waives the provisions of the will, she also takes under C. L. 1383 (4377) "First," but not under (4377) "Sixth," because section 1 prevents, but if there is any personal estate not disposed of by the will, the widow would take her portion of the intestate property under Sec. (4377) "Sixth)." Miller v. Stepper, et al, 32 Mich., 194. 1362 (4288.) Sec. 20. If a woman is lawfully evicted of lands when wid . assigned to her as dower or settled upon her as jointure, or is dowedanew. deprived of the provision made for her by will or otherwise, in lieu of dower, she may be endowed anew, in like manner as if such assignment, jointure, or other provision had not been made. 1362 (4289.) Sec. 21. A woman being an alien shall not on Womanbe . that account be barred of her dower, and any woman residing out Presiding 11 ' of the State shall be entitled to dower of the lands of her deceased to have * "' husband, lying in this State, of which her husband died seized, u Mio'h.i9i. and the same may be assigned to her, or recovered by her, in like manner as if she and her deceased husband had been resi- dents within the State at the time of his death. A woman residing out of the State at the time of her husband's death is not entitled to dower in lands of which he did not die seized. Pratt v. Tefft, 14 Mich., 191. 1362 (4290.) Sec. 22. No woman who shall be endowed of any woman not lands shall commit or suffer any waste on the same;. but every waste; to woman so endowed shall maintain the houses and tenements, with etc., in re- ' the fences and appurtenances in good repair, and shall be liable to the person having the next immediate estate of inheritance therein for all damages occasioned by any waste committed or suffered by her. 1362 (4291.) Sec. 23. A widow may remain in the dwelling- How long house of her husband one year after his death, without being remain in chargeable with rent therefor, and shall have her reasonable sus- house, and have suste- tenance out of his estate for one year. nance. 252 DOWER. This right is not affected by a levy and sale on execution. 2 Scribner on Dower, 60. The right of quarantine attaches to any property in which the widow would be entitled to dower. It has been held that it cannot be claimed in property held in common. It would seem that the widow would be entitled to the exclusive control of the dwelling-house during the year. 2 Scribner on Dower, 53 and 54, etc. When to re- 1363 (4292.) Sec. 24. Whenever, in any action brought for the g ov. er ( una- p Ur p 0ge ^ a w j(j ow ghaji recover her dower in lands of which her husband shall have died seized, she shall be entitled also to recover damages for the withholding of such dower. This would apply where the action of ejectment is brought for this purpose under C. L. 1764, or where proceedings are taken in chancery. Measure of 1363 (4293.) Sec. 25. Such damages shall be one-third part of damages, etc ^ annua 2 va j ue f the mense profits of the lands in which she shall so recover her dower, to be estimated in a suit against the heirs of her husband, from the time of his death; and in suits against other persons from the time of her demanding her dower of such persons. Notonim- 1363 (4294.) Sec. 26. Such damages shall not be estimated for provements. . . Ti.i-ij.rii the use oi any permanent improvements made after the deatn 01 her husband, by his heirs, or by any other person claiming title to such lands. Damages I 363 (4295.) Sec. 27. "When a widow shall recover her dower aUenating 11 in any lands alienated by the heir of her husband, she shall be entitled to recover of such heir in an action on the case, her dam- ages for withholding such dower, from the time of the death of her husband to the time of the alienation by the heir, not exceeding six years in the whole; and the amount which she shall be enti- tled to recover from such heir shall be deducted from the amount she would otherwise be entitled to recover from such grantee; and any amount recovered as damages from such grantee shall be deducted from the sum she would otherwise be entitled to recover from such heir. Claim when 13G3 (4296.) Sec. 28. "When the widow shall have accepted an assignment assignment of dower in satisfaction of her claim upon all the lands of dower. Q £ j^ i lus ] 3an( j ) jj ghan be a bar to any further claim of dower against the heir of such husband, or any grantee of such heir, or DOWER. 253 any grantee of such husband, unless such widow shall have been lawfully evicted of the lands so assigned to her as aforesaid. 1363 (4297.) Sec. 29. "When a widow not having right to Coiiusivere- x ' covery not dower shall, during the infancy of the heirs of the husband, or to prejudice ' ° J in&nt heirs, any of them, or of any person entitled to the lands, recover dower etc. by the default or collusion of the guardian of such infant heir or other person, such heir or other person so entitled shall not be prejudiced thereby, but when he comes of full age, he shall have an action against such widow, to recover the lands so wrongfully awarded for dower. 1364 (4298.) Section 1. Be it enacted by the Senate and House when mon- of Representatives of the State of Michigan, That in any suit here- awarded in • i pi lieuof dower after to be commenced by any widow for the recovery of dower in lands which were aliened by her husband in his lifetime, and where dower cannot be assigned therein by metes and bounds without injustice or manifest injury to the widow, or to the owner or owners, or person or persons in possession thereof, or some one of them, the court having cognizance of the matter may award and adjudge a sum of money in lieu of dower to be paid to the widow, or may assign to her, as tenant in common, a just proportion of the rents, issues, and profits of said lands, regard being had in all cases to the . true value of the lands at the time of such alienation by the husband, and of the probable duration of the lif e of the doweress at the time such sum of money shall be adjudged, or such rents, issues, and profits shall be assigned to her. The suit here referred to is a suit in ejectment to recover dower. . 1364 (4299.) Sec. 2. Where dower in any lands may be claimed when dower by two or more widows, the one whose husband was first seized two or more therein shall be first entitled thereto; and in all cases where dower first en- in any land shall have been assigned, or where it shall appear that the owner or owners, or person or persons having an interest therein, shall have made full satisfaction to, and has obtained a discharge from the person recovering or having a prior right to dower therein, by reason of the prior seizin of her husband, the said land shall not be subject to any other claim for dower during the lifetime pf the person so recovering, or who has received sat- isfaction and given a discharge as aforesaid. 254 PROBATE BONDS. PROBATE BONDS AND PROSECUTION THEREOF. Private ^^ ( 4518 -) Section 1. All bonds, required by law to be taken.' h ° W taken in or by order of the probate court, shall be for such sum, and with such sureties, as the judge of probate shall direct, except when the law otherwise prescribes ; and such bonds shall be for the security and benefit of all persons interested, and shall be taken to the judge of probate, except where they are required by law to be taken to the adverse party. 1562 (5215.) Sec. 24. No bond required by law to be given to not deemed the judge of probate, to be filed in his office, shall be deemed suf- •"roved?" fi c i ent unless it shall have been examined and approved by the judge, etc. judge; and his approval thereof indorsed thereon in writing, and signed by him. The bond need only conform substantially to the requirements of the statute, and may be amended. C. L. 1759 (6186) and (6187). The bond need not be under seal. C. L. 1760 (6194). A bond not under seal has the same force as if under seal. Me- Kinney v. Miller, 19 Mich., 142. Judeof L - 1875 > P- 4>7 ' A " ct No - 50 - Section 1. The People of the State require new y °f Michigan enact, That the judge of probate of any county in cuSons etc ^ s State may require a new bond to be given by any executor, chargeexist- guardian, administrator, special administrator or trustee, when- mg sureties. eyer ^ gjjgj} ,j eem it necessary or proper, after due notice given as he may direct, and on filing such new bond, may discharge the existing sureties from future responsibility, when it satisfactorily appears that no injury can result therefrom to any person inter- Proviso. ested in the estate: Provided, however, That such existing sureties shall not be discharged from liability upon such bond until a new bond shall have been filed, with sureties approved by the judge of Proviso. probate: Provided further, That such existing sureties shall not be discharged from any liability incurred prior to the filing of such new bond, and the old bond shall be retained by the judge of PROBATE BONDS. 255 probate for the benefit of all persons who may be interested therein. Sec. 2. This act shall take immediate effect. Approved March 24, 1875. L. 1875, p. 191, Act No. 162. Section 1. The People of the State whenpro- mi • i bate court of Michigan enact, That when the sureties or the penal sum in any may rcquiie /v> • new bond. bond given to the probate court are insufficient, the probate court, on the petition of any person interested, and after notice to the principal in the bond, may require a new bond with such surety or sureties, and in such penal sum as the court shall direct. Sec 2. Any surety may, upon his petition to the probate Discharge of surety on his court, be discharged from all further responsibility, if the court, petition, etc. after due notice to all persons interested, deems it reasonable and proper, and the principal may thereupon be required to give a new bond. Sec. 3. If the principal fails to give a new bond within such Removal in A ■*■ ° case of fail- time as is ordered by the court, he may be removed and some ure *° ^ e J ' J new bond. other person appointed in his stead. Sec. 4. When a new bond is so required, the sureties in the Liability of * sureties prior bond are liable for all breeches of the condition committed when new 1 bond is re- before the new bond is approved by the judge. quired. - Sec 5. This act shall take immediate effect. Approved April 29, 1875. 1417 (4519.) Sec. 2. A suit may be brought on the bond of when suit any executor or administrator by any creditor, when the amount brought by J j j creditor on due to him has been ascertained and ordered by the decree of bon ? of e * m J ecutor, etc. distribution to be paid, if the executor or administrator shall neg- lect to pay the same when demanded. 1417 (4520.) Sec. 3. Such a suit may be brought by any per- wnensuk son as next af kin, to recover his share of the personal estate, brought by next of kin. after a decree of the probate court declaring the amount due to him, if the executor or administrator shall fail to pay the same when demanded. The last two sections would seem to provide that in the cases there mentioned, an action might be brought on the bond without first obtaining authority from the probate court; but the language used in C. L. 1404 (4461) renders it doubtful whether an action can be brought by a creditor, even after his claim, has been ascer- 256 PROBATE BONDS. tained and ordered by the decree of distribution to be paid, and after payment has been demanded, without first obtaining author- ity from the probate court. It is best therefore, in all cases, to obtain authority from the probate court, before bringing an action on a probate bond. For prosecution of guardian's bonds, see C. L. (4623), (4839), and (4840.) When court 1417 (4521.) Sec. 4. When it shall appear, on the representa- may author- . ize any per- tion of any person interested m the estate, that the executor or son interest- ed to bring administrator has failed to perform his duty in any other particu- lar than those before specified, the judge of probate may author- ize any creditor, next of kin, legatee, or other person aggrieved by such mal-administration, to bring an action on the bond. Leave to bring an action on the bond must be obtained by a legatee when an executor neglects to pay his legacy. Newcomb v. "Williams, 9 Met., 525; Fay v. Taylor, 2 Gray, 158. Any per- sons interested may ask leave to bring a suit on the bond. Stev- ens v. Cole, 7 Cush., 467. The action may be brought at any time within twenty years after breach of the conditions. Pres- cott v. Eeed, 8 Cush., 365. On filing the petition for leave to bring suit on a bond, a cita- tion should issue and be personally served upon the executor and his sureties, requiring them to appear and show cause why the prayer of the petition should not be granted. On the hearing, the petitioner must show a valid reason why he should be permitted to bring suit. The order granting leave should be in writing, and an appeal will He from a decree refusing leave to bring suit, but the signers of the bond cannot appeal from decree allowing a proper person to bring suit. Fay v. Rogers, 2 Gray, 175. It has been held that leave may be granted to legatees to bring an action upon an executor's bond, to recover a legacy without notice to the obligors of the application for such leave, or previously sum- moning the principal obligor to render an account and ordering distribution thereon. Richardson v. Oakman, 15 Gray, 57; Rich- ardson v. Hazelton, 101 Mass., 108. A bond given at the principal administration does not cover . proceedings under an ancillary administration. Hooker v. Olm- stead, 6 Pick, 481. Where an administrator is licensed to sell PROBATE BONDS. 257 only so much real estate as is necessary to pay debts no bond is required by statute, and if a bond is given it cannot be prosecuted. Fay v. Valentine, 8 Pick., 526. There must be a breach of some of the conditions of a bond before the court can authorize suit to be commenced. Loring v. Kendall, 1 Gray, 305. A devisee of real estate, where the devise rests upon a condition subsequent, cannot bring an action on the bond. Stevens v. Cole, 7 Cush., 467. It is not a breach of tbe bond to refuse to comply with a void decree of the probate court. Hancok v. Hubbard, 19 Pick., 167; Davis v. Head, 3 Pick., 128. Where the executor is appointed trustee in the will, but only gives bond as executor, he will be liable for the trust fund on his bond as executor. Prior v. Talbot, 10 Cush., 1; Dorr v. Wain- right, 13 Pick., 328. 1418 (4522.) Sec. 5. Whenever an executor or administrator WhcI1 exec . shall refuse or omit to perform any order or decree made by a "£» refuse judge of probate having jurisdiction, for rendering an account, or q"^ £™ d upon a final settlement, or for the payment of debts, legacies, or may esue ' distributive shares, such judge of probate may cause the bond of such executor or administrator to be prosecuted, and the moneys collected thereon shall be applied in satisfaction of such order or decree, in the same manner as such moneys ought to have been applied by such executor or administrator. The rendering and allowance of an account, at the request of parties interested, or after due notice as required by law, covers all prior delinquencies in this regard. Loring v. Kendall, 1 Gray, 305. 1418 (4523.) Sec. 6. In all suits upon such bonds, the writ and suits on proceedings shall be in the name of the judge of probate, and in the name when the action is brought for the benefit of any particular per- probate, son as creditor, next of kin, or legatee, as provided in this chap- ter, the execution shall express that it is for the use of such cred- itor, next of kin, or legatee, and in siich case the person for whose use the action is brought shall be deemed the plaintiff. The suit should be brought in the circuit court for the county in which the probate court is situated, where the bond is filed. If judgment is rendered and execution issued for the benefit of a particular person, the moneys collected should be paid to such per- 33 258 PROBATE BONDS. son. In other cases the moneys collected belong to the genera] assets of the estate, and an administrator de bonis non should be appointed to receive and distribute them, except where there is a co-executor not implicated in the breach of the conditions of the bond. See Sec. (4527) below. Newcomb v. "Williams, 9 Met, 538; "Wiggin v. Sweet, 6 Met., 198; Bennett v. Eussell,,2 Allen, 53V. For proceedings by and against the reprerentatives of deceased persons who are parties to, or interested in probate bonds, see Sec. (4529) below. In all cases, the proceedings must be in the name of the judge of probate, whether in the circuit court, or before commissioners on claims. When judge 1418 (4524.) Sec 7. On the application of any person author- permission ized by this chapter to commence a suit on such bond, the judge to sue bond. ... of probate may grant permission to such person to prosecute the same, and shall thereupon furnish to the applicant, on his paying the legal fees, a certified copy of the bond, together with a certifi- cate that permission has been granted to prosecute it, and the name and residence of the applicant. Judgment 1418 (4525.) Sec. 8. If judgment shall be rendered for the benefit of plaintiff in any suit upon such bond, brought for the benefit of persons. any particular person, the court shall award execution for the amount due to such person, with costs of suit. 1418 ('4526.') Sec. 9. If judgment shall be rendered for the Judgment, v ' J b etc., in other plaintiff in any suit upon such bond, brought by the judge of probate for any breach thereof, in not performing any order or decree of the judge of probate, as mentioned in the fifth section of this chapter, execution shall be awarded for the full value of all the estate of the deceased that shall have come to the hands of such executor or administrator, and for which he shall not have satisfactorily accounted, and for all such damages as shall have been occasioned by his neglect or mal-administration, with costs of suit. Dis os if 14 ^ (4527.) Sec. 10. All moneys received on any execution c'lScted 3 ™ i ssue< i on a judgment in favor of the judge of probate, as men- tioned in the preceding section, shall be paid over to the co-exec- utor or co-administrator, if there be any, or to such person other Uian the defendant therein, as shall then be the rightful executor TROBATE BONDS. 259 or administrator; and such moneys shall be assets in his hands to be administered according to law. 1419 (4528.) Sec. 11. Any person who may be injured by the whenscire facias may breach of the conditions of such bond may afterwards, from time be prose- cuted, to time, sue out and prosecute a scire facias in his own name, on the judgment which may have been rendered for the penalty of such bond ; and in such scire facias shall assign and set forth the breaches on which he relies, and may therein recover such dama- ges as he may prove, with costs. 1419 (4529.) Sec 12. Claims for damages on account of the By whom breach of the conditions of any bond, may be prosecuted by any fianiaVt's for executor, administrator, or guardian, in behalf of those he may condition represent, in the same manner as by persons living and of full ec'uted. age; and such claims may be prosecuted against the representa- tives of deceased persons, in the same manner as other claims against such deceased persons. Where an executor, administrator or guardian dies, not hav- ing rendered his account, the persons interested, or their legal representatives, should first petition the probate court to require the administrator of the deceased executor, etc., to render the account of the administration of such deceased executor, etc. Gregg v. Gregg, 15 N. H., 190; Curtis v. Bailey, 1 Pick., 199. After the account is allowed and the amount due ascertained, such amount should be presented as a claim against the estate of such deceased executor, etc. Actions may be brought on guardians' bonds in the same man- ner as on bonds of executors and administrators. C. L. 1485 (4839). The action in most cases against sureties on guardian's bonds must be commenced within four years from the time the guardian is discharged. C. L. 1485 (4840). The term "dis- charged," means any effectual termination of the guardianship, as removal, resignation, or death of guardian, or the arrival of minor at full age, or marriage of a female ward, or otherwise. The lim- itation applies also to real estate sale bonds. Loring v. Alline, 9 Cush., 68. Before an application is made for leave to commence suit upon a guardian's bond, proceedings should be taken to compel the guardian to render his account to the probate court, because that 260 PROBATE BONDS. is the proper tribunal in which to adjust such accounts, and deter- mine the amount due to the ward. So, too, when there is a bal- ance due the guardian, he cannot sue his ward after he becomes of age, to recover this balance, until his accounts are adjusted by the probate court. Where one of several sureties is obliged to pay the amount due the ward, he may proceed in equity to com pel his co-sureties to contribute their proper proportion. Schoul- er's Domestic Eelations, 502 and 503. MASTERS, APPRENTICES, AND SERVANTS. 261 MASTERS, APPRENTICES, AND SERVANTS. 1490 (4857.) Section" 1. Every male infant, and every unmar- infanta may ried female under the age of eighteen years, with the" consent of selves as ap- the persons or officers hereinafter mentioned, may, of his or her etc.; for what terms. own free will, bind himself or herself in writing, to serve as clerk, is John, 113 ° 6 Barb. 366. apprentice or servant in any profession, trade, or employment, if 12 Barb. 473. a male, until the aare of twenty-one .years, and, if a female, until 25 Barb. 204. ■> J > i Demo, 518. the age of eighteen years, or until her marriage within that age, * iL1R or for any shorter time; and such binding shall be as valid and ^ 7 E ' L&E ' effectual as if such infant was of full age at the time of making such engagement. L. 1875, p. 181, Act No. 150 (4858.) Sec. 2. Such consent shall be given — First, By the father of the infant. If he be dead or be not in Consent, by ... whom given. a legal capacity to give his consent, or if he shall have abandoned and neglected to provide for his family, and such fact be certified by a justice of the peace of the township and endorsed on the indenture; then, Second, By the mother. If the mother be dead, or be not in a legal capacity to give such consent or refuse; then, Third, By the guardian of such infant duly appointed. If such infant have no parent living, or none in a legal capacity to give consent, and there be no guardian; then, Fourth, By any two justices of the peace of the township where such infant may reside; Fifth, By the recorder of any city in the county, or by the probate judge of such county. 1491 (4859.) Sec 3. Such consent shall be signified by the How consent person or officers entitled to give the same, by writing at the end fied. esigm " of or indorsed upon each part of the indentures, signed by such 10 j. R.99. person or officers, and not otherwise. 262 MASTERS, APPRENTICES, AND SERVANTS* indentures. 1491 (4860.) Sec. 4. No minor shall be bound as aforesaid, unless by indentures in two parts, sealed and delivered by both parties. For form of indenture see Appendix. Whensuper- L. 1875, p. 181, Act No. 150 (4861.) Sec. 5. The county super- of the poor, intendents of the poor in the several counties, or the recorder of etc., may bind out any city of the county, or the probate judge of such county, and minors. upon the relation of any person they or either of them, are hereby authorized and required to institute inquiry, and to examine wit- nesses on oath as to the merits of the case, and shall keep a record of proceedings, and file the same in the county clerk's office, and may bind out any child under the ages above specified who shall be sent to any county poor-house, or who is or shall become chargeable, or whose parent or parents shall become chargeable to such county, to be clerks, apprentices, or servants, until such child, if a male, shall be twenty-one years old, and, if a female, shall be eighteen years old, or until her marriage within that age, which binding shall be as effectual as if such child had bound himself or herself with the consent of his or her father. Approved April 29, 1875. When direc- 14=91 (4862.) Sec. 6. The directors of the poor of any township poormay 6 or city may also bind out any such child, who, or whose parent or 6 cowen, parents, shall become chargeable to the county, and who shall be 65 supported in their township, with the consent in writing of one of the county superintendents of the poor. Age of min- 1492 (4863.) Sec. 7. The age of every infant, bound pursuant serted fnin- to the provisions of this chapter, shall be inserted in the inden- tures, and shall be taken to be the true age without further proof thereof; and whenever any public officers are authorized to exe- cute any indentures, or their consent is required to the validity of the same, it shall be their duty to inform themselves fully of the infant's age. Counterpart 1492 (4864.) Sec 8. The counterpart of any indentures executed deposited ;" by the county superintendents of the poor shall be by them depos- be inserted, ited in the office of the clerk of the county; and the counterpart of any such indentures executed by the directors of the poor shall be by them deposited in the office of the clerk of their township or city; and provision shall be made in every such indenture for MASTERS, APPRENTICES, AND SERVANTS. 263 teaching the minor to read, write, and cipher, and for such other instruction, benefit, and allowance, as such superintendents or directors may think reasonable. 1492 (4865.) Sec. 9. All considerations of money or other Moneys, etc. things paid or allowed by the master, upon any indenture of ter, to'Yefor . . . . . . , . - use of minor apprenticeship or service, made in pursuance ot this chapter, shall be paid or secured to the sole use of the minor bound thereby. 1492 (4866.) Sec. 10. Parents and guardians, and superintend- whotoin- tt j!i in-.- i o quire into ents and directors ot the poor, shall inquire into the treatment of treatment of n i tit -i ■-,-.• children, all children bound by them respectively, or with their approbation, and to de- fend tbem. and of all who shall be bound by their predecessors in office, and defend them from all cruelty, neglect, or breach of the indentures on the part of their masters. These inquiries should be thoroughly and regularly made at least twice a year. 1492 (4867.) Sec. 11. In case of any such misconduct or neg- complaint ... .. i^i against mas- lect of the master, a complaint may be filed by the parent or ter for mis- - t At conduct. guardian, or by the superintendents or directors of the poor, m the probate court for the county in which the master resides, set- ting forth the facts and circumstances of the case; and the court, having caused such notice as it shall deem reasonable to be given to the master, shall proceed to hear and determine the cause. Upon filing such a petition the court should issue a citation, and direct that it be personally served on the master. 1492 (4868.) Sec. 12. After a full hearing of the parties, or of when court the complainant alone in case the master shall neglect to appear, charge min- the court may make an order or decree that the minor be dis- award costs i-ip-i- i- • t o against mas- charged Irom his apprenticeship or service, and for the costs of ter. the proceeding against the master, and may issue execution there- for accordingly, and the minor may be bound out anew, unless such order be reversed on appeal. The court should discharge the minor, if there is any satisfac- tory evidence of illtreatment, as that the minor is over worked, not sufficiently clothed and fed, and has not been sent to school a proper portion of the year, or that the master is in the habit of using intoxicating liquors to excess, and permitting the minor to use the same, or habitually uses improper language in the psesence of the minor. The court should exercise great diligence in these 264 MASTERS, APPRENTICES, AND SERVANTS. cases, because it is of the utmost importance to society that these orphans and neglected children should be properly trained and educated. For statute requiring children to attend school See C. L. 1225 (3737.) When costs 1492 (4869.) Sec. 13. If the complaint be not sustained, the ed against court shall order costs to be paid by the complainant to the master, ant. and issue execution therefor accordingly; excepting that if such complaint be made by the superintendents or directors of the poor, the court shall not award costs against them, unless it shall appear that the complaint was made without any just or reason- able cause. Master, 1493 (4870.) Sec. 14. Every master shall also be liable, whether toactioi? ,e SUCQ complaint shall have been filed or not, to an action on the indenture, for the breach of any covenant, on his part, therein contained ; which action shall be brought in the name of the minor by his guardian or next friend, or by himself, after his majority. Damages re- H93 (4871.) Sec. 15. If such action be brought, and a recovery howdis- be had, during the minority of such apprentice or servant, the poae ° ' damages recovered in such action, after paying the necessary charges of the prosecution, shall be the property of the minor, and may be appropriated to his use, or invested for his benefit, in the same manner as any other property belonging to such minor, within what - 1^93 (4872.) Sec. 16. No such action shall be maintained by tobe com™ anv apprentice or servent unless it be commenced during the term of apprenticeship or service, or within two years after the expira- tion thereof, if judgment 1493 (4873.) Sec. 17. If judgment in such action shall, upon ^/plaintiff, the final determination thereof, be rendered for the plaintiff, the be l dis-i may court in which the same is prosecuted may thereupon, by an order to be entered in its minutes, discharge the minor from his appren- ticeship or service, if it shall not have been already done in the manner before provided, and the minor may thereupon be bound out anew. Proceedings 1493 (4874.) Sec 18. If any apprentice or servant, bound as Dr^rvant aforesaid, shall unlawfully depart from the service of his master, service of any justice of the peace, upon complaint on oath made to him by the master, or by any one in his behalf, may issue his warrant to apprehend the apprentice or servant, and bring him before such justice. ■ MASTERS, APPRENTICES, AND SERVANTS. 265 1493 (4S75.) Sec. 19. If such complaint be supported, the jus- justico may order off en- tice may order the offender to be returned to his master, or may der to be re- turned, or commit him to the common iail or house of correction, there to may commit J him. remain for a term not exceeding twenty days, unless sooner dis" charged by his master. 1493 (487 0.) Sec. 20. The -justice's warrant, when directed to Effectof v ' warrant. any officer or other person by name, shall authoize him to convey the offender to the place of residence of the master, although it may be in any other county in the State. 1493 (4877.) Sec. 21. All the costs incurred on any such pro- whotopay n • i ■ f costs. cess against an apprentice or servant, shall be paid in the nrst instance by the master; and if the complaint be supported, the amount of such costs may be recovered in an action against the minor, after he shall arrive at full age. 1494 (4878.) Sec. 22. If any such apprentice or servant shall Complaint against ap- be guilty of any gross misbehavior, or refusal to do his duty, or prentice for ° J J b •" misbehavior willful neglect thereof, his master may file his complaint in the and proceed- ings thereon probate court of the county in which he resides, and the court, 2 Pi*-. * 51 - after causing such notice as it shall deem reasonable to be given to the parent or guardian who consented to the binding of such apprentice or servant, or to the officers who bound him, or their successors in office, shall proceed to hear and determine the cause. This notice should be by citation personally served upon the persons mentioned, and also upon the apprentice. 1494 (4879.) Sec. 23. After a full hearing of the parties, or of when court the complainant if the adverse partv shall neglect to appear, the charge mas- ter from ob- court may make an order or decree that the master be discharged ligation, etc. from the contract of apprenticeship or service, and for the costs of the suit; and the amount of such costs may be recovered in an action against the minor, with interest thereon, after he shall have arrived at full age; and such minor may be bound out anew. 1494 (4880.) Sec. 24. No indenture of apprenticeship or service, Minor dis- made in pursuance of this chapter, shall bind the minor after the deathof 153 death of the master, but the minor shall be thenceforth discharged therefrom, and may be bound out anew. 1494 (4881.) Sec. 2o. An indenture of apprenticeship or ser- Preceding provisions to vice made in pursuance of this chapter, by or in behalf of a minor, apply to mistresses may be made either with a woman or man capable in law of con- 34 266 MASTERS, APPKBNTICES, AND SERVANTS. tracting; and all the foregoing provisions shall apply as well to mistresses as to masters ; and the recorder of any city of the county, or the circuit judge of such county, may permit and order the transfer of such indentures as are authorized in this chapter when, upon sufficient proofs and hearing, such officer shall be satisfied Proviso. such transfer will be for the interest of such minor: Provided, The consent of the minor shall first be given to such transfer, if at the time of such transfer such minor be of the age of fourteen years. Oommont 1492 (4822.) Sec. 26. Nothing contained in this chapter shall no™ affected, prevent or affect the right of a father, by the common law, to l Mason, 78. assign or contract for the services of his children for the term of their minority or of any part thereof. Mother of ^94 (4883.) Sec. 27. The mother of an illegitimate minor cniS'may " child shall have power to give the consent authorized in this chap- bhidfng.' ter ; to tlle binding of such child, during the life-time of the puta- tive father, as well as after his death. For manner of proceeding in suits for or against infants, see C. L. 1835 (6530), etc. STATE SCHOOL. 267 STATE PUBLIC SCHOOL FOR DEPENDENT AND NEGLECTED CHILDREN. L. 1871, p. 283, Sec. 11. There shall be received as pupils in Reception liTi i-ii i « ii au< ^ continu- such school those children that are over tour and under sixteen ance of pu- pils, and years of age, that are in suitable condition of body and mind to discretion of board in re- receive instruction, who are neglected and dependent, especially lation ' h « r e- those who are now maintained in the county poor-houses, those who have been abandoned by their parents, or are orphans, or whose parents have been convicted of crime. The said board of control shall have power to receive any child under the age of four years or over sixteen years of age, and may reject any between the ages of five and sixteen years of age whom they may for any cause deem improper inmates of such school. ISO pupil shall be retained in said school after arriving at the age of six- teen years, unless by consent of said board of control. Seo. 12. The children in such school shall be maintained and Mainte- . ' . nance and educated in the branches usually taught in common schools, and education, shall have proper physical and moral training. Sec 13. It is declared to be the object of this act to provide object of for such children only temporary homes until homes can be pro- Board to cured for them in families. It shall be the duty of such board of homes 6 for control to use all diligence to provide suitable places in good fam- Famiife's" ilies for all such pupils as have received an elementary education; and any other pupils may be placed in good families on condition that their education shall be provided for in the public schools of the town or city where they may reside. That said board of con- trol are hereby made the legal guardians of all the children who ™p^f s ian of may become inmates of said school, with authority to bind out any child to a pursuit or trade during minority, under a contract insuring the child kind and proper treatment and a fair elemen- tary education. Sec. 14. That whenever there shall be sufficient room for the children not to be reception of the class of children described in this act, in such k ept in poor houses. 268 STATE SCHOOL. Soldiers' or- State public school, no such children shall hereafter be maintained have prefer- in county poor-houses. That in receiving such children into such ence. school, preference shall be given first to dependent and indigent orphans or half orphans of deceased soldiers and sailors of this State. Secretary of L ' 1873 > P- 191 '' Act Na 144 > Se0 - 1S " As S00n aS tlle State wy'superin- public school buildings are ready for the admission of inmates, poor™ 4 " °' an d thereafter semi-annually, and whenever inquired of by the superintendents of the poor, it shall be the duty of the secretary of the board of control, to notify the superintendents of the poor of each county, how many children of the county notified can be Howdivid d rece i ve( i m sa id school. That the admission for dependent child- severai the ren ™ sa, i°- school shall be, as near as practical, divided among counties. ^e several counties in proportion to the number of dependent superinten- children in each. That it shall be the duty of the superintend- poor to for- ents of the poor of each county, to forward to said school any ren. ■ dependent and neglected children that are entitled by this act to admission thereto in the manner herein provided. All expenses Expenses, how de- attending the forwarding of such children and of the examination herein provided for, and of returning to the counties where they belong children not entitled to admission, shall be defrayed by the county to which they belong, by the county treasurer, out of the funds appropriated to the support of the poor belonging to such county, after being allowed and certified by the county super- intendents. Examina- Sec. 16. Before the superintendents of the poor shall send any ren U before d " child to said school, they shall cause him to be brought before the sen ms ' judge of probate in the county where the child belongs, for exam- ination by the judge of probate as to his alleged dependence; and it shall be the duty of the superintendents of the poor of each county, in the case of children in the poor houses, or other chil- dren which shall be found in a state of want or suffering, or being abandoned or improperly exposed, or children in any orphan asylum where the officers thereof desire to surrender them to the care of the State, whenever there shall be a vacancy for their county in said school, to bring such children before the said judge of probate for said examination; and it shall thereupon be the duty of the said judge of probate to investigate the facts in each STATE SCHOOL. 269 case, and ascertain whether such children are dependent; their ages, names, and residence of parents, and in what county, poor house, or orphan asylum they have been kept if any, and for how long a time, and said judge of probate shall have power to com- pel the attendance of witnesses, and may in his discretion request idem the attendance of the prosecuting attorney on such examinations, and, if so requested, it shall be the duty of such prosecuting attorney to attend in behalf of the county. The parents or any friend may appear in behalf of any child, and in his discretion the said judge of probate may request any supervisor of any town or ward to appear in behalf of any child; and if, on such exam- ination, the said judge of probate shall find that any child is dependent and neglected, he shall enter such finding by a proper order in the journal of the probate court in his office, and shall deliver to the superintendent of the poor procuring such examin- ation, a, certified copy of such order which shall contain, besides said findings, a statement of the facts so far as ascertained, as to the age of the child, names and residence of parents, and name of county poor house or orphan asylum where the child has been maintained, and the length of time of such maintenance; and in the case of the examination of two or more children at the same time, only one order need be made; and said certified copy of said order shall be delivered, with the child, at said school, to the superintendent thereof. The superintendents of the poor, or one of them on behalf of all, should file a petition as per form given. A day of hearing should be fixed, and if the petition shows that the parents, or either of them, are near, they should be served with a citation; if not, then the supervisor should be notified to appear on the day of hearing. An order should be made as per form given and recorded, and a certified copy of the order delivered to the super- intendent to be filed in the office of the school. PROCEEDINGS BEFORE THE JUDGE OF PROBATE FOR RECORD- ING CERTIFIED COPIES OF LOST DEEDS, ETC. L. 1875, p. 54, Act No. 59, Section 1. The People of the State Manner of of Michigan enact, In all cases where a deed, mortgage, or other the records instrument affecting the title to real estate, shall have been, or etc., affect-' 270 HOLIDAYS. ing lands in two or more counties shall have been de- stroyed he- fore being recorded in all the coun- ties, when the same shall have been re- corded in any one of them. shall be executed, affecting land in two or more counties, and when the same shall have been duly recorded in the office of the register of deeds in any county in which any part of the lands to be affected thereby is situate; and such instrument shall have been lost or destroyed before being recorded in other counties in which land affected thereby shall be situate, it shall be lawful for any party or parties, interested in such lost deed or other writing, or in the real estate the title to which shall be affected thereby, to apply to the judge of the probate court of the county where such real estate may be situate in which the record shall not have been made, for an order to record a duly certified transcript of such deed, mortgage, or other instrument, in such county, and there- upon such judge of probate shall give notice by publication, in accordance with the practice of such court, for three successive- weeks, of such application, and of the time and place when and where a hearing will be had thereon, and on such hearing, if it shall appear to such probate judge that such deed, mortgage, or other instrument was duly executed and has been legally recorded in any county in this State, and that the same was lost or destroyed before being recorded in other counties in which real estate to be affected thereby was situate, such probate judge shall make an order authorizing a certified transcript of such deed, mortgage, or other writing, to be recorded in said county, and shall annex a duly certified copy of such order to such copy of such deed, mortgage, or other instrument, and thereupon such certified copy of deed, mortgage, or other instrument, and such order authorizing a record thereof, may be recorded in the office of the register of deeds of the county in which such order shall be made, and such record* shall have the same force and effect as the record of the original would have had, had the same been recorded before being lost or destroyed. Approved March 26, 1875. HOLIDAYS. Act amend- ed. L. 1875, p. 192, Act. No. 163, Section 1. The People of the State of Michigan enact, That an act entitled "An act to designate the holidays to be observed in the acceptance and payment of bills of exchange and promissory notes, in the holding of courts, and rel- HOLIDAYS. 1271 ative to the continuance of suits,'' approved March eight, eighteen hundred and sixty-five, being compiler's section one thousand five hundred and fifty-nine of the compiled laws of eighteen hun- dred and seventy-one, be and the same is hereby amended so as to read as follows: (1559.) Section 1. That the following days, viz: the first day ueitaindays considered of January, commonly called New Year's dav, the twenty -second as is Sunday, J for certain day of February, commonly called "Washington's birth-day, the purposes, fourth [day] of July, the twenty-fifth day of December, commonly called Christmas day, the thirtieth day of May, commonly called Decoration day, and any day appointed or recommended by the Governor of this State or the President of the United States, as a day of fasting and prayer or thanksgiving, shall, for the purposes of presenting for paymentor acceptance, and of protesting notice of the dishonor of bills of exchange, bank checks, and promissory notes, made after this act shall take effect, also for the holding of courts, be treated and considered as the first day of the week, com- monly called Sunday: Provided, That in case any of the holidays Proviso, shall fall upon a Sunday, then the Monday following shall be con" sidered as the said holiday: Provided also, That in case the return Furtherpro- viso— return or adjourn day in any suit, matter, or hearing before any court or adjourn day of any shall come on any day so appointed or recommended by the Gov- suit, ernor of this State, or President of the United States, as a day of thanksgiving, or fasting and prayer, such suit, matter, or proceed- ing, commenced or adjourned as aforesaid, shall not, by reason of coming on any day recommended by the Governor of this State, or President of the United States, as a day of thanksgiving, or fasting and prayer, abate, but the same shall stand continued on the next succeeding day, at the same time and place, unless the next day shall be the first day of the week, or a holiday, in which case the same shall stand continued to the day next succeeding said first day of the week or holiday, at the same time and place: Provided Further pro- furiker, That whenever the first day of the general term of any day of term circuit court, as fixed by the order of a circuit judge, shall fall court, upon either of the days first above named, such court may be adjourned to the next succeeding secular day: Provided further Further pro- viso — pre- That nothing in this section shall make invalid a presentation, stntationof ° commercial demand, or notice of dishonor of commercial paper on any such paper ™ ' •■ x such days. 272 HOLIDAYS. holiday other than Sunday, in cases where the same shall not have been presented on the secular day next preceding such holiday. Sec. 2. This act shall take immediate effect. Approved April 29, 1875. From mill- 66, Sec. 4. No elector shall be obliged to do military duty on t»ry duty. ^ ^ay f election, except in time of war or public danger; or attend court as a suitor or witness. The above provision of our constitution has the. effect to make election days holidays in regard to holding courts. No civil 128 (124.) Sec. 94. During the day on which any election shall be served on be held, pursuant to the provisions of law, no civil process shall electors on . ... day of eiec- be served on any elector entitled to vote at such election. tion. 1 Ed- wards, 323. 108 (32.) Section 1. The I'eoide of the State of Michigan eiatd, 20 Wendell, ^ ' 1 J J 681 - That a general election shall be held in the several townships and election ; wards of this State, on the Tuesday succeeding the first Monday when held. o:f November, in the year eighteen hundred and fifty. two, and on the Tuesday succeeding the first Monday of November, every second year thereafter, at which there shall be elected so many of the following officers as are to be chosen in such years respectively, officers to that is to say : A Governor, Lieutenant Governor, Secretary of State, State Treasurer, Auditor General, Attorney General, Super- intendent of Public Instruction, Commissioner of the State Land Office, members of the State Board of Education, Electors of const. Art 5 President and Vice President of the United States, Representa- Sec.i-Artil tives in Congress, the Senators and Representatives in the State Legislature, and the following county officers, viz: Judges of pro- Art 6 Sec 13 bate, sheriffs, clerks, treasurers, registers of deeds, prosecuting attorneys, and such other officers as may by law be required to he elected at such general election: Provided, The provisions of this section shall not apply to the election of the Senator and Repre- sentatives in the State Legislature, nor to the election of county officers, in that portion of the State denominated the Upper Penin- sula, as described in section one, article nineteen, of the revised Constitution, and such other territory as may be attached thereto for election purposes. On the first Tuesday of November, eigh- teen hundred and fifty-one, there shall be elected a Governor and Lieutenant Governor, whose term of office shall commence on the first Monday of January, eighteen hundred and fifty-two, and who HOLIDAYS. 27 shall hold their respective offices until the first day of January, eighteen hundred and fifty-three, and until their successors are elected and qualified; which election shall be conducted in the manner provided by the constitution and laws in force on the thirty-first day of December, eighteen hundred and fifty ; and the schedule to returns and canvass of votes given thereon, shall be proceeded and determined in the same manner herein provided for the same officers to be elected at general biennial elections. Where the first day of the month is Tuesday, the election must be on the second Tuesday in the month; as that would be the Tuesday succeeding the first Monday. 35 INDEX. INDEX TO TEXT. A. APPRAISERS. When and how appointed, and their duties Si, 82 How sworn 81 Who may be appointed, and fees of 8i, 82 May be appointed by a justice of the peace 82 No one employed in probate office to act as 25 ADVANCEMENTS. Effects of , 221 Are confined to issue, and do not extend to widow 222 'Certain property cannot be transfered as 222 Dower lands conveyed as, subject to 222 Will may control 222 Interest should not be charged on 222 Effect of, when more than share of the heir 223 How estimated and valued 223 to 225 Not to be refunded, if exceeds share of the heir 223 Questions in regard to, when and how to be determined 223, 237 What is necessary to create 223, 224 Debt due from heir cannot be deducted from his share 224 Manner of determining value of, etc. 223 to 225 Example showing the manner of determining the share of each heir in case of . 225 If the heir dies before the intestate, leaving issue, the advance- ment must be deducted from the portion going to the issue 223 APPEALS. By executors, etc , 94 Most appropriate remedy in case of irregular decree 19 From the decision of Commissioners on Claims. Who may appeal, and when and how made 101 Application for, may- be made by attorney 101 Time for, how computed 101 278 lNDKJf. Page. APPEALS— Continued. Executor and administrator need not give bond 101 When guardian should appeal 101 Who are necessary parties to appeal : 101, 102 Leave to appeal may be granted by circuit court after expira- tion of time 101 Bond, by whom, to whom and when to be given 102 Bond may be executed by agent or attorney 102 Penalty in bond and liability of sureties 102 Bond may be amended, but cannot be filed nunc fro tunc 102 When appeal not to be allowed 103 Notice of the appeal and of the hearing in circuit court 103 Notice, how served 103 Notice may be by publication 103 Certified copies of record appealed from to be filed in circuit court 104 What papers the parties appealing must file in circuit court_ 104 How issue to be made, and case tried in circuit court 104, 105 Judgment of circuit or supreme court to be certified to the probate court 104, 105 Pleadings in circuit court on appeal, and what it is necessary to allege _„ , 104', 105 Form of judgment in circnit court 105 See also Appendix of Forms. When claim barred on failure to prosecute appeal 105 When allowance appealed from shall be affirmed 106 Who may appeal when executor, etc., declines to appeal 106 How appeal to be taken where executor, etc., declines to appeal 106, 107 Bond where executor, etc., declines to appeal 106, 107 How notice to be given where executor, etc., appeals from the disallowance of his claim 107 APPEALS FROM ORDERS, ETC., OF THE JUDGE OF PROBATE. Who may appeal, and when and how made 107, 108 The appellant must be party aggrieved 108 Surety on guardian's bond may appeal 108 Who must be parties to appeal 108 Guardian may appeal when 108 All whose interests are identical should join in appeal 108 Time for appeal cannot be enlarged 108 When collusive allowance may be contested 108 Claim of appeal, what must contain, etc 108, 109 Must state all the reasons for the appeal 109 Time for appeal, how computed 109 INDEX. 279 Page APPEALS FROM ORDERS, ETC.— Continued. Bond on appeal 109 Parties to appeal bond 109 Notice of appeal to adverse partes 109 Notice of appeal, when and to whom given 109 Certified copy of record appealed from, to be filed in circuit court no What papers must be filed in circuit court on appeal no Trial of appeal in circuit court • no Issue and pleadings in circuit court no When circuit court may allow appeal after expiration of time : no, in Notice of application to Circuit Court, etc. m When application to circuit court may be filed in All proceedings staid by appeal in Ppecial administrator m^y be granted powers not exceeding general administrator m Such powers only granted in case of appeal from allowance of a will in, 112 What proceedings may be taken when such powers are granted 112 Powers of circuit court on appeal 112 When circuit court to affirm decree appealed from 112 From decree for specific performance of land contract 191 In partition ; 238 AMENDMENTS OF PROCESS. Pleadings, etc 13 ATTESTED COPIES OF RECORD. Fees for 26 AGE. When a person is of age 32 ATTESTATION CLAUSE In a will 41 ASSESSMENT Of property of estate and minors 72, 125, 197 AGENCY REVOKED By lunacy of principal 135 APPRENTICES— See Masters. ALIENS May acquire, hold and dispose of property same as citizens . 30, 31, 216 ALIMONY. How allowed against estate 97, 98 280 INDEX. Page. ACTION. Not to be commenced against executor, etc. 98 When may be prosecuted to final judgment 98, 99 By executors, etc., and setoffs 99 ANCILLARY ADMINISTRATIONS. Assignment of residue of estate to devisees, legatees and heirs at law 228 to 231 For assignment of estate to heirs, etc., see also Distribution. ADMINISTRATORS. Sales of real estate by, see Real Estate. When and how appointed 67 May be appointed at any time after death of intestate 67 How death may be established 67 When death presumed , 67 When title to property of estate vests in 67 When appointment of is void 67 Notice of application for appointment of, how given 68 Fees for publishing notices 68, 69 Folio defined 68, 69 Notice of application, how given to foreign heirs 68 When order appointing may be attacked collaterally 69 Authority of confined to the State where appointed 69, 72 Principal and ancillary administrations 69, 116 Guardians should be appointed, etc, 70 Who first entitled to administration 70, 71 Must be of full age 71 Sureties on bond must be residents of the State 71 Appointment of, how proved, etc 72 Cannot carry on partnership business 72 Bond of 72 Embezzlement of property of the estate, etc. 74 Resignation and removal of 75 When surviving administrator may execute the trust 76 Powers to cease on proving a will 76 Acts of valid before revocation of letters 77 Bond of, joint and separate, and liabilities under these 77 Must use diligence in collecting the estate 81 Moneys of estate, when to be invested 81 Personal estate entitled to possession of 83, 84 Embezzlement of property, proceedings in case of 84, 85 Compromise of debts due to deceased 85 Recovery of lands fraudulently conveyed by deceased 87 Claims fraudulently allowed, to be charged with 94 INDEX. 