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Full text of "Law of wills, executors and administrators"

I AWYCRS 

rfhOP EBWivePuBLisHiHG Co- 

RoCHESTIR, N.Y. 




THE LIBRARY 

OF 

THE UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 

SCHOOL OF LAW 



LAW OF WILLS 
EXECUTORS 



AND 



ADMINISTRATORS 



Bt 

JAMES SCHOULER, LL. D. 

Author ot Treatises on "Domestic Relations" "Bailments" and 
"Personal Property," etc. 



FIFTH EDITION 



IN TWO VOLUMES 
Vol. 1 WiUs 
Vol. 2 Executors and Administrators 



VOL. II. 




Albany, N. Y. 
MATTHEW BENDER & COMPANY, 

INCORPORATED. 
1915. 



Copyright, 1883, 1886, 1889, 1892, 1900, 1901, 1910 
By JAMES SCHOULER. 



Copyright, 1915. 
By lilATTHEW BENDER & COMPANY, 

INCORPOEATED. 



T 



TABLE OF CONTENTS. 

Volume II. 



PAET I. 

INTRODUCTORY CHAPTER. 

Page 

1001. Estates of Deceased Persons; how Settled in Modem Practice; 

Tlieory of Judicial Supervision 863 

1001a. Death Fundamental to Jurisdiction ; Survivorship 864 

1002. Settlement of Estates, Testate or Intestate; Executors and Ad- 

ministrators, and their Functions; Administration 865 

1003. Whether there may be a Will without an Executor 867 

1004. Whether a Will can operate upon Property afterwards acquired. 868 

1005. Personal Property is administered; whether Real Estate can be 

applied 869 

1006. Succession in the Civil Law; as distinguished from Adminis- 

tration 870 

1007. Testacy preferred to Intestacy in Civil and Common Law; 

Former Abuses in English Law where Intestate Estates were 
administered 873 

1008. Wills of Real and Personal Property, whether distinguishable of 

Right; Modern Statute of Wills 875 

1009. Ancient Doctrine of the Reasonable Parts of Widow and Chil- 

dren ; Wills of Personal Property affected 876 

1010. Jurisdiction in the Grant of Letters Testamentary and Admin- 

istration; English Ecclesiastical Courts 876 

1011. 1012. Probate Jurisdiction in the United States 877, 879 

1013. The Subject continued; Probate Procedure in the United States. 880 

1014. Modern Probate Jurisdiction in England; Modem Court of Pro- 

bate Act 882 

1015. Conflict of Laws in Wills and Administration; General Rule of 

Comity; Authority of Representative in Local 885 

1015a. Conflict of Laws; Rule as to Foreign Creditors with Local 

Assets 887 

1016. Conflict of Laws; Comity Favors as to Payment of Legacies and 

Distribution 888 

1017. Conflict of Laws; Rule as to Execution and Validity of Will. . . 889 

1018. Conflict of Laws; Rule as to Accountability of Executor or Ad- 

ministrator 891 

1019. Conflict of Laws; Personal and Real Estate contrasted; Situs 

prevails as to Real 891 

(iii) 



72H'A}'Q 



IV TABLE OF COXTEXTS IX VOL, II. 

Page 
§ 1020. Conflict of Laws; General Rules varied by Treaty, Statute, etc. 892 

1021. Last Domicile: what this is; Residence, Inhabitancy 894 

1022. Last Domicile; applied to the Subject of Administration 897 

1023. Last Domicile; Death while on Transit, etc 898 

1024. Locality of Personalty or Bona yiotahilia may confer Jurisdic- 

tion, aside from Domicile; Questions of Double Jurisdiction.. 899 

1025. The Subject continued; whether Assets brought in may confer 

Jurisdiction 902 

1025a. The Subject continued; Suits for Assets owing by a Corporation 904 

1026. The Subject continued; Right of Action created by Local Statute 

confers no External Jurisdiction 904 

1027. Whether Locality of a Decedent's Real Estate may confer Juris- 

diction 905 

1028. Constitutional Points affecting Administration in the United 

States 906 

1029. Probate Jurisdiction exercised by each State separately; United 

States Courts should not interfere 906 

1029a. Interested Parties only are regarded in Probate Procedure 907 



PART II. 

APPOINTMENT AND QrALIFICATIOX^ OF EXECUTORS AND 
ADillXISTRATOES. 

CHAPTER I. 
APPOINTMENT OF EXECUTOES. 

I 1030. Modern Definition of Executor 909 

1031. Dfsignation of Executor under a Will; the Trust may be abso- 

lute or qualified 910 

1032. Who are capable of becoming Executors; Rule as to Married 

Women, Infants, Corporations, Aliens, etc 910 

1033. Who are capable of becoming Executors; Rule as to Criminals, 

DJHHolute PcrHona, liisolvente, etc 913 

1034. Miscellaneous Dinabilities for the Office 917 

1035. E.xprcHH Appointment of Executor by Testament 917 

1030. Constructive Ai)iH»iritment by designating Functions, etc.; Execu- 
tor according to the Tenor 918 

1037. The Hamc Subject; Mere Designation of Trustees, Legatees, etc., 

InHufTiciont for Executorship 919 

1038. The xnnu' Subject; Identifying the Executor 920 

1039. The Hame Subject; SuggcHted Kxecutor; Adviser, etc 920 

1040. The Hame Subject; Conditional Appointment; Substitution; Co- 

executor.s, etc 921 



TABLE OF CO^fTE^'TS IN VOL. II. V 

Page 
104 L Testator's Delegation of the Power to name an Executor or Co- 
executor 922 

1042. Limited or Conditional Executorship 923 

1043. Whether the Executorship passes to an Executor's Representa- 

tives 926 

1044. Acceptance and Refusal of the Executorship; Citation of the 

Person named, etc 927 

1045. The same Subject; Death equivalent to a Renunciation 929 

1046. The same Subject; Refusal of Record; Constructive Refusal or 

Acceptance 930 

1047. The same Subject; Constructive Acceptance or Refusal not 

favored in Modern Probate Practice 932 

1048. Executor's Right to renounce not to be exercised corruptly, nor 

for Sinister Objects 934 

1049. Whether an Executor renouncing may exercise a Power 934 

1050. Retraction after a Renunciation; Subsequent Appointment of 

the Executor 935 

1051. Renunciation where Co-executors are named 937 

1052. Executors, how appointed by the Court; Letters Testamentary. 938 
1052a. Probate and Letters Testamentary Distinguished 938 

CHAPTER 11. 

PROBATE OF THE WILL. 

1053. Duty of producing the Will ; Fundamental Importance of de- 

termining Testacy or Intestacy, etc 939 

1054. Procedure against Persons suspected of secreting, destroying, 

etc., the Will 940 

1055. Death of Testator; its Effect upon his Will 941 

1056. How soon after the Testator's Death should the Will be pre- 

sented for Probate 943 

1057. Primary Probate Jurisdiction depends upon Last Domicile of De- 

ceased ; Foreign Wills 944 

1058. Testamentary Papers Ineffectual until after Proper Probate; 

Probate relates back 946 

1059. What Testamentary Papers require Probate; Wills of Real and 

Personal Property 947 

1060. Testamentary Papers requiring a Probate; Various Kinds 

stated; Wills, Codicils, etc 948 

1061. Testamentary Papers requiring a Probate; Secret Wills; Ex- 

traneous Documents referred to 950 

1062. Instruments which do not purport to be Testamentary 951 

1063. Modern Laxity as to Papers of a Testamentary Character cor- 

rected by Statutes requiring Attestation, etc 952 

1064. By whom the Will should be propounded for Probate 954 

1065. Petition and Proceedings for Probate, etc.; Probate in Common 

Form and Probate in Solemn Form 956 



Vi TABLE OF CONTEXTS IX VOL. II. 

Page 

§ 1066, 1067. Probate of Will in Common Form 956, 959 

1008. The Subject continued; American Statutes as to Non-conten- 
tious Business 960 

1069. Probate of Will in Solemn Form; English Practice 961 

1070. Probate of Will in Solemn Form; American Practice 963 

1071. Ck)ntest over Conflicting Testamentary Papers 966 

1072. Agreement of Parties in Interest to conform; Compromise, etc. 966 

1073. The Proof Needful to establish a WiU; Proceedings at the Hear- 

ing for Probate 968 

1074. Proof of the Will; Instrument to be in Writing, and signed by 

the Testator 970 

1075. Signing by the Testator; Subject continued; Publication, etc... 973 

1076. Proof of the Will ; Subscribing Witnesses 974 

1077. Proof of the Will; Mode of Attestation by Witnesses 977 

107S. Proof of the Will ; Attestation Clause 977 

1079. Proof of the Will; Suitable Testamentary Condition on the Part 

of the Testator 978 

lOSO. Proof of the Will; Suitable Testamentary Condition as respects 

Legal Capacity 981 

1081. Proof of the Will ; Testimony at the Hearing 982 

10S2. Revocation or Alteration of Wills; Codicils; New Wills, etc... 983 

1083. Will Contest is in Rem: Appeal or Review from Probate, etc.. 986 

1084. Lost Wills ; Informal Alterations, etc 987 

1085. Probate in Whole or in Part 989 

1086. Probate in Fac-simile, or by Translation 991 

1086a. Slanderous Statements in a Will 992 

1087. Probate of Two or More Testamentary Papers; Duplicate W^ills; 

Grant to Executors '. 902 

1088. Decree of Probate entered; Public Custody of the Will 993 

1089 Nuncupative Wills 993 

1089a. No Injunction ; ElTect of Probate 994 

CHAPTER III. 

APPOINTMENT OF ORIOINAL AND GENERAL ADMINISTRATORS. 

g lono. Ori^rinal and Concral Administration granted wherever there is 

no E.xecutor, etc.; Origin of this .lurisdiction 996 

1001. IntoKtacy Fundamental to the Grant of Ooneral Administra- 

tion ; Death and Domicilo or Local Assets 997 

1002. ProHumption favors .Iiirisdittion where the Grant is conferred; 

but the Fundamental Facts must exist 908 

1002a. AdminiHtration Grant in Ignorance of a Will 900 

1003. Vnlno or Kind of Estate, whether Fundamental 1000 

1004. Time within which Orifrinal Administration must be applied for 1000 
1095. No Original and Gfnoral Administrntion granted while Other 

Ijctters are iii Full Force, etc.; Double Jurisdiction 1001 



TABtE OF CONTENTS IN VOL. II. VU 

Page 
109G. Judicial Inquiry into the Facts Essential to the Grant of Ad- 
ministration 1002 

1097. Persons to whom General Administration is granted 1003 

1098. Husband's Right to Administer upon the Estate of his Deceased 

Wife. 1004 

1099. 1100. Widow's. Eight to Administer upon the estate of her De- 

ceased Husband 1007, 1009 

1101. Right of the Next of Kin to Administer; Consanguinity 1010 

1102. The same Subject; How to ascertain the Preference among 

Kindred 1011 

1103. The same Subject; Preferences among Kindred of the same 

Degree, etc 1013 

1104. Leading considerations which affect the Choice among Persons 

equally entitled by Law to Administer; Suitableness, etc.. 1015 

1105. The same Subject; Suitableness as between Males and Females, 

the Elder and Younger, etc 1018 

1106. Suitableness as concerns Married Woman; Husband's Admin- 

istration in Wife's Right 1018 

1107. Unsuitableness as to Insane Persons, Infants, etc 1019 

1108. Illegitimate Children and their Right to Administer 1020 

1109. Whether Non-residence disjualifies 1020 

1110. Other considerations fpr determining the Choice of Adminis- 

trator 1022 

1111. Statute Order among Next of Kin stated 1022 

1112. Renunciation or Non-appearance of those entitled by Preference 

to Administer ; Citation 1023 

1113. Nomination of a Third Person by the Person entitled to Ad- 

minister 1026 

1114. Unsuitableness of a Judge of Probate, Corporation, etc., for the 

Appointment 1028 

1115. Right of Creditor to be appointed in Default of Kindred, etc. . . 1029 
1115a. Right of Stranger, etc., as last resort 1031 

1116. Public Administrator or other Official appointed in Certain 

Cases 1032 

1117. English Rule in Cases Analogous to Those which call for a 

Public Administrator 1039 

1118. Method and Form of granting Letters of Administration 1040 

1119. Administrator as Such must be appointed; Credentials of 

Authority 1043 

1120. In what Cases Administration may be dispensed with 1044 

1121. Procedure in Administration is in Rem 1048 

CHAPTER IV. 

APPOINTMEXT OF ADMINISTRATORS NOT ORIGINAL AND GENERAL. 

1121. Administration is not always Original or General 1049 

1122. Administration with the Will annexed {cum testamento an- 

nexo) ; When granted and how 1049 



Vlll TABLE OF CONTEXTS IN VOL. II. 

Page 
§ 1123. Administration with the Will annexed; Functions of the Office 1051 

1124. Administration with the Will annexed; to wliom gi-anted; 

Residuary Legatee 1051 

1125. Administration with the Will annexed; Appointment of Next 

of Kin 1052 

112G. Administration with the Will annexed; Surviving Spouse's 

Right considered 1053 

1127. Administration with the Will annexed; Executor's Rights 105-4 

1128. Administration of Personalty not already administered (de 

bonis nan) ; when granted, etc 1055 

1129. Administration de bonis noti; to whom committed 1059 

1130. Death of surviving Spouse pending Settlement of Deceased 

Spouse's Estate 1061 

1131. Administration de bonis non; Miscellaneous Points 1062 

1132. Temporary Administration; Administration during Minority 

{durante minore aetate) 1063 

1133. Temporary Administration; Administration durante absentia. 1065 

1134. Other Temporary Administrations; Administration pendente 

lite etc 1067 

1135. Special Administration, for Limited and Special Purposes, etc. 1069 



CHAPTER V. 

THE BONDS OF EXECUTORS AND ADMINISTBATOBS. 

( 1136. Necessity of Qualifying before Appointment; Security required 

by the Court 1075 

1137. Bonds: When and How required from an Executor 1075 

1138. Bonds required from an Executor; Residuary Legatee's Bond. 1079 

1139. Bonds required from an Administrator; English Rule 1080 

1140. Bonds recjuired from an Administrator; American Practice.. 1083 

1141. Probate Bonds; How Taken 1085 

1142. Probate Bonds; Irregularities, etc., attending Execution, How 

far Available 1087 

1143. Whether a Probate Bond may bind as a Conimon law Bond... 10S9 

1144. Sufficiency of Probate Bonds, as to the Security and the Par- 

ties ofTcred lOrO 

1145. Co-Kxecutors and Co-Administrators; joint and separate 

Hon.l.s 1091 

11 4C. Probate Hond; What Property is covered; What Functions in- 

clu.led. ete 1092 

1147. Release or Discharge of Sureties 1096 

1148. New or Additional Bonds; when and how required 1007 

1148a. Liability on Bond, how enforced 1099 

1149. Lout and Missing Probate Bonds 1100 



TABLE OF CONTENTS IN VOL. II. IZ 

CHAPTER VI. 
APPEAL; REVOCATION; NEW APPOINTMENT, ETC. 

Page 

§ 1150, 1151. Appeal from Decree of Probate Court; Mandamus, 

etc 1101, 1103 

1152. Revocation by Proceedings in the Probate Court J 105 

1153. Grounds upon which Revocation is Proper 1107 

1154. Removal of Executor or Administrator 1110 

1155. Procedure in Case of Appeal, Revocation of Appointment or Re- 

moval from Office 1114 

115G. Resignation of Executor or Administrator 1115 

1157. Jurisdiction, in general, as to Revocation, Removal, and Ac- 

cepting a Resignation 1116 

1158. Natural Termination of an Executor's or Administrator's Au- 

thority 1118 

1159. Delegation of Authority does not relieve; but Supersedure does 1118 

1160. 1160a. The EiTect of Probate Decrees; Collateral Attack, 

etc 1118, 1123 

1160b. Effect of Misnomer of Decedent 1125 

1161. Effect of an Appeal from Decree 1125 

1161a. Effect of Revocation, etc., upon the late Office 1126 

1161b. Court cannot Appoint anew while a Former Appointment con- 
tinues 1 126 

CHAPTER VII. 

FOREIGN AND ANCILLARY APPOINTMENTS. 

§ 1162. The Subject of Foreign and Ancillary Appointments considered 

frequently in the United States but not in England 1127 

1163. What is Ancillary Administration 1127 

1164. Letters Testamentary or of Administration have no Extra- 

territorial Force 1128 

1165. Each Sovereignty competent to confer a Probate authority 

within its own Jurisdiction 1129 

1166. Local Sovereignty recognizes Limitations grounded in Comity, 

Good Policy, and Natural Justice 1130 

1167. Administration in the last Domicile is the Principal; other Ad- 

ministrations are Ancillary 1130 

1168. Principal Letters need not precede the Ancillary 1131 

1169. Foreign and Domestic Probate and Letters Testamentary; Eng- 

lish Doctrine H"- 

1170. The same Subject; American Doctrine 1135 

1171. Whether Will, to be operative, must conform to the Law of 

Last Domicile 1 136 

1172. Foreign and Domestic Administration 1137 



X TABLE OF CONTEXTS IN VOL. II. 

Page 
§ 1173. Foreign Appointment ot Executors or Administrators Unavail- 
able in Domestic Jurisdiction; Local Letters required; Ex- 
ceptions 1138 

1174. Principal and Ancillary Letters; Comity as to transmitting 

Assets for Distribution, after Local Debts are satisfied. ... 11J2 

1175. Duty of the Domestic Representative as to Foreign Assets. . . . 1145 
117G. Voluntary Surrender of Assets in Local Jurisdiction to Domi- 
ciliary Administrator 1148 

1177. Liability of Representative in Domestic Jurisdiction for Acts 

done Abroad 1 150 

1178. Permitting Foreign Creditors to sue in the Lccal Jurisdiction. 1151 

1179. Principal and Ancillary Jurisdictions, how far Independent of 

One Another 1152 

1180. Responsibility where the same Person is Principal and An- 

cillary Representative 1154 

1181. Ancillary or Local Representative, how far Responsible for 

Assets 1155 

1182. Where different Executors are named in a Will for different 

Sovereign Jurisdictions 1156 

1183. Where the Principal Representative cannot procure Foreign 

Assets, Legatees or Distributees may pursue 1156 

CHAPTER VIII. 

OFFICIATING WITHOUT AN APPOINTMENT. 

§ 1184. Executor de son Tort at Common Law defined 1157 

1185. Various Circumstances under Avhich one may act without liav- 

ing been qualified 1153 

1180. Wrongful and Injurious Dealings with a Dead Person's Es- 
tate; Executor de son Tort 1159 

1187. Executorship de son Tort; Legal Consequences 1162 

1188. Effect of Wrongful and Injurious Dealings, aside from the 

Tiieory of Executorship dc son Tort 1164 

1189. Modern Statutes restrict the Liability of Intruder to Credi- 

tors and Strangers 1165 

1190. Liability of Intruder upon the Estate to tlie Rightful Execu- 

tor or Aduiinistrator 1106 

1191. Intermeddling witli Lands of tlic dccea9ed 1108 

1192. Linl)ility of f)np who Administers under Void Letters, etc.... 1109 

1193. I5«n<ficinl Doalings with a Dead Person's Estate l)y One not 

niipointcd lid!) 

1194. Acts done by a Rightful Executor l)pfore qualifying 1171 

1195. Acts done by a Rightful Administrator liefore qualifying... 1175 
1190. Whether n Suitable Ropresentjitive wiio has intermeddled can 

be compelled to take out Letters 117D 



TABLF. OF CONTENTS IN VOL. II. XI 

Page 
§ 1197. Intermeddling by a Third Person after the Grant of Letters 

Testamentary or Administration 1179 

1197a. Debtor's Payment to Sole Distributee, etc 1180 

1197b. Public Official Acting in Good Faith 1180 



PAET III. 

ASSETS AND THE INVENTOEY. 



CHAPTEE I. 

ASSETS OF AN ESTATE. 

1198. What comprise Assets of a Deceased Person's Estate; Personal 

contrasted with Real Assets 1181 

1199. Personal Property of the Decedent vests in the Executor or 

Administrator 1 182 

1200. Enumeration of Personal Assets; Choses in Action as well as 

Choses in Possession 1182 

1201. Enumeration of Personal Assets continued; Contingent and 

Executory Interests, etc 1 186 

1202. Enumeration of Personal Assets continued; Stock; Public and 

Corporation Securities; Life Insurance Policies 1186 

1203. Enumeration of Personal Assets continued; Personal Property 

taken or given in Security 1187 

1204. To constitute Personal Assets, the Title must have stood in 

the Decedent at his Death 1188 

1205. Personal Property of Another among the Goods of Deceased 

not Assets; Identification 1190 

1205a. Literary Property; Letters, etc 1191 

1206. Personal Property of the Decedent left in Another's Possession 

is Assets 1191 

1207. Personal Property constitutes Assets notwithstanding Ulti- 

mate Title of Legatees, Heirs, etc 1192 

1208. Debt due from Representative or Legatee, etc., to the Deced- 

ent constitutes Personal Assets 1192 

1209. Personal Assets coming to the Knowledge but not Possession 

of the Representative 1195 

1210. Personal Assets or not, where Decedent's Title was Qualified. 1196 

1211. Various Cases where Representative does not. hold strictly 

as Assets 1197 



Xii TABLE OF COXTEXTS IX" VOL. II. 



§ 1211a. Eqitable Title of Others to Technical Assets 1198 

1212. Real Estate descends to Heirs; not Assets except for Deficiency 1199 

1213. Executor or Administrator has no Inherent Authority as to 

Real Estate 1200 

1214. Real Estate of Mortgagor or Mortgagee; Rule of Assets.... 1202 

1215. Rule of Assets as to Lands set off in Execution 1204 

1216. Rents, Profits, and Income of Real Estate; Damages, etc.; 

Rule of Assets 1204 

1217. Legal Character of Property, Real or Personal, fixed at Own- 

er's Death; Rule of Equitable Conversion 1205 

1218. Character of Property at Owner's Death; Instances; Contract 

to sell; Land Damages; Fire-insurance Money, etc 1207 

1219. Gift Causa Mortis, etc., as affecting Question of Assets 1208 

1219a. Effect of Insolvency; Equitable Assets 1209 

1220. Assignment, Gift or Transfer by the Decedent, to be avoided 

if Fraudulent as against his Creditors 1209 

1221. Equitable Assets as distinguished from Legal Assets 1211 

1222. Assets where Property is appointed under a Power 1213 

1223. Chattels Real as Assets; Leases, etc 1214 

1224. Chattels which come by Remainder as Assets 1215 

1225. Things on the Border-line of Real and Personal; Rule of 

Assets applied to Heirlooms 1216 

1220. Rule of Assets applied to Emblements 1217 

1227. Rule of Assets applied to Fixtures 1218 

1227a. Rule of Assets applied to Severance of Land Products, etc... 1221 

1228. Rule as to Foreign Assets 1222 



CHAPTER II. 

INVENTORY OF THE ESTATE. 

§ 1229. Inventory required formerly in England; Custom Fallen into 

Disu.se 1223 

1230. Inventory required in American Practice; whether Indispensable 1224 

1231. Diupcnsing witli an Inventory after Lapse of Time 1227 

1232. Qualified Representative not exempt from rendering an In- 

ventory 1227 

12.3.3, 12.34. VVliat the Inventory should contain 1228, 1231 

1235. AflsctH and Invcntdry in Special Instances; Co-ownership, etc. 1232 

1236. EfTect of the Inventory; Power of the Local Probate Court to 

altfT, etc. ; Inventory as Evidence 1233 

1237. AdvantagcH of Returning an Inventory 1235 



TABLE OF CONTENTS IN VOL. II. XIH 



PAKT IV. 

GENERAL POWERS, DUTIES AND LIABILITIES OF EXECUTORS AND 
ADMINISTRATORS AS TO PERSONAL ASSETS. 

CHAPTER I. 

eepresentative's title akd authority in general. 

Page 

1238. Title to Personal Property devolves upon Representative by Re- 
lation from Decedent's Death; Liability, etc 1237 

1230. The Representative's Title and Authority during the Admin- 
istration excludes that of all Others in Interest 1238 

1240. Executor or Administrator has a right to dispose of Personal 

Assets 1239 

1241. 1241a. The same Subject; Executors and Administrators dis- 

tinguished in this Respect 1240, 1241 

1242. But Title, etc., of Executor or Administrator is by way of Trust 1241 

1243. Identity of Assets should be preserved apart from the Repre- 

sentative's Private Funds, so as to preserve the Title Intact. 1242 

1244. No Title is taken by Representative, to Property held by 

Decedent in Another's Right; Corporation, etc 1243 

1245. Representative does not succeed to Decedent's Trust, but should 

close the Accounts 1245 

1246. How one ceases to hold Assets as Representative, so as to hold 

in his Individual Character; Election, etc 1245 

1247. Devolution of Title where the Personal Representative is also 

Guardian of Decedent's Children, or Trustee under the Will. 1246 

1248. Devolution of Title where Executor is also Trustee 1248 

1248a~ Executor sometimes acts as Trustee 1249 

1249. Devolution of Title where Executor is also Legatee, or Dis- 

tributee, etc 1249 

1250. Executor should administer Estate undisposed of under the 

Will where there is a Partial Intestacy 1250 

1251. Right and Duty of discharging Contract Liabilities, etc., of 

Deceased 1251 

1252. Avoidance, etc., of Contracts by the Deceased Illegally made, 

etc 1251 

1253. Contracts Personal to the Deceased, etc., distinguished from 

those requiring Performance after his Death 1252 

1254. Personal Liability of the Representativ^e upon the Decedent's 

Debts or Contracts 1254 

1255. The same Subject; how such Liability is incurred; Statute of 

Frauds ; Sufficient Consideration, etc 1254 

1256. The Representative's own Creation of a Debt binds Himself and 

not the Estate 1255 

1256a. Representative cannot contract with Himself 1258 



2:iv TABLE OF COXTEXTS IX VOL. II. 

Page 
g 1257. Lien on the Assets is for Representative rather than for the 

Person dealing with him; Estate how far Answerable 1258 

1258. The same Subject; Negotiable Notes, etc., running from or to 

the Executor or Administrator; Other Instances 1259 

1259. Lien on the Assets, how far existing for the Representative's 

own Immunity 1261 

1260. This Rule of Lien applied in settling Account of a Representa- 

tive Deceased, Removed, etc 1262 

1261. Assets recovered by Representative on his own Contract enurei 

to the Estate 1263 

1262. The Estate should not derive Unconscientious Advantage, etc. . 1263 

1263. Whether Admissions, etc., by Representative bind the Estate. . 126-4 

1264. Representative's Power over Assets whether controlled by Pro- 

bate or Equity Courts r26'4 

1265. Interpleader, etc., for Instructions, etc., by the Personal Repre- 

sentative 1266 

1266. Representative not a Proper Party to Suits for annulling a 

Marriage 1266 

1266a. Trust Provision by Decedent in Anticipation of Death 1266 

1267. Vesting of Possession; Chattels Real, etc., as distinguished from 

Chattels Personal 1267 

1268. Whether the Representative may act by Attorney 1268 

126Sa. No Property in the Body of the Intestate 1268 

126Sb. Transactions barred by Lapse of Time 1269 

CHAPTER II. 

COLLECTION OF THE ASSETS 

1269. General Duty of Executor or Administrator to collect the 

EfTc-cts, etc 1270 

1270. Statute Methods for discovering Assets in Aid of the Represen- 

tative's Pursuit 1271 

1271. Special Statute Proceeding.^ against Intermeddle: s with the As- 

sets, etc 1273 

1272. Power of Executor or Administrator to cntor Promises, force 

Ix>rks, etc., in Pursuit of Assets 1273 

1273. Duty to pursue or collect depends upon Mean.s at Representa- 

tive's Di.sposal 1276 

1274. Duty to purHue or collect depends also upon Operate or Desper- 

ate Character of the Claims 1277 

127.'>. Duty to piirHuo or collect depends also upon Representative's 

Means* of Knowhxlgc 1278 

1276. Iy«K'''t''<H, ( rtditor.s, etc., have no Right to hold against Rep- 

resentjitivo 1278 

1277. Suinj^ to recover As-'-ots; Action.H founded in Contract, Duty, 

etc., survive . 1279 



TABLE OF CONTENTS IN VOL. II. XV 

Page 

1278. Survival of Actions founded in Contract; Exceptions to Rule. . 1280 

1279, 1280. Actions founded in an Injury to Person or Property died 

with the Person at Common Law; Later Variations of this 

Rule 1280, 1282 

1281. The Same Subject; Replevin, Detinue, etc., by the Representa- 

tive 1285 

1282. The same Subject; Modern Statutes affecting the Rule 1285 

1283. The same Subject; Action for Damages in causing Death.... 1287 
12S4. The same Subject; Actions founded on Wrongs done to Real 

Estate, etc 1289 

1285. Actions upon Covenants Real, etc.; Whether Representative 

may sue 1290 

1286. The sarne Subject; Breach of Covenant in Deed or Lease 1292 

1287. Action for disturbing Possession: Pew, Lease, etc 1293 

1288. In General, Personal Representative sues for Assets of the 

Estate 1293 

1289. Suits, whether to be brought by Representative in his own 

Name or as Representative 1294 

1290. The same Subject; Greneral Principle as to suing in Represen- 

tative's Individual or Official Name 1295 

1291. This Principle applied in suing for Torts affecting the Property 1295 

1292. Suits on Contracts made with the Representative 1297 

1293. Suit by Representative on Promissory Note or Other Negotiable 

Instrument •■ 1298 

1294. General Conclusion as to Suing upon Contracts in the Indi- 

vidual or Representative Character 1299 

1295. Prosecution of Suits in Equity by the Personal Representative 1300 

1296. Proceedings to obtain Possession of Specific Negotiable Instru- 

ments, etc., belonging to the Estate 1301 

1297. Pursuit of Assets where Decedent fraudulently transferred.. 1302 

1298. Representative's Power to Compromise or Arbitrate 1303 

1299. Effect of Contract or Covenant to the Decedent, which did not 

name his Executors, Administrators, etc 1303 

1300. The same Subject; Effect where the Expression "Assigns," 

" Next of Kin," " Heirs," etc., is used 1304 

1301. Right of Representative to distrain or sue for Rent in Arrears. 1305 

1302. Rights of Personal Representative upon Conditions made with 

the Deceased 1306 

1303. Right accruing to Personal Representative by Chattel Re- 

mainder, etc 1306 

1304. Right accruing to Personal Representative in his Time and 

after the Decedent's Death 1306 

1305. Rights of Personal Representative as to Pledge, Collateral Se- 

curity, etc 1307 

1306. Collection of Debts with Security; changing or renewing the 

Security 1309 



Xvi TABLE OF COA^TEXTS IN" VOL. II. 

Page 
§ 1307. Gathering the Crop or Emblements 1309 

1308. Want of Diligence or Good Faith in collecting Assets 1310 

1309. Collection of Interest-bearing Debts; Usury, etc 1311 

1310. WTiat may be taken in Payment; Private Arrangements with 

Debtor, etc 1311 

1311. Liability where Property is taken or Money collected by Mis- 

take as Assets 1313 

1311a. Effect of Payment, etc 1313 

CHAPTER in. 

CABE, CUSTODY, AND MANAGEMENT OF THE ASSETS. 

1312. Care, Custody, and Management of Assets an Important Func- 

tion 1314 

1313. Executor or Administrator how far regarded as a Bailee in 

Respect of Responsibility; Honesty, etc 1314 

1314. As to Care and Custody; Responsibility of Executor or Admin- 

istrator like that of the Bailee 1315 

1315. The same Subject; \^Tiether this responsibility is that of a 

Gratuitous Bailee or a Bailee with Recompense 1316 

1315a. Policy of Courts to Sustain Acts done in Good Faith, etc 1318 

1316. Liability of Personal Representative in the General Manage- 

ment of Estate 1318 

1317. Management of the Estate; Collection of Income, etc.; Respon- 

sibility of the Representative 1319 

1317a. As between Investing Cash or Using it for Payments, Deposits, 

etc 1320 

1318. Paying Assessments, Discharging Liens, etc., upon Personal 

Assets 1322 

1319. Personal Representative's Vote upon Stock 1323 

1320. Putting Assets into a Salable Conilition, etc.; Repairing, etc. . 1323 

1321. Responsibility of Personal Representative for Acts of his own 

Agent, Attorney, etc 1323 

1322. Duty as to investing Assets or placing the Funds on Interest. 1325 

1323. 1324. Investments, how to be matle, etc.; Rule of Liabil- 

ity 1327, 1328 

1325. Liability for placing or leaving Assets in Trade, Speculation, 

etc 1331 

1325a. Closing otit Decedent's Business or Speculations 1332 

132G, 1320a, 132Cb. Carrj-ing on a Trade with Assets; Liability, 

etc 1333, 1330, 1337 

1327. Sale, Investment, etc., of Perishable Assets; Cattle, etc 1337 

132a. Rule as to calling in Money alre<ady out on Loan or Investment 1338 

1329. Rule as to making l^nauthorizrd Loans or Investments 1339 

1330. Representative's Acts are for Benefit of those interested in 

Estate ; Good Faith, etc., required 1340 



TABLE OF CONTENTS IN VOL. II. XVll 

Page 
§ 1331. Assets should be kept distinct from Representative's Own 

Property 1341 

1332. Liability qualified where Acts are performed under Advice and 

Assent of the Parties in Interest 1342 

1333. Liability qualified where Acts are performed under Direction 

of the Court 1343 

1334. Rule where Control is taken by Court out of Representative's 

Haiuls 1344 

1335. Directors of a Will as to Investment, etc., may be reasonably 

followed; Specific Legacy, etc 1344 

133^ Summary of Doctrine as to Management and In\-estment; Devi- 
ations, when permitted 1346 

1337. Management, Investment, etc., by Executor or Administrator 

similar to that by Guardian, Trustee, etc 1347 

1338. Election to charge Representative or to accept the Investment. 1348 



CHAPTER IV. 

THE REPRESEIsTTATIVE'S POWER TO SELL, TEAJXSFEB, AND PURCHASE. 

1339. Representative's Power to dispose of Assets 1349 

1340. Sale or Transfer can only be made while the Representative 

holds office 1350 

1341. Whether Assets should be sold at Public or Private Sa,le 1350 

1341a. Employment of an Agent to Sell, etc 1351 

1342. Sale of Goods bequeathed for Life with Remainder over 1351 

1343. Power of Representative to dispose of Chattels specifically be- 

queathed. 1351 

1344. Sales of Perishable Assets, etc 1352 

1345. Representative's Sale of his Decedent's Business 1352 

1346. Sales and Transfers of Personal Assets under Probate Direction 1353 

1347. Authority to sell or transfei- or buy as afi'ected by Expressions 

in the Will 1356 

1348. Consulting Parti<s in Interest, as to the Time, Manner, etc., of 

sale 1357 

1349. Representative may pledge or mortgage Assets instead of sell- 



ing 



1358 



1350. Bona Fide Purchaser, Pledgee, etc., not bound to see to Applica- 

tion of what he pays or advances 1358 

1351. Letters Testamentary or of Administration are Credentials of 

Authority to transfer, etc 13G0 

1352. Good Faith and Caution requisite from Purchaser, Pledgee, 

etc., in dealing with Personal Representative 1360 

1353. Disposal of Chattels Real; assigning and underletting Leases. 1361 

1354. Restraints upon the Power to dispose of Assets as concerns the 

Representative himself 1364 



SVlll TABLE OF C0:N'TEXTS IN VOL. II. 

Page 
§ 1355. Representative's Liability for Negligence, Fraud, etc., in the 

sale of Assets 1365 

1356. The same Subject; Obtaining PajTuent or taking Security for 

the Purchase-money 1366 

1357. Collusive or Fraudulent Disposition of Assets by the Represen- 

tative 1367 

1358. 135Sa. Purchase by a Representative at his own Sale, etc. 136S, 1370 

1359. Re-opening the Representative's Voidable Transfer, etc; Re- 

lief as against Third Parties 1371 

1360. Personal Representative cannot avoid his own Voidable Trans- 

fer, etc 1372 

1361. Whether the Representative warrants Title when he sells.... 1373 

1362. Sales of Negotiable Instruments by the Representative 1375 

1363. 1363a. Representative's Authority to purchase 1377 

1364. No Authority to give away Assets 1378 

CHAPTER V. 

LIABILITY OF AN EXECUTOR OK ADMIXISTBATOB. 

§ 1365. Liability in Respect of Acts of Deceased or his Own Acts. .. . 1379 

1366. Liability in Respect of Acts of Deceased; Survival of Actions 

against the Decedent founded in Contract 1379 

1366a. The Same Subject; Sales and Bargains of the Decedent 1380 

1367. The Same Subject; Exception as to Personal Contracts of the 

Deceased 1381 

1368. The Same Subject; Distinction between Gifts and Contracts.. 1383 

1369. The Same Subject; Form of Action sometimes Material in this 

connection ; Law or Equity 1384 

1370. Survival of Actions against Deceased founded in Tort, not 

permitted at Common Law 1385 

1371. The Same Subject; whether Replevin can be maintained 

against the Representative 1386 

1372. The Same Subject; whether other Remedies might be applied 

because of the Tort 1387 

1373. Mo<lern Statutes enlarge the Survival of Actions against De- 

ce<Ient 1388 

1374. Survival of Actions for Rent or Damage to Real Estate 1389 

1375. Liability of Representative on Covenants of his Decedent; 

Covenants under Lease, etc 1390 

1376. Liability of the Personal Representative for Rent 1392 

1377. Ljal)ility of Representative on Covenants coi>cerning Real Es- 

tate, etc 1394 

1378. Liability of Representative on Joint or Several, etc, Contracts 

of Doccdent 1395 

1379. Liability of Representative of Deceased Partner 1390 

J380. Liability of Representative of Deceased Stockholder 1397 



TABLE OF COiS^TENTS IN VOL. II. XIX 

Page 

1381. Exoneration of Personal Property specifically bequeathed.... 13U8 

1382. Liability of Personal Representative in Respect of his Own 

Acts; Negligence or Bad Faith, Torts, etc 1399 

1383. Common-law Doctrine as to Devastavit or Waste 1400 

1384. The Essential Principle of Devastavit is of General Applica- 

tion 1401 

1385. Representative not to be sued in such Capacity for his own 

Wrongful Act; Qualifications of the Rule 1402 

1386. Instances of Devastavit considered; Effect of an Arbitration or 

Compromise of Demands 1403 

1387. Compromise or Arbitration of Claims; Modern Statutes 1404 

1388. Release of Debt, Renewals, etc., by the Executor or Adminis- 

trator 1407 

1389. Disregarding the Bar of Limitations; General and Special 

Statutes of Limitations 1408 

1390. 1390a, b. General and Special Statutes of Limitations; the 

Subject continued 1410, 1413, 1414 

1391. Opportunity to ascertain whether tlie Estate is Insolvent. . . . 1415 

1392. Instances of Devastavit continued; disregarding the Statute 

of Frauds 1415 

1393. Devastavit when excused by Concurrence, Acquiescence, etc., 

of those injured thereby 1416 

1394. Complicity of Third Persons in the Devastavit renders them 

liable 1416 

1395. Liability of Executor or Administrator on his own Contracts 1416 

1396. 1396a. Representative how sued upon his Express Promise, Col- 

lateral Undertaking, etc 1418, 1419 

1397. Representative liable as an Individual, where Cause of Action 

wholly accrued after his Decedent's Death, on Transactions 

with Him, etc 1419 

1398. Exceptional instance of suing for Funeral Expenses, etc 1421 

1398a. Liability of Executor or Administrator on Negotiable Instru- 
ments 1422 

1398b. Action against Executor or Administrator for Waste 1423 

1398c. Liability in Trover for Conversion, etc 1423 

CHAPTER VI. 

