V ■ '■><?. ^ ^<y'Z" <> «■ -?■■<> ■-*
.|'6 .■■:... -v1 3 b! •• < k .. - • •* v • ,> C-v-
T li E
• :• y/ ■■.
P EXECUTORS, ADMIN iSTBATDR'S,
tV: ■ ■ A®. ■■ . 7jms*t*V ?
Gl AKDIA3V S (iUIDE.
R-feilNCy A COLLECTION OF ALL TM'C A
"liiS OF GFOU' fA
RLGULATINO THIS i fcjtlTttA'l
i • %«&*'*• '/jM J
& of Kcpreseiii'iliveo of Estates.
> tfOUKTHMl
VA Rial's
^>' BEARING ETON Tin: Mjitr'EMkNT OF Ksf|
() '• -SUCH 1'OliMS OF iikiiOS, BONOS, OKMFk'T Ai
•<•'"■ AS All K NKOFSSA . Y TO THE COO.R'likT
<V) Ttt.VXSACTIO * OF THEIR Bt
tip ESS.
<<>:>
o:>
v
ox
8 5
OX
o A
i) X
ov
-i V
Ov
Centpili'd lit a Clerk of the Conrt of |
—j—
' OM'ATHUS
rklk'TSlJ AT TUX 1 VQOTKTPv OI'FICS,
0
IS '15.
•v ' «f ;:< V:."--O-OO--'
'Vi <? z. —v-- v-~ •/T-v"-...
v A
<*■» - V- w iA V.V- -"V . s*i
ROBERT W.WOODRUFF
LIBRARY
FOR ADVANCED STUDIES
GIFT OF
Mrs. Katherine Birdsong
THE
EXECUTOR'S, ADMINISTRATOR'S,
AND
GUARDIAN'S GUIDE.
BEING A COLLECTION OF ALL THE
STATUTES OF GEORGIA
REGULATING THE PRACTICAL
Duties of Representatives of Estates.
TOGETHER WITH
VARIOUS DECISIONS
BEARING UPON THE MANAGEMENT OF ESTATES, AND
SUCH FORMS OF DEEDS, BONDS, ORDERS, &C.,
AS ARE NECESSARY TO THE CORRECT
TRANSACTION OF THEIR BU-
S1NESS.
Compiled by a Clerk of the Court of Ordinary.
COLUMBUS s
PRINTED AT THE ENQUIRER OFFICE.
1845*
Entered according to the Act of Congress in the year 1841,by
Charles H. Stillwell, of Talbot County,
In the Clerk's Office of the District Court of Georgia.
PREFACE.
•The following pages contain nothing that is Original, but
much that will be found useful to those for whose benefit
they have been prepared : being a compilation and system-
atic arrangement of the substance of all the Statutes of this
State regulating the practical duties of the Fiduciary. The
decisions of the Superior Courts of this and other States, are
such as every one who is charged with the management of an
estate should be acquainted with. The various comments up-
on the Statutes', the author believes will be useful and neces-
sary to many ; as from experience he has learned that those
whose motives were good, have sometimes failed in their duty,
from a misunderstanding of them. The forms have been in-
serted as a means of enabling all to prepare their papers be-
fore they come into Court, as from a failure in this point, much
difficulty and perplexity frequently arises.
References from one page to another, have been avoided as
much as possible, and the laws pertaining to each department
of duty will be found in connection.
The work has been submitted to the inspection and revision
of able and experienced Attorneys, whose opinions of the
work we trust will ensure it the confidence of the public.
THE AUTHOR.
References.—P. Prince's Digest. The figures refer to
the page. G. J. Georgia Justice. The other references are
written out sufficiently full.
TESTIMONIALS.
Having examined the following pages in manuscript, with
as much attention as one perusal would allow, I am satisfied
that it will be found a useful and safe Director to all who may
have the management of Estates entrusted to them, and a con-
venient help to Clerks and others interested in the business of
the Court of Ordinary.
B. HILL.
Talbotton, Dec. 21st, 1844.
I aoneur in the above.
JOSEPH row.
EXECUTOR'S, ADMINISTRATOR'S,
AKD
GUARDIAN'S GUIDE.
PAR T FIRST.
CHAPTER I.
Ailminiistrators.
Section 1. The Clerk of the Court of
Ordinary is empowered to grant letters of
temporary administration, to hold till the
next meeting of the Court, after the grant-
ing of such letters.—P. 231.
Note.—The object of these letters is to enable the person
who obtains them to collect, keep together, and preserve from
waste and loss, the goods and chattels of the deceased, until
such time as permanent letters may be procured. Hence,
whenever, by slidden death or otherwise, an estate is left with-
out a legal director, whoever intends to administer should ap-
ply for such letters ; as an intermeddling with the estate with-
out them, is a violation of law, and renders whoever may be
guilty of it, liable in his own wrong. These letters are granted
by the Clerk at his discretion, and he is liable if he take insuf-
ficient security ; all. therefore, who apply for them, should go
prepared to give a satisfactory bond. This bond is taken for
double the amount of the estate to be administered.
' X '
6 executor's, administrator's
2. Permanent letters of administration
ore obtained in the following manner:—
Persons wishing them apply to the Clerk of
the Court of Ordinary, who thereupon issues
a citation to all concerned to appear at his
office and file their objections to the issu-
ing of said letters. This citation is pub-
lished thirty days previous to the term of the
Court at which the letters are granted.—
P. 23J.
Note.—The Order of ihe Court appointing the administra-
tor, must contain the names of his securities and the sum for
which said administrator and securities are to give bond ; per-
sons applying for such letters, should have their securities se-
leeted and present with them at the Court; and should also
present to the Court an inventory of the estate; as, without
this,the Court have to form their judgment of the amount for
which the bond should be taken, upon the bare assertion of the
applicant.
Appraise mcnt.
3. The administrator being appointed,
his next duty is to have the estate appraised.
This must be done under the authority of
the Court; to obtain which he must submit
to the Court an order containing (he names
of five reputable freeholders (any three of
whom may act,) to be appointed appraisers.
—P. 226. Upon this order (here issues to
the administrator a warrant of appraise-
ment, from under the hand of the Clerk.
4. The property must be appraised with-
Jk
AND GUARDIAN'S GUIDE.
7
in sixty days from the date of the letters.—
P. 222. And the appraisement returned
into the Clerk's office within three months.
P. 224, 226.
5. If the administrator shall fail to make
return of the appraisement, within the time
aforesaid, or within such further time as the
Court may allow; or If such administrator
shall make default in inserting therein all
or any part of his intestate's goods, chattels,
credits or effects, he is thereby made charge-
able, and is subject to the payment of his
intestate's debts, in the same manner as
executors in their*own wrong, by the laws
of England.*—P. 224.
6. The appraisers, before entering upon
the discharge of their duties, must take the
following oath, to be administered by a Jus-
tice of the Peace :—You, A, B, C, D, E, do
swear that you will make a just and true
appraisement of all and singular, the goods
and chattels (ready money only excepted,)
of \Y. B., deceased, as shall be produced to
you by J. S., the administrator of the estate
*If a stranger takes upon him to act as executor, for admin-
istrator,) without any just authority, (as by intermeddling with
the goods of the deceased, and many other transactions,) he is
called in law an executor of his own wrong, de son tort, andis
liable to all the trouble of the executorship, without any of the
profits or advantages—but merely doing acts of necessity or
humanity, as locking up goods, burying deceased, &.C., will
n ,t so charge him.—Black. Com, 2 book. p. 507.
A*
8 executor's, administrator's
of the said W. B., and that you will return
the same, certified under your hands, unto
the said J. S., administrator, within the
time prescribed by law.—P. 223. The
time prescribed by law here, must mean the
time between making the appraisement, and
the expiration of the three months, within
which the administrator must make his re-
turn to the Clerk.
7. No administrator is permitted to take
any estate, or any part thereof, at the ap-
praised value.—P. 223.
8. Appraisements may be given in evi-
dence to prove the^value of an estate, but
shall not be conclusive upon any "person in
interest, if it shall appear on the trial of the
cause, that the estate was really worth, or
bona fiide sold for more or less than such ap-
praisement.—P. 22G.
9. Administrators are hereby made char-
geable with the real value of the goods and
chattels in their appraisement; and with so
much of the credits only as they shall be
able by due care and diligence to recover
and receive.—P. 222.
10. The inventory and appraisement
should set forth every thing—not only goods
and chattels, but also judgments, bonds,
notes, books of accounts, and even ready
money, that has come to the possession of
AND GUARDIAN'S GUIDE.
9
the administrator, or to his knowledge, or
to the hands, possession, or knowledge of
others for him—vide form of administrator's
bond.—Georgia J. 283.
Form of" Appraisement.
Appraisement of the goods and chattels of
William, Brown, deceased, as made by the undersigned,
June 10ih, 1344.
No. 1. Jolin, a negro man, valued at $600 00
2. Sain, do. do 600 00
3. Peter, do. do 700 00
4. Peggy, do. woman,1 do 400 00
5. A black horse, valued at f 75 00
6. A sorrel horse, do..., 30 00
7. A white cow, do 15 00
8. Ten head of sheep, valued at 12 00
9. 1 mahogany table, do 10 00
10. 1 bed and clothing, do 25 00
$2,567 CO •
GEORGIA, Talbot County.
We do hereby certify that the foregoing
contains a just and true appraisement and
valuation of the goods and chattels of JVil-
Ham Brown, deceased, as produced to us by
John Smith, the administrator, to the best of
our judgment and understanding. June
10,1844.
SIMEON SERAUTON,)
JAMES BERRY, } Appraisers.
DAVID LONG, )
GEORGIA, Talbot County.
I do hereby certify that the above ap-
10 executor's, administrator's
praisers were sworn to perform their duty
as appraisers of the estate of William Brown,
deceased, according to law. Jane 10, 1844.
RICHARD BECK, j. P.
Inventory of the,rights and credits of TVil-
Ham Brown, deceased, June lOih, 1844.
Cash on hand, in bank bills $300 00
Judgment against Simon Rogers 50 00
One .note on James Black, due 25th Dec'r, 1843.... 60 00
do. William Lamb, do. do 40 00
do. Samuel Frazer, due 7th Jan., 1844 SJ5 00
$475 00"
JOHN SMITH, Adm'r.
Note.—The schedule or inventory of open accounts (if any)
should also be made separate and distinct, i. e. though embra-
red in the above inventory, they should not be blended with
it; but all other credits should be first stated and added up—
and than the inventory of accounts should bear a caption show-
ing the date of the book from which they were taken, as Book'
of Accounts for 1S42. or L843—and also the kind of business
for which the book was kept—as merchants, physicians, or
blacksmiths.* These inventories must be viewed by the ap.
praisers, and returned with appraisement.
Administrator's Sale.
12. The sale of personal property (ex-
cept. negroes,) by an administrator, must be
*It will be noticed that the words Inventory and Appraise-
ment, seem to be used as synonymous in the Statutes. They,
however, are not so—the inventory proper is that full and en-
tire list of every article belonging to the estate, which it is the
duty of the administrator to prepare and have ready for the
appraisers, before they enter on their duties. From this in-
veniory they take all of such things as they must price, and this
is the Appraisement; the balance transcribed is still called an
inventory.
AND GUARDIAN'S GUIDE.
XI
published forty days in a public gazette, and
at two or more public places in the county.—
P. 223. It is the administrator's duty to
put up the property in such manner and
quantity as shall be deemed most advanta-
geous to the estate.—P. 237.
13. Sales must not commence before the
hour of ten o'clock A. M. nor continue after
four o'clock P. M. And if to continue from
day to day, it must be so expressed in the
advertisement, and also proclaimed on the
day of, and within the hours of sale.—
P. 234.
Administrator's Sale.
14. On the twentieth day of J uly next, will
be sold at the residence of William Broivu,
•late of Talbot county, deceased, a portion
of the personal property of said deceased,
consisting of one black horse, one sorrel
horse, one white cow, ten head of sheep,
'The administrator, being trustee to creditors and next of
kin, cannot sell to, or purchase from, himself. If he does, he is
liable to creditors to the full value of the property so sold,
and on a bill filed by the next of kin, is liable to account to
them in like manner -—2 Oar. Law Repos. 449.
Co administrators, or executors, may, however, purchase
from each other, provided it be a bona fide purchase, and with-
out fraud—I McCord's Chan.
The purchase being made by another, if for the administra-
tor, would in like manner be voidable.
,13 executor's, administrator's
one mahogany table, and one bed and doth-
ing. Terms of sale# Purchasers will be
required to give small notes due the twenty-
fifth day of December next, with good per-
sonal security. June 10, 1844.*
JOHN SMITH, Administrator.
Account of the sale of a portion of the per-
sonal estate of William Brown, deceased, sold on the iw en-
tieth day of July, 1844, on a credit till tfce twenty tiftb day
of December next.
1. Black horse, purchased by Silas Ware $80 00
2. Sorrelhtwse, do. Thomas PlaLt 70 00
3. V\ hite cow, do. James Dean 13 00
4. Five head of sheep, purchased by James Dean... 5 00
5. Five do. do. do. do. John StuLbs. .. 6 00
6. Mahogany table, do. do. Thos. Lock.... 4 00
7. Bed and clothing, do. do. " " .... 23 00
$201 00
15. To sell land or negroes, the adminis-
trator mustTfirst publish the following notice'
for four months.—P. 248.
Four months after date, application will
be made to the Honorable the Inferior Court
of Talbot county, when sitting for ordinary
purposes, for leave to sell the negroes be-
longing to the estate of William Brown, de-
ceased. June,10, 1844.
JOHN SMITH, Administrator.
16. Sales of land and negroes must by
published sixty days.—P. 248.
AND GUARDIAN'S GUIDE.
13
Administrator's Sale.
By virtue of an order of the Honorable
the Inferior Court of Talbot county, when
sitting for ordinary purposes, will be sold at
the Court House door in said county, on the
first Tuesday in September next, between
the usual hours of sale, the following negroes,
viz.—John, a negro man, aged 35 ; Sam, a
man, aged 30; Peter, a man, aged 25, and
Peggy, a-woman, aged 24 years. Purcha-
sera will be required to give notes in sums
not exceeding thirty dollars, with approved
security, due the twenty-fifth day of Decern-
her next. Sold as the property of the late
1 Villi am Brown,dece ased, for the benefit of
the heirs and creditors of said deceased.