281 Page. ADMINISTR ATORS— Continued. No action to be commenced against, etc. 122 Foreign administrators, powers of 170 Debts not to be paid to foreign administrators 170 Real estate, have no right to possession or control of 196 Taxes and mortgages on real estate should not pay 196, 197 Mortgages and notes may transfer 199 Compensation and commissions of 203 to 206 See also Commissions. Costs when awarded against 207 ADMINISTRATORS— Special. When to be appointed, and powers of 72, 73, in, 112 Liabilities of 73 Bond of 74 Powers in case of appeal from allowance of a will ill, 112 When may have the same powers as a general adminis- trator in, 112 ADMINISTRATORS — De bonis non, or de bonis non with the Will Annexed. When and how appointed, and powers of 74, 75, 76 Petition for appointment of 75 Original appointment to be vacated before new appointment is made ._ 76 Sales of real estate by, see Real Estate. ADMINISTRATORS— With the Will Annexed. When and how appointed .._ 65, 66 Cannot execute a special trust 65 To be appointed in case of minority of executor 65 When office of, expires 65 Bond of 65 Cannot sell real estate under power in a will 151 Sales of real estate by, see Real Estate. ACCOUNTS OF EXECUTORS, ADMINISTRATORS AND GUARDIANS. Guardians shall account for ward's estate same as executors and administrators 138, 130, 131 What may be contested on hearing of accounts 10S Rendering accounts 195 What executor, etc., chargeable with 195 How account should be prepared, and what contain 195 How account rendered in case of death of executor, etc. 195, 196 General accounting should be at principal administration 196 Executor, etc., has no right to possession or income of real estate, 196 36 282 INDEX. Pace. ACCOUNTS OF EXECUTORS, "ETC. — Continued. To account for personal estate at the appraisal 197 Not to profit by increase or lose by decrease, etc 197 Interest, when to be charged with 197, 198 Moneys, when to invest 197 How estate to be managed 198 Interest, when allowed to executor, etc 198 Personal estate, when may be sold 198 When personal estate may be sold without license 198, 199 May transfer notes and mortgages . 199 Executor, etc., how to account when he purchases property. 199 Auction duties 199 When not accountable for debts due deceased 199 Must collect immediately 199 When to account for income of real estate 199, 200 When to account for loss caused by neglect 200 How often accounts to be rendered 200 Annual accounts 200 Bonds require them to be rendered 63 Notice of hearing annual accounts must be given in all cases 201, 206 Failure to render accounts a cause for removaf- 201 Annual accounts must be rendered, etc 201 Oaths to accounts, how and by whom administered 201, 202 Court must compel the rendering of annual accounts '. 201 Notice of hearing final accounts, etc. . 202, 207 Rendering and settlement of accounts 202 When guardians should be appointed for minors and others. 202 Effect of allowance of accounts 203 Compensation of executors and administrator., 203 to 206 Per cent, for collections by executors, etc 203, 204 Commissions of executors and administrators, how estimated, etc 203, 204, 205 Commission in case of co-executors, etc 203, 204 See also Commissions. Executor, etc., may employ attorneys and clerks 205 Interest on moneys advanced, when allowed 205 Tombstone should be erected, etc. 205, 206 Mourning apparel may be allowed, etc. 205 Money advanced to bury deceased to.be paid out of 1 he estate 205 One dollar per day for executors, etc 206 Fees of witnesses 206, 207 Bond may be prosecuted for failure to render account 207 Costs when awarded against the executor 207 INDEX. 283 Page. ACCOUNTS— See Accounts. ADOPTION AND CHANGES Of name of minors and adults 146 to 148 ADJOURNMENTS Of court 15 Of court on account of holidays 271, 272 ATTORNEYS AND CLERKS May be employed, etc 205 ALLOWANCES. In case of will for support of widow and minor children 57 In case of intestate for support of widow and children con- stituting family of deceased ; 209 To widow wearing apparel and ornaments of deceaseds 208, 209 To widow $250 of household furniture 208, 209 To widow $200 of other personal property 208, 209 When widow waives provisions of a will 208 Valuation in appraisal not conclusive 208 Are not assets 209 Watches are ornaments, etc. 209 A deficiency in household furniture cannot be made up out of other estate - 209 Court cannot decrease allowances, but may increase them _„ 209 Amount of, to be governed by circumstance, etc. 210 To be made out of personal estate when 210 For children under ten years of age 2ro When estate does not exceed $150 210 B. BONDS. Number of sureties required S BLANKS, Record books and stationery to be furnished by county 16 BLIND MAN Should be conscious of presence of witnesses 41 BEQUESTS Of personal estate, how removed to other States 60. 61 To the State for benefit of insane persons - 61 BOND OF EXECUTOR. Cannot be waived, but must be filed in all cases 62 Must be filed and approved before letters issue 62, 63 Conditions of 62 Penal sum in,'and who may be sureties on 63 284 INDEX. Page. BOND OF EXECUTOR— Continued. New and additional bond, when may be required 63 When may be cancelled.-. 63 Must not be changed without consent of all parties 6j Approval of, by judge of probate 63 Joint and separate bonds, and liabilities upon each 64, 77 When residuary legatee, and liability upon the same 64 , Within what time to be given _. 64 Sureties should be residents of the State 71 May be put in suit for failure to render an account 207 BOND ON APPEAL FROM DECISION, Of commissioners 102 Of judge of probate. 109 BOND Of trustee 7S Of guardians may be put in suit, etc 140 BURIAL EXPENSES OF WIFE. Husband liable for 116 PROBATE BONDS, And Prosecution Thereof. How taken 254 Penal sum and sureties in 254 Must be approved 254 Neen only conform substantially to statute 254 Need not be under seal 254 New bond maybe required 254 Sureties may be discharged from further responsibility 254 Old bond to be retained 254, 255 Additional bond may be required L 255 Sureties, discharge of 255 Failure to give bond, cause for removal 255 Liability of sureties on old bond 255 Suit on, by creditor 255, 256 Suit on, by next of kin 255, 256 Suit on guardian's bond 256 Suits on, to be in name of judge of probate 257, 258 When court may authorize suit on 256 May bring suit on, to recover legacy 256 Action may be brought by any person interested within twenty years after breach of condition 256 How leave to bring suit may be granted 250 When an account need not be rendered 256 Bond at principal administration does not cover proceedings in ancillary administration '. 256 INDEX. 285 Page. PROBATE BONDS, And Prosecution Thereof— Continued. When bond on sale of real estate cannot be prosecuted 257 Must be breach before suit 257 Not breach of bond to refuse to comply with void decree 257 When executor liable for trust on his bond 257 When executor, etc., refuses to perform valid orders, etc 257 Suits to be in name of judge of probate 257, 258 To whom moneys collected on, to be paid, 257, 258 When court to grant leave to commence suit on * 258 To furnish applicant with certified copy of bond, etc 258 Judgments in suits on bonds 258 Disposition of moneys collected 258, 259 May sue out scire facias when 259 By whom suit may be prosecuted I 259 In case of death of trustee, how account rendered 259 Actions on guardian's account 259 Guardian should be required to render an account before suit is commenced on bond 259, 260 Guardian must render his acount before lie can sue his ward for balance in his favor 260 Co-sureties may be compelled to contribute to make up any loss by guardian 260 c CONTRACTS Of deceased persons, for sale of lands. See Land Contracts. COUN IV TREASURER'S BOND. Approved by judge of probate 11 CHILDREN. Dependent and neglected. See State Public School. CERTIORARI Will not lie from supreme court to probate court 19 CREDITORS. See Commissioners on Claims. CLAIMS. See CIRCUIT COURT In chancery has concurrent jurisdiction 21 CONTINGENT CLAIMS. See Commissioners on Claims. CONSTABLES, &c. To serve process: 21 Clerks and attorneys may be employed, etc 205 COMMISSION TO TAKE DEPOSITION. How issued, etc 22 286 INDEX. Page, CROPS Belonging to widow 246 CONTEMPTS OF COURT. How punished, etc 23 CIRCUIT JUDGE. When to act in place of judge of probate 24 CLERK IN PROBATE COURT Not to.be appraiser or commissioner 25 CERTIFIED COPIES OF RECORDS. Fees for 26 COMMISSIONERS AND APPRAISERS. No one employed in the probate office to be. 25 COSTS. When awarded and how collected 25 Security for, when required 25 CLERK FOR PROBATE COURT. When and by whom appointed, and their powers and duties. 2ft COMMISSIONERS TO ESTABLISH DITCHES AND DRAINS. Appointed by judge of probate 29 CONSTRUCTION OF Wnrds and phrases in statutes 30. 217 COMMON LAW AND STATUTES. To be in force until repealed 30, 32 CODICIL. Must be executed with same formalities as will 42 COSTS. When awarded against executor, etc. . 207 CLAIMS, Should be allowed at principal arid ancillary administration, when 69 COMPOUNDING Or compromising with debtors of estate 85 CLAIMS. See Commissioners on Claims. CREDITORS. See CIRCUIT COURT May grant leave to appeal ioi, 110 COMMISSIONS OF EXECUTORS, When allowed and how computed 203 to 205 To co-executors, etc 203, 204 On property delivered to heirs 204 INDEX. 287 Page, COMMISSIONS OF EXECUTORS- Continued. When paid out of legacies 204 Not allowed on reinvestments of principal 204 On proceeds of sale of real estate 204 When allowed by annual rests 204 In case of double trust, can only receive in one capacity 204 Right to, is absolute 204 A fair compensation should be allowed 205 Per diem of executors, etc 206 Consanguinity, table of 214 COMMISSIONERS ON CLAIMS. When, and when not, to be appointed 88 Must be disinterested persons, and should be residents of the county 88 Fees of 88 Claims are lien upon real estate 88, 96 , Claims cease to be a lien upon real estate after five years from granting administration 96 Claim of surviving partner 89 Warrant appointing may be revoked 89 To appoint time and place for hearing claims, and give notice of same 89, 90 Number of meetings, time allowed, and manner of compu- ting same - 89, 90 New commissioner may be appointed, etc 90 Time may be extended for presenting claims, at the discretion of the court 90 Commission may be revived before estate is closed 91, 92 Judge of probate may hear claims, and notice how given. 92, 93 What statement of claim to contain — 93, 95 Set-offs, what may be presented and allowed 93 Claims and off-sets, barred by statute of limitations, not to be allowed 93 Exector, etc., may employ counsel 93 Executor, etc., should appeal, when 94 When outlawed claim may be presented within two years after granting letters testamentary, etc 94 Commissioners to be sworn. 94 Report of commissioners 94j 95 I'ersons objecting to allowance of claims should bd present at hearing 95 Interest on claims 95 Purchasers at administrator's sale takes land discharged of the liens for debts 96 288 INDEX. Page. COMMISSIONERS ON CLAIMS— Continued. Heir cannot discharge lien for claims by purchasing land at tax sale 96 Residue of real estate first sold to pay debts, where heir has sold apart 96 What claims commissioners may hear and allow 96, 97 Claims must be the debts of the deceased 96 Commissioners are part of probate court 96 If executor, etc., acts fraudulently in allowing claim, he can be charged with it in his account- 94 Claim, how to be allowed when secured by mortgage or other- wise : 97 Alimony, huw allowed against the estate 97, 98 Claims of executors, etc., how allowed 98 Surviving partner may present claim 98 Debts payable at a future day 98 Claims not presented in time to be barred 98 No suit to be commenced against executor, etc. 98 When cause of action survives suit, may be prosecuted to final judgment 98, 99 Jndgment, how allowed 99 If defendant charged in execution die, the judgment may be certified to probate court 99 Actions pendingtto be prosecuted to final judgment, which may be certified to probate court, etc - 99 Executor or administrator may commence suits, etc. 99 Set-offs in case executor, etc., brings suit 99, 100 Costs awarded against executor, etc 100 Joint contract to be treated as joint and several as against estates 100 Partnership debts same as individual debts 100 Appeals from decisions of 101 to 107 See Appeals. Limitation of time for paying debts and legacies 112 Time for payment of claims and legacies maybe extended- 113, 114 When claims cease- to be a lien upon real estate 113 When claims to be paid in full 115 Note or bond secured by mortgage must be allowed, etc. 115, 197 Preferred claims. 115 How claims to be allowed in case of principal and ancillary administrations., 116 Husband is liable for burial expenses of his wife 116 Claims, how paid in case estate is insolvent 116, 117 Dividends on claims, how ascertained and computed 117 INDEX. 289 COMMISSIONERS ON CLAIMS— Continue d. When court to order payment of , 117 Order for payment may be suspended 117 When disputed claim to be paid 118 Further decree for distribution 1 18 When administrator, etc., becomes personally liable for debts. 118 Notice to creditors of time limited for payment of debts 118 Payment of claims must be demanded within time limited 118 When claims barred 118 To be paid out of residue, after certain allowances 211 CONTINGENT CLAIMS. May be presented and entered in commissioner's report 119 Court may direct executor, etc., to retain moneys to pay such claims 119 When they may be allowed 119 Heir may present contingent claim, based upon note and mortgage executed by deceased, etc 119 When to be paid 120 Claims accruing after the time limited for presenting claims- 120 Claimant may recover such claims of the heirs 120 Defence by executor, etc., to action for claim 121 When suit to be dismissed against executor, etc. 121 To what extent the heirs are liable 121 When legatees liable to contribute for payment of 121 When others may be made defendants after suit commenced. 121 When may take proceedings in chancery 121 When estate of deceased -heir, etc., liable for payment of., 122 When heirs, etc., to contribute 122 Suit for claim where there is no hearing of claims 122 No action to be commenced against executor, etc 122 D. DISTRICT CANVASSER. Judge of probate one of 11 DEPENDANT AND NEGLECTED CHILDREN. See State Pub- lic School. DECREE. Irregular is a nullity, most appropriate remedy is to appeal__ 19 Final, unless appealed from 19 In regard to wills, when subject to revocation or modification. 51 When may be corrected ; 20 DECREES AND ORDERS. Presumption in favor of, after twenty years 24 How enforced 21 37 290 INDEX. Page. DEPOSITIONS OF WITNESSES. How taken 21, 22 DEED, ETC. Recording of copies of 269, 270 DITCH And drain commissioners appointed by judge of probate 29 DECLARATIONS Of the testator, "when admissible 33 DEAF, Dumb and blind persons may execute wills 34 DEVISE OF LANDS. How construed 35 DOMICIL. When law of governs execution of wills. 36 DEVISES, ETC., To subscribing witnesses void 44, 42 DEATH OF TESTATOR. Must be established on probate of will 51 DEBTS. To be paid out of personal and real estate of testator 57, 83 To be paid out of the estate provided in the will 58 When legatees, etc., to contribute towards payment of 58 Real estate liable for payment of 83, 88, 96, 217 To be paid out of residue after certain allowances 211 Cease to be a lien upon real estate after fiye years 113 See Commissioners on Claims. DEBTS AND LEGACIES. Limitation of time for paying n: Court may extend time for payment of 113, 1 , DISTRIBUTION Of proceeds of lands bid in on mortgage or execution sale. 86, '■. 7 Of assets among creditors, etc 1; ; Of estate. See Descent. DISTRIBUTIVE SHARE. Payment of, how enforced i! DIVIDENDS On claims, how computed '.:' DISCOVERY Of property, etc., belonging to estate 84, 3 INDEX. 291 Page. DESCENT OF PROPERTY— First, Descent and Distribution op Personal Property. Distribution of persdnal property. 208 to 213 Intestate property, how distributed where there is a will 208 Money due deceased on land contract, how treated 208 ' Title to personal estate is in the executor during administra- tion -- 208 Widow, allowances to, out df personal estate 208, 209 Appraisal not conclusive as to value of property 208 Personal property selected by widow is not assets 209 Widow may waive provisions of will and take allow- ances 208, 209 Watches are ornaments, etc 209 Deficiency in househbld fnrniture cannot be made up out of Other property 209 Allowance for support of family during administration 209, 210 Order for allowance cannot be decreased, may be increased. _ 209 Decree of court may be opened, when 209 Allowance for children under ten years of age 210 Where estate is only one hundred and fifty dollars, to be used for support of widow and children 210 Debts to be paid after allowances to widow, etc 211 Distribution of residue of personal estate 211 Distribution of residue of personal estate of feme covert 212 By what law descent of personal estate is governed 213 Descent of personal estate of husband and wife 211 to 213 DESCENT OF REAL ESTATE. Table of consanguinity 214 Degrees of kindred to be computed according to civil law 215 Half blood to inherit equally with whole blood, when. 215 216, 219 Lineal and collateral kindred defined 215 Relations by father's and mother's side same 215 When relatives are of the whole blood and when of the half blood 215, 216 The nearest of kin will take always 215, 216 Heirs by statute are determined largely by designation of relationship 216 Term, "by right of representation,'' defined . 216 Aliens may acquire and hold real estate 216 Half blood, discrimination against, not favored 216 Statutes, construction of, and meaning of certain words. 217, 218 By what law descent of real estate is governed 217 When and how lands, etc., to descend 217 292 INDEX. Page. DESCENT OF REAL ESTATE— Continued. Debts, real estate descends subject to 217 Dower lands descend subject to 217 Tenancy by the courtesy abolished - 217, 218 Singular number includes the plural. . 217 Issue, what includes 217, 218 Lands, what includes 217 Term, any person, includes' married women 217 How intestate property descends where there is a will 218 To whom lands shall descend 218 to 220 Words importing masculine gender may include females 218 Descendant and ascendants „ 218 Right of representation, when heirs take by 218 When children and their issue take estate by descent 218 When widow and father 218. 220 When brothers and sisters and their childred 219 When mother 219 When next of kin in equal degree 219 When entire estate descends to widow 220 When entre estate escheats to State 220 Degrees of kindred to be computed according to civil law 220 Lineal and collateral kindred 220 Collateral kindred claiming through nearest ancestor are pre- ferred 220 Trustees to take charge of escheated estates 221 Illegitimate children to inherit from their mother 221 Illegitimate children estate to whom to descend 221 Illegitimate children how rendered ligitimate 221 Advancements 221 to 225 See also Advancements. Debt due from heir not to be deducted from his share __ 224. 231 Heirs, how determined 225 to 227, 229 Tax deeds, how made to deceased person 226 DISTRIBUTION AND ASSIGNMENT OF RESIDUE OF ESTATE To Heirs, Devisees or Legatees. Before distribution, allowance to be made for support of children under seven years of age 228 Decree of assignment, when to be made 228 , Decree of assignment, what must contain 228, 229 What law governs distribution of real and personal estate--- 229 Debts must be paid or secured before distribution 229 Petition for decree of assignment 229 Advancements must be specified in decree of assignment 229 Decree of assignment to be made after final account 229 INDEX. 293 Page. DISTRIBUTION AND ASSIGNMENT OF, ETC.— Continued. Value of estate must be determined 230 Abstract of title should be procured and filed 230 Proceeds of sale of real estate to be distributed as real estate 230 Mortgages, how to be assigned to heirs 230 How to ascertain who are heirs - 230, 231 Cannot deduct from share of an heir a debt due from the heir 231 If heir dies his share should be paid to his executor, etc 231 Heirs may agree upon a division of the estate 230 How division of estate made by consent 230 The whole may be assigned to one heir, when 235, 236 Lands may be sold for purpose of 236, 167 DOWER. Testator cannot deprive his widow of, etc 35 Cannot be sold' to pay debts, nor can personal property be- longing to widow, etc. 83, 58 Guardian may assent to assignment of 138 When widow entitled to 240 Requisites of valid marriage 240 Estate of inheritance 240 Wild lands, dower in 240 Mines and quarries 240 Lands held in common 240 In partnership lands, when 240 Dower when marriage is dissolved by husband being sen- tenced to imprisonment for life, etc. 240 Cannot be sold to pay debts 241 Widow cannot be compelled to sell her dower 241 Widow is not proper party to bill for specific performance of land contract by husband 241 Widow should not convey to the administrator, but to the heir or purchaser 241, 247 Present cash value of dower, how ascertained 241, 242 Table for determining present value of dower 242 Dower in case of exchange of lands 243 In mortgaged lands 243 In case of mortgage to secure purchase money 243 Wife need not execute purchase money mortgage 243 Widow entitled to interest of one-third of surplus on fore- closure 243 Dower in case heir redeems from mortgage sale 244 Levy and sale under an execution does not cut off dower 244 In lands alienated by husband in his lifetime 244 Dower after partition, how set off 244 294 index. Page. BOWER— Continued. In case widow rejects provisions of will 244 When should proceed in chancery 245 When may be admeasured by probate court 245 Who may make application 245 Allegations in application 245 Notice of hearing application 245 Jurisdiction of prbbate court in 245 Evidence required on the hearing 245 When may be determined by ejectment 246 Prbceedings may be taken before administration, diiring or after administration is clbsed 246 Assignment of dower is not an incident to administration 246 Dower is exempt from general statutes of limitation 246 What crops widow entitled to : 246 Widow must keep buildings and fences in repair, and pay taxes on dower lands 246, 251 Insurance of buildings 246 Fire wood and timber for repairs 246 Waste, widow liable for 247 When is a mere, right of action 247 Guardians should be appointed when _■ 247 May be set off by agreement 247 Dower and homestead rights entirely independent 247 Dower in insurance moneys where buildings are burned 247 May be conveyed before assignment 247 Cannot be released to a stranger 247 Warrant for assignment of 247 Warrant may be revoked 247 Commissioner's fees 247 Commissioners, by whom sworn 247 Report of Commissioners 247, 248 Report of Commissioners to be recorded in office of register of deeds 248 Confirmation of report 248 Costs of, by whom paid 248 Notice of assignment by Commissioners 248 Surveyor may be employed 248 Dower in a mill, etc 1 , 248 Dower where tenement cannot be divided 248 Dower out of the rents and profits 248 When widow may occupy lands with the heirs 248 How dower may be barred by deed, etc 248, 249 Wife may acknowledge deed same as if she were sole 249 Proceedings in chancery to obtain release of dower of insane, imbecile or idiotic married women 249 INDEX. 295 Page. DOWER— Continued. Widow entitled to share of mesne profits when 249 Dower barred by jointure 249 How assent to jointure to be given 249 When provision made for intended wife to bar dower 250 Election in case of jointure, etc. 250 Election in case of provision by will 250 Election must be made within year after death of husband 250 Election made by mistake or induced by fraud not binding 250 Election must be by ejectment 250, 251 Personal property taken by widow when she waives the will_ 251 When widow may be endowed anew 251 Alien may have dower 251 A non-resident may have dower of lands of which her hus- band died seized 251 Waste not to be committed 251 Widow must keep buildings in repair 251, 246 Widow may remain in dwelling house a year, and have ex- clusive control of same 251, 252 Quarantine attaches to any lands out of which dower may be assigned 252 Damages for withholding dower 252 Measure of damages 252 Damages not to be estimated on improvements 252 Damages against heirs who have com eyed lands 252 Acceptance of assignment bars all claim of dower 252 Collusive recovery not to prejudice infant'heirs 253 When money may be awarded in lieu of dower 253 When there are two widows, who first entitled 253 E. EXEMPLIFICATION Of records 14 ESTATES. Assignment and distribution of 228 to 231 Partition of 231 See also Partition. In joint tenancy and in common, how created 31 EVIDENCE. Attested copies of probate records to be 16 ERROR, WRIT OF. Will not lie to judgment of probate court 19 296 INDEX. Page, EXPERTS AND OTHERS May give opinions in regard to testamentary capacity, when. 33 ERASURES AND INTERLINEATIONS. How noted 46 EXECUTOR. What term includes 60 When letters issue to 62 SALES OF REAL ESTATE BY, see Real Estate.. Who may be, and bonds of 62, 63, 64 Bond of, when residuary legatee 64 When new or additional bond may be required 63 Need not be appointed in the will . 41 When executor refuses to accept trust letters may be issued to others 65 When maybe removed 66 When part of executors may act 66 Executor of an executor not to administer 66 Executor de son loit 66,67 Resignation and removal of 75 Powers of, in certain cases 77 Acts of valid before revocation of letters 77 Bond of, joint and separate, and liabilities under each 77 Must use diligence in collecting estate 81 Should invest moneys on hand 81 Entitled to possession of personal estate 83 When may sue to recover lands fraudulently conveyed by the deceased 87 Costs when awarded against 207 No action to be commenced against 122 May sell real estate under power of sale in a will 151 Powers of foreign executor, etc 170, 171 Debts due deceased not to be paid to foreign executor, etc 170 Has no right to possession or control of real estate 196 Should not pay taxes or mortgages upon real estate _, 196, 197 May transfer notes and mortgages >I99 Compensation and commissions of 203 to 206 See also Commissions. Embezzlement of property of estate 84 Embezzlement of property of minors 14° Intended for discovery merely 84 To what extent discovery may be had 84 Interrogatories and answers to be in writing 85 INDEX. 297 Page. EXECUTION SALE. Lands bid in on treated as personal property 86 EXTENSION OF TIME For presenting claims 90 For payment of debts and legacies 113, 114 ELECTION DAYS Are holidays 272 What are 272 F. FUEL For probate office to be furnished by county 16 FEES For attested copies of records, etc 26 For publishing probate notices 5°» 68 Of appraisers and commissioners in dower and partition 82 FOREIGN LANGUAGE Will may be written in 38 FOLIO. What constitutes 50, 69 FOREIGN HEIRS. How notified of application for probate of a will, and for appointment of an administrator 50, 68 FOREIGN EXECUTORS, ETC. Powers of, etc 170 FRAUD. When executor, etc., may sue to recover lands fraudulently conveyed by the deceased 87 G. GUARDIANS. For minors 123 Ad litem, when appointed 20, 125, 126, 133 Should be appointed for minors, etc., on issuing letters testa- mentary, or of administration 63 Sales of real estate by. See Real Estate. When should appeal ,_ iqi May appeal 108 For minors and others, when may be appointed. 123 Ward must be inhabitant or resident of county 123 What is residence and how may be changed 123 Petition for appointment of, and notice 123, 124 38 298 INDEX. Guardians— continued. Who may be appointed 123, 124 Compensation for services of minor 124 Rights of parents over person and property of minor 124 Assessment of property of minors 142, 125 Minors may deposit moneys in savings bank 125 Parents or guardians may take shares in building and saving associations for minors 125 Nomination of, when minor is over fourteen 125, 128 Married woman may be guardian 125 Disaffirmance of deed by minor 125 Suits for and against minors 125, 126 May pay interest upon mortgages and purchase lands, etc 126 Judge of probate may nominate and appoint guardian, when 126 Citation of minor over fourteen '. 126 Nomination where minor resides more than ten miles from the court, or out of the State 127 Who entitled to care and education of minor 127, 128 Parents are first entitled to guardianship of their children 127 Care and custody of minors when parents separate 127 To have control of estate of minor 128 When and how guardians shall be discharged and removed. 128, 129, 130 How guardian should manage, control and use his wards' estate 129 Bond of guardians, and approval and sureties, etc 129 to 132 Annual and final accounts, how rendered, etc 130, 131, 138 Notice must be given of hearing of accounts 130, 131 How accounts of deceased guardian may be rendered 131, 132 Sureties on bond of, when and how liable 131 When income of ward's estate may be used for his support and education 132 Maybe appointed in a will 132 Testamentary guardian to give bond when - 132 Letters of guardianship in case of testamentary guardian 133 Special guardian , 134 Must pay debts of ward out of his estate 137 Must collect and settle all claims in favor of ward 137 May compound claim in favor of ward 137 How guardians to manage estate of wards . 137 Must first use income for support of ward 137, 138 May sell real estate and use proceeds for support of ward 137 Should have amount to be expended fixed by the court 138 May assent to partition or the assignment of dower 138 INDEX. 299 Page. GUARDIANS— Continued. Inventory and appraisers 138 Accounts of 130, 131, 138 Court may authorize sale of stocks, etc., and have the pro- ceeds invested in real estate, etc 138 Resignation and removal of guardians 138, 139 Must render final account before being discharged 139, 140 Causes for removal of 139 Marriage of female minor discharges the guardian 139 New guardian may be appointed on marriage of female minor 139 New bond may be required 140 Bond may be put in suit 140 Within what time action must be brought against the sureties. 140 Embezzlement, proceedings in case of 140 Compensation of guardians 141, 142 Oath to account of joint guardians 142 GUARDIANS— For Non-Resident Wards. When and how to be appointed 141 Notice of application 141 Powers and duties of 141 Bond of 141 Guardianship first granted extends to all property in the State. 141 Removal of property of wards from this State to other States and Territories where wards reside 142, 143, 144 Petition and other proceedings 142, 143, 144 GUARDIANS — For Incompetent Married Women. When and how appointed 144 Not to have custody of ward 144 Application and notice for appointment 144, 145 Powers and duties of 144 GUARDIANS— For Spendthrifts. When may be appointed 135 Spendthrift defined 135, 136 Who may make complaint 136 Notice of application 136 Copy of complaint may be filett with register of deeds 136 Costs of defending against complaint to be paid by guardian. 136 Powers and duties of guardian 137 Bond of u. 137 Must pay debts of ward out of his estate_J 137 For other matters, see 137 to 145. See also Guardians of Minors. 30$ rtftotix. Pagel GUARDIANS — Fqr Insane and Incompetent Persons. Application and notice for appointment of, 133, 134 What term "insane person" includes •__ 133 When to be appointed 134 Special guardian and his powers, etc 134, 135 Necessary proceedings in appointment^ of 134 Bond of 135 Powers and dtities of 135, 137 How may be released and discharged 135 Lunacy revokes an agency L — _ 135 For other matters see '—..'. i._ 137 to 145 See iilsd Guard'ians of Minors. H. HOUSEHOLD FURNITURE. How inventoried 83, 80 How much goes to widow 208, 209 HOMESTEAD Cannot be sold to pay debts, etc 149, 150 HUSBAND. Descent of personal estate of wife to 212 HEIRS. See Descent of Property. Table of consanguinity 214 How determined 225, 226, 229 Assignment of residue of estate to " 228 to 231 HOLIDAYS. An act to establish certain 270 What days to be 271 For what purposes to be 271 Suits, adjournment of, when returnable on : -71 When next day after holiday is Sunday, etc 271 When first day of term of circuit court comes on 271 Protesting commercial paper, etc 271 Election days are 272 What are election days 272 I.* INSPECTOR OF LIQUORS. Appointed by judge of probate 11 IRREGULARITIES Will not divest court of jurisdiction 19 Page; INTERROGATORIES TO DEPOSITIONS. How settled, etc. 22, 23 INSANE PERSONS — In indigent circumstances. How admitted to the insane asylum, to be supported at the expense of the county 27, 28 Bequests to the State for benefit of, how disposed of 61 May execute wills during lucid intervals 34 INTERLINEATIONS AND ERASURES. How noted 46 ISSUE ON PROBATE OF A WILL. How made 50, 51 INVENTORY. When and how made and what to contain 79, 80, 81 How partnership property inventoried 79, 80 Required by bond 62 May be amended 79 Money due on land contract 80 When court may compel return of 81 Appraisers and their duties 81, 82 Appraisal not conclusive 1 82 Warrant of appraisal may be revoked 82 Appraisers appointed by justice of the peace 82 Fees of appraisers 82 Household furniture, how inventoried 83,80 Growing crops of grain, grass and fruit to be inventoried- 83 Foreign assets to be inventoried 81 Not conclusive as to values, and may be corrected 208 INSOLVENT ESTATES. Claims against, how paid 116, 117 INSANE AND INCOMPETENT PERSONS. See Guardians. INFANTS. See Guardians. Manner of prosecuting suits for and against 266 INHERITANCE. See Descent of Property. ILLEGITIMATE CHILDREN. Descent of Property to, etc 221 INTEREST. When executor, etc., to pay 197, 198 When allowed to executor, etc 198 On claims 95 On moneys advanced 205 On legacies 113 302 INDEX. Page. J . JUDGE OF PROBATE. Election and term of office " 9, 10 When not to perform the duties of his office 24, 25, 123 May appoint relative guardian, etc 123, 24, 25 Vacancy in office of, and how filled 9, 10 Not to act as attorney or counsel in certain cases , 25 Oath of office 10 To approve commitments to reform school 28 Entitled to copy of the statutes 11 One of district canvassers II Salary of 11 May approve county treasurer's bond II Powers of 18 to 21 May administer oaths 21 May iss.ue warrants and other process, subpoenas, etc. 21 When circuit judge to act in place of 24, 123 JURISDICTION And powers of probate Courts 18 to 21, 24 When the estate is in two counties 24 Objection for want of, may be taken on appeal 20 Of subject matter cannot be conferred by consent, etc 19 In case of wills and intestates' estates » 48 JUDGMENT. How allowed as a claim 99 JOINT CONTRACTS To be treated as joint and several as against estates 100 L. LEGATEES Not to be witnesses . 44, 42 May be required to contribute toward payment of debts 58 When take legacies subject to liability to pay debts, etc 59 How liable when some of legatees become insolvent ' 59 LEGACIES To subscribing witnesses; when void 44, 42 In what currency to be paid 69, 70 Limitation of time for paying 112 May extend time for payment of 113, 114 When they cease to be liens upon real estate 113 When they draw interest 113, 114 Payment of, how enforced 115 Lands may be sold to pay legacies 167 INDEX. 303 Page LETTERS TESTAMENTARY. When and how issued 62 Not to be issued until bond is filed and approved 62, 63 LIENS. Claims are upon real estate 88, 90, 96 LANDS. What term includes 30 LAND CONTRACTS— Specific Performance of. FlRST^CONTRACTS NOT EXCEEDING ONE THOUSAND DOLLARS, AND NOT REQUIRING ACTION OF THE COURT. Executors, etc., may require payment of, etc 188 May declare contract forfeited 188 May execute and deliver deeds . 188 What deed to contain 189 Deed may be made in name of deceased 189 When contract is forfeited, how lands to be treated 189 No action of the court required 189, 190 How forfeited lands to be sold 190 Secondly— Contracts requiring action of the Cou=t. When court may decree conveyance 190 When probate court has jurisdiction 190 Petition 190 Notice of hearing petition 190, 191 Hearing of petition 191 Decree for conveyance 191 Appeal from decree i 191 When petition to be dismissed 192 Thirdly — Contracts enforced in Chancery. Bill for specific performance 192 Decree 192 Who may make conveyance 192 Effect of conveyance 192 Decree recorded and enforced 193 Heirs may prosecute proceedings 193 Fourthly — Specific performance by Guardians. When guardian may be authorized to convey real estate 193, 194 May embrace several contracts in one petkion 194 How proceedings conducted r 193, 194 304 INDEX. Page. M. MASTERS, APPRENTICES AND SERVANTS. Infants may be apprentices, when 261 Consent to binding of, by whom giv 21 Mode of administering 21 To be administered to probate judges before entering upon their official duties 10 OPPOSITE PARTY To be excluded as witness in case suit is prosecuted or de- fended by representatives of deceased persons 23 OFFSETS,, To claims, etc. ' 93 In case of actions commenced by executors, etc. 99, loo ORDERS. Order nunc pro tunc may be entered 20 How enforced 21 Presumption in favor of, after twenty years : 24 For payment of debts 117 P PROBATE COURTS. Constitutional and general provisions 9 Are courts of record 9, 15, 60 Powers of in regard to railroad companies 12 Proceedings in, how commenced and conducted. 12 When and where to be held 13, 15, 16 Sessions and adjournments of. 15 To be always open for certain purposes 15 Records of, how made and what to contain 15 to 17 County to furnish record books, printed blanks, stationery and fuel for 16 Jurisdiction and powers of. , 18 to 21 Acts of, when void '9 PERSONAL PROPERTY. To be first used to pay debts 83, 88 Executor, etc., entitled to possession pf.„ ^_ r 83 INDEX. 307 Page PERSONAL PROPERTY— Continued. 1 Lands bid in by executor, etc., on sale under a mortgage be- longing to estate, and lands bid in on execution sale are treated as 86 To be assessed to executor, etc 197 When to be sold 198, 199 When may be sold without a license 198, 199 Descent and distribution of. See Descent of Property. PARTNERSHIP ' • Claims, etc 88, 98 Debts, same as individual debts 100 PERFERRED Claims ' 115 PRINCIPAL And ancillary adminiseration .116 POSSESSION Of real estate during administration 196, 197 PROBATE JUDGES. Probate courts and judges of probate constitutional and general provisions 9 Election and term of office 9, 10, 11, 16 When circuit judge to act in place of 24 Vacancy in office of, how filled 9, 10 When not to act 24 Oath of office of 10 Not to act as attorney or counsel in certain cases 25 Entitled to copy of statutes 1 1 To be one of district canvassers 11 Salary of 11 Appeals from decision of, see Appeals. PROCESS AND PROCEEDINGS To be in the English language 17 How issued and by whom served 21 Style of in courts of record 11 PROBATE CLERKS. When and by whom appointed and their powers and duties 26 PROBATE REGISTERS. When and by whom appointed, ami their powers and duties 26 PROOF. Burden' of is upOff proponents 32 "■^Pl™ 308 INDEX. PROPONENTS age- Open and close the case 32 PUBLIC POLICY. Condition in a will against is void 36 PUBLICATION Of a will not required 36, 37, 41 PRACTICE ON PROBATE Of will 49 to 51 PROTESTING NOTES, ETC., On holidays 271 PARTITION OF ESTATE. Of lands bid in on mortgage or execution sale 86, 87 Guardian may assent to 138 When may be made 231 Three commissioners to be appointed 231 Commissioners, how sworn ' 231 Must be of entire estate 232, 235 Abstract of title should be required 232 Fees of Commissioners 232 Warrant of commissioners may be revoked 232 When estate lies in different counties 232 Petition for 232, 233 Notice of hearing petition 232 Who should join in petition 232, 233 What petition should contain.: 232, 233 Guardians for minors and insane persons 233 Agents for non-residents , 233, 234 Notice to heirs of partition by commissioners 233, 234, 237 Agents .for non-residents to take charge of estate 234 Bond of agent 234 Guardian may assent to partition 234 Partition among grantees of heirs 234, 235 How shares to be set out and described 235 Land contract, money due on to be treated as real estate 235 Surveyor may be employed 235 Duties of commissioners Court may assign whole estate to one heir, etc . 235, 236 An entire tract may be set off to one heir 236 Lands may be sold for purpose of distribution 236, 167 When lands are in common with other lands 236 Report of commissioners 237 Confirmation of report 237, 238 INDEX. 309 PARTITION OF ESTATE— Continued. Report of Commissioners to be recorded in office of register of deeds 237, 238 When partition may be dispensed with 237 Advancements, how determined 237, 238 See also Advancements. Appeals in partition 238 When partition conclusive 238 Expenses of partition, how paid 238, 239 R. RECORDS. Probate Court is a. court of record 9, 15, 60 Authenication of , 13, 14 Of probate court, what to contain and how made 15, 16, 17, 18 Copies of, how attested and when to be lega.1 evidence in other courts 16, 59 Record books, printed blanks and other necessary stationery and fuel to be furnished by the county 16 To be in the English language 17 Of wills in foreign language, how made 17 Records, books and files of probate courts are public property, and it is a misdemeanor to remove or destroy them, etc. 18 Index of must be kept 18 Of wills or certified transcript of, to be evidence 59, 60 RAILROAD COMPANIES. Powers of probate court in regard to 26 RECORDING Copies of deeds, etc. 269, 270 REFORM SCHOOL. Approval of commitment to by judge of probate 28 REAL ESTATE AND LANDS. What includes 30 REVOCATION Of wills 45 Implied 46 RESIDUARY LEGATEES Bond liability, upon, etc. 64 REAL ESTATE Claims are a lien upon • 88, 96 Executor, etc., has no right to the possession or control of 196 310 INDEX. Page. REAL ESTATE— Continued. Rents and profits of, belong to heirs 196 Real and personal estate must be assessed to guardian 197 Descent and distribution of. See Descent of Property. REPORT OF COMMISSIONERS On claims 94 RULES FOR PROCEEDING In probate court may be made by supreme court 15 REGISTERS OF PROBATE COURTS. Their powers and duties 26 RE-HEARING. When granted 20 RESIGNATIONS AND REMOVALS From office 10 REAL ESTATE— Sale of. In case of lands bid in on mortgage and execution sales, and when recovered when fraudulently conveyed 86, 87 To pay debts 88, 96 Purchaser takes land discharged of liens for debts 96 Creditor cannot appeal from decree refusing license to sell real estate to pay debts 108 Cannot sell to pay debts after five years from granting ad- ministration 113 REAL ESTATE — Sale of to pay debts by Executors and Ad- ministrators. When may be sold to pay debts 149 Guardians for minor or incompetent heirs 149 The debts must be debts of deceased 149 Dower and homestead cannot be sold to piy debts 149, 150 Abstract of title of land should be required 150 Lands conveyed to executors, etc., how sold 150 Lands bid in on mortgage and execution sale 150, 86, 87 When Residuary Legatee may sell lands 151 An executor may sell under authority in a will, but not an administrator with the will annexed 15 1 When trustee under a will may sell 15' Power to sell in a will does not include power to mort- gage 151, 152 Under power of sale executor must make the sale in person _ 152 One of two executors may execute power of sale IS 2 Sale of standing timber and pews in a church IS 2 Petition, what must contain 152, 153 INDEX. 311 Page. REAL ESTATE— Sale of, etc.— Continued. Petition may be made by attorney 153 May sell before claims are allowed 152 All executors should join in petition, etc. 153, 164 Ancient probate proceedings, how established 153 Notice of hearing of petition : 153, 154 Parties interested may assent in writing to sale 154 Notice, when and how published 154 Printer's affidavit of publishing notice of sale 154 Hearing of application 154, 155 License to sell 155, 157, 158 License good for one year 158 License not to be granted after five years from granting ad- ministration 155 When heirs are estopped from denying validity of sale 155 Bond on sale of real estate 155 Approval of bond 156 When no bond necessary 155, 156 Proceeds of the sale to be deemed assets 156 Sureties on bond, when liable 156 Bond to prevent sale of real estate 156, 157 License to specify lands to be sold _ 157 When two parcels may be sold at one bid 157 Specific devisees and legacies may be exempted from sale 158 When land to be sold in parcels ' 158 License good for one year 158 Sale must be within year, deed may be after expiration of the year 158 Reversion of the dower may be sold 158 Notice of sale 158, 159 Notices must be published and posted 158, 159, 160 Where notices must be posted 159 Printer's affidavit of publishing notices 159 Printer's fees 16c Sale must be in the county where lands lie 160 Agreement previous to sale 160 Directions for making the sale 160, 161, 164, 169 Auctioneers, when should be employed 161 The executor, etc., may make the sale by an agent 161 When bid may be rejected 161 Payment of bid must be tendered within reasonable time 161 Land may be bid in 161, 162 Purchaser must take the title as it is 161, 169 Court may compel executor, etc., to execute deed 162 ! 312 INDEX. Page. REAL ESTATE— Sale of, etc.— Continued. Executor, etc., cannot purchase lands at sale 162 Judge of probate should not be purchaser 162 Presumption is, that the sale is according to the general law 162 Credit to be given on sales 162, 163 Report of sale 163 When re-sale should be ordered 163 Confirmation of sale 163, 164 Agreement not to bid against each other' renders sale void __ 163 Administrator de bonis non may complete a sale commenced by an administrator 164 Should have a person present to bid in land 164, 165 ' Court cannot enforee payment of bid, etc 165 Defects in deed, how cured 165 Oath before sale 165 Affidavit of notice of sale 165, 166 Adjournment of sale, how made, etc. 166, 167 Notice of adjournment, how given 166, 167 Mortgages executed by heirs, effect of 175 Sales of Real Estate to pay Legacies and for Distribution. When executor, etc., may sell to pay legacies 167 When executor, etc., may sell for distribution 167 When these proceedings should be taken 167 Sales of Real Estate held under Contract for Purchase. When may be sold 167 Petition, what to contain 167 Sale subject to payments to become due 168 Purchaser to execute bond to pay future payments 168 Contract to be assigned to purchaser 168 Proceeds of sale, how disposed of - 168 All sales of real estate to be made subject to all charges thereon by mortgage or otherwise 168 Sales not to be confirmed until purchaser executes a bond to pay the mortgages 169 When mortgages may be paid out of proceeds of sale 169 Purchaser takes title as it is 169 Sales of Real Estate by Foreign Executors, etc. Must file authenticated copy of his appointment 170 Mode of authentication 170 Powers of foreign administrator 170 May sell to pay debts, etc 171 When no additional bond to be required 171 Bond, conditions of, etc 171 Bond, when required 171 INDEX. 313 Page. Sales of Real Estate, Etc. — Continued. Notice of the sale 183 License to be in force one year 183 Real Estate Sales of by Guardians to pay Debts. When license may be granted 172 Report and confirmation necessary 172 Purchaser must tender payment in reasonable time 172 When sale is void 172 Petition what must contain 172 License may be to sell whole or a part 172, 173 Bond on sale 173 When superintendents of poor must approve sale 173 Notice of hearing application 173 Sales of Real Estate by Foreign Guardians. Must file authenticated copy of his appointment 173, 174 License to sell 174 When bond required 174 Proceeds of sales of real estate to be distributed as real estate 174 Sale convey all the title of the estate 174 Mortgages executed by the heirs are an assignment of so much of proceeds of sale 175 Oath before sale 175 Costs in contesting sale 175 Limitation of action to recover lands sold 175, 176 When sale not void on account of irregularities 176, 177 The five requisites to valid sale 176 Power to sell in a will 176, 177 Certain irregularities will not affect title of purchaser 177, 175, 178 Damages for misconduct of executor, etc., in conducting sale 177 Executor, etc., liable for fraud in conducting sale 178 Real Estate — Sales of by Guardians to Expend or Invest the Proceeds. When lands may be sold for these purposes 179 Parents obliged to support their children 179 Application of proceeds of the sale 1 179 Investment of proceeds of sale 180 Proceeds to be treated as real estate, etc 180 Petition, what must contain, etc 180 Petition may be made by attorney 180 Notice of hearing petition 181 Certificate of superintendents of poor approving sale 181 Hearing of petition 181 Examination of guardian , 1 181 40 314 INDEX. Page. Real Estate, Sales of, Etc. — Continued. License to sell 182, 183 Bond on sale 182 Liability of sureties on bond 182 Oath before sale 183 Sales by Foreign Guardians. Must file authenticated copy of his appointment 183 License to sell 183 Oath before sale and notice of sale, etc 184 Residue of proceeds to be treated as real estate 184 Costs in contested case 184 Limitation of time for ward to commence suit to recover lands 184 Five essentials to valid sale 184, 185 Guardian liable for misconduct 185 When sale not held void 185 Confirmation of sale necessary > 185 Purchaser must tender payment in a. reasonable time 185 Real Estate — Mortgage of by Executors, Administrators ant> Guardians. When may mortgage 186 Petition 186 Notice of hearing petition 1 186 License, what must contain 1811 How proceedings should be conducted 186, 187 Oath before mortgaging 186 Report of mortgage 186, 187 Confirmation ot report , 186, 187 Does not affect dower and homestead rights 187 Bond 187 S. SALES OF REAL ESTATE. See Real Estate. SPECIFIC PERFORMANCE OF LAND CONTRACTS. See Land Contracts. SALARY Of judge of probate II SALES Of personal property 198, 199 SUBSCRIBING WITNESSES To instruments generally 13 May give their opinions in regard to testamentary capacity of testator 34 SURETIES. See Bonds. INDEX. 315 Page. SEALS OF PROBATE COURTS. How made, elc 18 SERVANTS. See Masters. SEAL. The word, how construed 18 Not necessary to a will 36, 39 SUBPCENAS AND OTHER PROCESS. How issued, and by whom and how served 21 SHERIFF, And deputies, coroners and constables to serve all process 21 SURVEYOR May be employed in partition 235 STATUTES AND COMMON LAW To remain in force until repealed 30 STATUTES. Construction of, and meaning of certain words 30, 217 Of limitations 93, 94 SANITY OF TESTATOR. Legal presumption of, etc 34 SUNDAY. Wills may be executed on 38 SIGNATURE Of testator and witnesses to wills 30 and 38 to 40 Must be written or by mark 30 SIGN. Meaning of the word in regard to wills . 38 to 40 SUBSCRIBE. Means same as sign 40 SURETIES ON PROBATE BONDS. Married women should not be accepted, and who may be 63 SUIT Not to be commenced against executor, etc. 98 Where cause of action survives, may be prosecuted to final judgment 98 Pending to be prosecuted to final judgment 99 Executor, etc., may commence, and offsets in case of 99 For and against minors, etc 125, 126 Adjournment of on holidays 271, 272 SET OFFS. In case of suits by executors, etc. 99, 100 316 INDEX. SURETIES ON APPEAL BOND. Liability of, etc — 102 SPENDTHRIFTS. See Guardian. SPECIAL GUARDIAN. See Guardian. SALES OF REAL ESTATE. See Real Estate. SAVING BANKS. Minors may deposit moneys in and hold shares in, etc 125 STATE PUBLIC SCHOOL — For Dependent and Neglected Children. At what age children admitted to 267 Dependent and neglected children, etc., to be admitted 267 Who may be rejected 267 How maintained and educated 267 Homes to be provided for children 267 Board to be legal guardians 267 Children not to be kept in poor houses 267 Soldiers' orphans to be preferred 268 Notice to superintendents of poor that children may be admitted 268 How apportioned among counties 268 How children to be sent to school r 268 Expenses of sending children 268 Examination of children before judge of probate 268, 269 Certificate by judge of probate for admission 269 T. TREASURER'S BOND Approved by judge of probate 11 TAX DEED To deceased person 226 TESTIMONY Of opposite party to be excluded when suit prosecuted or defended by representatives of deceased person 23 TOWNSHIP DRAIN COMMISSIONERS. How appointed 29 TENANCY In common and joint, how created 31 By the courtesy abolished 217 INDEX. 317 TESTAMENTARY CAPACITY Defined, and burden of proof in regard to 32, 33 Experts and others may give opinions in regard to, when 33 TRANSLATION Of wills 38 and 17 TRUSTEES. When appointed, and duties and compensation of 77, 78 Notice of appointment 78 Bond of, and how prosecuted, etc 78 TAXES On real estate should not be paid by executor or adminis- • trator 196, 197 TOMBSTONES Should be erected, etc. 205 TABLE Of consanguinity 214 u. UNDUE INFLUENCE. When renders will void, etc . 35 w. WILLS. How words and phrases in statutes to be construed 30 The single number may be construed as plural, and the masculine gender as feminine 30 What the word lands to include 30 The word "will" includes codicils 30, 42, 51 What the words "written'' and "in writing" to include 30 Aliens may hold and dispose of property by will 30 and 31 Ordinance of 1787 in regard to wills 30 Married women may bequeath policy of insurance on lives of their husbands 30 Guardians may be appointed by will 31 Married women may execute wills : 31 and 32 When a devise to two persons creates estate in common and when in joint tenancy 31 Who may execute 32 When a person is of age 32 Testamentary capacity, burden of proof to establish 32 Testamentary capacity defined 32 and 33 Proponents open and close the case 32 318 INDEX. Page. WILLS — Continued. What may be shown in contesting a will 33 Experts, subscribing witnesses and others may give their opinions in regard to mental capacity, when 33, 34 Legal presumptions in favor of sanity, etc. 34 Deaf, dumb and blind persons may execute wills 34 Insane person may make a will during lucid interval 34 Undue influence, when renders' will void ,35 Construction of devise of lands . 