CO-ADMIT^ISTRATION AND QUALIFIED ADMINISTRATION. 

1399. Doctrines of foregoing Chapters apply to Qualified Trusts... 1424 

1400. 1401. Rights, Duties, and Liabilities of Co-executors; their 

Title and Authority 1424, 1427 

1402. 1402a. Co-executors; their Liability, etc 1429, 1434 

1403. Co-executors ; Actions by and against , . . . . 1436 

1404. Rights, Duties, and Liabilities of Co-Administrators 1438 

1405. Sunrvivorship among Co-executors or Co- Administrators. .. . 1439 



XX - TABLE or CO:^TENTS IN VOL. II. 

Page 
§ 1406. Liability of Co-Executors and Co-Administrators on Bonds; 

Joint or Several Bonds 1441 

1407. Eights, Duties, and Liabilities of Administrator with the 

Will annexed 1442 

1408, 1409, 140'Ja. Rights, Duties, and Liabilities of Administrator 

de Bonis non 1444, 1448, 1451 

1410. The same Subject; Relation of Administrator de Bonis non 

to his Predecessor's Contracts, etc 1452 

1411. Suit on Negotiable Instrument as concerns Administration de 

Bonis non 1455 

1412. Administrator de Bonis non bound to observe Good Faith and 

Prudence, like Other Administrators 1457 

1413. Administrator de Bonis non with Will annexed 1457 

1414. Rights, Duties, and Liabilities of Temporary and Special Ad- 

ministrators, etc 1458 

1415. Validity of Qualified Representative's Acts does not depend 

upon his Own Designation of the Office 1459 

1416. Negligence, etc., by Various Representatives in Succession.. 1460 



PART V. 

PAYMENTS AND DISTKIBUTION. 

CHAPTER I. 
DEBTS AND CLAIMS UPON THE ESTATE. 

§ 1417. Executor or Administrator is bound to pay Debts. Claims, etc. 1461 
1418, 1419. Notice of Appointment; Presentation of Claims: Stat- 
utes of Special Limitations 1462, 1465 

1420,1420a. Presentation of Claims; Statute Methods considered 1468, 1471 

1421. Funeral Charges and their Priority 1471 

1422. Funeral Charges; Place of Final Interment, Gravestone-, etc. 1476 

1423. Other Preferred Claims; Administration Charges; Debts of 

I^st Sickness 1481 

1424. These Preferred Claims rank together; Settlement in Full or 

Ratably 1482 

1425. General Payment of Debts; Rule of Priority 1483 

1426. 1427. Rules of Priority; English Classes enumoratod.. 1483, 1486 

1428. Rules of Priority; American Classes enumerated 1487 

1429. Claims grounded in a Tort; Damages, etc.; Contingent Claims; 

How ranked 1492 

1430. Mortgage Debts; Rights of Creditors having Security 1493 



TABLE OF CONTENTS IN VOL. II. Xxi 

Pa-e 

1431. Invalid or Exorbitant Claims; Voluntary Transactions 14'JG 

1432. Claims of Persons disappointed of a Legacy; Family Claims, 

etc 1497 

1433. Decree or Order for Payment 1498 

1434. Commissioners or Auditors to examine Claims 1499 

1435. Exhaustion of Assets in paying Superior Claims; Preferences 

to be observed; Representation of Insolvency 1500 

1436. Notice of Debts as aifccting their Payment with due Prefer- 

ences; English Rule 1501 

1437. The Same Subject; English Rule as to Equal Creditors; Credi- 

tor's Bill, etc 1502 

1438. The Same Subject; American Rule 1504 

1439. 1439a. Debt due the Representative from the Estate; Right to 

retain, etc 1506, 1509 

1440. Interest on Claims presented 1509 

1441. Mode of paying off Claims; Extinguishment, etc 1510 

1442. Personal Liability of Representative for Debts 1511 

1443. Payment, or Advancement, out of Representative's own Funds 1511 

1444. Recovery of Over-Payment from Creditor 151 1 

1445. When Heirs or Next to Kin, etc., are liable for Debts of the 

Deceased 1512 

1445a. Debt of Legatee, etc., to the Estate. 1513 

1446. Payment of Debts and Claims where the Estate proves Insol- 

vent 1513 

1446a. New Assets for Payment of Debts 1515 

1446b. Buying up Claims, etc 1515 

1446c. General Conclusion as to Debts and Claims 1515 

CHAPTER II. 

SPECIAL ALLOWANCES TO SUEVIVING SPOUSE AND MINOK CHILDREN. 

1447. Wife's Paraphernalia, Separate Property, etc., do not enter 

into Administration of Husband's Estate 1516 

1448. Widow's Allowance under Modern Statutes 1516 

1449. Widow's Allowance; whether confined to Cases of Distress... 1518 

1450. Maintenance for a Particular Period sometimes specified.... 1519 

1451. Precedence of Widow's Allowance over other Claims; whether 

independent of Distribution, etc.; Effect of Decedent's Insol- 
vency 1519 

1452. Decree of Allowance, etc., how enforced 1521 

1453. Widow's Allowance, how barred 1522 

1454. Widow's Allowance; Effect of her Death or Remarriage, etc., 

before a Grant 1523 

1455. Allowance to Minor Children 1524 

1456. Specific Articles of Personalty allowed Widow and Children; 

Exempt Chattels, etc 1525 



Xxii TABLE OF COXTENTIj liN" VOL. II. 

Pago 

§ 1457. Use of Dwelling House; Widow's Quarantine 1527 

1457a. Widow's Election to take against her Husband's Will 1528 

1457b. Surviving Husband's Election against his Wife's Will 1529 

1457c. The Marriage Relation in Settlement of Estates 1530 

CHAPTER III. 

LEGACIES, THEIE NATtJKE AJsD IXCIDEXTS. 

§ 1458. This Subject a Branch of the Law of Wills 1531 

1459. L^acy defined; Executor under a Will should pay or deliver; 

Legacy to Satisfy Debt 153 1 

1459a. When Testamentary Gift Vests 1532 

1460. Description of the Legatee, and who may be such 1532 

1461. Subject-matter of Legacies; Specific distinguished from Gen- 

eral Legacies 1533 

1461a. Demonstrative Legacies 1536 

1462. Whether a Residuary Bequest can be deemed Specific 1537 

1462a. What Property is bestowed in Jjegacies 1537 

1463. Bequests for Illegal and Immoral Purposes void; Supersti- 

tious Uses, etc 1538 

1464. Bequest to Charitable Uses; Statute of 43 Eliz., c. 4 1538 

1465. Bequest void for Uncertainty; or where Principal or Income 

is locked up too long 1540 

1466. Legacies Absolute or Conditional, Vested or Contingent 1542 

1467. Lapsed Legacies ; General Rule 1542 

1468. Cumulative Legacies; Repetition or Substitution of Legacies. 1545 
146i). Satisfaction of Debts by Legacies 1545 

1470. Release of Debts by Legacies 1546 

1471. Ademption of Legacies 1548 

1471a. Lapsed and Void Legacies, etc., fall into the Residue 1548 

1472. Trustees under a Will; Equity and Probate Jurisdiction; 

Duties of a Trustee; Equity; Probate Procedure 1549 

1473. Construction of Wills and Legacies; Bill of Interpleader to re- 

move Doubts, etc 1550 

1474. Construction of Wills, Legacies, etc 1552 

1475. Doubtful Points settled by the Agreement of all Parties in In- 

ti-rost 1553 

1475a. Testamentary Laj)8<', etc 1553 



CHAPTER IV. 

PAYMENT AND SATISFACTION OF LEGACIES. 

1470. Payment, etc., of Ivogacies by the Executor; All Valid Legal 

Claims take Precedence ; 1554 

1477. Executor's Bond of Indeuinity from Legatees 1555 



TABLE OF CONTEXTS IN VOL. II. XXlll 

Page 
§ 1478. Legacies are usually Payable within a year from Testator's 

Death 155S 

1479. When the Legatee's Right vests; Rule as to Annuitants, Bene- 

ficiaries for Life, etc 1558 

1480. Interest and Produce of Specific Legacies, etc 1559 

1481. Interest on General Legacies 15C0 

1482. Interest on Legacies to Children, Widow, etc.; and other Spe- 

cial Instances 1502 

1483. To whom Legacies should be paid; Deceased Legatees; Infants, 

Insane Persons, etc 1563 

1484. To wiiom Legacies sliould be paid; Absentees, Persons not 

known, etc 1564 

1485. To whom Legacies should be paid; Testamentary Trustees, etc. 1565 

1486. Delivery of Specific Legacies; Legatee's Right to select 1560 

1487. Method of paying General Legacies; Money, etc 1567 

1488. Assent of the Executor to a Legacy 156S 

1489. Legatee's Assent to the Legacy; Election 1571 

1489a. Election by the Beneficiary 1572 

1490. Abatement of Legacies in Case of Deficient Assets 1573 

1490a. Personalty the Primary Fund for Payment of Legacies; Excep- 
tions 1575 

1491. The Refunding of Legacies after their Payment 1577 

1491a. Change from Representative to other Capacity 1578 

CHAPTER V. 

PAYMENT AND DISTRIBUTION OF THE RESIDUE. 

§ 1492. Residue of Personal Estate goes according to Testacy or In- 
testacy of Deceased 1579 

1493. I. As to the Residue in Case of Testacy 1579 

1494. Right of the Executor where there is no Residuary Legatee 

named 1580 

1494a. Distribution of Property not effectually Devised or Be- 
queathed 1581 

1495. II. As to the Residue in Case of Intestacy; Statutes of Dis- 

tribution 1581 

1490. Surviving Husband's Right to the Residue of his Deceased 

Wife's Personalty 15S3 

1497. Surviving Wife's Rights in the Distribution of lier Deceased 

Husband's Personalty 1584 

1498. Rights of Children and Lineal Descendants in Distribution. . .. 1585 

1499. 1500. Advancements to Children; How reckoned in Distribu- 

tion 1586, 1587 

1501. 1502. General Distribution among the Next of Kin 1590, 1592 

1502a. Distribution by Mutual Consent 1592 



Xxiv TABLE OF CONTEXTS IN VOL. II. 

Page 
§ 1503. Distribution where there is no Known Husband, Widow or 

Next of Kin 1593 

1504. Time and Method of Distribution 1593 

1504a, 1504b. The same Subject; Decree of Distribution 1595, 1596 

1505. Distribution where Real Estate has been sold to pay Debts. . . . 1596 

1506. Whether Distribution may be of Specific Chattels not reduced 

to Cash 1597 

1507. Death of Distributee pending Distribution 1598 

1508. Distribution; Refunding Bond, Contribution, etc 1599 

1508a, Suit against Executor or Administrator for Neglect to Dis- 
tribute, etc 1600 

150Sb. Inheritance Taxes 1601 

1508c. Assignment by Legatee or Distributee 1601 



PART VI. 

QENEEAL POWEES, DUTIES, AND LIABILITIES OF EXECUTOKS AND 
ADMINISTKATOES AS TO KEAL ESTATE. 

CHAPTER I. 

BEPBESENTATIYE'S TITUE and ArTIIORITY IX GENERAL. 

§ 1509, 1509a. No Inherent Authority or Title as to Decedent's Real 

Estate 1602, 1605 

1510. Rule where Representative collects Rents, manages, etc^ 1605 

1511. Sale of Real Estate to pay Debts, Legacies, etc 1607 

1512. Exoneration of Real Estate by the Personal; Marshalling As- 

sets, etc 1609 

1512a. Dealing with Mortgages on Real Estate 1610 

1512b. Cliarges and Allowances with reference to Real Estate; Reim- 
bursement, etc 1611 

CTIAPTER II. 

STATUTE SALES OB .MORTGAGES UNDER JUDICIAL LICENSE. 

§ 1513. Modern Legislation permitting Sales under a Judicial License. 1612 
1614. License rc-'^trioted to such Land as may be needful; Rights of 

Heirs and Devisees respected; Qualifications of Rule, etc... 1613 
1515. Legislative Provisions as to Sale; Essentials of a Purchaser's 

Title 1615 

1615a, The same Subject; Principal and Ancillary Juri.sdictiona 1617 

1510. Juilicial License to Mortg.ige Real Estate for C-ertain Purposes 1617 

1517. Levy of Execution obtjiino<l again.st the Representative I61S 

1517a. Discretion to Sell under Will 1618 



TABLE OF CONTENTS IN VOL. U. XXV 

PAKT VII. 

ACCOUNTING AND ALLOWANCES. 

CHAPTER I. 

ACCOTTNTS OP EXECUTORS AND AD1IINISTRA.TOBS. 

Page 

§ 1518. Obligation to keep Accounts; Equitable Jurisdiction in England 1019 

1519. The same Subject; Creditors' Bills, etc.; English Practice.... 1620 

1520. The same Subject; Creditors' Bills, etc., in American Practice. 1622 

1521. Ecclesiastical and Probate Jurisdiction of Accounts in England 1625 

1522. Probate Jurisdiction of Accounts in the United States 1628 

1523. Citation of Parties interested in the Account, in American Pro- 

bate Practice; their Assent to its Allowance 1631 

1524. The Form of Administration Account 1633 

1525. Authentication and Proof of Account in American Probate 

Practice 1633 

1526. Periodical Returns; Partial Accounts and the Final Account. .. 1637 

1527. Settlement upon a Final Accounting; Distribution, etc 1642 

1528. Conclusiveness of the Final Settlement in the Probate Court. . 1644 

1529. Perpetuating Evidence of Distribution and Procuring a Final 

Discharge; Effect, etc 1640 

1529a. Discharge of Executor or Administrator 1647 

1530. Appellate Jurisdiction as to Probate Accounting 1648 

1530a. Equity Refusal to Intervene 1649 

1531. Rendering Accounts in Caae of Death, Resignation, Removal, 

etc., of Representative 1650 

1531a. Tiie same Subject; Revocation of Letters 1651 

1532. Accounts by Co-Executora or Co-Administrators, Temporary 

Administrators, etc 1651 

1533. Ejfect of Lapse of Time, etc, upon Accounts 1652 

1534. No Account required from Residuary Legatee giving Bond to 

pay Debts, etc 1654- 

1534a. Private Accounting and Settlement 1654 

CHAPTER II. 

CHAEGES AND ALLOWANCES LTPON ACCOUNTS. 

§ 1535. What is to be charged to the Representative, and what allowed 

Him 1656 

1536. Representative should charge himself with Inventory Valua- 

tion as a Basis; Corrections of Value, etc 1655 

1537. Amounts to be added; Representative charged with Personal 



XXvi TABLE OF CO]S^TEXTS IN VOL. n. 

Page 
Assets not inventoried; Profits, Income, Premiums, Interest, 

etc 1656 

§ 1538. Charging the Representative with Interest 165S 

1539. Charges on Account as Concerns Real Estate or its Proceeds 

or Profits 1661 

1540. Charges on Account; Miscellaneous Points 1662 

1541. Allowances to the Representative; Disbursements, Losses, etc. 1663 

1542. Allowances to the Representative; Subject continued; his Rea- 

sonable Expenses, etc 1665 

1542a. The same Subject; Hired Services and Expense, Representa- 
tive's own Debt, etc 1668 

1543. Expenses of Education, Maintenance, Advancements, etc 1670 

1544. Allowance of Counsel Fees, Costs, etc 1671 

1545. Compensation of Executors and Administrators 1675 

1546. General Matters as to Charges and Allowances; Bequest in 

Lieu, etc 16S0 

1547. Accounts and Allowances, as to Foreign Assets 1682 



APPENDIX: Remedies by attd against Executors and Administbatoes . 1683 

Table of Consanguinity 1680 

Index 1687 



TABLE OF CASES. 

Ske Also Table of Cases in Vol. 1. 



(References are to sections. Many cases are cited In this volume without the name.) 



A. 

Abbay v. Hill 

Abbott V. Abbott 

V. Miller 

V. Parfitt 

V. Tenney 

Abel V. Love 

Abernathie v. Rich 

Abel V. Chandler 1262, 

Abrahanas, Re 

Acey V. Simpson 

Ackerley v. Oldham 

Ackerman v. Ackerman . . . 

V. Emott 

Acklin's Estate 

Adair v. Brimmer. . 1208, 1402, 

Adams v. Adams^. .1167, 1230, 

1395, 1451, 1454, 1500, 

V. Field 1074, 

V. Cleaves 

V. Page 

V. Williams 

Adams, Re 

Adamson, Goods of 

Addams v. Ferick 

Adee v. Campbell 

Aiken v. Bridgman 

V. Dunlap 

Ainslie v. Radcliff 

Aird, Goods of 

Airhart v. Murphy 1032, 

Aitkin v. Ford 

Ake's Appeal 

Alabama R. v. Hill 1110, 



Sec. 






Sec. 




Albright v. Bangs 




1128 


1418 


V. Cobb 




1119 


1139 


Aldering v. Allison 




1400 


1170 


Aldrich v. Aldrich 




1082 


1292 


Aldrich, Appellant 




1160 


1220 


Aldridge v. McClelland . . 




1155 


1118 


Alexander v. Barfield. . . . 




1120 


1409a 


V. Fisher 




150S 


1361 


V. Herring 1307, 


1325, 


1333 


1445a 


V. Kelso 


.1186, 


1387 


1490 


V. Raney 


. 1409, 


1410 


1196 


v. Stewart 1128, 


1408, 


1412 


1182 


Alfriend v. Daniel 





1193 


1329 


Alger V. Colwell 




1138 


1515 


Allaire v. Allaire 




loss 


1541 


Allen V. Anderson 




1277 


1233 


V. Dundas 




1160 


1520 


V. Edwards 




1470 


1075 


V. Graffins 


. 1256, 


1258 


1407 


V. Hubbard 




1537 


1083 


V. Hunt 




1530a 


1282 


V. Hurst 




1189 


1402 


v. Kellam 




1515 


1037 


V. Kimbal 




1186 


1381 


V. McPherson 




1085 


1502 


V. Maer 




1390 


1403 


V. Ruddell 




1516 


1438 


V. Simons 




1120 


1428 


V. Shriver 




1541 


1040 


Alliott v. Smith 




126Sa 


1106 


Allison V. Allison 




1070 


1115 


v. Davidson 




1428 


1527 


Allsup V. Allsup 




1173 


1160a 


Allwood V. Heywood .... 




1223 


(XX 


vii) 







XXVI 11 



TABLE OF CASES IX VOL. II. 



See also Table of Cases in Volume I. 



Alsop V. Mather 132.-) 

Alston's Goods 1002 

Alston V. Alston 1403 

V. Cohen 1239 

V. Munford 1247 

Altemus's Case 1098, 1104 

Alter T. O'Brien 1430 

Alton V. Midland E 12S0, 1300 

Alvord V. Marsh 1195, 1310 

American Board's Appeal. 1408, 1409 
American Surety Co. v. Gaskili. . 1414 

Ames V. Armstrong 1402 

V. Downing 1236 

V. Holdcsbaum 1510 

V. Jackson 1419 

Anderson v. Anderson. .. 1160, 1530 

120S 

V. Arnold 1279 

V. Earle 1402 

V. Fox 1358 

V. Louisville, R 1024 

V. Miller 1412 

V. Piercy 1272, 1308 

V. Potter 1111 

V. Quallcy 1120a, 1160b 

Andrew v. Hinderraan 1297 

Andrews v. Brumfield 1506 

V. Carr 1154 

V. Hartford R 1391 

V. Iluckabee 1390 

V. Ilunncman 14S8 

V. Piatt 1256 

V. Spurliawk 1347, 1350 

V. Stockdalc 14(15 

V. Tucker . . ..1154, 1234, 1273 

Androvin v. Poilhlanc 1037 

AnporsU'in v. Martin 1479 

Anriin v. Vandorcn 1265 

Ansley v. Baker 1184, 1190 

Appcr«on V. Bolton. 1027, 1173, 1179 

-Aplilcgato V. Cameron 12.36 

Ajiple's Ketatc 1016 

Apreecc v. Ai)ro««ce 1161, 1490 

Arelideacon v. Gas Co 1238 

Archer, Re 1326, 1546 

ArcBon v. Arcson 1474 



Sec. 

Armentrout v. Amentrout . . . . 1481 

Armstrong v. Baker 1067 

V. Boyd 1544 

V. Burnet 1381 

V. Stovall 1262 

Armstrong's Estate 1538 

Arnold v. Arnold. . 1024, 1170, 1482 

V. Babbitt 1146 

V. Downing 1433 

V. Mower 1530 

V. Sabin 1112, 1115, 1270 

V. Smith 1527 

V. Spates 1527 

Arrington v. Hair 141 1 

V. McLemore 1053 

Arthur v. Carrie 1341 

Asliburn v. Ashburn 1264 

Asliburnham V. Thompson 1538 

Ashby V. Ashby 1395 

Ashley v. Pocock 1426, 1437 

Ashmore, Goods of 1077 

Ashurst V. Ashurst 1430 

Aspden v. Nixon 1174, 1180 

Aspinwall v. Queen's Proctor.. 1023 

1172 

Aston, Goods of 1125 

Aston's Estate 1213 

Astor V. Hoyt 1200, 1218 

Astor, Goods of... 1057, 1061, 1087 

Atcheson v. Robertson 1402 

Atherton v. Hughes ....1128, 1529a 

Atkins V. Kinnan 1366, 142? 

V. Tretlgold 1389 

Atkinson v. Barnard 1124 

V.Christian 1141 

V. Grey 1427 

V. May 1544 

-Vikinson v. Henry 1217 

Atteiiborough v. Solomon 1400 

Atterl)ury v. Gill 1373 

A<t<nill v. Dole 1522 

.\ttornoy General v. Bouwcns.. 1024 

1117, 1175 

v. Dimond 1175 

v. Hooker 1494 

V. Jesus College 1473 



TABLE OF CASES IN VOL. II. 



XXIX 



See also Table of Cases in Volume I. 



Sec. 

Attorney General v. Koliler.... 1117 

V. Partington 1130 

V. Robins .1490 

Atwell V. Helm 1137 

Atwood's Estate 1100 

Aubuchon v. Lory 1509 

Aurand v. Wilt 1063 

Austin V. Austin 1141, 1161 

V. Lamar 1526, 1528 

V. Munro 1256, 1257, 1397 

1598, App. 

Ake's Appeal 1527 

Avey V. Stearman 1430, 1545 

Ayling, Goods of 1066 

Ayres v. Clinefelter 1046 

V. Weed 1032, 1046 

B. 

Babbitt v. Brown 1120 

Babcock v. Booth 1195 

V. Lillis 1428, 1433 

Bacon v. Bacon 1321 

V. Clark . . ..1324, 1329, 1335 

V. HoAvard 1334 

V. Parker 1193 

V. Pomeroy 1418 

V. Thorp 1258, 1390 

Badenach, Goods of 1046 

Baglieri's Estate 1020 

Bailey, Goods of 1040, 1126 

Bailey v. Bailey 1059, 1465 

V. Blanchard 1525 

V. Ekins 1429 

V. Gould 1314 

V. Hammond 1484 

V. Merchant's Ins. Co 1256 

1534a 

V. Miller 1187 

V. Ormsby 1277 

V. Scott 1155 

V. Spoflford 1401 

Bain v. Matteson 1407 

V. Saddler 1221 

Bainbridge's Appeal 142? 

Bainos v. McGee 1354 

Baird's Case 1380 



Sec. 

Baker v. Baker 1448, 1451 

V. Blood 1013 

V. Brown 1391 

V. Crandall 1283 

V. Fuller 1392 

V. Moor 1397 

V. Rust 1433 

Blach V. Hooper 1408 

V. Symes 1053 

Baldwin v. Buford 1127, 1153 

V. Carter 1496 

V. Dougherty 1417 

V. Hatchett 1306 

V. Standish 1141 

Baldwin's Appeal ..1179, 1180, 1181 

Baldwin's Estate 1211 

Balfe V. Tilton 1525 

Balme's Goods 1061 

Bancroft v. Andrews 1128 

Bane v. Wick 1454 

Bank of Ireland v. McCarthy. 1490 

Bank v. Dudley 1353, 1509 

V. Gibbs 1428 

Bank of Port Gibson v. Baugh 1402 

Bank of iroj' v. Topping 1258 

Banker's Surety Co. v. Meyer . . 1446c 

Bankhead v. Hubbard 1137 

Banking Co. v. Morehead 1258 

Banks v. Lester 1489 

V. Sladen 1487 

Banta v. Moore 1165, 1173 

Bantz V. Bantz 1526 

Barasien v. Odum 1184, 1190 

Barber v. Bush 1106 

V. Converse 1112 

Barbour v. Robertson 1146 

Barboza v. Cement Co 1161b 

Barca,low, Matter of 1522 

Barcalow, Re 1545 

Barclay v. Cooper 1512a 

Barclay's Estate 1422 

Bard v. Wood 1522 

Barden, Goods of 1059, 1060 

Bards v. Lamb 1414 

Barfield v. King 1391 

Barker, Ex parte 1109, 1160 



XXX 



TABLE OF CASES IX VOL. II. 



See also Table of Cases in Volume I. 



Sec. 

Barker, Goods of 1112 

Barker v. Barker 1325 

V. Comins 1079 

V. Stanford 1146 

Barksdale v. Cobb 1144 

Barlass's Estate 1024, 1120 

Barnard v. Gregory 118G 

Barnard v. Pumfrett 148S 

Barnawell v. Smith 143S 

Barnes, Goods of 1042 

Barnes v. Brashear 1175 

V. Ilazleton 1500 

V. Underwood 1496 

Barnett v. Guilford 1267 

Barney v. Saunders 1545 

Barrett v. Barrett 1173 

Barrington v. Tristram 1480 

Barron v. Burney 1184 

V. Vandvert . . 1293, 1410, 1411 

V. Lambert 1400 

V. Rush 1397 

Bartel's Estate 1070 

Bartholomew v. Warner 1361 

Bartlett v. Fitz 1544 

V, Hyde 1120 

V. Slater 1481, 1072 

Barton v. Barton 1528 

V. Cooke 1490 

V. Higgins 1173, 1179 

Barwick v. Mullings 1062 

Bass V. Chambliss 131U 

Bassett v. Granger 1208 

Baesett v. McKcnna 1220, 1221 

Bate V. Bate 1545 

Bat<'man v. Margerison 1195 

Bates V. RcvoU 1154 

Batson V. Mnrrell 1389 

Batton V. Allen 1500 

Batty V. Greene 1440 

Baucua v. Stover 1208, 1.542 

Baiiman v. Ambruster 1421 

Baufpiier, Ho 10.33 

Baxter v. I'.axter 1428 

V. I'.nck 1288, 129.1 

V. Gray I.'UIK 

Baxter V. Stevens 1072 



bEC. 

Bay V. Cook 1500 

Bayard, Goods of 1127 

Bayard v. Farmers' Bank. 1350, 1351 

Bayley v. Bailey 1020, 1171 

Bayley v. Bayley 1508a 

Baylis v. Attorney-General.... 1038 

Beach's Appeal 1027, 1160 

Beale v. Hall 1160 

Beall V. New Mexico 1408 

Beaman v. Elliott 1173 

Bean v. Bumpus. . . 1093, 1112, 1120 

1206, 1207 

Bean v. Chapman 1160 

V. Smith 1359 

Bearzo v. Montgomery 1239 

Beasley v. Howell 1027 

Beaston v. Farmers' Bank.... 1428 

Beatie v. Abercrombie 1239 

Beatty v. Clegg 1084 

Beatty v. .^ufief 1444 

Beaty v. Gingles. . . . 1256, 1395, 1397 

Bcaven, Re 1251, 1396a. 1439 

Beck V. Rebow 1227 

Becker v. Hager 1522 

V. Selover 1239 

Boctive V. Hodgson 1217 

Bedell v. Clark 1174 

V. Constable 1043 

Beebe, Matter of '. . 1270 

Boebe v. Estabrook 1500 

Beecher v. Buckingham. . 1239, 1240 

Bcekman v. Cottrell 1370 

Beene v. Collenberger 1346, 1361 

Beer, Goods of 1043 

Beers v. Shannon 1024, 1170 

V. Stroheoker 1265 

Belcher v. Belclier 1407 

Hell, Goods of 1036 

]5ell V. Armstrong 1069 

V. Briggs 1422 

V. Hewitt 1368 

V. Speight 1408, 1409 

V. Timiswood 1104 

B.Uamy. Goods of 1139 

I'xllcrjcau V. Kotts 1532 

Txllinger v. Ford 1194, 1195 



TABLE OF CASES IN VOL. II. 



XXXI 



See also Tal)Ic of Cases io Volume I. 



Sec. 

Bellows V. Goodal 1180 

Beel's Estate 1154, 1173, 1205 

Bells V. Nichols 1173 

Belton, Re 1244 

Belvin v. French 1398 

Bemis v. Bemis 1419 

Benlow, Goods of 1069 

Bench v. Biles 1512 

Bender v. Dietrick 1474 

Bengough v. Edridge. 1465 

Benner's Will 1210 

Bennett, Ex parte 1358 

Bennett v. Bennett 1499 

V. Hannifin 1524 

V. Ives 1184, 1424 

Bensel, Re 1256a 

Benson v. Benson 1427 

V. Maude 1478 

. V. Rice 1340 

Bent's Appeal 1060, 1085, 1463 

Berg V. Radcliflf 1428 

Bergdorf's Will 1031, 1032 

Berger v. Duff 1268 

Berger's Estate 1197b 

Berkey v. Judd 1142, 1420 

Bermingham v. Wilcox 1402 

Bernero v. McQuillin 1029a 

Berry v. Bellows 1154, 1155 

V. Hamilton 1033 

V. Tait 1401 

Bertrand's Succession 1322 

Eetts V. Blackwell 1356 

Bewacorne v. Carter 1046 

Biddle v. Wilkins 1173 

Bidwell V. Beckwith 1502a 

Bigelow V. Bigelow 1160 

V. Morong 1502 

V. Baton 1204 

Billingslea v. Henry 1542 

V. Young 1510 

Bills V. Scott 1148, 1154 

Bingham, Re 1531 

V. Crenshaw 1104, 1196 

Binion v. Miller 1538 

Binnerman v. Weaver 1106 

Birch, Re 1393 



Sec. 

Birch V. Dawson 1227 

V. Wright 1374 

Bird V. Jones 1159, 1268 

Birdsall v. Hewlett 1481 

Birkett, Re 1484 

Birkett v. Vandercom 1043 

Biscoe V. Moore 1310 

Bishop V. Bishop. ..1041, 1227, 1509 

V. Curphey 1211 

V. Lalonette 1091 

Bizzey v. Flight 1062 

Black V. Dressell 1509 

V. Hurlbut 1317 

V. Whitall 1500 

Blackborough v. Davis. .. 1103, 1501 

Blackerby v. Holton 1504 

Blackett v. Ziegler 1084 

Blackington v. Blackington . . . . 1453 

Blacksher Co. v. Worthrup.... lOSOa 

Blackwell, Goods of 1037 

Blair v. Murphree 1226 

Blake v. Blake 1220 

v. Dexter 1413 

V. Griswold 1283 

V. Knight 1069 

V. Pegram . . ..1402, 1530, 1533 

V. Ward 1528 

Blakely v. Smock 1370 

Blanchard v. Blanchard 1077 

v. Williamson 1420 

Bland v. Umstead ...1253, 1367 

Blank, Matter of 1116 

Blank's Appeal 1443 

Blassingame v. Rose 1459 

Blethen v. Towle 1227 

Bligh v. Brent 1202 

Bliss v. Seaman 1409, 1412 

Bli&set, Goods of 1127 

Block, Succession of 1100 

Blood V. French 1361 

Bloodworth v. Stevens 1216 

Bloomer v. Bloomer 1542 

Bloomfield v. Ash 1140 

Blount V. Davis 1358 

Blower v. Morret 1490 

Bloxham v. Crane 1244 



XXXll 



TABLE OF CASES IN VOL, II. 



See also Table of Cases in Volume I. 



Sec 

Blue V. Marshall 1386, 1387 

Blydenburgh v. Lowry 1173 

Bob, Succession of 1137 

Bolo V. Vaiden 1148 

Bodger v. Arch 1195 

Bodlc V. Hulse 1403 

Bodley v. McKenney 1137, 1324, 1400 

Bogan V. Camp 1341 

V. Walter 1536 

Bogart V. Van Velsor . . . . 1229, 1323 

1329 

V. Hertell 1400 

Bogs V. Bard 1292 

Bolingbroke v. Kerr 1292, 1410 

Bollard v. Spencer 1291 

Bolton, Re 1512b, 1511 

Bolton's Estate 1134 

Boltwood V. Miller 1362, 1419 

Bomgaux v. Bevan 142S 

Bonafous v. Walker 1291 

Bond, Goods of 1115 

Bonds V. Allen 1456 

Bonnefoi, Re 1017 

Boody V. Emerson 1100 

Booftcr V. Rogers 1063 

Booker v. Jarrett 1457 

Bookman v. Smith 1474 

Boone v. Dyke 14S8 

Boor V. Ix)wrey 1283, 1370 

Booraom v. Wells 135S 

Booth V. Booth 1382, 1402 

V. Radford 1424 

V. Patrick 1234 

Borden v. Jenks 1490 

Borncman v. Sidlinger 1219 

Borer v. Chapman 1446u 

Boaie, Estat*- of l."{|5 

Rosier v. Excliange I5aiik 1 12S 

Bostic V. Elliott I UMi 

Boston V. lioylsUm 154(1 

Boston Packing Co. v. Stevens. 13H5 

Bogsert V. Striker 13!)7 

r.nthamloy v. Sherson 1-161 

I'fithoinly V. Fairfax 1126 

r.ougliton V. Bradley 10!) I 

V. Flint l.'>25 



Bouhvare v. Hendricks 

Bourne, Re 

Bourne v. Stevenson. 1230, 1234, 

Bovey v. Smith 

Bowditch V. Soltyk 

Bowdoin v. Holland. 1015, 1120, 

Bowen v. Montgomery 

V. Phillips 

V. Richardson 

V. Shay 

Bowers v. Bowers 

V. Keesecker 

V. Smith 

V. Williams 

Bowerson's Appeal 

Bowes, Re 

Bowlby, Goods of 

Bowles V. Harvey 

Bowman v. Raineteaux 

V. Tallman 

V. Wootton 1033. 

Boxall V. Boxall 

Boyce v. Escoffie 

V. Grundy 

Boyd, Re 

Boyd, Succession of 

Boyd V. Boyd 1328, 

V. Hawkins 

V. Lowry 

V. Oglesby 

Boyd's Appeal 

Boyle, Goods of 

Boylston v. Carver 1214, 

Boynton v. Heartt 

Brackenbiiry, Goods of... 11 15, 

Braekenridge v. Holland 

I^rackett v. Griswold 1283, 

Hrackett v. Tillotson 1422, 

l'riul!)ury v. Morgan 1366, 

Braddock, Goods of 

Bradfiird v. Blossom 

v. Fclder 

V. Leake 1471a, 



Sec. 

1146 

1208 

123G 

1019 

1487 

1168 

1180 

1308 

1157 

1403 

1341 

1112 

1200 

1473 

1428 

1099 

1224 

1139 

1231 

1245 

1256 

1137 

1353 

1428 

1019 

1539 

1155 

1499 

1545 

1434 

1387 

1099 

1046 

1215 

1153 

1139 

1358 

1373 

1509 

1542 

1367 

1063 

1083 

1120 

1489 



TABLE OF CASES IN VOL. II. 



See also Table of Cases in Volume I. 



Bradley v. Bradley. 1129, 1089, 

V. Brigliam 

V. Commonwealth ...1141, 

V. Heath 

V. Missouri R 

V. Norris 

V. Simonds 

Bradley's Goods 

Brady v. Shiel 

Brake, Goods of 

Bramhall v. Ferris 

Branch v. Branch 1289, 

Branch Bank v. Hawkins 

V. Rhew 

V. Wade 

Brandage's Estate 

Brandenburg v. Thorndike. . . . 

Brandon v. Brown 

V. Judah 

Brant v. Willson 

Brasfield v. Cardwell 

Brashear v. Williams 

Brassey v. Chalmers 

Brassington v. Ault 

Brassington's Goods 

Brattle v. Converse 

Brazeale v. Brazeale 1308, 

Brazen v. Clark 1145, 1328, 

V. Dean 

Breeding v. Breeding 

Braen v. Pangborn 

Brenchley v. Lynn 

V. Still 

Brennan v. Brennan 

Breslin v. Donnelly 

Brett V. Brett 1066, 

Brewster v. Brewster .... 1389, 

V. Kendrick 

Briasco's Estate 

Brick's Estate 1054, 1526, 

Brier, Re 

Briggs V. Caldwell 

Briggs, Goods of 



Sec. 
1161 
1379 
1160 
119-i 
1255 
1100 
1390 
1516 
1036 
1437 
1038 

.1217 
1291 
1418 
1420 
1331 
1112 
1456 
1465 
1527 
1308 
108-2 
1409 
1506 
1405 
1403 
1084 
1123 
1520 
1406 
1451 
113:-^ 
1160 
1126 
1000 

1490a 
1083 
1076 
1543 
1410 
1130 
152S 
1321 
1083 
1043 



Sec. 