June 10th, 1844.
JOHN SMITH, Administrator.
17. If an administrator finds it necessary
to sell the slaves, he must, before obtaining
the order of the Court to do so, serve each
distributee with a written notice twenty days
previous to making his application for leave.
P. 237.*
GEORGIA, Talbot County.
John Brown—Sir, you are desired, as one
of the distributees of the late William Brown y
*To sell lands, this notice is not necesrary ; hut the four
months notice must be published at the Court House door of
the county where the land lies, as well as iu the public ga-
zette,—P. 243.
14 executor's, administrator's
deceased, to take notice that 1 shall apply
to the Honorable the Interior Court, when
sitting for ordinary purposes, on tile first
Monday in September next, for leave to sell
the slaves belonging to the estate of said de-
ceased, for the benefit of the heirs and ere-
ditors. June 10th, 1844.
JOHN SMITH, Administrator.
18. Slaves belonging to the estate of an
intestate, are not to be sold, unless one year's
hire of them, together with the proceeds of
the sale of personal property, be found in-
sufficient to discharge the debts; or unless
it be necessary to an equal distribution.—•
P. 234.
ft?" Administrators should be aware that
the rule absolute, or order of the Court to
sell in this case, or in selling land, is among
the most important orders he^will have oc-
casion for in his administration. .Being
matter of record, it is taken as good evi-
dence in any future litigation. He should
therefore be careful to have inserted in it
the whole process. Thus—
It appearing to the Court that John Smith,
administrator of William Brown, deceased,
has given notice of his intention to apply to
this Court for leave to sell the negroes be-
longing to the estate of the said deceased,
which notice has been published for four
AND GUARDIAN'S GUIDE.
15
months in the Columbus Enquirer, a public
gazette of this State; and that said John
Smith has served a written notice on all and
singular the distributees of said intestate,
twenty days before the sitting of this Court.
And it further appearing to the Court that
said sale is necessary for the benefit of the
heirs and creditors of said William Brown ;
and that no objection is made to the same.
Therefore be it ordered by the Court, at
this term thereof, that said John Smithy as
administrator as aforesaid, have leave to sell
the following negroes, &c., in terms of the
law.
Note.—This order may be varied to suit any sale, and the
fact that it cannot be taken till four months after notice, will
not necessarily defer a sale six months, but by running the
Bixty days notice, with the four months notice, the sale may be
effected in a little more than four months.
19. Administrator's Deed.
GEORGIA, Talbot County,
Whereas John Smith, of said county, ad-
rninistrator of William Brown, late of said
county, deceased, did, on. the tenth day of
June, in the year of our Lord eighteen
hundred and forty-four, commence the pub-
lication of a notice in the Columbus Enqui-
rcr, to all concerned, that at the expiration
of four months from that date, said John
Smith, administrator as aforesaid, would ap-
16 executor's, administrator's
ply to the Honorable the Inferior Court of
Talbot county, when sitting for ordinary
purposes, for leave to sell lot of land num-
ber fifty-eight, in the ninth, district of Talbot
county, it being a part of the real estate of
the said deceased. And whereas, there be-
ing no objection made to said application,
the said Court did, on the first Monday in
November, of the year aforesaid, and at a
regular term of the same, pass an order
granting leave to said John Smith, adrninis-
trator as aforesaid, to sell said lot of land.
And whereas, in pursuance of said order,
and after the publication of notice of sale in
the Columbus Enquirer, for sixty days, said
John Smith, administrator as aforesaid, did,
on the first Tuesday in December, in the
year aforesaid, at the Court House door, at
Talbotton, in said county, between the law-
ful hours of sale, put up at public outcry said
lot of land. And whereas, Jesse Steel, of
said county, being the highest and best bid-
der, said lot of land was knocked off to him
at and for the sum of eight hundred dollars.
Now this Indenture, made and entered into
this sixth day of December, in the year of
our Lord eighteen hundred and forty-four,
between John Smith, administrator of the
estate of William Drown, deceased, of said
county, of the one part, and Jesse Steel, of
AND GUARDIAN'S GUIDE,
17
said State and county, on- the other part,
witnesseth, that for and in consideration of
the sum of eight hundred dollars cash in hand
paid by the said Jesse Steel, the receipt
whereof is hereby acknowledged, the said
John Smith, administrator as aforesaid, doth
by these presents, bargain, sell, alien and
convey, as far as his authority as ad minis-
trator, as aforesaid, will warrant him, unto
the said Jesse Steel, all that tract of land sit-
uate,lying,and being in the ninth district of
Talbot county, known and distinguished in
the plan of said district, as the number fijty-
eight, containing two hundred two and a half
acres, agreeable to original survey, be the
same more or less, with all the rights, mem-
bers, and appurtenances, to said lot of land,
in any wise appertaining or belonging. To
have and to hold the said lot of land, with
all its appurtenances, unto him the said Jesse
Steel, his heirs, executors and administra-
tors, forever, in fee simple. And the said
John Smith, administrator as aforesaid, the
right and title of said lot of land and its ap-
purtenances, unto him the said Jesse Steel,
his heirs, executors, and administrators, will
warrant and defend against himself, his
heirs, executors and administrators, and
against all other persons whatever.
In testimony whereof, the said John Smith,
18 executor's, administrator's
administrator as .aforesaid,, hath hereunto
set his hand and affixed his seal, the day
and year first above written.
JOHN SMITH, [l. S.]
Administrator of William Brown, deceased.
Signed, sealed and delivered }
in presence of f
JOHN PALAING, {
RICHAHD BECK, J. P. J
0Bills of sale should, like titles, recite
the process of advertisements, &c.
20. Administrators should be careful, in
taking their notes at sales, to have them
made as safe as possible. The only show-
ing upon which the Courts can relieve them
from responsibility on any note taken by
themselves, is sometimes quite difficult to
make; they being bound to shew, 1st, that
when said note was taken the parties were
solvent and the note good ; 2d, that due
care and proper diligence had been used by
the administrator in the collection of said
note; and 3d, that the parties from whom
said note was taken, are now totally insol-
vent, and the note still uncollected. The
provisions of this rule are exercised with
great caution by the Courts, and but very
few ever receive the benefit of it.
Settlements wltli Creditors.
21. Administrators must give six weeks
AND GUARDIAN'S GUIDE* 10
notice in one of the public gazettes, 01* at
three different places of public resort in the
county, for creditors to render in their ac-
counts against the estate. All creditors who
shall fail or neglect to render to the admin-
istrator an account of their demands, within
twelve months from the date of his letters of
administration, shall be liable to lose the
same; provided, such notice has been pub-
lished, and the assets shall have been dis-
posed of.—P. 223. But see note on p. 20.
Administrator's Notice.
All persons indebted to the estate of Wit-
liam Brown, late of Talbot county, deceas-
ed, are hereby requested to make immedi-
ate payment. And all persons having de-
mands against said deceased, will render
them in, agreeable to law. Date of letters
of admistration 1st May, 1844. June 10th,
1844.
JOHN SMITH, Administrator,
22. Actions cannot be commenced against
administrators, as such, till twelve months
after the date of their letters.—P. 207, 208.
And no suit shall abate or cease by the
death of either party, where the cause of
action would survive to the administrator.
20 executor's, administrator's
Where the plaintiff in such action shall die,
his administrator shall, within three months
after obtaining his letters, give notice to the
defendant by scire Jacias, (to issue from the
office where such suit is pending,)—and
where the defendant shall die, it shall and
may be lawful for the plaintiff to issue scire
facias in like manner, immediately after the
expiration of twelve months, requiring his
administrator to appear and answer to the
cause.—P. 222.
2-3. An administrator may not retain
money in his hands longer than necessary;
but shall, within twelve months after obtain-
ing letters of administration, make a divi-
dend of the monies arising from the estate,
among.the creditors. And if any thing be
then remaining, another dividend in two
years from the date of said letters ; which
shall be final, unless a suit be pending, or
unless property should afterward come to
hand, in which cases, a dividend may be call-
ed for by fhe creditors, in three months after
the termination of such suit, or the conver-
sion of such property into money.—P. 223.
24. An administrator should in no case
part with all the assets in his hands, before
the expiration of the time allowed for cred-
itor3 to render in their demands; for in such
AND GUARDIAN'S GUIDE* 21
rase he might render himself individually
responsible.—-P. 229.*;
25. If an action be brought against an
administrator when he has no assets, he
must plead that fact in his defence, or be
liable to suffer judgment against himself.—
Schley's Dig. 233. And an administrator
having assets at thetime of pleading, which
are subsequently lost or destroyed, may, in
an action of debt against him, suggest such
loss or destruction, and will be permitted to
•shew what has become of the assets.f
26. If there be debts of higher degree,
and the administrator be sued upon a debt
of inferior degree, he may neither pay it,
nor suffer the plaintiff to recover in his ac-
iion. It is his duty to set forth the debts of
higher dignity, in bar to such action. See
Dudley's Rep. 110, and Desaus. Eq Re-
ports, 4 vol. 65. _
*In a case very lately decided, an administrator was sued
•on a debt of which he had no notice before the end of twelve
months, and it being proven on the trial that he had paid out
end distributed the estate before the expiration of twelve
months, he was held liable, and a verdict rendered against him
accordingly—the Judge holding that no administrator could
safely part with the assets. •
tin South Carolina, where the executor's law correspond*
very nearly with that of Georgia, it has been ruled that an ad-
ttiinistrator's failing to .plead that he has no assets, is not
such an unqualified admission of assets, as to prevent
him from showing the fact. See Pesausut;e's Equity Reports,
4 vol. 65. In such showing, the Courts would take intp con-
sidera'tion against the administrator, any neglect of which he
may have been guilty on such case.
B
22 execufor's, administrator's
27i The administrator being sued on a
debt which is barred by the statute of limi-
tations, is bound to plead the same in bar to
such action. But if within his own knowl-
edge the debt is just and fair, the intestate
having had value received for it in his life
time, the administrator is not compelled to
plead the statute, but may pay the debt.—
Pesaus. Rep.*2 vol. 577.
28. The following is the order in which
debts are to be paid by administrators under
the statute of 1792.—P. 228.
1. Funeral, and other expenses of last
sickness.
Extravagance in these items is con-
sidered "waste. The deceased must be bu-
ried in a manner suitable to the estate which
he leaves. Blackstone, 2 vol. 508.
2. Charges of probate of will, or letter
of administration.
3. Taxes. P. 847. ITe cannot be double
taxed. Laws 1843, p. 173.
0?* If the deceased has been executor,
administrator, or guardian, and has died
chargeable as such, the amount with which
he may be so chaiged must be paid next.
4. Other debts beside taxes due to the
public.
5. Judgments, mortgages, and execu-
tions, eldest first.
aKd guardian's guide. 23
tt?" This exception is in favor and applies
only to such judgments, mortgages, and ex-
editions, as existed at the time of the death
of the intestate. The rule under the stat-
ute is, that no preference can be created,
cither by greater diligence on the part of
the creditor, or by the acts of the adminis-
trator. The guide for the administrator, is
the nature of the debts as they existed at
the death of his intestate. Dudley's Re-
ports, 110.
6. Rent.
7. Bonds, or other obligations.
8. Open accounts.
{£7® To avoid personal liability under this
statute, it is suggested, that every adminis-
trator (especially such as have to manage
large estates, the solvency of which is not
certain,) enter in his account book the name
of each claimant or creditor, together with
the nature and amount of the debt, and the
date of its maturity. Ide willthen be ena-
bled, at the expiration of the twelve months,
to calculate at his leisure precisely how far
he can go, on what particular debts he will
have to make distribution, and on what debts
(if any,) he must refuse payment.
29. An administrator, being a principal
creditor, takes the estate as trustee for all
and singular the other creditors.—P. 223.
24 executor's, administrator's
He will not be allowed'to retain for debts
due to himself, more than his proportionate
share.—Desaus. Rep. 4 vol. 65.
30. A promise by an administrator to pay
a debt of deceased out of his own estate, is
not binding, unless it be reduced to writing.
P. 915. And made foi valuable considera-
tion.—Williams on Executors, 1069.
31. Administrators are not liable to give
security when they appeal.—P. 426.
32. In all cases where either the plaintiff
or defendant dies within four days after the
adjournment of the Court at which a ver-
diet has been rendered against them, and
they have failed to appeal,their administra-
tor may appeal; provided he do it within
four days after he is qualified, and provided
the cause be subject matter of appeal. In
such case the administrator must serve a
notice on the adverse party within thirty
days after he has appealed.—Laws of 1843,
p, 124.
33. If an administrator promise to sub-
mit to an award, he is bound to pay the
same, and cannot say he has no nssets.^—
Schley's Digest, p. 305.
34. An .administrator has the right to
transfer a note of his intestate's, by endorse-
ment. But if he do so without qualifica-
tion, he becomes personally responsible. If
AND GUARDIAN'S GUIDE. 25
he wishes to transfer such note, in settle-
ment, for tie benefit of, and on the credit of
the estate, he should so express it, and sign
as administrator.—Chitty on Bills, 225.
If a negotiable note be made payable to
two administrators, as such, a transfer by
•one of them is not sufficient.—Ibid, and 4
Mass. Rep. 334, and 9 Mass. Rep. 324.
Settlements with Debtors.
35. The administrator shall be obliged to
sue for every debt which he may reasonably
expect to collect in that way ; or he may,
at the request of a creditor or creditors of
the intestate, assign, and empower them to
sue for the debts outstanding.—P. 223. See
note on interest p. 43.
Under this statute, the administrator be-
ing unwilling to sue for a debt, lest he may
damage the estate by costs, the creditor ac-
cepting the assignment, and suing for such
debt, must do so at his own charges.—Ibid.
But according to a decision made by the
Convention of Judges, Dudley's Rep. I, the
plaintiff being an executor or administrator,
cannot be rendered liable for costs, when
the verdict is in his favor, even though, the
defendant proves insolvent.