35 When after acquired estate is disposed of by the will 35 Who may bequeath personal estate 35 Property not disposed of by the will is intestate estate, etc 35 When presumption of intestacy as to part of the estate will be raised 35 Testator cannot deprive his widow of dower and right to certain personal estate 3$ How to be construed 36 When a condition in will is void 36 How must be made and executed 36 to 40 Domicil of testator, how affects execution of will 36 What law governs execution and construction of wills 36 What the statute does not require in regard to the execution of wills 36, 37 Must be in writing, what this term includes 37 May be written in pencil, and no particular form or material is required ; 38 May be executed on Sunday 38 May be written in foreign language, and must be translated 38, 17 What constitutes signing by the testator 38, 39 Testator should make his mark, when unable to write 39 Witnesses to a will, how many required, and the formalities to be observed by them in attesting the will 39, 4° Witness may make his mark when unable to write 40 Witnesses must attest the will, so that the testator may see them sign their names 40 When written in a foreign language how recorded 1 17 Wills include codicils 30 Words "written" and "in writing" include what 3° Signature must be written or by mark 30 Attestation clause 41 What necessary to pro\e by subscribing witnesses 4 1 When other than subscribing witnesses may be called to es- tablish execution of will L 41, 5 2 Wills may be established in opposition to testimony of sub- scribing witnesses C. 4 1 INDEX. 319 Page. W ILLS— Continued. Not necessary to appoint executor in a will 41 Publication of will not necessary 41 Codicil, how executed and proved 42, 51 How will should be drawn and executed 42 Testator must sign before witnesses 42 Competency of witnesses to wills 42 Who may be witnesses to wills 42, 43 Nuncupative wills, by whom made and how executed 43, 44 Legatees, etc., not to be witnesses 44, 42 Legacies, etc., to subscribing witnesses void 44, 42 Revocation of wills 45 Implied revocations 46 Interlineations and erasures, how noted 46 How deposited in probate office and preserved 46, 47 When will to be opened and read r 47 Judge of probate to give notice to executor, etc., that will is filed 47 When person having possession of a will to deliver same to probate court 47 Within what time executor to accept the trust 48 PenaLty for not delivering will to probate office 48 Commitment for refusal to deliver will to probate court 48 Proceedings in case of refusal to deliver will into court 48 Notice of probate of will, how given 48, 49. 50 Jurisdiction in case of wills ^ 48 Practice on probate of wills 49 Notices, etc., fees for publishing, and term "folio'' defined. 50 Notice to foreign consul at New York, where heirs reside in foreign country f,o Only one witness need be sworn where the will is not con- tested 50 Issue, how made where will is contested 50, 51 Who may contest a will 51 Death of testator, how established 5 1 Will becomes operative at death of testator 51 Decrees in regard to probate of wills subject to revocation and modification, when 5 1 Part of a will may be established, and the balance rejected- 51 Execution of wills, how proved where subscribing witnesses are out of the State, or are dead or cannot be found, or have become disqualified or incompetent 52 Execution of wills, how proved where subscribing witnesses are in the State but out of the county, and so sick, etc., as to be unable to attend 52, 53 320 INDEX. Page. WI LLS — Continued. , When wills become operative and when they take effect 53 Wills proved in another State or country, how established and recorded here 54, 55 Lost and destroyed wills how proved 55 Provisions for children omitted in a. will, and how the same is to be paid 56 When the issue of a deceased legatees, etc., takes the legacy. 57 Lien of creditors upon estate of testator 57 Allowance to widow and minor children 57 Will may specify what property shall be used to pay debts 58 Specific devisees and legacies may be exempt from payment of debts 58 When executor may retain legacies liable for payment of debts, etc 58 When legatee may take legacy subject to liability to con- tribute toward payment of debts 59 Legatees, how liable for debts when one of them becomes in- solvent 59 Certificate of probate of will, how made, etc 59 Will certified to be evidence in other courts. 59 Record of will or certified transcript of record to be evidence 59, 60 Wills to be recorded in probate court and in the office of register of deeds 60 Word "executor," what it includes 60 Personal estate bequeathed, how transferred to other States 60, 61 Bequests to the State for the benefit of insane persons, how disposed of 61 Who must be parties on appeal from allowance of, etc 108 When legatee cannot appeal 108 Legacies, within what time to be paid 112, 113' EXECUTORS AND LETTERS TESTAMENTARY. Plow and when issued 62 Executor must file bond and conditions of bond 62 Who may act as executors 62 Penal sum in bond, and who may be sureties 63 When an additional or new bond may be required 63 Approval of bond 63 Joint bonds and separate bonds, and liability of sureties on these 64 Bond of residuary legatee when he is executor, and his liability upon the same 64 INDEX. 321 Page. EXECUTORS AND LETTERS TESTAMENTARY— Continued. Defense or prosecution of actions by executors in case of death of party to suit ' 64 Executor to accept the trust and give bond within twenty days after will is proved 64 WITNESSES. Subscribing witnesses ' 13 How subpoenaed, and fees of 21 Depositions of, how taken 21, 22 Competency of certain persons heretofore excluded 23 When opposite party to be excluded 23 Subscribing witnesses to wills ■__ 41 Legacies to subscribing witnesses void 44, 42 Testimony of witnesses to wills and codicils, how taken 50, 51 Depositions of witnesses to wills, how taken 52, 53 When other than subscribing witnesses may prove will 52, 41 WRITS. Process and proceedings to be in English Language 17 WILLS. In foreign language, how recorded 17 Include codicils 30 WRIT OF ERROR AND CERTIORARI Will not lie from supreme court to probate court 19 WARRANTS Issued by judge of probate, and by whom served 21 WORDS AND PHRASES. How construed in the statutes 30, 217 WRITTEN AND IN WRITING Includes printing, etc 30 WIDOW. For Dower of see Dower. Allowance for support of widow and children 57, 209 Dower of, cannot be sold to pay debts 58 Allowances out of personal estate 208 to 210 For allowances see also Allowances and Descent of Personal Property. Share of residue of personal estate 211 Descent of personal estate to widow 211 Descent of real estate to widow 218 to 220 Entitled to certain crops 246 May remain in dwelling house year after death of husband 251 41 INDEX TO COMPILER'S SECTIONS, ETC. It was necessary, in preparing this work, to make frequent references to trie Compiler's Sections of the Compiled Laws of 1871, and this index has been prepared to show on what page of this book the Sections referred to may be found. There are three classes of references. Fikst: Articles of the Constitution. Secondly: Session Laws since the compilation of 1871. Thirdly: The Compiler's Sections of the Compiled Laws of 1871. CONSTITUTIONAL PROVISIONS. Page of C. L. Sec. Page of this Book. Page of C. L. Sec. Page of this Book 63 13 9 79 13 3° 63 H 9 82 ■ 3° 63 15 9 87 28 II 64 21 10 92 1 30 64 22 10 66 4 272 92 2 3° 68 4 13 92 9 3° 71 3 220 92 8 217 77 3*4 149 93 14 18 78 1 10 93 16 30 7S 6 17 SESSION 93 LAWS. 17 3° Year. No. of Act, Page of this Book. Year. No. of Act. Page of this Book. I87I 172 267 1875 155 23 1875 153 60 1872 47 142 1875 105 72 1875 136 79 1873 197 II 1875 136 83 1873 140 II 1875 203 83 1873 165 16 1875 105 in 1873 15 32 1875 184 190 1873 172 61 1875 151 238 1873 135 82 1875 IO4 249 1873 192 127 1875 50 254 1873 95 I30 1875 162 255 1873 95 200 1875 I50 261 1873 144 268 1875 59 269 1875 l 6 3 270 index to compiler's sections, etc. 323 Comp. Sec. Page of this Book. Comp. Sec. Page of this Book. Comp. Sec. Pa^e of this Book. Io8 272 4305 216 435° 57 128 272 4306 216 4351 58 360 221 4309 217 4352 58 527 16 4310 221 4353 58 528 16 43" 221 4354 58 633 9 4312 221 4355 59 634 10 4313 215 4356 59 974 •142 4314 221 4357 59 i"S 226 4315 223 4358 59 4111 31 43i6 223 4359 60 41 12 31 4317 223 4360 60 4269 240 4318 223 436i 60 4270 243 4320 217 4362 61 4271 243 4321 216 4363 61 4272 243 4322 32 4364 62 4273 243 4323 35 4365 62 4274 244 4324 35 4366 64 4275 244 4325 35 4367 64 4276 245 4326 36 4368 65 4277 247 4327 43 4369 65 4278 247. 4328 44 4370 65 4279 248 4329 44 4372 69 4280 248 433° 45 4373 66 4281 24S 4331 46 4374 66 4282 249 4332 47 4375 66 4283 249 4333 47 4376 64 4284 250 4334 47 4377 .208 4285 250 4335 47 4378 67 4286 250 4336 48 4379 70 4287 250 4337 48 4380 72 4288 251 433* 48 438i 72 4289 251 4339 5° 4382 73 4290 251 434o 52 4383 73 4291 251 4341 53 4384 74 4292 252 4342 54 4385 74 4293 252 4343 54 4386 74 4294 252 4344 54 4387 74 4295 252 4345 55 4388 75 .4296 252 4346 56 439° 76 4297 253 4347 56 4391 76 4298 253 4348 56 4392 76 4299 253 4349 57 4393 77 324 INDEX TO COMPILER'S SECTIONS, ETC. Comp. Sec. Page of this Book. Comp. Sec. Page of this Book. Comp. Sec. Page of this Book. 4394 77 4439 IOI 4482 197 4395 77 4440 1 02 4483 I97 4396 68 4441 103 4484 198 4397 68 4442 103 4485 198 4398 225 4443 104 4486 199 4399 226 4444 104 4487 199 4400 226 4445 105 4488 200 4401 79 4446 105 4489 200 4402 81 4447 106 4490 203 4403 82 4448 106 4491 203 4404 82 4449 107 4492 207 44°S S3 4450 112 4493 207 4408 84 445 ' "3 4494 202 4409 85 4452 , "4 4495 228 44IO 85 4453 114 4496 228 44" 85 4454 "5 4497 228 4412 86 4455 "5 4498 229 4413 86 4456 116 4499 23I 4414 86 4457 117 4500 232 4415 86 4458 117 4501 232 4416 87 4459 118 4502 234 4417 87 4460 118 4503 235 4418 87 4461 118 4504 235 4419 188 4462 11S 4505 236 4420 88 4463 118 4506 236 4421 89 4464 119 45°7 233 4422 90 4465 119 45o8 237 4423 90 4466 119 45°9 237 4424 90 4467 120 4510 237 4425 90 4468 120 4511 238 4426 9i 4469 120 4512 238 4427 92 4470 121 45 '3 238 4428 93 4471 121 45 H 238 4429 94 4472 121 4516 234 4430 94 4473 121 4517 234 4431 96 4474 121 451S 254 443 2 98 4475 121 4519 255 4433 98 4476 122 4520 255 4434 98 4477 122 4521 256 4435 98 4478 122 4522 •257 4436 99 4479 122 4523 257 4437 99 4480 IOI 45 2 4 258 4438 100 4481 '95 4525 258 etc. 325 Comp. Sec. Page of this Book, Comp. Sec. Page of this Book. Comp. Sec. Pa ge of this Book. 4526 25s 4569 166 4612 r82 45 2 7 25s 457° 167 4613 183 4528 259 4571 167 4614 183 45 2 9 259 4572 168 4615 183 453° 190 4573 186 46:6 '83 453i 190 4574 168 4617 '83 453 2 191 4575 1 68 4618 184 4533 191 4576 168 4619 1 84 4534 191 4577 170 4620 184 4535 192 4578 171 4621 184 4536 192 4579 171 4622 184 4537 192 458o 171 4623 185 4538 192 458i 171 4624 .85 4539 192 4582 172 4625 186 4540 193 4583 172 4626 186 4541 193 4584 173 4627 187 4542 193 4585 173 4756 240 4543 193 4586 173 4803 31 4544 194 4587 173 4810 123 4545 149 4588 '74 481 1 125 4546 152 4589 174 4812 126 4547 153 4590 174 4813 127 4548 154 4591 174 4814 127 4549 154 4592 175 4815 128 455° 155 4593 175 4816 128 455' 155 4594 175 4817 129 4552 155 4595 176 4818 132 4553 156 4596 176 4819 132 4554 156 4597 177 4820 132 4555 157 4598 177 4821 133 4556 157 4599 178 4822 133 4557 157 4600 179 4823 134 4558 158 4601 179 4824 135 4559 15s 4602 179 4825 135 4560 158 4603 180 4826 136 4561 160 4604 180 4827 136 45 62 162 4605 180 4828 136 4563 162 4606 181 4829 137 4564 163 4607 181 4830 137 4565 163 4608 181 4831 137 4566 165 4609 181 4832 137 4567 165 4610 181 4833 138 4568 166 461 1 182 4834 138 326 INDEX TO COMPILER S SECTIONS, ETC Comp. Sec. Page of this Book. Comp. Sec. Page oi this Book. Comp. Sec. Page of thih Hook. 4835 138 4879 265 5229 25 4836 138 4880 265 5231 '5 4837 139 4881 265 5232 '5 4838 140 4882 266 5233 18 4839 140 4883 266 5234 18 4840 140 5"92 13 5235 25 4841 140 S J 93 '5 5236 18 4842 i 4 i 5 r 94 16 5237 26 4843 hi 5'95 ■5 5238 77 4844 141 5196 18 5239 78 4845 141 S'97 20 5240 78 4846 i 4 i 5198 21 5241 78 4847 142 5199 21 5242 78 4848 136 5200 21 5243 78 4851 144 5201 21 5244 25 4852 144 5202 21 5245 68 4853 144 5203 23 5246 26 4854 146 5204 24 5247 26 4855 147 5zo5 24 5676 '3 4856 148 5206 24 5683 17 4857 261 5207 24 5800 10 4858 261 5208 24 5801 100 4859 261 5209 24 5857 52 4860 262 5210 25 5858 52 4861 262 5211 25 5859 52 4862 262 5212 201 5860 53 4863 262 5213 202 5861 53 4864 262 5214 232 5862 53 4865 263 5215 130 5863 53 4866 263 5216 107 5925 159 4867 263 5217 109 5966 42 4868 263 5218 109 5968 23 4869 264 S219 no 6108 99 4870 264 5220 no 7435 11 4871 264 5221 no 7436 11 4872 264 5222 in 7437 11 4873 264 5223 in 7441 206 4874 264 S224 in 7442 206 4875 265 5225 in 7454 5° 4876 265 5226 112 7455 191 4877 265 5227 112 7459 5° 4878 265 5228 25 APPENDIX OF FORMS. APPENDIX OF FORMS. APPENDIX OF FORMS. No. 1. PETITION FOR APPOINTMENT OF AN ADMINISTRATOR. State oe Michigan, ■ sa. Probate Court for said County. County of To , Judge of Probate for said County: In the matter of the estate of deceased, your petitioner would respectfully represent to the Court that he is interested in said estate, as of said deceased ; that said deceased departed this life at in the of in the county of and state of on the day of 18 , leaving no last will and testament, as your petitioner is informed and verily believes. That said deceased was at the time of his death, an inhabitant of, or resident in, said County of , and was possessed of real and personal estate situate and being in said County of , and elsewhere, to be ad- ministered, and that the estimated value of the personal estate is the sum of dollars, and of the real estate, the sum of dollars, or thereabout, as your peti- tioner is informed and verily believes. And your petitioner further represents that the names, ages, residence, and relationship to the de- ceased of the heirs at law of said deceased, and other persons interested in said estate, as your petitioner is informed and verily believes, are as follows: Your petitioner therefore prays that a day be fixed for hearing this petition, and that du« notice thereof be given to all persons interested, by an order of the Court, duly published once in each week for three successive APPENDIX OP FORMS. [NO. I CONTINUED.] weeks, in such newspaper as the Court shall direct, and that administration of said estate may be granted to , or some other suitable person, and that such other and further order and proceedings may be had in the premises as may be required by the statutes in such case made and provided. Dated State op Michigan, County of The above named Petitioner being duly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe., them to be true. Subscribed and sworn to at this day of A. D. 18 , before me, No. 2. ORDER OP HEARING, FOR GENERAL PURPOSES AND FOR AP- POINTMENT OF AN ADMINISTRATOR. State of Michigan, County of At a session of the Probate Court for said county, held at the Probate office, in the of on the day of in the year one thousand eight hundred and Present, Judge of Probate. In the matter of the estate of On reading and filing the petition, duly verified, of Thereupon it is ordered, that day, the day of next at ten o'clock in the forenoon, be APPENDIX OF FORMS. [NO. 2 CONTINUED.] assigned for the hearing of said petition, and that the heirs at law of said deceased, and all other per- sons interested in said estate, are required to appear at a session of said Court, then to be holden at the Pro- bate office, in the of , and show cause, if any there be, why the prayer of the petitioner should not be granted: And it is further ordered, that said peti- tioner give notice to the persons interested in said estate, of the pendency of said petition, and the. hearing thereof, by causing a copy of this order to be published in the a newspaper printed and circulated in said county, successive weeks previous to said day of hearing. (A true copy.) Judge of Probate. Probate Court for said County. No. 3. BOND OF EXECUTOR OR ADMINISTRATOR, WITH THE WELL ANNEXED. State of Michigan, County of In the matter of the estate of deceased. Know all men by these presents, that we within the State of Michigan, are hoMen, and stand firmly bound and obliged unto Esq., Judge of Probate in and for the said County of in the full sum of dollars, lawful money of the United States of America, to be paid unto the said his successors in the said office or assigns, to the true payment whereof we do bind ourselves, and each of us, our and each of our heirs, executors and administrators, jointly and severally, for the whole, and in the whole, firmly by these presents. Sealed with our seals : Dated the day of Anno Domini one thous- and eight hundred and APPENDIX OF FORMS. [NO. 3 CONTINUED.] Whereas, the above bouhden ha been ap- pointed by the Probate Court of said County, of the estate of late of said County deceased: Now the condition of this present obligation is such, That if the above bounden shall well and truly perform, observe and keep the conditions following, to- wit: 1st. That he shall make and return to the Probate Court aforesaid, within thirty days, a true and perfect inventory of all the goods, chattels, rights, credits and estate of the said deceased, which shall come to possession or knowledge, or to the possession of any other person for 2d. That he shall administer according to law a?id the will of said deceased, all the goods, chattels, rights, credits and estate of the said deceased, which shall, at any time, come to possession, or to the possession of any other person for and out of the same pay and discharge all debts, legacies, and charges chargeable on the same, or such dividends thereon as shall be or- dered and decreed by the said Probate Court aforesaid. 3d. That he shall render a true and just account of administration to the Probate Court aforesaid within one year, and at least once in each year there- after, and at any other time when required by such Court: And 4th. That he shall perform all orders and decrees of the Probate Court aforesaid, by the said to be per- formed in the premises: Then the before written obliga- tion to be void and of none effect, or else to abide and remain in full force and virtue. [L, 8.] [L. 8.] [ L . s:j APPENDIX OF FORMS. [NO. 3 CONTINUED.] County, ss. At a session of the Probate Court in and for said County, holden at on the day of A. D. 18 1 have examined and do approve of the foregoing bond and the sureties therein, and order the same to be filed and recorded in the Probate office of said County. Judge of Probate. STATE OF MICHIGAN, ) > ss. County of ) the sureties in the foregoing bond, being sworn, each for himself, says, that he is worth the amount of the penalty in said bond, over and above all debts and legal exemptions. Subscribed and sworn to before me this day of 18 . No. 3i ADDITIONAL BOND OF EXECUTOR OR ADMINISTRATOR. State or Michigan, _• ss. Probate Court for said County. County of In the matter of the estate of deceased. Know all men by these presents, that we within the State of Michigan, are holden, and stand firmly bound and obliged unto Esq., Judge of Probate in and for the said County of in the full sum of Dollars, lawful money of the United States of America, to be paid unto the said , his successors in the said office, or assigns, to the true payment whereof we do bind ourselves, and each of us, our and each of our heirs, executors and administrators, jointly and sever- ally, for the whole, and in the whole, firmly by these presents. Sealed with our seals: Dated the day of Anno Domini one thous- and eight hundred and APPENDIX OP FORMS. [NO. 2% CONTINUED.] Whereas, the above bounden ha been ap- pointed by the Probate court of said County, of the Estate of late of said County deceased : and has filed a bond, in the penal sum of dollars with and as sureties, as required by law, which was on the day of 18 , duly approved by the judge of probate of said county: and whereas the said judge of probate did on the day of 18 make an order that the said file a new bond, as an additional security for the faithful execution of said trust: Now therefore this bond is tiled as additional se- curity as aforesaid and the condition of this present ob- ligation is such, That if the above bounden shall well and truly perform, observe and keep the conditions following, to wit: 1st. That he shall make and return to the Probate court aforesaid, a true and perfect inventory of all the goods, chattels, rights, credits and estate of the said deceased, which shall come to possession or knowl- edge, or to the possession of any other person for whenever required by the court. 2d. That he shall administer according to law and the of said deceased all the goods, chattels, rights, credits and estate of the said deceased, which shall, at any time, come to possession or to the p6ssession of any other person for and out. of the same pay and discharge all debts and and charges" chargeable on the same, or such dividends thereon as shall be ordered and decreed by the said Probate court aforesaid. « 3d. That he shall render a true and just account of administration to the Probate court aforesaid, at least once in each year, and at any other time when required by such Court: And APPENDIX OF FORMS. [NO. 2% CONTINUED.] 4th. That he shall perform all orders and decrees of the Probate court aforesaid, by the said to be per- formed in the premises : Then the before written obliga- tion to be void and of none effect, or else to abide and remain in full force and virtue. [L. B.] [L. S.] ' [L. 8.] County, ss. At a session of the Probate Court in and for said County, holden at on the day of A. D. 18 . I have examined and do approve of the foregoing bond, and the sureties therein, and order the same to be filed and recorded in the Probate office of said County. Judge of Probate. STATE OF MICHIGAN, ) > 33. County of ) the sureties in the foregoing bond being sworn each for himself, says that he is worth the amount of the penalty in said bond, jver and above all debts and legal exemptions. Subscribed and sworn to before me this day of 18 No. 4. ORDER APPOINTING ADMINISTRATOR, APPRAISERS AND COM- MISSIONERS ON CLAIMS, AND ORDERS OF ALLOWANCE AND LIMITATION. State or Michigan, ) > aa. County of ) At a session of the Probate Court for said county, held at the Probate office, in the of , on the day of , in the year one thousand eight hundred and Present, Judge of Probate, APPENDIX OF FORMS. [NO. 4 CONTINUED.] In the matter of the estate of deceased. This being the day assigned by this Court for hearing the petition of praying that an administrator may be appointed on the estate of said deceased. Now comes the said Petitioner And it appearing to the Court by due proof on file, that a copy of the order of this Court touching the hearing of said petition made on the of last past, has been duly published as in said order directed, and after a full hearing upon said petition it further satisfactorily appearing that the said deceased last dwelt in, and was an inhabitant of in said County, and is now deceased ; that the said was seized and possessed of estate situate and being in said County, of the value of dollars or thereabouts to be administered ; that it is necessary that an admin- istrator should be appointed upon said estate, and that of in said County is a competent and suita- ble person for that trustj: It is Ordered and Decreed by the Court, now here, that the said be and ap- pointed administrat of the estate of the said deceased. And it is further Ordered that and of said County, be and are appointed as two appraisers to appraise the estate of said deceased. It is further Ordered, that the said Administrat , be allowed one year from this day of instant, in which to dispose of the estate and pay the debts of the said deceased. And upon the Application of the said Administrat and after careful examination and hearing had thereon, it is further ordered that an allowance of dollars be and is hereby made for the support of the widow and children constituting the family of said deceased, dur- ing the progress of the administration of estate. And it is further Ordered, that six months from this said day of instant be allowed for credit- APPENDIX OF FORMS. [NO. 4 CONTINUED.] ors to present their claims against said estate for exam- ination and allowance: and that of said County be appointed Commissioners to receive, examine and ad- just all such claims against said estate. Judge of Probate No. 5. ORDER APPOINTING ADMINISTRATOR AND APPRAISERS AND ORDERS OF ALLOWANCE AND LIMITATION, CLAIMS HEARD BY THE COURT. State of Michigan, 1 > ss. County of ) At a session of the Probate Court for said County held at the Probate Office, in the of on the day of in the year one thousand eight hundred and Present, Judge of Probate. In the matter of the estate of deceased. This being the day assigned by this Court for hear- ing the petition of praying that an administrator may be appointed ori the estate of said deceased, Now comes the said Petitioner And it appearing to the Court by due proof on file, that a copy of the order of this Court touching the hearing of said petition made on the of last past, has been duly published as in said order directed, and after a full hearing upon said petition it further satisfactorily appearing that the said deceased last dwelt in, and was an inhabitant of in said County, and is now deceased; that the said was seized and possessed of estate situate and being in said County, of the value of dollars, or there- abouts, to be administered ; that it is necessary that an administrator should be appointed upon said estate, and that of in said County is a competent APPENDIX OF FORMS. [NO. 5 CONTINUED.] and suitable person for that trust : It is Ordered and, Decreed by the Court, now here, that the said be and appointed administrat of the estate of the said deceased. And it is further Ordered that and of said County be and are appointed as two appraisers to appraise the estate of said deceased. It is further Ordered, that the said Administrat be allowed one year from this day of instant, in which to dispose of the estate and pay the debts of the said deceased. And upon the Application of the said Administrat . and after careful examination and hearing had thereon, It is further Ordered that an allowance of dollars be and is hereby made for the support of the widow and children constituting the family of said deceased, dur- ing the progress of the administratiou of estate And it is further Ordered, that six months from this said day of - instant, be allowed for creditors to present their claims against said estate for examina- tion and allowance ; and that all persons having claims or demands against said deceased, be required to pre sent the same to this Court at the Probate office for said-County, on or before the day of next, at ten o'clock in the forenoon of that day, for ex- amination and allowance. Judge of Probate. No. Bh administrator's bond. State of Michigan, Probate Gowtfor said Gotmty. County of In the matter of the estate of deceased. Know all men by these presents, That we, within the State of Michigan, are holden, and stand firmly APPENDIX OP FORMS. NO. $% CONTINUED. bound and obliged unto Esq., Judge of Probate in and for the said County of in the full sum of dollars, lawful money of the United States of America, to be paid unto the said his successors in the said office, or assigns, to the true payment whereof we do bind ourselves, and each of us, our and each of our heirs, executors and administrators, jointly and severally, for the whole and in the whole, firmly by these presents. Sealed with our seals. Dated the day of Anno Domini one thous- and eight hundred and Whereas, The above bounden ha been ap pointed by the Probate Court of said County, adminis- trat of the estate of - late of said County, deceased: Now the condition of this present obligation is such, That if the above bounden shall well and truly perform, observe and keep the conditions following, to wit: 1st. That he shall make and return to the Probate Court aforesaid, within thirty days, a true and perfect inventory of all the goods, chattels, rights, credits and estate of the said deceased, which shall come to possession or knowledge, or the possession of any other person for 2d. That he shall administer according to law, all the goods, chattels, rights, credits and estate of the said deceased, which shall at any time come to posses- sion, or to the possession of any other person for and out of the same pay and discharge all debts and charges, chargeable on the same, or such dividends thereon as shall be ordered and decreed by the Probate Court aforesaid. 3d. That he shall render a true and just account of administration to the Probate Court aforesaid, within one year, and at least once in each year there APPENDIX OF FORMS. NO. S% CONTINUED. after, and at any other time when required by such Court. And, 4th. That he shall perform all orders and decrees of the Probate Court aforesaid, by the said administrat to be performed in the premises. Then this obligation to be void and of no effect, or else to abide and remain in full force and virtue. [seal. J [seal.] [SEAL.] County, ss. At a session of the Pro- bate Court in and for said County, holden at on the day of A. D. 18 I have examined and do approve of the foregoing bond, and the sureties therein, and order the same to be filed and recorded in the Probate office of said County. Judge of Probate. State oe Michigan, ) > ss. County of ) the sureties in the foregoing bond being sworn, each for himself says, that he is worth the amount of the penalty in said bond, over and above all debts and legal exemptions. Subscribed and sworn to before me this day of 18 . No. 6. LETTERS OF ADMINISTRATION GENERAL. State or Michigan, } > ss. Probate Court for said County. County of ) In the matter of the estate of deceased. To . of said County, Greeting : Whereas, lately departed this life intestate, being at the time of his death an inhabitant of the Coun- ty of , and having while he lived and at the time APPENDIX OF FORMS. [NO. 6 CONTINUED.] of decease, estate within said County of to be ad- ministered ; whereby the power of committing adminis- tration and full disposition of all and singular the goods, chattels, rights, credits and estate whereof the said de- ceased died possessed, in the State of Michigan, and also the hearing, examining and allowing the account of such administration doth appertain unto me ; and you having given a bond in the premises, which has been duly approved and filed as required by law in that behalf: Now Therefore, trusting in your care and fidelity, I do, by these presents, commit unto you, the said full power and authority to administer and faithfully dispose of according to law, all and singular the goods, chattels, rights, credits and estate of said deceased, within the State of Michigan, which shall at any time come to your possession or to the possession of ariy other person for you, and to ask, gather, levy, recover and receive all the goods, chattels, rights, credits and estate whatsoever, of said deceased, which to him while he lived and at the time of his death did belong, and to pay and discharge all debts, and charges chargeable on the same, or such dividends thereon as shall be or- dered and decreed by said Court, hereby requiring you to make and return to said Court, within thirty days, a true and perfect inventory of all the goods, chattels, rights, credits and real estate of said deceased, which shall come to your possession or knowledge, or to the possession of any other person for you, and also to ren- der a just and true account of your administration to said Court, within one year, and at least once in each year thereafter, and at any other time when required by said Court, and to perform all orders and decrees of said Court by you to be performed in the premises. In testimony whereof, I have hereunto set my hand, APPENDIX OP FORMS. NO. 6 CONTINUED. and caused to be affixed the seal of said Probate Court, at the day of , in the year of our Lord one thousand eight hundred and seventy Judge of Probate. Recorded in Lib. Fol. No. 7. appraisers' warrant for deceased persons and minors, etc. State or Michigan. ) > ss. Probabe Court for said County. County of ) By Judge of Probate for said County. In the matter of the estate of To of said County — Greeting: You having been appointed Appraisers of said es- tate, are hereby empowered and directed truly and justly to appraise, as soon as may be, in dollars and cents, all the estate and effects, both real and personal, comprised in the inventory of the estate of said , which may be in said , according to the present value thereof, being first sworn to the faithful perform- ance of that trust. And when you shall have performed that service as aforesaid, you are to deliver the said inventory, together with this Warrant, and your doings thereon, to of the said , who hereby accordingly directed so to return the same on oath into the Probate office of said County, within thirty days from the time of taking upon that trust. Witness, the said , Judge of Probate for said County, under his hand and the seal of said Court, at the of , this day of , in the year of our Lord one thousand eight hundred and seven ty- , Judge of Probate, APPENDIX OF FORMS. [NO. 7 CONTINUED.] County of , ss. On this day of A. D. 187 , before me per- sonally appeared , the Appraisers above named, and made oath that they would faithfully discharge the trust reposed in them by the above Warrant. INVENTORY. County of , ss. A true and Perfect Inventory of all the Real Estate, Goods, Chattels, Rights and Credits of , to wit : Dollars. Cents. We, the undersigned Appraisers, appointed by the Probate Court for said CoUnty, having first taken the oath prescribed by law for the faithful discharge of the trust under such appointment, do hereby certify that we have truly and justly estimated and appraised all the estate and effects of as exhibited to us and comprised in the foregoing Inventory, according to the best of our skill and judgment, at the respective sums placed opposite each item therein mentioned. Dated , 187 . \ Appraisers. Probate Court for said County. 'State op Michigan. County of The undersigned of said , personally ap- peared and made oath that the foregoing is a true and perfect Inventory of all the Estate of said that hath come to knowledge or possession ; and that if shall hereafter know or become possessed of any fur- ther assets belonging to the Estate of said deceased, APPENDIX OF FORMS. [NO. 7 CONTINUED.] will make return thereof into the Probate Court of said County. Sworn to and subscribed before me this day of A. D. 187 . , Judge of Probate. No. 8. State of Michigan, ) > ss. Probate Court for said County. County of ) In the matter of the Estate of deceased. By , Judge of Probate of said County. To of said County, Greeting : You are hereby nominated and appointed Commis- sioners, with full power and authority to receive, exam- ine and adjust all claims and demands of all persons against the Estate of , late of said County, deceased, and (being first duly sworn to the faithful discharge of your duties) within sixty days from the date hereof you are to appoint convenient times and places when and where you will meet for the purpose of examining and allowing such claims, and give notice thereof, and of the time hereby limited for creditors to present their claims, by posting up the same in four public places in said Co^^nty, to wit : and also by publishing such notice at least weeks successively in the , a newspaper printed in the County of . And either of you are authorized to administer oaths to parties and witnesses, when the same shall be required or proper, for the investigation and trial of questions before you. And months from the date hereof are allowed by said Court to the creditors of said Estate to present their claims to you APPENDIX OP FORMS. [NO. 8 CONTINUED.] for examination and allowance; at the expiration of which time, or as soon thereafter as you shall be able to complete the hearing of the claims presented, you are to make a report of your doings to said Probate Court, embracing lists of the claims presented or ex- hibited in off-set, and stating how much thereof were allowed and how much disallowed, together with a final balance (which shall include interest to the date of your report), whether in favor of such creditor or estate. You are to note in distinct classes the claims allowed by you, in pursuance of this warrant, in the following order: 1st. The expense of the last sickness of said deceased. 2d. Debts having a preference by the laws of the United States. 3d. Debts due other creditors. You will particularly state the manner of giving said notice to the said claimants, and exhibit a plain and true account of your care and labor in exam- ining the claims aforesaid, that you may be entitled to meet recompense therefor, out of the said estate. Finally, you are to make due return of this Commis- sion with your doings thereon, in all things required by law. Witness, the said , Judge of Probate, as afore- said, under his hand and the seal of said Court, at , this day of , in the year of our Lord one thousand eight hundred and seventy , Judge of Probate for said County. State of Michigan. County of On the day of , A. D. 187 , then person- ally appeared , the above named Commissioners, and made oath that they would faithfully and impar- tially discharge the trust reposed in them by the fore- going commission, as required by law. Before me, APPENDIX OF FORMS. [NO. 8 CONTINUED."] ss. To the Probate Court of said County. County of We, the undersigned Commissioners, appointed by the foregoing Warrant, to receive, examine and adjust all claims and demands of all persons against the estate of , late of said County, deceased, do hereby cer- tify and return to the Probate Court of said County, that (having first taken the oath prescribed by law for the faithful discharge of our duty) we have, within sixty days after our appointment, given public notice to the claimants of said estate of the time limited by said Warrant for presenting their claims, and that we would meet on , at , in said County, for the pur- pose of receiving, examining and allowing such claims; that such notice was given by posting the same in four public places in said County, to wit: , and also by publishing a copy thereof in the , a newspaper printed in the County of , for weeks success- ively, as in said Warrant directed, and as more fully appears by the annexed affidavits thereof. And we do further report, that we have, in pursuance of said notice, met, received, examined, adjusted and determined the personal claims and demands of all the several persons as hereinafter named (in distinct classes), and in the manner hereinafter set forth opposite their names respectively, in the several columns, as well as the claims filed in behalf of said estate, in off-set thereto, that is to say : The first column contains the names of the several claimants or creditors of said estate, and the character of each claim. The second column shows the amount of such claim. The third column shows the amount, if any, of the claim which was disallowed. The fourth column shows the amount, if any, of the off- set filed on behalf of said estate, against such claim. The fifth column shows the amount of such off-set, if any, which was disallowed. The sixth column shows APPENDIX OF FORMS. [NO. 8 CONTINUED.] the amount, if any, of the balance allowed in favor of such creditor. The seventh column shows the amount, if any, of the final balance allowed in favor of said estate; and the eighth column shows the names, if any, of the respective parties who objected to the allowance of such final balance. And we further report, that the amount of such final balance includes interest on the sum due on the claims presented, or filed in off- set as aforesaid, down to the date of this our report, and that the amount of our fees for services in the premises is stated opposite ou"r names respectively. Karnes of Claimants or Creditors, and Character of Claims. s s s 300 Names of Parties who objected to Allowance of final balance. State of Michigan, ss. At a session of the Probate Court of County, held at the Probate Office in the of , on the day of , in the year one thousand eight hundred and Present, , Judge of Probate. On reading and filing the foregoing Warrant and report, it is ordered that the claims therein allowed be paid within from the date of this order. , Judge of Probate. APPENDIX OP FORMS. No. 9. NOTICE OF COMMISSIONERS ON CLAIMS. State of Michigan, ■ ss. Probate Court for said County. County of Estate of , deceased. The undersigned having been appointed by the Judge of Probate of said County, Commissioners on claims in the matter of said estate , and six months from the day of , A. D. 187 , having been allowed by said Judge of Probate to all persons holding claims against said estate, in which to present their claims to us for examination and adjustment: Notice is hereby given, that we will meet on , the day of , A. D. 187 , and on , the day of , A. D. 187 , at o'clock . M. of each day, at in the of , in said County, to receive and examine such claims. Dated , A. D. 187 . > Commisioners. NOTE TO COMMISSIONERS.— The last day of hearing should be the last day of the six months, or immediately thereafter, so that no claims can be presented after the last day of hearing, within the six months. The first day of hearing should be far enough from the date of the notice to give ample time to post notices four weeks previous to such day. For further instruction see Compiled Laws of 1871, pages 1396 to 1409, chapter clviii. No. 10. AFFIDAVIT FOR POSTING NOTICE. COMMISSIONERS' MEETING. State or Michigan, ") >ss. County of J In the matter of the estate of , deceased. being duly sworn, says that on the day of , A. D. 187 , he posted notices, of which the APPENDIX OF FORMS. [no. io continued.] foregoing is a true copy, in four public places in the of , in said County of to wit : One , one , one , and one Subscribed and sworn to before me, this day of , A. D. 187 . No. 11. PROBATE NOTICE FOR HEARING CLAIMS BEFORE COURT. State of Michigan, County of Notice is hereby given, that by an order of the Pro- bate Court for the County of , made on the day of , A. D. 187 , six months from that date were allowed for creditors to present their claims against the estate of , late of said County, deceased, and that all creditors of said deceased are required to pre- sent their claims to said Probate Court, at the Probate office, in the of , for examination and allow- ance, on or before the day of next, and that such claims will be heard before said Court, on , the day of , and on , the day of next, at ten o'clock in the forenoon of each of those days. Dated , A. D. 187 . , Judge of Probate. APPENDIX OF FORMS. .11. li:-=n=ny^l! 2 B ^ I lllill !l § ° tot* s 1 5 «-^- a Sfe^«a

,a <»."•" a--H-" S a> >-, a+3 c o3 §,ar3 ii*!»'^ i i-j ^ o . 3 '-^^'fta p e« o " J "■ -55 t> g org M :i3 K a ^ „ P< •43 O fl.B a ■ o ^^3 2 o 03 rdrjj03prOao303 rH ^ . r p3 -*-» ew r^ a> o jh a 03^2 a a ,H .°° e © *< o3 a«S ft, Js 03 a o , «H -4- J ^ O cS 03 o ft® a ?s b a itT 03-_3 ?-f3 a s 2 °^.a £ fta^ to tc^H^ 2 fta^ °<£^z> 03 s* a3 as 03 m 03 ^^ -° - d os TO H § g © o a _ a ^ ^2 ^' .9 « s o 5 3 -^ 5 a -^ r ' r-T 02 UJ . ^ grd i ?? a b£ S a - OS 03 nj « fell? rt ^ - 03 Trf 03 X3 5=1 £.2t3 a »s =3 o.SraS O o OS, ^ 5S ^ 03 qj i^/y' ' +J ft^l fnrtf ® -J to os a t4_, 13 a o o * •ti iJ 'A A 03 TS Q3 o ^5 ij ^ =4-1 ft^_i 03 13 - 03 02 T3 03 OS 03 M) a ^ 3 a g^ J3 5nO - oa a a ft^ „ 0Q ph 03 .a 03 03 03 ■' 03 +J 5h 5) cj ™i 03-i^SH rt O -S O S § ;— i -•— Qj .-a ,-t; ft 03^; - e c APPENDIX OF FORMS. No. 13. PETITION FOR APPOINTMENT OF SPECIAL ADMINISTRATOR OR GUARDIAN. State of Michigan, - as. Probate Court for said County. County of To Judge of Probate for said County. In the matter of the estate of , your petitioner would respectfully represent to the Court that he is interested in said estate as of said ; that application has been made to said Court for the appoint- ment of a of said , who is an inhabitant or resident of said County, which application is now pend- ing; that such appointment will be delayed on account of the length of notice thereof, required by law to be given to all persons interested, and by reason of ; that there is real estate and personal property belong- ing to said estate, situate and being in said county and elsewhere, to be administered, and that the estimated value of the personal estate is the sum of dollars, and of the real estate, the sum of dollars, or there- about, as your petitioner is informed, and verily be lieves: Your petitioner further represents that said estate consists of , and that a special of said , should be appointed to collect, take charge of, preserve and mange the same for the following reasons, viz: Your petitioner, therefore, prays that may be appointed such special , with all the powers and duties prescribed by law ; and that such other and fur- ther order and proceedings may be had in the premises as may be required by the statutes in such case made and provided. State of Michigan, ) [-38. County of J The above named Petitioner being duly sworn, say that ha read the foregoing petition by APPENDIX OP FORMS. [NO. 13 CONTINUED.] signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters , believe them to be true. Subscribed and sworn to at , this day of , A; D. 18 , before me, No. 14. SPECIAL ADMINISTRATOR'S BOND. State of Michigan, | >• ss. Probate Court for said County. County of ) In the matter of the estate of , deceased. Know all men by these presents, that we within the State of Michigan, are holden, and stand firmly bound and obliged unto , Esq. , Judge of Probate in and for the said County of , in the full sum of dollars, lawful money of the United States of America, to be paid unto the said , his successors in the said office, or assigns, to the true payment whereof we do bind ourselves, and each of us, our and each of our heirs, executors and administrators, jointly and severally, for the whole, and in the whole, firmly by these presents. Sealed with our seals : Dated the day of , Anno Domini one thousand eight hundred and : Whereas, the above bounden , ha been ap- pointed by the Probate Court of said County, of the estate of , late of said County , de- ceased: Now the condition of this present obligation is such, That if the above bounden shall well and truly perform, observe and keep the conditions follow- ing, to wit : APPENDIX OF FORMS. [NO. 14 CONTINUED.] 1st. That lie shall make and return to the Probate Court aforesaid, a true and perfect inventory of all the goods, chattels, rights, credits and effects of the said deceased, which shall come to possession or knowl- edge, or to the possession of any other person for , at such time as the Judge of Probate shall order. 2d. That he shall administer according to law , all the goods, chattels, rights, credits and estate of the said deceased, which shall, at any time, come to possession, or to the possession of any other person for . and dispose of the same as shall be ordered and decreed by said Probate Court. 3d. That he shall truly account for all the goods, chattels, debts, and effects of the said deceased which shall be received by him, whenever required by the Probate Court, and deliver the same to the person or persons who shall afterwards be appointed Executor or Administrator of the said deceased, or to such other person or persons as shall be legally authorized to receive the same, as said Court shall direct. And 4th. That he shall perform all orders and decrees of the Probate Court aforesaid, by the said to be performed in the premises: Then the before written obligation to be void and of none effect, or else to abide and remain in full force and virtue. [L. S.J [L. S.] [L. S.] County, ss. At a session of the Probate Court in and for said County, holden at , on , the day of , A. D. 18 . I have examined and do approve of the foregoing bond, and the sureties therein, and order the same to be filed and recorded in the Probate Office of said County. , Judge of Probate. APPENDIX OF FORMS. [NO. 14 CONTINUED.] State of Michigan, County of , the sureties in the foregoing bond, being sworn, each for himself, says that he is worth the amount of the penalty in said bond over and above all debts and legal exemptions. Subscribed and sworn to before me this day of ,18 . No. 15. ORDER APPOINTING SPECIAL ADMINISTRATOR OR GUARDIAN. State of Michigan, County of At a session of the Probate Court for said County, held at the Probate office, in the of , on the day of , in the year one thousand eight hundred and seventy Present, , Judge of Probate. In the matter of the estate of On reading and filing the petition, duly verified, of , praying, for reasons therein set forth, that may be appointed special of said , to collect, take charge of, preserve and manage said estate, until a general can be appointed, and if appearing to the satisfaction of the Court that said estate requires immediate care and attention, and that it is necessary that at special should be appointed for the purposes aforesaid, and that said is a competent and suit- able person to execute said trust: It is therefore ordered, that said be, and he is hereby appointed special of said , with full power and authority to collect, take charge of, preserve, and manage said estate, under the order and direction APPENDIX OF POEMS. [HO. 15 CONTINUED.] of the Court, until a general shall be appointed, or until discharged by said Court ; And it is further ordered that said make and return an inventory of said estate to this Court, within days from the date of this order; And it is further ordered, that of said County be, and they hereby are appointed appraisers to appraise said estate. , Judge of Probate. No. 16. SPECIAL LETTERS OF ADMINISTRATION AND GUARDIANSHIP. State of Michigan. ) > ss. Probate, Court for said County. County of ) In the matter of the estate of By , Judge of Probate for said County. To of said County, Greeting: Whereas, it has been made to appear to the satis- faction of the Court that there will be delay in appoint- ing a general of said , and you having been appointed special of said , and having given a bond in the premises which has been duly approved and filed, as required by law : Now therefore, trusting in your care and fidelity, I do by these presents, pursuant to the power and authority to me granted, constitute and appoint you special of said , with all the powers and duties prescribed by law, and with full power and authority to collect, take charge of, preserve, manage and dispose of all the goods, chattels, debts and property of said estate, ac- cording to law, and as the Court shall direct (and I also .hereby confer upon you all the powers and obliga- tions conferred by law upon general administrators, with full power and authority to proceed in the admin- APPENDIX OP FORMS. [no. 16 continued.] istration and settlement of said estate in the same manner as prescribed by law in the case of a general ad- ministration, until the further order of the Court, L. 1875, Act No. 105), hereby requiring you to make and return to said Court, within days, a true and perfect inventory of all the goods, chattels, rights, credits and effects of said , which shall come to your possession or knowledge|; and, within one month from the termination of this trust, and at any other time when required by said Court, to truly account for all the moneys, goods, chattels, debts and effects of said , which shall be received by you, and upon the termination of this trust to forthwith deliver all the goods, chattels, moneys and effects of said in your hands to the general duly appointed in said matter, or to such other person as shall be legally au- thorized to receive the same, and to perform all orders and decrees of said Court by you to be performed in the premises. In testimony whereof I have hereunto set my hand and affixed the seal of said Probate Court, at , the day of , in the year of our Lord one thous- and eight hundred and seventy - , Judge of Probate. Recorded in Lib. , Folio No. 17. DISCHARGE OP ADMINISTRATOR, ETC. State op Michigan, ,- sa. Probate Court for said County. County of By , Judge of Probate. In the matter of the estate of deceased. To APPENDIX OP FORMS. [NO. 17 CONTINUED.] Whereas, It appears by the Records and proceedings of saidJCourt, that you, the said , have in all things faithfully and justly performed and discharged all and singular the duties and obligations which by law and the orders of said Court were required of and enjoined upon you as such , and that you have duly and fully accounted for and administered all of said estate which has come into your possession in pursuance of law : Therefore, in consideration of the premises, you, the said , as aforesaid, are hereby discharged, exon- erated and acquitted from any and all liabilities and troubles concerning your administration of said estate, and your doings and proceedings -are forever quieted, your Administration Bond cancelled, and your Letters , heretofore granted, are hereby revoked and annulled. In witness whereof, I have hereunto set my hand, and affixed the seal of said Court at the Probate office in , this day of , A. D. 18 . , Judge of Probate. No. 18. PETITION FOR THE PROBATE OP A WILL. State of Michigan, • as. Probate Court for said County. County of ) To , Judge of Probate for said^County. In the matter of proving the last will and testament of , deceased. Your petitioner would respectfully represent to the Court that he is interested in the above matter, as of said deceased ; that said deceased departed this life at , in the of , in the county of , APPENDIX OF FORMS. [no. 18 continued.] and State of , on the day of , 18 , leaving a last will and testament bearing date the day of , 18 , which is herewith deposited and tiled in said Court; that said will is in writing and signed by the said testator, and is attested and subscribed by and , two competent witnesses; that said witnesses attested and subscribed said will in the pres- ence of the said testator and at his request, and that the said testator at the time he executed said will, was twen- ty-one years of age and upwards, and was of sound mind and under no restraint or undue influence what- ever, as your petitioner is informed and verily believes. Your petitioner further represents that said deceased at the time of his death, was an inhabitant of or resident in said County of , and was possessed of real and personal estate situate and being in said County of , and elsewhere, to be administered, and that the esti- mated value of the personal estate is the sum of dollars, and of the real estate the sum dollars, or thereabout, as your petitioner is informed and verily believes. And your petitioner further represents that the names, ages, residence, and relationship to the de- ceased of the legatees and heirs-at-law of said deceased, and other persons interested in said estate, as your petitioner is informed and believes, are as follows: Your petitioner therefore prays the Court to appoint a time and place for proving said will, and that due notice thereof be given to all persons interested as the Court shall direct, and that said will may be allowed and admitted to probate, and that administration of said estate may be granted to , the executors named in said will, or to some other suitable person, and that such other and further order and proceedings 5 APPENDIX OF FORMS. [no. 18 continued.] may be had in the premises, as may be required by the statutes in such case made and provided. Dated State of Michigan, County of , the above named petitioner , being duly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at , this day of , A. D. 18 , before me, No. 19. ADMITTE STATE OS COUNTRY, TO BE INSERTED IN ORDINARY PETITION. Your petitioner further shows that said will was duly proved and allowed by the Court of the County of , in the State of , according to the laws of said State , on the day of , A. D. 18 ; that duly authenticated copies of said will, and of the probate thereof in said Court, have been produced and filed in this Court. Your petitioner further represents that said deceased has estate situated in said County of , upon which said will may operate, of the value of dollars, as your petitioner is informed and ver- ily believes. Your petitioner therefore prays that a time and place for hearing this petition may be fixed, and due notice thereof given to all persons interested, and that such copy of said will be allowed, filed and recorded by this Court as and for the last will and testament of said de- ceased, and that letters of be granted to APPENDIX OF FORMS. No. 20. PETITION FOR PROBATE OF LOST WILL TO BE INSERTED IN ORDINARY PETITION. Your petitioner further represents that, said will was duly made in writing, and signed, and duly executed by said deceased, on the day of ,18 , at , in the township of , in the County of , and State of , and was attested and subscribed in the presence of the said testator by and , two competent witnesses ; that said will was deposited with , soon after its execution, and was in existence at the testator's death, and has been lost or destroyed accidentally or fraudulently since his death, or acci- dentally or fraudulently before his death, without his consent or knowledge, or said will was lost or destroyed by said testator when he was not of sound mind. Your petitioner further represents that a most thorough search has be«n made for said will in all places where it might possibly be left or deposited, but it cannot be found. Your petitioner further represents upon his information and belief that the provisions of said will were substan- tially as follows, viz : No. 21. PETITION FOR PROBATE OF NUNCUPATIVE WILL, TO BE IN- SERTED IN ORDINARY PETITION FOR PROBATE OF A WILL. That said deceased at the time of his death was a mariner at sea, on board of the ship named , in the course of a voyage from to , (or was a soldier in actual military service, in the regiment, etc.); that while on such voyage (or in sucli actual mil- itary service) said deceased made a nuncupative will in the presence and hearing of , whereby he disposed of his wages and other personal estate in the following APPENDIX OF FORMS. [NO. 21 CONTINUED.] manner, viz: (or as is fully set forth in the paper hereto annexed). [Petition where value of the Estate does not exceed three hundred dollars.] That said deceased being very sick with , (or on account of severe injuries received by , etc., and having good reason to fear a sudden termination of his life, made a nuncupative will, in the presence and hear- ing of , and of , two competent witnesses, whereby he disposed of his estate, not exceeding in value three hundred dollars, in the following manner, viz: No. 22. ANSWER TO PETITIONS. An issue must he made upon the facts alleged in the petition or no proofs can be taken, and the case must stand upon the sufficiency of the allegations of the petition. Estate of Win. H. Robinson, 6 Mich., 143. The following form of answer may be used lor that purpose. State of Michigan, ) > ss. Probate Oourtfor said County. County of ) In the matter of the Estate of The answer of , respondent, to the petition of , filed in said Court on the day of ,. 