Briggs V. Breen 1256 

V. Probate Court . ..1050, 1051 

V. Rochester 1023 

V. Wilson ,.. 1389 

Brighara v. Bush 1456 

V Maxley 1361 

Brigham v. Morgan .... 1323, 1538 

Bright V. Adams 1063 

Briscoe v. Tarkington 1107 

V. Wickliife 1127 

Bristol Bank v. Holley 1203 

Bristow V. Bristow 1480 

Broadwood, Re 1381 

Broas v. Broas 1500 

Brock V. Brock 108 1 

Brockett v. Bush 1387 

Broderick's Will 1028 

Brodie v. Barry 1019, 1169 

Brokaw v. Brokaw 1457 

V. Hudson 1470 

Bromage v. Lloyd 1362 

Bromley v. Atwood 1470 

V. Miller 1057 

Brooks V. Brooks 1230 

V. Floyd 1289, 1293 

V. Mastin 1410, 1411 

V. Oliver 1518 

V. Smyser 1409 

V. Whitmore 1147 

Brooksbank v. Smith 1391 

Broome v. Monck 1377, i427 

Brophy v. Bellamy 1475 

Broughton v. Bradley 1153 

Brown, Ex parte 1140, 1407 

Brown, Goods of 1039 

Brown v. Anderson 1070 

V. Armistead 1407 

V. Benight 1186 

v. Brown . . ..1146, 1160, 1174 

1490, 1526, 1459a 

V. Campbell 1324f 

V. Clark 1082 ' 

V. Dean 1284 

V. Durbin 1184 

V. Evans 1251, 1257 

V. Farndell 1492a 



XXXIV 



TABLE OF CASES IX VOL. II. 
See also Table of Cases in Volume I. 



Sec. 

V. Finley 1297 

V. Farnham 1257 

V. Gellatliy . ._ 1324, 1479 

V. Gibson . . .' 1194 

V. Hay 1102 

V. Hobson 1407 

V. Kelsey 1509 

V. Leavitt 1189, 1194 

V. Litton 1323 

V. McCall 1545 

V. Murdock 1148 

V. Porter 1419 

V. Public Administrator .. 1428 

T. Peed 1539 

V. Ryder 1135 

V. Smith 101.5 

V. Sullivan 1193 

V. Sumner 1434 

V. Temperly 1482 

V. Walker 1190 

V. VVeatherby 1147 

Brown, Re 1545 

Brown's Accounting 1402 

Brown's Estate 1104, 1113 

Browne v. Cogswell 1494 

V. Fairchild 1258 

V. Preston 1387 

Brownfield v. Holland 1375 

Browning, Goods of 1099 

Browning v. Paris 1380 

Browning v. Reane 1098 

Brownlee v. Lockwood 1413 

Brownson, Re 1^39 

Brubacker's Appeal. .1110, 11.53, 1404 

Bruce v. Bruce 1010 

V. Griscom 1500 

Pruiik V. Means 1288 

I'iuhIi v. Young 1407 

Bryan v. ^lulligan 1355 

V. Rooks 11.30 

V. Stewart 1402 

V. Thom|).son 1404 

Bryant v. Rnssel 1308 

Buchan v. Rintoul 1525 

Bnclinlz V. Biicliolz 1021 

Buchoz V. Pray 14.34 



Sec. 

Buck V. Jolmson 1173 

Buckels V. Cunningham 13(51 

Buckland's Estate 1457b, 14S9a 

Buckley V. Barber 1200 

V. McGuire 1140 

Buck's Estate 1200 

Budd V. Hiler 1226 

V. Silver 1110 

Buffalo Loan Co. v. Leonard... 1491 

Buffalo V. Baugh 1488 

Buffum V. Sparhawk 1451 

Buie V. Pollock 1491, 1520 

Bulevard, Re 1467 

Bulfinch v. Benner 1428 

Bulkley v. Redmond. 1091, 1096, 1153 

Bull v^ Sibbs 1376 

Bullard v. Leach 1461, 1490 

Bullock V. Rogers 1200 

V. Wheatley 1328 

Bulmer's Case 1380 

Burbank v. Payne 1362 

V. Whitney 1464 

Burch, Goods of 1109 

Burch, In re 1113 

Burchmore, Goods of 1132 

Burd V. McGregor 1528 

Burdett, Goods of 1115, 1131 

Burdick v. Garrick 1391 

Burke v. Bishop 1204 

V. Coolidge 1431 

Burkhead v. Colson 1488 

Burks V. Bennett 1013 

Burls V. Burls 1084 

Burnet v. Holden 1426 

V. Mann 1501 

Burnett v. Brian 1391 

V. Meadows 1023 

V. Nesmith 1142, 1600 

Burnham v. Lasselle 1285 

Burnley v. Duke 1168, 1408 

Burns v. Van Loan 1092. 1006. 

1153, 1160 

Burridge v. Bradyle 1190 

Burroughs v. McLain 1417 

Burrows v. Walls 1393 

Burrus v. Roulhac. . .1295, 1410, 1411 
Burtch v. Elliot 1220 



TABLE OF CASES IN VOL. II. 



XXXV 



See also Table of Cases in Volume I. 



Sec 

Burton Co. v. Davies.* 1489, 1504b 

Burton v. Hintrager 1214 

V. Tunnell 1247 

V. Waples 1118 

Burwell v. Mandeville 1325 

Bush's Estate 1315, 1331 

Butler, Estate of 1175 

Butler V. Butler 1341, 1346 

V. Lawson 1013 

Butler's Inventory 1234 

Butler's Succession 1170 

Butson, Re 1024, 1202, 1211 

Buxton V. Buxton 1328 

Byde v. Byde 1469 

Byerly v. Donlin 1128 

Byers v. McAnley 1028 

Byrd, Goods of 1077 

Byrd v. Gibson 1111 

Byrd v. Hall 1220 

Byrn v. Flemming 1161 

V. Godfrey 1204 

C. 

Cabanne v. Skinker 1177 

Cables v. Prescott 1211 

Cadbury v. Duval 1347, 1350 

Cady V. Bard 1173 

Cagar v. Frisby 1361 

Caig, Ex parte 1115 

Cain V. Haas 1115 

Calder v. Pyfer 1410 

Caldwell v. Caldwell 1445a, 1515 

V. Hedges 1148 

V. Lockridge 1528 

V. McVicar 1310 

Calhoun v. Calhoun 1457 

Calhoun's Estate 1317, 1321 

Calkins v. Boulton 1329 

V. Calkins 1324 

Call V. Ewing 1402 

Callaghan v. Callaghan 1363 

V. Hill 1330 

Callahan v. Griswold 1116 

V. Smith 1160 

Calvert v. Marlow 1331 

Camden v. Fletcher 1193 

Cameron v. Cameron 1236, 1544 



Sec. 

Camp V. Crocker 14t;4 

Campanari v. Woodburn 1367 

Campbell v. American Bonding 

Co 1396a 

Campbell, Goods of 1134 

Campbell, Re 1522 

Campbell v. Booth 1187 

V. Brown 1015 

V. Bruen 15.33 

V. Campbell 1439 

V. Johnson 1146 

V.Sheldon 1015, 1057, 1174 

V. Shoatwell 1389 

V. Wallace 1015 

Campbell's Estate 1109 

Campfield v. Ely 1398 

Canada's Appeal 1079 

Candee's Appeal 1513 

Candler v. Tillett 1402 

Canning, Goods of 1117 

Cannon v. Apperson 1422 

v. Jenkins 1358 

Canover v. Canover 1236 

Conoway v. Fulmer 1060 

Capehart v. Logan 1434 

Carey v. Berkshire R 1283 

Carlisle v. Burley . . .1276, 1290, 1291 

Carlon, Succession of 1118 

Carmichael v. Carmichael 1187 

V. Ray 1164, 1165 

Cames v. Crandall 1428 

Carnochan v. Abrahams 1196 

Carow V. Mowatt 1107, 1428 

Carpenter v. Cameron 1036 

V. Denoon 1057 

V. Popper 1213 

V. Going 1190 

V. Gray 1154 

V. Jones 1112, 1115, 1115a 

Carpigiani v. Hall 1116, 1154 

Carr v. Estabrooke 1469 

V. Illinois Central R..102S, 1121 

1160a 

V. Lowe 1181 

V. Roberts 1277, 1-300 

V. Tate 1385 

Carrigan v. Semple 1173 



XXXVl 



TABLE OF CASES IN VOL. II. 



See also Table of Cases in Volume I. 



Sec. 

Carrol V. Bosley 1247 

Carroll v. Carroll 1055, 1088, 1160 

v. Connet 1043, 1236, I40S 

V. Stewart 1402 

Carroll's Estate 1508b 

Carrollton v. Rhomberg 1370 

Carroll Iron Co. v. Maclaren... 1015 

117S 

Carruthers v. Corbin.1428, 1441, 1541 

Carson v. Carson 1485 

Carte v. Carte 1042 

Carter v. Anderson 1156 

V. Cutting 1402 

V. Engles 1420 

V. Estes 1290 

T. Greenwood 1120 

V. Hammet 1376 

V. Hinkle 1456 

V. Manufacturer's Bank . . . 1340 

1352 

V. Bobbins 1186 

V. Trueman 1408 

V. Whitcomb 1470 

Carthey v. Webb 1111 

Cartwright's Case 1 132 

Case V. Abell 1402 

Case's Appeal 1403 

Casement v. Fulton 1077 

Casey v. Gardiner 1050, 1112 

Caskie v. Harrison 1210, 1.325 

Cason V. Cason 1329 

Casoni v. Jerome 1140 

Caspenson v. Dunn 1485 

Cassedy v. Jackson 1032, 1 106 

Cassel's Estate 1402 

Cassera v. Priiidle lOSt 

Ca.ssidy's Will lOS-l 

Castle V. Warland 1 322 

Caawall, Ex parte 1222 

Catchside v. Ovington 1236 

Cathcrwood v. Cliabaud 1203 

1409, 1411 

Catlett V. Catlett 107 J 

Catlin V. Wlicclrr 1013 

V. Undf-rhill 1289, 1292 

Caton V. Colofl 1374 

Caughey v. Byrnes 1115 



Sec. 

Caulkins v. Bolton 1330 

Cavanaugh's Will 1161a, 1531a 

Cave V. Roberts 1497 

Cavendish v. Fleming 1526 

Cayuga Co. Bank v. Bennett.... 1401 

Central Bank v. Little 1428 

Chadbourn v. Chadbourn. . 1386, 1387 

Chadbourne's Estate 1154 

Chadwick's Will 1057, 1170 

Chalk V. McAlily 1284 

Challen v. Shippan 1322 

Chamberlain v. Dunlop. . . 1367, 1375 

V. Williamson 12S0 

V. Wilson 1095 

Chamber's Appeal 1308 

Chambers v. Bicknell 1113 

V. Minchin 1402 

V. Shaw 1460 

V. Smith 1390 

Chamboredom v. Fayet 121 1 

Champion v. Brown 121S 

Cliancellor v. Chancellor 1317a 

Chandler v. Batchelder 1477 

V. Davidson 1193 

V. Munkwitz 1160 

V. Schoonover 1352, 1356 

Chapin v. Hastings 1 128 

Chaplin v. Burett 1385 

Chapman, Re 1329 

Chapman v. Esgar 1221 

v. Fish 1173 

v. Holmes 1285 

V. Robertson 1019 

v. Speller 1361 

Charles v. Jacob 1208 

Charlton's Appeal 1526 

Charlton's E.state 1308 

(barter v. Charter 1014 

Cha.se v. Fitch 1370 

V. Kittredge 1077 

V. Lookennan 1214 

V. Redding 1219 

V. Webster l-^53 

Chattanooga R. v. Morrison. ... 1414 

Cheatham v. Bnrfoot 140S 

flicelv V. W.lls 1288 



TABLE OF CASES IN VOL. II. 



See also Table of Cases in Volume I. 



Sec. 

Cheetham v. Ward 1208 

Cheever v. Ellis 1402 

V. Judge 1151 

Chelsea Water Works v. Cowper 1476 

Cheney V. Cheney 1455, 1173 

V. Gleason 1284, 1295 

Chesapeake R. v. Banks 1141 

Chester v. Urwick 1470 

Chevallier v. Wilson 1541 

Chew V. Chew 1157 

Chew's Appeal 1405 

Chew's Estete 1401 

Chicago R. V. Gould 1109 

V. O'Conner 1283 

Child V. Gratiot 1109 

V. Thorley 1402 

Childs V. Monins 1258 

V. Updike 1387 

Childers v. Milam 1072 

Childress v. Bennett 1163, 1167 

Chisholm v. Lee 1324 

Choate v. Arrington 1146 

Chouteau v. Suydam 1387, 1395 

Christian, Goods of 1077 

Christian v. Morris 1258 

Christopher v. Cox 1032 

Christy v. McBride 1321 

V. Vest 1025 

Churchill v. Hobson 1322, 1335 

V. Prescott 1111, 1174 

Cincinnati R. v. Heaston 1418 

Citizens' Bank v. Sharp 1176 

Clack V. Holland 1308 

Claney v. McElroy 1154 

Clapp V. Fullerton 1081 

V. Tngraham 1222 

V. Meserole 1528 

V. Stoughton 1194, 1201 

V. Walters 1385 

Clare v. Hedges 1133 

Clark, Estate of 1538 

Clark, Goods of 1115 

Clark V. American Surety Co.. . 1147 

V. Goods of 1115 

V. Bettelheim 1509 



Clark V. Blackington. 1019, 1024, 1175 

1179, 1358, 1358a 

V. Buraside 1227 

V. Carroll 1373 

V. Clark 1098, 1402 

V. Clay io22 

V. aement 1163, 1107 

V. Cress 1526 

V. Davis 1430, 1434 

V. Eubank 1522 

V. Hardman 1391 

V. Knox 1538 

V. McClellan 1279 

V. Niles 1137 

■ V.Patterson 1031, 1033 

V. Pishon 1160, 1195 

V. Piatt 1545 

V. Seagraves 1214 

V. Sewell 1481 

V. Swift 1285 

V. Tainter 1049 

V. Wright 1084 

Clarke v. Alexander 1396 

V. Andover 1471a 

v. Blount 1402, 1542 

V. Chapin 1141, 1144 

V. Clarke 1032 

V. Clay 1120 

V. Hilton 1494 

V. Jenkins 1402 

V. Ransom 10G3, 1082 

V. Sinks 1508 

V. Tufts 1249, 1534 

V. Wells 1128 

V. West 1146 

Clarkington, Goods of 1116 

Classon v. Lawrence 1288 

Claudel v. Palao 1451, 1453 

Clauser's Estate 1538, 1545 

Claussen v. Lufrenz 1186 

V. McCnne 1420 

Clay, Re 1511 

Clay V. Anderson 1457 

V. Gurley 1473 

V. Willis 1217, 1221 

Clayton v. Akin 1490 

V. Lord Nugent 1038 



XXXVlll 



TABLE OF CASES IX VOL. II. 



See also Table of Cases in Volume I. 



Sec. 

Clayton v. Somers 1466, 1542 

V. Wardwell 150U 

Cleaves v. Dockray 1138, 1143 

Clement v. Hawkins 1260 

Clement's Appeal 1526, 1544 

Cleveland v. Harrison 1362, 13S9 

V. Quilty 1116, 1151, 1152 

Cleverley v. Gladdish 1129 

Clifton V. Haig 1390 

Cline's Appeal 1541 

Clingman v. Hopkie 1428 

Clopton v. Gholson 1256 

Clough V. Bond 1098, 1321, 1328 

1336, 1338, 149G 

V. Dixon 1402 

Clowes V. Hilliard 1519 

Coann v. Culver 1213 

Coates v. Coates 1470 

v. Lunt 1491a 

V. Ma.ckey 1178 

v. Muse 1428 

Cobb, Estate of 1070 

Cobb V. Beardsley 1129 

V. Brown 1120 

V. Muzzey 1509 

V. Newcomb ...1100, 1111, 1112 

1113, 1115 

Cobbett V. Glutton 1272 

Cobel V. Cobcl 1216 

Coburn v. Harris i;^90b 

V. Ivoomis 1526, 1530 

Cochran v. Thompson 1 120 

1409, 1410 

Cochrane v. Robinson 1476 

Cock V. Carson 1262. 1316, 1410 

V. Cooke 1063 

Cocke V. Trotter 1395 

Coc-kerill v. Kynnston 1291 

Cockleton v. Davidson 1 173 

Cookroft V. Black 1 439 

Cocks V. Haviland 1402 

V. \\arney 1177 

Codding v. Newman 1050 

Coddington v. Bispham 147S 

O'lreo V. Bufrm 1431. 1512 

V. Cottle 1153, 13S6 



Sec. 

Coffee V. Talman 1375 

Cohea v. Johnson 1407, 1413 

V. State 1142 

Coit V. Comstock 1465 

Coke V. Colcroft 1367 

Coker v. Crozier 1280 

Colbert V. Daniel 1173, 1520 

Colburn's Appeal 1094 

Cole V. Dial 1153 

V. Elfe 1450 

V. Miles 1400 

V. Wooden 1134 

Coleby V. Coleby 1422 

Colegrave v. Dias Santos 1227 

Coleman v. Raynor 1156 

V. Smith 1247 

Coles, Goods of 1063, 1115 

Coles V. Jameson 1517a 

V. Trecothick 1074 

Colesbeck v. Peck 1426 

Colgan's Estate 1200 

Collamore v. Wilder 1251, 1417 

Collen v. Wright 1372 

Collier v. Collier 1217 

V. Jones 1189 

V. Rivaz 1020 

Collins V. Blankhead 1167 

V. Carr 1154 

V. Crouch 1427 

V. Hollier 1522 

V. Spears 1107 

V. Tilton 1526, 1542 

Oollinson v. Lister 1352 

Colston V. Morris 1478 

Colt V. Lesnier 1352 

Col tart V. Allen 1 152, 1 153 

Cnlton V. Colton 1028 

Col ton's Estate 1506 

Coltraine v. Spurgin 1 428 

Columbus Ina. Co. v. Humphries 1335 

Col vert V. Peebles 1 235 

Colvin, Re 1140 

Colvin V. Owens 1 363 

Cohvell V. Algor 1138 

Commercial Bank v. Sl.ater 1-134 

Commissioners, Ex parte 1116 



TABLE OF CASES IN VOL. II. 



XXXIX 



See also Tiil)le of Cases in Voluino I. 



Sec. 

Commissioners v. Greenwood... 1428 

Oomnionwealth v. Blanton 1504 

■v. Bryan 1230 

V. Duffield 1222 

V. Higert 1146 

V. Logan 1428 

V. Mateer 1047 

V. McAlister 1320 

V. Taylor 1145 

Comstock V. Crawford 11 50 

V. Hadlyme 1073 

Conant v. Kent 1502 

Condit V. Winslow 1542, 1582 

Conger v. Atwood 1457, 1510 

Conkcy v. Dickinson 1247 

Conklin v. Egerton 1407 

Conly V. Conly 1282 

Connell v. Chandler 1456 

Connelly's Appeal 1230, 131G 

Conner v. Mcllvaine 1406, 1532 

Connery v. Connery 1083 

Conover v. Conover 1236 

Conrad v. Conrad 1515 

Conrades v. Heller 1081 

Converse v. Starr 1057 

Conwill V. Conwill 1504 

Cook V. Carr 1 105 

V. Collingbridge 1330, 1537 

V. Cook 1274 

V. Gregson 1221 

V. Holmes 1411 

V. Lanning 1481, 1400a 

V. Sanders 1180 

T, Sexton 1453 

V. Stocknvell 1545 

Oooke V. Meeker 1470 

V. Woman's Medical College 1500 

Cool V. Higgins 1422 

Cooley V. Houston 1480a 

Coombs V. Coombs 1115 

Coope V. Carter 1518 

V. Lowerre 1104 

Cooper V. Brockett 1077 

V. Cooper 1151. 1154, 1157 

1317a, 1493, 1507 



Sec. 

Cooper V. Day 1468 

V. Felter 1428 

V. Hay\vard 1238 

V, Maddox 1098 

V. Thornton 1485 

V. White 1205 

V. Williams 1315 

Cooper's Goods 1085 

Coover's Appeal 1098 

Cope V. Cope 1132 

Copeland v. McCue 1310, 1324 

V. Stephens 1376 

Copis V. Middleton 1427 

Copp V. Hersey 1534 

Coppin V. Coppin 1490, 1491 

Coran v. Davis 1508c 

Core V. Spencer 1069 

Cordeux v. Trasler 1110 

Cornell v. Gallaher 1104 

Corner v. Shew 1257, 1396 

1397, 1398 

Conies V. Wilkin 1418 

Cornish v. Wilson 1146 

Cornpropst's Appeal 1104 

Cornthwaite v. Nat. Bank 1258 

Corsitt v. Biscoe 1428, 1433 

Cortelyou v. Lansing 1305 

Corwine v. Corwine 1511 

Cote V. Dequindre 1210 

Cotham v. Britt 1500 

Ootterell v. Coen 1116, 1120 

Cotter's Estate 1113 

County V. Day 1402 

Courtenay v. Williams. .. 1445a, 1470 

1491, 1508 

Cousins V. Jackson 1527 

Cousins, K.e 1363 

Cover V. Cover 1412 

Coverdale v. Aldrich 1204 

Cowden v. Jacobson 1180 

Cowdin V. Perry 1527 

Cowell V. Watts 1292 

Cowell's Estate 1457b 

Cowie V. Strothmeyer 1083, 1315 

1346, 1544 



xl 



TABLE OF CASES I^^ VOL. II. 



See also Table of Cases in Volume I. 



tEC 

Oowles V. Hayes 1414 

Cowley V. Knapp 1063 

Cowling V. Justices 1142 

Cox, Creditors of 1221 

Cox V. Cox 1122 

V. John 1441 

V. Joseph 1427 

V. Kansas City 1110 

V. McBurney 1214 

V. Morrow 1496 

Graddock v. Stewart 1361 

Crafton v. Beal 1043 

Craig V. Leslie 1217 

V. McGehee 1530 

Craige v. Morris 1457 

Craigie v. Lewin 1017 

Crain v. Barnes 1481 

Craker v. Dillon 1247 

Cram v. Barnes 1481 

V. Green .- 1520 

Crandall v. Shaw 1135 

Crane v. Guthrie 1216 

Crapo V. Armstrong 1422 

Crashin v. Baker 1193 

Cravath v. Plympton 1385 

Cravens v. Logan 1411 

Crawford v. Blackburn 1346 

V. Bloss 1457a 

V. Crawford 1515 

V. Elliott 1264 

V. Graves 1173 

V. Redus 1526 

V. Whittal 1291 

Crawford, Re 1174 

Cray v. Willis 1488 

Cray ton v. Hunger 1301 

Creamer v. Waller 1230 

Grcath v. Brent 1128 

Creed v. Creed 1490 

V. Lancaster Bank 1500 

Crenshaw v. Ware 1346 

Cresse, Matter of 1113 

Creswick v. Woodhead 1403 

Cringan, Goods of 1041 

Cripnen v. Dcxtrr 1170 

Crippcn's Estate 1098, 1107 



feEC. 

Crisman v. Beasley 1361 

Crispin v. Doglioni 1016, 1017 

1167, 1169 

C rist v. Crist 1488 

Crocker v. Dillon 1247 

V. Smith 1509 

Ci-oft V. Lyndsey 1314 

V. Williams 1402 

Crofton V. Crofton 1178 

V. Ilsley 1017 

Crolly V. Clark 1019 

Cronan v. Cutting 1385 

Cronk v. Cronk 1137 

Cronshaw v. Cronshaw 1230 

Crook v. Watt 1498 

Crookenden v. Fuller 1022 

Crosby v. Covington 1500 

v. Crosby 1247 

V. Gilchrist 1168 

V. Leavitt 1091 

V. Mason 1265 

Cross V. Brown 1220, 1297 

Crothers v. Crothers 1400, 1531 

Crouch V. Davis 1469 

Crowder v. Shackelford 1544 

Crowninshield v. Crowninshield 1073 

Crozier v. Goodwin 1134, 1141 

Crozier, Re 1135 

Crum V. Bliss 1016 

Crun^p v. Williams 1195, 1262 

Ciibhidgc V. Boatwright 1409 

Cuflc, Re 1450, 1475a 

Cullen V. O'Hara 1244 

Cummings v. Allen 1457 

V. Bramhall 1204 

V. Cummings 1526 

Cunningham v. Souza. . . . 1137, 1140 

Cureton v. Mills 1181 

Curie V. Curie 1428 

V. Moore 1173 

Curlcy V. Hand 1428 

Curling v. Thornton 117L 

Curro V. Bowycr 1377 

Cursor, Re 1032, 1100 

Curtis V. Bailey . 153] 

V. Broilcs 1504 



TABLE OF CASES IN VOL. II. 



xli 



See also Table of Cases in Volume I. 



Sec. 

Curtis V. Curtis 1085 

V. Williams 1100, 1115 

1152 

V. Vernon 11S7 

Curtiss V. Beardsley . ...... 1150 

Cusliing V. Aylwin 1017 

V. Gushing 1500 

Cushman v. Albee 112S 

Cutbush V. Cutbush 1323 

Cutchin V. Wilkinson 1130 

Cutlar V. Quince 1129 

Cutler V. Howard 1032, 1154 

Cutliff V. Boyd 1445a 

Cutrer v. State 1176 

Cutright V. Stanford 1380 

Cutter V. Currier . 1522 

V. Davenport 1164 

Cutting V. Tower 1280 

D. 

Dabney's Appeal 1335, 1320 

Daboll V. Field 1520 

D'Adamo's Estate IIIG 

Dagley v. Tolferry 1483 

Dale V. Roosevelt 1409 

Dallinger v. Morse.. 1094, 1131, 1160 

Dallmeyer, Re 1499 

Dalrymple v. Gamble 1153 

Dameron v. Lanyou 1213 

Damouth v. Klock 1192, 1193 

Danaher v. Hildebrand 1405 

Daniel v. Hill 1063 

Daniels v. Spear 1220, 1297 

Dans V. Dabergott 1112 

Danzey v. Smith 1297, 1316 

V. Swinney 1420 

Darby's Estate 1430 

Darden v. Reese 1456 

Dardicr v. Chapman 1106 

Darke, in re 1032 

Darke v. Martyn 1322 

Darling v. Hammer 1338 

Darston v. Lord Oxford 1437 

D'Arusment v. Jones.. 155, 191, 102 

1001a 



CEC. 

Davenport v. Congregational So- 
ciety 1387, 1388 

V. Devenaux 1457 

v. Irvine 1154 

V. Sargent 1481 

David V. Frond 1519 

Davidson v. Potts 1 120 

Davies, Goods of 1099 

v. Bush 1490 

V. Nicholson 1491 

V. Parry 1439 

Davis, Matter of 1538 

Davis, Re 154.5 

Davis, Succession of 1137 

Davis V. Chanter 1115 

V. Chapman 1316 

V. Cowden 1526, 1528, 1533 

V. Davis 1059, 1247, 1428 

1451 

V. Estey 1051, 1166, 1174 

v. French 1208, 1254, 1397 

V. Gaines 1352 

V. Garr 1391 

v. Harper 1522 

V. Inscoe 1047, 1050 

V. Lane 1251 

V. Marcum 1356 

V. Miller 1160 

V. Newman 1491 

V. Rhame 1288 

V. Shuler 1119 

V. Smith 1428 

V. Stevens 1118, 1119 

V. Swearinger 1115. 1118 

V. Vansands -^PP- 

V. Wright 1440 

Davis's Appeal 1532 

Davison v. Libley 1544 

Davone v. Fanning 1358 

Dawbarn v. Fleischmann 1390a 

Dawes, Goods of 1134 

Dawes v. Boylston 1194, 1195 

Day V. Day 1381 

Dayton Co. v. Dodd 1091 

Dean v. Allen 1476 

V. Bifjgers 1135. 1250 



xlii 



TABLE OF CASES IX VOL. II. 



See also Table of Cases in Volume I. 



fcEC. 

Dean v. Dean 1070 

V. Portis 1^17 

Deane v. Caldwell 1375, 1376 

Dease v. Cooper 1-453 

De Beauvoir, Re 1217 

Decillis v. Marcelli 13D6a 

Decker v. Elwood 1526, 152S 

Deeks v. Strutt 1521 

Deering v. Adams 1046 

De riechier. Succession of. 1135, 115 1 

De Haven v. Williams. .. 1401, 1402 

Deicliman, Goods of 1041 

Deichman's Appeal 1028, 142S 

Delafield v. Parish 1073 

De Lane's Case 1153 

Delaney v. Xoble lloiJ 

Delorme v. Pease 1118 

Deming v. Taylor 127') 

Demond v. Boston 1282 

Dennis v. Shaner 14o0 

Dennison v. Talmage 1150 

Denny v. Booker 1385 

V. Faulkner 117.) 

Denton, Re 1483 

Denton v. Tyson 1515 

De Peyster v. Clendining 1017 

Deraismes v. Deraismes 1428 

Deranco v. Montgomery 115S 

De Rosaz, Goods of 103S 

Despard v. Churchill 1042 

De Tastet v. Shaw 143f» 

Detwiller v. Hartman 14G5 

De Valengin v. Duffy 1395, 1397 

De Valle v. Southern Pac. R... 1026 

Devane v. Royal 1256 

De Vany, Re 1543 

Devayncs v. Noble 1379 

Devecmon v. Devccmon 1001] 

Deveroux, Re 1120 

De Vigny, In re 1169 

Devlin v. Commonwealth .1001a, 1091 

1092, 1160 

Devling v. Mttic 1400 

Dfwcin V. IIoosH 1347 

Dfwcy V. Xoycs 1420 

De Witt V. ViittH 1408 



Sec. 

Dey V. Dey 1490 

V. Codman . . . 1512b, 1539, 1542 

lyEyncourt v. Gregory 1227 

Dibble v. Winter .... 1067, 1070, 1083 

1089a, 1170, 1771, 1233 

Dickenson v. Callahan 1367 

Dickie v. Dickie 1542, 1543 

Dickinson's Appeal 1504a 

Dickinson v. Dickinson 1076 

V. Naul 1160 

V. Powers 1241a 

V. Seaver 1029 

Dickson, Re 1341 

Dietrich's Succession 1116, 1153 

Dillabaugh's Estate 1356 

Dilliard v. Harris 1025 

Dillinger v. Kelley 1358, 1509 

Dillon V. Coppin I36S 

Di Sora v. Phillips 1169 

Ditclifield, Goods of 1124 

Diversey v. Smith 1370 

Dix V. Burford 1402 

V. Morris 1509 

Dixon V. Buell 1420 

V. Dixon 1484 

V. Ramsey 1194 

Doak, Estate of 1116 

Doane v. Walker 1457 

Dobins v. McGovern 1145 

Dodd V. Scott 1462a 

Dodge V. North Hudson 1173 

Dodson V. Hay 1217 

V. Samuel 1376 

V. Simpson 1359 

Doe V. Clark 1220 

V. Cross 1063 

V. David 1243 

V. Guy 1295 

V. llerscy 1076 

V. McFarlaud 1173 

V. Porter . . ..1267, 1280, 1287 

V. Sturges 14SS 

V. Vardill 1016 

Dolan V. Brown l.")10 

Dolbeor v. Casey 141S 

Dole V. Irihh 1120 



TABLE OF CASES IN VOL. II. 



xliii 



See also Table of Cases in Volume I. 



Sec. 

Donald v. McWorter 1421 

Donaldson, Goods of 1089 

Donaldson v. Raborg 112S 

Donnc41 v. Cooke 1508 

Donnelly, Re 103:3 

Donovan v. Major 1001a, 1092 

Doogan v. Elliott 1334 

Doolittle V. Lewis 1015 

Dorah V. Dorali 1454 

Doran v. Kennedy 1160, 1218 

1514 

V. Mullen 1072 

Dorchester v. Webb 1403 

Door V. Waimvright 1241, 1485 

Dorris v. Miller 1544, 1545 

Dorsett v. Frith 1190 

Dorsey v. Dorsey 1164 

Dortch V. Dortch 1317, 1322 

Dost Ali Khan, Goods of 1169 

Dougherty v. Stephenson 1251 

Douglas V. Cooper 1169 

V. Fraser 1258 

V. Satterlee 1402 

V. New York 1116, 1146 

Douglas-Menzies v. Umphelby. 1489a 

Dowdale's Case 1175 

Dower v. Leeds 1084 

Dowling V. Feeley 1140 

Downie v. Knowles 1540 

Downward v. Dickinson 1115 

Downs V. Collins 13^26 

Dowse V. Coxe 1395 

Dowsett V. Culver 1487 

V. Gorton 1326 

Doyle V. Blake 1044, 1046, 1321 

1335, 1402 

Drake v. Coltraine 1427 

V. Drake 1545 

V. Greene 1033, 1154 

Drayton, In re 1043 

Drayton v. Grimke 1407 

Drew's Appeal 1104 

Drew V. Gordon 1452, 1454 



Sec. 

Drinkwater v. Drinkwatcr. . . . 1212 

1213, 1509 

Driver v. Riddle 1159, 1268 

Drohan v. Drohan 1353 

Drubaker's Appeal 1153 

Drue V. Baylie 1410 

Drury v. Natick 1037, 1464 

V. Smith 1219 

Drybutter v. Bartholomew . . . , 1202 

Dubois' Case 1428 

Dudley v. Sanborn. .1358, 1422, 1537 

1538, 1542 

v. Warde 1227 

Duffy V. Buchanan 1522 

V. McHale . . .1272, 1315a, 1439 

Dufour V. Dufour 1527 

Dugan V. Hollins 1316, 1347, 1355 

Duhme v. Young 1154 

Dulaney v. Smith 1520 

V. Wills 143) 

Duncan, Re 1135, 1370 

V. Dawson 

V. Duncan 1468 

V. Eaton 1451 

V. Gainey 1515 

V. Jaudon 1350, 1351 

V. Watson 1410 

V. Watts 1490 

Duncommun's Appeal 1532 

Dunham v. Dunham 1150 

V. Elford 1488 

V. Millhouse 1221 

Dunlap V. McCloud 1489a 

v. Mitchell 1358 

Dunlop's Estate 1544 

Dunn, Ex parte 1454 

Dunn V. Byrne 1463 

V. Deery 1258 

V. Sargent 1201 

Dunning v. Ocean Nat. Bank.. 1214 

1408 

Dupuy v. Wurtz 1017, 1020 

Durffee v. Abbott 1420 



xliv 



TABLE OF CASES IN VOL. II. 



See also Table of Cases in Volume I. 



Sec. 

Durham v. Clay 1471 

Durham, Estate of 1347 

Durkin v. Langley 1422 

Durnford, Succession of 1440 

Duryea v. Mackey 1414 

Du Val V. Marshall 1173, 1179 

Duvall V. Snowdon 113S 

Duvall's Estate 1490 

Dwight V. Mudge 1375 

V. Newell 1400 

V. Simon 1154 

Dwyer'3 Estate 1019, 1174 

Dye, Goods of 1032 

Dyke v. Walford 1117 

Dyson, Re 151l 

E. 

Eagle V. Fox 1292 

Eames v. Hacon 1174, 1176 

Eans V. Eans 1270 

Earle v. Earle 1321. 1402 

Eastland v. Lester 1200 

East Tenn. Co. v. Gaskell 1258 

Eaton V. Benton 1469 

V. Cole 1386 

V. Walsh 1208 

Eberstein v. Camp I48S 

Echols V. Barrett.. 1120, 1137, 1153 

Eddins v. Graddy 1428 

Edelen v. Edelen. . . 1153, 1541, 1542 

Edclmeyer, Re 1245-1544 

Eden v. Smyth 1470 

Edgar v. Shields 1504 

Edmond v. Peake 1321 

Edmonds, Goods of 166 

Edmonds v. Crenshaw . , . 1400, 1402 

Edmundson v. Roberts 115.3 

Edson's Estate 1111 

Edwards v. Freeman . ...1495, 1499 

V. Hall 1461 

V. Harlion 1186 

V. I^Icrifc 1435 

V. Smith 106.3 

Eell's Estate J467 

Egcrton v. Egertrn 1219, 1542 



Egremont v. Thompson 

Ehlen v. Ehlen 1099, 

Eidenmuller's Estate 

Eisenbise v. Eisenbise .... 1 120, 

Ekblad v. Hunson 

Ela V. Edwards 1178, 

V. Ela 

Elbert v. O'Neil 

Elder v. Littles 

Eldridge v. Eldridge 

Elfe V. Cole '. 

Elgutter V. Missouri R 

Elizalde v. Murphy 1141, 

Ellicott V. Chamberlain 

Elliott V. Elliott 

V. Gurr 

V. Kemp 1244, 1248. 

V. Mayfield 

V. Merriman 

Elliott's Succession 1423 

Ellis. Ex parte 

Ellis V. Carlisle 

V. Davis 1028. 

V. Ellis 

V. McGee 

V. Merriam 

V. Walker 

V. Witty 

Ellmaker's Estate 1132, 

Elmc V. Da Costa 

Elmendorf v. Lansing ...1033, 

Elmer v. Keehele 

Elrod V. Alexander 

Elwes V. Maw 

Elwood V. Diefendorf 

Ely V. Horine 

V. Williams 

Emerson, Appellant 

Emerson v. Bowers 1 104. 

V. Thompson 

Emery v. Batchekh.T 

KnxTv V. Berry 1 Is 1, 

V. llildreth 



Sec. 
1295 
1153 
1305 
1269 
1276 
1269 
1170 
1191 
1457 
11S9 
1467 
1451 
1160 
1420a 
1520 
1048 
1488 
98 
1409 
1145 
1357 
, 1424 
1033 
1418 
1352 
1160 
1187 
1254 
1461 
1441 
1135 
1115 
1403 
1104 
128 1 
1227 
1401 
1.358 
1362 
154.) 
1154 
1401 
1490 
1 1 9.-) 
1024 



TABLE OF CASES IN VOL. II. 



xlv 



See also Table of Cases in Volume I. 



Sec. 

Empire Life Ins. Co. v. Mason. 1419 

England v. Newell 1402 

V. Prince George's Vestry. 145'J 

V. Tredegar 147S 

English V. Harvey 1.538 

V. Horn 13.56 

V. McNair 1032, 1316 

Enicks v. Powell 114S 

Enloe V. Sherrill 106.5 

Ennis v. Smith 1016 

Eno V. Cornish 1442 

Enohin v. Wylie. . . 1019, 1164, 1167 

1169 

Epping V. Eobinson 1228 

Eppinger v. Canepa 1545 

Equitable Trust Co. v. Cough- 

lin 1036, 1038 

Erwin v. Branch Bank 1418 

Esl.leman's Appeal 1545 

Eubanks v. Dodds 1252, 1281 

Eustace, Re 1430 

Evans v. Arnold 1073 

V. Blackiston 1407 

V. Evans 1073, 1347, 1533 

V. Fisher 1491 

V. Foster 1490 

V. Gordon . . .1289, 1292, 1293 

V. Halleck 1542 

V. Inglehart . .1226, 1324, 1479 

1480, 1500 

V. Roberts 1226 

V. Tatem 1173 

V. Tyler 1033 

Evans, Re 1346 

Evansville Ice Co. v. Windsor. . 1019 

Evarts v. Nason 1545 

Evelyn, Ex parte 1134 

Evelyn v. Evelyn 1 103 

Everett v. Avery 142S 

Everitt, Matter of 12iS 

Ewer V. Corbet 1343 

Ewers v. White 1432, 1491 

Ewin, In re 1175 

Ewing V. Ewing 1024, 1169 

v. Moses 1520 

Evnon Goods of 1077 



Eyre v. Cox V>12 

V. Higbee 1205 

F. 