26 executor's, administrator's
36. In an action by an ddministrator for
a debt due to him in his representative char-
acter, the defendant cannot set off a debt
due to him from the administrator person-
ally. Nor can he set off a debt due to him
from the deceased, if the same would bo
barred by the statute of limitations; nor,in-
deed, any debt unless it be one that rose on
the credit of that for which suit is brought.
Kinney's Com. 568.
37. When a plaintiff in attachment dies,
his administrator shall, within six months
from obtaining his letters, cause to be issued
by the Clerk of the Court in which such at-
tachment is pending, a scire facios, retnrna-
ble to the next term of said Court—at which
term he may, on motion, be made a party,
and the cause proceed. In case the defend-
ant die, his administrator is served with no-
tice after the expiration of twelve months,
and if he appear and give security, will be
permitted to plead and defend said attach-
ment, in the same manner as the deceased
might have done.—P. 34.
Qwere.-^-Would an administrator render
himself personally liable, by neglecting to
attach for a debt due to him in his repre-
sentative character ?
He certainly would be held liable, where
it was shown that the debt was lost to the
AND GUARDIAN'S GUIDE. 27
estate by his neglect. It would therefore
be well for administrators to notice the fol-
lowing grounds upon which attachments
may issue:
1. Where the debtor resides out of the
State.
2. Where the debtor is actually removing
without the limits of the State. .
3. Where the debtor is actually removing
without the limits of th^eount}'.
4. Where the debtor absconds.
5. Where the debtor conceals himself.
6. Where the debtor stands in defiance of
a peace officer.
7. Where the debt is not due, and the
debtor is removing without the limits of the
State.
Kf* And if the intestate has been securi-
ty for another on a note or obligation of any
kind in writing, and has been compelled to
pay the same by legal proc'ess, or has paid it
by being called on by the person or persons
holding such note or other instrument in
writing, such instrument falling into the
hands of the administrator, being still un-
paid by the principal, would be assets, and
the administrator may attach the principal.
Or if there be a suit pending against de-
ceased as security, and he die, his adminis-
trator on being made a party may attach. .
23 EXECUTGlfs, ABMINISTATOr's
Or if the deceased be security on a not©
or other obligation, and die, his administra~
tor may attach.
But in these three instances he can only
attach on one of the following grounds :
1. Where the principal in any such case
is removing without the limits of the Stat©
or county.
2. Where the principal debtor is.about to
remove without the limits of the State or
county.
3. Where the principal debtor has remo-
vcd without the limits of the State or coun-
ty— P. 35.
Where an administrator attaches for a
debt due the deceased, he need not swear
positively, but may swear to the best of his
knowledge and belief, from the evidence in his
possessio?i. In signing the bond, he should
sign as administrator.—P. 41.
Attachments may be issued by a Judge„
of Superior or Inferior Court, or Justice of
the Peace.
Attachments, returnable to the Superior
©r Inferior Court, may be issued by a Jus~
tice of the Peace, and levied and returned
by a Constable*
Attachments must be advertised "at least
thirty days before the sitting of the Court"1
to which they are returnable*—P. 31*
AND GUARDIAN^ GUIDE. 29
Distribution of Estates.
38. The administrator wishing to have
the estate distributed, obtains an order to
that effect from the Court of Ordinary, ap-
pointing three or more freeholders to make
such distribution. This order should ex-
press its exact intention, whether to make
a full or partial distribution, or only to as-
certain and set off one distributive share;
and if the latter, what legatee's share.—P.
241,242.
39. When an estate is to be distributed,
all the parties in interest must be served
with a written notice. Those Within the
State twenty days, and those without the
State ninety days, before the meeting of the
Court at which the application is to be
made.—Ibid.
Notice.
GEORGIA, Talbot County.
Mrs. Mary Brown—You are hereby noti-
fied, that I shall apply to the Honorable the
Inferior Court of Talbot county, when sit-
ting for ordinary purposes, on the first Mon-
day in December next,to appoint distributors
for the purpose of distributing the estate of
the late William Brown, deceased. June
10th, 1844.
JOHN SMITH, Administrator.
40. Any one of the distributees* or their
30 executor's, administrator's
guardian, may make such application to the
Court of Ordinary, for distribution. But
in such case, the administrator will not be
compelled to deliver the property to such
distributee or guardian, unless the adminis-
trator be first secured by such distributee or
guardian giving bond and security to refund
to the administrator their proportionable
part of any debt that may be established
against the estate, and the cost attending
the recovery of such debt.—Ibid. In which
case the administrator should take a bond
in the following form :
Form of Refunding: Bond.
GEORGIA, Talbot County.
Know all men by these presents, that we,
John Brown and Charles Peters, are held
and firmly bound Unto John Smith, adminis-
trator of the estate of William Brown, late
of said county, deceased, in the just and full
sum of one thousand dollars■, for the true pay-
merit of which we bind ourselves, our heirs,
executors and administrators, jointly and
severally, firmly by these presents. Sealed
with our seals, and dated this 10th day of
December, 1844.
The condition of the above obligation is
such, that whereas said John Smith, admin-
istrator as aforesaid, has this day divided
amongst the distributees of said deceased,
AND GUARDIAN'S GUIDE.
31
his estate; and whereas said John Brown
has received his distributive share of said
estate i now if the said John Brown shall
avell and ti uly pay and refund to the said
John Smith, his proportionable share, it be-
ing one third part, of any debt which may be
hereafter established against the said John
Smith, as the administrator of said William
Brown, deceased, and also of the costs at-
tending the recovery of said debt, then the
above bond to be void, else to remain in full
force and virtue.
John brown-. p.. si
Test— CHARLES PETERS, [l. s.j
RICHARD BECK, J. P.
41. The distributors appointed by the
Couit, must be sworn (before they enter
upon the discharge of their duty,) to make
said distribution according to justice and equi-
ty, without favor or affection to any oj the par-
ties, to the best of their sldll and unde? stand-
ing.—Ibid.
42. The order being passed by the Court,
the administrator must procure from under
the hand of the Clerk, a warrant, as in the
case of appraisement.—S. 3.*
The distribution being made, the distrib-
utors must return an account of the same,
in the following form:
GEORGIA, Talbot County.
By virtue of an order from the Honora-
32 • executor's,.administrator's
ble the Inferior Court of said county, sitting
for ordinary purposes, on the first Monday
in December last, to us directed, authori-
zing and requiring us Jo make distribution
of the estate of PVtUium Biown, deceased,
among the distributees of said estate ; we
proceeded on this clay to the discharge of
that duty, and submit the following as the
result. There being three distributees to
said estate, to wit, Mary Brown, widow of
deceased, John Brown* son of deceased, of
full age, and Simon Nun, guardian of Sarah
Brown, minor heir of deceased, we divided
the said estate into three shares, numbered
1, 2, 3, which being drawn for by lot in the
usual way, were assigned to the distributees
as follows:
. Share No. 1. To John Brown, consisting
of one negro man, by the name of Peter,
valued at $700.
Share No. 2. To Simon Nun, guardian
of Sarah Brown, minor, consisting of John,
a negro man, valued at $600, and Peggy, a
negro woman, $400—making $1,000.
Share No. 3. To Mary Brown, widow of
deceased, consisting of Sam, a negro man,
valued at $650.
Share No.,2 pays back to No. I, $83 33|
« No. 2 " « " No. 3, 133 33|
Done by qs, the distributors, whose names
and guardian's guide.
33
are hereunto subscribed, and returned to
John Smith, administrator of William Brown,
deceased, this 10th Dec. 1844.
43. Where the intestate has advanced
property to any child during his or her life,
such advancements must be brought into
hotch-pot, and accounted for in the distribu-
tion,so as to make the portion of each dis-
tributee as near equal as possible; but such
advancements when accounted for by the
distributee, must be estimated according to
their value at the time the advancements
were made ; and no interest is to be allow-
ed.—P. 247.
44. The real apd personal estate are upon
the same footing as to distribution.—P. 233.
45. In case any of the children shall die
before the intestate, their lineal descendants
shall stand in their place and stead.—P. 233.
46. If the widow prefer to take her dovv-
er, instead of a child's part of the whole es-
tate, she must make her election within the
first twelve months, or be considered as hav-
ing done so, and is forever after debarred'
from doing so. The widow is entitled to a
child's part of the personal property, as well
as her dower.—Ibid.
In case of there being a widow, and no'
SIMEON SCRANTON,
JAMES BERRY,
JOHN BARR,
34 executor's, administrator's
children, the widow inherits the whole es-
tate, real and personal. See Laws of 18*26.
p. 101, and same Act confirmed.—P. 253.*
The widow has a right to dower in all
lands of which her husband died seized and
possessed.—P. 249. And the lands having
been mortgaged by the husband in his life
time, is hot considered such a conveyance
of them as will bar her right of dower;
provided, she did not join with him in the
mortgage.—P. 161.
o O
47. In case the father or mother be alive,
and a child dies intestate, and without issue,
such father, or if he be dead, the mother,
shall come in on the same footing that a
brother or sister would do.
Jly the Act of 12th of December, 1804,
the mother lost this share in her child's es-
tate by intermarriage. That part of the
Act, however, has been repealed. See
Laws of 1843, p. 125; and now, in case
the child dying intestate, being the last or
only child, the mother is entitled to her
share.
48. In this State, if a feme covert (marri-
ed woman,) dies intestate, the husband may
demand and have administration of her
*In Prince's Digest, the index and marginal note, read per-
•onal estate—but the body of both Acts referred lo, read
whole estate, both real and personal.
AND GUARDIAN'S GUIDE. 35
rights and credits, and other real and per-
sonal estate, and recover and enjoy the same
without being subject to distribution.—
P. 251.
49. Degrees of affinity from the first to
the fourth.—P. 234.
1st degree.—Widow and children, and
other lineal descendants of the intestate.
2d degree.—Brothers and sisters of the
whole blood, and brothers and sisters of the
paternal half blood, and their children.
3d degree.—Brothers and sisters of the
maternal half blood, and their children.
The father of the intestate, if he be alive,
and if he be dead, the mother, (if still un-
married,) to take with those of the second
or third degree, as the case may happen.
4th degree.—First cousins of the intes-
tate.
50. Illegitimate children shall inherit the
estate of their mother dying intestate; and
the estates of each other, in the same man-
ner as if born in lawful wedlock.—P. 202.
Returns of Account Current.
51. Annual returns of the disbursement*
and receipts of the administrator, must be
made (on oath) by the administrator on the
36 executor's, administrator's
first day of January, or within ten days
thereafter.—-P. 226. Which account must
contain a true statement of all the.transac-
tions of the administrator for the preceding
year, i. e. from 1st. Jan. to 31st December,
inclusive.
In case the administrator neglect to make
such return, he forfeits (by the Act of 1792,
P. 226, 240,) his commissions, and is, more-
over, liable to be removed or sued for dam-
ages by any person or persons interested in
said estate.
52. When an administrator resides be-
yond the limits of this State, his annual re-
turn of account current may be verified by
the affidayit of his security.—Laws of 1843,
p. 58.
53. The annual returns of an adminis-
trator may be exhibited to the Clerk of the
Court of Ordinary, at any time during va-
cation j and it is made the duty of such Clerk
to qualify the administrator, examine his
return, and report to the Court the correct-
ness and reasonableness of said return.—
P. 245.
Note.—In submitting these returns to the Clerk, the ad-
tninistrator should come prepared, il* possible, ta exhibit a cor-
•rect voucher for every separate item. The. .youchers. to be
correct, must specify the capacity in which the payment Was
made, the nature of the debt, and the sum actually paid, as
follows:— , .
. Received of John Smith, administrator of
and ^guaedian's <juide. 37
William, Brown, deceased, the sum of twelve
dollars, which is in full for the above black-
smith's account for the year 184*2. June
15, 1844. James Jones.
All accounts due before the death of the
intestate, must have on them a written affi-
davit of their justness, signed by the credi-
tor, and attested by a Justice of the Peace.
All notes which were given by the intes-
tate in his life time, when paid off by the ad-
ministrator, must have written upon the
back of them, a receipt in full of principal
and interest; the receipt must state that
the money was received from the adminis-
trator.
In paying off notes, administrators are
frequently unable to exhibit such vouchers,
from the fact that they have made only, a
partial payment, when their return has be-
come due. In such cases they dislike to
withhold the return of the amount so paid ;
as by so doing they enlarge the balance
againstthe-mselves. They consequently will
sometimes hazard the passage of their re-
turn by the Court, by inserting a payment
for which they can shew ho receipt. It is
suggested as a better plan in such cases, ei-
ther to obtain from the holder of the note, a
separate and specific receipt' for the pay-
rnent so made, or else to withhold the return,
c
38 EXECUTOR'S, ADMINISTRATOR'S
of such amouttt until the note can be brought
in—when the Court will readily allow them
to enter a credit in their own favor, for so
much interest as shall appear to be due to
them on the pay ment so made.
Administrators are frequently unable to
exhibit vouchers for small sums paid out for
necessaries*purchased by them for support
of the family of the deceased, &c. In such
cases, the Courts will permit them to rem
der a separate account in their own favor,,
against the estate. 8ueh accounts should*
like any other open account, state the sev>
eral items, when and where purchased ; it
should their be footed, up and inserted in the
return to the Court as one item; to this
item the aceount of the administrator, with
his receipt, is received as a voucher : pro-
vided the account be not so large as to shew
neglect in obtaining vouchers.
54. Under the direction of the Court of
Ordinary, the administrator may, at hisdis-
cretion, manage the estate in such way as
shall be by him deemed most advantageous i
and upon the application of any person in-
terested, suggesting mismanagement, the
Court appoints three or more proper per-
sons, to inquire into the state and condition
of the estate, and report to the next Court*
who shall take such order thereon as shall
AND GUARDIAN'S GUIDE. 39
be deemed most advantageous to the estate.
P. 249.
Note.—This is a Statute.under which administrators some-
times place themselves in a critical situation.