18 , in the matter of said estate, for the purpose of This respondent, reserving to himself all right of excep- tion to the said petition, for answer thereto says (*) that he admits that And this respondent further answering says, that he knows not, and has not been informed, save by said petition, and cannot set forth as to his belief or other- wise, whether And this respondent further answering denies, that APPENDIX OP FORMS. [NO. 22 CONTINUED.] And this respondent is ready and willing to main- tain and prove all of the matters and things herein alleged, as the Court shall direct, and prays to be hence dismissed with his reasonable costs and charges in this behalf wrongfully sustained. rSS. State of Michigan, ' County of The above named respondent being duly sworn, say that ha read the foregoing answer by signed and know the conteuts thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at , this day of , A. D". 187 , before me, [Or the answer may be as above to *], that he is a stranger to all the matters and things in said petition contained, and therefore leaves the peti- tioner to make such proof thereof as he shall be able to produce, and prays to be hence dismissed, etc. No. 23. DECLARATION ON PROBATE OF WILL. State or Michigan. ■ ss. Probate Court for said County. • County of ) In the matter of proving the last will and testament of , deceased , the proponent of said will does hereby declare and aver that heretofore, to wit: on the day of , A. D. 18 , at the of , in the County of and State of , the testator being of full age and sound mind, and under no restraint or undue influence whatever, did then and there make and duly execute as required by law, his (or her) said last will and testament ; that said will was APPENDIX OF FORMS. [NO. 23 CONTINUED.] made in writing and signed by said testator, (or by in the presence of said testator, and by his express direction) and was attested and subscribed in the pres- ence of the said testator, by two competent witnesses. Proponent farther declares and avers that said tes- tator died at , in the County of and State of , on the day of , A. D. 18 , and at the time of his decease, was an inhabitant of, or resident in, said first mentioned County. Proponent further avers and alleges (that said will has been filed in said Probate Court, and said Court has appointed and fixed the day of , A. D. 18 , for proving said will, and that due notice thereof has been given to all persons interested in the premises as required by law; wherefore said will should be allowed and admitted to probate.) , Attorney for Proponent. The above declaration can be used in the Circuit Court by changing the name of the Court and by inserting in the place of the bracket the follow- ing : (that said will by the order and decree of the Probate . Court of said County, made on the day of , A. D. 18 , was allowed and ad- mitted to probate) (or was declared to be null .'and void, and refused admit- tance to probate) ; wherefore the said decree of the Probate Court should be affirmed) (or reversed). , Attorney for Proponent. [Plea to the above declaration.] State or Michigan, ss. Probate Court for said County. County of In the matter of proving the last will and testament of , deceased. And , the contestant in this cause, by , his attorney, comes and demands a trial of the matters set forth in the proponent's declaration. , Attorney for Contestant. Sir, — Please take notice that on the trial of this cause the above named contestant will give in evidence APPENDIX OF FORMS. [NO. 23 CONTINUED.] under the general issue above pleaded, and insist in his defense that Dated Yours, etc., Attorney for Contestant. To Esq., Attorney for Proponent. See Aiken, Ex'r, etc., vs. Weckerly, 19 Mich., 482. Beaubien, vs. Cicotte, 8 Mich 9. Taffvs. Hosmer, 14 Mich., 309. Kempsey vs. Maginnis, 21 Mich., 123. The above declaration and plea may be used to make the issue in the Probate Court, or an answer to the petition may be filed as per form given, stating specifically all the grounds of objection to the probate of the will. No. 24. ORDER FOR PROBATE OF WILL. ■State of Michigan, ) >ss. County of ) At a session of the Probate for said County, held at the Probate Office, in the of , on day, the day of , in the year one thousand eight hundred and Present, , Judge of Probate. In the matter of the estate of On reading and filng the petition, duly verified, of , praying that a certain instrument now on file in this Court, purporting to be the last, will and testament of said deceased, may be admitted to probate, and that Thereupon it is ordered, that day, the day of next, at ten o'clock in the forenoon, be assigned for the hearing of said petition, and that the heirs at law of said deceased, and all other per- sons interested in said estate, are required to appear at a session of said Court, then to be holden at the Probate APPENDIX OF FORMS. [NO. 24 CONTINUED.] Office, in the of , and show cause, if any there be, why the prayer of the petitioner should not be granted: And it is further ordered, that said petitioner give notice to the persons interested in said estate, of the pendency of said petition, and the hearing thereof, by causing a copy of this order to be published in the , a newspaper printed and circulating in said County, successive weeks previous to said day of hearing. (A true copy.) , Judge of Probate. No. 25. ORDER FOR HEARING, IN CASE OF WILLS PROVED IN OTHER STATES OR COUNTRIES, TO BE INSERTED IN THE USUAL ORDER. On reading and filing the petition, duly verified of , alleging that duly authenticated copies of the last will and testament of said deceased, and of the probate thereof, have been filed in said Court, showing that said will has been duly admitted to probate, in the County of , and State of , and praying that a time and place for hearing said petition be fixed! aQ d due notice thereof given to all persons interested, and that such copy of said will be allowed, filed and recorded in said Court, as and for the last will and testament of said deceased : Thereupon it is ordered, etc. No. 26. PROOF ON PROBATE OF WILL. State or Mjchigan. County of At a session of the Probate Court for said County, held at the Probate Office in the of , on , APPENDIX OF FORMS. [NO. 26 CONTINUED.] the day of , A. D. 18 . Present, , Judge of Probate. In the matter of proving the last will and testament of , late of said County, deceased. Now comes , who being duly sworn and exam- ined as a witness on behalf of the petitioner, to prove said last will and testament, says that he resides in the of , in the County of and State of , that he was acquainted with , late of , in the County of and State of Michigan, deceased, in his lifetime ; that the said deceased at the time of. and for about years immediately previou s to his decease was a resident of aforesaid, as he is informed and believes, that said deceased departed this life at aforesaid, on or about the day of , A. D. 187 , as he is informed and believes, that this deponent is one of the subscribing witnesses to the instrument now on file in this Court, and now shown to him, purporting to be the last will and testament of the said deceased ; that on the day of , A. D. 18 , in the of , in the County of and State of , this deponent saw the said deceased sign and execute the said instrument ; that the said instrument was signed and executed in the presence of , the other subscribing witness thereto ; (or the name of said deceased was signed to said instrument by , in the presence of said deceased, and by his express direction) (or said deceased acknowledged said instrument and the signature thereto to be his, to this deponent and to the other subscribing witness thereto); that the said deceased then aud there requested this deponent and the said to subscribe their names to said instru- ment, as witnesses thereto, and that they did thereupon, then and there, in the presence of the said deceased, subscribe their names to said instrument as witnesses thereto. 6 APPENDIX OF FORMS. [NO. 26 CONTINUED.] And this deponent further says, that the said de- ceased at the time he. so executed the said instrument as aforesaid, was above the age of twenty-one years. and, according to the discernment and belief of this deponent, was of sound mind, and under no restraint whatever. Sworn, taken and subscribed before me, on the day and year first above stated. , Judge of Probate. No. 27. CERTIFICATE OF PROBATE OF WILL. State of Michigan. ) \ as. County of ) At a session of the Probate Court for said County, held at the Probate Office in the of , on the day of , in the year one thousand eight hundred and Present, , Judge of Probate, In the matter of the estate of , deceased. The annexed instrument, purporting to be the last will and testament of said deceased, having been pre- sented for probate by , and this day having been assigned by the Court for hearing said application: And it appearing to the Court by due proof on file that due notice of the hearing of said application has been given to all persons interested, as directed by the Court And the proofs therein having been heard, and it satisfactorily appearing from the evidence before this Court that said signed and duly executed said instrument as or for his last will and testament in the presence of two competent witnesses, and that said witnesses attested and subscribed said instrument as APPENDIX OP FORMS. [NO. 27 CONTINUED.] subscribing witnesses thereto, in the presence of the said , and at his request, and that said , at the time he so signed and executed the said instrument, and at the time of such attestation and subscription thereof by said witnesses, was of full age and sound mind and under no restraint or undue influence. And it further appearing, that said departed this life on the day of 18 , and at the time of decease was an inhabitant of or resident in said County. And the evidence touching the premises being ma- turely considered, it satisfactorily appears to this Court that said instrument is duly proved, and ought to be allowed as the last will and testament of said deceased. It is therefore ordered, adjudged and decreed by this Court, that said instrument be approved, allowed, established and have full force and effect, as the last will and testament of said deceased. And it is further ordered, That the execution of said will be committed, and the administration of the estate of said deceased be granted to said , the execut in said will named, who ordered to give bond in the penal sum of Dollars, with sufficient sureties, as required by the statute in such case made and provided. , Judge of Probate. No. 28. FORM OF DECREE ESTABLISHING A LOST WILL, TO BE INSERTED IN THE ORDINARY DECREE. And it further appearing by due proof that said will was in existence at the testator's death, and was lost or destroyed accidentally or fraudulently since his death, or accidentally or fraudulently before his death, with- APPENDIX OF FORMS. [NO. 28 CONTINUED.] out his consent or knowledge, or was lost or destroyed by said testator when he was not of sound mind.* And it further appearing that a most thorough search has been made for said will, in all places where it might possibly be left or deposited, and that said will cannot be found. And it further appearing by sufficient evi- dence that the following is the substance of every be- quest, provision, and condition of said will, viz : No. 29. CERTIFICATE OF ALLOWANCE OF A WILL PROVED IN ANOTHKR STATE. State of Michigan, j [•as. County of 5 At" a session of the Probate Court for said County, held at the Probate office in the of , on the day of , in the year one thousand eight hundred and Present, . Judge of Probate. In the matter of the estate of , deceased. This day having been appointed by the Court for hearing the petition of , praying amongst other things, for reasons therein set forth, that a certain in- strument, purporting to be a copy of the last will and testament of said deceased, and the probate thereof duly authenticated, and heretofore presented to this Court with said petition, be allowed, filed, and recorded as the last will and testament of said deceased. Now come into Court the said petitioner, . And it satisfac- ily appearing by due proof on file, that a copy of the order of this Court, touching the 'hearing of said peti- tion, made on the day of last past, has been duly published as therein directed, whereby APPENDIX OF FORMS. [NO. 29 CONTINUED.] all parties interested in the premises were duly notified of said hearing And it further satisfactorily appearing to the Court, after a full hearing upon said petition, and on examin- ation of the proofs and allegations of the petitioner , that said deceased was, at the time of his death, a res- ident of the County of , in the State of , and died leaving his last will and testament, which was duly proved and allowed in , of the County of , in the State of , according to the laws thereof, and that he was possessed of estate situate in said County of , on which such will may operate. And the evidence touching the premises being maturely con- sidered, it satisfactorily appears that said copy of said will ought to be allowed in this State as the last will and testament of said deceased : It is therefore ordered, adjudged, and decreed by this Court, that said copy of said last will and testament of said deceased, be allowed, filed and recorded in this Court, as the last will and testament of said deceased, and that the same shall have full force and effect in this State, as such will, agreeably to the statute in such case made and provided: And it is further ordered, that the execution of said last will and testament be committed, and the adminis- tration of the estate of said deceased be granted to , theexecut in said will named, or to as administrator, with the will annexed, who ordered to give bond in the penal sum of dollars, with sufficient sur- eties, as required by the statute in such case made and provided; and upon the same being duly approved and filed, the letters testamentary do issue in the premises. , Judge of Probate. APPENDIX OF FORMS. [NO. 29 CONTINUED.] State of Michigan, ) > ss Probate Court for said County. County of ) Be it remembered, that the annexed and foregoing instriment. being a duly authenticated copy of the last will and testament of , late of the County , in the State of , deceased, which was duly allowed, filed and recorded in said Court, in pursuance of the decree thereof, of which the foregoing is a true, full, and correct copy. In testimony whereof, I have hereunto set my hand, and affixed the seal of said Court at the in said County, this day of , in the year one thous- and eight hundred and seventy - , Judge of Probate. No. 30. ORDER REFUSING TO ADMIT WILL TO PROBATE TO BE INSERTED IN ORDINARY ORDER. And the proofs therein having been heard, and it satisfactorily appearing from the evidence before the Court that said will was not executed and attested as required by law, and that said deceased at the time of the execution of said instrument was not of full age and sound mind and competent to execute a will ; and that the execution thereof by him was procured while he was under restraint and undue influence. It is therefore ordered, adjudged and decreed by this Court, that said instrument, purporting to be the last will and testament of" said deceased, is not his last will and testament, and that the same is null and void, and of no force or effect whatever, and the probate there- of is hereby refused and denied. , Judge of Probate. APPENDIX OP FORMS. No. 31. RESIDUARY LEGATEE'S BOND. State of Michigan, • ss. Probate. Court for said County. County of In the matter of the estate of , deceased. Know all men by these presents, that we , within the State of Michigan, are holden and stand firmly bound and obliged unto , Esq., Judge of Probate in and for the said County of , in the full sum of dollars, lawful money of the United States of America, to be paid unto the said , his success- ors in the said office, or assigns, to the true payment whereof we do bind ourselves and each of us, our and each of our heirs, executors and administrators, jointly and severally, for the whole and in the whole, firmly by these presents. Sealed with our seals: Dated the day of , Anno Domini one thous- and eight hundred and Whereas, the above bounden , is the execu- tor named in the will of said deceased, and ha been appointed , by the probate Court of said County, executor of said will, and is also the residuary legatee of said deceased in said will: Now the condition of this present obligation is such, that if the above bounden , shall well and truly perform, observe and keep the conditions following, to wit: 1. That he shall administer according to law all the goods, chattels, rights, credits and estate of the said deceased, which shall, at any time, come to pos- session, or to the possession of any other person for , and out of the same pay and discharge all debts , and charges chargeable on the same, together with all expenses of administration, and all the legacies mentioned in the will of said deceased, and also all al- lowances made by the Court for the support of the APPENDIX OF FORMS. [NO. 31 CONTINUED.] widow and children constituting the family of the de- ceased during the settlement of the estate. 2. That he shall render a true and just account of administration to the Probate Court aforesaid, within one year, and at least once in each year thereafter, and at any other time when required by such Court : And 3. That he shall perform all orders and decrees of the Probate Court aforesaid, by the said to be per- formed in the premises: Then the before written obli- gation to be void and of none effect, or else to abide and remain in full force and virtue. [L. B.J [L. S.] [L. 8.] County, ss. At a session of the Probate Court in and for said County, holden at , on , the day of , A. D. 18 . I have examined and do approve of the foregoing bond, and the sureties therein, and order the same to be filed and recorded in the Probate Office of said County. , Judge of Probate. State of Michigan, ' County of , the sureties in the foregoing bond being sworn, each for himself says, that he is worth the amount of the penalty in said bond, over and above all debts and legal exemptions. Subscribed and sworn to before me this day of , 18 ■ No. 32. LETTERS TESTAMENTARY. State of Michiran, [•ss. Probate Court for said County. County of ) In the matter of the estate of , deceased. To , of said County, Greeting: APPENDIX OF FOEMS. [NO. 32 CONTINUED.] Whereas, lately departed this life testate, being at the time of his death an inhabitant of , the County of And whereas, at a session of said Probate Court, ho] den at , in said County, on the day of , in the year of our Lord one thousand eight hun- dred and seventy , the last will and testament of said deceased (a copy whereof is hereto annexed), was duly proved, approved, and allowed, wherein you are appointed execut thereof : By reason whereof, the power of committing admin- istration and full disposition of all and singular the goods, chattels, rights, credits and estate whereof the said deceased died possessed, in the State of Michigan, and also the hearing, examining and allowing theaccount of such administration doth appertain unto me, and you have given a bond in the premises which has been duly approved and filed as required by law in that be- half: Now, therefore, trusting in your care and fidelity, I do, by these presents, commit unto you, the , full power and authority to administer and faithfully dispose of according to law, and the will of the said testator, all and singular the goods, chattels, rights, credits and es- tate of said'.deceased, within the State of Michigan, which shall at any time come to your possession, or to the possession of any other person for you, and to ask, gather, levy, recover, and receive all the goods, chattels, rights, credits and estate whatsoever, of said deceased, which to him while he lived and at the time of his death did belong ; and to pay and discharge all debts, lega- cies and charges chargeable on the same, or such divi- dends thereon as shall be ordered and decreed by said Court: Hereby requiring you to make and return to said Court, within thirty days, a true and perfect inven- 7 APPENDIX OF FORMS. [NO. 32 CONTINUED.] ory of all the goods, chattels, rights, credits and real estate of said deceased, which shall come to your posses- sion or knowledge, or to the possession of any other person for you, and also to render a just and true account of your administration to said Court, within one year, and at least once in each year thereafter, and at any other time when required by said Court, and to perform all orders and decrees of said Court by you to be per- formed in the premises. In testimony whereof, I have hereunto set my hand and caused to be affixed the seal of said Probate Court, at , the day of , in the year of our Lord one thousand eight hundred and seventy , Judge of Probate. Recorded in Lib. , Folio No. 33. CLAIMS HEARD BY COMMISSIONERS. ORDER APPOINTING APPRAISERS AND ORDERS OP ALLOWANCE AND LIMI- TATION WHERE THERE IS A WILL. State of Michigan, County of At a session of the Probate Court for said County, held at the Probate office, in the of , on the day of , in the year one thousand eight hun- dred and Present, , Judge of Probate. In the matter of the estate of , deceased; It is ordered, That , of said County, be ap- pointed appraisers to appraise the estate of said deceased. And it is further ordered, that the be allowed one year from this day of , instant, in which to dispose of the estate and pay the debts of said de- ceased. APPENDIX OP FORMS. [HO. 33 CONTINUED.] And upon the application of the said , and after careful examination and hearing had thereon, it is further ordered that an allowance of dollars be and is hereby made for the support of the widow and minor children constituting the family of said deceased, during the progress of the administration of estate. It is further ordered, that six months from this said day of instant, be allowed allowed for cred- itors to present their claims against said estate for ex- amination and allowance, and that , of said County, be appointed Commissioners, to receive, examine, and adjust all such claims against said estate. , Judge of Probate. No. 34. CLAIMS HEARD BY COURT. ORDER APPOINTING APPRAISERS AND ORDERS OP ALLOWANCE AND LIMITATION WHERE THERE IS A WILL. State of Michigan, ) J-ss. County of J At a session of the Probate Court for said County, held at the Probate office, in the of , on the day of , in the year one thousand eight hundred and Present, , Judge of Probate. In the matter of the estate of , deceased. It is ordered, That , of said County, be ap- pointed appraisers to appraise the estate of said deceased. And it is further ordered, that the be allowed one year from this day of , instant, in which to dispose of the estate and pay the debts of said de- ceased. And upon the application of the said , and after careful examination and hearing had thereon, it is APPENDIX OF FORMS, [NO. 34 CONTINUED.] further ordered that an allowance of dollars be and is hereby made for the support of the widow and minor children constituting the family of said deceased, dur- ing the progress of the administration of estate. It is further ordered, that six months from this said day of , instant, be allowed for creditors to present their claims against said estate for examination and allowance ; and that all persons having claims or demands against said deceased, be required to present the same to this Court at the Probate office for said County, on or before the day of next, at ten o'clock in the forenoon of that day, for examination and allowance. , Judge of Probate. No. 35. AFFIDAVIT OF TRANSLATION OF A WILL. State or Michigan, • as. Probate Court for said County. County of In the matter of proving the last will and testament of , deceased , being duly sworn says, that he resides at , and is acquainted and familiar with the language, which is the language in which the annexed will is written, and also is familiar with the English language, so that he can correctly translate said will from said foreign language into the English language, and that he made the annexed translation of said will from the foreign language in which it is written, into the English lan- guage, and that the same is a correct translation of said will and of the whole and every part thereof. Subscribed and sworn to before me , this day of ,18 , APPENDIX OF FORMS. No. 36. REFUSAL BY EXECUTOR TO ACCEPT THE TRUST. State of Michigan, • as. Probate Court for said Comity. County of To , Judge of Probate for said County. In the matter of the Estate of , deceased. The undersigned, who is appointed by said deceased the executor of his last will and testament, respectfully declines to accept said trust, and requests that adminis- tration with the will annexed of said estate, may be granted to the persons by law entitled to the same, or to Dated No. 37. PETITION THAT A WILL BE DELIVERED INTO COURT. State of Michigan. • ss. Probate Court for said Comity. County of ) To , Judge of Probate for said County. In the matter of the estate of , deceased. Your petitioner would respectfully represent to the Court that said deceased died on the day of , 18 , and at the time of his death was an inhabitant of, or resident in, said county, that said deceased, some time previous to his death, made and duly executed accord- ing to law his last will and testament, and that the same is now in the custody of , residing at ', in the County of , in said State, as your petitioner is informed and believes, that said , was duly notified of the death of said deceased, and requested to deliver said will into said Probate Court more than thirty days previous to the filing of this petition, but has neglected, and still neglects, to deliver the same to said Court or to the executors named in said will as required by law, APPENDIX OP FORMS. [NO. 37 CONTINUED.] and has retained and concealed, and is now retaining and concealing, said will with intent to hinder and pre- vent the probate thereof. Your petitioner further represents, that he is one of the heirs-at-law of said deceased, and as he is informed and believes, is a legatee in said will. Your petitioner therefore prays that said may be cited to deliver said will into said Probate Court within days from the filing of this petition, or show cause why he is unable so to do, and that such further proceedings may be had in the premises as required by law and as the court may deem necessary and proper. State op Michigan, ~\ [■ss. County of J The above named petitioner being duly sworn, say that ha read the foregoing petition by signed and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated, on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at , this day of A. D. 18 , before me, No. 38. COMMITMENT FOR REFUSAL TO DELIVER WILL INTO COURT. State of Michigan, County of To the Sheriff or any Constable of said Couuty, and to the Keeper of the Common Jail of said County, Greeting: Whereas, application was made to the Probate Court for said County by alleging that he is one of the heirs-at-law of , late of said County deceased, APPENDIX OF FORMS. [NO. 38 CONTINUED.] and that was then retaining and concealing the last will and testament of said deceased with intent to hinder and prevent the probate thereof, and thereupon said was duly cited to appear and answer thereto, and deliver said will into said Probate Court or show cause why he is unable so to do ; and whereas said neglects and refuses to appear and deliver said will into, said Probate Court, or show cause why he cannot obey the said order of the court ; it is therefore ordered, that said be committed to the common jail of said County, and there be kept in close confinement until he shall deliver said will into said Probate Court, or show good cause why he cannot comply with the order of the court in the premises. These are, therefore, to command you, the said Sheriff or Constable, in the name of the people of the State of Michigan, forthwith to convey and deliver the said into the custody of the Keeper of the Common Jail of said County : And you, the Keeper thereof, are hereby required, in the name of the said people, to receive the said into your custody, in the said Jail, and him there safely keep until he shall comply with the order of the court as aforesaid, or until he shall be thence discharged by due course of law. Given under my hand and seal, at . in said County of , this day of , A. D. 18 , , Judge of Probate. No. 39. PETITION THAT EXECUTOR, ETC., RENDER AN ACCOUNT. State of Michigan. ■ ss. Probate, Court for said County. County of To , Judge of Probate for said County. In the matter of the estate of , deceased. Your petitioner would respectfully represent to the APPENDIX OP FORMS. [HO. 39 CONTINUED.] court that he is interested in said estate as of said deceased, that was on the day of , 18 , duly appointed of said deceased, and gave a bond in the penal sum of dollars, with as sureties, for the faithful discharge of said trust, which was duly approved, as is shown by the files and records of said court; that by an order of said court made on the day of , 18 , the time for disposing of the estate and paying the debts of said deceased was limited to one year from the date of such order, and no further time has been granted by the court for that pur- pose, and that said has neglected, and still neglects, to dispose of the estate and pay such debts or render any account of his administration. Your petitioner therefore prays that said may be cited before said court, to render an account of his administration, and show cause why he has not settled and closed the matters of said estate, and in case of his failure so to do that he may be discharged from his office as such of said deceased, and that your petitioner may be authorized to bring an action in the Circuit Court for said County, upon the said bond of said , in the name of the Judge of Probate of said County, but for the benefit of your petitioner, for the recovery of all damages sustained by such neglect of said Dated State op Michigan, 1 County of J The above named Petitioner being duly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, APPENDIX OP FORMS. [NO. 39 CONTINUED.] and as to those matters , believe them to be true. Subscribed and sworn to at , this day of , A. D. 18 , before me, No. 40. BOND TO INDEMNIFY EXECUTOR ON PAYING LEGACY BEFORE ESTATE IS SETTLED. State or Michigan, ) >• ss. Probate Court for said County. County of ) In the matter of the estate of , deceased. Know all men by these presents, that we as principals and as sureties, are held and firmly bound unto , Judge of Probate for said County, in the sum of Dollars, lawful money of the United States of America, to be paid to the said or to his successors in the said office or assigns, to which pay- ment well and truly to be made bind heirs, executors and administrators, and each and every of them, firmly by these presents. Sealed with seal, dated the day of , one thousand eight hundred and seventy The condition of this obligation is such, that where- as as executors of the last will and testament of , deceased (or administrator with the will annexed, etc.,) has paid to said , one of the legatees in said will, the sum of dollars, it being the amount of the legacy given to said legatee in said will; now therefore, if the said legatee, shall pay his just proportion of all the debts, demands, charges, expenses and allowances, now made and established, or that may be hereafter made and established or recovered against said estate, and shall indemnify said executor against all loss and damage on account of such payment, and shall perform APPENDIX OF FORMS. [NO. 40 CONTINUED.] all orders and decrees of the Probate Court aforesaid, by the said to be performed in the premises: then the before written obligation to be void and of none effect, or else to abide and remain in full force and virtue. [seal.] [seal.] [SEAL.] County, ss. At a session of the Pro- bate Court in and for said County, holden at on the day of A. D. 18 . I have examined and do approve of the foregoing bond and the sureties therein, and order the same to be filed and recorded in the Probate Office of said County. , Judge of Probate. State of Michigan, | j-ss. County of ) The sureties in the foregoing bond being sworn, each for himself says, that he is worth the amount of the penalty in said bond over and above all debts and legal exemptions. Subscribed and sworn to before me , this day of , 18 . No. 41. RESIGNATION OF AN EXECUTOR, ADMINISTRATOR OR GUARDIAN. ■ ss. Probate Court for said County. State of Michigan, County of To , Judge of Probate for said county. In the matter of the estate of I , having been heretofore appointed , of said , do hereby tender my resignation as such , and respectfully request that a day be fixed for APPENDIX OF FORMS. [NO. 41 CONTINUED.] hearing my final account as such , and when the same has been duly examined and allowed, that I may be released from all further liability and responsibility, and that my bond as such may be cancelled. Dated No. 42. PETITION FOR REMOVAL OF AN EXECUTOR, ADMINISTRATOR OR GUARDIAN. State or Michigan, ) > ss. Probate Court for said County. County of ) To , Judge of Probate for said County. In the matter of the estate of Your petitioner would respectfully represent to the Court that he is interested in said estate, as of said ; that was on the day of , 18 , duly appointed by said court of said , and accepted the trust, and has acted as such since that time. Your petitioner further represents that said should be removed from his office as such , for the following reasons, viz : Your petitioner therefore prays, that a day be fixed for hearing this petition, and due notice thereof given to said , as the court shall direct, and that said may be removed from his said office as , as afore- said, and that he be required forthwith to render an account of his administration of said estate, and that such farther and other order and proceedings may be had in the premises as required by law. State of Michigan, County of The above named petitioner being duly sworn, say that ha read the foregoing petition by APPENDIX OF FORMS. [NO. 42 CONTINUED.] signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at , this day of , A. D. 18 , before me No. 43. ORDER REMOVING EXECUTOR, ADMINISTRATOR OR GUARDIAN. State of Michigan, ) > sa. County of ) At a session of the Probate Court for said County, held at the Probate office in the of , on , the day of , in the year one thousand eight hundred and Present, , Judge of Probate. In the matter of the estate of On reading a.nd filng the petition, duly verified, of , showing that he is interested in said estate, and that there is good cause for the removal of from his office as of said , as in said petition alleged, and it appearing by evidence on file in said Court, that due notice has been given to said of the filing of said petition and the hearing thereof, and after a full hearing and examination in the premises it appearing that said has become unsuitable to discharge (or incapable of discharging) the trust aforesaid, it is there- fore ordered that said be, and he hereby is, removed from his said office as > , as aforesaid, and that he render to the Court an account of his administration of said estate within days from the date of this order. , Judge of Probate. APPENDIX OP FORMS. No. 44. PETITION FOR DISTRIBUTIVE SHARE OF THE ESTATE BY CHILD OMITTED IN THE WILL BY ACCIDENT OR MISTAKE. State of Michigan, ) >• ss. Probate Court for said County. County of ) To , Judge of Probate for said County. In the matter of the estate of , deceased. Tour petitioner would respectfully represent to the Court that he has been duly appointed guardian of , a minor child of said deceased, and that said deceased left a last will and testament which was duly admitted to probate by said Court, on the day of , 18 , but made no provision for his said child, either in his lifetime or in his said last will and testament. Your petitioner further represents that such omission was not intentional, but was caused by mistake or acci- dent, for the following reasons, viz: Your petitioner further represents that the final account of the executor of the will of said deceased has been rendered and allowed, and shows that there is a balance of personal and real estate, or the proceeds of the sale of real estate, to be distributed among the lega- tees and heirs-at-law of said deceased. Tour petitioner therefore prays, that a day be fixed for hearing this petition, and due notice thereof given to all parties interested, as the Court shall direct, and that the Court make a decree, giving to said the same share or portion of the estate of said deceased as if he had died intestate, to be assigned to said , as pro- vided by law in the case of intestate estates, and as the Court shall direct, in accordance with the provisions of the statute in such case made and provided. State of Michigan, 1 County of ) The above named petitioner being duly sworn, say that ha read the foregoing petition by APPENDIX OF FORMS. [NO. 44 CONTINUED.] signed and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated, on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at , this day of , A. D. 18 , before me No. 45. PETITION FOR APPOINTMENT OF TRUSTEE. Statb or Michigan, ; ss. Probate Court for said County. County of To , Judge of Probate for said County. In the matter of the estate of , deceased. Your petitioner would respectfully represent to the Court, that he is interested in said estate as of said deceased ; that said deceased departed this life on the day of , 18 , leaving last will and testament, and administration of said estate was on the day of , 18 , duly granted by said Court to , who accepted and entered upon the execution of said trust, and the administration and settlement of said estate has been continued to the present time. Your petitioner further represents that in the further settlement of said estate, it will be convenient and neces- sary to have a trustee appointed for the purpose of for the following reasons: Your petitioner therefore prays, that a day be fixed for hearing this petition, and due notice thereof given to all persons interested, as the Court shall direct, and that be appointed trustee for the purpose aforesaid, in accordance with the provisions of the statute in such case made and provided. State of Michigan. APPENDIX OF FORMS. [HO. 45 CONTINUED,] > SS. County of ) The above named petitioner being duly sworn, say that ha read the foregoing petition by signed and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at , this day of , A. D. 18 , before me, ss. Probate Court for said County. No. 46. TRUSTEE'S BOND. State of Michigan. \ County of In the matter of the estate of , deceased. Know all men by these presents, that we , within the State of Michigan, are holden and stand firmly bound and obliged unto , Esq., Judge of Probate in and for the said County of , in the full sum of dollars, lawful money of the United States of America, to be paid unto the said , his success- ors in the said office, or assigns, to the true payment whereof we do bind ourselves, and each of us, our and each of our heirs, executors and administrators, jointly and severally, for the whole and in the whole, firmly by these presents. Sealed with our seals : Dated the day of , Anno Domini one thous- and eight hundred and Whereas, the above bounden ha been ap- pointed by the Probate Court of said County, of the estate of , late of said County , deceased: Now the condition of this present obligation is such, APPENDIX OF FORMS. [NO. 46 CONTINUED.] That if the above bounden shall well and truly perform, observe and keep the conditions following, to wit: 1. That he shall make and return to the Probate Court aforesaid, within thirty days, a true and perfect inventory of all the goods, chattels, rights, credits and estate of the said deceased, which shall come to possession or knowledge, or to the possession of any other person for 2d. That he shall administer according to law and , all the goods, chattels, rights, credits and estate of the said deceased, which shall, at any time, come to possession, or to the possession of any other per- son for 3d. That he shall account before the said Probate Court for all moneys and effects received by him as such tru stee. at such time or times as the Judge of Pro- bate shall order. 4th. That he shall faithfully perform all the duties of the said trust to which he is appointed. 5th. That he shall perform all orders and decrees of the Probate Court aforesaid, by the said to be performed in the premises : then the before written obli- gation to be void and of none effect, or else to abide and remain in full force and virtue. [L. S.j [L. S.] [L. S.] County, ss. At a session of the Probate Court in and for said County, holden at , on , the day of , A. D. 18 . I have examined and do approve of the foregoing bond, and the sureties therein, and order the same to be filed and recorded in the Probate Office, of said County. , Judge of Probate. APPENDIX OP FORMS. [NO. 46 CONTINUED.] State of Michigan, County of , the sureties in the foregoing bond, being sworn, each for himself, says that he is worth the amount of the penalty in said bond over and above all debts and legal exemptions. Subscribed and sworn to before me this day of ,18 . No. 47. ORDER APPOINTING TRUSTEE AND APPRAISERS. State or Michigan, County of At a session of the Probate Court for said County, held a. the Probate Office, in the of , on , the day of , in the year one thousand eight hundred and Present, , Judge of Probate. In the matter of the estate of , deceased. This being the day assigned by this Court , for hearing the petition of , praying that a trustee may be appointed for the purpose of . And it appearing to the Court by due proof on file, that a copy of the order of this Court touching the hearing of said petition, made on the day of last past, has been duly published as in said order directed, and after a full healing upon said petition, it further satisfactorily appearing that such appointment has become necessary or convenient in the further settlement of said estate for the purposes aforesaid. It is ordered and decreed by the Court, now here, that the said be, and he hereby is, appointed trus- tee for the purposes herein mentioned, with all the powers and duties prescribed by law. 9 APPENDIX OF FOBM8. [NO. 47 CONTINUED.] And it is further ordered, that, of said County, be and are appointed appraisers to appraise the estate of said deceased, which shall come into the hands of said trustee. , Judge of Probate. No. 48. WARRANT OF APPOINTMENT OF TRUSTEE. State of Michigan, j [■ ss. Probate Court for said Cownty County of ) In the matter of the estate of , deceased. To , of said County, Greeting: Whereas it has been made to appear to the satisfac- tion of the Court that it has become necessary or con- venient, in the further settlement of said estate, that a trustee should be appointed for the purpose of , and you having been duly appointed trustee for that purpose, and having given a bond in the premises which has been duly approved and filed as required by law : Now therefore, trusting in your care and fidelity, I do by these presents, pursuant to the power and author- ity to me granted, constitute and appoint you trustee for the purposes aforesaid, with all the powers and duties prescribed by law, and with full power and authority to take charge of, manage, invest and distribute, any of said estate that may come into your possession or under your control, according to law and as the Court shall direct. Hereby requiring you to make and return to said Court within days, a true and perfect inventory of all of said estate that shall come into your possession or under your control as aforesaid; and at such time or times as the judge of probate shall order, to truly APPENDIX OF FORMS. [NO. 48 CONTINUED.] account for all the moneys and effects received by you as such trustee, and upon the termination of this trust, to pay over and deliver all the moneys and effects remaining in your hands, to the person or persons law- fully entitled thereto, under the order of decree of said Court, and perform all the orders and decrees of said Court by you to be performed in the premises. In testimony whereof, I have hereunto set my hand and caused to be affixed the seal of said Probate Court, at , the day of , in the year of our Lord one thousand eight hundred and seventy , Judge of Probate. Recorded in Lib. , Folio No. 49. RECEIPT FOE "WILL FILED. State of Michigan, ) V ss. Probate Court for said County. County of ) I do hereby certify, that , of , in said County, has this day deposited in this office a sealed package, said to contain and purporting to be the last will and testament of. , of , in said County. Witness my hand and the seal of the Probate Court of said County, at the , this day of , A. D. 18 . No. 50. FORMAL PARTS OF A WILL. I, John Doe, being of full age and sound mind, do hereby make and execute this my last will and testa- ment, as follows : First. I do hereby appoint Richard Roe the execu- tor of this will, with full power to sell and convey all APPENDIX OF FORMS. [NO. 50 CONTINUED.] my estate, both real and personal, without asking or obtaining license from any Court for that purpose ; and I do also hereby appoint said Richard Roe guardian of all my minor children until they shall respectively become of age. Secondly. I hereby make the following devises and bequests, upon the express condition that they shall be in lieu of, and in full payment and satisfaction of all • the claims, right, title and interest of the legatees and devisees hereinafter named in and to my estate. Thirdly. I give, devise and bequeath to In witness whereof I have hereunto subscribed my name, this fifteenth day of June, A. D. 1875. John Doe. John Doe, the above named testator, did on the fif- teenth day of June, 1875 (subscribe his name to the fore- going instrument in the presence of us, as witnesses, and acknowledged said instrument to be his) (or ac- knowledge the foregoing instrument and the signature thereto to be his to each of us), and we, the undersigned, not being interested therein, at the request of said John Doe, and in his presence, and where he could see us sign our names, did, on the day above named, subscribe our names hereto as witnesses. Simon Smith, of Ann Arbor, Michigan, John Jones, " " " (Codicil to a Will) Whereas, 1, John Doe, did, on the fifteenth day of June, A. D. 1875, make and execute my last will and testament, in the presence of Simon Smith and John Jones, as witnesses, now I do hereby make and execute this instrument as a codicil to said will, as follows: First, etc. Add the aame witness clause as to will above, and execute with the same formalities. APPENDIX OF FORMS. No. 51. APPLICATION FOR COMMISSION TO TAKE TESTIMONY. State ob Michigan, ■ ss. Probate Court for said County. County of To , Judge of Probate for said County. In the matter of the estate of , Your petitioner would respectfully represent to the court that is a witness whose testimony is necessary to be used on the hearing in the matter of now pending before said court (or before the commissioners appointed to receive, examine and adjust all claims against said estate), that such witness now resides out of this State, and in , in the County of , and State of , (or within this State, at , in the County of , and more than thirty miles from the place of hearing said cause, or that such witness by reason of age or bodily infirmity, to- wit: is unable to attend the hearing of said cause). Your petitioner further represents, that he has fully and fairly stated his case in this matter, to Esq. , his counsel therein, and has fully and fairly disclosed to his said counsel the facts he expects to prove by said witness, and that said is a material witness for your petitioner in this cause, and that he cannot safely proceed to a hearing in this cause without the testimony of said witness, as he is advised by his said counsel, and verily believes. Your petitioner therefore prays, that a day be fixed for hearing this petition, and due notice thereof given to all persons interested, as the court shall direct, and that a commission be issued under the seal of said court to be directed to , to take the testimony of such witness, and that all proceedings in this cause may be staid until the execution and return of said commission. >ss. APPENDIX OP FORMS. [HO. 51 CONTINUED.] State of Michigan, County of The above named petitioner being duly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at , this day of A. D. 18 , before me, No. 52. NOTICE OP APPLICATION FOR COMMISSION TO TAKE DE- POSITIONS. State or Michigan, ) > sa. Probate Court for said County. County of ) In the matter of To Please take notice that there has been filed in said court, a petition for a commission to take the testimony of the witnesses therein mentioned, for the reasons therein fully alleged, with a copy of which you are herewith served, and that said court has fixed the day of , next, at o'clock, in the noon for hearing said petition, and at the time, or as soon there- after as counsel can be heard, the matter of said petition will be brought on for hearing. Dated , Attorney for said Petitioner. I Vas. APPENDIX OF FORMS. No. 53. ORDER THAT COMMISSION ISSUE TO TAKE DEPOSITIONS. State of Michigan, County of At a session of the Probate Court for said County, held at the Probate office, in the of , on the day of , in the year one thousand eight hundred and Present, , Judge of Probate. In the matter of the estate of On reading and filing the petition of , for a commission to take the testimony of for the reasons therein stated, to be used on the hearing, in the matter of and also evidence that due notice of the hearing of said petition has been served upon the adverse parties who have appeared in this matter, at least ten days before the day fixed for the hearing of the same, and after a full hearing and examination in the premises: it is ordered that a commission issue out of, and under the seal of this court, directed to , residing at , to examine said witness on oath in this cause, on the part of said petitioner, on the direct and cross inter- rogatories to be annexed to said commission, and that the same when executed may be returned by mail, addressed to the Judge of Probate of said County, and that all proceedings in this cause be staid until the execution and return of said commission. And that any of the parties to this matter have leave to join in the said commission. , Judge of Probate. APPENDIX OF FORMS. No. 54. NOTICE OF SETTLING INTERROGATORIES. State of Michigan. ss. Probate Court for said County. County of In the matter of To Please take notice that the direct interrogatories hereto.annexed, to be attached to the commission issued in the above matter, and also the cross interrogatories thereto proposed by you, will be settled before the Judge of Probate for said County, at his office in the of , in said County, on the day of , next at o'clock in the noon, or as soon there- after as counsel can be heard. Dated Yours, etc., , Attorney for No. 55. DIRECT CROSS INTERROGATORIES. State op Michigan. • ss. Probate Court for said County. County of ) In the matter of proving the last will and testament of , deceased. Interrogatories to be administered to , a witness to be produced, sworn and examined in the above mat- ter, under and by virtue of the annexed cemmission, and on behalf of the parties therein mentioned. First Interrogatory. What is your name, age, and occupation, and where do you now reside? Second Interrogatory. Were you acquainted with , late of , deceased, in his lifetime? State how long and how intimately you were acquainted with him? APPENDIX OF FORMS. [NO. 55 CONTINUED.] Third Interrogatory. Examine the instrument in writing hereto annexed, dated , purporting to be the last will of said deceased, and state whether you were present at the execution of the same, and if so, when and where? State particularly what took place at the time of the execution of said instrument? Who was present? What was done and said, and by whom? Fourth Interrogatory. What was said in regard to the witnessing the execution of the said instrument, and by whom ? Fifth Interrogatory.. Who signed said ins'trument as witnesses, and where were they when they signed their names as witnesses? Sixth Interrogatory, What was the age of said deceased ? And what was the condition of his mind as regards soundness or unsoundness, at the time said instrument was executed? Seventh Interrogatory. Do you know any other matter or thing relating to the execution of said instru- ment, and the mental condition of said deceased at the time of its execution, or any indication that he was un- der restraint or subject to the influence of any person at that time? If so, state the same as fully and partic- ularly as if you had been specially and particularly interrogated in relation thereto. , Attorney for Cross Interrogatories. Interrogatories to be administered, by way of cross- examination, to , etc., (same as above). First cross-interrogatory. Do you, etc., (proceeding as above in direct interrogatories.) , Attorney for The foregoing direct and cross-interrogatories settled and allowed this day of , 18 . , Judge of Probate. 