Fairbaim v. Fisher 1033 

Fairbanks v. Hill 1098 

Fairer v. Park 1462 

Fairfax v. Fairfax 1137, 1389 

Fairman's Appeal 1422 

Faler v. McRae 1223 

Fallon V. Childester 1160 

Falor v. Doubet 1271 

Fambro v. Gault 1346 

Fann V. North Carolina R. 1026, 11(»9 

Farmers' Loan C^o. v. Smith. . . . 1032 

Farnsworth v. Whiting 1467 

Farnum v. Bascom.. 1461 

Farr v. Newman 1243, 1352 

Farrall v. Shea 1286, 1373 

Farrelly v. Ladd 1385 

Farrow v. Wilson 1278 

Farwell v. Carpenter 1072 

V. Jacobs 1043, 1407, 1527 

Faulkner v. Faulkner 1400, 1401 

Fawkos V. Gray 1478 

Fay V. Clieney 1214 

V. Fay 1509 

V. Haven 1018, 1167, 1174 

1179, 1181 

V. Holloran 1216 

V. Muzzey.1227, 1408, 1409, 1509 

Fellows V. Lewis 1178 

V. Little 1500 

V. Smith 1456 

Fclton V. Brown 1204 

Feltz V. ^ark 1141 

Fenlay v. Chirney 1280 

Fennimore v. Fennimore 1402 

Feray's Succession 1141 

Ferebee v. Baxter 1409 

Fergus v. Schiable 1457b 

Ferguson v. Barnes 11S9 

v. Carr 1146 

V. C-oUins 1106 

v. Glaze 1241 

V. IMorris 1173 



xlvi 



TABLE OF CASES IX VOL. II. 



See also Table of Cases in Volume I. 



JJEC. 

Ferlay v. Chirney 1280 

Fernandez, Re 1327 

Femie, In re 1032 

Ferreck's Estate 1461 

Ferrie v. Public Administrator. 1108 

1116, 1118 

Ferrin v. Myrick 1398, 1422 

Ferris v. Ferris 1155 

Ferry v. Laible 1256 

Fessenden's Appeal 1515 

Fetrow v. Fetrow 122G 

Field V. Brantley 1072 

V. Gibson 1173, 1184 

V. Mostin 14C9 

V. Schieflfelin ...1350, 1352, 1359 

V. Van Cott 1142 

Fielder v. Hanger 1130, 1507 

Fields V. Bush 1509 

T. Wheatley 1428 

Fillyan v. Laverty 1419 

Fiaeh v. Ragland 1233, 1439 

V. Rogers 1488 

Finlay v. Ohimey 1370 

Findlay v. Trigg 1444 

Findley v. Gidney 1420 

Finn v. Hempstead 1128, 1409 

First Xat. Bank v. Towle 

Fiscus V. Fiscus 1155, 1445 

Fisher, Re 1082, 1122, 1142 

V. Bassett 1160 

V. Dixon 1227 

V. Mossman 1390 

Fisk V. Cushman 1457 

V. Norvell 1134 

Fitch's EsUte 1024 

Fit^" V. Bca.sley 1405 

Fitz^'orald's Ef^tate 154.3 

Fitzliugh V. Fitzbugh 1257 

Fitzsjmmons v. Cassell 1405 

Flanders v. Clarke 1405 

V. Flanders 1357, 1358 

V. Lane 1528 

Fleece v. Jones 1 527 

Fleming v. Buchanan 1222 

V. Cbunn 121 'i 

Flemings v. .Tarrat 1 ISO 



Sec. 

Fletcher v. Ashbmner 1217 

V. Weir 1146, 1409 

Flynn v. Chicago R 1283, 1298 

Flintham's Estate 1421 

Flitner v. Hanley 1423 

Flood, Matter of 1439 

Flood V. Pilgrim 1510 

V. Strong 1511 

Flora V. Mennice 1135 

Floyd V. Herring 1153 

Fogg V. Holbrook 1398, 1422 

Foley . V. Bushway 1422 

Foltz V. Hart 1478 

V. Prouse 1154, 1216 

Fontaine v. Tyler 1461 

Fonte V. Horton 1402 

Foote, Appellant 1401 

Foote V. Colvin 1226 

Forbes v. Peacock 1405 

V. McHugh 1146 

V. Ross 1335 

Ford V. Exempt Fire Co 1509 

V. Ford 1065, 1543 

V. Russell 1256, 1257 

1318, 1349 

V. Teagle 1084 

V. Westcrvelt 1490 

Foreign Missions, In re 1128 

Forney v. Benedict 1389 

Forniquct v. Forstall 1409, 1410 

Forsyth v. Burr 1230 

V. Ganson 1401 

Fosbrook v. Balguy 1330 

Easter's Appeal 1084, 1214, 1217 

Foster V. Bailey 1409 

V. Banbury 1076 

V. Bates 1195 

V. Brown 1 1 00 

V. Commonwealth ....1094, 1120 

V. Elsley 1039 

V. Fifield 1200.1451. 1507 

V. Foster 1004, 1449 

V. Starkey 1380 

V. Stone 1545 

Foteaux v. Lepage 1210, 1509 



TABLE OF CASES IN VOL. II. 



xlvii 



See also Table of Cases in Volume I. 



Sec. 

Fourth Nat. Bank v. Mead 1220 

Fowle V. Thompson 1334 

Fowler v. Colt 1481 

V. James 1439 

V. Kell 1098 

V. Tnie 1390 

Fowler's Will 1083 

Fox, Matter of 1459 

Fox V. Carr 1024, 1025 

V. Van Norman 1184 

Frackelton v. Masters 1407 

Francis' Will 1082 

Franklin v. Depriest 1142 

V.Franklin 1152 

V. Low 1370 

Frary v. Booth 1443 

Fraser, Goods of 1036 

Fraser v. Fraser 1529a 

V. Young 1489a 

Frazer, Ke 1541 

Frazer v. Fulcher 1092 

V. Page 1494 

Frazier v. Frazier. . .1140, 1142, 1146 

Freakley v. Fox 1208 

Freeman v. Faislee 1518 

V. Kellogg 1033, 1137, 1154 

V. Rhodes 1522 

Freemantle v. Taylor 1474 

Freke v. Lord Carbery 1169 

French v. Currier 1346 

V. French 1063 

French's Estate 1131 

Fretwell v. Lemore. . 1120, 1165, 1174 

V. Stacy 1490 

Frew V. Clarke 1063 

Frey v. Eisenhardt 1326, 1326b 

V. Frey 1324 

Frick's Appeal 1109, 1115 

Frisby v. Withers 1032, 1413 

Frith V. Lawrence 1310 

Fromberger v. Griener 1213 

Fross's Appeal 1526 

Frost V. Denman 1545 

Froth ingham v. Petty 1154, 1160 

Fry, Goods of 1036 

Fry's Will 1078 



Sec. 

Frye v. Crockett 1140, 1142, 1143 

V. Kimball 1154 

Fryer v. Ward 1461 

Fuentes v. Gains 1059 

Fuguet's Will 1074 

Fuhrer v. State 1503, 1504 

Fulgham V. Fulgham 1124 

Fuller, Ex parte 1 160 

Fuller V. Dupont 1142 

V. Redman 1426 

Fulton V. Andrew 1085 

Fyson v. Chambers 1201 

V. Westrope 1069 

G. 

Gadsden v. Lord 1439 

Gage V. Johnson 1291, 1404 

Gaines v. De la Croix 1341 

V. Del Campo 1428 

Gainey V. Sexton 1428 

Gaither v. Lee 1432 

Gale V. Luttrell 1229, 1232 

V. Nickerson 1013 

Gall V. Stoll 1047, 1194 

Gallant v. Bouteflower 1292 

Gallego V. Attorney General... 1491 

Gaily, Goods of 1169 

Gamble v. Gamble 1246 

Gann v. Gregory 1086 

Gans V. Davergott 1112 

Gardner v. Gnatt 1137, 1488 

V. Gardner 1233, 1347, 1350 

1525, 1540 

V. McNeal 1471 

Gardner's Estate 1306 

Garesche v. Priest 1324, 1333 

Garfield v. Bemis 1419 

V. Williams 1285 

Garland, Ex parte 1325, 1326 

Garner v. Graves 1204 

V. Lyles iiS6 

Garnett v. Ma<?on 1343, 1406 

Garrcrtt v. Noble 1253 

V. Silwell 1520 

Garrison v. Cox 1112 

Gartshore v. Chalie 1467, 1478 



xlviii 



TABLE OF CASES IX VOL. II. 



See also Table of Cases in Volume I. 



Sec. 

Garvin v. Stewart 1520 

Garwood v. Garwood 1525 

Giskins v. Hammett 1409 

Gates V. Whetstone 1308, 1316 

Gatefield v. Hanson 1195 

Gatti, Goods of 1169 

Gaunt V. Tucker 1219 

Gay V. Lemle 1190, 1435 

V. Minot 1160 

Gayle, Succession of 1251 

Gaylord's Appeal 1077 

Geddis v. Irvine 1403 

Gee V. Hasbrouck 1224 

V. Young 1226 

Geiger v. Bardwell 1029a 

V. Kaigler 1387 

Genet v. Tallmadge 1483 

George v. Baker 1400 

V. George 1060, 1007, 1085 

V. Goldsby 1488 

V. Watson 1023 

Georgetown College v. Browne. 1032 

1113 

Gerrich v. Nason 1073 

Gerrish v. Nason 1073 

Gerry, Re 1479 

Geyer v. Snyder 1348 

Gliost V. Waller 1321 

Gibbens v. Curtis 151 1 

v. Peeler 1297 

Gibblett v. Read 1200 

Gibbons v. Riley 1042 

flibbs, Goods of 1006 

Gibbs, Re 1493 

Gibson v. Bolt 1479 

v. Farley 1210 

V. Lowndes 1263 

V. MaxwHl 1154 

Giddings v. Butler 1400 

V. CrosVjy 1451 

V. Gillingham 1466 

Giessen v. Bridgford 1123 

Gilbert, Re 1439 

V. Hales 1437 

V. Hardwirk 1408 

V. Hopkins 1514 



Sec. 

Gilbert v. Little 1418 

V. Welsh 1335 

Gilbert's Appeal 1331, 1358 

Gilchrist v. Cannon 1174 

Giles, Re 1439 

V. Dyson 1236 

Gilfillen's Estate 1543 

Gilkey v. Hamilton 1195 

Gill, Goods of 1101 

Gillespie v. Alexander 1491 

Gillett v. Needham 1112, 1118 

Gillette v. Plimpton 1211a, 1467 

Gilliam v. Gilliam 1457c 

Gilligan v. Daly 1325, 1326, 1326b 

1345, 1520, 1546 

Gillmore's Will 1078 

Oilman v. Oilman 1021, 1164 

v. Healy 1400 

V. McArdle 1219, 1220 

V. Wilber 1325 

Gilmore V. Hubbard 1387 

Girling v. Lee 1221 

Girod V. Pargoud 1402 

Gist V. Cockey 1443 

Oitliens v. Goodwin 1530 

Given's Estate 10S9a 

Gladson v. Whitney 1509 

Glass V. Howell 1283 

Olasscock V. Gray 1213 

Oleaton v. Lewis 1186 

Glenn v. Glenn 1310 

Globe Ins. Co. v. Gerisch 1195 

Glover v. Baker 1467 

v. Condoll 1467 

V. Olovor 1308, 1449 

V. Halloy 1542 

Glynn's Estate 1542 

Godbeo V. Sapp 1263 

Godbold V. Boborta 1409 

Goddard's Estate 1114, 1116 

Goddard v. Goddard 1099 

Godfrey v. Getchell 1452 

Godson V. Good 1378 

Golf V. Cook 1180 

Golder v. Chandler 1202, 1211 



TABLE OF CASES IX VOL. II. 



xlix 



See also Table of Cases in Volume I. 



ISkc. 

Gold's Case 1233, 1236 

Goldsworthy v. Crossly lOGO 

Goodale v. Moonoy 1464 

Goodall V. Marshall 1015, 1174 

V. Tucker 1179 

Goode V. Buford 1146 

Goodfellow V. Burchett 1215 

Goodhue v. Clark 1265 

Goodlett V. Anderson 1024, 1025 

Goodman, Re 1108 

Goodman v. Walker 1289, 1292 

Goodman's Trust, In re 1019 

Goodrich v. Treat 1098 

Goodwin v. American Bank.... 1349 

1352 

V. Goodwin 1358, 1526 

V. Jones 1239, 1241 

V. Milton 1195, 1218 

Goodyear v. Bloodgood 1409 

Gordon v. Finlay 1404 

V. Small 1476 

Gorgas's Estate 1467 

Gorham v. Montfort 1160 

Grant's Will 1078 

Granville v. McNeile 1405 

Grattan v. Appleton 1017 

V. Grattan 1500 

Green v. Collins 1205 

V. Creighton 1387 

V. Cutright 1226 

V. Fagan 1544 

V. Givan 1491 

V. Green 1022, 1210, 1223 

V. Hanberry 1321 

V. Howell 1500 

V. Listawell 1376 

V. Rati. bun 1490a 

V. Rugely 1167 

Greene v. Dyer 1419 

V. Grimshaw 1542 

Greenleaf v. Allen 1375, 1376 

Greenleaf 3 Estate 1089 

Greenough v. Greenough 1074 

Gregg V. Bonde 1438 

V. Currier 1509 

V. Gregg 1533 



Sec. 

Gregg V. Wilson 1154 

Gregory v. Ellis 1032 

V. Harrison 1408 

V. Hooker 1422 

Gresham v. Pyron 1150 

Greville v. Browne 1511 

Grew V. Breed 1380 

Grierson, In re 1112 

Griffin v. Simpson 1522 

Griffith V. Coleman 1097 

V. Simpson 1522 

V. Charlotte R 1280 

V. Frazier 1133 

Grosman, Re 1117 

Gottberg v. U. S. Bank 1350 

Gottsberger v. Smith 1539 

V. Taylor 1146 

Gould V. Hayes 1520 

V. Mathers 1405 

Gouldsmith v. Coleman 1251 

Governor v. Gowan 1148 

V. Williams 1146 

Graeser's Estate 1200 

Grafton Bank v. Wing 1362 

Graffam v. Ray 1398a 

Graff V. Castleman 1352 

Graham v. Davidson 1233 

Grande v. Herrera 1118 

Grant, Goods of 1043, 1128 

Grant v. Bodwell 1200, 1504a 

V. Grant 1474 

V. Hughes 1450, 1526 

V. Leslie 1037, 1040 

V. Reese 1174, 1236, 1270 

1542, 1537 

V. Spann 1036 

Grattan's Estate 1211 

Gratz v. Bayard 1326 

Graves v. Flowers 1409 

v. Graves 1456 

V. Page 1186, 1193 

V. Spoon 1508 

Gray v. Armistead 1362 

V. Gray 1067, 1154 

V. Harris 1408 

V. Hawkins 1251 



TABLE OF CASES IX VOL. II. 



See also Table of Cases in Volume I. 



Sec. 

Gray v. Lynch 1308 

V. Swain 1209 

Graysbrook v. Fox 1160 

Grayson v. Atkinson 1074 

Greaves, Re 1417 

Greeley's Will, In re 1072 

Green, Re 1346, 1347 

Grigg's Estate 1013 

Grigsby v. Wilkinson 1538 

Grim V. Carr 1280 

Grimes v. Talbert 1091 

Grist V. Hodges 1285 

Griswold v. Bigelow 1390 

V. Chandler ...1273, 1316, 135.5 

1358, 1510, 1538, 1542 

V. McDonald 1514 

Grogan v. Ashe 1471 

Grote V. Pace 1016 

Groton v. McDonald 1074, 1079 

V. Ruggles 1241, 1485 

Groton v. Ruggles 124Sa 

Groves v. Williams 1390 

Grubb V. Chase 1382 

Grundy, Goods of 1099, 1129 

Grymes v. Pendleton 1378 

Guarantee Trust Co. v. W^aller 116.' 

Guldin's Estate lOOU 

Gulick V. Gulick 1177 

v. Griswold 1340 

Gulledge v. Berry 140> 

Gundry v. Henry 1541 

Gunn v. Hodge 1289, 1292 

Gunning v. Lockraan 1523 

Gunning's Estate 1481 

Gunstan, Re 1075 

Gunter v. Jones 1419 

Gurdy, Re lO.l'ia 

Gusman's Succession 1032 

Guthrie v. Wheeler 1317, 1317a 

Guy v. Sharp 14(18 

Gwin v. Hicks 1226 

Gwynn v. Dorsey 1356, 1.542 

H. 

Hnbrrmnn's Appeal 15.^7 



Sec. 

Habeshon v. Vardon 1463 

Haddock v. District Court..., 1154 

Haddow v. Lundy 1013 

Hadjiar v. Pitchey 1152 

Haell V. Blanchard 1 145 

Hagan's Estate 1129 

Haggin v. Straus 1517a 

Hagthorp v. Hook 1331 

V. Neale 1410 

Haight V. Brisbin 1154, 1539 

V. Hoyt 1282, 1373 

Haig^vood v. Wells 1157 

Hairland v. Trust Co 1434 

Hale V. Hale 1448, 1451 

V. Herring 1326b 

V. Marquette 1515 

Hall, Goods of 1408 

Hall, Succession of 1078 

Hall V. Andrews 1507 

V. Carter 1401 

V. Chapman 1340 

V. Gushing 1137 

V. Deatly 1391 

V. Hall . 1084, 1208, 1242, 1525 

V. Hallett 1358, 1537 

v. Harvey 1467 

V. Irwin 1407 

V. Merrill 1434 

V. Wilson 1434 

Hall's Appeal 1334 

Hall's Estate 1308 

Hal leek, Estate of 1429, 152.'> 

Halleck v. Mixer 1280 

v. Mass 1 348 

Hallot v. Bassett 1021 

Ilalliday v. Du Bose 1113 

Hallowell's Estate 1208 

Hall's Estate 1510 

Hakey v. Reed 1430 

Ham V. Henderson 1291 

V. Kornogay 1409 

Hamakor's Estate 1531 

Ifamhcrlin v. Terry 1153 

Hambly v. Trott 1370 

Hamer v, Bethoa 1217 



TABLE OF CASES IK" VOL. II. 



li 



See also Table of Cases in Volume I. 



Sec. 

Hamilton, Matter of 1119 

Hamilton v. Hamilton. .. 1080, 1490 

V. Wilson 1285 

Hamilton's Estate 1454 

Hamlin v. Mansfield . ...1326, 1417 

Hammett v. Starkweather . . . 1418 

Hammond, Goods of 113 1 

Hammond v. Hammond. . 1466, 1525 

V. Hoffman 1428, 1429 

V. Putnam 1217 

V. Wood 1032 

Hampson v. Physink 1451 

Hancock v. Podmore 1421 

Handley v. Heflin 1476 

Handy v. Collins 1545, 1546 

Hankey, Re 1427 

Hankins v. Kimball 1212, 1509 

Hanley v. Kraftezyke 1056 

Hanna v. Prewitt 1123 

Hanson v. Hanson 1517a 

Hanover, Ee 1116 

Hanvy v. Moore 1522 

Hapgood V. Houghton . , . 1398, 1422 

V. Jennison 1545 

Happiss V. Eskridge 1098 

Harcourt v. Morgan 1480 

Hard v. Mingle 1367 

Hardaway v. Parham 1153 

Harding v. Evans 1256, 1397 

Hardinge, Goods of 1032, 1 106 

Hardy v. Thomas 1190 

Hare, Goods of 1066 

Hare v. Nasmyth 1017 

V. O'Brien 1173 

Harker v. Clark 1279 

V. Whitaker 1374 

Harkins v. Hughes 1491 

Harlan, Estate of 1093 

Hai ley v. Bagshaw 1087 

Harlow v. Harlow 1528 

Harness v. Green 1428 

Harney v. Dutcher 1408, 1410 

Harper v. Archer 1214, 1363 

V. Butler 1164 

V. Davis 1459, 1490 



Sec. 

Harper v. Smith 1407 

V. Stroud 1433 

Harrell v. Witherspoon 1257 

Harrington v. Brown . ..1153, 1355 

1358 

V. Kateltas 1390b 

V. Price 1225 

V. Stees 1089 

Harris v. Camp 1084 

V. Dillard 1154 

V. Ely 1522 

V. Ferguson 1200 

V. Foster 1543 

V. Harris 

V. Harrison , 1247 

V. Ingalls 1505 

V. Meyer 1223 

V. Milburn 1135 

V. Orr 1273, 1315 

V. Parker 1644 

V. Pue 1074 

V. Saunders 1426 

V. Seals 1154 

V. Stilwell 1526 

V. Wyatt 1088 

Harris, Re 1457b 

Harrison v. All Persons 1115 

V. Clark 1135, 1152, 1153 

V. Denny 1461a, 1478, 1487, 1517a 

V. Every 1060 

V. Harrison 1206, 1218 

V. Henderson 1047 

V. Mahorner 1176 

V. Meadors 1504 

V. Moseley 1280 

v. Nixon 1017 

V. Perea 1 545 

V. Rowley 1 193 

v. Sterry 1015 

V. Turbeville 1147 

V. Vreeland 1366 

Harrison's Appeal 1085 

Hart V. Bostwick 1160 

V. Coltrain 1027 

V. Hart 1357 



lii 



TABLE OF CASES IX VOL. II. 



See also Table of Cases in Volume I. 



Hart V. Jewett 1-424, 

V. Rust 1063, 

V. Smith 

V. Soward 

V. Ten Eyck 

Harter v. Harter 

V. Taggart 

Harth v. Heddlestone 

Hartley v. Lord 

Hartnett v. Wandell 1036, 1041, 

Hartsfield v. Allen 

Hartwell v. Clutters 

V. Parks 

V. Rice 

Hartz V. Sobel 

Hartz's Appeal 

Hartzell v. Commonwealth. . . 
Harvard College v. Amory .... 

Harvey, Goods of 

Harvey, Re 

Harvey v. Harvey 

V. Richards 1174, 

Harwood v. Goodright 

Hasbrouck v. Hasbrouck 

Haskell v. Brown 

Haskett, Re 

Haskina v. Miller 

Hassall v. Smithers 

Hassinger's Appeal 

Hastings, Goods of 

Hastings v. Myers 

V. Rider 

Hatch V. Hatch 

v. Proctor 

Haschett v. Berney 

Hathaway v. Sherman . . . 1202, 

Hathaway's Appeal 

Hathornthwaite v. Russell .... 

Hattatt v. Hattatt 

Hauck V. StanfTcr 

ITaugh v. Seiibold 

Haven's Apju-al 

Hawes v. Humphrey 1076, 

V. Smith 

Hawko v. Wedderbiinu' 



Sec 

1428 

1402 

1123 

1098 

1230 

1085 

1390 

1346 

1135 

1042 

1308 

1221 

1083 

1500 

1083 

1146 

1140 

1324 

1084 

1130 

1482 

1179 

1004 

13.36 

1292 

1135 

1113 

1211 

1113 

1115 

1456 

1073 

1502 

1195 

1176 

1211 

1065 

1033 

1062 

1509 

1452 

1451 

1085 

1255 

1116 



Sec. 

Hawkes v. Saunders 1395 

Hawkins v. Day . ..1402, 1436, 1476 

V. Glass 1370 

V. Johnson 1186 

V. Ridenbrout 1418 

V. Robinson 1101 

Hawthorne v. Beckwith 1506 

Hawley v. Botsford 1390 

v. James 1509 

Haxall V. Lee 1115 

Hayes, Re 1454 

Hayes v. Pratt 1028, 1031, 1174 

Haynes v. Foshaw . 1239 

v. Haynes 1490 

V. McDonald 1462a 

v. Meek 1150 

Haynsworth v. Frierson 1203 

Hays V. Doane 1227 

V. Hays 1402 

V. Jackson 1250, 1494 

V. Matlock 1504 

Hay's Estate 1486, 1541, 1546 

Haytliorp v. Neale 1360 

Hazard v. Engs 1544 

Hazelden v. Wliitesides 1195 

Hazen v. Darling 1146 

Head v. Brid.^es '. 1402 

V. Sutton 1206, 1213 

Heager's Executors 1441 

Hcaly V. Superior Court 1140 

Healy's Estate 1154 

Heard v. Drake 1444, 1440 

V. Northington 1211 

Hearth v. Heddlestone 1346 

Heath V. Allin 1355, 1357, 1402 

V. Belk 1428 

V. Chilton 1292, 1403 

V. Wells 1390 

Heather, Re 1471 

Heathcrington v. Lewenburg. . . 1479 

HcHJderly v. Downos 1378 

Hedrick v. Tuckwiller 1331 

Hedenl>org v. lTc<l.iil>(rg. . . 1173, 1179 

Hecrmans v. Hill J072 

Hegarty's Appeal 1059, 108;" 



TABLE OF CASES IN VOL. II. 



liii 



See also Table of Cases in Volume I. 



Sec. 

H^erich v. KedJie 1283 

Heigliway v. Pendleton 1214 

Hellen v. Wideiuan 1288 

Helm V. Van Vleet 1294 

Helme v. Sanders 1170 

Helmsley v. Mi;Kim 1445a 

Hemmy v. Hawkins 1349 

Hemphill v. INloody 1487 

Henderson v. Ayers 1439 

V. Clarke 1120 

V.Henderson 1329, 1331 

V. Ilsley 1411 

V. Simmons LjIO, 1542 

Hendrick v. Gidney 140'J 

Hendricks v. Snodgrass 1128 

V. Thornton 1405 

Hendrickson v. Hendrickson . . . 1514 

Hendriu v. Colgin 1130 

Hendrix v. Hendrix 1510 

Hendry v. Cline 1310 

Henfrey v. Henfrey 103G 

Hengest's Appeal 1402, 1525 

Henry v. Estey 1418 

Henry's Succession 1116 

Henry County v. Taylor 1387 

Henshaw v. Blood 1233 

V. Miller 1280 

Hensley v. Dennis 1271 

Henson v. Ott 1218 

Hepburn v. Hepburn 1273 

Hernandez, Goods of 1139, 1144 

Heron, Estate of 1 104 

Heron v. Hofiner 1403 

Herrick v. Wright 1470 

Herriman v. Janney 1142 

Herring v. Whittara 1461 

Herron v. Marshall 1S60 

Hesson v. Hesson 1403 

Hester v. Hester 1407, 1467, 1506 

V. Wesson 1255 

Hewett V. Bronson 1421 

Hewson v. Shelley 1092a 

Heydock's Appeal 1 174 

Heyer's Appeal 1532 

Hibbard V. Kent 1120 



Sec. 

Kibbler's Estate 1037 

Hickling v. Boyer 1381 

Hickman v. Kamp 1233 

Hicks V. Chouteau 1144 

Hieschler, Re 1451 

Higbee v. Bacon 1525 

V. Billick 1346 

Higgins V. Driggs 1398a 

V. Eaton 1174 

V. Higgins 1231, 1476 

V. Rector 1428 

Hight V. Wilson 1075 

Hill V. Alspaugh 1115 

V. Buford 1443 

V. Cock 1217 

V. Gomme 1476 

V.Henderson 1189, 1190 

V. Simpson 1349, 1350, 1357 

V. Tucker 1031, 1042, 1179 

V. Walker 1389 

Hillman v. Stephens 1522 

V. Young 1310 

Hill's Estate 1540 

Hilton V. Hilton 1545 

Hilyard's Estate 1479 

Hincheon's Estate 1320, 1422 

Hindman v. State 1334 

Hindmarsh v. Charlton 1077 

Hines v. Hines 1019, 1208 

Hinton v. Bland 1128 

V. Parker 1236 

Hirschfield v. Cross 1522 

Hirst v. Smith 1410 

Hitchcock v. Mosher 1202, 1545 

Hobart v. Connecticut Turnpike 

Co 1173 

Hobbs v. Craige 1522 

Hoblit V. Sandmeyer 1420a 

Hobson V. Swan 1025, 1092 

Hocking Valley R. v. White 1531 

Hodgdon v. White 1389 

Hodge's Estate 1485 

Hodge V. Hodge 1208, 140S 

Hodgman, Re 1545 



liv 



TABLE OF CASES IN VOL. II. 



See also Table of Cases in Volume I. 



Sec. 

Hodgson V. Fox 1445a, 1491, 1508 

V. Shaw 1427 

Hoes V. N. Y., etc., R. Co 1025 

Hoffman v. Hoffman 1445a, 1491 

V. Wilding 1213 

Hogan V. De Peyster 1324, 1335 

V. Grosvenor 1077 

Hoke V. Fleming 1400 

V. Hoke 1316 

Holbert, Succession of 1421 

Holbrook v. Bentley 1137 

V, Head 1033 

Holcomb V. Holcomb 1264, 1308 

V. Phelps 1015 

V. Sherwood 1527 

Holcombe v. Beach 1289, 1293 

V. Holcombe 1402 

Holden v. Blancy 1082 

V. Fletcher 1419 

Holladay v. Land Oo 1345, 1346 

Holland v. Hughes 1324 

V. Prior 1519 

Hollonbeck v. Pixley 1449, 1451 

Hollins, Re 1508b 

Hollis V. Smith 1291 

HoUister v. Attmore 1500 

Holman v. Perry 1160 

V. St. John 1369 

Holmes, In re 1128 

Holmes v. Bridgman 1308 

V. Campbell College 1083 

V. Holmes 1120, 1496, 1515a 

V. Remscn 1010 

Holt V. Murray 1426 

V. Ziglar 1067 

Holyoke v. Ilolyoke 1023, 1171 

V. Mutual Life Ins. Co 1024 

Hone V. Txxrkman 1546 

Ilonywood, Good.s of 1085 

Hood, Re 1155, 1247 

Hood V. Tx)rd Barrington 1057 

1058, 1160 

Hook V. P.iyno 1538 

Hook.'* V. Brovvn 1067 



Sec. 

Hooker v. Bancroft 1230 

Hooper v. Brj-ant 1418 

V. Gk>odwin 1368 

V. Gorham 12S2 

V. Moore 1170 

V. Olmstead 1174 

V. Scarborough 1128, 1154 

V. Stewart 1092, 1153 

V. Summersett 1186, 1187 

Hooper 3 Will 1473 

Hoover v. Miller 1236 

Hopkins v. Morgan 1256, 1397 

T. Towns 1186 

Hopkin's Appeal 1172 

Hopkinson v. Leach 1439 

Hopper V. Hopper 1173 

Hordern v. Hordem 1326 

Horlock, Re 1469 

Horn's Estate 1205 

Horton v. Robinson 1214 

1512, 1512a 

Hosack V. Rogers 1157 

Hough V. Bailey 1362 

V. Harvey 1538, 1545 

House V. House 1227 

Houston, Goods of 1139 

Houston V. Howie 1265 

V. Wilcox 1101, 1484 

Houts V. Shepherd 1337 

Hover v. Agnew 1457 

Hovey v. Hovey 1457 

V. Blakeman 1402 

v. Newton 1375 

V. Page 1280 

V. Smith 1540 

Howard v. Dougherty 1 135 

V. Howard 1518 

V. Leavell 1 420 

Howcott v. Warren 12S4 

IIowc V. Lord Dartmouth 1324 

v. PealMxly 1112 

V. Winn 1331 

Howe's E.statc 1508c 

Tlowel V. Price 1430, 1512 



TABLE OF CASES IN VOL. 11. 



See also Table of Cases in Volume I. 



iSEC. 

Howell V. Howell 1288 

V. Metealf 1135 

V. Reams 1427, 14.35 

Howland V. Coffin 137G 

V. Green 1473 

Hoxie V. Hoxie 1474 

Hoysradt v. Gas Co 1170 

Hoyt'B Estate 1509 

Hubbard v. Alexander 1468 

V. Barcas 1098 

V. Hubbard 1439 

Hubbell V. Fogartie 1184, 1187 

Hudson V. Barrett 1531 

V. Breeding 1420 

V. Hudson 1404 

Huff V. Thrash 1405 

V. Watkins 1283, 1370 

Huger V. Dawson 1435 

Hughes, Re 1166, 1173 

Hughes V. Turner 1060 

Huggins V. Tole 1282 

Hughes' Estate 1431 

Hughlett V. Hugh lett.... 1140, 1406 

Huldane v. Eckford 1021 

Hulkes, Re 1538 

Hull T. Hull 1264 

V. Neal 1028 

Humbert v. Wurster 1195 

Humphrey v. Hadnall 1 490 

V. Merritt 1226 

Humphreys v. Keith 1506 

Hunt, Goods of 1063 

Hunt V. Hamilton 1140 

Hunter v, Bryson 1037, 1042 

V. Hunter 1403 

Hunt's Goods 1141 

Hurd V. Reed 1064 

Hurlburt v. Wheeler 1540 

Hurley v. Farnsworth 1420a 

Hursey v. Coffin 1033 

V. Surles 1440 

Husband v. Pollard 1304 

Huse T. Brown 1423 

Huston V. Dodge 1467 

Hussey v. Coffin 1154 

Hutchenson v. Pigg 1146 



Hutchings v. Bank 1375, 

Hutchins v. State Bank... 1175, 

Hutchinson v. Lambert 

V. Owen 

V. Priddy 1116, 

V. Reed 

Hutchinson's Appeal 

Hutton V. Williams 

Hyatt V. McBurney 

V. Vanneck 

Hyde v. Neate 

Hyland v. Baxter 



Idley V. Bowen 

Ikelheimer v. Chapman 

Ike's Estate 

Illinois Central R. v. Crazin .... 

1169, 

Illinois Steel Co. v. Konkel 

Inches v. Dickinson 

Inchiquin v. French 

Ingle V. Jones 

V. Partridge 

V. Richards 1058, 

Iowa Co. V. Holderbaim 

Ipswich Man. Co. v. Story 

Ireland v. Corse 

V. Corso 

Irvin V. Ironmonger 

Irvine's Estate 

Irwin's Appeal 

Isham V. Gibbons 

Israel v. Wolf 

Ivens V. Elwes 

Ives V. Allyn 

V. Ashley 1358, 

V. Beecher 

V. Salisbury 



Jackson v. Alsop. 
V. Chase. . . . 
V. Hewlett. . 



Sec. 
1376 
1176 
1352 
1124 
1310 
1153 
1200 
1535 
1523 
1402 
1489 
1470 
1543 



1084 
1346 
1544 
1026 
1170 
1405 
1515a 
1376 
1062 
1413 
1323 
1391 
1516 
1208 
1545 
1546 
1478 
1402 
1171 
1172 
1089 
1428 
10.57 
1515 
1200 
1020 



1467 
1310 
1084 



Ivi 



TABLE OF CASES IN VOL. II. 



See also Table of Cases in Volume I. 



Sec. 

V. Hilt 1391 

V. Jackson 1500 

V. Paulet. . 1041 

V. Phillips 1463, 1464 

V. Vaudalfsen 1358 

v. Wilson 1146 

Jacob V. Emmett 1538 

Jacob's Appeal 1346 

Jacobs V. Ditz 1489 

V. Woodside 1208 

Jacobus V. .Jacobus 1218, 1317 

Jacoiub V. Harwood 1404 

Jacques v. Chambers 1486 

Jaffrey v. Smitn 1428 

James v. Beesly 1509 

V. Little 1515 

V. West 1208 

James's Appeal 1256, 1257, 1318 

Jamison v. Lillard 140(i 

Jarvis v. Rogers 1370 

Jeeter v. Durham 1428 

Jefferson v. Beall 1173, 1179 

Jefferson's Estate 1428 

Joffersonville R. R. v. Swayne. . 1091 

Jelke V. Goldsmith 1363 

Jemison v. Smith 1170 

Jenkins, Goods of ll;;3 

Jenkins, Will of 1081 

Jenkins v. French 1370 

V. .Jenkins 1417 

V. Mitchell 1500 

V. Smith 1370 

Jenkinson v. Finance Co.. 1462a, 150Sc 

Jenks V. Allen 1160 

Jcnnoy v. Jenncy 1281 

Jennings v. Copeland 1213 

V. Davis 1247 

V.Newman L^O.-), 1397 

Jennison v. Hapsood 1016, 1175 

1180, 1421, 1422, 15.30, 1538, 1.547 

Jerninfrliam v. Herbert 1019 

Jerroms v. .ferronis 1404 

Jersey v. .Jersey 1467 

Jessup V. Spears 14."?:! 

Jowf'tt V. Turner 1051 

Jillett V. Union Nat. Hank 142s 



^^EC. 

Job V. Job 1315 

Jochumsen v. Suffolk Savings 

Bank 1001a, 1091, 1160 

V. Willard 1093 

Johns V. Johns. 1137, 1194, 1195, 1201 

V. Lawrence 1545 

V. Norris 1358 

Johnson v. Arnold 1217 

V. Ames 1205 

v. Buck 1511 

V. Baker 1421 

v. Belden 1500 

V. Brady 1428 

V. Brown 1310 

V. Corbett 1404, 1428, 1444 

1446, 1451, 1542 

V. Cross 1461 

V. Gushing 1222 

V. Fuquay 1141, 1147, 1247 

V. Henry 1450 

V. Hogan 1408 

V. Holliday 1513 

V. .Jackson 1177 

V. Lawrence 1545 

V. Longmire 1506 

V. McDowell 1471 

V. Molsbee 1416 

V. Newton 1322 

V. Parnell 1510 

V. Patterson 1214 

V. Pierce 1288 

V. Richards 1527 

V. Slawson 1428 

V. Stone 1223, 1267, 1376 

V. Von Kettler 1433 

V. Wiuwick 1194 

V. Wnllis 1173 

V. Waters 1390l> 

V. \A'iseman 1227 

v.-Wood:^ 1217 

Johnson's Will 1084 

Johnston, Goods of 1172 

Johnston v. Fort 1504 

V. Morrow 1422 

V. Tatnm 1116 

V. Ujiion Ba- k 1396 



TABLE OF CASES IN VOL. II. 



Ivii 



See also Table of Cases in Volume I. 



Sec. 