1st. By deciding to keep the lands of intestates for farming
purposes, and working the slaves upon thetn, for the support
of the family. It is clear that an executor can pursue this
course,!/ so directed by the will, with perfect impunity; be-
cause, in that case, it would be either the delivery to the de-
visees of a life estate, or some course so closely analogous to
this, as would in like mannerodischarge him from liability till
the time arrived for him fully to execute his trust. But the
liability of the administrator remains, while at the same tinje
his business by this arrangement is rendered much more corn-
plex and difficult. For it he be a faithful administrator, he
should shew a strict account of every receipt and disburse-
merit, as well when the estate is managed in this way as in any
other. This is frequently rendered impossible, by the admin-
istrator's committing the management of the farm to the widow
and children ; while at the same time they can only act as his
agents, and he is responsible for any waste committed by them.
The followingis suggested as the piopercourse which should
be followed by every administrator who wishes to manage the
property'in this way.
He should have an order drafted, which should specify pre-
fisely the land, negroes, stock, and plantation tools, intended
so to be kept together—this order being passed by the Court,
would be his authority for keeping the property together—he
should then enter in n book kept for that purpose, every re-
ceipt and disbursement, however trifling ; and if he committed
the business in any way to the widow, should leave with her
blank receipts, correctly drawn, which might be filled out by
those from whom she purchased—these repeipts should be
drawn in favor of the administrator, and not the widow. He
should also be careful to note the positive loss of any negro,
horse, cow, or even tool, which was named in his order, and this
loss should appear in his next return.
2d. Administrators sometimes purchase land and stock for
farming purposes. This the statute gives them bo authority
to do, nor does the statute of 1829—see P. 253—for that stat-
ute refers only to guardians, and the estates of their wards—
hence their only authority for purchasing, is contained in the
order passed by the Court. The question is—whether, in the
event of objection being'made by any person in interest, this
order would be a good defence, there being no law authorizing
the Court to pass such an order.
40 executor's, administrator's
Promissory Kotes.
55. These come into the hands of the ad-
ministrator from the following sources:—1.
Such as are found on hand at the death of
the intestate. 2. Such as are taken by him-
self at the sale of perishable property; 3.
Such as he takes for land or negroes sold
under an order of Court. 4. Such as are
taken by him for money loaned.
Notes.—In making their annual returns, administrators
sometimes find it difficult to decide, whether or not they should
return such notes in their hands as are past due.
He should not return the first class, because they are already
charged to him in the inventory—the names and dates feeing
appended, will inform the Court and those in interest, whether
he has returned the full amount, when those notes having been
paid, he returns the cash received.
He should not return the second class, because the terms of
sale, which are written in the caption of the sale bjll,"will shew
the maturity of these. And so, also, of the third class.
The fourth class he seldom has difficulty with,because he is
aware that they have arisen upon a fund with which he stands
fully charged, as cash received.
Commissions.
56. Administrators are entitled to receive
and retain two and a half per cent, on all
money received by them—i. e., cash receiv-
ed into hand from proceeds of sales or col-
lection of debts due intestate. He is not en-
titled to this commission on receiving in
money which he himself has loaned out;
AND GUARDIAN'S GUIDE. 41
but on all sums first coming into hand, he
may retain.—P. 224. '
He is also entitled to two and a half per
cent, on all sums actually paid out by him,
excepting the delivering up the estate to
such persons as are entitled to the same, or
the retaining to himself any debt due to him
from the estate.—Ibid.
Me marks.
A question sometimes arises on this part
of the statute, whether an administrator, in
settling with himself, or any other person
who may have been appointed guardian for
the minor heirs of deceased, can retain the
two and a half per cent, as for money paid
out, or whether the guardian, in such case,
stands in the place of those entitled to re-
ceive the estate, as mentioned in the statute.
We have known settlements to be made both
ways ; but from the following decisions, it
would appear that the administrator is en-
titled to retain the two and a half per cent,
on money thus paid, though not on the value
of property delivered.
The executor's law allows two and a half
per cent, on all sums which he receives, and
the like sum of two and a half per cent, on
all sums which he shall pay away in credits,
debts, legacies, or otherwise; and ten per
42 executor's, administrator's
cent, for all sums arising out of moneys let
out at interest. " The intention of the act
cannot, 1 think,"be misconstrued. The ten
per cent, is evidently as a compensation for
the trouble of managing the fund, while in
the hands of the executor ; and the two and
a half for paying away, refers to the final
disposition of it, or in other words, to that
point of time when the executor's powTer
over it ceases."—Tateau et ux vs. John
Ball, 1 McCord's' Chan. Rep. 456.
This case was decided by the Court of
Appeals S. C., in 1826—and the decision
has direct Leferepce to the same statute un-
der which executors, Ac., retain commission
in this State. From this it would appear
that the words " delivering up such estate,
Ac." in that statute, are only intended to
debar the administrator from calculating
commissions on the value of the real and
personal estate so delivered, while upon all
sums paid in actual cash, it matters not to
whom, so it be the final disposition of the
fund, he is entitled to retain.
The administrator is also allowed to re-
tain ten per cent, on all interest accruing to
the estate in his hands.—Ibid.
57. In cases of extraordinary trouble,
the administrator, by an action of debt in
the Superior Court, may recover two and a
AND guardian'S GUIDE. 43
tialf per cent, more for his services.—P. 225.
58. Where there is more than one admin-
istrator on the same estate, commissions are
to be divided among them in proportion to
their respective services.—P. 225.
In case they disagree, the controversy is
to be decided by the Court of Ordinary.—
P. 239.
Note.—The allowance granted by these statutes, is intend-
-ed to cover all expenses which may be incurred by the admin-
istrator, in the discharge of his duties. The Courts of Ordi-
nary in this State, will sometimes grant to the administrator
such current expenses as may be incurred by him while trav-
-elling^on the business of the estate; but under a strict con-
struction of the statute, these and all other expenses should be
recovered in the way pointed out—i. e.-by action in the Supe-
rior Court. In South Carolina, this statute is made to operate
-strictly. See 1 Mc. Chan. '456—1 Desausure's Rep., 160, 542,
and a case in 4 Desaus. Rep. 370, where an executor claiming
wages for overseeing the farm was refused, his commissions
(being considered all that could be allowed. See, also, on this
subject, 1 Desaus., 542.
It sometimes bappensthat executors and administrators who
tbave the management of large estates necessarily and from
■various causes are obliged to ldse more time, and incur more
expense, than they could possibly be remunerated for in an
action before the Superior Court, as they-cannot recover more
Than a certain sum. Vv ould it not be perfectly fair and equi-
Table, for such an one by application to the Legislature, and
opoo a good shewing, to be at least saved from actual loss, by
■an action of that body. See Laws 1843, .pp. 58, 59.
Interest.
59. This is a subject of much importance
to the administrator. In this State, there
being no statute-upon that subject, but the
44 executor's, administrator's
general one against usury, and but very few,,
if any reported* decisions, the whole ques-
tion, in all its various bearings, is governed
by the decisions in England and the United
States generally. The following answers,
kindly given by an eminent member of the
bar of our State, to an enquiry of the au-
thor, will be found highly useful to the fidu-
ciary, as they cover the whole subject, and
are supported by the ablest and most mod-
ern decisions, some of which will be found
appended.
Question.—How do the Courts of Georgia
view and treat the matter of interest on an-
nual balances in the hands of executors, ad-
imnistrators, &c. ?
Answer.—1. Interest is not djie, either
simple or compound, as a matter of course, On
sums in the hands of representatives of es-
tales.
2. If interest be made-, then it is due from
the representative,be it little or much, sim-
pie or compound; the representative can-
not be permitted to speculate and retain
profits of trust funds.
3. When sums of money accumulate in
the hands of representatives, for which it
cannot be shown affirmatively that an imme-
diate, or prospective demand near at hand ex-
ists, interest is to be computed; unless always
AND GUARDIAN'S GUIDE'.
H appear (which, perhaps, in this country
cannot be shown,) that the money could not
fee loaned into good bands.
4. That while interest runs generally (by
this rule) on sums on hand, yet compound
interest is not due as matter of right, ex-"
cept when shown to have been made, or
when the money has been invested in trade
by the representative ; or, perhaps, in cases-
of very general negligence and inattention
to the proper improvement and increase of
the capital and moneys of the estate.
5. When compound interest is shewn to
have been made ; when the trust funds have
been invested in trade, or otherwise appro-
priated to the individual use of the repre-
sentative ; and, possibly, in a simple case of
mere gross negligence and inattention, inter-
est may be compounded against the admin-
istratoror executor id settlement with him.*
It is laid down by Chancellor Kent, 1
Johnson Chan. 620,that if the representa-
live lets the moneys of the estate lie idle, ho-
is chargeable with simple interest. This
point the author has' found abundantly con-
firmed by various decisions. It is the duty
of the administrator to make the fund pro-
ductive.
*1 John-son's Chan. 13, 620—1 McCord's Chan. Rep. 456—a
Desausure's Rep. 19-3—it Deaaus. Rep. 233—3 Desaus. 241—-
4 Desaas. Rep. 6-5.
46 executor's, administrator's
'Quere.—Tn cases where administrators
are keeping up a farm, would not a shewing
that their disbursements were frequent, and
at uncertain times, be sufficient to relieve
them from interest on their annual bal-
ances ?
• Administrators are allowed a reasonable
time to look out for suitable and safe invest-
ments. Six months has been given.* TJn-
der this rule, supposing an administrator to
have loaned money which has been again
paid to him at maturity, arid he is not able
immediately to re-invest it, he can only be
charged with interest from the time he ae~
tually loans it, provided that be in a reason-
able time. This rule applies to no amount
in hand during the first twelve months, un-
less it be ready mpney (if a large amount,)
left by deceased, or such notes and other ob-
ligations as may be past due at the death, or
during the first year } on such the adminis-
trator has to account for the interest. But
it is not presumed that any Court would hold
him to account for interest on such small
collections as are obliged to be made in'fhe
settlements of most estates.
This obligation to render the fund pro-
ductive, not unfrequently causes administra-
tors to run great risks in letting it out, that
*i MeCord's Chan. 456—2 JVJaddox'a Chan. 134, 135, .
AND GUARDIAN'S GUIDE. 47
they may realize the interest. In England,
the Courts of Equity make distinction be-
tween the investment of the fund on mort-
gage, or in the public stocks, and the loan of
it upon personal security. If the adminis-
trator have invested the money in either of
the two first ways, he is not liable in the
event of a loss, but if he lend upon bond,
promissory note, or other personal security,
he is held guilty of a breach of trust, and is
personally responsible if the security prove
defective. In this State, as we have no stat-
ute regulating that question, and personal
security is considered as good or better than
real, because of the fluctuation of the latter,
the Courts only hold the administrator to
act prudently. See section 20, p. 18.
As to how far an administrator is liable
in respect of losses occasioned by not call-
ing in money of the intestate already in-
vested upon personal securities, i. e. by in-
testate, the rule is, that they must let it re-
main in that condition no longer than is ah-
solutely necessary. The statute of 1764
says, sec. 7th, the administrator shall be
obliged to sue; sec. $th, he shall within
twelve months after date of letters make
the first dividend ; at the end of the second
year another, and three months thereafter
another; thus it becomes every administra^
48 executor's, administrator's
tor to see to it, that he do not either «xer-
cise too much lenity, or make private ar-
rangements with the debtors of the estate.
His only safe course is to follow the statute.
A change of the security, in any way, ren-
ders him liable, as to obtain an endorsement
on a note left by testator, or to renew; to
be discharged from any such private ar-
rangement, he is obliged to make the show-
ing. See sec. 20, p. 18.
AND GUARDIAN'S GUIDE.
10
^ t3!z!OT
® " 2 c -S
£. P < «
£ uuhh
o r r ® ©,,
ft -
a 0 * ■>
iU
tn ; - a
"CTQ
N> lO (3
:j Cn pen
. Z ^ 3 nj 2,
• O- B j P .
.DiS Sir
■ £.8 s-rt r?
<; £ «-i i
5* » ' :
3 3-3!
Si
-S x Si
979
ft a>
o^p
o° o
fcs
3
m
5 O
Bo 2
5
g"-3
c3 3 _
P»P
S8*?
h> ^
Li 3 ®
2a.g
S
OD ET *i
» ft
p!]t
og M
* 3 00
ft ►*>
O ft a*
S. I a -!
ft Cl.
I ft
< Cl
p S.s* 2
O O) o (C CC -}
? °
tn £_, J* Co
s • :.
■ o en en iM-1 Hi B.
> ©»?© O *4 W CH •-•
3 o-o © CJi © *0
B CO
p 3
•a hj
3 -«<
.HJ- 3 »
= ^coS^
I ?§' p-
•"o W
< tc s «c
-■"? pj .-. o
ft 0-*
Sg:
e- •
§
™ 3:
"■i
I W
^3 ij
--< W
>o
13
« Z pj
fia w
s
<1 » 5
.? On £
- S
CO?5- g
£§• o
l» J
. .» 3
<S c
o^~
° s o
• 5S 6 gr
H a i?
P3 >3 3
' ► "L s
O ~
? ® S.
g : a-3"
» 3 °3 <»
M • 33
2: g s-
o • 2 -t
s-
«-i
O
i"n
b*
2!
in
S
k—I
H
S3
&0 executor's, administrator's
Separate return of the hire of the negroes,
and rent of land belonging to the estate of William Brawn,
from 1st January, to 25th December, 1846.
John, a man, hired to J. Kitchen, for.-.'. $40 00
Sain, a man, hired to T. Simons, fori 60 00
Teter, a man, hired to L. Roberts, for 80 00
Peggy, a woman, hired to L. Roberts, for 60 (0
One lot of Land rented to J. Dix, for. 75 00
$015 00
CCr3 It is directed that the administrator
annually make a separate return of the hire
of the negroes, and rent of the land belong-
ing to the estate ; this return is seldom made,
at least in a separate form ; and when it is
so made, it is of the hire and rent of the
past year, which is wrong. It should be of
the hire and rent of the year in advance of
the return^ because the object of this return
is to inform the Court that the administra-
tor has neglected no part of his duty, but has
done every thing in strict accordance with
law; which he has not done, if he has neg-
lected to hire the negroes, or rent the lands,
at the season of the year that such things
are done, and which Comes on in this State
previous to the return falling due'.