10 APPENDIX OF FORMS. No. 56. COMMISSION TO TAKE TESTIMONY, PROBATE COURT. State ot Michigan, ) V ss. Probate Court for said County. County of ) In the matter of the estate of , deceased. In the name of the People of the State of Michigan. To , and of , in the State of , Greeting : Whereas, it appears to the said Probate Court that are material witnesses in a certain cause now depending therein, in the matter of , and that the said witnesses are not residents of the State of Mich- igan, or reside more than thirty miles from the place of hearing of said matter, or by reason of age or bodily infirmity will be unable to attend in person the hearing of said matter, we, in confidence of your prudence and fidelity, have appointed you, or either of you, commis- sioners to examine the said , and therefore we authorize and empower you, or either of you, at certain days and places to be by you, or either of you, for that purpose appointed, diligently to examine the said wit- nesses, or each of them, as shall be produced before you, and each apart, on the interrogatories annexed to this commission, on their respective corporal oaths (or affirm- ations) first taken before you, or either of you, and cause the said examination to be reduced to writing and signed by said witnesses respectively, and by yourselves, or such of you as are present at the taking of the same, and then return the same, annexed to this commission, into our said Court, with all convenient speed, enclosed under your seals or the seals of such as are present at the execution of this commission, and you will in all things be governed in the business by the instructions hereto annexed. Witness, the Honorable , Judge of Probate for said County, this day of , in the year of our Lord one thousand eight hundred and seventy APPENDIX OF FORMS. [NO. 56 CONTINUED.] The execution of the foregoing commission appears in certain schedules hereto annexed. > Commissioners. Instructions to Commissioners. The person to whom such commission shall be directed, or any one of them, unless otherwise expressly directed therein, shall execute the same as follows: 1st. They, or any one of them, shall publicly admin- ister an oath to the witness named in the commission, that the answers gi ven by them to the interrogatories proposed to them shall be the truth, the whole truth, and nothing but truth. 2d. They shall cause the examination of each witness to be reduced to writing, and to be subscribed by him and certified by such of the commissioners as are pres- ent at the taking of the same. 3d. If any exhibits are produced and proved before them, they shall be annexed to the deposition to which they relate, and shall, in like manner, be subscribed by the witness proving the same, and shall be certified by the commissioners. (This section must be understood to refer to such papers as can be produced upon the examination.) If the paper referred to be a record, not subject to the control of the party or the commissioners, it will be sufficient to annex a copy, and the original may be produced on the trial, separate from the com- mission. 4. The commissioners shall subscribe their names to each sheet of the depositions taken by them ; they shall annex all the depositions and exhibits to the commission, upon which their return shall be indorsed ; and they shall close them up under their seals, and shall address the same, when so closed, to the judge of the court from APPENDIX OF FORMS. [NO. 56 CONTINUED.] which the commission issued, as shall have been direct- ed on the commission, at his place of residence. 5th. If there shall be a direction on the commission to return the same by mail, they shall immediately deposit the packet, so directed, in the nearest postoffice. 6th. If there be direction on the commission to return the same by an agent of the party who sued out the same, the packet, so directed, shall be delivered to such agent." Mode op Administering Oaths. Sec. 93. "The usual mode of administering oaths, now practiced in this State, by the person who swears, holding up the right hand shall be observed in all cases, in which any oath may be administered by law, except in the cases herein otherwise provided." Sec. 94. "When the court, magistrate, or other offi- cer, before whom any person is to be sworn, shall be satisfied that such person has any particular mode of swearing, which is, in his opinion, more solemn or obli- gatory, than holding up the hand, such court or officer may adopt that mode of administering the oath." Sec. 95. "Every person conscientiously opposed to taking an oath, shall, when called upon to take an oath, be permitted, instead of swearing, solemnly and sin- cerely to affirm, under the pains and penalties of per- jury." Sec. 96. "No person shall be deemed incompetent as a witness in any court, matter or proceeding, on account of his opinions on the subject of religion ; nor shall any witness be questioned in relation to his opinion therein, either before or after he shall be sworn." Parties to suits and proceedings may be witnesses therein in their own behalf or otherwise, and their depo- sitions may be taken and used the same as other wit- nesses. No person shall be excluded from giving evi- APPENDIX OF FORMS. [NO. 56 CONTINUED.] deuce on account of any crime, or of any interest in any suit or proceeding or its event, or of any marital or oth- er relationship to the parties, but all these may be shown to affect the credibility of the witness. L. 1875, p. 184, Act No. 155. Sec. 101. That when a suit or proceeding is prosecuted or defended by the heirs, assigns, devisees, legatees or personal representatives of a deceased person, the opposite party, if examined as a witness on his own behalf, shall not be admitted to tes- tify at all in relation 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 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 the deceased partner, and not within the knowledge of any one of the surviv- ing partners. The above instructions should be strictly pursued throughout. The commission may be executed by any one of the commissioners, without the others. Form of Oath. "You do solemnly swear, that the answers given by you to the interrogatories proposed to you, shall be the truth, the whole truth, and nothing but the truth — so help you Grod." Form of Affirmation. "You do solemnly and sincerely affirm, that the answers given by you to the interrogatories proposed to you, shall be the truth, the whole truth, and nothing but the truth. This you do under the pains and penal- ties of perjury." APPENDIX OF FORMS. [NO. 56 CONTINUED.] And in all cases certify the mode of administering the oath. Fokm or Caption. Deposition of , of , in the State of , a witness produced, sworn, and examined,' on the day of , A. D. 18 , at , in the said State of , by virtue of a commission issued out of the Pro- bate Court for the County of , in the State of Mich- igan, on the day of , A. D. 18 , and direct- ed to us (or me), , or either of us, commissioners for the examination of , witness in a cause pending in said Court, in the matter of , on the part of Having read said commission, and the instructions thereto annexed, and having administered an oath to said witness, that the answers given by him to the inter- rogatories proposed to him, should be the truth, the whole truth, and nothing but the truth, I (or we,) pro- ceed to the examination as follows, viz: , of , in the State of , aged and upwards, a witness produced, sworn and examined on the part of the in said cause, deposeth as fol- lows, viz: 1. To the first interrogatory, this deponent saith that he 2. To the second interrogatory, this deponent saith Under this head and this manner, you will proceed with the examination of the witness on all the interrog- atories (and cross-interrogatories if any), taking down the answer to each. You will yourselves ask such questions arising on the interrogatories, as you deem necessary in order to elicit the whole truth. If there be one or more interrogatories to which the witness cannot depose, knowing nothing of the matters therein con- tained, let the answer be as follows: APPENDIX OF FORMS. [NO. 56 CONTINUED.] "To the interrogatory, this deponent saith, that he knows nothing and can depose nothing to the mat- ters therein contained." The witness must subscribe his name to the deposition, when engrossed, and on the margin of each sheet the commissioners will also write their names. At the bottom of the deposition, after it is signed by the witness, commissioners will add their certificate in substance as follows: vss. State of County of ) On the day of , A. D. 18 , at the , in said County and State, personally appeared before us ', one of the witnesses above named, and after having taken the oath prescribed in the instructions annexed to the com mission mentioned in the caption to the above deposition, which oath was administered by , and taken by said witness, with uplifted hand, (or by whatever other mode,) declared that the forego- ing deposition by him subscribed, contains the truth, the whole truth, and nothing but the truth. The depo- sition was reduced to writing by , one of the com- missioners, (or by a "disinterested person," in our presence,) (or "by the witness himself.") > Commissioners. If any exhibits are offered and proved, add to the foregoing certificate as follows, to wit : ' ' The paper writ- ing hereto attached and marked as exhibit , was produced and proved before us by the witness , as by reference to his examination may appear." When you have gone through with the witness and his deposition is engrossed and subscribed by him, you will annex the interrogatories and deposition to the APPENDIX OF FORMS. [NO. 56 CONTINUED.] commission with tape, the tie of which you will seal, and write and subscribe on the back of the commission the following return: "The execution of the foregoing commission appears in certain schedules hereunto annexed." V Commissioners. When the whole is completed and tacked together, as above directed, enclose it in a letter, or package, seal it, and direct it as follows : To , Esq., Judge of Probate for the County of , Michigan. The within deposition of , to be read in a 'cause pending before the Probate Court for the County of , was taken, sealed up and transmitted by j- Commissioners. No. 57. PETITION FOR THE APPOINTMENT OF GUARDIAN BY PARENTS, OR BY THE SURVIVING PARENT. State ov Michigan, ) > S3. Probate. Cowtfor said County. County of ) To , Judge of Probate for said county. In the matter of the estate of , minors. Your petitioner would respectfully represnt to the Court that has minor child whose name and age as follows: of the age of years on the day of , 18 , and Your petitioner further represents that said minors are inhabitants of or residents in said County, and are APPENDIX OP FOBMS. [NO. 57 CONTINUED.] possessed of and estate, situate and being in said County, and elsewhere, and that the estimated value of the personal estate is the sum of dollars, and of the real estate the sum of dollars or there- about, as your petitioner is informed and verily believes. Your petitioner further represents that is the of said minors, and that , the of said minors, is dead, and that it is necessary that a guardian be appointed of the and estate of said min- ors, to have the care and management of their estate, and the custody of the person of said , and the care of education. Your petitioner therefore prays, that may be appointed guardian of said minors as aforesaid, accord- ing to the provisions of the statute in such case made and provided. Dated State of Michigan, County of The above named petitioner .being duly sworn, say that ha read the foregoing petition by signed and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at , this day of , A. D. 18 , before me No. B7i. PETITION FOR APPOINTMENT OF GUARDIAN FOR MINORS BY PERSONS OTHER THAN THE PARENTS. State op Michigan, • as. Probate Court for said County. County of To , Judge of Probate for said County. In the matter of the estate of , minors. 11 APPENDIX OP FORMS. [NO. 5J% CONTINUED.] Your petitioner would respectfully represent to the Court, that is the of said minors, and that their names and ages are as follows : , of the age of years on the day of , 18 , and That said minors are now inhabitants of, or residents in, said County, and are possessed of and estate, situate and being in said County and elsewhere, and that the estimated value of the personal estate is the sum of dollars, and of the real estate, the sum of dollars, or thereabout, as your petitioner is informed and verily believes. Your petitioner further represents that the names and residence of the parents and next of kin of said minors, and other persons interested in said estate, as your peti- tioner is informed and believes, are as follows: Your petitioner further represents that the said par- ents of said minors are incompetent to transact their own business, and are otherwise unsuitable to have the cus- tody of said minors and the care of their education, and the management of their estate, for the following reasons, viz: Your petitioner further shows that for the reasons herein stated, it is necessary that a guardian of the per- son and estate of said minors be appointed to have the custody of said minors and the care of their education, and the care and management of their estate. Your petitioner therefore prays, that a day be fixed for hearing this petition , and that due notice thereof be personally served upon the persons interested, as aforesaid, and that , or some other suitable per- son may be appointed guardian of the person and estate of said minors, according to the provisions of the stat- ute in such case made and provided. APPENDIX OP FORMS. [no. S7% continued.] [■ss. State of Michigan, County of The above named petitioner being duly sworn, say that ha read the foregoing petition by signed and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at , this day of , A. D. 18 , before me, No. 58. PETITION FOE THE APPOINTMENT OF GUARDIANS OF INSANE OR INCOMPETENT PERSONS AND SPENDTHRIFTS. State of Michigan. ) > ss. Probate Court for said County. County of ) To , Judge of Probate for said County. In the matter of appointing a guardian of , an alleged Your petitioner would respectfully represent to the Court, that he is a of said ; that said is of the age of years, and an inhabitant of, or resi- dent in, said County, and is possessed of and estate, situate and being in said County and elsewhere, and the estimated value of the personal estate is the sum of dollars, and of the real estate tne sum of dollars, or thereabout, as your petitioner is informed and verily believes. Your petitioner further represents, that it is neces- sary that a guardian be appointed, of the person and estate of said , for the following specific reasons, viz: APPENDIX OF FORMS. [NO. 58 CONTINUED.] Your petitioner further represents that the names and residence of the next of kin of said , and other per- sons interested in said estate, as your petitioner is informed and believes, are as follows: Tour petitioner therefore prays, that a day be fixed for hearing this petition, and that a citation issue, to be personally served upon said , and upon some one of his nearest relatives, if any, not less than fourteen days before the return day thereof, requiring them to appear, and show cause, if any, why a guardian should not be appointed as aforesaid, and after a full hearing and examination in the premises, that may be appointed guardian of the person and estate of said , according to the provisions of the statute in such case made and provided. Dated. State of Michigan, ) \ ss. Probate Court for said County. County of ) The above named petitioner being duly sworn, say that ha read the foregoing petition by signed and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated, on information and belief, and as to those matters , believe them to be true. Subscribed and sworn to at , this day of , A. D. 18 , before me, No. 59. NOMINATION OF GUARDIAN. State of MroHiGAN. County of At a session of the Probate Court for said County, held at the Probate office in the of , on , APPENDIX OF FORMS. [NO. 59 CONTINUED.] the day of A. D. 18 . Present, , Judge of Probate. In the matter of the estate of , minor. On reading and filing the petition, duly verified, of , praying for the appointment of a guardian for said minor, it appearing satisfactorily to the said Court, that the said is under the age of twenty-one years, and above the age of fourteen years, that he resides in said County of , and more than ten miles from the Dlace of holding this Court ; it is ordered that the nomi- nation of a guardian by the said , be made before, and certified to, this Court by a Justice of the Peace of said County of , or the Township Clerk for the Township where the said minor reside . , Judge of Probate. State of Michigan, County of To the Judge of Probate for said County : The minor named in the foregoing order do nominate of to be guardian, and re- quest appointment accordingly. State of Michigan, County of I, in and for , do hereby certify that on this day of , A. D. 18 , the above named to me well known as the person described in the foregoing order, personally appeared before me and nominated to be guardian, and in my presence subscribed the foregoing instrument to that effect. APPENDIX OF FORMS. No. 60. GUARDIAN'S BOND, GENERAL AND SPECIAL. State of Michigan, J > ss. Probate Court for said County. County of ) In the matter of the estate of , Know all men by these Presents, That we, within the State of Michigan, are holden, and stand firmly bound and obliged unto , Esq., Judge of ' Probate in and for the said County of , in the full sum of dollars, lawful money of the United States of America, to be paid unto the said , his successors in the said office, or assigns ; to the true payment whereof, we do bind ourselves, and each of us, our and each of our heirs, executors and administrators, jointly and severally, for the whole, and in the whole, firmly by these presents. Sealed with our seals. Dated the day of , Anno Domini one thousand eight hundred and Whereas, the above bounden ha been ap- pointed by said Probate Court, guardian unto , he being . Now, the condition of this present obliga- tion is such, that if the above bounden shall well and truly perform, observe and keep the conditions following, to-wit: 1st. That he shall make a true inventory of all the real estate, and of all the goods and chattels, rights and credits of said Ward , that shall come to possession or knowledge, and return the same into the said Probate Court, at such time as the Judge thereof shall order. 2d. That he shall dispose of and manage all such estate and effects according to law, and for the best in- terest of the said Ward , and faithfully discharge trust as such guardian . APPENDIX OF FORMS. [no. 60 continued.] 3d. That he shall render an account, on oath, of the property in hands, including the proceeds of all the real estate which may he sold by , and of the management and disposition of all such property, within one year after appointment, and at least once in each year thereafter, and at such other times as the Judge of Probate shall direct ; and 4th. At the expiration of trust he shall settle accounts with the Judge of Probate, or with the said Ward or legal representatives, and pay over and deliver all the estate and effects remaining in hands, or due from on such settlement, to the person or persons who shall be lawfully entitled thereto ; then this obligation shall be void, otherwise it shall remain in full force and effect. [seal. J [seal.] [seal.] County, ss. At a session of the Pro- bate Court in and for said County, holden at on the day of , A. D. 18 . I have examined and do approve of the foregoing bond, and the sureties therein, and order the same to be filed and recorded in the Probate Office of said County. , Judge of Probate. State of Michigan, ) > ss. County of ) the sureties in the foregoing bond being sworn, each for himself says, that he is worth the amount of the penalty in said bond over and above all debts and legal exemptions. Subscribed and sworn to before me , this day of , 18 APPENDIX OF FORMS. No. 61. ORDER APPOINTING GUARDIAN AND APPRAISERS FOR MINORS, INCOMPETENT PERSONS AND SPENDTHRIFTS. State of Michigan, ) County of ) At a session of the Probate Court for said County, held at the Probate office in the of , on the day of , in the year one thousand eight hundred and Present, , Judge of Probate. In the matter of the estate of , conies into Court and presents petition, duly verified, praying for the appointment of a guardian for said . And after a full hearing it appearing satisfactorily to the Court that the said , resident of said County , that it is necessary that a guardian should be appointed for , and that of in said County, is a competent and suitable person for that trust. It is ordered and decreed by the Court that the said be appointed guardian of the said And the said having now here filed a bond as such guardian in the penal sum of dollars, with suf- ficient suret , which said bond is duly approved : It is ordered that Letters of Guardianship issue to the said And it is further ordered that and and of the said County be appointed as three Appraisers to appraise the estate of said , Judge of Probate. No. 62. LETTERS OF GUARDIANSHIP GENERAL. State of Michigan, Probate Court for said County. County of In the matter of the estate of , minor . By , Judge of the Court of Probate within and for the County of APPENDIX OP FORMS. [NO. 62 CONTINUED.] To of said County, greeting : Trusting in your care and fidelity, I do, by these presents, pursuant to the power and authority to me granted, constiute and appoint you to be guardian unto , minor the age of fourteen years, of late of deceased, with full power and au- thority to ask, sue for, recover, receive and take into your custody, all and singular the real estate, goods and chattels, rights and credits which accrue to in right of , or which by any other way or means whatso- ever doth of right appertain or belong to , and you are to make a true and perfect inventory thereof, and return the same unto the Probate Court for the said County of , on or before the day of next ensuing ; and you are to dispose of, manage, em- ploy and improve the same according to law, and for the best interest of the said Ward ; and within one year from the date hereof, and at least once in each year thereafter, and at such other times as the Judge of Probate shall direct, you are to render on oath unto the Probate Office of said County, a true account of the property of the said Ward in your hands, of the pro- ceeds of all the real estate that may be sold by you, and of the management and disposition of such property ; and at the expiration of your trust, you are to settle your accounts with the Judge of Probate, for the time being, or with the said Ward or legal represen- tatives ; and to pay over and deliver all the estate and effects remaining in your hands, and due from you on such settlement, to the person or persons who shall be lawfully entitled thereto, or otherwise, as the said Judge by his decree or sentence, pursuant to law, shall order and direct, and do such other acts as the law in that behalf shall require. 12 APPENDIX OF FORMS. [NO. 62 CONTINUED.] In testimony whereof, I have hereunto set my hand and seal of the said Probate Court. Dated at , the day of , in the year of our Lord one thousand eight hundred and , Judge of Probate. Recorded in Lib. , Folio No. 63. PETITION FOE REMOVAL OF PROPERTY OF MINORS TO OTHER STATES. State of Michigan, ) > sa. Probate Court for said County. County of ) To , Judge of Probate for said county. In the matter of the estate of , minor . Your petitioner would respectfully represent to the Court that he resides at , in the County of , in the State of . That on the day of , 18 , he was duly appointed guardian of the person and estate of , a minor residing in said State last mentioned, by the Court of said last mentioned County, which has jurisdiction of said matters in that State. And before receiving such appointment, he exe- cuted and filed in said Court a bond in the penal sum of dollars, with sufficient sureties, which was duly approved, to secure the proper execution of said trust, which penal sum is double the value of the property of said Ward . Your petitioner further shows, that said Ward is the owner of certain property, the principal part of which is situated in said first mentioned County, and is now in the possession or under the control of the description and value of which is as follows, viz: Your petitioner further shows that he still remains such guardian, and that the consent of any testamentary guardian of said Ward residing in this State has been APPENDIX OF FORMS. [NO. 63 CONTINUHD.] obtained to the removal of said property as herein prayed for. And that all the debts in favor of residents or citizens of this State known to exist against said es- tate, have been paid or their payment tendered. That there is now existing and in force in said State of , a law permitting the removal of the property of minors to other states or territories where they reside, similar to the statute upon that subject in this State, .that the removal of said property from this State to said State of , will not conflict with the terms and limitations attending the right by which said Ward owns the same, or be or become prejudicial to his interest therein. Your petitioner further shows that he has filed in this Court a full and complete transcript from the records of the said court from which he received his appointment, duly exemplified and authenticated, showing all the facts herein alleged as required by law. Your petitioner therefore prays, that a day be fixed for hearing this pe- tition, and due notice thereof given to all persons in- terested, as the court shall direct, and that the said transcript of the records of said court be duly entered of record in this court, and that this court issue to your petitioner, letters of guardianship of the estate of said Ward, authorizing him to demand, sue for and recover any such property, and remove the same to the place of residence of himself and his said Ward, and directing any guardian, executor or administrator residing in this State, having the possession of any of said property, to deliver the same to your petitioner. State of Michigan, County of The above named petitioner being duly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the APPENDIX OF FORMS. [NO. 63 CONTINUED. J matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at , this day of A. D. 18 , before me, No. 64. PETITION BY WIDOW POP, ALLOWANCE, ETC. State of Michigan, | >• S3. Probate Court for said County. County of J To , Judge of Probate for said County. In the matter of the estate of , deceased. Your petitioner would respectfully represent to the court, that she is the widow of said deceased, and is of the age of years, that the income which she can realize from her individual estate will not exceed the sum of dollars per year, that she is . Your petitioner further represents that the entire estate of said deceased is of the value of dollars, and that he was owing at the time of his decease the sum of dollars or thereabout, as your petitioner is informed and believes. Your petitioner further represents that the family of said deceased consists of your petitioner and the following persons, dependent upon said estate for support, whose names, ages and mental and physical condition are as follows: Your petitioner further represents that she is entitled to two hundred and fifty dollars in value of the household furniture, and two hundred dollars in value of the other personal property of said deceased, and all her articles of apparel and or- naments, and all the wearing apparel and ornaments of said deceased, and also an allowance out of the estate of said deceased for the support and maintenance of APPENDIX OF FORMS. [NO, 64 CONTINUED.] herself and the family of said deceased during the pro- gress of the settlement of said estate. Your petitioner further represents that she has se- lected the following articles of household furniture and other personal property from the inventory of said es- tate at their appraised value, to the. amount aforesaid, and also claims the following articles as her articles of apparel and ornaments, and the wearing apparel and ornaments of said deceased, to which she is entitled, to-wit: Your petitioner therefore prays that a day be fixed for hearing this petition, and that due notice thereof be given to all persons interested in said estate, as the court shall direct, and that an order be made as- signing to your petitioner the household furniture and personal property aforesaid, and allowing the sum of dollars per week for the support and maintenance of your petitioner and the family of said deceased dur- ing the progress of the settlement of said estate, and that such further order and proceedings may be had in in the premises as required by the statute in such case made and provided. 1 yss. State of Michigan, ' County of The above named petitioner being duly sworfi, say that ha read the foregoing petition by signed and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated, on information and be- lief, and as to those matters believe them to be true. Subscribed and sworn to at , this day of , A. D. 18 , before me APPENDIX OF FORMS. No. 65. CONTRACT BY WIDOW TO CONVEY HER DOWER TO HEIRS ON SALE OF REAL ESTATE. Articles of Agreement, made and concluded this day of , in the year of our Lord eighteen hundred and , between , widow of , de- ceased, of the first part, and , heirs at. law of said deceased, of the second part, witnesseth, , that whereas , the of said deceased, did, on the > day of , 18 , present a petition to the Pro- bate Court for the County of , and State of , for license to sell certain real estate therein described, for the purposes therein mentioned, in which real es- tate said first party is entitled to dower, and whereas said second parties are desirous of obtaining a release of such dower in order to obtain a better price for said' lands; now, therefore, the party of the first part, at the request of the party of the second part, and in consider- ation of the money to be paid, and the covenants as herein expressed to be performed by the party of the second part, hereby agrees to sell to the said party of the second part, all her right, title and interest in and to said lands, which are described as follows, viz: with the privileges and appurtenances there- unto belonging. And the said party of the second part, in considera- tion of the premises, hereby agree to pay to the said party of the first part, her executors, administrators, or assigns, as soon as such sale can be made and duly confirmed, such sum in gross as said Probate Court shall determine that such dower is worth, upon the principles of law applicable to annuities, and according to the Northampton Annuity Tables, prepared for that pur- pose, and the same to be paid to her out of the first pro- ceeds of the sale of said real estate by the executor, administrator or guardian making the sale, and such APPENDIX OF FORMS. [no. 63 continuhd.] present value of said dower shall be estimated and determined from the gross sum for which said lands shall be sold. And the sum of dollars is paid down, which is to be retained by said first party in case the conditions of this contract are not fulfilled by said second parties. And said second parties agree to pay said first party interest at the rate of per cent, per annum on such gross sum, when determined, from the date of this contract. And the said part of the second part agree to pay all taxes and assessments of every kind which shall be imposed on the said land from the date hereof: And the said part of the second part further agree that until said sum shall be paid, and until this con- tract shall be terminated, he will keep the premises in good repair, and will not commit or suffer any waste or injury to said premises or any part or appurtenance thereof: In consideration whereof, the said part of the first part, covenant and agree to and with the said part of the second part, heirs, executors, administra- tors or assigns, on payment of the purchase money and interest in manner aforesaid, and the fulfillment of the aforesaid covenants, well and truly to convey to the said part of the second part, heirs or assigns, the above described premises by quit claim deed. And it is the express agreement and understanding of the contracting parties to these presents that if said sale shall not be made and confirmed, or if said second part shall fail in the performance of any of the cove- nants on their part to be performed by these Articles for the space of days from the date hereof, that then the said first party shall, at her option, be and is hereby discharged and acquitted from all the covenants on her part to be performed, and from making the conveyance aforesaid, and from all claims of said second part APPENDIX OP FORMS. [NO. 65 CONTINUED.] And it shall and may be lawful for said first party to take any proceedings that may be necessary for the admeasurement and recovery of her dower in said lands, or any other proceeedings which she would lawfully be entitled to take, in relation thereto. And said party of the first part shall have a right to recover all damages sustained by reason of any unnec- essary destruction of timber growing on said land, or any waste, Or by the holding over of the part of the second part or of any person or persons under without permission. In witness whereof, the said parties have hereunto interchangeably set their hands and seals, on the day and year first written above. Signed, sealed, and delivered in presence of No. 66. PETITION FOR ASSIGNMENT OF DOWER. State oe Michigan, ■ ss. Probate Court for said County. County of ) To , Judge of Probate for said County. In the matter of the estate of , deceased. Your petitioner would respectfully represent to the Court that she is the widow of , late of , in the County of , and State of , deceased, that she was lawfully married to the said at , in the County of , and State of , on or about the day of , A. D. 18 : that the said departed this life at aforesaid, on the day of , A. D. 18 ; that is entitled to dower in the following described real estate whereof the said deceased died seized, and was in his lifetime and during the marriage of and the said seized of an APPENDIX OF FORMS. [NO. 66 CONTINUED.] estate of inheritance, to wit : situate in the of , in the County of , and State of Michigan, That the right of dower of in said real estate has not been barred by any act or omission of , and that such right of dower of in said real estate, is not disputed by the heirs or devisees of the said , deceased, or by any person claiming under them or either of them, to the knowledge of . And this petition further shows that the names and residences of the heirs at law of said deceased, and other persons interested in said real estate, are as follows: Your petitioner therefore prays, that all persons interested in said real estate may be notified as required by law, and as to this Court may seem proper, and that the dower of said , in said real estate may be assigned to her, according to the statute in such case made and provided, and to that end that Commissioners may be appointed and required to set off said dower, by metes and bounds, or in such other manner as you, the said Judge of Probate, shall direct. And that such other or further order and proceedings may be had in the premises as may be required by the statute in such case made and provided. State of Michigan, County of The above named petitioner being duly sworn, say that ha read the foregoing petition by signed and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated, on information and belief, and as to those matters , believe them to be true. Subscribed and sworn to at , this day of , A. D. 18 , before me 13 APPENDIX OF FORMS. No. 67. COMMISSIONER'S WARRANT AND REPORT IN DOWER. State of Michigan. ■ ss. Probate Court for said County. County of In the matter of the estate of . deceased. To , three discreet and disinterested persons of said County, Greeting: Whereas, at a session of the Probate Court for said County, holden at the Probate office in , in said County, on the day of , in the year of our Lord one thousand eight hundred and , it was ascertained, upon hearing the petition of , and the proofs and allegations in relation thereto, that was lawfully married to said , deceased, and that he died seized of an estate of inheritance in and to certain real estate hereinafter described, and thereupon it was ordered and adjudged and decreed by said Court, that admeasurement of her dower be made, of, in and to said real estate, which is described as follows : And you having been, by said Court, duly appointed commissioners to admeasure the dower in said real estate in the premises, now, therefore, in the name of the people of the State of Michigan, you are hereby authorized and empowered (being first duly sworn according to law,) for the faithful discharge of your duty, well and truly, and according to your best skill and judgment, to appraise in dollars and cents, at the present cash value, all the real estate described as afore- said, and thereupon you shall, by sufficient metes and bounds or other apt designation, quality and quantity relatively considered, admeasure, sever and set off, the one -third part of said real estate to the said , for her dower thereof and therein : To have and to hold the same to her during her natural life, as the same was determined, ordered and directed by said Court, as APPENDIX OF FORMS. [NO. 67 CONTINUED. J hereinbefore setforth. But before making such appraisal and admeasurement, you shall give sufficient notice of the time and place of making the same to the said , and in all other respects you are required to conform to the law prescribing your duty in the premises, and you shall make due return of your proceedings to said Court with all convenient speed. Witness, , Judge of saidjProbate Court, under his hand and the seal of said Court, at , this day of , in the year one thousand eight hundred and r . , Judge of Probate. State of Michigan, j >ss. County of i On this day of , in the year one thousand eight hundred and , before me the undersigned, personally appeared , the commissioners in the foregoing Warrant named, and being by me duly sworn, they made oath that they would faithfully and impar- tially discharge the trust reposed in them by the fore- going Warrant. Before me, State of Michigan. ) > sa. To the Probate Court for said County. County of ) In the matter of the estate of , deceased. We, the undersigned commissioners, duly appointed by the foregoing and annexed Warrant, bearing date the day of , in the year of our Lord one thousand eight hundred and , by which we are authorized and directed to admeasure and set off the one-third part of the real estate of said deceased, as the dower of , his widow. Do hereby certify and return to said Court our doings in the premises: That having been duly sworn as required by law for the faithful and impartial discharge APPENDIX OF FORMS. [MO. 67 CONTINUED.] of the trust reposed in us, we gave sufficient notice to the several persons mentioned in said Warrant as inter- ested in the premises therein described, that we would meet at , on the day of , in the year of our Lord one thousand eight hundred and , at o'clock in the noon, and proceed to appraise said real estate, and admeasure the dower of said widow therein, as by said Warrant we were directed. And we do further certify and return, that in pursuance of said notice we met at the time and place and for the purpose in said notice and Warrant set forth, when there were present And having inspected and viewed the real estate described in said Warrant, and made diligent inquiry in relation thereto, we appraised the same at the sum of , and out and from which we admeasured, sev- ered and set off the one third part thereof, as hereinafter described, quality and quantity relatively considered, to the said , for her dower therein. To have and to hold the same to her during her natural life. The value and description of said one-third part of said real estate are as follows: No. 68. PETITION FOR EXTENSION OF THE TIME FOR SETTLING AN ESTATE. State of Michigan, Probate Court/or said County. County of ) To , Judge of Probate. In the matter of the estate of , deceased. Your petitioner would respectfully represent to the Court, that on the day of , 18 , he was duly appointed of said deceased, accepted the trust and entered upon the administration of said estate; that one year and six months have elapsed since his appoint- APPENDIX OP FOSMS. [NO. 68 CONTINUED.] ment as aforesaid, and that he has been unable to dis- pose of said estate and pay the debts and legacies of said deceased, and fully settle said estate within that time, and makes this application for further time, for the following reasons, viz: Your petitioner therefore prays, that a time and place be fixed for the hearing of this petition, and that due notice thereof be given to all persons interested, by an order of the Court duly published for three weeks successively in some newspaper to be designated by the Court, immediately previous to such day of hearing, and that the time for disposing of said estate and paying the debts and legacies of said deceased and settling said estate may be extended one year from the date hereof, according to the statute in such case made and provided. Dated State op Michigan, ) > ss. County of ) The above named petitioner being duly sworn, say that ha read the foregoing petition by signed and know the contents thereof, and that the same is true of own, knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at , this day of , A. D. 18 , before me, No. 69. PETITION TO COMPOUND DEBT. State of Michigan. ) > ss. Probate Court for said County. County of ) To , Judge of Probate for said County. In the matter of the estate of , deceased. APPENDIX OP PORMS. [NO. 69 CONTINUED.] Your petitioner would respectfully represent to the Court, that he was on the day of , 18 , duly appointed of said deceased; that he has ascer- tained that is indebted to said estate in the sum of dollars, consisting of the following items, viz : and there is no sufficient security for the payment of the same ; that the entire estate of such debtor is not woith more than the sum of dollars, and that he is now owing the sum of dollars, and will not be able to pay more than cents on the dollar of such indebtedness as your petitioner, after a careful exam- ination in the premises, has ascertained, and as he is informed and verily believes. Your petitioner therefore prays, that he may be authorized to compound said claim with such debtor, and receipt and discharge the same in full, upon receiv- ing cents on the dollar of said claim. State of Michigan, ) >ss. County of ) The above named petitioner being duly sworn, say that ha read the foregoing petition by signed and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at , this day of , A. D. 18 , before me, No. 70. COMPLAINT FOR EMBEZZLEMENT, ETC., OP PROPERTY. State of Michigan, ) > ss. Probate Court for said County. County of ) To , Judge of Probate for said County : In the matter of the estate of , deceased. APPENDIX OF FORMS. [NO. 70 CONTINUED.] The undersigned would respectfully represent to the Court, that he is of said deceased, and inter- ested in said estate, and hereby makes his complaint upon oath, and alleges that he has good cause to sus- pect and does suspect, that ha concealed, embez- zled, conveyed away or disposed of certain property, moneys, goods, and chattels of said deceased, described as follows, viz : and that said has in his possession or knowledge the last will and testament of said deceased, and also certain deeds, conveyances, bonds, contracts and other writings which contain evidence of or tend to disclose the right, title, interest, or claim of said deceased to cer- tain real and personal estate, and certain claims and demands, which sai'.t instruments and property are described as follows, viz: Your petitioner further shows that he suspects that said is guilty of the acts and offenses herein alleged, for the following reasons, viz: Wherefore your petitioner prays, that said may be cited to appear before said Court, to be exam- ined under^oath upon written interrogatories, upon the matters of this complaint, and that such further pro- ceedings may be had in the premises as required by law. Subscribed and sworn to before me this day of , 18 . No. 71. OATH TO BE ADMINISTERED TO PERSONS CITED UNDER C. L. 1392 (4408.) ' You do solemnly swear (or affirm) that you will true answers make to such questions as shall be put to you, APPENDIX OF FORMS. [NO. 71 CONTINUED.] touching the matter of the complaint of , filed in this Court, for the discovery of property belonging to the estate of , so help you God, (or this you do under the pains and penalties of perjury.) No. 72. WARRANT OF COMMITMENT UNDER C. L. (4409.) State op Michigan, | V S3. County of ) To the Sheriff or any Constable of said County, and to the Keeper of the Common Jail of said County, GrREETINO: Whereas, has made a complaint under oath to the Judge of Probate of said County, alleging that he has good cause to suspect, and does suspect, for the reasons therein alleged that has concealed, embez- zled, conveyed away or disposed of certain money, goods and chattels therein described, belonging to the estate of , deceased, and also that he has in his possession or knowledge the last will and testament of said deceased, and certain deeds, conveyances, bonds, contracts, and other writings which contain evidence of or tend to disclose the right, title, interest or claim of said deceased to certain real and personal estate, and certain claims and demands, which said instruments and property are therein fully described, and upon filing said complaint, said was duly cited to appear before the Probate Court of said County on the day of , 18 , and be examined on oath upon the matter of such complaint, and whereas said refuses to appear and submit to such examination (or to answer the written interrogatories put to him touching the mat- ter of such complaint). It is therefore ordered that said be committed to the Common Jail of said County, there to remain in APPENDIX OF FORMS. [HO. 72 CONTINUED.] close custody until he shall submit to the order of the Court. These are therefore to command you, the said Sher- iff or Constable, in the name of the people of the State of Michigan, forthwith to convey and deliver the said into the custody of the keeper of the Common Jail of said County ; and you, the keeper thereof, are hereby required, in the name of the said people, to receive the said into your custody, in the said Jail, and him there safely keep until he shall consent to appear and submit to such examination and answer under oath such interrogatories as may be put to him in writing, touching the matter of such complaint, or until he shall be thence discharged by due course of law. Given under my hand and seal, at , in said County of , this day of , 18 . , Judge of Probate. No. 73. APPLICATION FOR APPEAL FROM THE DECISION OF COMMIS- SIONERS ON CLAIMS UNDER C. L. (4439), ETC., AND (4448.) State op Michigan, J > ss. Probate Court for said County. County of ) To , Judge of Probate for said County. In the matter of the estate of , deceased. The undersigned being of said deceased, hereby gives notice of, and makes application for, an appeal to the Circuit Court for said County, from the decision of the commissioners heretofore duly appointed to receive, examine and adjust all claims and demands of all per- sons against the said deceased , the claim of against said estate, made in their report filed in said 14 APPENDIX OF FORMS. [NO. 73 CONTINUED. J Probate Court on day of , 18 , for the fol- lowing reasons : Because said commissioners disallowed of the claim of against said estate, to the amount of twenty dollars, or more, to wit, the sum of dollars. Because said commissioners allowed of the claim of against said estate the sum of twenty dollars or more, to wit, the sum of dollars, which claim and allowance was at the time of the hearing thereof, and is now objected to. (The undersigned further shows that the of said deceased, declines to appeal from the decision of the commissioners as aforesaid, and that as is interested in said estate, and therefore makes tnis appli- cation for and notice of appeal.) Dated (The above in brackets to be used only in appeals under C. L. (4448.) No. 74. BOND BY CLAIMANTS ON APPEALS FROM DECISION OF COM- MISSIONERS ON CLAIMS. State of Michigan, ) > ss. Probate Court for said County. County of ) In the matter of the estate of , deceased. Know all men by these presents, that we , as principal and as sureties are held and firmly bound unto , being the adverse party in the sum of dollars, lawful money of the United States of America, to be paid to the said , or to certain attorney, heirs, executors, administrators or assigns, to which payment well and truly to be made bind heirs, executors and administrators, and each and every of them firmly by these presents. APPENDIX OF FORMS. [NO. 74 CONTINUED.] Sealed with seal, dated day of , one thousand eight hundred and The condition of this obligation is such, that whereas the said has made and filed an application and notice of appeal to the Circuit Court for said County, from the decision of the commissioners appointed to receive, examine and adjust all claims and demands of all persons against said deceased disallowing the claim of said against said estate, made in their report filed in said Probate Court on the day of , 18 ; as in said application stated, and for the reasons therein alleged; now therefore, if the said appellant shall diligently prosecute said appeal to effect and pay all damages and costs which may be awarded against him on such appeal, then the preceding obligation to be void, otherwise to remain in full force and virtue. [L. S.j [L. 8.] [L. S.] [L. 8.] County, ss. At a session of the Pro- bate Court in and for said County, holden at , on , the day of , A. D. 18 . I have examined and do approve of the foregoing bond, and the sureties therein, and order the same to be filed and recorded in the Prabate office of said County. , Judge of Probate. . State of Michigan, 1 s-ss. County of J The sureties in the foregoing bond being sworn each for himself, says that he is worth the amount of the penalty in said bond over and above all debts and legal exemptions. Subscribed and sworn to before me this day of 18 . APPENDIX OF FORMS. No. 75. BOND WHERE EXECUTOR, ETC., DECLINES TO APPEAL FROM DECISION OF COMMISSIONERS ON CLAIMS. State of Michigan, ) > ss. Probate Court for said County. County of ) In the matter of the estate of , deceased. Know all men by these presents, that we , as principal and as sureties are held and firmly bound unto , being the adverse party in the sum of dollars, lawful money of the United States of America, to be paid to the said , or to certain attorney, heirs, executors, administrators or assigns, to which payment well and truly to be made bind heirs, executors and administrators, and each and every of them, firmly by these presents. Sealed with seal, dated the day of , one thousand eight hundred and seventy The condition of this obligation is such, that, whereas the said has made and filed an application and no- tice of appeal to the Circuit Court for said County, from the decision of the commissioners appointed to receive, examine and adjust all claims and demands of all per- sons against said deceased, allowing the claim of against said estate, made in their report tiled in said Probate Court on the day of , 18 , as in said application stated, and for the reasons therein alleged ; now therefore, if the said appellant shall diligently pros- ecute said appeal to effect, and pay all damages and costs that may be adjudged and awarded against said estate, and also all the intervening damages and costs that may be adjudged and awarded to the said adverse party, then the preceding obligation to be void, other- wise to remain in full force and virtue. [L. S.J [L, S.] [L. B.] [L. 8.] APPENDIX OF FORMS. [NO. 75 CONTINUHD.] County, ss. At a session of the Probate Court in and for said County, holden at , on , the day of , A. D. 18 . I have examined and do approve of the foregoing bond, and the sureties therein, and order the same to be filed and recorded in the Probate office of said County. , Judge of Probate. State of Michigan, County of The sureties in the foregoing bond being sworn each for himself, says that he is worth the amount of the pen- alty in said bond over and above all debts and legal exemptions. Subscribed and sworn to at , this day of , A. D. 18 , before me No. 76. ORDER ALLOWING APPEAL FROM THE DECISION OF COMMIS- SIONERS ON CLAIMS. State oe Michigan, County of At a session of the Probate Court for said County, held at the Probate office in the of , on the day of , in the year one thousand eight hundred and Present, , Judge of Probate. In the matter of the estate of On reading and filing the application of for an appeal to the Circuit Court of said County, from the decision of the commissioners appointed to receive, examine and adjust claims against said estate, allowing a final balance in favor of against said