Johnston's Estate 135G 

Jones, Ex parte 1541 

Jones, Goods of 1037 

Jones, Re 1326, 1535, 1541 

Jones V. Beytagh 1124 

V. Bittenger 1112 

V. Boulware 1428 

V. Carter 1374 

V. Clark 1350 

V. Cliett 1173 

V. Dixon iMl 

V. Evans 1439 

V. Foxall 1538 

V. Gerock 1174 

V. Gordon 1141, 1142 

V. Habersham 1074 

V. Hooper 1334 

V. Irwin 1520 

V. Jenkins 125G 

V.Jones 1109,1144, 1105 

1407, 1522 

V. Jenks 1437 

V. Letcher 1483 

V. Lewis 1315 

V. Littlefield 1372 

V. Logan 1305 

V. McLeod 1428 

V. Moore 1391 

V. Moseley 1067 

V. Xicholay 1063 

V. Richardson 1138 

V. Ritter 1135, 1147 

V. Simmons 1342 

V. Smith 102Pa 

V. Stites 1324 

V. Thurmond 1305 

T. Warnock 1515 

V. Williams 1464, 1522 

V. Walker 1326 

V. Ward 1316, 1542 

V. Wightman 1213 

Jones's Appeal 1402, 1508, 1510 

Jordan, Goods of 1031 

Jordan v. Pollock 1288 

V. Polk 1135 

V. Tliornton ] 488 



bKC. 

Joseph, Re 1466 

Joslin V. Caughlin 1346 

Joy V. Fesler ■ 1422 

Jubber v. Jubber 1465 

Judge of Probate v. Clag- 

gett 1140, 1146 

V. Ellis 1390b 

V. Heydock 1146 

V. Sulloway 1208 

Judson V. Connolly 1297 

V. Gibbons 1051 

Juler V. Juler 1494 

Julian V. Reynolds 1358 

Justice V. Wilkins 1104, 1113 

K. 

Kain v. Fisher 122G 

Kaplan v. Coleman 1089a 

Kaminer v. Hope . .1134, 1135, 1506 

Kane v. Paul 1160 

Kansas Pacific R. v. Cutler. ... 1173 

Karr v. Karr 1247 

Karsten v. Karsten 1467 

Kavanaugh v. Thompson 1154 

Keane, Goods of 1115 

Kearney v. Turner 1102, 1129 

Kearsley v. Oxley 1376 

Keates v. Burton 1049 

Keating v. Keating 1353 

Kee V. Kee 1316 

Keech's Estate 1482 

Keefer v. Schwartz 1407 

Keeler v. Loan & Trust Co 1432 

Keister v. Howe 1106 

Keith V. Parks 1428, 1438 

V. Proctor 1170 

Kellan v. Kellan 1083, 1 160 

Kellar v. Beelor 1330 

Kellberg's Appeal 1154 

Keller's Appeal 1308 

Keely v. Pettus 1213 

V. Richardson 1461d 

V. Riley 1280 

Kelly, Re 1 155 

Kellow V. Central Iowa R 1283 



Iviii 



TABLE OF CASES i:X VOL. II. 



See also Table of Cases in Volume I. 



Sec. 

Kelsey v. Kelley 1220 

V. Smith 1409 

Kelso V. Vance 1030 

Kelly V. Davis 1445a, 150S 

V. Kelly 1408 

V. Richardson 1461 

V. West 1153, 1160, 1531 

Kemp V. Waddingham 1426 

Kendall v. Bates 1386, 1387 

Kennard v. Clay 1457b 

Kennedy v. Chapin 1296, 1341a 

V. Davis 1211 

V. Hodges 1024, 1173 

V. Kennedy 18, 174, 1465 

Kennedy's Estate 1154 

Kennerly v. Wilson 1284 

Kent V. Cloyd 1520 

V. Dunham 1479, 1481 

V. Stiles 1247 

Kepple V. Crabb 1233 

Kerchner v. McRae 1397 

Kerlee v. Land Co 1195 

Kernochan, Re 1497 

Kernochan v. Elevated R. R. Co. 1216 

Kerr v. Dougherty 1459 

V. Hill 1542 

V. Kerr 1 153 

V. Moon 1019, 1104, 1173 

V. Water 1402 

V. Wimer 1423 

Kersey v. Bailey 1449, 1451 

Kidd's Estate 1 141 

Kidwell V. KidwcU 1213, 1216 

Kilborn's Estate 1083 

Kilbourne's Estate 1527 

Killam v. Costloy 1154 

Kiliigrew v. Killigrew 1033 

Kilpatrick v. Bush 1179 

Kimball v. Burns 1430 

Kimball v. Sumner. 1213, 1510, 1512b 

Kinard v. Riddlehoover 1067 

King V. Anderson 1216 

V. Clarke 1179 

V. Foxwcll 1021 

' V. Green 1408, 1410 



Sec. 

King V. Jones '. . . . 1285 

v. King 1161 

V. Kinsey 1075 

V. Lyman 1191 

V. Morrison 1321 

V. Schakleford 1403 

V. Talbert 1413, 1487 

V. Thorn 1258, 129.i 

V. Whiton 1509 

King's Estate 1160, 1478, 1481 

1024, 1471a 

Kingdom v. Nottle 1285 

Kingman v. Kingman . ..1451, 1453 

Kinlay v. Gaddy 1389 

Kinmonth v. Brigham 1324 

Kingsbury v Scovill 1507 

V. Wilmarth 1451 

Kingsland v. Scudder 1544 

Kinnan v. Wight 1525 

Kinney v. Keplinger 1040 

Kirby v. State 1331 

Kirby's Appeal 1500 

Kircudbright v. Kircudbright.. 1498 

Kirkman v. Bcnham 132J 

V. Booth 1257, 1326 

Kirtlan, Estate of 1112 

Kittredge v. Folsom 1163 

Kyle V. Kyle 1525 

Kline v. Gathart 1289, 1290 

V. Moulton 1213, 1510 

Kline's Appeal 1504 

Kling V. Hummer 1402 

Kiiapp V. Jessup 1541 

Kniglit V. Cunningham 1390 

V. Davis 1381 

V. Could 1400 

V. TTnynie 1402 

v. Knight 1482, 1490 

V. Lasseter •. 1408 

V. Loomis 1037, 1407, 1413 

153S 

V. Mnlino R 1173 

V. Oliver 1500 

V. Yarborough 1346 

Knights V. Quarles 1280, 1286, 1360 



TABLE OF CASES IX VOL. II. 



lix 



See also Table of Cases in Volume I. 



Knowlton v Johnson . . . 




Sec. 
1527 
1292 
1219a 
1457b 
1547 
1160 
14.57 
1526 
1125 
1541 
1471 
1476 
1021 
1544 
1154 
1017 

1092 
1326 






Kock V. Feick 

Koelling v. Foster 

Kohler v. Knapp .... 1200, 

Koloff V. Chicago R 

Konvalinka v. Schlegel . . 


1216, 


Kooystra v. Buyskes .... 
Kost's Appeal 




Kramer v. Kramer 


1461a, 


Krone v Cooper 












Kurtz V. Say lor 




L. 

Xiabin v. Emigrant Bank. 
Labouchere v. Tupper . . 





Laeam v. Mertius 

Lacey v. Davis .... 1320, 
Lackland v. Stevenson . . 


1324, 


1427 
1402 
1123 


Lacoste v. Splivalo 

Lacroix, Goods of 




1148 
1169 


Lacy V. Stamper 

Ladd V. Wiggins 


.1324, 


1416 
1201 


Lafayette Ins. Co. v. Harris . . 

La Forge v. La Tourette 

Lagarde, Succession of 

Lahey v. Brady 


1025 
1404 
1310 
1371 


Laible v. Ferry 

Laidley v. Kline 

Lake v. Weaver 


. 1326, 


1326b 
1212 
1512 


Lamb v. Helm 




1135 


V. Lamb 

V. Crafts 

Lambright v. Lambright 
Lamine v. Darrell . ... 


.1418, 


1340 
1420 
1200 
1160 


Lamino" v. Gee 




1519 


Lancaster, Groods of . ... 
Landers v. Stone . . .1091 
Landis v. Saxton 


.1031, 
1095, 


1060 
1250 
1537 


Landry v. Dtlas 

Lanenville v. Anderson . 




138S 
1017 



Sec. 

Langbfcin, Re 1171 

Langford, Goods of 1040 

Langford v. Mahoney 1409 

Laugham v. Baker 1390 

v. Sanford 1494 

Langley, Goods of 1152 

Langley v. Harris 1137 

V. Hawke 1033 

V. Lord Oxford 134^ 

Langworthy v. Baker 1116 

Lanier v. Irvine 1140, 143."$ 

Lank v. Kinder 1400 

Lanning's Estate 1500 

Lansdowne v. Lansdowne. . 1374, 1487 

Lansing v. Lansing 1335, 1485 

Lansing's Estate 1024 

Lappin v. Mumford 1200, 1240 

Lark v. Linstead 1488 

Larkins v. Paxton 1437 

Laroe v. Douglass 1532 

La Rue v. Gilkyson 1431 

Latham's Will 1033 

Lathrop v. Merrill 1238, 1242 

v. Smith 1100, 1103 

Latta V. Miller 1326 

Laubscher v. Fay 1387 

Laughlin v. Lorenz 1251, 1320 

Laughton v. Atkins 1060 

Laundy v. Williams 147S 

Lawrence v. Elmendorf . 1018, 1174 

V. Embree 148J 

v. Hebbard 1017 

V. Kemp 1227 

V. Kitteridge 1171 

V. Lawrence 1173 

V. Parsons 113.> 

V. Wright 1195 

Lawrence's Appeal 1515a 

Lawrence's Will 1153 

Laws V. Thompson 142S 

Lawson v. Burgee 1128 

V. Hausborough 1444 

v. Lawson 1292 

V. Stitch 1461 

Lawson's .Appeal 1500 



Ix 



TABLE OF CASES IN VOL. II. 



See also Table of Cases in Volume I. 



Lawton v. Fish 

Lay V. Lay 

V. Mechanics' Bank 

Laycock v. Oleson. . 1289, 1292, 

Leach v. Pittsburg 

Leake v. Beanes 

V. Gilchrist 1091, 

V. Leake 

Leavens's Estate 

Le Baron v. Barker 

V. Long Island Bank 

1400, 

Le Blanc's Succession 

Lerlbetter v. Lofton 

Leddell v. Starr 

Lee y. Blodget 

V. Chase 1277, 1278, 

V. Lee 

V. Patrick 

V. Sedgwick 

Leeds Banking Co., Ee...l326, 

Leese, Goods of 

Lees V. W'etmore 1027, 

Lefever v. Hasbrouck 

Legardc, Succession of 

Legate v. Moulton 

Lehr v. Turball 

Lehr's Appeal 

Leib V. Wilson 1016, 

Leigh V. Barry 

Leitch V. Wells 

Leland v. Felton 

V. Kingsbury 1503, 

V. Manning 

Le Mason v. Ditson 

Le Moync v. Qiiimby 1212, 

I^ondc-ink v. Sawyer 

Lendon v. Woodward 

Lent V. Howard 

Lf-ntz V. Pilcrt 

Leonard v. ITaworth 

Lffinard v. Nye 

Lconino v. Loonino 

L(]<ard V. Vonion 1400, 



Sec. 
14S7 
1043 
1390 
1293 
1403 
1184 
1230 
1173 
1324 

1504a 
1256 

.1352 
1402 
1085 
1157 
1157 
1378 
1297 
1509 
1418 
1103 
1345 
1380 
1040 
1091 
1324 
1329 
1284 
1154 
1527 
1450 
1402 
1339 
120S 
1 504 
1170 
1372 
1515 

1197b 
1316 
1545 
1 1 1 5 

1457a 
1200 
1430 
1437 



fciEC. 

Le Prince v. Gillemot 1428 

Lcrch V. Emmett 1422 

Le Sage v. Coussmaker 1368 

Lesher v. Wirth 1455 

Leslie v. Marshall 1474 

Levan's Appeal 1104 

Leverett v. Dismukes 1110 

Levering v. Levering 1157 

Levy's Estate 1017, 1172 

Lewes, Trusts, Re 1484 

Lewin, Trusts 151 1 

Lewin v. Lewin 1490 

Lewis, Re 1542 

Lewis V. Lusk 1230 

V. Lyons 1242 

V. Mason 1504 

V. Reed 1341 

V. Ringo 1223 

V. Rumney 1389 

V. Watson 1147 

L'Fit V. L'Batt . 1086, 1169 

Li's Estate 1116 

Libby v. Christy 134G 

Libley v. Cobb 1414 

Liddlc V. McVickar . . 1526, 1537, 1542 

1544 

Lidderdale v. Robinson . . . 1428, 1525 

Lightcap's Appeal 1532 

Lighton, Goods of 1040, 1042 

Lillard v. Reynolds 1488 

Lilly V. Griffin 1544 

V. Stahl 1504 

Lincoln v. Wright 1402 

Lindsay v. Lindsay 1032 

Lingle v. Cook 114? 

Liiiscnbigler v. Gourley 1288 

Lisle v. Couchman 1083 

Lister v. Smitli 107 I 

Litchfield v. Cudworth 1358 

V. Flint 1256, 1293 

Litterdale v. Robinson 1145 

Little V. Berry 1125 

V. Little 1418, 1526 

V. Sinnett . ...1091, 1093, 1420 

V. Walton 1245 



TABLE OF CASES IN VOL. II. 



Ixi 



See also Table of Cases in Volume I. 



Sec. 

Littlefield v. Eaton 1230, 1390 

1446b 

Livermore v. Ayres 1109 

V. Bemis 1151 

V. Wertman 1322 

Liverpool Bank v. Walker 1379 

Livingston v. Newkirk 1243 

Lloyd V. Chambers 1055 

v. Crispe 1353 

V. Finlayson 1160 

V. Mason 1094, 1430 

Lloyd's Estate 1490, 1538 

Loane v. Casey 1439 

Lockhart v. Public Administra- 
tor 133-t 

V. Wliite 1433 

Lockwood V. Gilson 1260 

v. Stockholm 1130 

V. U. S. Steel Co 1241a 

Lockwood, Ke 1073 

Loeven's Estate 1236 

Loitis V. Loftis 1422 

Lomas v. Wright 1475 

Lombardi, Re 1020, 1116 

Lommen v. Tobiason 1538 

Longford v. Eyre 1077 

Long V. Easley 1115, 1129 

V. Hitchcock 1279 

V. Huggins 1126 

V. King 1219 

V. Kent 1489 

V. Long 1271 

V. Morrison . ..1280, 1282, 1366 

V. Symes 1046 

V. Wortham 1157 

Longley v. Hall 1545 

Lor.gnet v. Scarven 1214 

Loper, Matter of 1387 

Lord V. Lord 1478 

Loomis V. Armstrong 1545 

Lorimer, Goods of 1044 

Loring v. Bacon 1148 

V. Cunningham 1200, 1218 

V. Horticultural Society .. 1480 

V. Oakey 1170 

V. Steineman 1527 



Sec. 

Lothrop V. Wightman 1241, 1358 

Lott V. Meacham 1156, 14S8 

Logher v. Williams 1285 

Louisville R. v. Herb 1026, 1198 

Lovell V. Field 1256, 1364, 1397 

V. Minot 1324 

Lovering v. Minot 1479 

Low V. Bartlett 1174 

Lowe V. Jones 1418 

Lowenthal's Estate 1230 

Lowentraut v. Jackson 1446 

Lowry v. Commercial Bank. . . . 1352 

V. Fulton 1044 

V. Newsom 1506 

Lowson V. Copeland 1308 

Loy V. Kennedy 1075 

Lucas V. Brooks 1062 

V. Doe 1407 

Luce V. Manchester 1173, 1228 

Lucht V. Behrens 1325, 1326 

Lucy V. Levington 1285 

Luckey, Re 1422 

Lucy V. Lucy 1212, 1213, 1428 

1510, 1512b 

Ludlam's Estate 1461 

Ludlum V. Otis 1062 

Lukton V. Jenney 1275 

Lund V. Lund. .1421, 1422, 1542, 1546 

Lungren v. Swartzwelder 1063 

Lunsford v. Lunsford 1157 

Luscomb V. Ballard 1195, 1395 

1397, 1398 

Lusk V. Anderson 1544 

Luster v. Middlecoff 1142 

Lutham v. Moore 1362 

Lyall V. Paton 1023 

Lyle V. Williams 1507, 1541 

Lynch v. Baxter 1361 

V. Divan 1236 

V. Bellew 1040 

V. Murray 1207 

V. Paraguay , . . 1016 

Lynn v. Sisk 1370 

Lyon, Ex parte H 35 

V. Hays 1258 

v. Home 1079 



Ixii 



TABLE OF CASES IN VOL. II. 



See also Table of Cases in Volume I. 



Lyon v. Lyon 1321, 1358 

V. Magagnos 1481, 1487 

V. Marshall 1289, 12^3 

V. Osgood 1146 

V. Safe Deposit Co 1494a 

Lyons, Ex parte 1128 

Lytle V. Beveridge 1358 

Lyttleton v. Cross 1437 

M. 

Mackey v. Coxe. . . . 1165, 1174, 1176 

Mackin v. Hobbs 1542 

Mackintosh v. Barber 1405 

Macnamara v. Jones 1544 

Macplierson v. Macpherson .... 1402 

Maddox v. Apperson 1263 

Madison v. Shockley 1186, 1204 

;Magee v. Vedder 1420 

Magner v. Ryan 1 195 

Magoffin V. Fatten 1482 

Magraw v. Imin 1179 

V. McGlynn . . . .1420, 1441, 1525 

Maboney v. Holt 1461 

V. Stewart 1430 

Mahon v. Allen 1250 

Maidman v. All Persons 1115 

Maitland v. Adair 1467 

Mallory v. Hot Springs Co 1403 

Malone v. Kelley 1335 

Maloney's Estate 1326 

Malony's Appeal 1543 

Maltass v. Maltass 1020 

Maltby v. Russell ; . 1437 

Mandeville v. Mandeville 1033 

1110, 1113, 1137 

Manly, In re 1036 

Mann v. Everts 1146, 1418 

V. Lawrence 1421, 1542 

Manning v. Manning 1324, 1500 

Man.ser's Estate 1154, 1271 

Mansfield v. MeFarland 1015 

V. Turpin 1173 

Manwcll V. P.riggs 1190, 1279 

1281, 1290 

Maples V. Milton 1226 



Sec. 

Maraman v. Trunnell 1258, 1260 

March v. Russell 1491 

Marcy v. Marcy 1070 

JMarjarum v. Orange Co. ..1245, 124Sa 

Mark v. Coats 1154 

Markland v. Albes 1115 

Mark's Estate 1325 

:\Iarr v. Play 1046 

Marrion v. Titsworth 1018, 1174 

Marsden, Re 1063 

Mirsden v. Kent 1348, 1355 

Marsh v. Evans 1490 

V. Harrington 1406 

V. People 1408 

V. Richardson 1520 

Marshall v. Broadhurst 1253 

V. Carson 1509, 1515 

V. Hitchcock 1527 

V. Halloway 1381 

V. King 1120 

V. Moore 1321 

V. Plow Co 1418 

Marshall, Re 1461a 

Marston v. Paulding 1264 

Martin v. Black 1376 

V. Boler 123G 

V. Bradley 1370 

V. Clapp 1270 

V. Curd 1430 

V. Ellerbe 1410 

V. Gage 1179 

V. Laphara 1477 

V. Martin . ...1403, 1457b, 1482 

V. McConnell 1346 

V. Perkins 1067, 1070 

V. Root 1220, 1297 

V. Williams 1391 

Martin's Appeal 1428 

Martineau v. Rogers 1473 

Marvel v. Babbitt 1408 

Mason v. Man 1417, 1431 

V. Nutt 1164 

Mason, Ro 1 546 

Mass. Hospital v. Boston 1218 

Massey v. Cureton 1356 



TABLE OF CASES IN VOL. II. 



Ixiii 



See also Table of Cases in Volume I. 



Sec. 

Hasten v. Blackwell 1378 

Masterman, Re 1465 

Maaterman v. ]\laberly 10G3 

Mather v. Minard 1161 

Mathes v. Bennett. . . 1448, 1449, 1451 

Mathews V. Meek 1410, 1413 

Matthews v. Brise 1321 

V. Matthews 1397, 1457 

Matthew's Appeal 1325 

Mawhorter v. Armstrong 1357 

Maxwell, Re 1050, 1122, 1142 

MaxTvell v. Craft 1507 

V. Maxwell 1473 

V. McClintock 1525 

r. Wettenhall 1481 

May V. Brewster 1407 

V. May 1258 

V. Vann 1418 

V.Walter 1315 

V. Woodward 1378 

Maychell, Goods of 1 106, 1113 

Mayer's Will 1052a, 1086 

Mayo V. Bentley 1438 

V. Clancy 1526 

V. Dawson 1200 

McAfee v. Flanders 1504b 

V. Phillips 1526, 1533 

McAlpin, Re 1544, 1545 

McArthur v. Scott 1460 

McBeth V. Hunt 1100, 1113 

V. Smith 1410 

McBride v. McBride 1063 

McCabe v. Lewis 1153, 1415 

McCabe, Re 1025 

MoCab«'s Will 1078 

McCaffrey's Estate 1153 

McCall, Estate of 1538 

McCall V. Peachy 1316, 1335 

McC^lley v. Wilburn i398a 

McCampbell v. Gilbert 1146 

McCandlish v. Hopkins 1115 

McCartney v. Calhoun 1358 

V. Osbom 1019 

McCarty v. Frazer 1208 

V. Hall 1164 

McCauley v. Harvey 1155 



Sec. 

McChord v. Fisher ■ 1143 

McClane v. Spencer 1246 

McClead v. Davis 1510 

McUIear's Will 1338, 1358a 

McClellan v. Garland 1242 

V. Filson 1421, 1424 

McClellan's Appeal 1100, 1110 

1111, 1112, 1113 

McClintock's Appeal 1428 

McCloskey v. Gleason 1321 

McClung V. Sieg 1015a 

McClure v. Askew 1491 

V. Bates 1173 

V. McClure 1443 

V. Miller 1279 

V. Owens 1430 

McColIoch V. Dawes 1389 

McCx>Ilum V. McCbllum 1347 

McGonico v. Cannon 1507 

McConnell v. McConnell 1189 

McCord V. McKinley 1451 

V. Thompson 1179 

McCormack v. Cook 1390 

McCormick v. McCormick 1307 

v. Stephany 1223 

V. Wright 1402 

MeCorn v. McCorn 1490 

IMcCoy v. Green 1438 

V. Paine 1193 

v. Scott 1213 

McCracken v. Graham 1528 

McCraine v. Hutchinson. . 1128, 1131 

McCreary v. Taylor 1154 

McCurley v. McCurley 1370 

McCustian v. Ramey 1311 

McCutchen v. Loggins 1029a 

:\rc Daniel v. Johns 1307 

McDaniels v. McDaniels 13S7 

McDeavman v. Maxfield 1238 

McDonald, Ex parte 1037 

McDonald, Re 1334, 1355 

McDonald v. King 1407 

V. McDonald 1526 

McDonnell v. Prendergast 1050 

-McDonough, Succession of 1154 



Lxiv 



TABLE OF CASES IX VOL, II. 



See also Table of Cases in Volume I. 



McDowall V. McDowall 1402 

Mcl^ldry v. McKenzie 1256 

McElroy v. Hatheway 1534 

V. Story 1255 

McFadgen v. Council 1154 

McFarland v. Howell 1256 

McFarlin v. Stinson 1256 

McFeeley v. Scott 1092, 1 160 

McGar v. Nixon 1441 

McGaughey v. Jacoby 1142, 1146 

McGehee v. Polk 1174 

V. Slater 1289 

McGhee v. Rjigan 1118 

McGill V. ilcGill 1253 

V. Monette 1321 

]\reGlaughlin v. McGlaughlin. . . 1491 

McGlinsey's Appeal 1422 

McGloin V. Vandorlip 1256 

Mc-Gooch V. McGooch 1104, 1107 

McGo\Tiey v. State 1028 

McGrath v. Barnes 1258, 1390 

McGregor v. McGregor 1032 

1033, 1403 

McGuire v. Buckley 1110 

McGuinness' v. Whalen 1410 

McHardy v. McHardy 1 544 

Mclntire v. Lauckner 1462a 

V. Mclntire 1538 

Mcintosh V. Humbleton 1417 

McKay v. McDonald 1 147 

!McKenna v. Ck)sgrove 1160 

McKenzie v. Anderson 1331, 1335 

V. Pendleton 1189 

McKey v. Young 1358 

McKim V. Haley 1146 

V. Harwood 1230, 1522 

Mf-Xniglit V. Morgan 1207 

McKoy V. Guirkin 1488 

McLane v. Spence 1 1 08 

McLaren v. McMartin 1389 

iMcLausrlilin v. Dorsey 1284 

V. Nelms 1522 

V. Ne\vton 1439 

McLaughlin, Re 1116 

McL ad V. Davis 1213 



Sec. 

McLean v. Weeks 1220 

McLenahan v. McLenahan 1512 

McLendon v. Woodward 1316 

McLeod V. Drummond 1349, 1350 

1352, 1357, 135? 

V. Johnson 1506 

McLoon V. Spaulding 1530 

McMahon v. Allen 1408 

V. Harrison 1104, 1107 

V. Paris 1393 

McMeekin v. Huson 1148 

V. Hynes 1190 

McMillan v. Rushing 1509 

McMurrey v. Hopper 1390 

McXabb v. Pond 1227 

McXally's Estate 1533 

McXair v. Dodge 1119 

McXair's Appeal 1335, 1417 

:McXairy v. Bell 1 135 

McXeill V. McX'eill 1265 

MeXulty v. Hurd 1428 

V. Pruden 1428 

McPike V. Wells 1212 

McQueen, Estate of 1538 

McRae v. David 1141 

V. McRae 1328, 1355 

McReynold's Estate 1448 

McShane's Will 1413 

McWhirke's Estate 1116 

MeWhorter v. Benson 1542 

IMcWillie v. Van Vacter 1236 

Mead v. Bjington 1341. 134G 

1354, 1355, 1358, 1543 

V. Orrery 1488 

Meadows v. Meadows 1500 

Mechlenburgh v. Bissell 1153 

Mecum v. Houghton 1461, 1471 

Meech v. Weston 1451. 1453 

V. Vanderveer 1251 

Meeker v. Vanderveer 1251 

Meeks v. Vaasault 1213 

Mogit V. Johnson 1503 

^tfeier's Estate 1 173 

Mcllcn V. Baldwin 1371 

Menifee v. Ball 1247 



TABLE OF CASES IX VOL. II. 



Lxv 



See also Table of Cases in Volume I. 



Sec. 

Menzies v. Pulbrook 1069 

Mercer v. Mackin 1084 

V. Newson 1358 

Merchant, Re 1200 

Meriden Steam Co. v. Guy.... 1428 

Merket v. Smith 1247 

Merkle v. Bennington 1128 

Merriam v. Hemmenway 1408 

Merrill v. Comstock 1103-1423 

V. N. E. Life Ins. Co 11G3 

1167, 1175 

V. Rolston 1070 

Merritt v. Buckman 1479 ! 

V. Bucknam 1478 j 

V. Dickey 1345 

V. Merritt 1325, 1542a 

V. Seaman 1292 

Metcalf, Goods of 1 134 

Mettler v. Warner 1325, 1358a 

Meyer, Re 1085, 1326 

Meyer's Estate 1079 

Michel, Succession of 1346, 1361 

Michener v. Dale 1219 

Michigan Society v. Corning... 1500 

Michigan Trust Co. v. Ferry. . . 1154 

1.531 

Mickle V. Miles 1223 

Middleby's Estate 1173 

Middletown v. Robinson 1288 

Midgley v. Midgley 1390 

V. Spicer 1494 

Mikell V. Mikell 1315 

Miles V. Boyden 1082, 1483 

V. Dumford 1405 

V. Peabody 1542 

V. Wheeler 1355, 1358 

Millard v. Harris 1541 

Miller, Succession of 1116 

Miller v. Alexander 1408, 1410 

V. Binion 1358 

V. Congdon . .. .1478, 1481, 1485 

V. Donaldson 1409 

V. Dorsey 13S9 

V. Eastman 1 120 

V. Harrison 1417 

V. Henderson 1362 



Sec. 

Miller v. Janney 1435 

V. Jones 1428 

V. Kieth 1118 

V. Meetch 1047, 1051 

V. Miller 1024,1060, 1453 

V. Philip 1478 

V. Proctor 1335 

V. Towles 1441 

V. Umberhower 1279 

V. Williamson 1256, 13.52 

V. WiLson 1282, 1366 

Miller's Appeal 1500 

Miller's Estate 1091 

Mills V. Carter 1153 

Milner v. Leishman 1270 

Milton V. Hunter 1073 

Mims V. Mims 1544 

Minck V. Walker 1191 

Miner v. Austin 1420 

Minor v. Mead 1234 

Minot V. Parker 1062 

V. Taylor 1265 

Minter v. Burnett 1512a 

Missouri Pacific R. v. Bradley.. 1G23 

1026 

V. Jay 1160 

Mitchell V. Adams 1156 

V. Cox 1015, 1166, 1174 

V. Kirk 1186 

V. Lunt 1115, 11S9, 1191 

V. Mitchell 1077, 1500 

V. Mount 1428 

V. Warner 1285 

V. Word 1016 

Mitchelson v. Piper 1437 

Mix's Appeal 1526 

Mockbee v. Gardner i361 

Moffat V. Van Millingen 1400 

Moffatt V. Longhridge 1358 

Moffett V. Elmendorf 1467 

Mole V. Mole 1482 

Mollan V. Griffith 1490 

Molloy V. Elam 1 203 

:\Tonell V. M'onell 1359, 14n2 

Monypeny v. Monypeny 1171 

Moran's Estate 1421 



Ixvi 



TABLE OF CASES IX VOL. II. 



See also Table of Cases in Volume I. 



Sec. 

Monroe s Estate 1358 

Monroe v. Merchant 1091 

Montague v. Dent 1227 

V. Smith 1375 

Montalvan v. Clover 1173 

Montgomery v. Armstrong. . . . 1257 

V. Dunning 1236 

V. Millikin 1407 

Moody V. Moody 1104 

V. Shaw 1257 

V. Vandyke 1407 

Moore v. Alexander 1135 

V. Bea^champ 1308 

V. Brandon 1120 

V. Burrow-s 1218 

V. Cha-pman 1142 

V. Darrell 1171 

V. Dixon 1519 

V. Dortie 1428 

V. Felkel 1322 

V. Fields 1015, 1173 

V. Gordon 1507 

V. Hamilton 1329 

V. Holmes 1230, 1540 

y. Kraft 1176 

V. Lesneur 1508 

V. Moore 1027, 1104, 1448 

V. Ridgeway 1137 

V. Ryers 1417, 1425 

V. Smith 1091, 1092, 1160 

1409 

V. State 114.5 

V. Tandy 1402 

V. Townshcnd 1374 

V. Willett 1403 

Mootrie v. Hunt 1 135 

Mordccai v. Boy Ian 1042 

More's Eatato 1302 

More V. Bennett 1370 

Moreland v. Lawrence 1119 

Morgan, Goods of.. 1060, 1063, 1087 

Morgan. Re 1500 

Morgan v. Dodge.. 1047, 1138. 115.-^ 

1154, 1156 

V. Ilamlct . 1390 



Sec. 

Morgan v. Locke 1160, 1415 

V. Morgan 1451 

V. Rotch 1520 

V. Thomas 1195 

Morgan's Estate 1116 

Moring v. Flanders 1430 

Morrell v. Morrell 1085 

Morriee v. Bank of England. .. 1437 

Morrill v. Foster 1236 

V. Morrill 1186 

Morris v. Bienvenu 1133 

Morris v. Dorsey 1445a, 1513 

V. Lowe 1187 

V. Morris . . ..1148, 1297, 1456 

V. Swaney 1084 

V. Wucher 1210 

Morrison's Estate 1242 

Morrison v. Smith 1187 

Morrow v. Peyton 1542 

Morse v. Clayton 1408 

Mortimer v. Paull 1134 

Morton, Goods of 1060 

Morton v. Hatch 117S 

V. Preston 1296 

V. Smith 1327, 1334, 1336 

V. Woodbury 1467 

Moseley v. Rendell 1410 

V. Taylor 125.'. 

Moses V. Julian 1160 

V. Moses 1200, 1210, 1230 

1330, 1358 

V. Wooster 1378 

Mosher v. Youst 1223 

Mosman v. Bander 1292 

Moss V. Rowland 1 173 

Moulo V. Garrett 1375 

Moultrie v. Hunt 1017, 1171 

Mountcastle v. Mills 1357 

Mountford v. Gibson 1190, 1193 

1195 

Mousseau's Will 1070 

Mowrcy v. Smith 1500 

Mowry V. Adams. .. 1254. 1261, 12Tt2 

V* Latham 1094, 1160 



TABLE OF CASES IN VOL. II. 



IXVH 



See also Tabic of Cases in Volume I. 



Sec. 

Moye V. Albrittou 1435 

V. Kittrell 1063 

Moyle V. Moyle 132S 

Mueller's Estate 1403 

Muirhead v. Muirhead 1157 

Mulcahy v. Mulcahy 1233 

Muldoon V. Crawford 1428 

Mulford V. Mulford 1244, 1405 

Mulhern v. Kennedy 1114 

Mullanphy v. County Court.. 1115 

Muller V. Muller 1406 

Mulligan v. Leonard 1081) 

MuUins V. Yarborough 1430 

Mumford v. Hall 1142 

Munden v. Bailey . 1308, 1542, 1543 

Mundorflf v. Wangler 114(5 

Munroe v. Holmes. . 1128, 1260, 1531 

V. People 1152 

Munroe's Estate 1033, 1116 

Munsey v. Webster 1113, 1115 

Munteith v. Rahn 1346, 1362 

Muntz V. Brown 1325 

Murdock v. Murdock . ..1051, 1407 

Murdock v. Ratcliff 1223 

Murphee v. Singleton 1488 

Murphy v. Carter 1407 

V. Creighton 1024, 1093 

V. Menard 1128 

V. Murphy 1127 

V. Vaughan 1430 

Murphy's Estate 1110 

Murray, Estate of r236, 1430 

Murray v. Blatchford 1404 

V. E. I. Co 1293 

V. Oliver 1155 

Murrell v. Cox 1400 

Musick V. Beebe 1526 

Musselman's Appeal 1547 

Musser v. Oliver 1508 

Musson V. May 1427 

Mustin's Estate 132G 

Mutual Benefit Life Ins. Co. v. 

Tinsdale 1001a, 1160 

Myer v. Cole 1397 

Myers, Re 1238 



Sec. 

Myers v. Daviess 1036, 1037 

Myron v. Myron 1432 



N. 



Nabb V. Nixon . 
Nagle V. Conrad. 



,1489, 1504a, 



Nalle V. Safe Deposit Co 

Nancy v. Snell 

Napier, Goods of 

Napier v. Wightman 

Nason v. Smalley 

Nass v. Van Swearingen 

Nation v. Tozer 

National Bank v. Stanton 

1160, 1161a, 

Navigation Co. v. Green 

Nayler v. Blount 

Nay lor v. McRuer 1029a, 

V. Moffat . . ..1160, 1164, 

v. Moody 

Neal V. Baker 

v. Charlton 

V. Knox R. Co 

V. Lamar 

V. Patten 

Neale v. Hagthorp 1239, 

Nease v. Capehart 

Needham v. Gillett 

Neeves v. Burrage 

Neff's Appeal .' ....1308, 1310, 

Neighbors v. Hamlin 

Neil V. Cunningham 

Neilley v. Neilley 

Nelson v. Boynton 

v. Carrington 

V. Cornwell 1386. 

V. Errickson 1523, 

V. Goree 

V. Hall 

V. Jaques 

V. Murfee 

V. Russell 142S, 



1236 

1504b 
1512a 
1504b 
1488 
1153 
1356 
HO.? 
119) 
1401 
1148 
1409 
1043 
1519 
1083 
1165 
1173 
1173 
1190 
1128 
1218 
1263 
1268 
1240 
1190 
1120 
1264 
1316 
1155 
1390 
1433 
1048 
1402 
1387 
1530a 
1490 
1335 
1522 
141.5a 
1439 



Ixviii 



TABLE OF CASES IN VOL. II. 



See also Table of Cases in Volume I. 



Sec. 

Kelson V. Schoonhover ....1513, 1544 

1545 

V. Serle 1255 

V. Smith 1450, 1451 

V. Stolenwerck ] 362 

V. Whitfield 1084 

V. Wyan 1500 

Nelson's Estate 1153 

Xesmith, Rh. 1200, 1237 

Nesmith v. Dinsmore 1500 

Kester v. Nester 1400 

Nettles V. McCown 133 1 

Kettleton v. Dinehart 1279, 1282 

1373 

Newbold, Goods of 1099 

Newcomb v. Goss 1435, 1438 

V. Williams . .1037, 1154, 1485 

Kewcombe v. Belo 1115 

Newell V. Clapp 1361 

V. Peaslee 1174, 1174 

New England Bank v. Stock- 
holders 1380 

New England Trust Co. v. 

Eaton 1013 

New England Mutual Life Ins. 

Co. V. Woodsworth.1025, 1228 

Newhall v. Turney 1408 

Newman, Succession of 1456 

Newman v. Jenkins 1160 

New Orleans Canal Co. v. Gray- 
son 1144 

Newson v. Jackson 12S0 

V. Newsom 1413 

Newsum v. Newsum 1244 

Newton v. Bronson 1268 

V. Cocke 1047 

V. Metropolitan R 1194 

V. Newton 1406 

V. Poole 1331 

V. Seaman's Friend Society 1062 

Nickels V. Stanley 1146 

Nicholas v. Jones 1256 

Nicholls V. Judson 1460 

V. Nicholls 1063 

Nichols, Re 1525 



Sec. 

Nicholson v. Elton 1370 

Nicolay v. Fritzchie 1410 

Nicoll V. Scott 1407 

Nield V. Smith 136J) 

Niland's Estate 1449 

Niles, Re 1398c 

Nimmo v. Commonwealth 1542 

Nisbett V. Murray 1462 

Noddings, Goods of 1044 

XoL'i, OoLids uf 1139 

Noonan v. Bradley 1179 

Norbury v. Norbury 1323 

Norcott V. Gordon 1490 

Norlleet v. Riddick 1186 

Norman v. Baldry 1470 

V. Strains 1388 

Normand v. Grognard. . . . 1015, 1141 

1166, 1174 

Norris v. Fristoe 1147 

V. Thompson 1461 

North V. Walker 1418 

North Carolina University v. 

Hughes 1409 

North's Estate, Re 1493 

Nortliampton v. Smith 1151 

Northcut V. Wilkins 1389 

Northey v. Northey 1488 

Northern Trust Co. v. Wheaton 1489a 

Northrop v. Lumber Co 1488 

Norton v. Dashwood 1227 

V. Frecker 1389 

V. Lilley 1239, 1292 

V. Palmer 1173, 1181 

V. Sewal 1282 

Norwood V. Harness 1322 

Nottage, Re 1461 

Nowlor V. Coit 1164 

Noycs V. Barber 1067. 1070 

V. Phillips 1387 

Nugent V. Giilavd 1239, 1339 

Numan'a Estate 1116 

Nunn V. Owens 1036, 1488 

Nusz V. Grove I(t99, 1104 

Nutting V. Goodridge 1282 

Nyce's Estate 1335 



TABLE OF CASES IX VOL. II. 