Remarks.
It will be: observed that the form hero
submitted covers one year and eight months,
Which to some may seem to be wrongs
AND GUARDIAN'S GUIDE. 51
b,ut it will be borne in mind that the law
gives to the administrator twelve months in
which to. ascertain the indebtedness of the
estate j and should he distribute the estate*
or part with the assets in any way during
the first twelve months,, the law will not pro--
tect him, even against a debt, of which he
had no, notice in that, time—{see note on
pv 21)—unless, indeed,, it should be that the
four first orders of debts had cansumed the
estate, which is very unfrecptent. Again :
the law directs that returns of account cur-
rent shall be annual, and shew a settlement
for each year.. It is, therefore, better that
the administrator should withhold his fiist
return a few months, and commence right,
than for him to make his first return in the
middle of the year, and continue on in that
way, as most do. The difficulty might easi-.
ly be obviated, by a return shewing the first
settlements,.and a second one bringing up.
the accounts to the proper time—and this
latter would be the best course^ it. is, bow--
ever, seldom or never adopted.
A mistake frequently made by those man>
aging estates,and which occasions great de--
lay in making their returns, is, that the ad--
ministrator, before he can make bis return,
must pay ©ff every debt which may have-
been incurred for that year. This,, in thn
52 EXECUTOR?S, ADMINISTRATOR?S
case of guardians, who are not allowed by
law to spend the" principal of the estate, is
correct; in feuch cases, it is important that
the Court should know what the expendi-
tures of each year amount to. But, where,
as in the transactions of executors and ad-
ininistrators, the estate is being settled up,
there is no law which compels them to wait
beyond the time when their returns are due,
because they have, not settled every debt.
The statute means what it says, that the re-
turns of the administrator or executor shall
contain all his transactions for that year ;
but. it does not. compel him to make his
transactions either more or less than is in
his power j and we cannot see howthecase
is made any better by withholding the re-
turn until the debt can be paid, for in truth,
the payment of the debt is the act of the
administrator, and strictly, under the stat-
ate, should not be returned until the sue-
ceeding January. But many will payoff a
debt (due in 1842,) in August or September
of 1843, and return it to the Court as the
transaction of 1842—and in this way the
Jaw is doubly violated. Would it not be in
more strict accordance with the statute, for
the administrator regularly to return as
much as he had done, up to the time his re-
turn falls due ?
-AND GUARDIAN'S GUIDE. 53
It is deemed unnecessary to give the form
of return number 2—^-as it, and all future re-
turns, differ in no wise from the first, except
in one item, which is the balance found due.
From the form here submitted, the balance
of $318 02J, should be carried to return
number 2, as the first item on the credit
side; and if interest has been made upon it,
that should be calculated and inserted in the
return on the same side ; when the balance1
is in favor of the administrator, the same
entries are made, vice versa.
61. Amending the record—this is an in-
cident to all Courts—and it frequently be-
comes necessary.in a Court of Ordinary.
It is done on motion, by an order showing
the mistake. The order must be specific as
to every date and item. This is the only
way by which the slightest mistake in a re-
turn which has been recorded should ever
be corrected; for a return of an administra-
tor being made under oath, is analogous to
an answer to a bill in equity where accounts
are set forth ; and should never after be in
any way contradicted by the party making
it, but upon good cause shewn.
D
54 executor's, administrator's
Letters of Dismission.
62. Administrators, who may have com-
pleted the administration of the estate com-
mitted to them, may petition the Court of
Ordinary, whereupon, the Court shall or-
der citation to issue, which shall be publish-
ed six njonths, at the expiration of which
time, if no cause be shown to the contrary,
and if it shall appear upon the examination
of all the returns of such administrator, that
he has faithfully administered his intestate's
estate, the Court shall forthwith dismiss and
release him front his liability as administra-
tor.—P. 240. See Laws 1840, p. 161. In
this statute, the administrator, &.c.", having
in his hands funds of the estate which are
unclaimed, may, by order of the Court of
Ordinary, retain the same at four per cent,
or deposite it in a solvent bank.
63. Letters of Dismission, fairly and le-
gaily obtained, as effectually protect admin-
istrators, &c., from all further liability, as a
decree of the Court of Chancery could do.—
Ibid, and Dudley's Hep. 190.
Remarks.
These letters, to be a complete protec-1
tion, must be fairly and legally obtained.
Every administrator should, therefore, be
careful so to keep his accounts with the
AND GUARDIAN'^ GUIDE. 55
Court, as to enable him to bear the strictest
scrutiny into all his acts and doings ; he
should also be careful to follow exactly the
directions of the statute in bis application
for dismission, < And supposing publication
to have been made, his final return ready, or
passed by the Court, he should have an or-
der passed by the Court for his dismission,
in the following form :—
Text.
Talbot Court of Ord'y, July term, 1S11.
Petition, to Dismiss Administrator and Rule Absolute.
It appearing to the Court that at the Jan-
uary term of this Court last past, John Smith,
administrator of William Brown, deceased,
petitioned for letters of dismission from his
said administration, and that a rule ni si
was passed at said term, ordering all per-
sons concerned, to be and appear at this
term of the Court, to shew cause (if any they
have) why said letters should not be grant-
ed.; which rule has been published for six
months in the Columbus Enquirer, a public
gazette of this State. ' And it further ap-
pearing to the Court, upon a full and fair
examination of the returns of said adminis-
trator, as recorded in this office, that he has
faithfully administered the estate of said in-
testate, and there being no objection made
to the contrary—
56, executor's, administrator's
It is therefore ordered by the Court, that
John Smitji, administrator as aforesaid, be
and lie is hereby dismissed and released from
his liability as administrator. And it is fur-
ther ordered, that the Clerk do issue to him
the said letters dismissory in terms of the
law.
Note.—In case the administrator is not ready to obtain his
letters at the term of the Court to which the rule ni si is made
returnable, the order should mention that said rule was contin-
ued from term to term. ,
The administrator will notice that,for his letters to be legal,
lie must apply to the Court, and not the Clerk, as in case of
"getting His letters at first.
64. Administrators may have the receipts
taken in final settlement, recorded by the
Clerk of the Superior Court: provided, the
same be attested by two witnesses, one of
whom shall be a Judge of the Superior or
Inferior Court, or Justice of the Peace.—
And a copy of such receipt (whenever the
administrator shall make it appear that the
original is lost,) shall be taken as evidence
in any of the Courts of law or equity in this
State.—P. 255.
ISeiiiarks.
The administrator should be careful to
make no private settlement about any por-
tion of the estate with which he has been
charged, but all property delivered by him
should appear in his final receipt.—-4 De-
saus. 60.
AND GUARDIAN'S GUIDE. 57
The following should be the form of his
final receipt :-r-
Text.
GEORGIA, Talbot County.
Received, December twenty-ninth, A. D.
eighteen hundred' and forty-four, of John
Smith, administrator of William Brown, de-
ceased,.one negro man by the name of Pe-
ter, about thirty years of age, and two hun-
dred dollars *in cash—the same being the
whole of my distributive share of the estate
of said William, Brown, deceased.
Witness my hand and seal, this the day
and date above written.
JOHN BROWN, [l. s]
Distributee of estate of William Brown.
Signed, sealed and delivered
in presence of f
JOHN PALDING, (
RICHARD BECK, J. P. J
NoTE.-^-Where the administrator has delivered a portion of
the properly to the distributees, before the final settlement of
the estate, and taken their receipts for the same, he should, on
final settlement, deliver up those receipts, and have the prop-
erty so delivered embraced in the one he takes last. By this
means, the record of the receipt would furnish complete evi-
dence. Where he has satisfied the distributees with notes,
instead of money, and particularly in settling thus with a guar-
dian, he should take a receipt for so much cash ; for if he is to
be held responsible Ibr the notes, he had better manage them
himself.
58 executor's, administrator's
Removal of Estates.
65. Administrators who may remove from
one county to another, may remove their
proceedings to such county, by procuring a
certified copy of all their proceedings on
such estate, and having the same recorded
in the proper office, and giving new bond
and security in the county to which-they rc-
move.—P. 241.
05^ For settlement with guardians where
the minors have removed, and a guardian
been appointed in another State, see title
Guardians, section 114.
Liabilities.
66. An administrator is liable for waste
committed by his co-administrator, prov ided
he assent to it. And shall be bound to make
good the amount, which the other cannot pay.
Qucrc.—Will not the Courts construe
gross neglect, to be assent ?—4 Desausure's
Hep. 65. 1 do. 567.
67. An administrator is clearly liable to
pay out of his own estate, all costs which
may be incurred by reason of his neglect.—
4 Desaus. 92.-
68. The husband of an executrix or ad-
ministratrix, is liable for waste committed
AND GUARDIAN'S GUIDE.
50
by her before marriage, only so far as the
property he got by her will indemnify it—
and he is liable for waste after the marriage,
only so far as he actually has leceived the
funds.—Ibid.
69. An administrator paying debts out of
their legal order, is liable to creditors, as far
as he has received assets.—2 Williams on
Executors, 720. But not if he pay a debt
of an inferior degree before one of a higher
order, of which he had no notice.—Ibid, 1280.
The debt being a debt of record, is consid-
ered sufficient notice.—Ibid, 751. But see
note page 21.
70. An administrator may be rendered
liable for all monies retained by him, on a
debt due to himself, over and above his pro-
portionate share.—4 Desaus. 65. And must
pay his own debt as soon-as any other, or
lose the intei est which may accumulate by
delay.—1 Desaus. 515.
71. An administrator becomes personally
liable for the whole estate of his intestate, if
he in any way mix the property with his
own.—1 McCord's Chancery, 477—and on
the following grounds : If he compound or
release a debt, by taking for it any less than
he could have recovered; if he submit to
arbitration, and gain less by the award than
the amount of the debt; if he pay (without
co executor's, administrator's
defence) usury, or any void contract; if he
delay to bring an action, and so enable the
debtor to plead statute of limitations; if he
lend out the funds of the estate upon person-
al security, and the security prove defective,
he is liable at law to make good any loss
that may accrue to the estate.—Williams on
Executors, 1278—but see sec. 20, p. 18.
Note.—As it is not the object of the author to attempt any
thing more than to give to the administrator a plain and sim-
pie rule, by which he may be guided in the practical duties
that devolve upon him ; he has selected from the authorities
only such parts of his duties and responsibilities as we are
most familiar with in this country. There are many other
points upon which it might be well for him to be informed, but
as they are rather elementary than practical, their introduction
into jhis work would be deemed aside from the original object.
For the benefit, however,.of those who may be acting as ad-
ministrators with others in the same estate, the- following ad-
ditional points may be noticed :—
1. There is a general rule as to the transactions of each one
separately, or both joining on the same act. If both sign are-
ceipt, bond, or note, both are responsible ; but if the name of
either be omitted, lie cannot be held bound, though it be pro-
ved he was the co-administrator. For though the law consid-
ers them bat one person, yet it does not mean that the act of
one shall be the act of all, but r,atber that the act of all together
shall be considered as the act of but one person ; all must act.*'
52. There is a general rule as to the delivery of property or
assets of any kind. Whenever, by any act of one adminiftra*
lor, any part of the estate comes to the hands of his co-adminis-
Irator, the former will be answerable for the latter, in the same
manner as he would be for a stranger, whom he had entrusted
to receive it.t Thus, if by private agreement, after being
qualified, one is suffered to take the whele management of the
estate, the rest are equally liable with him, because he acts on-
ly as their agent; or if one collects money and delivers it te
*Except in a sale or release—here the act of one is good
against the others.
fBut the receipt of assets by one, does not charge the other,.
Vr-here no act is done by the latter.-—Williams on Ex'rs, 1292;
AND GUARDIAN'S GUIDE. 61
the other, to pay the debts of the estate, and he misapplies it;*
or if one permits the other to purchase at the sale of the es-
tate, without requiring security ; or if one lends to the other.—
,1 Desaus. '567 ; Williams on Executprs, 1287.
3. An administrator cannot, after being qualified and receiv-
ing a portion of the estate, withdraw privately from the admin-
istration by delivering over the assets to his co-administrator-
In case such assets be misapplied, he will be responsible.—
Ibid, 1298.
4. If one of two administrators receive notice of an outstand-
ing debt, and conceal it from the other, it will not be consider-
ed notice to both, so as to charge the one who had not received
it, with waste, if he pay a debt of inferior degree. Though,
perhaps, if notice to one be proved, and nothing more appears-,
it will be presumed that he communicated it to his co-admin-
isfrator.—Ibid, 1293.
Administrators de bonis lion.
72. This office differs very slightly from
that of the administrator, as he has only to
continue or complete what the latter has
commenced. The only points in which the
laws governing them differ, are the follow-
in o-:—
1. The administrator de bonis non makes
no return of appraisement and sale, these
being generally completed before his ap-
pointment. The return of appraisement
shoukTbe made by every administrator de
bonis non, as without it, there is no correct
data from which to shew the Court precise-
*This rule is varied, where the administrators live in differ-
ent countries, and we would suppose their living in different
States would bring them under the same exception,.
62 executor's, administrator's
ly the value of the estate he has received
into his hands. This return being made
under authority, would be unimpeachable
by the distributees; but the return of ac-
count current (usually the first kind of re-
turn made,) is not.
2. Administrators de bonis non, may be
made parties to a suit pending, at any time
after he has obtained his letters, provided
twelve months have expired after the date
of the first administrator's letters.—Laws
184-3, p. 121.
PART SECOND.
Executors.
73. This office differs essentially from that
of the administrator, only in this one partic-
ular,—that so far as respects the distribution
of the estate, the will under which he acts
must be his supreme law. In all other re-
spects,'they are somewhat analogous. His
returns of appraisement, sale, and account
current, follow the same rule ; he is allowed
the same commissions, and is chargeable
with interest in the same way. We shall
not, therefore, repeat any of the laws alrea-
dy laid down, as the executor will easily un-
derstand such as^are written under the title
Administratorsj by substituting in every in-
stance the word Executor for that of Ad-
ministrator.