estate of the sum of dollars, by their report filed APPENDIX OF FORMS. [NO. 76 CONTINUED.] , and on reading and filing the appeal bond of said appellant duly approved It is ordered that said appeal be and the same is hereby allowed. And it is further ordered, that notice of said appeal, and the hearing thereof in the Circuit Court for the County of , be given to , by delivering to a certified copy of this order, and of said applica- tion for appeal within days from the date of this order, and by serving notice thereafter of the hearing of said appeal, in said Circuit Court, according to the course and practice of said Circuit Court. , Judge of Probate. No. 77. CLAIM AND NOTICE OF APPEAL FROM ORDERS, ETC., OF JUDGE OF PROBATE. State of Michigan, ) > as. Probate Court for said County. County of ) To , Judge of Probate for said County. In the matter of , deceased. The undersigned being of said deceased, and being aggrieved by the order or decree of the said Judge of Probate made on the day of , 18 , (allowing and admitting to probate, etc.), or , as appears by such order or decree on file in said Court, hereby gives notice of, and makes application for an appeal to the Circuit Court for said County, from the said order or decree of said Judge of Probate, for the following specific reasons, viz: Dated APPENDIX OP FORMS. No. 78. BOND ON APPEAL FROM THE ORDER "OR DECREE OF THE JUDGE OF PROBATE. State of Michigan, ) > ss. Probate' Court for said County. County of ] In the matter of , deceased. Know all men by these presents, that we , as principal and as sureties are held and firmly bound unto , being the adverse party in the sum of dollars, lawful money of the United States of America, to be paid to the said , or to certain attorney, heirs, executors, administrators or assigns, to which payment well and truly to be made bind heirs, executors and administrators, and each and every of them, firmly by these presents. Sealed with seal, dated the day of , one thousand eight hundred and . , The condition of this obligation is such that, whereas the said has made and filed a claim and notice of appeal to the Circuit Court for said County from the decree or order made by the Judge of Probate for said County, on the day of , 18 , (allowing and admitting to probate, etc.), or , as appears by the decree or order on tile in said Court; now therefore, if the said appellant shall diligently prosecute said appeal, and shall pay all damages and costs that shall be awarded against him in case he shall fail to obtain a reversal of the decree or order so appealed from, then, the preceeding obligation to be void, otherwise to remain in full force and virtue. [L. S.J [L. 8.] [L. S.] [L. 8.] [L. S.j APPENDIX OF FORMS. [NO. 78 CONTINUED.] County, ss. At a session of the Probate Court in and for said County, holden at , on , the day of , A. D. 18 . I have examined and do approve of the foregoing bond, and the sureties therein, and order the same to be filed and recorded in the Probate office of said County. , Judge of Probate. State of Michigan, ) [■88. County of ) , the sureties in the foregoing bond being sworn each for himself, says that he is worth the amount, of the penalty in said bond over and above all debts and legal exemptions. Subscribed and sworn to before me , this day of , 18 . fss. No. 79. ORDER ALLOWING APPEAL FROM DECISION OF JUDGE OF PROBATE. State or Michigan, ' County of At a session of the Probate Court for said County, held at the Probate office in the of , on the day of , in the year one thousand eight hundred and Present, , Judge of Probate. In the matter of the estate of On reading and filing the application of for an appeal from the decision of the Judge of Probate of said County, allowing (and admitting to Probate) It is ordered that said appeal be and the same is hereby allowed. APPENDIX OF FORMS. [NO. 79 CONTINUED.] And it is farther ordered, that notice of said appeal, and the hearing thereof in the Circuit Court for the County of , be given to , by delivering to a certified copy of this Order, and of said applica- tion for appeal within days from the date of this Order, and by serving notice thereafter of the hearing of said appeal, according to the course and practice of said Circuit Court. , Judge of Probate. No. 80. PETITION TO THE CIRCUIT COURT FOR LEAVE TO APPEAL. State of Michigan, [•ss. In the Circuit Court for said County. County of To , Judge of said Circuit Court. In the matter of the estate of , deceased. Your petitioner would respectfully represent to the Court that he is aggrieved by the decision, order or decree of the » , made and filed in the Probate Court of said County on the day of , 18 , and without default on his part has omitted to claim and prosecute his appeal from such decision, order or decree as required by law, for the following reasons viz: Your petitioner further represents that he desires to appeal from such decision, order or decree, and that justice requires a revision of the same for the following reasons, viz: Your petitioner therefore prays that a day be fixed for hearing this petition, and due notice thereof given to the parties adversely interested, as the Court shall direct, and that your petitioner be allowed and author- ized to appeal from such decision, order or decree, to the said Circuit Court, and prosecute the same with like 15 •q -s| n APPENDIX OF FORMS. [no. 80 continued.] effect as if such appeal had been taken seasonably, and upon such terms as the Court ^hall deem reasonable. Dated State of Michigan. County of The above named petitioner being duly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and be- lief, and as to those matters believe them to be true. Subscribed and sworn to at , this day of , A. D. 18 , before me No. 81. ORDER BY CIRCUIT COURT ALLOWING APPEAL AFTER THE EXPIRATION OF THE TIME LIMITED. State of Michigan, sa. At a session of the Circuit Court for the County of- , held at the Court House, in the of , on the day of , 18 . Present, , Circuit Judge. In the matter of , deceased. On reading and filing the petition of , and the affidavits of , in support of said petition, showing, that without default on his part said petitioner omitted to claim and prosecute his appeal to said Circuit Court, as required by law, from the decision, order or decree of the , and it satisfactorily appearing to the Court, that justice requires a revision of such decision, order or decree, and that the parties adversely interested have been duly notified of the hearing of said petition as I APPENDIX OF FORMS. [no. 8i continued.] ordered by the Court, it is therefore ordered that said petitioner be allowed and authorized to appeal from such decision, order or decree, to said Circuit Court within days from the date of this order, and pros- ecute the same with like effect as if such appeal had been taken seasonably; and it is further ordered that said file a declaration in this cause upon said within days thereafter, and that said plead to said declaration within days after the same is filed, and that said petitioner pay all the costs and expenses of such appeal previous to such issue formed, and also dollars attorney fee to the par- ties adversely interested ; and further, that a certified copy of this order be forthwith filed in the Probate Court of said County for further proceedings in the premises. No. 82. PETITION TO REVIVE COMMISSION ON CLAIMS, ETC. State ov Miohigan, • as. Probate Court for said County. County of To , Judge of Probate for said County. In the matter of the estate of , deceased. Your petitioner would respectfully represent to the Court that he has a valid claim against said estate amounting to the sum of dollars, consisting of the items mentioned in the bill hereto annexed; that the time limited by the' Court for presenting claims against said estate has expired, but said estate has not been closed: that said claim was not presented for examina- tion and allowance within the time limited for that pur- pose for the following reasons, viz: Your petitioner therefore prays, that the original commission on claims against said estate be revived APPENDIX OF FORMS. [NO. 82 CONTINUED.] and the further time of three months allowed for the commissioners on claims to examine and allow said claim, or that said Judge of Probate by an order for that purpose, appoint a time and place for the examin- ation and allowance of said claim before himself, and that notice of the time and place of hearing said claim be given to the parties interested in said estate as required by law. Dated State of Michigan, County of ' The above named petitioner being duly sworn say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at , this day of A. D. 18 , before me, No. 83. ORDER REVIVING COMMISSION ON CLAIMS. State op Michigan, County of At a session of the Probate Court for said County, held at the Probate office in the of , on the day of , in the year one thousand eight hundred and Present , Judge of Probate. In the matter of the estate of On reading and filing the petition of , showing that has a claim against said estate which has not been presented for examination and allowance, and that APPENDIX OF FORMS. [NO. 83 CONTINUED.] the time limited by the Court for that purpose has expired, but that said estate has not been closed, and showing also good cause for the omission to present said claim in time. It is therefore ordered that the commis- sion on claims against said estate be revived, and that the further time of months from the date of this order be allowed to the commissioners on claims named in said commission, to receive, examine and adjust said claim, and that said commissioners personally notify all parties interested, of the time and place fixed by them for hearing said claim, and make return of their proceedings in the premises as required by law. , Judge of Probate. No. 84. NOTICE OF APPEAL TO BE PUBLISHED UNDER C. L. (4442.) State op Michigan, County of At a session of the Probate Court for said County, held at the Probate office in the of , on the day of , in the year one thousand eight hundred and Present, , Judge of Probate. In the matter of the estate of On reading and filing the application of , for an appeal to the Circuit Court of said County, from the decision of the commissioners appointed to receive, examine and adjust claims against said estate, allowing a final balance in favor' of against said estate of the sum of dollars, by their report filed , and on reading and filing the appeal bond of said appellant duly approved It is ordered that said appeal be and the same is hereby allowed. APPENDIX OF FORMS. [NO. 84 CONTINUED.] And it satisfactorily appearing to the Court, that said claimant is not a resident of this State (or that the residence of said claimant is unknown), It is therefore further ordered that notice of said appeal, and the hearing thereof in the Circuit Court of said County, be given to , by causing a copy of this order to be published in the . a newspaper printed and circulating in said County, for three succes- sive weeks from the date of this order, and by giving notice thereafter of the hearing of said appeal in said Circuit Court, according to the rules and practice of said Circuit Court. , Judge of Probate. No. 84 a. JUDGMENT IN CIRCUIT COURT ON APPEAL FROM PROBATE COURT. The Circuit Court for the County or At a session of the Circuit Court for the County of , held at the Court House in the City of , on , the day of , A. D. 18 . Present, , Circuit Judge. In the matter of the appeal of from the decision of the commissioners on claims against the estate of , deceased, allowing the claim of , against said estate. In this cause the jury having heretofore rendered a verdict in favor of the said claimant, and against said estate for the sum of dollars, Now therefore, on motion of , attorneys for said claimant, after hearing attorney for said appellant, it is ordered, adjudged, and finally decided that the said claimant do recover of the said estate the sum of dollars, according to the. finding of the jury as aforesaid, as a claim against said estate, and it is, upon like motion, further ordered, that this, the final APPENDIX OF FORMS. [NO. 84 a. CONTINUED.] decision and judgment of this Court, be certified, by the clerk of this Court to the Probate Court for the County of , for further proceedings thereon, and it appear- ing that the administrator of said estate declined to appeal to this Court from the decision of the said com- missioners, and that such appeal was thereafter tak*n by the appellant, and that on such appeal the claimant largely increased the allowance appealed from, it is, on like motion, ordered that the said appellant pay the costs of the said claimant to be taxed, and that the said claimant have execution therefor. No. 84 b. ORDER LIMITING THE TIME FOR PAYMENT OF DEBTS. C. L. (4462.) State of Michigan, County of At a session of the Probate Court for said County, held at the Probate office in the of , on the day of , in the year ore thousand eight hun- dred and Present, , Judge of Probate. In the matter of the estate of , deceased. On application of , of said deceased, it is ordered that the time for the payment of the debts of said deceased be finally limited to the day of , A. D. 18 . And it is further ordered that notice be given to the creditors of said estate, and other persons inter- ested therein, that the time for the payment of the debts of said deceased is limited as aforesaid, by causing a copy of this order to be published in the , a news- paper printed and circulating in said County, three sue cessive weeks from the date of this order. , Judge of Probate. APPENDIX OF FORMS. No. 85. PETITION FOE LICENSE TO SELL REAL ESTATE TO PAY DEBTS, BY EXECUTORS, ADMINISTRATORS, AND GUARDIANS. State op Michigan. Probate Court for said County. County of To , Judge of Probate for said County. In the matter of the estate of Your petitioner would respectfully represent to the Court, that on the day of , 18 , was duly appointed by said Court of said That the personal estate of said that has come into hands, amounts to the sum of dollars, of which dollars remains undisposed of. Your petitioner further represents that as far as can be ascertained by , and as is informed and verily believes, the just debts outstanding against said , amount to the sum of dollars, and that the charges and expenses of managing and administering said estate, including future probable charges and expenses, will amount to the sum of dollars. Your petitioner further represents that it is necessary for the purpose of paying said debts, charges and expenses, to raise the sum of dollars or thereabout, by the sale of the following described real estate, or some part thereof, of which the said seized and possessed. The description, condition and value of each parcel and of the whole of said real estate, according to the information and belief of your petitioner, are as follows, viz: Your petitioner further represents that the condition and location of said real estate is such that a sale of so much only as may be necessary to pay such debts, charges and expenses would greatly injure the value of the residue thereof, and that much more can be realized from said real estate by a sale of all the above described APPENDIX OF FORMS. [HO. 85 CONTINUED.] lands (or that portion of the same described as follows, viz:) Your petitioner further represents that the names and residence of the next of kin and heirs at law of said , and other persons interested in said estate, as your petitioner is informed and believes, are as follows, viz: Wherefore, your petitioner prays that may be authorized, empowered, and licensed to sell the whole of the real estate hereinbefore described, with the hered- itaments and appurtenances, or so much and such part thereof as the Co art shall deem necessary, and most for the benefit of all persons interested, for the purpose of paying the debts, expenses, and charges aforesaid, according to the provisions of the statute in such case made and provided. Dated State of Michigan, ) >ss. County of ) The above named petitioner being duly sworn, say that ha read the foregoing petition by signed and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters , believe them to be true. Subscribed and sworn to at , this day of , A. D. 18 , before me State of Michigan, ) t ss. County of ) We, , superintendents of the poor of said County, hereby certify, that we approve of the proposed sale of real estate herein mentioned, and deem the same necessary. (C. L. 1431 (4585.) 16 APPENDIX OP FORMS. No. 86. BOND OP EXECUTORS, ADMINISTRATORS AND GUARDIANS, ON SALE OF REAL ESTATE TO PAY DEBTS. [•ss. State of Michigan, }-ss. Probate Court for said County. County of In the matter of the estate of Know all men by these presents, that we, , as principal and as sureties, all of the County of , within the State of Michigan, are holden and stand firmly bound and obliged unto , Judge of Probate for the County of aforesaid, in the full sum of dollars, lawful money of the United States of America, to be paid unto the said , Judge of Pro- bate, as aforesaid, or to his successors in office, or assigns ; to the true payment whereof we do bind our- selves, and each of us, our and each of our heirs, exec- utors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , Anno Domini, one thousand eight hundred and The condition of this present obligation is such, that whereas the above bounden in capacity of of , at a session of the Court of Probate in and for said County, on the day of obtained an order to make sale, at public auction, of so much of the real estate of said , as is specified in said order, in order to pay his just debts and the charges of administering his estate. Now, therefore, if the said shall and do well and truly account for all the proceeds of the said sale, that shall remain after the payment of the debts and charges for which the said land was sold, and shall and do dispose of the same according to law, and shall and do in all things relating to said sale, govern by the laws of said State, so that the interests of all cred- itors and heirs, and others interested, shall be best APPENDIX OF FORMS. [NO. 86 CONTINUED.] secured, then the above written obligation to be void ; otherwise to remain in full force and virtue. [SEAL. J [seal.] [SEAL.] County, ss. At a session of the Probate Court in and for said County, holden at , on , the day of , A. D. 18 . I have examined and do approve of the foregoing bond, and the sureties therein, and order the same to be filed and recorded in the Probate office of said County. , Judge of Probate. State of Michigan, County of , the sureties in the foregoing bond being sworn each for himself, says that he is worth the amount of the penalty in said bond over and above all debts and legal exemptions. Subscribed and sworn to at , this day of , A. D. 18 , before me, No. 87. EXECUTORS', ADMINISTRATORS' AND GUARDIANS' LICENSE TO SELL REAL ESTATE TO PAY DEBTS. State of Michigan, ) >sa. County of ) At a session of the Probate Court for said County, held at the Probate office, in the of , on , the day of ", in the year of our Lord one thousand eight hundred and Present, . , Judge of Probate. In the matter of the estate of This day having been appointed by the Court for hearing the petition of , the of said , praying, for reasons therein set forth, that he may be APPENDIX OF FORMS. [NO. 87 CONTINUED.] licensed to sell certain real estate in said petition described ; now come into Court, the said petitioner And it appearing to the satisfaction of this Court, by due proof on file, that due notice of the hearing of said petition has been given to all persons interested, as directed by the Court: And it further satisfactorily appearing to this Court, after full hearing upon said petition, and on examination of the proofs and allega- tions of the petitioner that the debts and valid claims, so far as the same can be ascertained, which are now due and outstanding against said estate, amount to the sum of , exclusive of interest; and the personal estate of said in the hands of said , is insuf- ficient to pay all said debts and claims, with the charges of administering said estate, and that therefore it is nec- essary to sell the real estate described in said peti- tion, to pay said debts, claims, interest and charges; and no person interested in said estate having given a bond to pay the same as authorized by law: Therefore, in consideration of the premises, it is ordered, adjudged and decreed by this Court, that said , as aforesaid, be, and hereby empowered, authorized and licensed to sell pursuant to the statute in such case made and provided, real estate whereof the said seized and possessed, as herein- after designated and described, and in the order in which the same is hereinafter set forth, for the purpose of pay- ing said debts, claims, interest and charges, subject to all incumbrances by mortgage or otherwise existing at the time of the death of said deceased, or at the time of ; and also subject to the right of dower, and the homestead rights of the widow of said deceased therein. And it is further ordered, that said give a bond in the penal sum of dollars, with two sufficient sureties, to be approved by said Judge, for the faithful APPENDIX OF FORMS. [NO. 87 CONTINUED.] discharge of duty in the premises as required by law, and that give public notice of the time and place of holding such sale, by posting up such notice in three of the most public places in the of , in which the land hereby authorized to be sold is situ- ate, and also publish such notice in a newspaper printed in the County of , for six weeks successively next before such sale, , and also before making the same take and subscribe the oath prescribed by the statute in such case made and provided. And it is further ordered, that said immediately after such sale made, make return hereupon to this Court, of proceedings in the premises by virtue hereof. The real estate authorized to be sold under, and by virtue of this decree, is situated in the of , in the County of , Michigan, and more particularly specified and described as follows : Wo. 88. OATH BEFORE SALE OR MORTGAGE OF REAL ESTATE. State or Michigan. Probate Court for said County. County of In the matter of the estate of , being duly sworn, says that in of the real estate of said > which he authorized and licensed to by said Probate Court, on the day of , A. D. one thousand eight hundred and , he will exert best endeavors, to of the same in such manner, as will be most for the advantage of all persons interested in the premises. Subscribed and sworn to, this day of A. D. 18 , before me. APPENDIX OF FORMS. No. 89. NOTICE OF SALE OF REAL ESTATE. State op Michigan, County of In the matter of the estate of Notice is hereby given, that in pursuance of an order granted to the undersigned, of the estate of said , by the Hon. Judge of Probate for the County of , on the day of , A. D. 18 , there will be sold at public vendue, to the highest bidder, at , in the County of , in said State, on , the day of , A. D. 18 , at o'clock in the noon of that day (subject to all encumbrances by mortgage or otherwise existing at the time of the death of said deceased or at the time of , and also subject to the right of dower and the homestead rights of the widow of said deceased therein) the following described real estate, to- wit: No. 90. REPORT OF SALE OF REAL ESTATE. State op Michigan, [ ss. Probate Court for said County. County of In the matter of the estate of To the Honorable Judge of Probate for said County : The undersigned, of said hereby respect- fully makes return and report of proceedings in the sale of the real estate of said in pursuance of the order of this Court made on the day of A. D. one thousand eight hundred and , as follows: That in pursuance of said order or decree of sale, he executed the bond with sufficient sureties, which has been duly approved, and took and subscribed tne oath before sale, according to law, as will more fully appear APPENDIX OF FORMS. [NO. go CONTINUED.] by a reference to the same now on file in this Court ; that he fixed on the day of , A. D. one thous- and eight hundred and , at o' clock in the noon of that day, at in said County of , as the time and place of selling said real estate ; and afterwards he gave public notice of the time and place of mak- ing such sale at public vendue as aforesaid fixed, by causing such notice to be duly published in a public newspaper entitled the , printed and published in the , in the County of , and State of Michi- gan, and also to be posted in three of the most public places in the of , in the said County of (in which said real estate is situated), for six successive weeks previous to the said day of , A. D. one thousand eight hundred and , the time fixed for said sale as aforesaid. The undersigned further report that by virtue of said order or decree, and in pursuance of said notice, and at the place and time last mentioned therein, he proceeded to sell and did sell said real estate, and that the same as particularly hereinafter described was duly sold by , as auctioneer, at public auction, and fairly struck off to the person and for the sum herein- after set forth, he being the highest bidder thtrefor, that is to say : The undersigned further report that the evidence of publishing and posting said notice of sale as aforesaid, fully appears by the affidavits of , who posted said notice, and of the of said newspaper herewith filed, which the undersigned pray may be taken as part of this report ; that at said sale several person were in attendance, and the same continued open for about an hour, until the persons so present ceased to offer further bids ; that said sale was, in all respects, according to the best knowledge, information APPENDIX OF FORMS. [HO. 90 CONTINUED.] and belief of the undersigned, legally made, and fairly, honestly and impaiartlly conducted, and that a greater price than as above set forth cannot be obtained for said real estate, he therefore respectfully request that the said sale so made may be approved and con- firmed, and that he may be authorized and em- powered to execute proper conveyances, in the law, to said purchaser of said real estate. State of Michigan, County of being duly sworn say, that he read the fore- going report, by signed, and know the contents thereof, and that the same is true according to best knowledge, information and belief. Subscribed and sworn to this day of A. D. 18 . before me, , Judge of Probate. >8S. No. 91. CONFIRMATION OF SALE. State op Michigan, County of At a session of the Probate Court for said County, held at the Probate office in the of , on the day of , in the year one thousand eight hundred and Present, , Judge of Probate. In the matter of the estate of License to sell the real estate of having been on the day ot , A. D. 18 , by an order of \ < said Probate Court, duly granted to of said , APPENDIX OF FORMS. [NO. 91 CONTINUED.] and a certified copy of said order having been delivered to , as aforesaid : Now come into Court the said as aforesaid, and make return of proceedings upon the order aforesaid, for the sale of said real estate, to the said Judge of Probate, from which it appears that' the following described real estate, to wit: was on the day of , A. D. 18 , sold to , for the sum of , notice of which said sale was pre- viously posted up in three of the most public places in the township of , being the township in which said land is situated, and published in the , a newspaper printed in said County of , for at least six weeks successively next before said sale, as appears by said return, and the affidavits accompanying the same ; and the said having on the day of , A. D 18 , taken and subscribed an oath in due form, as required by law, previous to said sale, and having given bond as in said license directed, which has been duly approved by said Judge of Probate, and the said Judge of Probate having fully examined said proceed- ings, from which it appears that said sale was legally made and fairly conducted, and that the sum bid for said piece of land above described was not dis- proportionate to the value thereof, It is therefore ordered, adjudged and decreed, that said sale as above made be, and the same is hereby con- firmed. And it is further ordered, adjudged and decreed, that a conveyance of the above described premises be executed by the said as aforesaid, to , the purchaser thereof. In witness whereof, I have hereunto set my hand and affixed the seal of said Probate Court, at , this day of , A. D. 18 . 17 , Judge of Probate. APPENDIX OP FORMS. No. 92. , PETITION FOR LICENSE TO SELL REAL ESTATE FOR DISTRI- BUTION. State of Michigan, Probate Court Jor said County. County of To , Judge of Probate for said County. In the matter of the estate of , deceased. Your petitioner would respectfully represent to the Court that, on the day of , 18 , was duly appointed by said Court of said deceased, who departed this life on the day of , 18 , leaving no last will and testament, as your petitioner is informed and believes. That said deceased was seized and possessed at the time of his death of the following described real estate, the description, condition and value of each parcel and of the whole of said real estate, according to the infor- mation and belief of your petitioner, are as follows, viz: Your petitioner further represents, that said real estate was duly assigned by said Court, by decree of assignment, dated day of , 18 , to the follow- ing named heirs of said deceased, in the following man- ner, viz: Your petitioner further represents, that the condition and location of said real estate is such that it cannot be partitioned and distributed among said heirs, according to such decree of assignment, without great injury to the value of the same, and that no one or more of said heirs are able or willing to have more than their respect- ive portions of said real estate set off to them, and pay or secure to the others a proper compensation for what they receive more than their respective shares or por- tions. Your petitioner further represents, that in view of the facts and statements aforesaid, and as he verily believes it is necessary and for the interest of the persons APPENDIX OF FORMS. [NO. g2 CONTINUED.] interested in said estate, that said real estate be sold for the purpose of distribution, wherefore, your petitioner prays that he may be authorized, empowered and licensed to sell the real estate hereinbefore described, with the hereditaments and appurtenances, for the pur- pose of distributing the proceeds of such sain among the heirs of said deceased, according to said decree of assignment, in the same manner and upon the same terms and conditions as are prescribed by law for the sale of real estate for the payment of debts, etc. Dated State or Michigan, \ |-ss. County of J The above named petitioner being duly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and be- lief, and as to those matters believe them to be true. Subscribed and sworn to at , this day of , A, D. 18 , before me No. 93. PETITION FOR LICENSE TO SELL REAL ESTATE TO PAY LEGACIES. State of Michigan, ) > ss. Probate Court for said County County of ) To , Judge of Probate for said County. In the matter of the estate of , deceased. Your petitioner would respectfully represent to the Court, that on the day of , 18 , was duly appointed by said Court of said deceased, who de parted this life on the day of , 18 , APPENDIX OF FORMS. [NO. 93 CONTINUED.] leaving a last will and testament which was duly allow- ed and admitted to probate by said Court, on the day of ,18 , and that in and by said will the testator gave certain legacies which are effectual to pass or change his real estate ; which legacies amount to the sum of dollars, as shown by said will : That the personal estate of said deceased that has come into the hands of your petitioner, amounts to the sum of dollars, of which dollars remain undisposed of. Your petitioner further represents that as far as can be ascertained, and as he verily believes, the just debts which said deceased owed at the time of his decease and now due and outstanding against his estate, amount to the sum of dollars, and that the charges of ad- ministering said estate, including future probable charges, will amount to the sum of dollars. Your petitioner further represents that in view of the facts and statements aforesaid, and as he verily believes, that the goods, chattels, rights and credits of said de- ceased are insufficient to pay such legacies, together with the debts and charges of administration of said estate: and that it will be necessary for the purpose of paying such legacies, debts and charges to raise the sum of dollars, by the sale of the following described real estate, or some part thereof, of which the said de- ceased died seized and possessed, the description, con- dition and value of each parcel and the whole of his real estate, according to the information and belief of your petitioner, are as follows, viz: Your petitioner further represents that the names and residence of the heirs at law of said deceased, and other persons interested in said estate, as your petitioner is informed and believes, are as follows: Wherefore your petitioner prays, that may be authorized, empowered and licensed to sell the real APPENDIX OF FORMS. [NO. 93 CONTINUED.] estate hereinbefore described, with the hereditaments and appurtenances, or so much thereof as will be suf- ficient for the payment of said legacies, together with the debts and charges of administration aforesaid, according to the statute in such case made and provided. Dated State of Michigan, Comity of The above named petitioner being duly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein' stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at , this day of , A. D. 18 , before me, No. 94. PETITION FOR LICENSE TO MORTGAGE REAL ESTATE. State of Michigan, ■ as. Probate Court for said County. County of To , Judge of Probate for said County. In the matter of the estate of Tour petitioner would respectfully represent to the Court, that on the day of ,18 , was duly appointed by said Court of said That the personal estate of said that has come into hands amounts to the sum of dollars, of which dollars remain undisposed of. Your petitioner further represents that so far as can be ascertained by , and as is informed and verily believes, the just debts outstanding against said amount to the sum of dollars, and that the APPENDIX OF FORMS. . [NO. 94 CONTINUED.! charges and expenses of managing and administering said estate, including future probable charges and ex- penses, will amount to the sum of dollars, and that the sum of dollars per annum is necessary and re- quired for the proper support and maintenance of said Your petitioner further represents that the following described real estate now belongs to said estate, and that the description, condition and value of each parcel and of the whole of said real estate, according to the information and belief of your petitioner, are as follows, viz: Your petitioner further represents that said ward is of the age of years, and on account of is not able to render much assistance in supporting himself, and that Your petitioner further represents that the names and residence of the next of kin and heirs at law of said , and all other persons interested in said estate, as your petitioner is informed and believes, are as follows: Your petitioner further represents, upon his infor- mation and belief, that the income from said real estate in its present condition will not exceed the sum of dollars per annum, which, together with such residue of personal estate, is not sufficient to pay said debts, expenses and charges and support and maintain said , and that it will be necessary for the purpose of paying such debts, expenses and charges and support- ing and maintaining said , to borrow the sum of dollars, by the way of mortgage upon such real estate, or otherwise pledge the same for such purpose as the Court shall direct. Wherefore your petitioner prays that may be authorized, empowered and licensed to borrow said sum APPENDIX OF FORMS. fNO. 94 CONTINUED.] of money, by the way of mortgage upon such real estate or some part thereof, or otherwise pledge the same as the Court shall deem best, for the purpose of paying such debts, charges and expenses, and supporting and maintaining said , according to the provisions of the statute in such case made and provided. Dated State of Michigan, County of The above named petitioner being duly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at , this day of , A. D. 18 , before me, State of Michigan, County of We superintendents of the poor of said County, hereby certify that we approve of the proposed mort- gage of real estate herein mentioned, and deem the same necessary. C. L. 1431, (4585). No. 95. BOND ON MORTGAGE OF REAL ESTATE. State of Michigan, ,- 88. Probate Court for said County. County of In the matter of the estate of Know all men by these presents, that we , as principal and as sureties, all of the County of , APPENDIX OF FORMS. [NO. 95 CONTINUED.] within the State of Michigan, are hoi den" and stand firmly bound and obliged unto , Judge of Probate for the County of aforesaid, in the full sum of dollars, lawful money of the United States of America, to be paid unto the said Judge of Probate, as afore- said, or to his successors in office, or assigns; to the true payment whereof we do bind ourselves, and each of us, our and each of our heirs, executors and admin- istrators, jointly and severally, firmly by these presents. Sealed with our seals, dated the day of , Anno Domini one thousand eight hundred and The condition of this present obligation is such, that whereas the above bounden in capacity of of , at a session of the Court of Probate in and for said County, on the day of , obtained an order and license to mortgage so much of the real estate of said as is specified in said order, in order to pay his just debts and the charges of administering said estate, and support and maintain said Now, Therefore, if the said ■ shall and do well and faithfully execute the said trust, and faithfully apply and account for all moneys received thereby, and for all the proceeds of any mortgage executed under such license, and shall and do dispose of the same according to law, and shall and do in all things relating to said mortgage, govern by the laws of said State, so that the interests of all creditors and heirs, and others inter- ested, shall be best secured, then the above written obligation to be void ; otherwise to remain in full force and virtue. [SEAL.] [SEAL.] [SEAL.] ' APPENDIX OF FORMS. [no. gs continued] County, ss. At a session of the Pro- bate Court iD and for said County, holden at , on , the day of , A. D. 18 . I have examined and do approve of the foregoing bond, and the sureties therein, and order the same to be filed and recorded in the Probate office of said County. . Judge of Probate. State of Michigan, County of , the sureties in the foregoing bond, being sworn each for himself, says that he is worth the amount of the penalty in said bond over and above all debts and legal exemptions. Subscribed and sworn to before me , this day of , 18 . No. 96. EXECUTOR'S, ADMINISTRATOR'S AND GUARDIAN'S LICENSE TO MORTGAGE REAL ESTATE. State of Michigan. County of At a session of the Probate Court for said County, held at the Probate office in the of , on the day of , in the year one thousand eight hundred and Present, Hon. , Judge of Probate. In the matter of the estate of This day having been appointed by the Court for hearing the petition of , of said , praying, for reasons therein set forth, that he may be licensed to borrow money by way of mortgage on certain real estate 18 APPENDIX OF FORMS. [NO. 96 CONTINUED.] in said petition described; now come into Court, the said petitioner And it appearing to the satisfaction of this Court, by due proof on file, that due notice of the hearing of said petition has been given to all persons interested, as directed by the Court: And it further satisfactorily appearing to this Court, after full hearing upon said petition, and on examination of the proofs and alle- gations of the petitioner , that the debts and valid claims so far as the same can be ascertained, which are now due and outstanding against said estate, amount to the sum of exclusive of interest ; and the personal estate of said in the hands of said is insufficient to pay all said debts and claims, with the charges of administering said estate, and that therefore, it is necessary to borrow money by way of mortgage on the real estate described in said petition, to pay said debts, claims, interest and charges, and support and maintain said ; and no person interested in said estate having given a bond to pay the same as author- ized by law: Therefore, in consideration of the premises, it is ordered, adjudged and decreed by this Court, that said be, and is hereby authorized, empowered and licensed, pursuant to the statute in such case made and provided, to borrow, for the purposes aforesaid, the sum of dollars, and secure the payment of the same by executing a mortgage upon the lands hereinafter de- scribed, which mortgage shall be conditioned for the payment of said sum, in years from the date hereof, with interest at the rate of per cent, per annum, payable , subject to all incumbrances by mortgage or otherwise, existing at the time of (the death of said deceased, or at the time of ,) and also subject to the right of dower and the homesttad rights of the widow of said deceased therein. APPENDIX OF FORMS. [NO. 96 CONTINUED.] And it is further ordered, that said give a bond in the penal sum of dollars, with sureties, to be approved by said Judge, for the faithful discharge of duty in the premises, as required by law, and also before making the same take and subscribe the oath prescribed by the statute in such case made und provided. And it is further ordered, that said immediately after the execution of said mortgage, and before the same is delivered, make and return to this Court a full report of proceedings in the premises by virtue hereof. The real estate authorized to be mortgaged under, and by virtue of this decree, is situated in the of in the County of , Michigan, and more par- ticularly specified and described as follows: [■US. State of Michigan, County of I hereby certify that the foregoing is a true copy of the order, and of the whole thereof, heretofore entered in the above matter, authorizing the mortgage by the said of the above described real estate. Dated , 18 , Judge of Probate for said County. No. 97. REPORT OF MORTGAGING REAL ESTATE. State of Michigan, Probate Court for the County of In the matter of the estate of To the Honorable the Judge of Probate for said County ; APPENDIX OF FORMS. [NO. 97 CONTINUED.] The undersigned of said hereby respectfully report proceedings in borrowing money by way of mortgage on the real estate of said , which licensed to do by an order of said Court, made on the day of , A. D. one thousand eight hundred and seventy , as follows : That in pursuance of said order he gave a bond with sufficient sureties, which was duly approved, and filed in said Court, and took and subscribed the oath required by law, and executed a mortgage bearing date A. D. one thousand eight hundred and seventy- , to for the sum of dollars, payable , with interest thereon from the date of such mortgage, at the rate of per cent., payable on the follow- ing despribed real estate, to wit : Your petitioner further represents that in negotiating said loan, he has used great diligence, in order to obtain said money upon the best terms possible for said estate, and that the terms and conditions herein Set forth are the most favorable that he is able to obtain. The undersigned therefore respectfully request that said proceedings in mortgaging such estate may be con- firmed. State of Michigan, County of J-ss. On this day of , A. D. one thousand eight hundred and seventy , personally appearing before me, , who being by me duly sworn, did dispose and say, that he had read the foregoing report by subscribed, and knew the contents thereof, and that the same was true according to the best of knowledge and belief. APPENDIX OF FORMS. No. 98. > ss. CONFIRMATION OF MORTGAGE OF REAL ESTATE. State of Michigan, County of At a session of the Probate Court for said County, held at the Probate office in the of , on the day of , in the year one thousand eight hundred and Present, , Judge of Probate. In the matter of the estate of License to borrow money by way of mortgage on the real estate of having been on the day of , A. D. 18 , by an order of said Probate Court, duly granted to of said , and a certified copy of said order having been delivered to as aforesaid: Now come into Court the said as aforesaid, and make return of proceedings upon the order afore said, for borrowing money by way of mortgage on said real estate, to the said Judge of Probate, from which it appears, that pursuant to said license the undersigned borrowed of the sum of dollars, and to secure the payment of the same, executed a morlgage to , bearing date the day of , 18 , conditioned for the payment of said sum in years from the date thereof, with interest at the rate of per cent, per annum, payable upon the following described real estate to wit : And the said having on the day of , 18 , taken and subscribed an oath in due form as re- quired by law, previous to executing said mortgage, and having given bond as in said license directed, which has been duly approved by said Judge of Probate, and after a full examination of all the proceedings in the premises, it appearing to the Court that such proceed- APPENDIX OF FORMS. [NO. 98 CONTINUED.] ings have been fairly and legally conducted, and ought to be confirmed. It is therefore ordered, adjudged and decreed, that said proceedings in mortgaging said real estate, be and the same are hereby approved and confirmed, and that said mortgage be delivered to said mortgagee upon receipt of the amount secured thereby. In witness whereof, I have hereunto set my hand and affixed the seal of the Probate Courtj at this day of , A. D. 18 . , Judge of Probate. No. 99. PETITION BY GUARDIAN FOR LICENSE TO SELL REAL ESTATE, TO EXPEND OR INVEST THE PROCEEDS. State of Michigan. ) > ss. Probate Court for said County. County of ) To , Judge of Probate for said County. In the matter of the estate of Your petitioner would respectfully represent to the Court that on the day of , 18 , was duly appointed by said Court, guardian of the person and estate of said . That the value of the personal estate of said ward is about the sum of dollars, and the nature and condition thereof is as follows: Your petitioner further represents that said ward is the owner of the following described real estate, the description, condition and value of each parcel thereof, and of the whole of said real estate, according to the information and belief of your petitioner, are as follows, viz: APPENDIX OP FORMS. [NO. 99 CONTINUED.] Your petitioner further represents that said ward is of the age of years, and on account of , is not able to render much, if any, assistance in supporting himself and his family, which consists of the following persons, whose names and ages are as follows: And that Your petitioner further represents that as far as can be ascertained by and as is informed and verily believes, the charges and expenses of managing and administering said estate will amount to the sum of dollars per annum, and that the sum of dollars per annum is necessary and required for the proper support and maintenance of said ward and his said and for the education of said or the children of said Your petitioner further represents that the income from said estate, in its present condition, will not exceed the sum of dollars per annum, and is not sufficient for the purposes aforesaid, and is not as large an income as said real estate will produce if sold and the proceeds otherwise invested: that there can be realized from the sale of said real estate, the sum of dollars, which can be readily put out on interest or invested in other more productive real estate or productive stocks, and when so invested, will produce an income of dollars per annum, or thereabout, and that it would be for the best interest and benefit of said ward that said real estate, or some part thereof, be sold, and the proceeds thereof invested as aforesaid, as your petitioner is informed and verily believes. Your petitioner further represents that the names and residence of the next of kin of said , and all other persons interested in said estate, as your petitioner is informed and believes, are as follows : APPENDIX OP FORMS. [NO. 99 CONTINUED.] Wherefore, your petitioner prays that may be authorized, empowered, and licensed to sell the real estate hereinbefore described, with the hereditaments and appurtenances, or so much and such part thereof as the Court shall determine to be necessary and most for the benefit of all persons interested, for the purpose of paying the expenses and charges aforesaid, and ex- pending or investing the proceeds thereof as the Court shall direct, for the purposes above mentioned, according to the provisions of the statute in such case made and provided. State of Michigan, 1 >• ss. County of ) The above named petitioner being duly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters , believe them to be true. Subscribed and sworn to at , this day of , A. D. 18 , before me . v State of Michigan, County of We, , superintendents of the poor of said County, hereby certify, that we approve of the proposed sale of real estate herein mentioned, and deem the same necessary. C. L. 1431 (4585.) and C. L. 1436 (4608.) APPENDIX OF FORMS. No. 100. CERTIFICATE OF SUPERINTENDENTS OF POOR ON SALE OF REAL ESTATE BY GUARDIAN OF AN INCOMPE- TENT PERSON. C. L. (4585) AND (4608). State op Michigan, } > ss. Probate Court for said County. County of ) To Judge of Probate for said County. In the matter of the estate of , an incompe- tent person. The undersigned, being all of the Superintendents of the Poor of said county, do hereby certify that they have carefully examined the matter of the pro- posed sale of the real estate of said wai'd, now pend- ing in said Court, and that they approve of such pro- posed sale, and deem the same necessary. Dated No. 101. BOND FOR GUARDIANS ON SALE OF REAL ESTATE TO EXPEND OR INVEST THE PROCEEDS, AND FOR EX- ECUTORS, Etc., ON SALE OF REAL ESTATE, FOR DISTRIBUTION OR TO PAY LEGACIES. State op Michigan, ) > ss. Probate Court for said County. County of ) In the matter of the estate of Know all men by these presents that we as principal and as sureties, all of the county of , within the State of Michigan, are holden and stand firmly bound and obliged unto , Judge of Probate for the County of , aforesaid, in the full sum of dollars lawful money of the United States of America, to be paid unto the said , APPENDIX OP FORMS. NO. IOI CONTINUED. Judge of Probate, as aforesaid, or to his siiccessors in office, or assigns ; to the true payment thereof we do bind ourselves, and each of us, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , Anno Domini, one thousand eight hundred and The condition of the above obligation is such, that whereas, the above bounden in the capacity of of said , at a session of said Probate Court, holden on the day of one thousand eight hundred and , obtained license to make sale of certain real estate of said for the purpose in said license mentioned Now Therefore, If the said as aforesaid, shall and will well and truly sell said real estate, in the manner provided by law for the sale of real estate by Executors and Administrators, and shall account for and dispose of the proceeds of said sale in the manner provided by law, and shall, in all things rela- tive to said sale, govern by the law of said State, so that the interest of said and all persons inter- ested in said estate shall be secured ; then the above obligation to be void, otherwise to remain in full force and virtue. [ L . s.j [ L . s.] [L. S.] County, ss. At a session of the Probate Court in and for said County, holden at on the day of A. D. 18 APPENDIX OF FORMS. NO. IOI CONTINUED. I have examined ancb do approve of the foregoing bond and the sureties therein, and order the same to be filed and recorded in the Probate Office of said County. Judge of Probate. State of Michigan, County of the sureties in the foregoing bond, being sworn, each for himself, says, that he is worth the amount of the penalty in said bond, over and above all debts and legal exemptions. Subscribed and sworn to before me this day of 18 No. 102. LICENSE FOP, GUARDIANS TO SELL REAL ESTATE TO EX- PEND OR INVEST THE PROCEEDS, AND FOR EXECU- TORS, Etc., FOR THE PURPOSE OF DISTRIBU- TION AND TO PAY LEGACIES. State of Michigan, County of At a session of the Probate Court for said county, held at the Probate office, in the of on the day of in the year one thousand eight hundred and Present, Judge of Probate. In the matter of the estate of This day having been appointed by the Court for hearing the petition of of said of , praying, for reasons therein set forth, that he may be APPENDIX OF FORMS. NO. I03 CONTINUED. licensed to sell certain real estate, in said petition described; Now come into Court the mid Petitioner : And it appearing to the satisfaction of this Court, by due proof on file, that due notice of the hearing of said petition has been given to all persons interested as directed by the Court ; And it further satisfac- torily appearing to this Court, after full hearing upon said petition, and on hearing and full examination of the proofs and allegations of the Petitioner that it is necessary, or would be for the interest of said , that said real estate be sold for the purpose of Therefore, in consideration of the premises, it is Ordered, Adjudged and Decreed by this Court, That said as aforesaid, be and hereby empowered, authorized and licensed to sell, pursuant to the stat- ute in such case made and provided, said real estate hereinafter designated and described, and in the order in which the same is hereinafter set forth, and for the purposes aforesaid, subject to all incum- brances by mortgage or otherwise existing at the time of the , and also subject to the right of dower and the homestead rights of the widow of said deceased therein. And it is further Ordered, That said give a bond in the penal sum of dollars, with sure- ties, to be approved by said Judge, for the faithful discharge of duty in the premises as required by law, and that give public notice of the time APPENDIX OF FORMS. NO. 102 CONTINUED. and place of holding such sale, by posting up such notice in three of the most public places in the Township in which the land hereby authorized to be sold is situate, and also publish such notice in a newspaper printed in the county for six weeks successively next before such sale, and also before making the same, take and subscribe the oath pre- scribed by the statute in such case made and pro- vided. And it is further Ordered, That said imme- diately after such sale made, make return hereupon to this Court, of his proceedings in the premises by virtue hereof. The real estate authorized to be sold under and by virtue of this decree is specified, designated and described as follows, to wit : No. 103. BOND TO PREVENT THE SALE OF REAL ESTATE. State op Michigan, - ss. Probate Court for said County. County of ) In the matter of the estate of deceased. Know all men by these presents, That we , as principals, and as sureties, are held and firmly bound unto , Judge of Probate for said county, in the sum of dollars lawful money of the United States of America, to be paid to the said or to his successors in said office or assigns, to which payment well and truly to be made bind APPENDIX OF FOEMS. NO. 103 CONTINUED. heirs, executors and administrators, and each and every of them firmly by these presents. Sealed with seal , dated the day of , one thousand eight hundred and seventy The condition of this Obligation is such, That, whereas , as of said deceased has presented to said Probate Court his petition for license to sell the real estate of said deceased for the purpose of paying the debts of said deceased and the charges and expenses of administering his estate, and whereas, the above named obligors are persons interested in said estate as of said deceased, and desire that said real estate shall not be sold, now therefore, if the above bounden obligors shall and do well and truly pay or cause to be paid all the debts of said deceased, and all the charges and expenses of administering his estate, so far as the goods and chattels, rights and credits of said deceased shall be insufficient therefor, within such time as the Judge of Probate shall direct, and shall perform all orders and decrees of the Pro- bate Court aforesaid, by the said to be performed in the premises : Then the before written obligation to be void and of none effect, or else to abide and remain in full force and virtue. [L. S.J [L. S.] [L. S.] County, ss. At a session of the Probate Court in and for said County, holden at on the day of A. D. 18 APPENDIX OF FORMS. NO. I03 CONTINUED. I have examined and do approve of the foregoing bond and the sureties therein, and order the same to be filed and recorded in the Probate Office of said County. Judge of Probate. State of Michigan, County of the sureties in the foregoing bond, being sworn, each for himself, says, that he is worth the amount of the penalty in said bond, over and above all debts and legal exemptions. Subscribed and sworn to before me this day of 18 . No. 104. BOND ON SALE OF REAL ESTATE TO PAY INCUMBRANCES, ETC., UNDER C. L. (4576). State op Michigan, ' - ss; Probate Court for said County. County of In the matter of the estate of deceased. Know all men by these presents, that we as principals, and as sureties, are held and firmly bcfund unto , being the of said deceased, in the sum of dollars, lawful money of the United States of America, to be paid to the said or to his successors in said office or assigns, to which pay- ment well and truly to be made bind heirs, executors and administrators, and each and every of them firmly by these presents. Sealed with seal, dated the day of one thousand eight hundred and APPENDIX OP FORMS. NO. 104 CONTINUED. The condition of this Obligation is such, That, whereas, said deceased did, on the day of , 18 , execute and deliver to a and mort- gage upon certain lands therein described, whereof he died seized, to secure the payment of the sum of dollars, by reason whereof said estate is liable for the amount unpaid upon said mortgage, which mortgage is recorded in the Register's office for County in liber of mortgages, page ; and whereas, said obligee , under the license granted by said Court, has sold said lands to said , and has reported such sale to said Court for confirmation. Now Therefore, if the said obligors shall pay the amount unpaid upon said and mortgage, accord- ing to the terms and conditions thereof, and indem- nify said obligee, and all persons entitled to the interest of said deceased in said lands, against all liability, loss or damage on account of said and mortgage, then this Obligation to be void, otherwise to remain in full force and virtue. [L. S.j [L. S.] [L. S.] [L. S.] County, ss. At a session of the Probate Court in and for said County, holden at on the day of A. D. 18 I have examined and do approve of the foregoing bond and the sureties therein, and order the same to APPENDIX OF FORMS. NO. I04 CONTINUED. be filed and recorded in the Probate office of said County. Judge of Probate. State of Michigan, County of the sureties in the foreging bond, being sworn, each for himself, says, that he is worth the amount of the penalty in said bond, over and above all debts and legal exemptions. Subscribed and sworn to before me this day of 18 . No. 105. BOND OF INDEMNITY C. L. (4572). State of Michigan, ) > ss. Probate Court for said County. County of ) In the matter of the estate of deceased. Know all men by these presents, that we, as principals, and as sureties, are held and firmly bound unto , being the of said deceased, in the sum of dollars lawful money of the United States of America, to be paid to the said or to his suc- cessors in said office or assigns, to which pay- ment well and truly to be made bind heirs, executors and administrators, and each and every of them firmly by these presents. Sealed with Seal, dated the day of one thousand eight hundred and The condition of this obligation is such, that APPENDIX OF FORMS. NO. 105 CONTINUED. whereas did on the day of 18 execute and deliver to said deceased a contract in writing for the sale to said deceased of acres of land or thereabouts, therein described, for the sum of dollars, and upon the terms and conditions therein mentioned, and whereas said contract was on the day of 18 , duly sold, by the said obligee under the license granted by said court, to said , which sale has been reported to said court for confirmation ; Now, therefore, if the said obligor shall pay the amount unpaid upon said contract according to the terms and conditions thereof, and indemnify said obligee, and all persons entitled to the interest of said deceased in said lands, against all liability, loss or damage on account of said contract, then this obliga- tion to be void, otherwise to remain in full force and virtue. [L. S.J [L. S.] [L. S.] [L. S.] Coimty, ss. At a session of the Probate Court in and for said County, holden at on the day of A. D. 18 I have examined and do approve of the foregoing bond and the sureties therein, Judge of Probate. State of Michigan, ) [ss. County of ) the sureties in the foregoing bond, being sworn, each for himself, says, that he is worth the amount of APPENDIX OF FORMS. NO. 105 CONTINUED. the penalty in said bond, over and above all debts and legal exemptions. Subscribed and sworn to before me this day of 18 . No. 106. EXECUTOR'S, ADMINISTATOR'S OR GUARDIAN'S DEED. Know all men by these presents, that pursuant to an Order of the Judge of the Court of Probate for the County of and State of Michigan, held at the Probate Office in the in said County and State, on the day of in the year of our Lord one thousand eight hundred and , author- izing, empowering and licensing to sell at Public Auction, in conformity to the Statute in such case made and provided, sufficient of the Real Estate whereof said seized, for the purpose in said Order mentioned did sell at Public Auction, held at in the of in the County of and State aforesaid, pursuant to legal notice, all the estate, right, title and interest of said of, in and to cer- tain Real Estate and premises in said Order set forth and hereinafter described, to , he being the high- est bidder therefor : which said sale was made by an Order of said Judge of Probate, on the day of in the year one thousand eight hundred and , duly confirmed, and the said directed therein to execute, acknowledge and deliver a proper conveyance or conveyances of said Real APPENDIX OP FORMS. NO. 106 CONTINUED. Estate so sold, to the purchaser thereof, agreeably to the Statute in such case made and provided. JVow know ye, that in pursuance of said several Orders and proceedings above referred to, and in con- sideration of the sum of paid to by said the receipt whereof do hereby acknowledge have sold, and do hereby give, grant, sell and convey unto the said , heirs and assigns, Forever, To have and to hold the above granted premises, with the appurtenances, to the said , heirs and assigns, forever. And do hereby covenant with the said that will warrant and defend the said granted premises, with the appurtenances, unto the said , heirs and assigns, forever, against the lawful claims and demands of all persons claiming by, from or under , but against no other persons. In Testimony Whereof, have hereunto set hand and seal at in the County of and State aforesaid, this day of A. D. one thousand eight hundred and Signed, Sealed and Delivered in the Presence of [L. S.] [L. S.] State op Michigan, ) County of ) On this day of A. D. one thousand eight hundred and , before me, a in and for said County, personally came the above named , known to me to be the person who executed APPENDIX OF FORMS. NO. Io6 CONTINUED. the foregoing instrument, and acknowledged the same to be free act and deed, as as in said instru- ment described, i No. 107. EXECUTOR'S DEED, UNDER POWER OF SALE IN A WILL. This Indenture, made the day of in the year of our Lord one thousand eight hundred and , between of the first part, and of the second part. Witnesseth, that the said part of the first part, by virtue of the power and authority to given by the last will and testament and for and in consideration of the sum of to paid by the said part for the second part, the receipt whereof is hereby acknowledged, ha granted, bargained, sold and conveyed, and by these present do grant, bargain, sell and convey unto the said part of the second part, and to heirs and assigns forever, all Together with all and singular the tenements, hereditaments and appurtenances thereto belonging or in any wise appertaining, and the reversions and remainders, rents, issues and profits thereof. And all the estate, right, title, interest, property possession, claim and demand whatsoever, which the said testa had in life time, and at the time of decease, and which the said part of the first part ha by virtue of the said last will and testament or otherwise, of, in and to the above described prem- APPENDIX OP FORMS. NO. 107 CONTINUED. ises and every part and parcel thereof with the ap- purtenances, to home and to hold, forever. And the said part of the first part, for and for heirs, executors and administrators, do covenant, promise and agree to and with the said part of the second part, heirs and assigns, that ha not made, done, committed, executed or suffered any act or acts, thing or things whatsoever, whereby, or by means whereof, the above mentioned and described premises, or any part or parcel thereof, now are or at any time hereafter shall or ' may be impeached, charged or encumbered in any manner or way what- soever. In Witness Whereof, the said part of the first part ha hereunto set hand and seal the day and year first above written. Signed and Delivered in the Presence of [L. S.] [L.S.] State of Michigan, County of On this day of A. D. one thousand eight hundred and before me, a in and for said county, personally came the above named known to me to be the person who executed the forego- ing instrument, and acknowledged the same to be free act and deed, as as in said instru- ment described. APPENDIX OP FORMS. No. 108. PETITION FOR LICENSE TO SELL PERSONAL PROPERTY. State op Michigan, - ss. Probate Court for .laid County. County of To Judge of Probate for said County : In the matter of the estate of deceased, Your petitioner would respectfully represent to the Court that the personal estate of said deceased that has come into hands amounts to the sum of dollars, consisting of Your petitioner further represents, that as far as can be ascertained by and as verily believes, the just debts outstanding against said deceased amount to the sum of dollars, and the legacies in the will of said deceased amount to the sum of dollars, and that the charges and expenses of administering said estate, including future probable charges and expenses, will amount to the sum of dollars. Your petitioner further represents that it is neces- sary for the purpose of paying said debts, charges, expenses and , and for the purpose of preserv- ing said property, and realizing the most possible therefrom, to sell said personal estate, or some part thereof, the nature, description and condition of which is as follows, viz : Your petitioner therefore prays that a day be fixed for hearing this petition, and due notice thereof given to all persons interested as the Court shall direct, and that may be authorized, empowered and licensed to sell said personal property at private APPENDIX OP FORMS. NO. 108 CONTINUED. sale or public auction as may find to be most beneficial for said estate, for the purposes aforesaid, according to the provisions of the statute in such case made and provided. State of Michigan, ) >-ss. County of ) The above named Petitioner being duly sworn, say that ha read the foregoing petition by signed, , and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at this day of A. D. 18 , before me, No. 109. EXECUTOR'S AND ADMINISTRATOR'S LICENSE TO SELL PERSONAL ESTATE. State of Michigan, County of At a session of the Probate Court for said County, held at the Probate Office, in the of on the day of in the year one thousand eight hundred and Present, Judge of Probate. In the matter of the estate of , deceased. This day having been appointed by the Court for hearing the Petition of , the of said deceased, praying, for reasons therein set forth, that he may be APPENDIX OP POEMS. NO. log CONTINUED. licensed to sell certain Personal Estate of said deceased, in said Petition described ; now come into Court the said Petitioner , and it appearing to the satisfaction of this Court, by due proof on file, that due notice of the hearing of said Petition has been given to all persons interested as directed by the Court. And it further satisfactorily appearing to this Court, after full hearing upon said Petition, and on hearing and full examination of the proofs and .allegations of the Petitioner that it is necessary to sell said Personal Estate or some part thereof, for the purpose of paying the debts and expenses of adminis- tration of said estate and the in the will of said deceased, and for the purpose of preserving said per- sonal property and realizing the most possible there- from: Therefore, in Consideration of the Premises, it is Ordered, Adjudged and Decreed by this Court, That said , as aforesaid, be and hereby empowered, authorized and licensed to sell, pursuant to the stat- ute in such case made and provided, all the Personal Estate of said deceased, hereinafter designated and described, for the purposes aforesaid, at private sale or public auction, as may find to be most beneficial for said estate. And if said shall determine that it will be most beneficial to sell any of said Per- sonal Estate at public auction, then shall give days previous notice of the time and place of such sale by posting a sheet printed notice thereof in public places in the city or township where said APPENDIX OF FORMS. NO. 109 CONTINUED. sale takes place and also where said estate is situated, and by distributing such printed notices in said city or township or elsewhere as may deem best. The Personal Estate authorized to be sold under and by virtue 'of this Order or Decree is described as follows, to wit : No. 110. PETITION FOR SPECIFIC PERFORMANCE OF LAND CON- TRACTS BY EXECUTORS AND ADMINISTRATORS AND GUARDIANS OF MINORS. State of Michigan, ) > ss. Probate Court for said County. County of ) To Judge of Probate for said County. In the matter of the estate of , Your petitioner would respectfully represent to the Court that , now deceased, did in his life time, to wit, on the day of 18 , duly execute and deliver to a contract in writing to convey to said certain real estate therein described, upon the terms and con- ditions therein mentioned, a copy of which contract is hereto annexed. Your petitioner further shows that said died on the day of 18 , with- out making the conveyance required by such contract, and that was on the day of 18 , duly appointed of said deceased. And your petitioner further represents that the names and residence of the heirs at law of said deceased and other persons interested in said estate, as your petitioner is informed and believes, are as follows : APPENDIX OF FORMS. NO. IIO CONTINUED. Your petitioner further represents that he has paid upon said contract the following sums, at the dates mentioned, to wit : and that there is now due and unpaid upon said con- tract the sum of dollars, and upon the payment of said sum, your petitioner is entitled to a convey- ance of said lands by the terms of said contract. Your petitioner further represents that he is pre- pared and willing to pay said sum, and is ready and hereby offers to perform all the requirements and conditions of said contract on his part to be performed as said Court shall direct. Your petitioner therefore prays that a time and place be fixed for the hearing of this petition, and that due notice thereof be given to all persons interested, as the Court shall direct, and that a specific perform- ance of said contract may be decreed, and that by such decree said may be authorized and directed to make and execute a conveyance of the real estate described in said contract to your petitioner upon the terms and conditions therein mentioned, and that such other and further order and proceedings may be had iu the premises as may be required by the statutes in such case made and provided. Dated A. D. 18 . State of Michigan, ) [•ss. County of ) The above named petitioner beingduly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the APPENDIX OP PORMS. NO. no CONTINUED. same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at this day of A. D. 18 , before me, No. 111. DECREE FOR CONVEYANCE OP LAND BY ADMINISTRATOR, Etc., UPON CONTRACT OP DECEASED. State of Michigan, County of At a session of the Probate Court for said county, held at the Probate office, in the of on the day of in the year one thousand eight hundred and Present, Judge of Probate. In the matter of the estate of deceased. This day having been appointed by the Court for hearing the petition of praying, amongst other things, for reasons therein set forth, that adminis- trat of said estate ; may be authorized and required to convey certain real estate in said petition described to said petitioner, in pursuance of a certain contract alleged to have been made by said deceased in his lifetime. Now come the said Petitioner, And it satisfactorily appearing upon due proof, by affidavit on file, that a copy of the order of this Court touch- ing the hearing of said petition, made on the APPENDIX OP FORMS. NO. Ill CONTINUED. day of last past, has been published as therein directed, whereby all persons interested in said estate were duly notified of said hearing, as required by law. And it further satisfactorily appearing, after a full hearing upon said petition and examination of the facts and circumstances of the claim of the petitioner that said did, in his lifetime, to wit : on the day of , in the year one thousand eight hundred and , make and enter into a certain contract, writing, to and with the said petitioner, for the conveyance of said real estate, and that he is now entitled to a conveyance thereof, and to have and hold the same in fee simple, according to the statute in such case made and provided, upon paying, or causing to be paid, to said administrat the sum of the balance of the purchase price of said real estate within months. It is therefore Ordered, Adjudged and Decreed by this Court, that upon the petitioner paying, or caus- ing to be paid, said sum of money, as aforesaid, said be, and he hereby authorized, empowered and directed to make, execute, acknowledge and deliver a sufficient conveyance in law, in fee simple, of said real estate, as hereinafter described, to said petitioner , his heirs and assigns, Forever, and of all the estate, right, title and interest, which the said deceased had therein at the time of his death, together with the appurtenances thereunto belong- ing, in pursuance of the statute in such case made and provided ; and And it is fwriher Ordered, That said petitioner APPENDIX OF FORMS. NO. Ill CONTINUED. recover his costs in this behalf by him expended, to be taxed against said estate. The real estate authorized and directed to be con- veyed under and by virtue of this decree, is described as follows, to wit : No. 112. PROBATE ORDER FOR HEARING FINAL ACCOUNT. State of Michigan, - ss. Probate Court for said County. County of At a session of the Probate Court for said county, held at the Probate office, in the of on the day of in the year one thousand eight hundred and Present, Judge of Probate. In the matter of the estate of , of said estate, comes into court and represent that he now prepared to render account as such Thereupon it is Ordered, that day, the day of next, at ten o'clock in the forenoon, be assigned for examining and allowing such account, and that the heirs at law of said deceased, and all other persons interested in said estate, are required to appear at a session of said Court, then to be holden at the Probate office in the of , in said county, and show cause, if any there be, why the said account should not be allowed : And it is fwrther Ordered, that said give notice to the per- sons interested in said estate, of the pendency of said account, and the hearing thereof, by causing a copy APPENDIX OP FORMS. NO. 112 CONTINUED. of this order to be published in the , a newspa- per printed and circulating in said county, three suc- cessive weeks previous to said day of hearing. (A true copy.) Judge of Probate. No. 113. ANNUAL ACCOUNT OP EXECUTORS, ADMINISTRATORS AND GUARDIANS. In Account with the Estate of Dr. Ce. -COUNTY— ss. being duly sworn, doth depose and say that the foregoing is a correct and true account of doings as of the estate of , and of the amount received and paid out by and the amount still in hands as such Subscribed and sworn to before me this day of A. D. 18 . Dated, A. D. 18 State of Michigan, County of At a session of the Probate Court for the county of holden at the Probate office in the of , on the day of in the year of our Lord one APPENDIX OP FORMS. NO. 113 CONTINUED. thousand eight hundred and Present, Judge of Probate. In the matter of the estate of This day having been assigned by the Court for hearing the foregoing annual account of as such , and it appearing satisfactorily to the Court, by due proof on file, that due notice of the hearing of said account has been given to all persons interested, as directed by the Court, and it further satisfactorily appearing, after a full examination and hearing upon said account, that the same is just and correct, and ought to be allowed, except the items hereafter mentioned, It is Ordered and Decreed by the Court, That the same be and is allowed as the annual account of the said , except the following items which are allowed as follows, viz : Judge of Probate. No. 114. FINAL ACCOUNT OF EXECUTORS AND ADMINISTRATORS. State of Michigan, - ss. In the Probate Court for said County. County of In the matter of the estate of deceased. To the Hon. , Judge of Probate for said county : The undersigned, of the of said deceased,' hereby submits final account as follows : Directions for Preparing this Account. — Mrst, The Executor, etc., should charge himself with each item of cash received, stating from ■whom and for what he received it. Secondly, Credit himself with each item of cash paid out, stating to whom and for what it is paid. Thirdly, APPENDIX OP FORMS. NO. II4 CONTINUED. Give a complete list and description of all the personal property, and real estate remaining on hand, and if any of the personal property is the proceeds of the sale of real estate, it should be thus described. The undersigned further represent that the fore- going account contains a correct statement of all the goods, moneys, property, and effects of said deceased, which have come to possession or knowledge , and also of all expenditures and disbursements made by for or on account of said estate. That the funeral charges, expenses of the last sick- ness of said deceased, and of administering estate, together with all claims allowed against it have been paid. That are sole of said deceased, that of the personal estate of said deceased there remains a residue of dollars in cash, and dollars consisting of the residue of the personal estate de- scribed above, and there also remains dollars, being the proceeds of the sale of real estate, and of the real estate there remains the pieces and parcels of land described above, to be assigned to the above named or to such other person or persons as this Court shall determine to be by law entitled to the same. Wherefore the undersigned pray that the forego- ing may be allowed as final account. State of Michigan, County of the above named , being duly sworn say he ha read the foregoing account and representa- tions by subscribed, and know the contents thereof, that the same are true of • own knowledge, APPENDIX OF FORMS. NO. II4 CONTINUED. except as to the matters therein stated to be on information and belief, and as to those matters he believe them to be true. Subscribed and sworn to before me this day of A. D. 18 Judge of Probate. ORDER ALLOWING FINAL ACCOUNT. State op Michigan, ) County of ) At a session of the Probate Court for the County of holden at the Probate Office in the of , on the day of , in the year of our Lord one thousand eight hundred and Present, Judge of Probate. In the matter of the estate of This day having been assigned by the Court for hearing the foregoing final account of as such , and it appearing satisfactorily to the Court by due proof on file that due notice of the hearing of said account has been given to all persons inter- ested, as directed by the Court, and it further satis- factorily appearing, after a full examination and hear- ing upon said account, that the same is just and correct, and ought to be allowed, except the items hereinafter mentioned. It is ordered and Decreed by the Court, That the same be and is allowed as the final account of the said , except the folloAving items which are allowed as follows, viz : Judge of Probate. APPENDIX OF POEMS. No. 115. PETITION FOR ASSIGNMENT OF RESIDUE OF ESTATE. State op Michigan, ,) - ss. Probate Court for said County. County of ) To , Judge of Probate for said County : In the matter of the estate of deceased, your petitioner would respectfully represent to the Court that was on the day of ,18 , duly appointed of said deceased, and accepted the trust ; that all the proceedings required by law, for the examination and allowance of all claims against said deceased, and for the proper administration and settlement of said estate, have been taken, as shown by the files and records of said court ; so that said estate is now in condition to be closed ; that the final account of said was on the day of last, after due notice given, presented, examined and allowed, and shows that of the personal estate of said deceased there remains a residue of dollars in cash, and dollars consisting of other personal property therein fully described, and also dollars, being the proceeds of the sale of the real estate of said deceased, and of the real estate there remains the pieces and parcels of land described in said account. Your petitioner further represents that all the debts, funeral charges, expenses of administration, and all allowances for the support of the family of the deceased during the progress of the settlement of the estate, and for the support of the children under seven years of age, have been fully paid or their payment secured as provided by law, that the wid- APPENDIX OF POEMS. NO. 115 CONTINUED. ow's dower has been assigned and her preferred claims to the personal estate fully satisfied or secured as required by law. Your petitioner further shows that the following advancements have been made to the following named of said deceased, viz : Your petitioner further represents that the follow- ing persons, whose names, ages, residence and rela- tionship to the deceased are as follows : are sole of said deceased, and are entitled to a share or portion of such residue of said estate in the follow- ing proportions : viz : Your petitioner therefore prays that a day be fixed for the hearing of this petition, and due notice thereof given to all persons interested, as the Court shall direct, and that such residue of said estate may be, by the decree of said Court, duly assigned to said in the proportions above mentioned, and that such further or other order or proceedings may be had in the premises as required by law. Dated, State of Michigan, County of The above named Petitioner being duly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at this day of A. D. 18 , before me, APPENDIX OF FORMS. No. 116. DECREE OF ASSIGNMENT OF RESIDUE OF ESTATE. State op Michigan, ) [•ss. County of ) At a session of the Probate Court for said county, held at the Probate office, in the of on the day of in the year one thousand eight hundred and Present, Judge of Probate. In the matter of the estate of deceased. This day having been fixed by the Court for the hearing of the petition of , for the assignment of the residue of said estate to the of said deceased, and it appearing to the Court by due proof on file, that due notice of the hearing of said peti- tion has been given to all persons interested, as directed by the Court ; and it further appearing that all the proceedings required by law for the proper administration and settlement of said estate have been taken, and that all the debts, funeral charges, expenses of administration, and all allowances for the support of the family of said deceased during the progress of the settlement of said estate, and for the support of the children under seven years of age, have been fully paid or their payment secured as provided by law, and that the widow's .dower has been assigned and her preferred claims to the per- sonal estate fully satisfied or secured, as required by law, and it further appearing that on the day of 18 , the final account of the of said deceased, after due notice given, was duly examined and allowed, and shows that there now remains of the personal estate of said deceased a residue of APPENDIX OF FORMS. NO. Il6 CONTINUED. dollars in cash and dollars consisting of other personal property therein fully described, and also dollars, being the proceeds of the sale of the real estate of said deceased ; and of the real estate of said deceased there remains the following described lands, viz: to be assigned to the of said deceased-according to ; and it further appearing that the follow- ing advancements have been made to the following named of said deceased, viz : , and that are sole of said deceased, it is therefore ordered, adjudged and decreed by the Court that such residue of personal estate and said pieces or parcels of land be and the same are hereby assigned to the said according to law and the of said deceased, to each, the following proportion or part of said estate, in the manner following, viz : To No. 117. PETITION FOR PARTITION. State op Michigan, - ss. Probate Court for said County. County of To Judge of Probate for said County. In the matter of the estate of deceased, your petitioner would respectfully represent to the Court that he is interested in said estate as of said deceased. That the following persons, whose names, ages and residence are as follows : are, as of said deceased, or as grantees of said , or as owners of an undivided interest therein, APPENDIX OF FORMS. NO. II7 CONTINUED. interested in the following described real estate, of which the said deceased died seized, viz : and that the said are, as aforesaid, inter- ested in the following described personal property belonging to said - estate, viz : And your petitioner further represents that the above described real and personal estate was, on the day of ,18 , upon the final settlement of said estate, duly assigned by decree of said Court to the above named in the following propor- tions : to each of said interested in said real estate one part thereof, and to each of said interested in said personal estate one part thereof. As by said decree of assignment, refer- ence being had thereto, will more fully appear. And your petitioner further shows, that the fol- lowing advancements have been made to the follow- ing named of said deceased, as determined by the Court in said decree of assignment, viz : And your petitioner further represents that has been appointed guardian of , heirs of said deceased, and that has been appointed agent for , heirs of said deceased residing out of this State, to act for them in the matter of this partition. And your petitioner further shows, that the said real and personal estate is now held in common and undivided by the said , their respective shares therein being in no manner separated or distinguished. And this petitioner further shows, that it would be for the benefit of the said that their several shares in the said real and personal estate should be APPENDIX OF FORMS. NO. 117 CONTINUED. partitioned, distributed and assigned to them respec- tively. Your petitioner therefore prays that all per- sons interested in said estate may be notified of the pendency and hearing of this petition, as required by law, and as this Court may direct. • And that parti- tion and distribution of said real and personal estate may be made amongst said according to the statute in such case made and provided, and that such other or further order and proceedings may be had in the premises as may be required by law, and as to this Court shall seem proper. Dated, State op Michigan, 1 [-SS. County of ) The above named Petitioner being duly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at this • day of A. D. 18 , before me, No. 118. COMMISSIONERS' WARRANT IN PARTITION. State of Michigan, • ss. Probate Court for said County. County of In the matter of the estate of deceased. To , three discreet and disinterested persons of said county, Greeting: APPENDIX OF FORMS. NO. Il8 CONTINUED. "Whekeas, at a session of the Probate Court for said county, holden at the Probate Office in in said county, on the day of in the year of our Lord one thousand eight hundred and It was Ordered, Adjudged and Decreed, by said Court, that partition and division of certain real estate here- inafter described, and of which the said deceased died seized and possessed, be made among his heirs at law, as hereinafter named according to their respective undivided interests and proportions therein, as the same was ascertained and determined by said Court and hereinafter set forth, that is to say: To one part thereof; which real estate is described as follows, viz : And you having been by said Court duly appointed Commissioners to make partition of said real estate in the premises, are hereby notified that has been duly appointed guardian of , heirs at law of said deceased, and that has been duly ap- pointed agent for , heirs at law of said deceased residing out of this State to act for them in the mat- ters of this partition. You will also take notice that the Court has determined that the following advance- ments have been made to the following named per- sons, viz : Now Therefore, In the name of the People of the State of Michigan, You are hereby authorized and empowered (being first duly sworn by the Judge of Probate or a justice of the peace, according to law, for the faithful discharge of your duty), well and truly, and according to your best skill and judgment, APPENDIX OF FORMS. NO. 118 CONTINUED. to appraise in dollars and cents, at the present cash value, all the real estate described as aforesaid, and thereupon you shall by sufficient metes and bounds or other apt designation, divide, sever and set off the same, quality and quantity relatively considered, to and among the several persons hereinbefore men- tioned, in severalty, according to their respective in- terests, and proportions therein, as the same was deter- mined, ordered and directed by said Court, as herein- before set forth. But before making such appraisal and partition, you shall give sufficient notice of the time and place of making the same to the said of said deceased.' And you shall also first divide and sever the estate of said deceased from the estate of any other persons with which it lies in common, if any, and in all other respects you are re- quired to conform to the » law prescribing your duty in the premises, and you shall make due return of your proceedings to said Court with all convenient speed. Witness, , Judge of said Probate Court, under his hand and the seal of said Court at this day of in the year one thousand eight hundred and Judge of Probate. State of Michigan, ) Vss. County of ) On this day of , in the year one thousand eight hundred and before me, the undersigned, personally appeared , the Commissioners in the foregoing Warrant named, and being by me duly sworn, they made oath that they would faithfully APPENDIX OF FORMS. NO. 118 CONTINUED. and impartially discharge the trust reposed in them by the foregoing Warrant. Before me, No. 119. NOTICE OF PARTITION OR SETTING OFF DOWER. State of Michigan, - ss. Probate Court for said County. County of In the matter of the estate of deceased. To being persons interested in said estate as widow, legatees and heirs at law of said deceased (or as guardians of such heirs as are minors or incompetent persons, or as agents for such heirs as now reside out of this State) : You will please take notice that the undersigned have been duly appointed by said Court as commis- sioners to of said deceased, and that we will meet at in the of in said county, on the day of 18 , to Dated, Commissioners. No. 120. REPORT OF COMMISSIONERS IN PARTITION. State of Michigan, - ss. Probate Court for said County. County of In the matter of the estate of deceased. We, the undersigned Commissioners, duly appointed APPENDIX OF FORMS. NO. I20 CONTINUED. by the foregoing and annexed Warrant, bearing date the day of , in the year of our Lord one thousand eight hundred and , by which we were authorized and directed to make partition and division of the estate of said deceased, as in said warrant described: Do hereby Certify and Return to said Court our doings in the premises: That having been duly sworn as required by law, for the faithful and impar- tial discharge of the trust reposed in us, we gave sufficient notice to the several persons mentioned in said warrant as interested in the premises therein described, that we would meet at on the day of , in the year of our Lord one thousand eight hundred and , at o'clock in the noon, and proceed to appraise said estate and to make partition thereof, as by said warrant we were directed. And we do further Certify and Return, that in pursuance of said notice we met at the time and place and -for the purpose in said notice and war- rant set forth, when there were present And having inspected and viewed the estate described in said warrant, and made diligent inquiry in relation thereto, we appraised the same at the sum of , and made partition thereof, quality and quantity relatively considered, between said parties according to their respective rights, titles and inter- ests, as ascertained, declared and determined by said Court, and set forth in said warrant, as follows : We caused the premises described in said Warrant, and containing acres, to be divided APPENDIX OF FOEMS. NO. I20 CONTINUED. into parts according to the survey and plat thereof made by a competent surveyor, which is herewith returned and made part of this our report, and thereupon we allotted and assigned to the said to hold to heirs and assigns for- ever, in severalty as and for right and por- tion of said real estate and premises, as the same was adjudged to by said Court, one of said parts, to wit: all that certain piece or parcel of land, being subdivision number according to said survey and plat bounded, described and appraised as follows : No. 121. CONFIRMATION OF COMMISSIONERS' REPORT IN PARTITION AND DOWER. State of Michigan County of At a session of the Probate Court for said County, held at the Probate Office, in the of on the day of in the year one thousand eight hundred and Present, Judge of Probate. In the matter of the estate of , deceased. The Commissioners heretofore appointed by this Cqurt to certain real estate, of which the said deceased died seized, having heretofore made and returned into court the foregoing report in writing of their proceedings in ; and it appearing satisfac- torily to the Court that said Commissioners gave APPENDIX OP FORMS. NO. 121 CONTINUED. notice to all the persons interested in said estate of the time when and the place where they would meet to , and that the proceedings of said Commis- sioners in the premises were legally and impartially conducted, and ought to be confirmed. It is Ordered, Adjudg/ed and Decreed by the Court, That said report and the proceedings of the said Commissioners in the premises, as above reported, be and the same is hereby confirmed, accepted and estab- lished. In Testimony Whereof I have hereunto set my hand and affixed the seal of said Probate Court. Judge of Probate. No. 122. BOND OF AGENT IN PARTITION. C. L. (4517). State of Michigan, - ss. Probate Gourtfor said County. County of ) In the matter of the estate of deceased. Know all men by these presents that we as principal and as sureties, all of the county of , within the State of Michigan, are holden and stand firmly bound and obliged unto , Judge of Probate for the County of , aforesaid, in the full sum of dollars lawful money of the United States of America, to be paid unto the said , Judge of Probate, as aforesaid, or to his successors in office, or assigns ; to the true payment whereof we do bind ourselves, and each of us, our and. each of APPENDIX OF FORMS. NO. 122 CONTINUED. our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , Anno Domini, one thousand eight hundred and The condition of this obligation is such, that whereas, by a decree of said Court made on the day of ,18 , the residue of said estate was duly assigned to the of said deceased as therein stated, and whereas, , one of said , resides out of this State, and the said has been duly appointed by said Court, agent for said to take charge of the portion of said estate so assigned to said and control and manage the same for benefit, and act for in the partition and distri- bution thereof; now therefore, if the said obligor shall faithfully execute said trust and ' discharge the duties thereby imposed upon him, ' and faithfully manage and account for such estate, and shall per- form all orders and decrees of the Probate Court aforesaid, by the said to be performed in the premises : Then the before written obligation to be void and of none effect, or else to abide and remain in full force and virtue. [ L . s.] [L. S.] [L. S.] County, ss. At a session of the Probate Court in and for said County, holden at on the day of A. D. 18 I have examined and do approve of the foregoing bond and the sureties therein, and order the same to APPENDIX OF FORMS. NO. 122 CONTINUED. be filed and recorded in the Probate Office of said County. Judge of Probate. State of Michigan, County of the sureties in the foregoing bond, being sworn, each for himself, says, that he is worth the amount of the penalty in said bond, over and above all debts and legal exemptions. Subscribed and sworn to before me this day of 18 . No. 123. BOND TO INDEMNIFY ADMINISTRATOR ON PAYING DIS- TRIBUTIVE SHARE BEFORE ESTATE IS SETTLED. State op Michigan, 1 >• ss. Probate Court for said County. County of ) In the matter of the estate of deceased. Know all men by these presents, That we , as principals, and as sureties, are held and firmly bound unto , Judge of Probate for said county, in the sum of dollars lawful money of the United States of America, to be paid to the said or to his successors in said office or assigns, to which payment well and truly to be made bind heirs, executors and administrators, and each and every of them firmly by these presents. Sealed with seal , dated the day of , one thousand eight hundred and seventy The condition of this Obligation is such, That, APPENDIX OP FORMS. NO. 123 CONTINUED. whereas, as administrator of said estate has paid to , one of the heirs at law of said deceased, the sum of dollars, it being his distributive share of the estate of said deceased ; now therefore, if the said shall pay his just proportion of all the debts, demands, charges, expenses and allowances now made and established, or that may be hereafter made and established or recovered against said estate, and shall indemnify said administrator against all loss and damage on account of such payment, and shall perform all orders and decrees of the Pro- bate Court aforesaid, by the said to be performed in the premises : Then the before written obligation to be void and of none effect, or else to abide and remain in full force and virtue. [L. S.J [L. 8.] [L. S.] County, ss. At a session of the Probate Court in and for said County, holden at on the day of A. D. 18 I have examined and do approve of the foregoing bond and the sureties therein, and order the same to be filed and recorded in the Probate Office of said County. Judge of Probate. State op Michigan, County of the sureties in the foreging bond, being sworn, each for himself, says, that he is worth the amount of APPENDIX OF FORMS. NO. 123 CONTINUED. the penalty in said bond, over and above all debts and legal exemptions. Subscribed and sworn to before me this day of 18 . No. 124. PETITION FOR LEAVE TO BRING AN ACTION ON THE BOND OF EXECUTORS, Etc. State of Michigan, ) y ss. In the Probate Court for said County. County of . ) To Judge of Probate for said County : In the matter of the estate of deceased, your petitioner would respectfully represent to the Court, that he is interested in said estate as a creditor of said deceased, that was on the day of 18 duly appointed of said deceased, and gave a bond in the penal sum of dollars, with as sureties for the faithful discharge of said trust, which was duly approved, as is shown by the files and records of said court; that afterwards Commission- ers were appointed to receive, examine and adjust all claims against said estate, and after receiving and examining the claim of your petitioner, allowed the same at the sum of dollars, as is shown by their report filed in said Court on the day of , 18 . Your petitioner further represents that said Court made a decree on the day of ,18 , that said pay such claim together with the other claims allowed against said estate, within from the date of such decree ; but that said has failed and neglected, and still fails and neglects, to pay said APPENDIX OP FORMS. NO. 124 CONTINUED. claim, although payment thereof was demanded by your petitioner, after the time so limited for the pay- ment of the same. Your petitioner therefore prays that a day be fixed for hearing this petition and due notice thereof given to the principals and sureties on said bond as the Court shall direct, and that your petitioner may be authorized to bring an action, in the Circuit Court of said county, upon the said bond of said in the name of the Judge of Probate for said county; but for the benefit of your petitioner as creditor as afore- said, for the recovery of the damages sustained by your petitioner by reason of such failure and neglect of said Dated, State of Michigan, ) Vss. County of ) The above named petitioner being duly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and be- lief, and as to those matters believe them to be true. Subscribed and sworn to at this day of A. D. 18 , before me, APPENDIX OF FORMS. No. 125. ORDER GRANTING LEAVE TO BRING AN ACTION ON BOND OF EXECUTOR, Etc. State of Michigan, County of At a session of the Probate Court for said county, held at the Probate Office, in the of on the day of , in the year one thousand eight hun- dred and Present, Judge of Probate. In the matter of the estate of deceased. On reading and filing the petition of showing that he is interested in said estate as a creditor of said deceased, and that . was on the day of , 18 , duly appointed of said deceased, and gave a bond in the penal sum and with the sureties for the faithful discharge of said trust as therein alleged, and that said petitioner has a claim against said estate which has been duly heard and allowed, as appears by the report of the Commissioners on claims against said estate on file in said court, and that an order was made by said Court on the day of 18, that all the claims allowed against said estate be paid within from the date of such order, and that payment of said claim has been demanded of said since the expiration of the time so limited for the payment of the same, and that he has failed and neglected to pay such claim. And it further appearing by due proof on file that notice of the hearing of said petition has been given to the principals and sureties on said bond, as di- rected by the Court, and after a full hearing and •APPENDIX OF FORMS. NO. ISS CONTINUED. examination in the premises, it is ordered that said be and he hereby is authorized to bring an action in the Circuit Court for said county, on the said bond of said , in the name of the Judge of Probate for said county, but for the benefit of said , for the recovery of any and all damages sus- tained by reason of such failure and neglect of said Judge of Probate. No. 126. PETITION BY SURETY ON BOND TO BE RELEASED FROM FURTHER RESPONSIBILITY. State of Michigan, ) h ss. Probate Court for said County. County of ) To , Judge of Probate for said county : In the matter of the estate , your petitioner would respectfully represent to the Court that was, on the day of 18 , duly appointed of said and gave a bond in the penal sum of dollars, with your petitioner and as sureties thereon for the faithful discharge of said trust, as is shown by the files and records of said court, that said estate is not fully administered, and your petitioner desires to be discharged from all further liability and responsibility as surety upon said bond for the following reasons, viz : Your petitioner further represents that no injury can result to any persons interested in said estate, from such proposed release of your petitioner from APPBKDIX OF FORMS. NO. 126 CONTINUED. any further responsibility as surety as aforesaid for the following reasons, viz : Your petitioner therefore prays that a day be fixed for the hearing of this petition, and due notice there- of given to all parties interested in the premises, as the Court shall direct, and that your petitioner may- be released and discharged from all further liability and responsibility as surety on said bond, and that said be required to give a new bond in such penal sum and with such sureties as the Court may- direct and approve. State of Michigan, ) [-ss. , County of ) The above named petitioner being duly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at this day of A. D. 18 , before me, No. 127. ORDER RELEASING SURETIES ON A BOND. State of Michigan, ■ ss. Probate Oowrtfor said County. County of At a session of the Probate Court for said county, held at the Probate office, in the of on the APPENDIX OP FORMS. NO. I27 CONTINUED. day of in the year one thousand eight hundred and Present, Judge of Probate. In the matter of the estate of On reading and filing the petition of one of the sureties on the bond of , the of said , praying that he may be released and discharged from all further liability and responsibility as surety upon said bond for the reasons therein stated, and that said may be required to give a new bond, and it appearing by the proof on file that notice of the hearing of said petition has been given to all parties interested, as directed by the Court, and that it is reasonable and proper that the prayer of said peti- tioner be granted, and that no injury can result there- from to any person interested in said estate, it is ordered that said file in said court on or before the day of next a new bond in the penal sum of dollars with further and sufficient sure- ties, for the faithful discharge of said trust, and that said be discharged from all farther liability and responsibility as such surety, whenever such new bond shall have been filed and approved as required by law. Judge of Probate. APPENDIX OF FORMS. No. 128. PETITION THAT ADDITIONAL BOND BE GIVEN. State of Michigan, • ss. Probate Court for said County. County of To Judge of Probate for said County. In the matter of the estate of , Your petitioner would respectfully represent to the Court that he is interested in said estate as of said , that was on the day of , 18 , duly ap- pointed of said and gave a bond in the penal sum of dollars, with as sureties for the faithful discharge of said trust, as. is shown by the files and records of said court, that said estate is not fully administered, and that said penal sum and such sureties are not sufficient to ensure the faithful discharge of said trust and secure the parties inter- ested in said estate against any loss or damage they may sustain by reason of any neglect or misconduct of the said , for the following reasons, viz : Your petitioner therefore prays that a day be fixed for hearing this petition, and due notice thereof given to the principals on said bond as the Court shall direct, and that said be required to give a new bond in such penal sum and with such sureties as the Court may direct and approve. State op Michigan, County of The above named Petitioner being duly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the APPENDIX OP FORMS. ' NO. 128 CONTINUED. matters therein stated on information and belief, and as to those matters believe tbem to be true. Subscribed and sworn to at this day of A. D. 18 , before me, No. 129. ORDER THAT A NEW BOND BE FILED. State of Michigan, -SB. County of At a session of the Probate Court for said county, held at the Probate office, in the of on the day of in the year one thousand eight hundred and Present, Judge of Probate. In the matter of the estate of On reading and filing the petition of alleging that the sureties on the bond of the of said are not sufficient to ensure the faithful dis- charge of said trust and secure the parties interested in said estate against any loss or damage they may sustain by reason of any neglect or misconduct of said for the reasons therein stated ; and it appear- ing, by due proof on file, that notice of the hearing of said petition has been given to said as direct- ed by the Court, and after a full hearing and exam- ination in the premises it satisfactorily appearing that it is necessary that a new bond be filed, it is there- fore ordered that said file in said court, on or before the day of next a new bond in the APPENDIX OP FORMS. NO. 129 CONTINUED. penal sum of dollars, with further and sufficient sureties for the faithful discharge of his said trust. Judge of Probate. No. 130. APPLICATION FOE ADOPTION AND CHANGE OF NAME OF A MINOR Know all Men by these Pbesents, that we, and his wife, do hereby declare that a minor child of and of the age of years on the day of ,18 , is adopted by us, and each of us, as our child, and that we intend to make such child, so adopted, our heir and the heir of each of us, and desire that such child shall here- after bear our family name, to wit : the name of And we, the said , do each of us declare that this instrument is executed in good faith, and we do hereby request the Judge of Probate for the county of and State of Michigan, to make and enter in the journal of said court, an order that said and his wife, do stand in the place of parents to said child, and that said child be their heir at law, and that the name of such child be changed as afore- said, in accordance with the provisions of the statute in such case made and provided. And we, and being , do execute this instrument for the purpose of giving our consent in writing to the adoption and change of name of said child as afore- said, and that said child may become the heir at law of said parties so adopting him. And said child being an orphan and above the age of seven years, APPENDIX OP FORMS. NO. I30 CONTINUED. hereby joins in the execution of this instrument, for the purpose of consenting to his adoption and change of name as aforesaid. In" Testimony Whereof, we have hereunto set our hands and seals this day of ,18 [L. [L. [L. ft] [l. S.' [L. State of Michigan, County of On this day of A. D. one thousand eight hundred and before nie, a in and for said county, personally came the above named known to me to be the person who executed the forego- ing instrument, and acknowledged the same to be their free act and deed for the uses and purposes therein mentioned. No. 131. ORDER FOR ADOPTION AND CHANGE OF NAME OF A MINOR. State of Michigan, County of At a session of the Probate Court for said county, held at the Probate office in the of , on the day of in the year of our Lord one thou- sand eight hundred and Present, Judge of Probate. APPENDIX OF POBMS. NO. 131 CONTINURD. , In the matter of the adoption and change of name of , minor. On reading and filing the application duly exe- cuted and acknowledged of i and , his wife, declaring that they have adopted , a minor child of and , his wife, and intend to make such child their heir at law, and that they desire the name of said child to be changed from to , and on reading and filing the consent in writing, to the adoption and change of name of said child as aforesaid, of and , being the , and also the consent thereto of said child, being an orphan and above the age of seven years, and it appearing satisfactory to the Court that such appli- cation is made in good faith, and that the persons making the same are suitable and proper persons to have the charge, care and control of said child, it is therefore ordered that the name of said minor be and the same is hereby changed from to , and that said and , his wife, do stand in the place of parents to said , with all the duties, rights and privileges pertaining to that relationship, and that said be the child and heir at law of said and , his wife, with all the duties, rights and privileges conferred by law, the same as if was in fact their child. Judge of Probate. APPENDIX OF FORMS. No. 132. NOTICE OF INTENTION TO CHANGE NAME BY AN ADULT. [To lie published three successive weeks, and the last insertion must be six weeks before the application is made to the Probate Court. ] State of Michigan, ) > ss. Probate Court for said County. County of ) Notice is hereby given, that I intend, on the day of next, at o'clock in the noon, to make application to said Probate Court for an order changing my name from to , according to the provisions of the statute in such case made and provided. Dated, No. 133. PETITION FOR CHANGE OF NAME BT AN ADULT. State of Michigan, • ss. Probate Court for said County. County of ) To , Judge of Probate for said County : In the matter of changing the name of , an adult person, to your petitioner would respect- fully represent to the Court that is of the age of twenty-one years and upwards, and has been a resident of said county for one year last past, and desires to have name changed from to for the following reasons, viz : Your petitioner farther represents that such pro- posed change of name is not sought with any fraudu- lent or evil intent, and that due notice of iaten- APPENDIX OF FORMS. NO. 133 CONTINUED. tion to make this application lias been published for three successive weeks in the , a newspaper printed and published in said county, and that the last insertion thereof was six weeks prior to the filing of this application, as appears by the printer's affidavit filed herewith. Your petitioner further shows that has paid to the county treasurer of said county the fee of three dollars, as required by law. Your petitioner therefore prays that an order may be made, and duly entered in the journal of said court, changing the name of your petitioner from to ', and that your petitioner may be fur- nished with a duly certified copy of such order, according to the provisions of the statute in such case made and provided. Dated, State op Michigan, ] County of The above named Petitioner being duly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at this day of A. D. 18 , before me, APPENDIX OP FORMS. No. 134. ORDER CHANGING NAME OF AN ADULT. State op Michigan, .