Ixix 



See also Table of Cases in Volume I. 



Sec. 

Nye V. Bartlett 1459 

V. Lothrop 1431 

N. Y. Life Co. v. Chittenden.. 1092 



0. 



Gates V. Lilly 1258, 


1390 


Oljer V. Breuster 


1266a 


O'Brien v. U. S. Trust Co 


1205 


O'Brien, Ee 


1104 


O'Brien's Estate 


1009 


O'Byrne, Goods of 


1139 


Oceanic Steam Nav. Co. v. 




Sutherberry 


1353 


O'Dee V. McCrate 


1270 


Odell V. Odell 


1465 


O'Dell V. Rogers 


1070 


Odiorne's Appeal 


1099 


Odlin V. Nichols 


1154 


O'Donnell v. Hermann 


1420 


O'Dwyer v. Geare 


1059 


Officer V. Officer 


1317a 


O'Flynn v. Powers 


1439a 


O'Gara v. Eisenlohr 


1099 


Ogilvie V. Ogilvie 1525, 


1538 


Oglesby v. Gilmore 1289, 


1292 


V. Howard 


1308 


O'Gornian v. Pfeiffer 


1089a 


Okeson's Appeal 


1522 


Old Colony Trust Co. v. Wallace 


1032 


Oldham v. Collins 1146, 


1408 


Oliphant, Goods of 


1037 


Oliphant, In re 


1017 


Oliver v. Rumford 


1367 


V. Vance 


1501 


Olmsten v. Clark 


1195 


Olson V. Olson 


1432 


Olson's Will 


1023 


Olwine's Appeal 


1413 


O'Neal V. Tisdale 


1141 


O'Neall V. Abney 


1410 


O'Neill V. O'Donnell 


1544 


Opie V. Castlenian 


1310 


Opinion of Justices 


1013 


Oram's Estate 


1320 


Orange County v. Kidder 


1442 



Sec. 

Orcutt V. Orms 1355, 1356 

Ord V. Fenwick 1292 

Ordinary v. Cooley 1142 

V. Smith 1140 

Ordronaux v. Helie 1174 

O'Reily v, Hendricl-cs 1186 

Ormsbee v. Piper 1276 

Orr V. Kaines 1229, 1384, 1491 

V. Newton 1046 

V. Orr 1332 

Osborn v. Cook 1332 

Osgood V. Breed 1500 

Ossipee v. Gafney 1309 

Ostendorf, Re 1115 

O'Toole V. Hurley 1419 

Oughton V. Seppings 1194 

Outlaw V. Farmer 1186, 119.> 

Overfield v. Bulitt 1354 

Overmann v. Grier 1438 

V. Lanier . . 1329, 1542a, 1544 

Owen V. Curzen 1409 

V. Miller 1024 

V. Owen 1042 

V. Potter 1446b, 1540 

V. Riddle 1347 

V. State 1277 

Owens V. Bloomer 1422 

V. Collinson 1431, 1433 

V. Cowan . . ..1160, 1161a, 1407 

Owmgs V. Bates 1106 

Owsley V. Central Trust Co... 1176 

1198-1362 

Owsley V. Yerkes 1072 

Owsley, Re 1091 

Oxenham v. Clapp 1187, 1436 

Oxley, Re 1326b 



Pace V. Oppenheim 1093, 1120 

Pa«heco, Estate of 1153 

Pack V. Bathust 1222 

Packer v. Wilson 1403 

Paflf V. Kinney 1330, 1541 

V. Patten 1439 

V. Tucker 1269 



Ixx 



TABLE OF CASES lis" VOL. II. 



See also Table of Cases in Volume I. 



iSEC 

Paice V. Archbishop of Canter- 
bury 1421 

Paine v. Paulk 1448 

V. Ulmar 1279 

Painter v. Henderson 1358 

Palmer v. Dent 1066 

V. Palmer .... 1209, 1213, 1239 

1510 

V. Pollock 1408 

V. Stevens 1214 

Parcher v. Bussell 1528 

Pardee, Re 1403 

Parham v. Stith 1310 

Park V. Fogarty 1479 

Parker v. Barlow 1366, 1385 

V. Brown 1070 

V. Cobb 1479 

V. Cowell 1431 

V. Day 1544 

V. Gilliam 1352 

V. Kuchens 1503, 1504 

V. Lewis 1421 

V. Nims 1502 

V. Parker . ...1070, 1160, 1170 

1265 

V. Wilson 1211 

V. Young 1427 

Parker, Re 1072 

Parks V. Parks 1500 

V. Rucker 1236 

Parris v. Cobb 1250 

Parry v. Ashley 1211 

Parr's Estate 1422 

Parsons v. Lyman 1175, 1170 

V. Mayos<len 1046, 1195 

V. Spaulding 1094 

Parson's Estate 1088 

Partoe v. Mathews 1428 

Partington v. Attorney Gen- 
eral 1018, 1174 

Partridge v. Court 1293. 1294 

V. Mitchfll L38;) 

Pashall V. Davis 1408 

Pnaquier, Succession of 1322 

Passmore v. Pnssmorc 1063 



teEC. 

Patchen v. Wilson .1289, 1290, 1291 

Patterson v. Cobb 1389 

V. Craig 1258 

V. High 1120, 1130 

V. Pagan 1164, 1173 

V. Patterson 1292, 1422 

V. Wardsworth 1274 

Patton V. Overton 1173 

Patton's Appeal 1153. 1250 

Paul V. Willis 1092 

V. Wilson 1326 

Pauley v. Pauley 1388 

Paull V. Simpson 1186 

Payne v. Pusey 1389 

V. Thompson 1140 

Peak V. Jones 1446 

Peake v. Ledger 1403 

Peale v. White 1137, 1154 

Pearce v. Cooke 1425 

V. Savage 1400 

Pearce, Re 1381 

Pearson v. Darrington . . . 1406, 1541 

1542 

.v Pearson 1481 

Pease v. Allis ]07() 

V. Walker 1200 

Peate v. Crane 1328 

Peay v. Fleming 1356 

Peck v. Bottsford 1401 

v. Ingersoll 1216 

v. Parrott 1201 

Peebles v. Overton 1292, 1356 

v. Watts 1122. 1123 

Pelham v. Newton 1061 

Pendleton v. Pendleton. .. 1100. 1104 

1129 

Pongree v. Goodrich 1226 

Penhallovv v. Pcnhallow 1457 

v. Dwight 1 266 

Pcnn V. Folger 1122 

Pcnningt(m v. llealey 1386 

Penny v. Br ice 1391 

V. Penny 15l!) 

People v. Curry 1147, 1148 

V. Gibbs 1370 



TABLE OF CASES IN VOL. II. 



Ixxi 



See also Table of Cases in Volume I. 



Sec. 

People V. Keyser 1400 

V. Lett 142S 

V. Miller 1140 

V. Parker 1514 

V. Peck 1173 

V. Petrie 1146 

V. Phelps 1417, 1435 

V. Pleas 1388 

V. Prendergast 1211 

Peoples V. Peoples 1146 

Pepper's Estate 1457c 

Percival v. McVoy 1423 

V. Gale 1247 

Perkins v. Ladd 1186 

V. Mathes 1461 

V. Perkins 1211 

V. Stone 1167 

V. Sturdivant (Miss.) . .. 1226 

Perkins's Note 1478, 1537, 1538 

App. 

Perkinson v. Gilford 1372 

Perrin v. Granger 1287 

V. Judge 1409 

Perrine v. Vreeland 1323 

Perry, Goods of 1196 

Perry, Trusts .1512, 1518, 1538, 1542 

1543, 1544, 1545 

Perry v. Campbell 1148 

V. Carmichael 1247 

V. Craig 1305 

V. Cunningham 1398a 

V. DeWolf 1050 

V. Field 1410 

V. Gill 1407 

V. Eeynolds 1220 

V. Smout 1324 

V. St. Joseph R 1091 

V. Wilson 1370 

V. Wooten 1332 

Personeni v. Goodale . ..1347, 1384 

1517a 
Peter v. Beverly . . . 1258, 1402, 1405 

Peter's Appeal 1387 

Pcterkin v. Inloes 1091 



Sec. 

Peters v. Leader 1193 

V. Peters 1160 

v| Public Administrator . . 1028 

1112, 1151 

V. Rhodes 1520 

Peterman v. Rubber Co 1538 

Petersen v. Chemical Bank.... 1173 

Retry v. Retry 1420a 

Pettengill v. Abbott 1422 

Pettingill v. Pettingill. . . 1137, 1155 

1546 

Petit V. Petit 1509 

Phaelon v. Houseal 1186 

Phelps V. McDonald 1200 

V. Phelps 1453 

V. Pond 1217 

V. Robbins 1087 

Phillips, Goods of 1134 

Philips V. Brazeal 1 148 

V. Chappel 1500 

V. Edward 1376 

V. Phillips 1083, 1403 

V. Rogers 1146 

V. Stewart 1137 

Phipps V. Steward 1518 

Piatt V. St. Clair 1408 

Pick V. Strong 1160 

Pickering v. Pendexter ..1104, 1109 

V. Towers 1030 

V. Weiting 1135 

Pico V. De la Guerra 1410 

Pico's Estate 1108 

Picot V. Biddle 1526 

Picquet v. Swan 1164 

Pierce v. Irish 1533 

Piester v. Piester 1430 

Piggot's Case 1032 

Pike V. Thorp 1438 

Pike's Estate 1033 

Pike County v. Rowland 1319 

Pillgrem v. Pillgrem . . . 1326, 1345 

Pinckard v. Pinckard 1542 

V. Woods 1355 

Pinkham v. Grant 1477 

Pinkney v. Singleton 1256 



Ixxii 



TABLE OF CASES IN"^ VOL. II. 



See also Table of Cases in Volume I. 



Sec. 

Pinkstaff v. People 1148 

Pinnacle Mining Co. v. Popst. . 1515 

Pinney v. Barnes 1413 

v" McGregory 1024, 1025 

1093, 1120, 1168 

V. Pinney 1194 

Piper V. Piper 1451 

Piper's Estate 1146 

Piquet, Appellant 1172 

Piquet, Ee 1141 

Piseoe v. Moore 1310 

Pistole V. Sweet 1106 

Pistorius's Appeal 1422 

Pitcher v. Armat 1 132 

V. Tovey 1376 

Pitkin V. Pitkin 1265, 1325 

Pitkins V. Peet 1490 

Pitt V. Pitt 1200 

Pitte V. Shipley 1430 

Pitts V. Melser 1058 

Pitt's Estate 1511 

Place, Re 1413, 1509 

Place V. Oldham.... 1028, 1428, 1438 

Plaisance's Estate 1033 

Planter's Association v. Harris. 1417 

Piatt V. Piatt 1200, 1210, 1544 

Pleasant's Appeal 1335 

Pleasants v. Dunkin 1118 

Plimpton V. Fuller 1512 

Plowman v. Henderson . 1114 

Plume V. Beale 10S5 

Plumer v. Marchant 1427, 1439 

V. Plumer 1227 

Plumley's Adm'r 150!)a 

Phimmer v. Brandon 1172 

Poirier v. Cypress 1233 

Polhcmus V. Middleton 1544 

Pollard V. Pollard 1490 

V. Scars 1389 

Pollexfen v. Moore 10-14 

Pollock, Re 1200, 1 525 

Ponce V. Wiley 13S7 

Pond V. Makepeace 1 108, 1 1 73 

1170, ]177 

Pool, Succe.s9ion of 1274. 1346 



fcEC. 

Poole V. Munday 1332 

Pope V. Boyd 1288, 1390 

V. Curl 1205 

V. Hinckley 1467-1471 

V. Waugh 1 170 

Porter v. Askew 1502 

V. Hey dock 1174 

V. Long 1236, 1382, 1544 

V. Porter 1500 

V. Trail 1032, 1057 

Porter's Estate 1422 

Portevant v. Neylans 1527 

Portis V. Cummings 1533 

Post V. Caulk 1118 

Potter V. Harvey 1420a 

V. Titcomb 1019, 1230 

V. Van Vranken. 1279, 1281, 1371 

V. Smith 1408 

Potter's Estate 1113 

Poulson V. Frenchtown Bank... 1531 

V. Johnson 1511 

Pound V. Pound 12S2 

Powdrell v. Jones 1427 

Powel V. Tliompson 1137 

Powell V. Demming 1265 

V. Evans 1328, 1384 

V. Foster 1413, 1414 

V. Graham . ...13G7, 1368, 1397 

V. Myers 1438 

V. Rees 1373, 1374 

V. Stratford 10:19 

V. Stratton 1173 

Power V. Green 1091 

Power V. Grogan 1407, 1509a 

Power V. Shingler 1346 

Powers V. Littlewood iri(i2 

Powis, Goods of 1 139 

Pratt, Re 1401 

Pratt V. Pratt 1506 

V. Swaine 1 1 95 

Pratt, Re 1401a 

Prescott V. Durfee 1027 

V. Morse 1043 

Preston v. Cult<;r 1219, 1220 



TABLE OF CASES IN VOL. II. 



Ixxiii 



See also Table of Cases in Volume I. 



Sec. 

Price V. Dewhurst. . . 1015, 11G5, 1169 

V. Morgan 1370 

V. Morris 1173 

V. Moulton 1294 

V. Nesbit 1340, 134G, 1488 

V. Strange 1498 

Prichard v. Thompson 1464 

Pride v. Watson 1456 

Priest V. Watkins 1195 

Priestman v. Tindal 1427 

Primrose v. Bromley 1378 

Prince v. Nicholson 1437 

Pringle v. McPlierson 1253, 1297 

Prior V. Talbot 1146, 1247 

Pritchard v. Norw^ood 1207 

Pritchett's Estate, Re 1504 

Probate Court v. Kent 1434 

Probate Judge v. Mathes 1329 

Proctor V. Terrill 1317 

V. Wanmaker 1116, 1153 

Propst V. Meadows 1420 

Proud V. Turner 1498 

Pruett V. Pruett 1033 

Pugsley V. Aikin 1376, 1395 

Pulliam V. Byrd 1346 

V. Winston 1356 

Pulling V. Durfee 1455 

Pulteney v. Warren 1374 

Punchard, Goods of 1037 

Purdy V. Hoyt 1527 

Purple V. Withed 1176, 1179 

Pursel V. Pursel 1542 

Putnam v. Collamore 1265, 1473 

Pyke V. Searcy 1491 

Q. 

Quain's Appeal 1376 

Queensbury v. Shebbeare 1205 

Quin V. Moore 1283 

Quincy v. Quincy 144Gb 

V. Rogers 1474 

Quinn v. Moss 1483 

R. 

Rabbett v. Connolly 1414. 1446c 

Radcliffe, Re 1437 



Radford v. Radford 

Radnall, Goods of 

Radovich's Estate 

Railroad Co. v. McWherter. 



Railroad v. Harris 

Raines v. Raines 

Rainsford v. Taynton 

Rambo v Wyatt 1106, 

Ramsey v. Blalock 

V. Ramsey 

Rand v. Butler 

V. Hubbard 

Randall v. Rich 

V. Shrader 

Randall's Estate 

Randle v. Carter 

Ranhofer Realty Co 

Rankin's Estate 1065, 

Raphael v. Boehmi 

Rappelyea v. Russell 

Ratcliflfe v. Barnes 

Rathbone's Estate 

Ratterman v. Apperson 

Rattoon v. Overacker 

Raughtigan v. Norwich Co 

Rawlins v. Powel 

Rawlinson v. Shaw 

V. Stone 

Rawstone v. Parr 

Ray V. Doughty 1200, 1317, 

Raymond v. Fitch 

Rayner v. Pearsall 

Raynor v. Green 

Rea V. Englesing 

Read V. Truelove 

Reade v. Livingston 

Reading v. Weir 

Reagan v. Long 

Reaves v. Garrett 

Reavis, Ex parte 

Rebhan v. Mueller 

Record v. Howard 

Rector v. Conway 

Redington Co. v. Putnam 



Sec. 
1109 
1116 

13G3a 
1154 
1160 
1173 
1358 
1133 
1128 
1361 
1174 
1465 
1362 
1376 
1098 

1115a 
1154 

1517a 
1116 
1384 
1398 
1069 
1525 
1213 
1195 
1160 
1469 
1051 
13«2 
1378 
1409 
1285 
1321 
1046 
1107 
1046 
1220 
1428 

. 1190 
1542 
1456 
1056 
1160 
1389 
1360 



Ixxiv 



TABLE OF CASES IN VOL. TL. 



See also Table of Cases in Volume I. 



Sec. 

Reech v. Kennegal 1255 

Reed, Goods of 113& 

Eeed v. Crocker 1322 

V. Gilbert 1236 

V. Howe 1110 

V. Reed . . ..-. 1329, 1530 

Reed's Estate 1504, 1506 

Reeve's Trusts, Re 1494 

Reeves v. Steele 1146 

Refeld v. Belette 1488 

Reformed Presb. Churcli v. Nel- 
son 1070 

Rehard v. Long 1146 

Reichard v. Hutton 1204, 1211a 

Reid, Re 1020 

Reid V. Butt 12S8 

V. Porter 1453 

Reist V. Heilbrenner 1281 

Reiter Cbnley Co. v. Hamlin... 1091 

Reitzell v. Miller 1386, 1387 

Remnant v. Brembridge 137C 

Renfro v. VThite 1148 

Reno V. Tyson 1 146 

Rex V. Netherseal 105S 

V. Simp.son 1033 

V. St. Dunstan 1227 

V. Stone 1194 

Rexroad V. Wells 1265 

Rejbum v. Ruggles 1412 

Reynold v. Torrance 1 164 

V. Hamilton 1401 

V. Kortwright 1165, 1169 

Reynolds v. McMullen 1019 

V. Reynolds 1077 

1542, lo42ri 

V. Zink 1154 

Rhea v. Meyers 1432 

Rhott V. Mason 1518, 1522 

Rlioad's Appeal l.")2fi 

Rhoadcs, Re 1 4.?9 

Rhoades v. Rhoadcs 1085 

V. Vinson 1085 

Rice, Appellant 1378 

Rice V. Boston Aid Society 1468 

v. Gordon 1352 



Sec. 

Rice V. Rice 1295 

Rich, Re 1525 

Richards v. Davies 1474 

V. Dutch 1174 

V. Mills 1106 

V. Pierce 1058 

V. Richards 1461 

V. Sweetlaud 1154, 1509 

Richardson, Goods of 1133 

Richardson, Re 1506 

Richardson v. Busch 1024 

V. Horton 1426, 1512 

V. Jenkins 1427 

V. Knight 1333 

V. McLemore 1323, 1509 

V. Merrill 1452 

V. N. Y. Central R 1283 

V. Richardson 1546 

Richmond v. Delay 1504 

V. White 1439 

Kichter v. Richter 1453 

Rick V. Gilson 1404 

Rickard v. Dana 1223 

Ricketts v. Lewis 1353 

V. Weaver 1285 

Ricks V. Wilson 1009, 1084 

Riddcll V. Sutton 1369 

Riddle V. Hill 1187 

V. Mandeville 1359 

Rider v. Wager 1470 

Ridgley v. People 1488 

Ridout V. Bristow 1255 

Rigby, Ex parte 1400 

Riggs V. Cragg 1478 

Uiley V. Albany Saving? Bank. . 1252 

V. Carter 1057 

V. Kepler 1515 

V. Xonnan 1526 

Rinchart v. Rineliart 1112 

1153, 1403 

Ringgold V. SUmv 1538 

Ring's Estate 1223, 1226 

Ruiz V. Electric Co 1211 

Ripley v. Simpson 1305, 1318 

1380, 1430 



TABLE OF CASES IN VOL. II. 



Ixxv 



See also Table of Cases in Volume I. 



Sec. 

Risdon, Goods of HOG 

Ritchie v. Rees 1231, 1232 

Rittenliouse v. Ammerman 1293 

V. Levering 1541 

Ritter's Appeal 1389, 1442 

Roach V. Jelks 1545 

Ro Bards V. Lamb ..1135, 1414 

Robb's Appeal 1216 

Robbins, Matter of 1230 

Robbins v. Hoover 1072 

V. Wolcott 1346, 1542 

Roberts v. Colvin 1142 

V. Nelson 1286 

V. Reynolds 1077 

v. Roberts 1547 

Robert's Estate 1212 

Roberts's Estate 1544 

Roberts's Will 1171 

Robertson v. McGeoch 1050 

V. Piclhiell 1019 

Robie's Estate 1 109 

Robinett's Appeal.. .1325, 1331, 1538 

Robinson v. Adams 1073 

v. Bell 11S7 

V. Chairman 1508 

V. Crandall 1173 

V. Davidson 1367 

v. Epping 1200 

V. Hodge 1390b 

V. Hodgkin 1208 

v. Lane 1362 

V. Lowater 1511 

V. Pett 1545 

V. Robinson 1328 

V. Steele 1523 

V. Tickell 1485 

Robinson's Estate 1504 

Robinson's Executor's Case.... 1427 

Robitaille, Re 1021 

Roby's Estate 1001a 

Rocco V. Cicalla 1450 

Rocke v. Hart 1438, 1538 

Eockham v. Wittkowski 1173 

Rockwell V. Saunders 119D 

V. Young 1187, 1190 



Sec. 
Roderigas v. East River Savings 

Bank 1092, 109G 

Rodman v. Rodman 122G 

Rodwell V. Phillips 122G 

Roe V. Harrison 1353 

Rogers, Ex parte 1450 

Rogers v. Danvers 1426 

V. Fort 1394 

V. Gooch 1289 

V, Hand 1541 

V. Hoberlein 1160 

V. King 1013, 1520 

V. Paterson 1217 

V. Rogers 1434 

V. Ross 1473 

V. State 1430 

V. Traphagen 1543 

V. Tullos 1317a, 1324 

V. Winton 1070 

V. Zook 1362 

Rogerson, Goods of 10L)9 

Rolair v. Darby 1428 

Rollin V. Whipper 1153 

Rollins V. Rice 1413, 1483 

Rollwagen v. Rollvvagen 1074 

Roper Lumber Co. v. Swain. ... 1510 

Rowig's Appeal 1525 

Rooney, Re 1422 

Rooney's Estate 1529a 

Roosevelt v. Ellithrope 1507 

Root, Re 1113 

Root V. Geiger W90, 1193 

Rose V. Bowler 1395 

V. O'Brien 1506 

V. Quick 1063 

V. Winn 1142 

Rosenthal v. McGee 1420 

V. Remick 1027, 1168 

V. Schwartz 1256 

Ross, Goods of 1129 

Ross V. Barclay 1413 

V. Cowden 1310 

V. Ewer 1063 

V. Harden 1252, 1397 

V. Mims 1144 

V. Xewman 1190 



Ixxvi 



TABLE OF CASES IK" VOL. II. 



See also Table of Cases in Volume I. 



Sec. 

Ross, Re 1095 

Ross's Trusts 1498 

Rosser, Goods of 1046 

Rossiter v. Cossit 1430 

Rough V. Womer 1272 

Roumfort v. McAlarney 1441 

Routt V. Newman 1247 

Rowan v. Kirkpatrick 1408 

Rowley v. Fair 1244 

V Adams 1375 

Rowenen, Re 1392 

Roxburgh v. Lambert 1115 

Roy V. Segrist 1070 

V. Vilas 1345 

Roys V. Roys 1271 

Rozelle v. Harmon 1189 

Rubottom T. Morrow 1315 

1407, 1413 

Rucker v. Waddington 1442 

Ruddy, Goods of 1133 

Ruff V. Smith 1412 

Ruggles V. Sherman 1209 

Runyon's Estate 1546 

Ruoff's Appeal 1063 

Rusling V. Rusling 1396, 1469 

Russell V. Erwin 1118, 1409 

V. Hartley 1471a 

V. Hartt 1057 

V. Hoar 1124 

V. Hooker 1024, 1179 

V. Hubbard 1418 

V. Madden 1016 

V. McDougall 1148 

Russell's Goods 1036 

Ryan v. Lyon 1390-1446 

Ryan v. Ryan 1099 

V. Texas Pacific R 1056 

Ryder, Goods of 1041 

Ryno V. Ryno 1091 

S. 

Saam v. Saara 1190 

Siibin V. Gilman 1173 

Sacia v. Berthoud 1352 

Sadler v. Hobbs ] 335 

?;if"or V. ^Tilsnii 1508 



Sec. 

Saffran v. Kennedy 1203, 1408 

Saffold V. Banks 1258, 1412 

Sain V. Bailey 1203 

Salmon v. Clagett 1352 

V. Hays 1126 

Salomon v. People 1160 

Salter v. Cain 1409 

Salyer v. State 1140 

Sample v. Liscomb : . 1263 

Sampson v. Sampson 1418 

V. Shaw 1370 

Samson, Re 1427 

Samuel v. Thomas 1398, 1422 

Sanborn's Estate 1485 

Sanborn v. Goodhue 1273 

Sanders v. Barrett 1015 

V. Blain 1404 

V. Edwards 1147 

V, Jones 1173 

V. Loy 152S 

Sanderson, Re 1237 

Sanderson v. Sanderson. . 1308, 1439 

1520, 1542 

Sandford v. Wicks 1390 

Sands v. Hickey 1128 

Sanford v. Gilman 1146 

V. McCreedy 1293 

V. Thorp 1527, 1537, 1542 

San Roman v. Watson 1128 

Sarali v. Gardner 1275 

Sargent, Re 1109, 1113 

Sargent v. Fox 1112 

V. Kimball 1429 

V. Sargent 1324, 1470 

Sarkie's Appeal 1032 

Sarle v. Court of Probate. 1138, 1342 

Sasscer v. Walker 1200 

Sassecn's Estate 1120 

Saunders v. Gatlin 1409 

V. Saunders 1403 

Saunderson v. Stearns 1241 

Savage v. Gould 1537 

Sawyer v. Baldwin 1473 

V. Concord 1279 

V. Mercer 1436 

V. Sawvcr 1448. 1449 



TABLE OF CASES IN VOL. II. 



Ixxvn 



See also Table of Cases in Volume I. 



Sec. 

Saxton V. Chamberlain 1538 

Sayers's Appeal 1214 

Sayre v. Sayre 1527 

Saxe V. Saxe 1033 

Scarborough v. Watkins 130S 

Scarce v. Page IIIG 

Scarth v. Bishop of London. . . . 1025 

Schaffner v. Grutzmaclier . ... 1450 

Schaub V. Griffin 150S 

Schenck v. Schenck 1522, 1532 

Schenkl v. Dana 1200 

Schlecht's Estate 1155 

Schmittler v. Simon 1398a 

Schober v. Probate Judge 1064 

Schofield V. Thomas 1083 

Schofield's Will 1087 

Scholefield v. Eichelberger . .. 1326 

Scholey v. Walton 1389, 1401 

Schoolfield v. Rudd 1205 

Sclioonmaker v. Gray 1072 

Schouler, Petitioner 1463 

Schmidt v. Stoss 1223 

SchraflFt v. Walters 1271 

Schreiber v. Sharpless . .1283, 1370 

Schultz V. Dambmann 1017 

V. Pulver 1175, 1308 

Schwarz v. Harris 1419 

Schwartz's Estate 1213 

Schwertfegen, Goods of ..1115, 1135 

Scituate Court v. Angel 1478 

Scofield V. Churchill 1140 

Scott V. Atchinson 1310 

V. Becher 1033 

V. Crews , 1128, 1152, 1409 

1538 

V. Fink 1082 

V. Fox 1043, 1128 

V. Governor 1230 

V. Hancock 1380 

V. Kennedy 1523 

V. Key 1395 

V. McXeal 1160 

V. Monell 1543 

V. Searles 1352, 1362 

V. Taylor 1350 



Skc. 

Scott V. Tyler 1339, 1349 

V. West 1247 

Scott's Case 1247 

Scoville V. Post 1184 

Scranton v. Demere 1120 

V. Farmers' Bank 1302 

Scroggs V. Tutt 1420 

Scully V. Scully 1298, 1387 1398c 

Scruby v. Fordham 1085 

Scruggs V. Driver 1402 

Scurfield v. Howes 1402 

Scurrah v. Scurrah 1231 

Scuteela's Estate 1020, 1116 

Search v. Search 1013 

Searle v. Court of Probate.... 1135 

V. Lane 1426, 1436 

Sears v. Currier 1296, 1588 

V. Dillingham 1047, 1157 

V. Hull 1220, 1245 

v. Mack 1505 

V. Wilson 1104 

Seawell v. Buckley 1526 

Secar v. Atkinson 1305 

Segars v. Segars 1309 

Seip v. Drach 1397, 1398 

Selleck v. Rusco 1194 

Sellero's Appeal 1528 

Seller's Estate 1236 

Sellers v. Licht 1190 

V. Sellers 1265, 1522 

Selman v. Milliken 1500 

Selover v. Coe 1419, 1445 

Selvee v. Crutchfield 1446c 

Seman v. Whitehead 1544 

Semmes v. Magruder 1380 

Senat v. Findley 1418 

Senoir v. Ackerman 1137, 1211 

Seaver v. Weston 

Sevening v. Smith 1083 

Seventh Day Adventists v. 

Sanitarium 1015 

'^ever v. Russell , 1520, 1530 

Sevier v. Succession of Gordon 1531 

Sewell V. Slingluff. .1083, 1539, 1542 

Seymour v. Seymour . . . 1520. 1530 



Ixxviii 



TABLE OF CASES IN VOL. II. 



See also Table of Cases in Volume I. 



Sec 

Shackelford v. Runyan . . 1408, 1409 

ShaeflFer v. Sha«ffer 1421 

Shafer v. Grimes 1282, 1373 

Shaffer's Appeal 1526 

Shakespeare v. Fidelity Insur- 
ance C-o 1024, 1205 

V. Markham 1432 

ShaUcross v. Wright 1431 

Shaltz V. Dambmann 1017 

Shalter's Appeal 1143 

Shannon v. Shannon 1020 

Sharland v. Mildon 1186 

Sharp V. Dye 1118 

V. Farmer 1120 

V. Lush 1519 

Sharpe v. Rockwood 1324 

V. Scarborough 1221 

Sharpe's Appeal 1153 

Shattuck V. Watson 1240 

Shaw V. Berry 1400 

V. Cable 1310 

V. Hallihan 1190 

V. Shaw 1083 

V. Spencer 1349, 1350 

Shawhan v. Loffer 1408 

Shee V. French 1221 

Sheehan v. Kennelly 1403 

Sheet's Estate 1485 

Sheetz v. Kirtley 1526 

Sheen v. Rickie 1227 

Sheffield v. Lord Coventry 1487 

Shegogg V. Perkins 1015, llSl 

Sheibley v. Hill 1302 

Sheldon v. Warner 1264, 1430 

V. Bliss 1233, 1453 

V. Rice 1027, 1164, 1173 

1179, 1212, 1330, 1358 

, V. Sheldon 1469 

V. Woodbridge 135S 

V. Wright 1113, 1530 

Shelley's Case 1421 

Shclton V. Homer 1405 

Shcphard v. Rhodes 1160, 11C8 

Shepherd v. Mouls 1335, 1338 

Sheridan v. Hougliton 1084 



Sec. 

Sherman v. Chase 1530 

V. Dodge 1509 

V. Jerome 14SS 

V. Page 1182, 1183, 1234 

V. Sherman 1204, 1448 

V. Warren 1471, 1475 

V. Western R 1391 

V. Willett 1346, 1354 

Sherwood v. Hill 1146 

V. Smith 1500 

Shewen v. Vandenhorst 1389 

Shewmake v. Johnson 1265 

Shields v. Odell 1208 

V. Shields 1137 

Shillaber v. Wyman 1195 

Shindel's Appeal 1526 

Shipbrook v. Hinchenbrook .... 1402 

Shipley, Ex parte 1322 

Shipman v. Butterfield lllS 

Shirley v. Healds 1194, 1195 

Shirreff v. Hastings 1427 

Shirt V. Westly 1481, 1490 

Shoenberger v. Savings Institu- 
tion 1194 

Shofner v. Shofner 1226 

Shomo's Appeal 1102 

Shook V. Journeay 1033 

Shover v. Ewald 1072 

Silkman, Re 1538 

Shreve v. Joyce 1389, 1401 

Shriver v. State 1504a 

Shropshire v. Withers 1113 

Shuler v. Millsaps 1280, 1372 

Shumway v. Cooper 1098 

V. Holbrook . . . 1056, 1059, 1094 

Shup V. Calvert 1212, 1515 

Shurtleff v. Francis 1368 

Sluittleworth, Goods of 1085 

Sihoni v. Kirkraan 1253, 1367 

Sibthorp, Goods of 1061, 1062 

Sidle V. Anderson 1255 

Sieckman v. Allen 1247, 1253 

Sigourney v. Sibley 1013, 1111 

SilfT v. Gray 1367 

Sill v. McKnieht 1033 



TABLE OF CASES IN VOL. II. 



Ixxix 



See also Table of Cases in Volume I. 



Sec. 

Simmonds v. Bolland 1476 

Simmons v. Boyd 1543 

V. Simmons . 1295, 1457b 

Simms v. Richardson . 1430 

Simonton v. McLane 1186 

Simpson v. Chapman 1325 

V. Cook 1037, 1160 

V. Gutteridge 1400 

Simpson's Appeal 1508 

Sims V. Boynton 1091, 1291 

V. Lively 1146 

V. Stillwell 1256 

Singleton v. Moore 1508 

V. Singleton 1226 

Sinovcic's Estate 1116 

Sitzman v. Pacquette 1157 

Sivley v. Summers 1131 

Skiffington v. Budd 1410 

Skeer's Estate 1341a 

Skelheimer v. Chapman 1291 

Skinner v. Wynne 1498 

Skrine v. Simmons 1355, 1357 

Slack V. Emery 1430 

V. Slack 1453 

Slade V. Slade 1538 

V. Washburn. .1091, 1095, 1134 

1135 

Slagle V. Entrekin 1409 

Slaney v. Watney 1044 

Slanning v. Style 1033, 1137 

Slater v. May 1133 

Slaughter v. Froman 1410 

Slauter v. Chenowith 1173 

Slay V. Beck 1112 

Slaymaker v. Farmers' Bank.. 1409 

Sleake v. Newman 1376 

Sleech v. Thorington .... 1480, 1490 

Sleighman v. Marshall 1200 

Sleighter v. Harrington 1255 

Sloan V. Johnson 1409 

V. Sloan 1173, 1488 

Slocomb V. Slocomb 1020 

Slocum V. Sanford 1200 

Slusher v. Weeler 1298, 1387 

Smale's Estate 1052 



Sec. 

Small V. Commonwealth . 1140, 1142 

1146 

Small, Ex parte 1104 

Smartt v. Watterhouse. . 1352, 1362 

Smethurst v. Tomlin 1033 

Smiley v. Alen 1244 

Smilie v. Siler 1522 

Smith, Goods of 1043 

Smith V. Abbott 1515a 

V. Attersoll 1062 

V. Ayer 1349, 1350, 1352 

V. Black 1213, 1522 

V. Blackwell 1428 

V. Bland 1216 

V. Carrere 1408 

V. Chapman 1366 

V. Chapman App. 

V. Collamer 1274 

V. Davis 1533 

V. Day 1476 

V. Downes 1433 

V. Downey 1439 

V. Dutton 1526 

V. Dunwoody 1242 

V. Ellington 1428 

V. Everett 1400, 1404 

V. Field 1481 

V. First Presby. Church ... 1217 

V. Gillam ■ 1430 

V. Guild 1164 

V. Goethe 1273 

V. Haskins 1260 

V. Hatke 1211 

V. Kurd 1303 

V. Hutchinson 1500 

V. Lambert 1527 

V. Mayo 1431 

V. McLaughlin 1422, 1431 

V. Moore 1357, 1402 

V. Morgan 1427 

V. Munroe 1109, 1113 

V. Pattie 1240 

V. Peyrot . ...1256, 1341a, 1347 

V. Phillips 1137 

V. Pistole 1135 



Ixxx 



TABLE OF CASES IX VOL. II. 



See also Table of Cases in Volume I. 



Sec. 

V. Polard 1346 

V. Porter 11S6 

V. Preston 1367 

V. Sherman . ..1115, 1279, 1280 

1282, 1420 

V. Smith . . ..1278, 1428, 1500 

V. Stiles ISOfla 

V. Stockbridge 1160 

V. Thompson 1313 

V. Tiffany 1173 

V. Union Bank 1015 

v. Van Kuren 1527 

V. Wells 1514 

V. Whiting 1401 

V. Wilmington Coal Co. . . . 1253 

1254, 1261, 1367 

V. Wilson 1420 

V. Young 1104, 1106 

Smithers v. Hooper 1412, 1538 

Smith's Appeal 

Smyley v. Reese 1544 

Smyth V. Burns 1335 

V. Taylor 1347 

Snead v. Coleman 1258, 1398 

V. Scott 1454 

Sneesby v. Thome 1400 

Snelling's Case 1007 

Snider v. Croy 1291 

Snodgrass v. Cabiness . ..1199, 1239 

V. Snodgrass 1526 

Snow V. Snow 12SS 

Soldini v. Hyams 1141 

Solomon v. Wixon 1046 

Somerset, Ooods of 1135 

Somervillc v. Somerville 1022 

Son V. Miner 1400 

Sorin v. r)liriger 1543 

Sotek V. Sotck 1471a 

Sotheran v. Dening 1082 

Souttor, Re 1528, 1533 

Southall V. Jones 1063 

V. Taylor 1308, 1356 

SonthweHtern R. v. Pan Ik.... 1173 

Sovcrhill v. Suydam 120S 

Sowers v. CvreiiiaH 1464 



Sec. 

Soye V. McCallister 1340 

Spallholz V. Sheldon 1520 

Sparhawk v. Allen 1216 

V. Buell 1402 

Sparks v. White 1173 

Spaulding v. Cook 1189 

Speelman v. Culbertson 1362 

Speidel's Appeal 1453 

Spencer v. Cahoon 1142 

V. Rutledge 1409 

Speer's Estate „ 1325 

Sperry, Estate of 1221, 1428 

Spinney v. Eaton 1461, 1481 

1482, 14S6 

Spinning v. Spinning 1457 

Spode V. Smith 1476 

Spooner v. Hilbish 1220 

Sponsler's Appeal 1468 

Spraddling v. Pippin 1167 

Spreekel's Estate 1504b 

Springer's Appeal 1208, 1481 

Springfield v. Hurt 1513 

Springs v. Irwin 1122 

Springsteen v. Samson 1422 

Spruil V. Spniil 14S8 

Spyker v. Wible 12C0 

S(iuib V. Wyn 1130 

Squier v. Mayer 1227 

V. Squier 1545 

St. Jurgo V. Dunscomb 1127 

St. Vrain's Estate 1500 

Stacy V. Thrasher 1178, 1180 

Stafford v. Buckley 1200 

Stag V. Punter 1421 

Stahkchmidt v. Lett 1389, 1439 

Stainton. G<iods of 1110 

Stair V. York Nat. Bank 1408 

1409, 1410 

Stairley v. Babe 1033 

Stallsworth v. Stallswortli 1241 

1247 

Stalhvorth v. Farnham 1520 

Stantpor v. <Jjtriiett 1533 

Stanhrongli v. Evans 1361 

Staiidif.-r V. Hubbard 1418 



TABLE OF CASES IN VOL. IJ. 