The following are points upon which a
difference is made in the laws, to suit ex-
ecutors.
74. It is the duty of any person or per-
sons appointed executor or executors in a
64 executor's, administrator's
will, to bring up said will for probate, to the
next regular term of the Court of Ordina-
ry, (in the county where the testator 'may
have died,) after the death of the/ testator.
In case any person so appointed shall fail or
refuse to qualify, within one year after the
decease of testator, their right to do so shall
be considered abated and destroyed, and the
Court are prohibited from admitting them
to the same.—P. 238. Hut,provided one or
more shall have been qualified under the
will within twelve months of the decease of
the testator, then those who may not previ-
ously have qualified, may do so at any time
within twelve months after the decease of
those who were first qualified.—P. 239.
Note.—The question as to what an executor may do before
probate, is not settled by our statutes. From the books it ap-
pears that for most legal purposes his power is incohate ; he
may, however, where the exigencies of the case demand it,
and the will, supposing probate to be had, is in accordance
with the act. sell, or otherwise dispose of the estate, seize and
take into his hands effects of deceased, pay debts or receive
payment, and his acts will be confirmed.—Williams on Ex'rs,
172. Whether he has such control of an execution in favor of
deceased as would authorize his ordering a levy, does not ap-
pear ; but it would seem that in the event of serious appre-
bension of loss by delay, he should proceed; as, though he
cannot maintain an action, he may advance so far as that step
where the production of the probate is necessary—as in ar-
resting a debtor, &e.
75. The witnesses to a will may be com-
pelled to attend and give evidence on the
probate thereof.—P. 238.
76. If any person, having in possession
AND GUARDIAN'S GUIDE.
65.
the will of a deceased person, shall neglect
to produce the same to be proved, upon ap-
plication to the Superior Court of the coun-
ty where such will ought to be proved, pro-
cess as for contempt shall issue, and the per-
son shall be fined and imprisoned until the
will shall be delivered.—P. 227.
77. -A will may be proven before two Jus-
tices of the Inferior Court at any time, but
cannot be admitted to record, till a regu-
lar term of the Court.—P. 240,
ESeiia arlis.
The executor is not usually qualified un-
til the will is admitted to record ; he should
come up to this Court, though he may have
previously proven the will. lie should, also,
at this term of the Court, come prepared
with the names of five reputable freehold-,
ers, and have the order pa'ssed by the Court
for the appraisement of the estate.
78. If any person shall attest the execu-
tjon of a will or codicil, to whom any bene-
ficial devise, legacy, interest, gift, or appoint-
ment of, or affecting any real or personal
estate, except charges on real estate, (for
the payment of debts,) such devise, &c.,
shall be void as respects such devisee ; and
lie shall be admitted as a witness. But if
such legacy, &c., be given to a subscribing
66 executor's, administator's .
witness, (whether charged on real estate or
not,) and before he gives his testimony, he
" shall have been paid, or have accepted, or
released, or shall have refused to accept,
such legacy or bequest, upon tender made
thereof," he shall be a competent witness;
Or if he shall die before such acceptance or
refusal, his attestation to the will shall be
held valid. And in case of such acceptance
of the legacy, he shall retain it, whether the
will is established or not ; and in case ot
refusal, he shall be forever debarred, and
shall not, after having testified, receive the
same, or any benefit thereof, or -compensa-
tion therefor, on any pretence whatever.—
P. 918.
79. Where any creditor, whose debt is
charged on the real estate, is a subscribing
witness, he shall be allowed to testify, not-
withstanding. But the credit of every such
witness, under all the circumstances of the
case, shall be subject to the consideration of
the Court and Jury, as in other cases.—lb.
80. If a testator shall appoint his debtor
to be his executor, the debt is not thereby
extinguished, unless it be clearly so express-
ed in the wilL—P. 223.
81. Executors can have no beneficial in-
terest under the will of their testator, (ex-
cept it be expressly mentioned,) but theif
AND GUARDIANS GUIDE*
6?
commissions. They shall hold the residuum
or undevised real and personal estate, as a
trustee for the distributees or next of kin of
the deceased.-—P. 252.
82. If a legacy be given to an executor, in
that character, he cannot take it, unless he
qualify, and make himself executor.—3 Ye-
sey Jun., 148. 4 Desaus. Rep. 215.
83. An executor of a deceased executor,,
shall manage the estate of the first testa-
tor.-—Schley's Dig. 125,
Of Legacies—General and: Specific.
84. All debts must he paid before any le-
gacies are satisfied. It is obvious that, as
the whole of the personal estate is liable, in
the hands of the executor, to the payment
of the debts of the testator, the executor
must take care to discharge them before he
satisfies any description of legacy. But a
specific legacy is not liable to abatement for
this purpose, until the general legacies are
exhausted.—Williams on Ex'rs, 838, 958.
3 Desaus. Rep. 47.
85. If an executor, acting bona fde, and
under a conviction that there are sufficient
assets for the payment of debts, permits spe-
63 executor's, administrator's
cific legatees to retain or possess themselves
of the articles bequeathed to them, he will
be answerable for the value of those arti-
cles, with interest, if there should ultimately
be a deficiency of assets, although the defi-
ciency should be occasioned by subsequent
events, which he had no reason to antici-
pate.—Williams on Executors, 958. He is
without remedy as against the creditors of
such legatee.—1 Desaus. 557. 2 Desaus.
522.
86. Specific legacies arp of two kinds.
1. When a particular chattel is specifically
described and separated from all other
things of the same kind, as, my grey hbrsa
Selim, or, all the stock on my farm in the
county of Harris. This description of le-
gacy must be satisfied by delivery of the
identical thing. 2d. Something of a par-s
ticular kind, which the executor may satisfy
by delivering any thing of that kind, as a
diamond ring, a horse, a bed, &c. It is
material that the executor notice this differ-
enee, because a specific 'pecuniary legacy of
the first class is not subject to the"' general
rule of ademption, which rule is applied to
specific, but not to general legacies; as, if
A bequeath to B $500, out of a particular
stock, or fund, or debt, even if nothing of
the particular kind mentioned be in exist-
AND GUARDIAN'S GUIDE.
69
ence at the testator's death, the legatees will
be entitled to satisfaction oat of the general
estate, unless it can be shown that the tes-
tator himself sold, called in, or in some way
changed the nature of the thing bequeathed ;
this will adeem the legacy ; but if its nature
be changed by act of law, as when a fund is
converted into ohe of a different kind by act
•of the legislature, or where stock has been
transferred into another fund by a trustee,
without the knowledge or consent of the tes-
tator, or where the stock is merely transfer-
red, with the testator's consent, from the
name of his trustee into his own.—Williams
on Ex'rs, 950. 2 Vernon, 747.
87. Ademption, or a subsequent change
•of a specific legacy, will cause all .specific
legacies, with the single exception above
stated, to fail. Thus, if a testator give
his heir a gold chain, and he afterwards con*-
vert the chain into a cup ; or he give him a
diamond ring, and afterwards convert it into
a gold watch ; the heir cannot have either
the gold chain, or the diamond ring, out of
the estate. The general rule is, that in
order to complete the title of a specific'le-
gatee to his legacy, the thing bequeathed
must, at the testator's death, remain in
specie, as described in the will.—Williams
on Ex'rs, 946.
E
70 executor's, administrator's
88. Specific legacies are considered as
separated from the general estate,<and ap-
propriated at, the time of the testator's
death; and consequently, from that period,
whatever produce of any kind accrues upon
them, and nothing more or less, belongs to
the legatee. And it is immaterial whether
the enjoyment of the principal be postponed
or not.—-Williams on Ex'rs, 1021. 2 Yes.
sen., 5G3.
89. General legacies, in their nature car-
ry interest, and as in the case of aH other
claims with that incident, the interest is to
'be computed from the time the principal is
actually due and payable ; that time may
vary, but is regulated either by law or the
will of the testator.
1. By law. Where no time of payment
is fixed and named in the will, the following
is the general rule. The executor is by
law allowed one year from the testator's
(date of letters testamentary,) death, to as-
certain and settle his affairs ; this rule i3
subject to some few exceptions, as, where
the legacy is one decreed to satisfy a debt;
or where a sum of money is bequeathed to
an infant for his support, and the will directs
that his maintenance be paid out of the in-
terest. In such cases, interest will be al-
AND GUARDIAN'S GUIDE. 71
lowed from the death.—-Williams on Exec-
utors, 1022.
After the expiration pf the twelve months
the legacy will carry interest, although pay-
ment be, from the condition of the estate,
impracticable, and the fund unproductive.—
Ibid.
2. Where the time of payment is settled
by the will, the rule is, that the legacy will
not carry interest, before the arrival of the
appointed period ; as, for instance, when
the legatee shall attain twenty-one years of
age. Nor will it make any difference if the
legacy is vested. This rule is, also, liable
to exceptions ; but these will be found to be
governed by the fact, that it either certainly
was, or is strongly presumed to have been
the intention of the testator, that the lega-
tee should be supported out of the fund be-
queathed ; as, where the testator being the
parent (or in loco parentis,) of the legatee,
and the legatee a minor. Here, though a
time of payment be named, interest on the
legacy shall be allowed, as a maintenance,
from the death of testator.—Ibid.
90. An executor cannot legally pay to a
father the legacy bequeathed to his child,
unless such father, as patural guardian, giv®
bond and security as in other cases of guar-
diaoship.—-JSchley's Dig., 61, CD.
72 executor's, administrator's
- Miscellaneous Laws.
91. Co-executors may be brought into a
Court of Fquity, to discover transactions
between themselves.—P. Dig., 218.
92. Fraudulent destruction of a will, is
punishable by imprisonment in the peniten-
tiary from one to four years.—P. 651.
93. Forging a will, is punished by impris-
onment in the penitentiary from four to ten
years.—1 hid, 635.
94. In all cases when a person, after hav-
inff made a will, slaa.ll marry, or have born a
child, or children, and no provision shall
have been made in said' will for the "wife
after married, or the child or children after
born, and shall depart this life without re-
voicing said will, or altering it subsequent
to such marriage,or subsequent to the birth
of such after Lorn'child or children, the Jus-
tiees of the Inferior Court of the county,
while sitting as a Court of Ordinary, hav-
ing jurisdiction of the case, shall pass an
order declaring that such person died intes-,
tate ; and his estate shall be distributed un-
der the laws of this State regulating the dis-
tribution of intestate's estates. Provided,
nevertheless, that either party being dissat-.
isfied with the decision of said Court, may
enter an appeal to the Superior Court, as
in other cases.—P. 254.
AND GUARDIAN'S GUIDE.
73
95. Executors are not obliged, like ad-
ministrators and guardians, to give security
when they remove their proceedings from
one county to another, but may do so with-
out. See Laws 1843, p. 58.
96. In the matter of joining in such acts
as co-executors may have to do, the law, it
seems, will make a distinction between ex-
ecutors and administrators, in favor of the
former. Where one co-executor has com-
mitted waste, and another has joined with
him in the act, both are fully committed as
to their liability to creditors; but it will be
a matter of question, whether the one who
did not actually commit the waste, shall be
liable to legatees, they being bound by the
terms of the will.—Williams on Executors,
1304.
97. If an executor administers part of
the assets, he shall be charged with so much
'ttfc he has received, although he has renoun-
ced the executorship, and paid the money
to a co-executor, who proved the will; for
executors must either wholly renounce, or,
if they act to a certain extent as executors,
they cau be discharged only by administer-
ing the assets themselves, or putting the ad-
ministration in the hands of the Court.
98. Executors are dismissed in like man-
ner as administratprs! See' p. 54.
74 executor's, administrator's
99. The office of administrator, with
the will annexed, follows that of executor,
as an administrator dt bonis twn, does that
of administrator.
PART THIRD.
Ouardians.
100, There are several kinds of guardi-
nns known to the English law ;Jbut as only
four of those are known to, the Court of
Ordinary, we shall treat only of them.—
They are as follows :
1. A Guardian bij nature. In this coun-
try, the father is (during life) the natural
guardian of all his children ; they being all
heirs apparent; and if such father die with-
out appointing a statutory guardian, either
by deed or willjthen the mother is the nat-
ural guardian, and has a right to their per-
so?is until the age of twenty-one years, in
the same manner that the father had. This
exclusive right, however, to the natural
guardianship of one's own children, extends
only to their persons ; for by our statutes,
whenever property descends to any child
whose father or mother is in life, such father
or mother cannot take the control of this
property, without giving bond and security,
76 executor's, administrator's
as other guardians; and if they fail or re-
fuse to do so, the Court of Ordinary ft illap-
point some other person to act as guardian
and take charge of the property.—P. 247.
2. Guardians by statute. This is a power
granted to all fathers by statute—12 Char.
II., ch. 24. sec. 8—to appoint, by will, at their
death, a guardian or guardians for their chil-
dren, whetherjsuch child be born before the
death of the father, or at the time in ventre
sa mere, or whether such father be within the
age of twenty,-one years, or of full age. He
may make this appointment, either by deed
executed in his life time, or by his last will
and testament j and he may thus commit the
custody of his children, during their minori-
ty, and the charge of their property for as
long as he thinks proper,to whomsoever he
pleases.—Schley's Dig., 242.
This description of guardian- may act
separately from the executor, but must, like
him, follow the terms- of the will, and use
the property as therein directed ; but should
the^will contain no specific directions as to
the management of the minor's estate, then
-the guardian must be governed, in his use of
the property, by the laws regulating the acts
of other guardians.
This description of guardian, like an ex-
ecutor, is exempted from giving security*
AND GUARDIAN'S GUIDE. 77
unless he be insolvent, or likely to prove
so.—Schley's"Dig., 70.
The mother has no power, under these
statutes, to make such appointment; and,
therefore, though she do so, the act is void,
and the infant may elect.—Ibid.