-ss. County of At a session of the Probate Court for said county, held at the Probate office, in the of , on the day of , in the year one thousand eight hundred and Present, Judge of Probate. In the matter of the application of to have name changed to On reading and filing the application of , show- ing, that is of the age of twenty-one years and upwards, and that has been a resident of said county for one year immediately previous to filing said application, and praying that name be changed, by an order of said court, from to , and satisfactory evidence having been filed in said court, showing that notice of intention to make such application has been published as required by law, and also that the sum of three dollars has been paid to the county treasurer of said county, and it appearing to the satisfaction of the Court, that there are good and sufficient reasons for such proposed change of name, and that the same is not sought with any fraudulent or evil intent, it is therefore ordered that the name of said applicant be, and the same is hereby changed from to , and that hereafter said applicant bear and be known by the name of Judge of Probate. APPENDIX OF FORMS. No. 135. PETITION IN CASE OF INDIGENT INSANE PERSON. State of Michigan, ) [■ ss. Probate Court for said County. County of ) To , Judge of Probate for said County : In the matter of admitting to the insane asy- lum as an indigent insane person, your petitioner respectfully represents to the Court that is a resident of the of in said county, and is of the age of years or thereabout. That said is insane, and has been for the period of about , and is in indigent circumstances, but not a pauper, and estate is insufficient to support and family under the visitation of insanity. Your peti- tioner further shows that the estate of said insane person is of the value of dollars or thereabout, and consists of , and family consists of the following persons, whose names, ages and mental and physical condition are as follows, viz : Your petitioner therefore prays that a day be fixed for hearing this petition, and due notice thereof per- sonally served upon said alleged insane person, and upon some one of his nearest relatives, if any, and that the Prosecuting Attorney of said county be notified of such hearing, and that two respectable physicians, and other creditable witnesses, be sub- poenaed, to establish the facts herein alleged, and if after a full hearing and examination in the premises the said Judge of Probate shall determine that the said is insane and in indigent circumstances, that he make and duly enter of record a certificate, under APPENDIX OF POEMS. NO. 135 CONTINUED. the seal of said court, admitting such insane person into the Michigan Asylum for the Insane at Kalama- zoo, there to be supported at the expense of said county, until restored to soundness of mind if effect- ed within two years, and until removed by order of the Board of Supervisors of said county, and that such proceedings be reported to said Board of Super- visors at their next annual meeting. Dated, State op Michigan, County of The above named Petitioner being duly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at this day of A. D. 18 , before me, No. 136. CERTIFICATE ADMITTING INDIGENT INSANE PERSON TO INSANE ASYLUM. State of Michigan, ) s-ss. County of ) At a session of the Probate Court for said county, held at the Probate office, in the of on the day of in the year one thousand eight hundred and Present, Judge of Probate. APPENDIX OP FORMS. NO. 136 CONTINUED. In the matter of , an indigent insane person. On reading and filing the petition, duly verified, of praying that said , an insane person re- siding in , may be admitted to the Michigan Asy- lum for the Insane, there to be supported at the expense of the county of , and having taken the depositions of and , two respectable physicians, and creditable witnesses, and having duly notified the Prosecuting Attorney of the time and place of hearing of said examination, and hav- ing fully investigated the facts, and it satisfactorily appearing that the said is insane, and has no estate in possession or held in trust for , suffi- cient for the support of self (and family) under the visitation of insanity. Therefore, It is Ordered, That the said , under and ac- cording to the provisions of Sec. 24 of "An Act, • ss. Probate Court for mid County. County of ) To Judge of Probate for said county : In the matter of , dependent and neglected children. Your petitioner respectfully represents to the Court that he is one of the Superintendents of the Poor of said county, and herewith brings before the court the said child for examination as to alleged dependence. Your petitioner further repre- sents that said is of the age of years, that father's name is , and he resides at , in the county of and State of , that mother's name is , and she resides at , in the county of and State of , and that said child has been maintained at for the period of years, and months last past, and that And your petitioner further represents and certi- fies that in his opinion said child is dependent upon the public for support, and that ha no parents against whom support can be enforced as pro- vided in chapter 49 of the Compiled Laws of 1871. Your petitioner further represents that the officers of said desire to surrender said child to the care of the State (or that they found said at , in said county, in a state of want and suf- fering, abandoned and improperly exposed.) Your petitioner therefore prays that said Judge of Probate will make such examination as may be neces- APPENDIX OP FORMS. NO. 138 CONTINUED. sary in regard to the matters herein alleged, and request the Prosecuting Attorney, or one of the members of the Board of Supervisors of said county to attend such examination, and if he shall deter- mine that said child dependent and neglected, that he make and enter in the journal of said court an order that said child be sent to the State Public School at Coldwater, in said State, and there main- tained in accordance with the provisions of the stat- ute in such case made and provided. Dated, State op Michigan, County of The above named Petitioner being duly sworn, say that ha read the foregoing petition by signed, and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at this day of A. D. 18 , before me, No. 139. ORDER ADMITTING DEPENDENT AND NEGLECTED CHIL- DREN IN STATE PUBLIC SCHOOL. State of Michigan, County of At a session of the Probate Court for said county, held at the Probate office, in the of on the day of in the year one thousand eight hun- dred and APPENDIX OF FORMS. NO. 139 CONTINUED. Present, Judge of Probate. In the matter of dependent and neglected children. Esq., Esq., and Esq., Superin- tendent of the Poor of said county, having brought before me the above named child for examination as to alleged dependence ; and upon hearing the testimony of witness , produced for that pur- pose in accordance with provisions of section 16, as added to chapter 140 of the Compiled Laws of 1871, entitled "State Public School for Dependent and Neglected Children," by act No. 144 of the Session Laws of 1873 ; and upon investigation of the facts, it satisfactorily appearing to me that said child belong to said county of and that he dependent and neglected, and as such entitled to admission to the " State Public School for Dependent and Neg- lected Children," at Coldwater, under the chapter and act hereinbefore mentioned. And upon said examination I do further find, so far as I can ascertain the facts, that said was of the age of years on the day of , 18 ; that the name of the father of said child is ; that he resides at '% , in the county of , in'the' State of ; that the name of the mother of said child is ; that she resides at , in the county of , in the State of ; and that said child has been maintained at 1 , for the period of years and months last past. And further, that said 2 Note 1 — State whether in County Poor House, Asylum, home or elsewhere. Note 2— Continue same account for each child and sign at the end of the last statement. APPENDIX OP FORMS. NO. 139 CONTINUED. QUESTIONS TO BE ANSWERED IN REGARD TO PARENTS. What education have they ? What is their pecu- niary condition — paupers or not ? Are either intem- perate ? Have either epilepsy, insanity, or other dis- ease disabling from labor? Are either criminals under sentence — and for how long? How many children have they living, giving their ages, and have they deserted any ? Are the parents living together, or have they separated ? What is the nationality of each? IN REGARD TO THE CHILD. Was he reared in the family ? — in the school ? — city or country? — and in the practice of religious observances ? What have been his associations in the neighborhood ? Has he committed any offense against the law, and, if so, of what kind, and how was he punished ? What is his physical, mental, and moral condition ? It is therefore ordered that said child be admitted into said school and there maintained according to the statute in such case made and provided. Judge of Probate. State of Michigan, County of I do hereby certify that the foregoing is a true copy of the original order and findings by me made in the above entitled matter and of the whole thereof. In Witness Whereof, I have hereunto set my official signature, and affixed the seal of the Probate Court of said county, at the of in said APPENDIX OF FORMS. NO. 139 CONTINUED. county, on this day of , in the year one thousand eight hundred and seventy Judge of Probate for said County. No. 140. PETITION FOR APPOINTMENT OF SPECIAL DRAIN COMMIS- SIONERS. State of Michigan, 1 [■ ss. Probate Court for said County. County of ) To ■ , Judge of Probate for said County : In the matter of appointing three special Drain Commissioners. Your petitioner respectfully represents to the Court that he is the Drain Commissioner in and for the township of , that application has been made to him for the location and construction of a drain in the township of , in the county of , in and through the following described lands, owned by the following named persons, to wit : and hereby represents that he has established such drain and caused the same to be surveyed, measured, leveled and staked, being a distance of rods, as appears by the surveyor's plat hereto attached ; that he has tried and failed to obtain a release of right-of- way and other damages, from every person through whose land such drain is to pass, and no jury has been called to assess such damages. The undersigned therefore prays for appointment by this Honorable Court of three disinterested freeholders residing in said county and in the vicinity of said land as special APPENDIX OP FORMS. NO. 140 CONTINUED. Commissioners, for the purpose of examining and determining the necessity for locating and construct- ing said ditch or drain, and taking said land there- for, and to assess damages which any person or persons may sustain by reason of the construction thereof, according to an Act entitled "An Act to provide for the draining of swamps, marshes and other low lands." Sworn to and subscribed before me this day of 18 . Drain Commissioner of the Township of No. 141. ORDER APPOINTING SPECIAL DRAIN COMMISSIONERS. State of Michigan, County of At a session of the Probate Court for said County, held at the Probate Office, in the of on the day of in the year one thousand eight hundred and Present, Judge of Probate. In the matter of the application of , Esquire, Drain Commissioner, for the appointment of three special Commissioners to determine the necessity of taking lands for the purpose of a water course or ditch, and assess the damages therefor, if any. On reading and filing the petition of , Esquire, Drain Commissioner for the township of , to APPENDIX OP FORMS. NO. 141 CONTINUED. appoint three special Commissioners to determine the necessity, for locating and constructing a drain therein fully described, and to assess damages to which any person or persons shall be entitled by rea- son of the construction thereof, on, in or through the following lands in the township of county of State of Michigan to wit : It is hereby Ordered by this Court that , three disinterested freeholders, residents of said county, and residing in the vicinity of said land, be and they are hereby appointed such Commissioners, and a cer- tified copy of this order shall be and is hereby made the certificate of this Court of such appointment. State op Michigan, County of I, , of the Probate Court of said county, do hereby certify the above to be a true and correct copy of an order entered in the records of said Court in the above entitled matter. In Witness Whereof, I have hereunto set my hand and affixed the seal of said court at this day of , A. D. 18 . OATH OF COMMISSIONERS. State of Michigan, County of We, the undersigned Commissioners named in the annexed copy of order and certificate, do each for himself depose and say that he will well and truly examine and determine the necessity of locating and constructing the ditch or drain referred to in the APPENDIX OP FORMS. NO. 141 CONTINUED. above order and certificate, and the necessity of taking said land therefor, and will well and truly assess the damages sustained by any person or per- sons owning or interested in any of the lands through which the same shall pass by the reason of the con- struction thereof. Subscribed and severally sworn to by each before me this day of , A. D. 18 No. 142. REPORT OP SPECIAL DRAIN COMMISSIONERS. To , Esquire, Drain Commissioner for the township of : The undersigned Commissioners appointed by the Probate Court for the county of , having been duly sworn, proceeded on the day of , A. D. 18 , to examine the said lands described in the annexed order and certificate, and the route of the ditch or drain proposed to be constructed thereon, and did actually go over and inspect the line of the same from the beginning to the end thereof to deter- mine the necessity for locating and constructing such ditch, and on a careful examination of the whole matter we are of the opinion and have determined that it is necessary for the good of the public health, as well as a benefit to the land in the vicinity thereof, to construct such ditch or drain as surveyed, measured, leveled and staked by said Drain Commis- sioner as appears by the surveyor's plat thereof hereto attached and made a part of this report. APPENDIX OP FORMS. NO. 142 CONTINUED. And we do further report that there are no dam- ages sustained by any person or persons thereby, except by , the owner of that parcel of land above described as , who has or will sustain damage thereby, and which we hereby assess at the sum of dollars. Witness our hands this day of , 18 . Commissioners. State of Michigan, ) sss. County of ) On this day of , one thousand eight hun- dred and , before me, the subscriber, a in and for said county, personally came the above named , known to me to be the person described in and who executed the foregoing instrument, and acknowledged the same to be free act and deed as such Commissioners. No. 143. ORDER TO SHOW CAUSE WHY A PARTY SHOULD NOT BE PUNISHED FOR CONTEMPT. State of Michigan, ) [•ss. County of ) At a session of the Probate Court for said county, held at the Probate Office in the of , on the day of , in the year one thousand eight hundred and Present, Judge of Probate. APPENDIX OF FORMS. NO. I43 CONTINUED. In the matter of punishing for contempt of court : On reading and filing the affidavit of showing that is guilty of contempt of court by reason of his neglect and violation of duty and misconduct as therein fully set forth, it is ordered that said appear before me at said Probate Office on the day of next at o'clock in the noon, and show cause why he should not be punished for such alleged misconduct, and further that said be personally served with a certified copy of said affidavit and this order days before the day above fixed for him to appear and show cause as aforesaid. Dated Judge of Probate. No. 144. COMMITMENT FOR CONTEMPT. State of Michigan, County of To the Sheriff, or any Constable of said county, and to the Keeper of the common jail of said county, Greeting : Whereas, on reading and filing the affidavit of showing that is guilty of contempt of court by reason of the neglect and violation of duty and mis- conduct therein fully set forth, it was ordered that said appear before me at the Probate Office in said county on the day of ,18 , at o'clock APPENDIX OP FORMS. NO. 144 CONTINUED. in the noon, and show cause why he should not be punished for such alleged misconduct, and it appearing by due proof on file, that said was personally served with a certified copy of such affi- davit and order as in said order directed, and after a full hearing and examination, it appearing satisfacto- rily to the Court that said is guilty of the neg- lect and violation of duty and misconduct herein particularly and specifically set forth, viz : (or where- as, being guilty of contempt of court and mis- conduct, committed in the immediate view and presence of the Court, and having been forthwith called upon by me to answer for such contempt and misconduct and show cause why lie should not be con- victed thereof and summarily punished, which con- tempt and misconduct is herein particularly and spe- cifically set forth, viz :) , and not having purged himself therefrom ; it was by reason thereof ordered by the Court that said pay a fine of dollars, and that he be imprisoned in the common jail of said county days, and until he pay the fine aforesaid or be duly discharged according to law. These are therefore to command you, the said Sheriff or Constable, in the name of the People of the State of Michigan, forthwith to convey and de- liver the said into the custody of the Keeper of the common jail of said county. And you, the keeper thereof, are hereby required in the name of the said People, to receive the said into your custody, in the said jail, and him there safely keep during the said term of days, and until he shall have paid said fine or until he shall be discharged by due course of law. APPENDIX OF FORMS. NO. 144 CONTINUED. Given under my hand and seal, at in said county of this day of A. D, 18 No. 145. AFFIDAVIT OF POSTING NOTICE. State op Michigan, County of of in said county, being duly sworn de- poses and says that on the day of , A. D. 18 , he posted up one notice of , of which the annexed printed notice is a true copy, at each of the following named places in the of , in said county, to wit : One at , one at , and one at , being of the most public places in said , and that said notices were conspicuously and securely posted. Subscribed and sworn to before me this day of A. D. 18 No. 146. CERTIFICATE OF APPROVAL OF COMMITMENTS TO REFORM SCHOOL. State op Michigan, ) [• ss. Probate Oourt for said County. County of ) In the matter of sending to the Reform School. I hereby certify that I have carefully examined and reviewed the annexed judgment and commit- APPENDIX OP FORMS. NO. 146 CONTINUED. ment, together with all the proceedings in connection therewith, and all' the testimony taken in said cause, which was reduced to writing and subscribed by each of the witnesses and filed in said Probate Court, and I hereby approve such judgment and com- mitment. Dated Judge of Probate. No. 147. PRINTER'S AFFIDAVIT. State of Michigan, County of PRINTER S BILL. Folios times, $ Affidavit of Pub- lication $ Rec'd Payment. being duly sworn deposes and says that he is (the foreman or prin- cipal clerk) of , the printer and publisher of the , a newspaper printed and published in the county of , in said State, that the an- nexed printed notice has been duly published in said newspaper, at least once in each week for successive weeks immediately preceding the day of (hearing or sale) mentioned in said notice, and that the first insertion thereof was on the day of , 18 , and the last insertion on the day of , 18 . Subscribed and sworn^to before me, this day of , A. J). 18 . APPENDIX OP FORMS. 148. EXEMPLIFICATION OF RECORD. State of Michigan, - ss. Probate Court for said County. County of I, Register of Probate for said county, and acting as Clerk 'of said Probate Court, do hereby certify that I have compared the foregoing copy of with the original record thereof, now remaining in this office, and have found the same to be a cor- rect transcript therefrom, and of the whole of such original record. In Testimony Whereof, I have hereunto set my hand and affixed the seal of said Probate Court, at , this day of , A. D. 18 State of Michigan, ) Register of Probate. ss. Probate Court for said County. t County of ) I, , Presiding Judge of the Probate Court aforesaid, do hereby certify that , who signed the foregoing certificate, is Register of the Probate Court for said county, and that the foregoing exem- plification of record is authenticated in due form. In Testimony Whereof, I have hereunto set my hand and affixed the seal of said Probate Court, at , this day of , A. D. 18 Judge of Probate. APPENDIX OF FORMS. No. 149. PROBATE SUBPffiNA. State of Michigan, J [■ ss. Probate Court for said County. County of ) In the name of the People of the State of Michigan : To . You are commanded, that, laying aside all and singular your business and excuses, you be and appear before the Probate Court for the County of , at the Probate Office in the city of , in said county, on the day of , at o'clock m., then and there to give evidence on the part of the . Hereof fail not, on pain of the penalty that will fall thereon. Witness, my hand and the seal of said Probate Court, at the city of , on the day of in the year of our Lord one thousand eight hundred and Judge of Probate. State of Michigan, \ County of I hereby certify and return that on the day of , A. D. 18 ,1 served the within subpeena upon , above named, by delivering to true copy thereof. # Sheriff of said county. 18 . Fees, APPENDIX OF FORMS. No. 150. CITATION. ss. Probate Court for said County. State of Michigan, County of In the matter of the estate of Citation. To , Greeting: Whereas, In the name of the People of the State of Michi- gan, You are, therefore, hereby cited and required personally to be and appear at the said Probate Court, at the Probate Office in the of , on the day of , at in the noon of that day, and then and there (or show cause if any why) And the sheriff, or any deputy sheriff, coroner or constable, of said county is hereby authorized to serve and make due return hereof. This citation to be served days before the return day hereof. Witness, The Honorable , Judge of the Pro- bate Court for the county of , this day of , in the year of our Lord one thousand eight hundred and Judge of Probate. State op Michigan, County of I hereby certify and return that on the day of , A. D. 18 ,1 personally served the foregoing citation upon by exhibiting the same to with the seal of the court thereon, and delivering to a true copy thereof. Dated, APPENDIX OP FORMS. No. 151. ORDER APPOINTING PROBATE REGISTER. State of Michigan, 1 [•ss. County of ) At a session of the Probate Court for said county, held at the Probate office, in the of , on the day of , in the year one thousand eight hundred and Present, Judge of Probate. In the matter of appointing a Probate Register for said county. It appearing by the last census taken by legal authority that the population of said county exceeds forty thousand, it is therefore ordered that be and he hereby is appointed Probate Register for said county, with full power to receive petitions, fix the time of hearing, administer oaths, and do all other acts required by the Judge of Probate, except judi- cial acts, according to the provisions of the statute in such case made and provided. Witness my hand and the seal of said court this day of ,18 Judge of Probate. No. 152. APPRENTICE'S INDENTURE. This Indenture, "Witnesseth, That , now aged , by and with the consent of hath vol- untarily, and of his own free will and accord, put and bound himself apprentice to to learn the art, APPENDIX OP FOEMS. NO. 152 CONTINUED. trade, and mystery of , and as an apprentice, to serve from this date, for and during and until ; during all which time, the said apprentice his master faithfully, honestly and industriously shall serve, his secrets keep, all lawful commands every- where readily obey, and at all times protect and pre- serve the goods and property of his said master, and not suffer or allow any to be injured or wasted ; he shall not buy, sell or traffic with his own goods, or the goods of others, nor be absent from his said master's service day or night, without leave, ^nd in all things behave himself as a faithful apprentice ought to do, during the said term. And the said master shall use and employ the utmost of his en- deavors to teach, or cause him, the said apprentice, to be taught or instructed, in the art, trade, and mys- tery of ; and the said master further agrees that he will send said apprentice to a district school at least three months in each year during the time said apprentice shall remain with himj and that said child shall be taught reading, writing, geography, arith- metic, and the ordinary branches of learning usually taught in the common schools. And the said master does hereby further promise, covenant and agree that he will provide such child with sufficient and suitable apparel, both for working days and for attending public religious worship, and with suitable food and all other necessaries, both in sickness and in health, during the time aforesaid, treating him kindly and exercising over him parental care and control" as a member of the family. That if said child remains with him until the expiration of said APPENDIX OP FORMS. NO. 152 CONTINUED. time, he will then pay him the sum of dollars, and furnish him two full suits of clothes of the kind above described. And for the true performance of all and singular the covenants and agreements aforesaid, the said par- ties bind themselves each unto the other, firmly by these presents. In Witness Whereof, The parties aforesaid have hereunto set their hands and seals, the day of , in the year one thousand eight hundred and Sealed and Delivered in presence of [L. S.] [L. S.] [L.S.] Having made diligent inquiry, and being fully satisfied that the said infant's age is herein correctly stated, and that the said master is a suitable person to have the care and control of said apprentice, I do hereby consent to and approve of the binding of in the above indenture mentioned. No. 153. RECEIPT FOR LEGACY. $ 18 . Received of , the executor of the last will and testament of , deceased, the sum of dollars, it being payment in full of the legacy to me in said will, and also received , being all the articles of personal property bequeathed to me in said will. APPENDIX OP FORMS. No. 154. RECEIPT FOR DISTRIBUTIVE SHARE. $ 18 . Received of , the administrator of the estate of , deceased, the sum of dollars, it being payment in full of my distributive share of the per- sonal estate of said deceased. No. 155. PETITION TO DETERMINE "WHO ARE THE LAWFUL HEIRS AND ENTITLED TO THE LANDS OF A DECEASED PERSON, C. L , 1389 (4398), Etc. State of Michigan, ) y ss. Probate Court for said County. County of ) To , Judge of Probate for said County. Iii the matter of the estate of , deceased. Your petitioner would respectfully represent to the Court that he is interested in said estate as of said deceased ; that said deceased departed this life at , in the of , in the county of and State of , on the day of ,18 , leaving no last will and testament, as your petitioner is informed and verily believes. Your petitioner further represents that said estate has not been administered, and the respective rights of the heirs at law in the real estate of said deceased have not been determined and fixed by the order or decree of any court. Your petitioner further represents that said de- ceased died seized of the following described real APPENDIX OF FORMS. NO. 155 CONTINUED. estate situated in said State of Michigan, a portion of which is located in said county of , and the description and location of each parcel thereof and of that portion located in said county of are as follows, to wit : Your petitioner further represents that he is the owner of an undivided part or interest in said lands as of said deceased. Your petitioner further represents that the names, ages and residence of the heirs at law of said de- ceased, and other persons interested in said lands, so far as the same are known to your petitioner, are as follows : Your petitioner therefore prays that a day be fixed for hearing this petition, and due notice thereof given to all persons interested, by an order of the Court duly published once in each week for three successive Aveeks, in such newspaper as the Court shall direct, and after a full hearing and examination in the premises that the said Court adjudicate and determine who are or were at the time of his death the legal heirs of said deceased, and entitled by the laws of this State to inherit said real estate, and the share or portion thereof that each of said heirs was entitled to at that time, and the right, title and inter- est that each of them or their heirs or assigns may now have therein, and that such finding and adjudi- cation be entered on the journal of said court as prima facie evidence of the facts therein found, according to the provisions of the statute in such case made and provided. APPENDIX OF FORMS. NO. 155 CONTINUED. State op Michigan, 1 > ss. County of ) The above named petitioner being duly sworn, say that ha read the foregoing petition by signed and know the contents thereof, and that the same is true of own knowledge, except as to the matters therein stated on information and belief, and as to those matters believe them to be true. Subscribed and sworn to at this day of , A. D. 18 , before me. No. 156. ORDER DETERMINING WHO ARE THE LAWFUL HEIRS AND ENTITLED TO THE LANDS OF A DECEASED PERSON C. L. 1389 (4398), Etc. State of Michigan, County of At a session of the Probate Court for said County, held at the Probate Office, in the of on the day of in the year one thousand eight hundred and Present, Judge of Probate. In the matter of the estate of deceased. This day having been appointed for hearing the petition of praying this court, for the reasons therein stated, to adjudicate and determine who were, at the time of his death, the lawful heirs of said deceased, and their respective rights in and to the real estate whereof said deceased died seized, APPENDIX OP FORMS. NO. T56 CONTINUED. and also to determine who are now lawfully entitled to the same and the share or portion of each, and it satisfactorily appearing, by due proof on file, that a copy of the order of this Court for the hearing of said petition has been duly published as therein directed, where by all persons interested in the prem- ises were duly notified of the time and place of said hearing. And it further satisfactorily appearing to the Court, after a full hearing and examination in the premises, that said deceased departed this life as in said petition alleged, and that he died seized of the following described real estate situated in said State, a portion of which is located in said county, and that the description of each parcel thereof and of the whole of said real estate is as follows, to wit : And it further satisfactorily appearing to the Court that, at the . time of his . death, the following named persons were the lawful heirs of said deceased, and entitled by the laws of this State to inherit said real estate, in the following proportions, viz : It is therefore ordered, adjudged and decreed by this Court that, at the time of his death, the above named persons were the lawful heirs of said deceased, and entitled by the laws of this State to inherit his said real estate in the proportions above specified, and that the following named persons, as such heirs at law, or their heirs or assigns, are now the lawful owners of said lands, and entitled to the same in the following proportions, viz : Judge of Probate. INDEX TO FORMS. The pages of the appendix of forms are not numbered, and the references in this index are to the numbers of the forms, which are numbered and follow in consecutive order. A. ADMINISTRATORS. No - of Form - Petition for appointment of I Order of hearing for appointment of 2 Bond t, l A Additional bond y/ z Bond of administrator with the will annexed 3 Orders appointing 4, 5 Letters of administration (general) 6 Discharge of 17 Resignation of 41 Petition for a removal of 42 Order removing 43 Petition that account be rendered by — , 39 Petition by, for extension of time for settling estate 68 For sale and mortgage of real estate by administrations see Real Estate. ADMINISTRATOR'S SPECIAL. Petition for appointment of 13 Bond 14 Order appointing 15 Letters of administration 16 APPRAISERS. Orders appointing 4, 5 Orders appointing where there is a will ._ 33, 34 Warrant of appraisal and inventory. . , 7 ALLOWANCE TO WIDOW. Petition for 64 Order for 4> S AFFIDAVIT. Of posting notices of meetings of commissioners on claims _ 10 Of translation of a will 35 Of posting notices of sales of real estate, etc 145 Of printer 147 INDEX TO APPENDIX. No. of Form. APPEALS. Application for, from decision of commissioners of claims — 73 Bond 74 Bond where the executor, etc., declines to appeal 75 Order allowing 76 Application for, from orders and decrees of judge of probate. 77 Bond 78 Order allowing : 79 Petition to circuit court for leave to appeal 80 Order of circuit court granting leave to appeal 81 Notice of, to be published under C. L. (4442) 84 Judgment in circuit court on 84a ACCOUNTS. Petition that executor, etc., render 39 Order for hearing 112 Form (or final account, and order allowing same 114 Form for annual account, and order allowing same 113 ASSIGNMENT OF RESIDUE OF ESTATE. Petition for 115 Decree 116 ADOPTION AND CHANGE OF NAME OF A MINOR. Application for 130 Order for 131 ACTION ON BOND. Petition for leave to bring 124 Order granting leave 125 Answers to petitions. 22 Authentication of records . 148 Apprentices indenture 152 B. BONDS. Of executor or administrator with the will annexed 3 Additional of executor or administrator 3^ Of administrator .. 5^ Of special administrator 14 Of residuary legatee 31 To indemnify executor on paying legacy, etc. 40 Of trustee 46 Of guardians, general and special __ 60 On appeal from decision of commissioners on claims... 74 On appeal from orders, etc., of judge of probate 78 On sale of real estate to pay debts , 86 INDEX TO APPENDIX. No. of Form. BONDS— Continued. , To prevent sale of real estate 103 To pay incumbrances on sale of real estate 104 To pay balance unpaid on land contract, on sale real estate. 105 On mortgage of real estate 95 On sale of real estate . 101 Of agent in partition 122 To indemnify administrator on paying distributive shares 123 Petition for leave to bring action on 124 Order granting leave to bring action on 125 Petition by surety on, to be released 126 Order releasing surety 127 Petition that additional bond be given 128 Order that additional bond be given 129 c. COMMISSIONERS ON CLAIMS. Orders appointing 4, 5 Orders appointing where there is a will 33, 34 Warrant and report 8 Orders limiting time for presenting 4, 5 Notice of meetings of. 9 Affidavit of posting notices of meetings of 10 Notice of bearing claims before the court 11 Order by the court allowing claims 12 Order limiting time for payment of claims 84b Application for appeal from decision of 73 Bond on appeal 74 Bond where executor, etc., declines to appeal 75 Order allowing appeal , 76 Petition to revive commission 82 Order reviving commission 83 See also Appeals. CIRCUIT COURT. Petition to, for leave to appeal 80 Order by, granting leave to appeal 81 Judgment in, on appeal . 84a Certificate of the probate of a will 27 Certificate of the allowance of a will proved in another State. 29 Commitment for refusal to deliver a will into court 38 Contract by widow to release her dower, on sale of lands 65 Compounding a debt due to deceased, petition for 69 Complaint for embezzlement of property 70 INDEX TO APPENDIX. No. of Form. CIRCUIT COURT— Continued. • Commitment for embezzlement of property 7 2 Certificate of approval of sale of real estate by superintend- ents of poor ioo Confirmation of sale of real estate 91 Confirmation of mortgage of real estate 98 Commissioner's warrant in partition 118 Confirmation of report in partition 121 Commissioner's warrant and report in dower 67 Confirmation of report in dower — 121 Commitments to reform school, certificate approving. 146 Citation 150 Commission to take depositions 56 CONTEMPTS OF COURT. Order to show cause, etc. 143 Commitment for 144 CONTRACTS FOR SALE OF LAND BY DECEASED. Petition for specific performance of no Decree for specific performance of. ill D. DEPOSITIONS. Application for commission 51 Notice of application 52 Order that commission issue 53 Notice of settling interrogatories 54 Interrogatories 55 Commission . 56 Discharge of executor, etc , 17 Declaration and plea on probate of a will 23 DEBTS. Petition to compound 69 Order limiting time for payment of 84b DEED. On sale of real estate 106 Under power of sale in a will 107 DECREE. Establishing lost will 28 For specifie performance of land contracts and petition__iii, no Of assignment of residue of estate 116 DISTRIBUTIVE SHARE. Bond on payment of, before estate is settled 123 Receipt for * I c. INDEX TO APPENDIX. No. of Form. DEPENDENT AND NEGLECTED CHILDREN. Petition and order 138, 139 DRAIN COMMISSIONERS. Petition for appointment of. 140 Order appointing. 141 Report of. 142 DOWER. Petition for assignment of 66 Order for hearing petition 2 Commissioner's warrant and report 67 Notice of meeting of commissioners 119 Confirmation of report ± 121 Contract to release dower on sale of real estate . 65 E. EXECUTORS. Bond of 3 Additional. bond of S/4 Bond of administrator, with will annexed 3 Letters testamentary 32 Bond where executor is residuary legatee 31 Bond to indemnify executor on paying legacy before estate is closed 40 Discharge of 17 Refusal of, to accept the trust 36 Resignation of 41 Petition for the removal of 42 Order removing 43 Petition thatexecutor render an account. ._ 39 Deed of, under power of sale in a will 107 For sale and mortgage of real estate by executors see Real Estate. EMBEZZLEMENT OF PROPERTY OF AN ESTATE. Complaint for. 7° Oath 7 1 Commitment for 72 Extention of time for settlement of estate, petition for 68 Exemplification of records 148 F. FINAL ACCOUNT. Order for hearing 112 Form for and order allowing same 114 INDEX TO APPENDIX. G. No, of Form. GUARDIAN— General. Petition for appointment of, by parents 57 Petition for appointment of, by others than parents 57^ Petition in case of insane, incompetent persons, and spend- thrifts 58 Nomination of 59 Bond, general and special 60 Order appointing 61 Letters of guardianship 62 Resignation of 41 Discharge of 17 Petition for removal of. 42 Order removing 43 GUARDIAN— Special. Petition for appointment of. 13 Bond of 60 Order appointing - 15 Letters 16 For sale and mortgage of real estate by guardians see Real Estate. H. 1 1 KIRS. Petition to determine who are, and entitled to lands of a -- -deceased person 155 Order determining who are heirs 156 I. INSANE- AND INCOMPETENT PERSONS. Petition for appointment of guardian for 58 Citation 150 Bond, (general and special) 60 Order appointing 61 Letters of guardianship 62 For special guardian, see 13, i§ f j6 For other forms, see Guardlan. Application to admit indigent insane persons to the asylum. 135 Certificate admitting indigent insane persons to the asylum. _ 136 Venire 137 Indenture for apprentices 152 Inventory and appraiser's warrant 7 Interrogatories 55 Issue, how made 22 Indemnity bond to executor on paying legacy 40 INDEX TO APPENDIX. J. No. of Form. JUDGMENT IN CIRCUIT COURT On appeals 84a JURY. Venire in case of insane person 137 L. LETTERS. Of administration, (general) 6 Testamentary 32 Of guardianship, (general) 62 Of administration and guardianship, (special) . 16 LICENSE. To sell real estate to pay debts 87 To sell real estate to expend or invest the proceeds, and for distribution and to pay legacies 102 To mortgage real estate 96 To sell personal property ^ 109 LAND CONTRACTS. Petition for specific performanoe J. no Decree for specific performance : ill LEGACY. Receipt for 153 LIMITATION OF TIME For paying debts and presenting claims 4, 5 M MINORS. Petition for appointment of guardians for 57, 57^ Nomination of guardian 59 Guardian's bond, (general and special) 60 Order appointing guardian 61 Letters of guardianship 62 Petition to remove property to another State 63 Application for adoption and change of name of 130 Order for adoption and change of name of 131 Petition for appointment of special guardian 13 Order appointing special guardian 15 Letters of guardianship, (special) 16 For other forms, see Guardian, Orders for allowance for : 4, 5 INDEX TO APPENDIX. No. Of Form. MORTGAGE OF REAL ESTATE. Petition 94 Order for hearing petition 2 Bond 95 License 96 Report 97 Confirmation ., 98 N. NOTICES. Of meetings of commissioners on claims 9 Affidavit of posting same 10 Of hearing claims by the court 11 Of appeal to be published under C. L. (4442) 84 Of sale of real estate 89 Affidavit of posting 14S NAME — Change of. Application for adoption and change of name of a minor 130 Order for adoption and change of name of a minor 131 Notice of intention to change name by adult 132 Petition'for change of name by an adult. 133 Order changing name of an adult - 134 o. ORDERS. Of hearing general, and for appointment of an administrator. 2 Appointing administrator, appraisers, commissioners on claims, and of allowance and limitation 4, 5 Allowing claims by the the court 12 Appointing special administrators or guardians 15 Of hearing on probate of will 24 Of hearing in case of wills proved in another State. 25 Admitting wills to probate 27, 29 Refusing to admit will to probate 30 Appointing appraisers, commissioners on claims and of allow- ance and limitation, where there is a will 33, 34 Removing executor, administrator or guardian 43 Appointing trustee and appraisers. 47 That commission issue to take depositions 53 Appointing guardians and appraisers 61 Allowing appeals 76, 79 Receiving commission on claims 83 Limiting time for payment of debts 84b For hearing final account 112 INDEX TO APPENDIX. No. of Form. ORDERS— Continued. Granting license to sell real estate to pay debts 87 Granting license to mortgage real estate 96 Granting license to sell real estate to expend, etc., the pro- ceeds 102 Granting license to sell personal property 109 For specific performance of land contracts 1 1 1 Allowing accounts 113, 114 Assigning residue of estate 116 Appointing commissioners in partition 118 Granting leave to bring an action on a bond 125 Releasing sureties on a bond 127 That a new bond be filed 129 For adoption and change of name of a minor 131 Changing name of an adult 134 Admitting indigent" insane person to the asylum 136 Admitting dependent children to State Public School 139 Appointing special drain commissioners 141 To show cause in case of contempt of court. 143 Commitment for contempt 144 Approving commitments to reform school. 146 Appointing probate register 151 Determining who are lawful heirs and entitled to lands of a deceased person 156 OATH. In case of embezzlement 71 Before sale or mortgage of real estate 88 P PETITIONS. For appointment of an administrator 1 For appointment of special administrator and guardian 13 For probate of a will 18 To prove a will admitted to probate in another State ' 19 For probate of lost will 20 For probate of nuncupative will 21 That a will be delivered into court 37 That executor, etc., render an account 39 For removal of an executor, administrator or guardian 42 For distributive share by child omitted in a will 44 For appointment of a trustee 45 For appointment nf guardians 57, 57^, 58 For removal of property of a minor to another State 63 By widow for an allowance, etc 64 INDEX TO APPENDIX. No. of Form. PETITIONS— Continued. For assignment of dower 66 For extension of time for settling estate 68 To compound debt 69 To revive commission on claims 82 For license to sell real estate to pay debts 85 For license to sell real estate for distribution 92 For license to sell real estate to pay legacies : 93 For license to sell real estate to expend or invest the proceeds 99 For license to mortgage real estate 94 For license to sell personal property 108 For specific performance of land contracts no For assignment of residue of estate 115 For partition 117 For leave to bring an action on a bond 124 By surety on bond to be released ' 126 That aditional bond be given 128 For adoption and change of name of minors 130 For change of name of an adult 133 In case of indigent insane persons 135 To send dependent children to State public school 138 For appointment of special drain commissioners 140 To determine who are entitled to lands of a deceased person. 155 Answers to petitions 22 PROBATE OF WILL. Petition for 18 Petition in case of will proved in another State or country.— 19 Petition in case of lost or destroyed will 20 Petition in case of nuncupative will 21 Answers to petitions 22 Declaration and plea * 23 Order for hearing 24 Order for hearing in case of wills proved in another State 25 Form for taking testimony 26 Certificate of. 27 Decree establishing lost will 28 Certificate where will is proved in another State 29 Order refusing probate 30 Affidavit of translation of will. 35 See also Will. PERSONAL PROPERTY. Petition for license to sell 108 License to sell 109 INDEX TO APPENDIX. No. of Form* PARTITION. Petition for ;i 117 Order for hearing petition 2 Commissioner's warrant 118 Notice of .. 119 Report of commissioners 120 Confirmation . 121 Bond of agent in 122 Printer's affidavit 147 Probate register, order appoiniing 151 R. REAL ESTATE — Sale of, to pay Debts by Executors, Administra- tors and Guardians. Petition 85 Order for hearing petition 2 Bond 86 Certificate of superintendents of poor 100 License 87 Oath 88 Notice of sale 89 Report of sale 90 Confirmation 91 Deed 106 REAL ESTATE_Sale of, for Distribution and to pay Legacies by Executors and Administrators. Petitions 92, 93 Order for hearing petitions 2 Bond 101 License 102 Oath 88 Notice of sale 89 Report of sale 9° Confirmation 9 1 Deed 106 REAL ESTATE— Sale of, by Guardians to Expend or Invest the Proceeds. Petition 99 Order for hearing petition 2 Certificate of superintendents of poor 100 Bond - IDI License I02 Oath- 88 2 ikdex to appendix. No. of Form, REAL ESTATE— Sale of, by Guardian to Expend, etc.— Continued. Notice of Sale 89 Report of Sale 90 Confirmation 91 Deed 106 REAL ESTATE — Mortgage of, by Executors, Administrators and Guardians. Petition 94 Order for hearing petition 2 Bond 95 Certificate of superintendents of poor 100 License 96 Oath 88 Report 97 Confirmation 98 REAL ESTATE. Bond to prevent the sale of. 103 Bond to pay incumbrances on sale of. 104 Bond to pay balance unpaid on land contract on sale of. 105 Executors, administrators and guardian's deed 106 Executor's deed under power of sale in a will 107 Report and warrant of commissioners on claims 8 Residuary legatee's bond 31 Refusal by executor to accept the trust 36 Resignation of an executor, administrator and guardian 41 Receipt for will filed 49 Report of commissioners in partition 120 Reform school, certificate approving commitments to. 146 Records, exemplification of 148 Register of probate, order appointing I5j Receipt for legacies 153 Receipt for distributive shares 154 s. For SALE AND MORTGAGE OF REAL ESTATE— See Real Estate. For SALE OF PERSONAL PROPERTY— See Personal Property. SPENDTHRIFTS. Petition for appointment of guardian for 58 Citation 150 Bond — general and special 60 Order appointing 61 Letters of guardianship 62 See also Guardian. INDEX TO APPENDIX. No. of P'orm. For SPECIAL ADMINISTRATOR— See Administrator, For SPECIAL GUARDIANS— See Guardians. SETTLING ESTATE. Petition for extension of time for 68 SUPERINTENDENTS OF POOR. Certificate on sale of real estate by guardians loo Subpoena 149 STATE PUBLIC SCHOOL. Petition to admit dependent children to 138 Order admitting, 139 SPECIFIC PERFORMANCE OF LAND CONTRACTS. Petition for no Decree for in SURETIES ON BOND. Petition to be released 126 Order releasing 127 T. TESTIMONY. Application for commission to take 51 Notice of application 52 Order that commission issue 53 Notice to settle interrogatories 54 Direct and cross interrogatories 55 Commission to take 56 Form for taking, on probate of wills 26 TRUSTEE. Petition for appointment of 45 Order for hearing petition 2 Bond 46 Order appointing 47 Warrant of appointment 48 Translation of will, affidavit of 35 V. VENIRE In case of insane persons 137 w. WILL. Petition for probate of 18 Petition in case of will proved in another State 19 INDEX TO APPENDIX. No. of Form, WILL — Continued. Petition for probate of lost will 20 Petition for probate of a nuncupative will 21 Answers to petitions 22 Declaration and plea on probate of. 23 Order for hearing on probate of 24 Order for hearing in case of wills proved in another State — 25 Form for taking testimony on probate of. _. 26 Certificate of probate of. 27 Decree establishing a lost will 28 Certificate of allowance of will proved in another State 29 Order refusing to admit will to probate . 30 Affidavit of translation of 35 Petition that will be delivered into court 37 Commitment for refusal to deliver will into court 38 Petition by child omitted in the will 44 Receipt for will filed 49 Formal parts of a will 50 Residuary legatee's bond 31 Letters testamentary 32 Refusal of executor to accept the trust 36 See also Executor and Probate. WIDOW. Petition by, for assignment of dower . 66 Order for hearing petition 2 Notice of setting off dower 119 Commissioner's warrant and report in dower 67 Confirmation of report in dower 121 Contract by, to sell her dower 65 Petition by, for allowance, etc : 64 Orders for allowance for 4, 5 WITNESS. Subpoena for 149 WARRANT Of appraisers 7 Of commissioners on claims . 8 Of commissioners in dower 67 Of commissioners in partition 118