Ixxxi 



See also Table of Cases in Volume I. 



Sec. 

Stanford v. Stanford 1420 

Stanley v. Bernes 1017, 1171 

V. Stanley 1495 

V. Whitney 1044 

Stanwood v. Owen 132G 

Staple's Appeal 1044 

Staples V. Staples 1358 

Stapleton v. Haight 1486 

V. Truelock 1042 

Stark V. Hunton 131G, 1390 

V. Parker 1057 

Starr v. Brewer 1515 

State V. Adams 1481 

V. Baskin 1137 

V. Beming 1305 

V. Ca.stleberry 1150 

V. Clark 1138 

V. Crensbauer 1143 

V. Crassley .... 1468, 1478, 1481 

V. Dickson 1346 

V. Donegan 1543 

V. Fanner 1141 

V. Fields 1148 

V. French Co 1146 

V. Gray 1532 

V. Hallett 1023 

V. Hogan 1307 

V. Hyman 1406 

V. Johnson 1152, 1329 

1428, 1438 

V. King 1415 

V. Main 1482 

V. McAleer 1508 

V. Mitchell 1150 

V. Morrison 1141, 1142, 1410 

V. Murray 1409 

V. Parrish 1522 

V. Piatt 1545 

V. Porter 1416 

V. Price 1141, 1142 

V. Probate Court 1514 

V. Purdy 1140 

V. Reinhardt 1104 

V. Rogers 1036, 1041 

V. Stroop 1148 

V. Watson 1037 



Sec. 

State V. Wilson 1526 

State Bank v. Ross 1423 

V. Williams 1533 

Stam V. White 1213 

Starr v. Willoughby 1161a 

Staunton v. Parker 1048 

Stayner, Re . .' 1526 

Steam v. Mills 1230, 1236 

Stearns v. Brown 1525, 1538 

V. Burnham 1164, 1173 

V. Fiske 1104 

V. Stearns 1509, 1526 

V. Wright 1160 

Stebbins v. Lathrop 1046, 1054 

1112, 1122, 1153 

V. Palmer 1115 

V. Smith 1138 

Stedman V. Fiedler 1325 

Steel V. Steel 1214 

Steele v. Atkinson 1409 

V. Morrison 1523 

V. Price 1084, 1085 

V. Steele 1257 

Steen v. Steen 1409 

Steger v. Frizzell 1200 

Steglich V. Schneider 1459 

Stephens v. Boyd 1346 

V. Harris 1431 

V. Hotham 1376 

Stephens. Re 1056 

Stephens v. Milnor 1335 

V. Taylor 1145 

Stephens' Appeal 1544 

Stephenson, Goods of 1098 

Stephenson v. Stephenson.. 1104, 1526 

Sterling-Maxwell v. Cartwright. 1169 

Stern's Appeal 1325 

Sterrett v. Barker 1256 

Sterrett's Appeal 1525 

Stetson V. Bass 1530 

Stevens, Re 153 3 

Stevens v. Bagwell 1098 

V. Gage 1315 

V. Gaylord 1115, 1163 

1168, 1208 

V. Goodoll 1409, 1410 



Ixxxii 



TABLE OF CASES IN VOL. II. 



See also Table of Cases in Volume I. 



Sec. 

Stevens v. Melcher 1545 

V. Stevens 1147 

Stevenson v. Phillips 1524 

Stewart, Goods of 1132 

Stewart, In re 1032, HOG 

Stewart v. Chadwick 1200 

V. Conner 1400 

v. Denton 1381 

V. Harriman 1076 

V. Hurd 1512a 

V. Riehey 1290, 1292 

V. Robinson 1326a 

V. Stewart 1295, 1355 

1356, 1522 

Stickney v. Sewell 1323, 1402 

Stiles's Gkxxis 1050 

Stillman v. Young 1247 

Stinson v. Stinson 1216 

Stockton v. Wilson 1189, 1194 

v. Wooley 1457b 

Stoddard v. Aiken 1 173 

Stokely's Estate 1175,1180 

Stoker v. Kendall 1153 

Stokas V. Porter 1184 

V. Stickney 1370 

Stone V. Gerrish 1368 

V. Huxford 10G5 

V. Stillwell 1537 

V. Strong 1512b 

V. Union Savings Bank. . . . 1402 

Stong V. Wilkson 1146 

Storer v. Blake 1200 

V. Prestage 1478 

Storms V. Quackenbiish 1403 

Stoso V. People 1408 

Stoudenmeier v. Williamson... 1259 

1290 

Stow's Estate 1318 

Stratford v. Parker 1191 

Stratton v. Linton 1 102 

Strawn v. Stra,wn 1448, 1449 

Stretch v. McCampbell 1335 

Strevcr v. Feltman 1403 

Stroml^cr'.q Estate 1450 

Btroino v. Bissel 1390 



Sec 

Stronach v. Stronaeh 1360, 1408 

Strong's Estate 1160 

Strong V. Perkins 1058 

V. Strong 1526 

V. Wilkinson 1538 

Stronghill v. Anstey 1347, 1350 

Strother v. Hull 1407 

Stubblefield v. McRaven.. . 1160, 1408 
Studebacker M. Co. v. Mont- 
gomery 1258 

Studholme v. Hodgson 1473 

Studley v. Willis 1039, 1398 

Stukes v. Collins 1356 

Sturtevant v. Tallman 1526, 1530 

Stuy\'esant v. Hall 1400 

Styles v. Guy 1335, 1402 

St. Bernard v. Shane 1173 

St. John's Ch-urch v. Dippolds- 

man 1490a 

Suarez v. Mayor 1024 

Siickley, Matter of 1502 

Sugden v. Crossland 1537 

v. Lord St. Leonards 1084 

Sullivan's Estate 1115 

Swan, Re 1414 

Swaine v. Hcrapliill 1325 

Swartz's Will 1085 

Sweczey v. Willis. .1103. 1214, 1501 

Swcigart v. Berk 1200 

Swcjiarton v. Hancock 1073 

Swenson v. Walker 1420 

Swift v. Miles 1435 

Swilley v. Lyon 1239 

Swinhum v. Ainslee 1227 

Swindell v. Biilkeley 1360 

Swisiso v. Ijowther 1468 

Sullivan v. Fos^lick 1024, 1407 

v. Holker 1410 

v. llomor 1421 

v. Lattimcr 1244 

V. Sullivan 1076 

v. Winthrop 1481 

Summers v. Reynold.? 1317 

Sumner v. Orane lOSO 



TABLE OF CASES IN VOL. II. 



Ixxxiii 



See also Table of Cases in Volume I. 



Sec. 

Sumner v. Williams 1361, 1397 

V. Powell 1378 

Sumrall v. Sumrall 1526 

Sutherland, Goods of 113!) 

Sutherland v. Harrison. .. 1430, 1512 

Sutter V. Ling 1218 

Sutton V. Sadler 1073 

Swan V. Swan 1 100 

Swearingen v. Pendleton 1177 

Sydnor v. Graves 1131 1409a 

Syme v. Badger 1439, 1546 

V. Broughton 1407 

T. 

Tabor v. Tabor 1214 

Taff V. Hosmer 1073 

Taft V. Stevens 1214, 1215 

Taggard v. Piper 1478 

Talbert, Succession of 1112 

Talbot V. Radnor 1489 

Taliaferro v. Rob 1390 

Talmage V. Chapel 1173, 1179 

Tanner v. Mills 1149 

V. Skinner 1525 

Tapley v. Kent 1063 

Tappan v. Ta.ppan. . 1141, 1289, 1527 

Tarbcll v. Jewett 1208 

Tarbox v. Fisher 1454 

Tarn v. Oommercial Bank 1194 

Tarver v. Torrance 1314 

Tasker v. Shepherd 1367 

Tate V. Norton 1213, 1420 

Tatten v. Tallman 1081 

Tattnall v. Hankey 1060 

Taylor, Goods of 1066 

Taylor v. Allen 1032 

V. Barron 1132, 1179 

T. Brooks 1 128 

V. Clarke 1479 

V. D'Egville 1063 

V. Delancey 1 104 

v. Haygarth 1494, 1503 

V. Hosick 1160 

V. ]\Lajor 1512 

V. McKee 1015 

V. Moore 1189. 1193. 1195 



Sec. 

Taylor v. Mygatt 1256 

V. Perry 1441 

V. Pettus 1010, 1211 

V. Phillips 1120 

V. Taylor 1445a, 1456 

1462, 1491, 1508 

V. Shore 1124 

V. Syme 1173 

V. Tibbatts 1050 

V. Wright 1544 

Taynton v. Hannay 1 133 

Teague V. Corbitt 1390 

V. Dendy 1410 

Tebbs V. Carpenter 1308, 1384 

Teckenbrock v. McLaughlin.... 1067 

1072 

Telford v. Barry 1321 

Tell Furniture Co. v. Stiles 1345 

Temples v. Cain 1027, 1091 

Teneick v. Flagg 1218 

Ten Eyck v. Vanderpool 1256 

Terhune v. Bray 1385 

Terrell v. McCown 1268 

Terry v. Ferguson 1214 

Teschemacher v. Thompson 1154 

Thacher v. Dunham 1544 

Thayer v. Clark 1420 

v. Hollis 1389 

V. Homer 1033, 1047 

1154, 1156 

Thellusson v. Woodford. . .1465, 1474 

Thom V. Thorn 1545 

Thomas, Petition of 1217 

Thomas v. Adams 1119 

V. Knighton 1 153 

V. Moore 1256 

V. Smith 1204 

V. Stanley 1408 

V. White 1359 

V. Wood 1043 

Thompson v. Bondurant 1118 

V. Brown 1325, 1390 

V. Buckner 1409 

V. Davitte 1077 

V. Dixon 1050 



Ixxxiv 



TABLE OF CASES IN VOL. II. 



See also Table of Cases in Volume I. 



ISec. I 

Thompson v. Graham 1403 

V. Holt 1013 

V. Hucket 1115, 1152, 1153 

V. Johnson 1063 

V. Knight 1161 

V. Maugh 1258, 1259 

V. Meek 1127 

V. Schenck 1509 

V. Stanhope 1295 

V. Tracy 1135, 1150, 1151 

V. Towner 1222 

V. White 1205, 1385 

V. Wilson 1173 

V. Winnebago Ck> 1200 

V. Youngblood 1487 

Thompson, Re 1506 

Thompson's Estate 1032, 1107 

1114, 1124 

Thomson v. Thomson 1230 

Thorman v. Frame 1092 

Thorn V. Tj'ler 1271 

Thorncraft v. Lashmar 1063 

Thorndike v. Boston 1021 

Thorns v. Watkins 1016 

Tliornton, Goods of 1050 

Thornton v. Burch 1226 

V. Glover . 1506 

V. Mehring 1223 

V. Moore 1013. 1114 

V. Smiley 1290 

V. Winston . ...1044, 1046, 1050 

Thorpe v. Jackson 1378 

Thumb V. Gr&sham 1091 

Thurston v. Doane 1200 

Ticliborne v. Tichbome 1134 

Ticknor v. Harris 1390 

Tidball v. Young 11 42 

Tierman v. Binns 1453 

Tildcn, Re ]r)26 

Tilley v. Bridges 1515 

V. Trusslor 1104 

Tilman v. Walkup 1170 

Tilsfn V. ITiiine 1506 

Tilton V. Am. Bible- Society.... 1479 

Tipping V. Tipping 1225 



Sec. 

Titterington v. Hooker 1428, 1438 

Tobey v. Miller 1 190 

Todd V. Moore 1358 

V. Wright 1134 

Todhunter v. Stewart 1094 

Tolcher, Goods of 1066 

Tolputt V. Wells 1437 

Torakies v. Reynolds 1329 

Tompkins v. Tompkins 1465 

Tomlinson v. Gill 1255 

Tompkins v. Tompkins. .. 1324, 1328 

1402 

V. Weeks 1417 

Tonnele v. Hall 1087 

Toomy, Goods of 1037 

Torrance v. McDougald . 1112, 11 IS 

Torre v. Castle 1062 

Torrence v. Davidson .... 1329, 1335 

Towle V. Swasey 1490, 1512 

Towne v. Ammidown 1406 

Townesend's Appeal 1482 

Townsend v. Gordon 1118 

V. Ingersoll 1391 

V. Moore 1170 

V. Radcliffe 1496 

V. Tallant 1247 

V. Townsend 1070, 1094 

Townsend's Succession . .1098, 1116 

Townsend v. Windham 1222 

Tracy v. Card 1408 

V. Suydam 1387 

Trattle v. King 1267 

Trautman v. Traub 1432 

Traver v. Schcll 1467 

Trawick v. Trawick 1526 

Treadwell v. Cordis 1405, 1473 

Treat v. Fortune 1430 

Trecothtick v. Austin 1164, 1173 

1175, 1176, 1205 

Trevc'lyan v. Trevelyan 1085 

Treves v. Townsliend 1482 

Tribor v. Lass 1490.i 

Trigga v. Daniel 1413, 1543 

Trimble v. James 1537 

v. Mil rsliall 1389 



TABLE OF CASES IN VOL. II. 



Ixxxv 



See also Table of Cases in Volume I. 



Sec. 

Trimble v. Rice 151-i 

Trimmer v. Jackson 1075 

Triplett v. Wels 1113 

Trotter v. Trotter 1017, 1324 

V. White 1173 

Troup V. Rice 153S 

Trow V. Shannon 1050 

Trueman v. Tilden 1543 

Trull V. Trull 1352, 1363 

Trumble'3 Will 1471a 

Trust V. Harned 1428 

'iuck V. Boone 1110 

Tucker v. Candy 1174 

V. Green 1409 

V. Harris 11 IS 

V. Tucker . . ..1324, 1525, 1542 

V. Whaley 1195, 1397' 

V. Whitehead 1067 

V. Williams 1186 

Tuckerman v. Currier 1544 

Tuggle V. Gilbert 1308 

TugAvell V. Heyman 1422 

Tullock V. Dunn 1389, 1401 

Tunstall v. Pollard 1173 

Turner v. Cameron's Co 1374 

V. Child 1186 

V. Cox 1417 

V. Hardey 1400 

V. Linam 1173 

V. Turner . . 1200, 1445a. 1453 

V. Wardle 1427 

V. Wilkins . ..1155, 1405, 1406 

Turner's Estate 111? 

Tuttle V. Robinson. .1209, 1227, Olfi 

1318, 1422, 1430 

V. Turner 1122 

Twaddell's Appeal 1545 

Tweedale v. Tweedale 1468 

Twimble v. Dziedzyiki 1174 

Twitty V. Houser 1315 

V. Lovelace 1512 

Tyler v. Bell 1015 

Tyndall, Goods of 1113, 1115 

Tyrrell v. Morris 1341, 1347 



U. 

Sec. 

Udny V. Udny 1021, 1023 

Uldrick v. Simpson 1046 

Underwood v. Millegan 1256 

V. Wing 1002 

Union Bank v. McDonough . . . . 1417 

V. Poulson 1155 

Union Mutual Life Ins. Co. v. 

Lewis 1116, 1173 

V. Stevens 1202, 1211 

U. S. Fidelity Co. v. Russell.. 1141 

United States v. Cutts 1205 

V. Daniel 1205 

V. Duncan 1428 

V. Eggleston . .1208, 1423, 1428 

V. Fisher 1428 

V. Fox 1459 

V. McRae 1169 

V. Ricketts 1433 

V. Tyndale 1116 

V. Walker . ...1408, 1409, 1412 

Upchurch v. Nosworthy 1190 

Upson V. Badeau 1315 

LTpton V. Lord Ferrers 1225 

Urquhart v. King 1494 

Utley V. Rawlins 1308 

V. Titcomb 1468 

Utterson v. Mair 1033 

V. 

Vaden v. Hance 1500 

Vail V. Anderson 1197 

Vail V. Givan 1155 

Valcourt v. Sessions 1147 

Valentine v. Belden 1323 

v. Jackson 1291 

Van Bokkelen v. Cook 1175 

Vance v. Fisher 1509 

V. Upson 1152 

Van Dermoor, Re 1211 

Vandever v. Freeman 1410 

Van Duzer, Matter of 1428 

Vane v. Rigdon 1340 

Van Giesen v. Bridgford. 1006, 1056 

Vanhook v. Barnctt 1141 



Ixxxvi 



TABLE OF CASES IN VOL. II. 



See also Table of Cases in Volume I. 





Sec. 


Van Home v. Fonda 


104(5 


Vanmeter v. Jones 1233, 


1520 


Van Ness v. Kenyou 


1420 


Vanpelt v. Veghte 


1402 


Van Rensselaer v. Plainer .... 


137fi 


Van Schaack v. Leonard 


1489 


Van Steenwyck v. Washburn . . 


1457 


Van Straubenzee v. Monck.... 


1060 


Van Vechten v. Keator 


1512 


Van Wyck, Matter of 


1156 


Vanzant v. Davies 


1600 


Vardeman v. Ross 1407, 


1413 


Vaughan v. Northup . ..1173, 


1170 


Vaughen v. Haldeman 


1227 


Vaughn v. Barret 1024, 


1164 


Veach v. Rioe 1131, 


1160 


Vedder v. Saxton 


1456 


Velho V. Leite 


1042 


Venable v. Mitchell 


1250 


Venables v. East India Co 


1015 


Vermilya v. Beatty 


1173 


Vernam v. Spencer 


1063 


Verner, Estate of 


153S 
1013 


Verplanck, Re 


Verret v. Belanger 


1146 


Vesey v. Day 


1065 


Vick V. Vicksburg 


1122 


Vickers v. Bell 


1046 


Vincent v. Piatt 


1213 


V. Sharp 


1203 


Voolckner v. Hudson 


1450 


Vogel, Succession of 


1096 


Vogel V. Arbogast 


1236 


V. Vogel 


1032 


Von Brentano's Estate 


1010 


Von Desen, Goods of 1115, 


1116 




1117 


Von Ruseck, Goods of 


1160 


Von Schmidt v. Boiirn 


1414 


Voorhoos V. StootliofT 1241, 


1317 


V. Voorhees 


10S4 


Vrceland v. Vrceland 


13r.fi 


Vroom V. Van Horn 


1175 

1370 


Vulliamy v. Noble 



w. 

Sec. 

Wade V. Bridges 1134 

V. Graham 1146 

V. Lobdell 1523 

Wadsworth v. Allcott 1216, 1220 

V. Chick 1219, 1264 

Waechter's Succession 1546 

Waggoner v. Waggoner 14S9a 

Wain V. Warlters 1255 

Wainford v. Barker 1521 

Wakenian v. Hazleton 1321 

WalbridgG v. Day 1509 

Walcott V. Hall 1491 

Waldron v. Waldron 1512 

WagstaflF, Re 1099 

Walford v. Walford 147S 

\Valker v. Bradbury 1489 

V. Byers 1419, 1445 

V. Cheever 1438, 1520 

V. Craig 1362 

V. Drew 1120 

V. Hall 1230, 1522 

V. Hardwicke 1512 

V. Hill 1444 

V. May 1195 

V. Patterson 1255 

V. SteflTes 1514 

V. Symonds 1324, 1402 

V. Torrance 1151 

V. Walker 1236 

V. Witter 1426 

V. Woolaston 1134 

Wallace v. Walker 1151, 1153 

Wallace's Estate 1462a 

Waller v. Ray 1531 

V. Waller 1074 

Wallich, Goods of 1042 

Wallis V. Wallis 1132 

Wall's Appeal 1421, 1543 

Wally V. Wally 1450. 1451 

Walsh's Estate 1036 

Walter v. Miller 1385 

V. RadclifTp 1389 

Walters v. Nettleton 1270 



TABLE OF CASES IN" VOL. II. 



Ixxxvi i 



See also Table of Cases in Volume I. 



Sec. 

Walton V. Hall 1168, 1186, 1421 

1422 

Walton V. Walton 1408, 1498 

Walworth v. Abel 1120 

Wamsley v. Wamsley 1298 

Wapple's Appeal 1013 

Ward, Re 1116 

Ward V. Bevill 1186 

V. Brown 1078 

V. Jone3 1422 

V. Kitchen 1335 

V, State 1148 

V. Turner 1219, 1362 

V. Thompson 1098 

V. Ward 1247 

Ward's Estate 1526 

Ware, Ex parte 1427 

Warfield v. Brand . 1407, 1413, 1415 

Waring v. Lewis 1338 

Warren v. Poff 1389 

W^ashburn v. Hale 1431 

Washington v. Bogart 1527 

V. Blunt 1047, 1157 

Waterhouse v. Bourke 1233 

Waterman v. Dockray 1400 

Waters v. Nettleton 1370 

V. Ogden 1437 

V. Roister 1422 

V. Stickney 1056, 1152 

1153, 1157, 1160 

Watkins v. Adams 1025, 1128 

V. Brent 1087 

V. Eaton 1173 

V. Maule 1362 

V. Parker 1390, 1446c 

V. Romine 1422, 1542 

V. Stewart 1332 

V. State 1247 

Watson, Re 1193 

Watson V. Blaine 1285 

V. Collins 1093 

V. Glover 1091 

V. McClanahan 1542 

V. Toone 1358 

V. Watson 1204, 1428, 1525 

V. Whitten 1146 



Sec. 

Watt V. Watt 1101, 1496 

V. White 1430 

Wattles V. Hyde 1146 

Watt's Estate 1510 

Watts V. CTooke 1501 

Watts 1526 

Way V. Priest 1481 

Weaver v. Chace 1008 

V. Penn 1133 

v. Roth 1506 

V. Thornton 1247 

Weaver's Estate 1432 

Webb, Matter of 1015 

Webb v. Adkins 1194 

V. Fuller 1445a 

v. Bellinger 1317 

V. Dietrich 1033, 1137 

V. Kirby 1133 

V. Needham 1100, 1104 

V. Trimble 1120 

Webb's Estate 1422 

Weble V. Fuller 1401 

Webster v. Hale 1481 

V. Hammond 1428, 1438 

V. Spencer 1324 

v. Tibbits 1288 

V. Wiggin 1489 

Weddall v. Nixon 1060 

Wedderburn v. Wedderburn . . . . 1537 

Wedmore, Re 1400 

Weed V. Hoge 1461 

V. Lermond 1233, 1536 

1537, 1538 

Weeks v. Gibbs 1190, 1246 

V. Jewett 1120 

V. Love 1400, 1412 

V. Sego 1118 

V. Sowles 1487 

Weir V. Mosher 1400 

V. Tate 1310 

Welch's Estate 1322, 1333 

Welch's Succession 1120 

W>lch V. Adams 1481 

Welchman v. Sturgis 1195 

Weldy's Appeal 1542 

Wellborn v. Rogers 1526 



Ixxx^'iii 



TABLE OF CASES IX VOL. II. 



See also Table of Cases in Volume I. 



Sec. 

Welles's Estate 1174 

Welles V. Cowles. . . . 1200, 1202, 1218 

V. Betts 1375 

V. Brook 1099 

V. Child 1137 

V. Miller 1195, 1199 

V. Thompson 1070, 1089a 

V. Wells 1024 

Welsh, In re 10S5 

Welsh V. Brown 1479 

V. Welsh 1220, 1297 

Wendell v. Wendell 1545 

Wenham, Re 1389 

Wentworth v. Cock 1367 

V. Wentworth 1470, 1475 

1502a, 150Sa, 1509a 

Werner v. Wheeler 1089a, 1212 

Wernse v. Hall 1178 

West V. Bailey 1037 

V. Bolton 1500 

V. Shutteworoth 1463 

V. Waddill 1155 

V. Wilby 1112 

West, Re 1401 

Western Newspaper Union, Re. 1371 

Westerlo v. DeWitt 1219 

Westley v. Clarke 1402 

Wetdrill v. Wright 1110, 1124 

Wetmore v. Granite Co. v. Bcr- 

toli 1439, 1509 

V. Parker 1035 

Wflzler V. Fitch 1043 

Wevor V. Marvin 1522 

Weyer v. Second Nat. Bank. . .. 1202 

1341 

V. Watt ]5:9 

Weyland v. Weyland 1499 

Whale V. Booth 1 339 

Whaley v. Wlialey 1457 

Whoatley v. Badger 1037, 14S5 

V. Fdlowes 1460 

V. Hathaway 1420 

V. St. Joseph R 11 20 

V. Wheeler 1362. 1400 

Wheelwright, Goods of 1050 



Sec. 

Wheelwright v. Wheelwright. . 1545 

Whicker v. Hume 1 169 

Whit V. Ray 1094, 1120 

Whitaker v. Whitaker 1098, 1101 

1130, 1409 

V. Wright 1154 

Whitcomb v. Cook 1282 

White V. Massachusetts Insti- 
tute 1248 

White, Succession of 1361 

White V. Almy 1432 

V. Brown 1152 

V. Ditson 1146 

V. Donnell 1478 

V. Green 1490 

V. Hill 1160 

V. Mann 1184 

V. White 1488 

Whitehead v. Roberts 1073 

V. Taylor 1194, 1195 

Whitehouse v. Mason 1346 

Whiteside v. Barber 1514 

V. Whiteside 15i:2 

Whitford v. Panama R 1283 

Whiting V. Farnsworth 1120 

V. Whiting 1405 

Whitley v. Alexander 1320, 1358 

V. Stevenson 1450 

Whitman's Estate 1325 

Whitmore v. Hamilton 1469 

V. San Francisco Savings 

Union 1420, 1430 

Whitney v. Peddicord 1308, 1315 

V. Phoenix 1402 

Whittakcr v. Whittakcr 1377 

Willets, Re 1545 

Wili(y V. Tliompson 1439 

Wilkins V. Ellett 1024, 1091 

1164, 1107, 1173, 1170 

V. Fry 1375 

V. Harris 1033, 1157 

Wilkinson v. Henderson 1379 

V. Hunter 1412 

V. Leland 1059 

V. Perrin 1120 



TABLE OF CASES IN VOL. II. 



Ixxxix 



See also Table of Cases in Volume I. 



CEC. 

Willamette Falls Co. v. Gordon. 1058 

VVillard v. Hammond 1015, 1164 

1177, 1281 

V. Van Leenwen 1430 

Willard'3 Estate 1542a 

Whitwell V. Bartlett 1001a 

Whitworth v. Oliver 1153 

Wharton v. Moragne 1340, 134G 

Whyte V. Eose 1165 

Wickersham's Appeal 1013 

Wiekwire v. Chapman 1105, 1109 

Widger, Goods of 1112 

Widgery v. Tepper 1099 

Wiggin V. Plumer 1160, 1161a 

V. Swett 1194, 1195 

1408, 1478, 1526 

Wilbraham v. Ludlow 1021 

Wiles V. Gresham 1387 

Wiley V. Brainerd 1154 

Wiley's Appeal 1223 

W^ilkerson v. Wootten 1400 

Williams v. Flippin 1 146 

Williams's Appeal 1153 

Williams, Re 1057 

Williams V. Breedon 1280, 1284 

V. Burrell 1366, 1367 

V. Campbell 1457b 

V. Conrad 1419 

V. Cushing 1046 

V. Eaton 1430 

V. Ely 1346 

V. Evans 1072 

V. Haddock 1218 

V. Heales 1376 

V. Holmes 1506 

V. Hopkins 1430 

V. Jakes 1115 

V. Kiernan 1192 

V. Maitland 1317, 1402 

V. Marshall 1358 

V. Mattucks 1268 

r. Nixon 1382, 1402 

V. Penn. R 1173 

V. Petticrew 1530, 1533 

V. Powell 1482 

V. Price 1428 



Sec. 

Williams v. Purdy 1439 

V. Saunders 1150 

V. Skinker 1310 

V. Starkweather 1146 

V. Storrs 1164 

V. Wilkins 1104 

V. Williams . ..1174, 1295, 1316 

1317, 1329, 1330, 1413, 1439 

1451, 1464, 1465, 1509, 1509a 

Williamson, Succession of 1098 

Williamson v. Furbush. . . 1116, 1119 

1215, 1430 

V. Morton 1362 

V. Walker 1361 

V. Williamson 1452, 1479 

Willing V. Perot 1133, 1172 

Willis V. Farley 1419 

V. Jones 1098 

V. Sharpe 1347 

V. Smith 1213 

V. Willis 1543 

Willoughby v. McCIuer ..1233, 123G 

Wills V. Dunn 1540 

Wilmerding v. McKesson 1402 

Wilmington v. Sutten 1456 

Wilmot, Goods of 1040, 1042 

Wilmot V. Woodhouse 1470 

Wilson, Re 1542 

Wilson V. Arrick 1408 

V. Beddard 1074 

V. Breeding 1496 

V. Curtis 1041 

V. Dibble 1119 

V. Doster . . 1352, 1362 

V. Fielding 1221 

V. Frazier 1157 

V. Fridenburg 1326 

V. Hoes 1152, 1153 

V. Hudson 1184 

V. Kirby 1428 

V. Lady Dunsany . ..1015, 1426 

V. Lineburger 1308, 1404 

V. Mason 1401 

V. Moore 1357 

V. Paul 1437 

V. Shearer 1423 



xc 



TABLE OF CASES IN VOL. II. 



See also Table of Cases in Volume I. 



Wilson V. Snow . 
V. Staats . . 
V. Tucker . . 
V. Whitefield 
V. Wilson . . 



1114, 



1247, 
1438, 
1462a, 



Wilts V. Wilts .... 

Wind V. Jekyl 

Windeatt v. Sharland 

Windsor v. Bell 

Winegar v. Newland 

Wing V. Augrave 

Wingate v. Pool . . . 1200, 1322, 

V. Wooten 1153, 

Wingersky's Estate 

Winn V. Slaughter 

Winslow V. Merchants' Ins. Co. 

Winsor v. Pratt 

Winter v. Dibble 1213, 

V. Hite 

V. Winter 

Winthrop v. Jarvis 

Winton's Appeal 

Wirt V. Pintard 

Wison V. Fielding 

Wisconsin Trust Co. v. Wiscon- 
sin Bank 

Wise V. Martin 

Wi swell V. Wiswell 

Witliy V. Mangles 

Witman's Appeal 1522, 

Witsel V. Pierce 

Witt's Estate 1540, 

Wittner's Estate 

Wolf V. Wolf 

Wolff V. Schaeffer 1142, 

Wollaston v. Hakewill 

V. Wollaston 

Womack v. Boyd 

Wood, Re 

Wood V. Brown 1401, 

V. Chctwood 

V. Ellis 

V. Gaynon 



Sec. 
1510 
1323 
1366 
1137 
1250 
1494 
1512 
1004 
1112 
1043 
1417 
1002 
1441 
1542 
1155 
1421 
1193 
1227 
1074 
1233 
1258 
1173 
1255 
1013 
1160 
1221 

1092 
1432 
123S 
1103 
1526 
1118 
1.544 
1154 
1242 
1148 
1370 
1519 
1455 
1247 
1402 
1032 
1433 
1227 



Wood V. Mathews 
V. Matthews . 
V. Myrick . . 



V. Nelson 

V. Penayre 1478, 

V. Seaver 

V. TunnicUff 1387, 

V. Vandenburgh 

V. Williams 1147, 

V. Wood 

Woodley v. Holley 

Wood's Appeal 1349, 1352 

Wood's Estate 1345, 

Woodbury v. Woodbury 

Wooden v. Cowles 

Woodfin V. McNealy 1146, 

Woodfolk V. Beatty 

Woodgate v. Field 

Woodin V. Bagley 1288, 

Woodman v. Woodman 

Woodruff V. Cook 

V. Shultz 

V. Woodruff 

Woodruff V. Cox 

Woods, Goods of 

Woods V. Elliott 

V. North 1355, 

V. Ridley 1251, 1257, 

1259, 

V. Sullivan 1324, 

Woodward v. Condon 

V. Goulstone 

Woodyard v. Polsley 

Woodridge v. Bishop 

Wooften V. Jlatz 

Wo<jlfork V. SulliTan 

Woolley V. Clark . 1160, 1190, 



Wooten's Estate . . . 
Wootton V. Redd . 
Worgang v. Clipp.. 
Worman, Goods of. 
Worcester Trust Co. 
Wortli V. McAdcn . 



Turner 
. . 1043, 



Sec. 
1058 
1015 
1322 
1241 
1481 
1467 
1396 
1490 
1148 
1137 
1317 
1362 
1421 
1448 
1418 
1207 
1120 
1519 
1387 
1496 
1265 
1172 
1525 
1106 
1035 
1316 
1361 
1258 
1542 
1327 
1467 
1084 
1389 
1195 
1089a 
1190 
1194 
11!»5 
1113 
1474 
1146 
1098 
1467 
1402 



TABLE OF CASES IN VOL. II. 



xei 



See also Table of Cases in Volume I. 



Sec. 

Worthington v. Gittings 1151 

Worthley v. Hammond 1428 

Wray v. Field 1-168 

Wren v. Gayden 1247 

Wright V. Gilbert 1174 

V. Holmes 1297 

V. Life Ins. Co 1211 

V. Lowe 1520 

V. McNatt 1154 

V. Minshall 121S 

V. Mongle 1088 

V. Phillips 1016, 1174 

V. Schmidt 1144 

V. Tatham 1073 

V. Wright 1212 

V. Wollbaum 1160 

V. Ware 1028 

V. Williams 1301 

V. Wright . ...1104, 1202, 1247 

1439, 1451 

Wyatt V. Williams 1283 

Wyck, Matter of 1156 

Wyckoflf V. O'Neil 1508b, 1538 

Wyckhoff, Goods of 1115 

Wyman v. Halstead 1024, 1228 

V. Porter 1515a 

V. Symmes 1076 

V. Wyman 1218 



Wyman, Re . . . 
Wyman's Appeal 

Wyse V. Smith . . 



Yarborough v. Leggett . . 1386, 

Yardley v. Arnold 

Yates V. Clark 

V. Maddan 

Yeldell v. Shinholster 

Yerger v. Jones 

Yoell's Estate 1453, 

Yetter's Estate 

Yingling v. Hesson 

York V. York 

Young V. Alexander 

V. Holloway 

V. Kennedy 

V. Kimball 1408, 

V. O'Neal 1176, 

V. Roach 

Young, Re 

Young's Estate 

Young's Appeal 

Z. 

Zimmermann v. Anders 1459 

V. Kinkle 1360, 1364 

V. Zimmerman 1062 



Sec. 
lUG 
1387 
1430 

1387 
1421 
1154 
1487 
1244 
1352 
1454 
1504a 
1390 
1456 
1239 
1153 
1175 
1457 
1408 
1024 
1479 
1079 
1402 



THE LAW 



OF 



EXECUTORS AND ADMINISTRATORS, 



PART I. 

INTEODUCTOEY CHAPTEE. 

§ 1001. Estates of Deceased Persons; how Settled in Modern 
Practice; Theory of Judicial Supervision. 

When a person dies, leaving a fair amount of personal property, 
his estate is usually set apart, in our mode'rn English and Ameri- 
can practice, to be settled under the immediate supervision of 
local and usually county tribunals invested with appropriate func- 
tions, whose fundamental duty it is to exact a settlement according 
to law; and, moreover, with due respect to the last wishes of the 
deceased, if such wishes were properly expressed by him during his 
lifetime while acting freely and of sound and disposing mind and 
memory. 

The main objects proposed -are these: that the personalty of the 
deceased be properly collected, preserved, and (together with in- 
come and profits) duly accounted for; that his just debts and the 
charges consequent upon his death and the administration of his 
estate be paid and adjusted, with such discrimination only as the 
law recognizes in case the assets should prove insufficient ; that the 
immediate necessities of spouse and young children (if there be 
such sui-viving) be provided for as the statute may have directed; 
that the distribution and division of the residue or surplus of the 
estate be made among such persons and in such proportions as the 
will of the deceased, if there be one, otheTwise the statute of dis- 
tributions, may have prescribed. Where the deceased left what 

863 



§ 1001a EXECUTOES AXD ADMIXISTRATOKS. [PAET I. 

purports to be a will, the solenm establishment of that will and its 
public authentication require further attention from such tribu- 
nals; specific or general legacies must be paid next after the debts, 
taking their peculiar priorities, and the balance or residuary fund 
reckoned up and adjusted accordingly, if not already exhausted. 
Whether a last will, entitled to probate, be left or not, the man- 
agement of the estate must be judicially committed to the person 
or persons rightfully entitled to represent the deceased ; he or they 
qualifying, by giving bond with or without security, as the case 
may be, for a faithful performance of the trust, and thereupon 
receiving letters under the seal and authentication of the court. 
And this by way of public credentials or a commission, to be re- 
spected in all other courts throughout the jurisdiction of the State 
or country. All this judicial supei'vision and direction is exer- 
cised, in England and the United States, by peculiar tribunals, 
whose jurisdiction and powers are in modern times usually de- 
fined, if not created, by local statutes. But chancery courts in Eng- 
land have a considerable supervision of such matters besides. 

§ 1001a. Death Fundamental to Jurisdiction; Survivorship. 

The death of the person who is claimed to have left a will or 
died intestate is fundamental to all jurisdiction in settling his 
estate; and whatever may have been the occasion of error, letters 
granted upon the estate of a living person are null and cannot take 
effect against him.^ So may the question of actual survivorship 
be important where one is to inherit from another, whether by tes- 
tacy or intestacy.^ 

1. §§ 55, 91, 180. 2 Col. App. 241, tual Benefit Life Tns. Co. v. Tinsdale, 

83 P. 275; Jocliunisen v. Savings 91 U. S. 238 (suit on life insurance 

Bank, 3 Allen 87; Devlin v. Common- policy) ; 60 N. Y. 121, 19 Am. Rep. 

wealth, 101 Penn. St. 273, 47 Am. 144; 32 Ala. 353, 70 Am. Dec. 540; 

Rep. 710; D'Arusment v. Jones, 4 4 Md. 175; 11 Rich. 569. See Dono- 

Lea. 251, 40 Am. Rep. 12. van v. Major, 97 N. E. 231, 253 111. 

The grant of letters is prima facie 179; 115 P. 597, 58 Oreg. 572; Whit- 

but by no means eoncliisive evidence well v. Bartlett, 98 N. E. 98, 211 

that the death aetiially occurred. 26 Mass. 238. 

Barb. 383; 6 TJiomp. & C. 294; Mu- 2. lb. Thus where husband and 

8G4 



PAKT I.] INTRODUCTION. § 1002 

§ 1002. Settlement of Estates, Testate or Intestate; Executors 
and Administrators, and their Functions; Administra- 
tion. 