3. Guardians by election. ' Minnrs, if they
hare sufficient discretion, may elect their own
guardians, whether they he underoiv over the
age of jourtcen years ; but their choice is
subject to the judgment of the Court; for
if the person chosen be, in the opinion cf
the Court, an improper person, the Court
can reject him; and if the infant will not
choose a proper person, the Court appoints
for him. This right in the minor to elect
his own guardian, can only arise, in Geor-
gia, when the infant has no natural guardi-
an, and the father has failed to appoint one
by deed or will; or where the natural guar-
dian fails or refuses to give bond and secu-
rity.
When a minor wishes to choose a guar-
dian, he or she must appear before the Court
of Ordinary, and the choice is made in open
Court.—Schley's Dig., 70.
4. Guardians by appointment of Court of
Ordinary. This properly includes guardi-
ans by election, as well as those appointed
by the Court, to infants who fail or refuse
78 executor's, administrator's
to elect, or make an improper choice—or
have not sufficient discretion, to elect.—
There are several statutes—(see P. 229,239,
243, 250)—which confer upon the Inferior
Court, sitting as a Court, of Ordinary, the
power to appoint in the foregoing cases, and,
also, "to appoint guardians for idiots, luna-
tics, persons insane and illegitimate children.
Guardians of Lunatics, Ac.
101. When a person desires to be ap-
pointed guardian for an idiot, lunatic, or per-
son insane, they petition the Court of Ordi-
nary, setting forth that such person is an
idiot, lunatic, or insane person, (as the case
may be.) and incapable of managing their
estate. This statement is made under oath.
The Court issues a commission to twelve
discreet and proper persons, requiring them
to examine said idiot, &c., together with
any necessary and competent witness. One
of these commissioners must be a physician,
and all must be sworn '•* well and truly to
execute said commission, to the best of their
skill and ability." If the return of these
commissioners satisfy the Court that said
p erson is an idiot, &c., they proceed and
AND GUARDIAN'S GUIDE.
79
appoint a guardian for the same.—P. 254,
255.
The person applying for such commis-
sion of lunacy, must give ten days notice, in
writing, to the nearest adult relative or re-
lations, (not exceeding three in number,) of
their intended application. If no relations
in the State, no notice need be given.
If the applicant fail to prove the person
to be an idiot, lunatic, or person insane, and
the commissioners contradict bis petition,
he will have to pay the costs; otherwise, it
comes out of the estate of the ward.—I bid.
The commissioners' report may be-ap-
pealed from within four days.—Ibid.
102. Guardians of idiots, &c. must, within
three months after their appointment, make
an inventory of the estate of the ward, and
cause the same to be appraised, as in case
of deceased persons, and return the same,
on oath, to the Court of Ordinary.—P. 243.
103. When it shall appear to said Court
that a sale of all, or some part of the estate
"of such idiot, &c., is necessary for then- sup-
port, it shall be the duty of said Court to
order the sale of such property, and the
guardian to make titles to the same —P. 244.
104. All guardians appointed by virtue of
this act, shall be bound to make annual re-
turns of their actings and doings.-—Ibid.
80 executor's, administrator's
105. The wife of an idiot, lunatic, or pel'-
son insane, (if he be married,) is entitled to
the guardianship of his person and property.
Provided, she comply with the requisitions
of the act; (reserving to the Court the right
of joining other persons with ber in said
guardianship.) And her bond is made good
in lawv—Ibid.
106. Guardians of lunatics, idiots, or per-
sons insane, may obtai n letters of dismission
in the same manner as other guhrdiansj
and if there be property undisposed of, may
deliver it to the Court of Ordinary.—P. 249.
General Laws.
107. All guardians are bound to make
annual returns to the,Court of Ordinary, of
their actings and doings.—P..232.
The laws regulating the returns of guar-
dians being the same as those for adminis-
trators,the guardian is referred to title ad-
ministrators, pp. 35, 36.
108. Guardians may hire the slaves of
their wards, either publicly or privately, at
their discretion.—P. 253., But this must
be done (if they hire privately,) under an
AND GUARDIAN'S GUIDE. 81
order of Court; which order they should
take at.the November term of the Court.'
109. Real estate, or slaves of orphans,
may he sold by order of the Court of Ordi-
nary, in the same manner as of deceased
persons.—P. 254.
110. Guardians may,by leave of Court,
either purchase or rent lands for .purpose?
of cultivation, whenever it is manifestly ex-
pedient.—P. 253—see p. 39.
111. Guardians are allowed all reasona-
b!e disbursements anil expenses, suitable to
the circumstances of their wards. But
where it is apparent to the Court that the
annua! profits of the estate of any orphan,
is not sufficient.tor the education nral main-
tenance of said orphan, it shall be the duty
of the Court forthwith to bind oat such or-
phan for the whole or such part of the time
of his or her minority, as to them shall seem
best.—P. 232.
112. Guardians are to pay the militia
fines of their wards.—P. 591.
113. Where the guardian resides oat of
this State, and has to make his return here,
the return may ,be verified by the oath of his
security, in this-State.-r-l.aws of 1843,p. 58.
114. When the guardian and minor both
reside without the limits of this State, and:
there is property in this State which they
82 executor's, administrator's
wish to remove to the State in which they
reside* thev can bhtain the delivery (to the
guardian,) of such pioperty, upon exhibiting
to the Couit of Ordinary of the county
where the property may be, the following
evidence of the appointment of such guar-
dian in tlje State where he may reside:
1. An exemplification from the records of
the Court in which said guardian was ap-
pointed and qualified, setting forth the ap-
plication, bond, and order of appointment.
2. The certificate of the Clerk of the Court.
3. The certificate of the Judge that such
person is the duly commissioned Clerk, and
that his attestation is in due form. 4. The
certificate of the Judge or Cleik of the
higher Court, that such Judge is the duly
commissioned and qualified Judge of such
Court, and was at the time of such appoint-
ment. The guardian must, also, show that
he has given twenty days notice of the ap-
plication to the opposite party.
The bond given must be for double the
amount of the property sought to be recov-
ered, and must be so exclusive of any prop-
erty already in the hands of the guardian.
This must be certified to by the Clerk, who
must, also, testify to the sufficiency of the
security.—Laws of 1837, p. 123.
Upon such showing, the Court will'pass
AND GUARDIAN'S GUIDE.
83
an order requiring the resident administra-
tor or guardian, to pay over to the noij-resi-
dent guardian, all the property in his hands,
of whatever kind it. may be ; and a receipt
therefor, with a schedule thereof, will be a
sufficient voucher for such resident guardi-
an, on tinal settlement.—Ibid.
.115. A duplicate of such, receipt and
schedule, must be produced to such Court,
and filed in such office; and the said order,
so passeti, may be enforced by such Court,
as in other cases. The non-resident guar-
dian may, also, sue for the property, either
at law, or in equity ; and, recovering the
property, may remove it, or, if necessa-
ry, may sell it, in this State, by order of
Court, as is-done in other cases.—Ibid;
and see Laws of 1838, p. 313, where the
benefit of this act is extended to guardians
of idiots and lunatics, on the terms and con-
ditions therein specified.
It is frequently the case, that administra-
tors, when they have nearly or quite settled
up the estate, become the guardian of the
minor heirs of the intestate. In all such
instances, the person should be appointed
guardian before he attempts a full settle-
ment of the business ; and between the time
of his being so appointed guardian, and the
malting of his next return of account cur-
64 executor's, administrator's
rent, he should prepare a final return as ad-
ministrator, shewing a settlement with him-
self as guardian, and should, at the same
time, make a separate return as guardian,
showing what he had received in thatcapa-
city. He should then be dismissed as ad-
ministrator, and be known''to the Court only
as guardian; Many, failing to proceed in
this way, become entangled in their accounts
with the Court.
116. Guardians obtain letters of dismis-
sion in the same way as administrators, ex-
cept that, in their case, the rule ni si is pub-
lished but forty days. See page 54.
117. As the guardian is to be allowed
only reasonable disbursements and expen-
ses, he should be careful to keep the expen-
ditures of the ward within the amount of
his income ; whenever he finds this cannot
be done, he should report the fact explicitly
to the Court, and have arrangement made,
by which"he may be saved from future lia-
bility for expending the principal. The
Court is clothed with authority to bind out
such orphan, and may do so either for a part
or the whole time of their minority; but few
guardians, at least in the interior of the
State, avail themselves of the advantage of
that law, disliking their wards becoming
apprentices, lest they be • misused; but, by
AND GUARDIAN'S GUIDE.
85
noticing the statute, they will find that the
Court has power to make the master ac-
count for any abuse of the child, and to re-
move such child out of the possession of any
person who may not treat him well—for the
laws on this subject, see P. 229, 232, 233.
118. Although there is no express statu-
tory provision, requiring applicants for guar-
dianship to give notice to the kindred, (as in
cases of administrators,) of their intention
to make such application, yet, as the law
recognizes a preference in the right to guar-
dianship, and as the Courts might other-
wise wrongfully interfere with such right, it
is certainly proper that such notice should
be given.—Note G. J., 255.
F
PART FOURTH.
Courts of Ordinary.
119. The Inferior Court, when sitting for
ordinary purposes, shall have the original
jurisdiction of the estates of all deceased
persons, whether testate or intestate—(6
sec. 3 art. con.) They shall have authority
to hear and determine all causes, matters,
suits, and controversies testamentary, touch-
ing the proof of wills, determining the right
of administration, appointing administrators
and guardians, qualifying administrators,
executors and guardians, binding out or-
phans, and all other matters and things that
appertain or relate to estates of deceased
persons. And shall be known only as the
Inferior Court sitting for ordinary purpo-
ses.—P. 23], 239.
120. The Inferior Court, sitting as a
Court of Ordinary, shall meet on the first
Monday in January, and on the first Monday
of every other month thereafter.—-P. 240.*
"The lime of holding Courts of Ordinary is now changed
for the month of January only, from the first to the seeond
Monday,—Act# of 1843, p. 37.
88 executor's, administrator's
And in case of non-attendance of a majority
of the Court, one Justice, in conjunction
with the Clerk, may adjourn the Court.—
Acts 1823, p. 48. The sessions of said
Court shall be opened and attended by a
sheriff or his deputy, or, in their absence, by
a constable, coroner, or the clerk of the
Court.—P. 243, 4-54.
Cleric of Cosirt of Ordinary.
121. The Clerk of the Court of Ordina-
ry, shall be known only as the Clerk of the
Court of Ordinary.—P. 239. And shall be
elected biennially, on the first. Monday in
January, in every second year ; to be elect-
ed by ballot, by the Justices of the Inferior
Court.—P. 241, 911.
122. The said Clerk, when elected, shall
take an oath (to be administered by one of
the Justices of said Court,) well and truly
to perform the duties of his office.—P. 231.
And before entering on the duties of his of-
fiee, shall give bond and security irj the sum
of two thousand dollars, made payable to
his Excellency the Governor, for the time
being, and his successors in office. It is the
duty of the Justices of the Inferior Court to
take such bond.—P. 178, 179.
AND GUARDIAN'S GUIDE. 89
12-3. When any vacancy shall happen in
the office of the Clerk of the Court of Or-
dinary, by death, resignation, or otherwise,
it shall and may be lawful, and it is hereby
made the duty of the Justices of the Inferior
Court, or a majority of them, to proceed,
without delay, to appoint some fit and proper
person to fill such vacancy.—P. 245.
Usttles ©f Clerk ©f C. O.
124. 1. To record all bonds of ad minis-
trators or guardians, within six days after
the same are taken.
2. To examine, report to the Court, and
record, returns of accounts current of exec-
utors, administrators and guardians.
3. To issue and record marriage licenses
and certificates of marriage.
4. To record wills ; appraisements, sales,
distributions of estates ; exemplifications
from other Courts ; petitions to Court of
Ordinary; rules nfsi and absolute ; orders
of Court, and returns of commissioners of
lunacy and partition; also, bonds and inden-
tures of apprentices, and births.
5. To keep a record of the names of ex-
ecutors, administrators and guardians, with
their securities.
90 executor's, administrator's
6. To keep a docket (in a bound book,)
of the names of persons liable to make re-
turns. For neglect herein, he is liable to
be fined $30 for every term he may beguil-
ty of such neglect.
7. To give all parties concerned free ac-
cess to the books of his office, upon request,
at convenient times.
8. To issue processes, viz.: Rules ni si,
to shew cause why returns have not been
made, or new bonds or security should not
be given; and citations to shew cause why
administration should not be set aside or
repealed, and report returns on the same to
the Court.
Note.—It is, no doubt, tbe duty of the Clerk of the Court
of Ordinary, to scrutinise closely the bonds in his office, and
to report to the Court sue!) as may be defective in any way.
For the Court, in appointing him and delivering up to him
their records, can expect nothing less from him than a close
inspection of all which comes into his hands—as, therefore, it
is a paramount duty of the Court to detect and expose any
danger to which estates may be liable, the Clerk, acting as
their watchman, should afford them all the information in his
power, not only on the returns of account current, but in ev«-
ry department of his office.
liiaMliiies.
125. Clerks of the Court of Ordinary
are liable in granting temporary letters, if
they neglect to take sufficient security—for
this bond is taken at their discretion.—P. 228.
AND GUARDIAN'S GUIDE. 191
126. The Clerk is liable to be fined $5
for refusing to record births—Acts 1823, p.
45—and fifty cents for every day he may
neglect to set up a table of his fees in some
place in his office.—P. 264.
127. He is, also, liable to be fined $30 for
every term he neglects to keep a docket.—
Acts 1821, pp. 89, 90. For overcharging
in exacting fees, he is liable to pay fourfold,
and be dismissed from office. But on being
prosecuted wrongfully therefor, may recover
fiouble costs.—Prin. Dig., p. 179.
128. Clerks may appoint deputies, and
are liable for their acts.—Ibid, 122.
129. Clerks are removable (but not by
the Court,) for mal-practice in office.—lb.
118. And are subject to the order of the
Court after they are out of office.—lb. 121.
130. Clerks shall deliver over to their
successors in office, on oath, a correct sched-
ule of all the papers relative to unfinished
business, and all other papers and books are
to be turned over in good order.—Ibid,
116, 117.
131. The Clerks are, by virtue of their
office, made escheators; but as cases very
seldom or never occur in the interior where
they are required to act in that capacity, it
is unnecessary to swell this work by the in-
sertion of the laws on that subject.
92 executor's, administrator's
Fees of Clerk C. O.
132. The Clerks of the Court of Ordina-
ry are entitled to receive the following fees,
which, in the table, are set down so as to in-
elude the 25 per cent, authorized by the act
of 1819.—P. 260, 265, 831.
Receiving application and granting citation $1 25
Signing warrant of appraisement 62J
Signing probate of will 1 25
Eecord'g will or other paper, pr copy sheet, of 90 words 12 j
Certified copy of will, or other paper, '' " . 12|
Recording appraisement, if under $100.
" " if above $100...... 1 2a
Bills of sale, same as appraisements
Receiving application and granting letters dismissory.. 1 25
Issuing citation to shew cause why administration
should not be set aside 2 50
Granting letters testamentary, or of administration.. . 2 50
Entering caveat against will being proven. 1 25
Attending Judges for determining caveat, per day... . 1 25
For every marriage license 1 25
For recording marriage license 3l£
For recording return of account current 62Jt
For examining return of account current. 50
For registering a birth, in each case 25
For certificate of such registry ...... 25
For recording bonds of administrators and guardians. 62^
For taking said bonds 50
For issuing letters of guardianship.... 1 00
For mak'g out and signing indentures of apprenticeship 1 00
For rule ru si, in each case. 50
For rule absolute, in each case 50
For issuing process against persons charged with mis-
management, in each case 50
For every additional copy 25
For issuing process against persons, in default for not
making returns 50
For every additional copy. 25
For every subpeena. 12£.
For entering an appeal and transmitting the proceed-
ings to the Superior Court 2 0O
In all other cases, where services are re-
AND GUARDIAN'S GUIDE. 93
quired to be performed by the several Clerks
of the Court of Ordinary, in this State, and
no fees are given by law, the said Clerks
shall be entitled to receive the same fees as
Clerks of the Superior and Inferior Courts
are allowed for similar services.—P. 265.
Management of Estates.
133. None but a citizen of the United
States, resident in Georgia, shall be an ex-
ecutor or administrator.—P. 238.
134. Administration shall be granted in
the county where the will would have been
proven, had there been any, and the rules
for distribution of estates shall govern the
granting of administration.—P. 225, 227,
233. And when two or more of the same
degree shall apply, the Court shall use their
•discretion.—Schley's Dig., p. 157.
„ 135. When executors refuse or neglect
to qualify, or where there is none named in
the will, administration, with the will annex-
ed, shall be granted to such person as would
have been entitled, had there been no will.—
P. 227. Administration, with the will an-
nexed, is also granted, where the executor
is insolvent and fails to give bond.—P. 237.
©4 executor's, administrator's
136. When the Clerk applies for letters
of administration, or letters testamentary,
such clerks may be appointed administrator
by the Court of Ordinary : provided, said
Clerk shall first have published a notice for
thirty days, of the death and intestacy of such
person, and that 110 one has applied for ad-
ministration ; and the Court, upon appoint-
ing such clerk administrator, may, at their
discretion, require of him additional securi-
ty.—Acts 1839, p. 39.
137. Administration can only be granted
in the county where the deceased may have
resided at the time of his death, if a resident
of this State.—Ibid.
138. Letters of guardianship can only be
granted by the Court of Ordinary of the
county where the minor resides.—Ibid.
139. The Clerk of the Court of Ordinary
may be appointed administrator de bonis
non, or guardian, in certain cases.—P. 242,
249. In case of his being appointed guar-
dian, he is to give bond as other guardian^.
140. Where the granting of administra-
tion is contested, the dissatisfied party may
appeal from the decision of the Court of
Ordinary, within four days.—P. 231, 238.
And in all cases of appeal, the Court may
grant temporary letters, to hold pending said
appeal.—Ibid,
AND GUARDIAN'S GUIDE. 05
141. If a widow, or feme sole, after having
obtained letters testamentary, of adminis-
tration or guardianship, shall marry, her let-
ters shall thereupon abate ; but her husband
shall have such letters, upon his giving bond
and security ; or the Court may grant such
letters to any person that may be entitled.—
P. 252.
142. Where the Court shall know or be
informed that any executor, administrator,
or guardian, is wasting or mismanaging the
estate committed to his charge, as such, or,
where the security of such is like to become
insolvent, they shall apply a discretionary
remedy. Also, where a guardian does not
take due care of the education and main-
tenance of his ward, or where an executor
is in insolvent circumstances, or is wasting
or mismanaging the estate.—P. 232, 237.
or? 7
The remedy in all these cases, is to compel
such executor, administrator or guardian,
to give bond, with sufficient security, or re-
voke their letters, arid grant administration
or guardianship to such as may be entitled
and willing to undertake.—P. 245,246,248.
Note.—The process in these cases is by suggestion of the
delinquency or insolvency of such executor, administrator, or
guardian, upon which the Court passes an order that a rule ni
ei do issue, calling upon such person to be and appear at the
next term of the Court, to shew cause, &c.-^ which rule is serf-
ed upon the party twenty days before said term of the Court.—.
P. Sol. In case the party against whom such rule may h»
96 executor's, administrator's
taken, has removed out of the county or state, or absconds or
conceals himself,or stands in defiance of a peace officer, then
service of said rule may be perfected by publication in one of
the public gazettes of the state, at least three times.—P. 252.
143. While each separate estate is man-
aged by the executor, administrator or guar-
dian, as the case may be, the Court of Or-
dinary is considered the fiduciary of the
county in general, and as such, takes the su-
pervislon of all estates of deceased persons,
or orphans. Hence the power .conferred
upon them by statute, in the matter of ex-
amining into the state and condition of such
estates, is general, and does not restrict them
to any particular period of the year, or to
the mode or amount of the information upon
which they may proceed—but fit any time
they shall think proper, and it shall appear
necessary, they may proceed to cite the ex-
ecutor, administrator or guardian.—P. 232.
144. Upon application by securities of
executors, administrators or guardians,
praying to be relieved, &c., the Court may
issue process, requiring such executor, ad-
miuistrator or guardian, to give other or
counter security.—P. 237. And upon their
failure to do so, may revoke their letters,
and take such further order as may be ne-
cessary for the better securing of such es-
tate.—P. 232.
145. The Court may order executors,
AND GUARDIAN'S GUIDE. 97
administrators and guardians, to make titles
in certain cases.—P. 237, 244. And when
an executor or administrator shall be direct-
ed, by the Court of Ordinary, to make titles
in pursuance of a bond or other obligation,-
entered into to that effect, by the testator
or intestate, such executor or administrator
should, upon the execution of such titles,
return the bond to the Court, together with
a description of the land conveyed, to be filed
in the clerk's office.—P. 230, where see full
instructions as to the process in these cases.
148. As it is the duty of the clerk to keep
a docket of the names of all persons liable
to make returns to the Court of Ordinary,
so it is made the duty of the Court regular-
ly to call said docket, and make their entries
therein, as is practised by the Judges of the
Superior Courts.—Daw. Comp., 205,206.
Probate of Wills.
147. All witnesses to prove the execution
of a will, must be such as are admissible in
trials at common law.—Prin. Dig., 563 ;
and such witnesses may be compelled to at-
tend the probate of the will.—P. 238.
Such witnesses may be sworn and exam-
ined in the following manner: You shall
98 executor's, administrator's
true answers make to all lawful questions
that shall be asked you by the Court, or its
authority, touching the execution of the last
will and testament of A B, now presented
for probate. !?o help you God.
1. Did you see A B sign,* seal, publish,
and declare this to be his last will and tes-
tament ?
2. Did you sign the same as a witness, in
the presence of the testator ?
3. Was he, at the time, of sound disposing
mind and memory ?
4. Did he execute the same • freely, and
without compulsion,*so far as you know or
believe ?
The will being duly proven by the verbal
answers of the witnesses, or, as it is some-
times done, by their swearing to and sub-
scribing an affidavit, embracing the facts,
the probate and order of the court may bo
entered as follows:—
GEORGIA, Talbot County.
COURT OF ORDINARY—JULY TERM, 18i4.
. The within last will and testament of A
B, having been duly proven, at this regular
term, in open court, upon the oaths of C D,
E F, and G H, subscribing witnesses to said
*The testator's name may be signed by another person, but
k must be done in his presence, and by hit express direetiimi,
which must also be proyen.
AND GUARDIAN'S GUIDE. 99
will, ordered, that the same be admitted to
record.
This order should be signed by the Judg-
es, and countersigned by the Clerk.
In case the will has been proven in vaca-
tion, the order may be varied so as to era-
brace the facts.
148. No will in writing, shall be altered
or changed by word'of mouth only, but must
be done in testator's life time, and be pro-
ven like the will.—iPrin. Dig., 563.
Nuncupative Will.
149. The following are indispensable re-
quisites, in order to the probate of a nuncu-
pative will, which bequeathes upwards of
thirty pounds.
1. There must be at least three respect-
able witnesses who were present at the time
the testamentary words were spoken.—
These must testify that they were called on
at saql time, by the testator, to bear witness
that such was his will, or to that effect.
2. Such will must be made in the last sick-
ness of the testator, in his or her house, of
habitation, or where he or she has been res-
ident ten days or more, except where the
testator may be suddenly taken sick from
home.
100 executor's, administrator's
3. Such testamentary words must be com-
mitted to writing- in six days, otherwise they
may not be proven, after the expiration of
six months from the testator's death.
4. Fourteen full days must have expiree!
from the death of the testator, before any
such will can be admitted to probate and
record; and it must appear, also, that the
widow, or next of kin, has been notified or
called in, that they may have an opportunity
of contesting- the same, if they please ; but
these restrictions are not to control the ma-
king of a will by a soldier in service, or a
mariner at sea.—Prin. Digest, 917.
Bonds and ©aflis.
150. Every executor, or administrator,
with the will annexed, at the time of proving
the will, or granting administration, shall
take the following oath:—
I do solemnly swear, that this writing con-
tains the true last will and testament of A
B, deceased, so far as I know or believe—
and that I will well and truly execute the
same, by paying first the debts, and then the
legacies contained in said will, as far as his
goods and chattels will thereunto extend,
and the law charge me, and that I will make
AND GUARDIAN'S' GUIDE. 101
<atrue and perfect inventory of all such goods
and chattels. So help me God.—Prin. Di-
gest, 155.
151. Every administrator shall enter into
a bond, with good security, to be appointed
by the Court, in a sum equal to the full val-
ue of the estate. He shall also take the
following oath, when letters are granted to
him: I do solemnly swear, that A B, de-
ceased, died without any will, as far as I
know or believe, and that I will well and
truly administer on all and singular, the
goods and chattels, rights and credits of the
said deceased, and pay all his just debts, as
far as the same will extend, and the law re-
quires me; and that I will make a true and
perfect inventory of all and singular, the
goods and chattels, rights and credits, and
a just return thereof, when thereunto requi-
red. So help me God.
152. All guardians who may be appoint-
ed in this State, shall, before they enter up-
on the duties of their appointment, give
bond and sufficient security, in a sum dou-
ble the amount of their ward's estate, in
conformity with the laws now in force in
this State, and take before the Court the
following oath or affirmation
I, A B, do solemnly swear or affirm, (as
the case may be,) that I will do and perform
G
102 executor's, administrator's
the duties required of me as guardian for
C D, orphan of E F, deceased, according to
the laws of this State, to the best of my abil-
ity and understanding. So help mo God.
An administrator de bonis non, takes the
oath of an administrator.
An administrator cum testamento annexo,
takes the oath of an executor.
INDEX.
Administrators.
Page.
Appraisement, Laws of. 6
Commissions, Laws of..... 40
Distribution of Estates, Laws of. 29
Form of Appraisement 9
" Annual Return of Account Current 49
" Administrator's Deed 1 5
" Final Receipt... 57
" Inventory of Rights and Credits 30
" Notice of four months for leave to sell 12
•i " to distributee of intention to apply 13
44 " for Commissioners to distribute estate.. 29
" " to Creditors and Debtors. 19
" " of Administrator's Sales. 10,11
Oath of Administrators 101
'• " Appraisers 7
" 41 Executors 100
" " Distributors 31
" " Guardians 101
" Order to sell land or negroes 14
". " to grant Letters Dismissory 55
" Probate of Wills 97
" Receipt of distributive share 32
44 44 taken from creditors. 36
" Refunding Bond 30
" Sale Bill as returned to Court 12
Interest, question of, considered 43
Letters of Administration, how to obtain 6
Letters of Dismission, how to obtain 54
Liability of Administrators. 58
Promissory Notes, not to be returned 40
Returns of Account Current, laws regulating.......... 35
Removal of Estates, laws regulating 58
Sales of Estates, laws regulating ...>.. 13
Settlements with Creditors, laws regulating 18,19
Settlements with Debtors, laws regulating 25
INDEX.
Page.
ADMINISTRATORS, de bonis non 61
Executors.
When they may qualify 64
Legacies. General and Specific, laws regulating....... 67
Interest on Legacies, laws regulating 70,71
Miscellaneous Laws 73
Probate of Wills, laws regulating ....64,65,97,98
Wills, Nuncupative, laws regulating 99
Witnesses to Will, who may be 65,97
Guardians.
Guardians by Nature 75
" by Statute 76
" by Election of Orphan 77
"■ by Appointment Court of Ordinary 77
" of Lunatics, laws regulating.« 78
•' -bound to make annual returns..., 80
" may hire slaves under order court at discretion 80
" sell real estate or slaves under order of court 81
" may p-urchase or rent land under order court 81
" must bind out-orphans if estate is insufficient.. 81
" must pay militia fine of wards 81
" laws reg'ing settlement with, from other states 81
'' mu3t obtain rule ni si to be dismissed 84
Courts of Ordinary.
Bonds of Administrators and Guardians 100
Jurisdiction. '87
Sessions -. 87t
Appointment of Clerk........... 88
Duties of Clerk. 89
Fees of Clerk 92.
Liabilities of Clerk. 90 ,
Manjtge,ment of .Estates, by the Court................. 93