The estates of deceased persons, it is thus perceived, are well 
classified as testate and intestate; the one class embracing all es- 
tates to be settled under a will ; the other, all estates for settlement 
where there was no will. In many respects, such as the collection 
and preservation of effects, and the payment of debts and charges, 
there is little or no essential difference found in our modern prac- 
tice between these two classes. For it is a fundamental maxim 
of our common law that all just existing debts shall be paid out 
of one's property before any further disposition thereof can take 
effect.^^ But great differences are perceived when it comes to that 
further disposition of the dead person's property; a testate estate 
being divided and distributed according to the testamentary direc- 
tions of the deceased, while that of an intestate goes by the public 
mandate. The representative follows a private plan and specifica- 
tions in the one case, but not in the other, so far as he deals with 
the surplus above debts and charges. 

This representative under a will, so peculiarly intimate in his 
relation with the thoughts and wishes of the deceased, is styled 
an executor in the former instance; an executor being the person 
who is charged by the testator with the execution or putting in 
force of his will.^ The corresponding representative, for other 
cases, is an administrator; this term applying, not only where the 
deceased person left no valid will at all, but where the estate is 
testate, and yet, for one reason or another, there is no person 
found to execute the will whom the testator may be said to have 
actually designated or selected for the ofiice.* And hence arises 

wife share some calamity, such as a Wing, 4 De G. M. & G. 633, 661; 

shipwreck, and there is no evidence (1898) P. 143: (1897) P. 17 

that one survived the other. Wing 2a. Coke, 2nd Inst. 398; Bouv. 

V. Angrave, 8 H. L. C. 183; Alston's Diet. "Administration." 

Goods, (1892) P. 142; Roby's Estate, 3. 2 Bl. Com. 503; 3 Atk. Ch. 301. 

(1913) P. 6. And see general works 4. 2 Bl. Com. 494. 

on Evidence. See also Underwood v. 

55 865 



§ 1002 EXECUTOKS AXD ADMINISTRATORS. [PART I. 

some confusion in legal terms when we seek to distingiiisli between 
the representatives of testate and of intestate estates; though the 
words executors and administrators are commonly employed in 
that connection as though correlative. 

The common-law distinction is, in fact, here founded in consid- 
erations of privilege attached to the personal choice by the deceased 
of his own representative, — considerations which in the lapse of 
time have lost much of their early force. The executor was said, 
by English jurists, to derive his authority from the will, rather 
than from any judicial appointment at all ; and hence his formal 
qualification for the office was deemed of secondary consequence; 
the English temporal courts showing no great solicitude for up- 
holding that peculiar authority over decedents' estates which 
spiritual tribunals asserted. On the other hand, it was admitted 
that an administrator's authority was derived wholly from the ap- 
pointment made by such tribunals, though this appointment were 
in literal pursuance of the statute.^ The modem tendency, how- 
ever, both in England and the United States, is to assimilate the 
powers and duties of these two classes of legal representatives so 
far as may be ; to recognize the departure of their several functions 
only so far as the distinction between settling estates testate and 
intestate fairly produces it; to require both executors and admin- 
istrators to take out letters and qualify In the same special court, 
rendering their accounts upon a like plan and under a like super- 
vision; and to rule that the choice of an executor by the testator 
gives the one a marked advantage for securing the judicial ajy- 
pointment in preference to others desiring the office, and upon 
peculiarly favorable terms, perhaps, as to furnishing security, but 
not so as to override or dispense with the judicial discretion alto- 
gether. 

Nevertheless, executors and administrators are technically di^ 
tinguished in our law as before. One selected judicially to settle 
an estat/o under a will, not Ix^ing named in that will, is styled an 
administrator (not executor), with the will annexed; and there 

5. Sec 2 Bl. Com. 495; Part IF., post, as to appointment. 

86G 



PART I.] INTRODUCTION. § 1003 

is no executor, so to speak, apart from some designation under the 
will of the person who shall officiate in the trust. Consequently, 
" execution " being a term quite liable to legal misconception, and 
in probate law confined at all events to the narrower oomiection, 
the word '' administration " is at the present day acquiring a 
broad significance, as more nearly synonymous with the general 
management and settlement of a deceased person's estate.'' For, as 
a jurisprudence developes, which takes in the whole compass or 
our highly interesting and important subject, the necessity be- 
comes felt for a single appropriate and universal term, applicable 
to estates whether testate or intestate, and to the winding-up of 
a dead owner's affairs under spiritual or probate supervision ; and 
such a term the common law does not supply. 



§ 1003. Whether there may be a Will without an Executor. 

The logical distinction between executors and administrators 
appears to have been more precisely stated in the ancient days of 
our law than in modern times. For, to quote from Swinburne, 
" the naming or appointment of an executor is said to be the 
foundation, the substance, the head, and is indeed the true for- 
mal cause of the testament, without which a will is no proper 
testament, and by the which only the will is made a testament."^ 
And other early English authorities are to the same purport.* 
Nevertheless, our modern practice proceeds upon quite a differ- 
ent theory; and while there can be no executor without some will 
to name or constitute him, it is certain that a will properly exe- 
cuted may be valid without naming an executor at all, or notwith- 
standing the executor named dies before probate or from one 
cause or another becomes disqualified from acting; in any of which 

6. See e. g. Bouv. Diet. " Admin- present volume, " Executors and Ad- 

istration." Some digests of the pres- ministrators." 

ent day are arranged with reference 7. Swinb. pt. 1, § 3, pi. 19. 

to such a heading; though the more 8. Godolphin, pt. 1, c. 1, § 2; Plowd. 

common title is still like that of the 185; Wms. Exrs. 7. 

867 



§ 1004 EXECUTORS AND ADMINISTEATOKS. [PAET I. 

contingencies the probate court will constitute an administrator 
with the will annexed.^ 

§ 1004. Whether a Will can operate upon Property afterwards 
acquired. 

A devise of lands, when such dispositions became permitted in 
English law, was distinguishable in its operation from a will or 
testament ; for a will or testament operated in general terms upon 
all the personal property of which the testator might die possessed, 
save so far as he chose to except particular chattels; whereas a 
devise of lands was treated in the courts rather as a conveyance 
by way of appointment of particular lands to a particular de- 
visee.^ Upon such a principle of distinction it became established 
in practice that one could devise only lands of which he was seized 
at the time of its execution ; whereas his will and testament would 
operate of right upon personal property before or afterwards 
acquired, provided only that he died possessed of it.^ 

The modem extension of testamentary facilities to the dis- 
position of a testator's whole estate, whether real, personal, or 
mixed, tends, however, to subvert distinctions of this latter descrip- 
tion. In the United States, wills are usually permitted to operate 
upon real estate and descendible interests of every description ; and 
local statutes expressly recognize the right of a testator to pass 
his after-acquired lands and landed estates and interests, giving 
effect to his manifest intention accordingly. Manifest intention 
is the rule of guidance correspondingly as to all dispositions of 
personalty, though presumptions as to that intention may differ; 
and hence " will and testament " have long been the words pop- 
ularly used in this country^ as applicable to one's property of 

9. Roe 2 Chanc. Rop. 112; Appoint- under the appellation of "codicil." 

ment, post, Part II. Even under the Wins. E.\rs. 7. 

old law, an instrument which would 1. ITarwood v. Goodright, Cowp. 90; 

have been a testament had an execu- 4 Kent. Com. 502; Wms. Exrs. 6, 7. 

tor heen named, was considered 2. Wind v. .Tel<yl, 1 P. Wms. 575; 

oIj!i;:^iitory upon tin- iulriiinistrator, Wins. Exr.'?. fi. 7. 

3. Cliancellor Kent observed this 

8G8 



PAKT I.] INTRODUCTION. § 1005 

wliatever description which, he disposes of with testamentary in- 
tention. In England, too, " devise," since the year 1837, has 
lost much of its special significance ; for the statute of wills, 1 
Vict. c. 26, extends the power of disposing by one's will duly 
executed to all such real and personal estate (including landed 
interests) as the testator may be entitled to at the time of his 
death, notwithstanding his title vests subsequently to the execution 
of his will.* 

§ 1005. Personal Property is administered; whether Real Estate 
can be applied. 

The management, settlement, or administration of the estates 
of deceased persons relates primarily and fundamentally to per- 
sonal property alone ; for with the real estate of the testate or 
intestate decedent, his executor or administrator has at common 
law no concern.'' This rule is owing partly perhaps to the jeal- 
ousy with which bishops and their tribunals of special jurisdiction 
over estates of the dead were formerly regarded; but we should 
chiefly ascribe it to that stability of real estate tenure as con- 
trasted with title to personal property, which is at the basis of 
English policy and English jurisprudence. An ancestor's lands 
vested in his descendant at his decease without further formality ; 
the heir-at-law became invested with the dignities and responsi- 
bilities pertaining to the founder; in England a statute of descents 
was not framed like a statute of distributions. " By the laws of 
this realm," observes iSwinburne, one of our earliest writers of 
repute on testamentary law, " as the heir hath not to deal with 
the goods and chattels of the deceased, no more hath the executor 
to do with the lands, tenements, and hereditaments;"^ and if the 
executor as such, notwithstanding the confidence reposed in him, 
took no interest in the real estate of his testator, still less did an 

popular use of words in the United Stat. 1 Vict. c. 26, § 3; Wms. Exrs. 

States early in the nineteenth cen- preface. 

tury. See 4 Kent. Com. 501. And see 5. This subject is considered at 

Wms Exrs. 6, 7, Perkins's n. length, post. 

4. See Vol. I (Wills), §§ 28, 29; 6. Swinb. pt. 6, § 3, pi. 5. 

SG9 



§ 1006 EXECUTOES A^^D ADMINISTEATOES. [PAET I. 

administrator in the lands of his intestate. Debts and charges, 
nevertheless, remain obligatory upon the estate, so long as prop- 
erty of the deceased may be found for their satisfaction ; and 
hence, if the personal assets prove insufficient, the lands may be 
applied to make up the deficiency on license of the court; modem 
statutes in England and the United States greatly enlarging all 
earlier facilities in this respect. Moreover, an executor may have 
been empowered in fact to deal with real estate under the will of 
his testator; who naturally on his part does not bestow the bulk of 
his fortune upon those surviving him in these days without con- 
templating a general disposition of his property, real, personal, 
and mixed. 

A schedule of real estate of the deceased is therefore to be in- 
cluded in the inventory which an executor or administrator re- 
turns to the court from whose appointment he derives full author- 
ity; the schedule of personal property, however, sendng alone as 
the basis of his accounts.^ And while such real estate, in the 
absence of a will making inconsistent provisions, may still as 
formerly be said to vest in the heir at once, upon the owner's 
decease, an incumbrance or cloud remains on the title until a 
sufficient period has elapsed for presenting claims against the 
estate or it other\vise appears clear that the personal representa- 
tive will not be compelled to resort to the land because the per- 
sonal assets prove deficient for the purposes of winding up the 
estate.^ 

§ 1006. Succession in the Civil Law; as distinguished from Ad- 
ministration, 

Our common-law system of " administration " (using this word 
in its broadest sense )^ whereby a deceased person's estate be- 
comes sequestered, so to speak, and confided to legal repre- 
sentatives for the purposes we have described, appears to have 

7. Roe as to Inventory and Assets, length, post, §§ 1212-1218. 
po.1t, Part III. 9. Supra, § 1002. 

8. Tliia subject is considered at 

870 



PART I.] INTRODUCTION. § 1006 

no precise counterpart in Roman jurisprudence, " Succession " 
is a general term used hy civilians with reference to the status 
derived from the transmission of the rights and obligations of a 
deceased person ; but " title by succession " is very different from 
that representative or trust title to personalty which one takes at 
our law as an executor or administrator; being indeed so com- 
plex and abstruse a topic as hardly to deserve our studious atten- 
tion. The heir stepped into the place vacated by the deceased, 
enjoying his property rights, and burdened with his property re- 
sponsibilities ; this was the fundamental principle of succession, 
the successor himself being called at Roman law haeres, and that 
to which he succeeded haereditas. Upon such heir (whose status 
was somewhat like that of our common-law heir to whom real 
estates descends, when the ancestor has left no other property) 
devolved at Roman law the personal duty of discharging legal 
debts and the incumbrances of the deceased ; and, moreover, if the 
deceased left a will, of satisfying the special testamentary pro- 
visions in addition. In this latter respect, it appears that the heir 
was bound to pay all legacies so far as the property descending 
to him might suffice, and no farther ; but as to the former, legal 
consistency for the space of a thousand years in Roman history 
compelled the successor to pay all the debts of bis deceased pre- 
decessor, whether the property obtained from the estate proved 
sufficient or not ; a harsh but legitimate consequence of the theory, 
which disappeared in the age of Justinian, at which era inven- 
tories were introduced in order that the estates of heir and de- 
cedent might be separated.^ Religious scruples had all the while 
prompted the successor of an insolvent to make personal sacrifice ; 
for religious and temporal duties were blended in the succession ; 
and the estate of the deceased who died insolvent was stigmatized 
as damnosa. The heir enjoyed of course the usual privileges of 
a residuary legatee ; and after the changes introduced by Justinian, 
two classes of heirs were found to have sprung up in Roman prac- 
tice : the one consisting of those who made no inventory, and 
bore the ancient burdens of a legal succession ; the other, of those 

871 



§ 1006 EXECUTORS AND ADMINISTRATORS. [pART I. 

who made an inventory, and, leaving the decedent's estate to be 
honored or dishonored upon its own merits, required creditors to 
confine their claims to assets available from the estate, not con- 
tributing from their own private fortunes to make up a deficiency.^ 

Thus was the old theory of succession gradually forsaken in 
the latter days of the Roman empire, the heir becoming more 
nearly in effect like what we style an executor or administrator, 
if so he preferred. It is to be presumed that the person who was 
instituted heir might renounce the succession if he chose, and 
thus escape all burdensome obligations. And in default of a 
testamentary succession, — that is, the constitution of the heir by 
a will duly executed in the forms prescribed by law, — or where 
he renounced the inheritance, a legal succession arose in favor of 
the nearest relatives of the deceased ; moreover, an irregular suc- 
cession became established by law in favor of certain persons or of 
the State in default of heirs either legal or instituted by testament. 
Such doctrines certainly pertain to the civil law of modem Europe 
and of American colonies founded by the French and Spanish.^ 

" Administration " and " administrators " are terms not em- 
ployed, however, by either the ancient or modem civilians, as it 
would appear, though our " administration " somewhat resembles 
the honorum possessio of imperial Rome.* But, as concerns the 
settlement of testate estates, while the Roman testator seldom com- 
mitted such functions to o-ther persons than the testamentary heir 
himself, and similar restraints are still imposed in some European 
localities, modern custom in France greatly favors the special in- 
stitution of executors, and leaves the testator at liberty to name 
persons who shall take all or part of the movable property for exe- 
cuting the dispositions under the will confided to their care.'' And 

1. Iluntor Roman Law, 567, 568. In 3. Domat. Civ. Law by Strahan, § 
a fpw instances prior to Justinian the 3125; Bouv. Diet. "Succession." 
Praetor allowed a separatio bonorum. 4. Colquhoun Rom. Civ. Law, § 
Th. 1413. 

2. Hunter iloinan Law. 567, 568, 5. Domat Civ. Law, §§ 3330-3334. 
574-576. In our early colonial days, wlieii the 

872 



PART I.] INTRODUCTION. § 1007 

thus may one's testamentary dispositions take effect and be fully 
executed, notwithstanding the absence, death, or possible miscon- 
duct of the testamentary heir, and this by means of representa- 
tives whose judgment, integrity, and business qualifications may 
be weighed without the prepossessions of family affection. For 
freedom in the selection of executors under a will is the surest 
pledge of the faithful execution of that will according to the in- 
terests of all concerned under its provisions. 

§ 1007. Testacy preferred to Intestacy in Civil and Common 
Law; Former Abuses in English Law where Intestate 
Estates were administered. 

Under both the civil and common-law traditions, as it thus 
appears, a person of fortune has been expected to dispose of his 
personal estate by a will ; and tracing either law to its source, we 
shall find testacy in that respect decidedly preferred to intestacy. 
Indeed, the contempt of our early English law for those who from 
want of foresight or opportunity died leaving behind them per- 
sonal property not bequeathed by some last will and testament in 
a formal manneir was strikingly manifested. The intestate came 
into the category of bastards and other unfortunateis. The king, 
according to the old maxims, might seize upon his goods and 
chattels as parens patriae; and for a considerable time the feudal 
superior or lord of a demesne exercised by delegation the right of 
administration; after which this branch of the prerogative passed 
to the bishop or ordinary in the several dioceses upon a trust to 
distribute the residue of the intestate's goods in charity to the 
poor or for what were deemed pious uses. These prelates soon 
abused a trust for which they were held accountable in truth only 
to Grod and their spiritual superiors; they would take to them- 
selves, in their several jurisdictions, the whole surplus of an in- 
testate's estate after deducting the partes rationahiles ; that is to 
say, two- thirds to which one's wife and children (if he left such) 
were entitled; and this without even paying his just debts and 
lawful charges. That iniquitous rule Pope Innocent IV. recog- 

873 



§ 1007 EXECUTORS AND ADMIXISTEATOKS. [pART I. 

nized as the established common law of Great Britain as early as 
the middle of the thirteenth century.^ 

Two acts of Parliament put an end to this abuse of spiritual 
power: (1) the Statute of Westm. II. (declaratory of the com- 
mon law), which required the ordinary to pay the debts of the 
intestate so far as his goods extended, in the same manner that 
executors were bound to do where one died testate; (2) the Statute 
31 Edw. III. c. 11, under whose later provisions the ordinary ceased 
to be a sort of haeres under an intestate succession, and became 
obliged to depute administration to the nearest and most lawful 
friends of the deceased, instead of administering as before in 
person and without accountability.^ These statutes went far 
towards altering former hardships and bringing executors and ad- 
ministrators upon an equivalent footing of legal accountability to 
all those interested in the estate; though abuses continued as to 
surpluses, for which the temporal administrator in his turn de- 
served reproach, the ecclesiastical court.s having endeavored in vain 
to force a proper distribution of intestate estates by taking bonds 
from these legal representatives to that intent. At length was en- 
acted the Statute of Distributions, 22 & 23 Car. II. c. 10, and the 
administrator of an intestate estate could no longer administer for 
his personal benefit.^ The first American colonies were planted 
before the date of this last important enactment of the English 
Parliament; but positive enactments of a similar character have 
long prevailed in every State of this Union.^ And how much 
of excellent legislation on dry subjects our countries of English 
origin may trace to the reign of that good-natured and dissipated 
monarch who followed Cromwell and the •Commonwealth, no jurist 
can ever forget. 

civil law as modifiorl by the usapes of 7. 2 Bl. Com. 405, A^(S\ Wms. Exra. 

Holland, i)revaile(l in Now York, the 7th Eng. ed. 401; Snclling's Case, 5 

execution of a will devolved upon the Rep. 82 b. 

" instituted heir " without issuance of 8. Wms. Exrs. 1484. 

any letters whatever. Van Gieson v. 9. See post, Part V, as to Distri- 

Bridgford, 18 Hun (N. Y.) 73. bution. 
6. 2 Bl. Com. 49.'5, 490; post, § 1009. 

874 



I^AKT I.] INTRODUCTION. § 1008 

§ 1008. Wills of Real and Personal Property, whether distin- 
guishable of Right; Modern Statute of Wills. 

From the time of the Norman Conquest until the reign of 
Henry VIII. an English subject, had, strictly speaking, no right 
to dispose by will of his real estate; but the land would descend to 
the heir by force of the law of descents which favored a first-born 
son above all other children. It was constantly admitted, how- 
ever, that wills of chattels or personal property might be made; 
and the term " chattels," of course, embraced terms for years and 
other chattels real, which, being of less dignity than a freehold, 
followed necessarily the same general doctrines as chattels per- 
sonal.^ But the acts 32 & 34 Henry VIII. sanctioned to a con- 
siderable extent the devise of lands, upon the testator's observance 
of certain formalities which were further set out by the celebrated 
Statute of Frauds (29 Car. II.). 

In the United States primogeniture was early abolished with 
all its attendant privileges, or rather preferences ; and our an- 
cestors here, from the earliest colonial establishment, appear to 
have permitted the devise of lands by will under statute regula- 
tions based upon those English enactments.^ Since our indepen- 
dence of Great Britain, American policy has favored, in the several 
States, the execution of wills with the same formalities, whether 
to pass real or personal property, or both kinds together. The 
same' just doctrine has at length gafined a firm footing in England 
by operation of the important modern Statute of Wills, 1 Vict. c. 
26 (which affects all English wills made from and after January 
1, 1838) ; under whose provisions it is rendered lawful for every 
person to devise, bequeath, and dispose of all real estate and all 
personal estate which he shall be entitled to at the time of his 
death, either at law or in equity, provided the will be executed 
with the formalities therein prescribed.^ 

1. Wms. Exrs. 1; Co. Litt. Ill b, 3. Wms. Exrs. 7th cd. 5, This Stat, 
note (1) by Hargrave; 1 Schoul. Pers. (1 Vict. c. 26) is set forth at length 
Prop. § 9. in the preface to the 6th and later 

2. 4 Kent. Com. 504, 505; Part II., editions of Williams's work; also in 
post. each edition of Schouler \Yill3 

875 



§ 1010 EXECUTORS JlND ADMINISTRATORS. [pART I. 

§ 1009. Ancient Doctrine of the Reasonable Parts of Widow and 
Children; Wills of Personal Property affected. 

But while the common law permitted one to bequeath his per- 
sonal property by will, a restriction appears to have prevailed in 
the reign of Henry II. as to the person who died leaving a wife 
or issue or both surviving him. In such a case the man's goods 
and chattels, if he left both wife and children, were divided into 
three equal parts : one went to his heirs or lineal descendants, an- 
other to his wife, and only the remaining third went according 
to his own express disposition ; though, if only a wife survived 
him, or only issue, a moiety went to such wife or such issue, and 
he might bequeath the other moiety. These shares of wife or 
children were called their reasonable parts, and the writ de 
rationahili parte honorum lay for the recovery of these portions. 
If, however, the testator died, leaving neither widow nor issue, his 
will might operate so as to dispose absolutely of all his personalty ; 
and the legal restriction itself, whether of general force, or ex- 
isting only in certain localities by custom, gradually disappeared, 
the date of its extinction as well as of its origin being obscure.* 

§ 1010. Jurisdiction in the Grant of Letters Testamentary and 
Administration; English Ecclesiastical Courts. 
Jurisdiction over wills and their probate in England belonged, 
before ecclesiastical functions were exercised in such cases, to the 
county court or to th^i court baron of the manor where the testator 
died ; and before these county tribunals all other matters of civil 
dispute were determined. This power of the probate existed down 
to quite a recent period in certain English manors, and so as to 
preclude the interference of the ordinary. The earl formerly pre- 
sided over this county court; though subsequent to the introduction 

(Vol. I.) appx. See Part IT., c. 1, the writ dc rationahili parte bonorum 

post, as to the appointment of execu- was given by the eomnion law or cub- 

tors. torn. This doctrine will be noticed 

4. Wms. Exrs. 2, 3; Co. T.itt. 170 again under the head of Distribution* 

b; 2 Bl. Com. 492. English autlior- post, Part V. 
ities differ upon the question wlietlier 

876 



PAKT I.] INTKODUCTION. § 1011 

of Christianity the bishop sat with the earl. Soon after the ISTor- 
man invasion, however, the ecclesiastical and temporal jurisdic- 
tions were separated ; and gradually the bishops became invested 
with plenary authority as to matters which pertained to the estates, 
of the dead. Some English writers appear to have regarded this 
authority as in fact usurped by the ecclesiastics.^ But Blackstone 
ascribes it rather to the crown's favor to the Church, citing the 
observation of Perkins that the law considered spiritual men of 
better conscience than laymen, and thought that they had more 
knowledge as to what things would conduce to the benefit of the 
soul of the deceased.^ And according to our great English com- 
mentator, the disposition of intestates' effects once granted in con- 
fidence by the crown to the ordinary, the probate of wills followed 
as of course: for it was thought just and natural that the will of 
the deceased should be proved to the satisfaction of the prelate, 
whose right of distributing one's chattels for the good of his- 
soul was effectually superseded thereby,^ This ecclesiastical or 
spiritual jurisdiction — attended as it was with flagrant abuses at 
which the Papacy seems to have connived — doubtless inspired 
dread and disaffection in the temporal courts and among the Eng- 
lish laity ; for restraints were put repeatedly, by statute or judicial 
construction, upon the ordinary's authority, even in cases where 
he strove to enforce justice, and the necessity of probating wills. 
was reduced to the narrowest limits.^ 

§ 1011. Probate Jurisdiction in the United States. 

The American system of jurisdiction over estates of the de- 

5. Colquhoun Rom. Civ. Law, § sake of correcting some effort of the 
1413. ecclesiastics to usurp probate juris- 

6. Perkins, § 486; 2 Bl. Com. 494. diction) prohibited them from med- 

7. Z Bl. Com. 494. dling Avith the probate or registry of 

8. Colquhoun observes that the wills. Colquhoun Rom. Civ. Law, § 
Roman law enabled bishops or their 1413. Administration of goods at the 
superiors to maintain suits for loga- English law, he further observes, re- 
cies left in pios usus, such as the sup- sembles in some measure the honorum 
port of the poor, and the redemption possessio of the Roman law. lb. 

of captives; but (probably for the 

877 



§ 1011 EXECUTORS AISTD ADMINISTEATOES. [pAKT I. 

ceased was always far more simple and symmetrical than that 
which thus grew up in the mother country. Our early ancestors 
felt the need of some tribunal whence letters testamentary and of 
administration should issue; and at the same time, rejecting the 
idea of a spiritual jurisdiction and courts of bishops such as then 
made part of the British system, they came back to the primitive 
notion of county courts which should blend probate with common- 
law functions. From these county courts lay an appeal to the 
supreme temporal tribunal. But, as population grew, these powers 
exercised by the inferior courts called once more for a division, 
without, however, any necessity for placating bishops. New 
county tribunals were accordingly erected for the transaction of 
such business as might pertain to the estates of the dead, testa- 
mentary trusts, the guardianship of orphans, and the like. To 
the old county courts was left their common-law jurisdiction, while 
the supreme court retained control over them all, as alike the tri- 
bunal of final resort in matters relating to common law, probate 
and equity. 

Such is the general origin of probate jurisdiction in the United 
States. But the local courts thus clothed with primary authority 
respecting wills and administration have borne different names 
and varied as to procedure in many details, in accordance with 
the local codes. In New England and in most of the Western 
States whose legislation bears the impress of New England ideas, 
each county has its appropriate court and judge of probate; in 
New York we find the county surrogate ; in New Jersey an or- 
phans' court or ordinary ; in Pennsylvania and various other States 
an orphans' court; while in some parts of this country, and par- 
ticularly the pioneer region, probate functions are still exercised 
by the general parish or county tribunals.^ For convenience we 
shall in this treatise speak of all such tribunals as " courts of pro- 
bate " (such being perhaps the most familiar designation), and 
the law pertaining to this jurisdiction over estates of deceased per- 
sons as " probate law." All such courts have a judge or surrogate 

9. See 2 Kent Com, 22G, 227; Smith (Mass.) Prob. Tract. 1-5. 

878 



PAET I.] INTRODUCTION. § 1012 

who performs the appropriate judicial duties, and a register who 
records the wills, letters and accounts, for public inspection, and 
perforins other duties corresponding more nearly to those of a 
clerk of courts. Probate courts and their officers constitute a part 
of the local judiciary system of each State; yet the functions per- 
formed by judge and register are in many respects analogous to 
those of administrative officers. 

§ 1012. Probate Jurisdiction in the United States; the Subject 
continued. 
These probate tribunals, or substitutes for the English spiritual 
courts, being of statute creation, their jurisdiction and practice 
are defined at much length in the several 'States by legislative en- 
actment. American policy demands that estates of the dead, if 
not really trivial in character or amount, shall pass through the 
probate office for the benefit of all parties interested ; that, under 
the scrutiny of the court, they shall be wound up regularly, ex- 
peditiously, and economically, by representatives whose credentials 
of authority are procured from the proper county tribunal, and 
upon the filing of due security ; that wills, whether relating to per- 
sonal, real, or mixed property, shall be presented for probate as 
soon after the testator's death as decency permits ; that the riglits 
of all persons interested in a dead person's estate, including credi- 
tors, legatees, and next of kin, shall be sedulously protected, 
whether one died testate or intestate; and that, so far as may be 
convenient, testaments, inventories, the accounts of executors or 
administrators, and other essential documents showing the condi- 
tion and course of settlement of each deceased person's estate shall 
be preserved for inspection in the county probate files, and made 
matter of public registry; though practically, if the representative 
be duly qualified, and the will or the fact of intestacy clearly 
placed on record, the bond of the representative affords security to 
all concerned that any omission to render an inventory and ac- 
counts need not work them an injury if private and family con- 
siderations hindeT the pursuit of those full formalities. As the for- 

879 



§ 1013 EXECUTORS AND ADMINISTEATOES. [PAET I. 

tunes of most citizens of consequence may thus be passed in re- 
view on their death, the living man's regard for this sort of post- 
mortem reputation among his sur^dving relations, neighbors, and 
acquaintances, imparts a fresh stimulus to acquisition, besides im- 
jDOsing a. check upon loose and fraudulent transactions ; the muni- 
ments of title to property by will and inheritance are well pre- 
served ; and not to mention the gratification of an idler's curiosity, 
facts may be ascertained at the probate registry of high importance 
to the public assessor, statistician, and local historian. Moreover, 
a practical convenience is found thereby in the imposition of in- 
heritance taxes under our latest State legislation. 

§ 1013. The Subject continued ; Probate Procedure in the United 
States. 

As befits an authority which thus pervades the sanctity of a 
household, crosses the threshold and exposes to public view the 
chamber of mourning, probate jurisdiction in the United States is 
exercised with great simplicity of form as well as decorum. Costs 
and fees are trifiing; the mode of procedure is by a simple petition 
which states the few facts essential to give the court jurisdiction; 
in various counties and States the needful blanks may be obtained 
from the register; and of so informal a nature is the hearing be- 
fore the judge or surrogate that parties appear often without legal 
counsel, the usual aspect of a probate court-room in the rural 
counties being that of some executive office where business is sum- 
marily disposed of. In many parts of the United States probate 
courts are pronounced courts of record; apart from which, to 
authenticate wills, qualify executors and administrators, and super- 
vise the settlement and distribution of the estates of deceased per- 
sons, affords to all such local tribunals an independent and highly 
responsible sphere of judicial action, exclusive in the first instance. 
In the construction of testamentary tnists, and upon various other 
subjects, probate courts exercise often a concurrent authority with 
those of equity; and in general the right of appeal from their 
decrees to the final state tribunal, though exercised comparatively 

880 



PART I.] 



INTKODUCTION. 



§ lOK 



seldom, gives assurance that the delicate discretion reposed in these 
temporal magistrates will not be seriously abused/ And yet, im- 



1. In New Jersey the court of chan- 
cery has concurrent jurisdiction with 
the orphans' court in tlie stttknient 
of the accounts of executors and ad- 
ministrators, and may assume exclu- 
sive jurisdiction at any time before 
decree of allowance; but no interfer- 
ence will be made where the settle- 
ment is proceeding regularly in the 
orplians' court unless special cause is 
shown. Search v. Search, 27 N. J. 
Eq. 137. Under New York statutes 
the jurisdiction of the surrogate to 
compel an account from the fiduciary 
is not exclusive, but concurrent with 
the supreme court, and the right to 
resort to an equity tribunal appears 
in general peculiarly appropriate 
where the circumstances of a case are 
such as to require relief of a nature 
which the probate or surrogate tribu- 
nal cannot afford. Hadow v. Lundy, 
59 N. Y. 320; Rogers v. King, 8 
Paige, 210; Story Eq. Jur. §§ 530- 
543. Statutes relating to probate ju- 
risdiction will not be presumed 
to divest the usual chancery courts of 
their equitable jurisdiction in the 
matter of legacies, even though a con- 
current jurisdiction be conferrtd. 
Catlin v. Wheeler, 49 Wis. 507, 5 N. 
W. 935. And in matters of purely 
equitable cognizance relating to the 
administration of estates, the probate 
court has presumably no jurisdiction, 
without enabling acts. Butler v. Law- 
son, 72 Mo. 227. Such a court must 
not entertain proceedings beyond its 
statutory functions. Winton's Appeal, 
111 Penn. St. 387, 5 A. 240. But a 
New York surrogate may construe a 
will far enough to dele; mine to whom 



legacies shall be paid. Verplanck Re, 
91 N. Y. 439. And in Massachusetts 
the probate court, subject to appeal, 
may consider a question of capital 
and income in passing upon a trus- 
tee's account. N. E. Trust Co. v. 
Eaton, 140 Mass. 532, 54 Am. Rep. 
493, 4 N. E. 69. 

But with reference to procuring 
letters testamentary or of adminis- 
tration, the probate of wills, and the 
general supervision of inventories and 
accounts in connection with the set- 
tlement of the estate of a deceased 
person, the local or county probate 
tribunal acts in most States witlx 
plenary powers in the first place; an 
appeal lying to the supreme tribunal 
of the State, at the instance of any 
person aggrieved by the decree. As to 
re\'ising a probate decree which has 
been once affirmed on appeal, see Gale 
V. Nickerson, 144 Mass. 415. 

Rules for the guidance of the county 
probate courts are in various States 
left to the supreme judicial couit 
(which is the supreme court of pro- 
bate) ; and to such rules when made 
and promulgated each probate court 
must conform. Baker v. Blood, 128 
Mass. 543. The jurisdiction of pro- 
bate tribunals over claims against a 
solvent estate is not usually exclu- 
sive, but, at best, only concurrent with 
that of the common-law courts, and 
the creditor may elect to sue in an- 
other tribunal. Griggs' Estate, 11 
Phila. (Penn.) 23. And see Wapple's 
Appeal, 74 Penn. St. 100. 

On the whole, the doctrines which 
relate to probate jurisdiction should 
be studied in connection with the gen- 



56 



881 



1014 



EXECUTOKS AXD ADMIXISTEATOKS. 



[PAET I. 



portant as miist be the functions of tliese probate judges, public 
registry is the prominent feature of our county probate offices, if 
not of probate jurisdiction ; and for system and care in preserving 
the public records, the judge, as well as the register, may be held 
responsible in a certain ministerial capacity.^ 

§ 1014. Modern Probate Jurisdiction in England ; Modern Court 
of Probate Act. 

This x\merican system — so simple, so frugally administered, so 



eral subject of chancory powers The 
English dfcisions afford much light 
on this topic; yet it should he borne 
in mind that probate jurisdiction in 
the United States differs greatly from 
the English ecclesiastical jurisdic- 
tion, as understood prior to the in- 
dependence of the American colonies. 
Our American probate system is more 
comprehensive than that of England, 
and rests more firmly upon separate 
State enactments and the judicial ex- 
position of those State enactments. 
Probate law and practice as con- 
cerning the United States, must, in 
the main, be studied with reference to 
the judicial system and code of each 
particular State. See the authorities 
cited at great length, under such 
an arrangement, in U. S. Dig. 
1st Series, Courts, II., and var- 
ious Annual Digests (1870 et 
seq.) , under the same general head- 
ing. See, also, the more recent vol- 
umes of American Digest; U. S. Cy- 
clopedia of Law ("Executors and 
Administrators"), etc. Some of tlie 
more important points of practice 
will be incidentally noticed under ap- 
propriate heads in the course of the 
present treatise. See also such local 
practical works upon State probate 
law as those of Smith (Mass.), 



Amasa Redfield (Xew York), and 
Gary (Wisconsin, etc.). 

2. See e. g. Thompson v. Holt, 52 
Ala. 491. The register, in some States, 
appears capable of exercising some 
judicial functions of a routine char- 
acter by way of deputy. Wicker- 
sham's Appeal, 75 Penn. St. 334; 
Thornton v. Moore, 61 Ala. 347, 98 
S. W. 1902. But, in general, the 
register's duties are ministerial or 
corresponding to those of a clerk of 
courts and custodian of records. He 
may be elected by the people, not- 
wuthstanding the power to appoint 
judicial officers is vested by the State 
constitution in tlie governor. Opinion 
of Justices, 117 Mass. 603. And it 
is within the constitutional author- 
ity of the legislature by general law, 
to cliange the term of office, or to 
abolish the office itself, and transfer 
the powers and duties to another; as 
has sometimes been done, where, for 
instance, tlie office of register of 
" prol)ate and insolvencj' " was sub- 
stituted for that of " register of 
probate." lb. 

A judge of probate should not 
grant administration in an estate in 
which he is personally interested; and 
local statutes generally provide for 
all contingencies by allowing the 
judges of different counties to hold 



882 



PART I.] INTRODUCTION. § 1014 

well adapted to its ends, and withal so uniform of application in 
settling estates of the dead, and so fully hannonizing with the ar- 
rangement of the temporal courts — appears to have gradually im- 
pressed Britons as superior to their own. In many branches of 
jurisprudence, doubtless, American legislators draw their inspira- 
tion from abroad ; but, for probate as wejl as matrimonial law, 
the breeze blows fresher from their own side of the Atlantic, and 
the United States may be regarded as preceptor to the mother 
country. By the English iStatute of 20 & 21 Vict. c. 77 (a. d. 
1857), that jurisdiction which ecclesiastical courts formerly exer- 
cised in Great Britain has been transferred to a new tribunal 
known as the Court of Probate, and the authority of the ordinary, 
as well as of the old manorial and other peculiar courts, is en- 
tirely superseded. All causes relating to the grant and revocation 
of probate of wills and of administration within English jurisdic- 
tion are, by that enactment, vested in the new tribunal — a tem- 
poral court whose grants and orders have full effect throughout 
all England, and in relation to the personal estate in all parts of 
England of deceased persons ; and this court of probate is declared 
a court of record. All the powers formerly exercised by that su- 
preme ecclesiastical forum, the prerogative court of the archbishop 
of Canterbury, have been thus transferred ; the new probate court 
Las the power of citation, the power to examine witnesses and re- 
quire their attendance as well as the production of deeds and docu- 
ments; the power to enforce its own orders and tO' issue execution 
f cr costs ; the power to order any instrument produced which pur- 
ports to be testamentary ; and the power to make rules and orders 
for regulating procedure. Its general practice is in accordance 
with the former practice of the prerogative court ; the rules of 
evidence in common-law courts being applied in the trial of all 
questions of fact.^ 

court for one another. Sifrournoy v. 3. Act 20 & 21 Vic. c. 77; Wms. 

Sibley, 23 Pick. 507. Or by removal Exrs. 7th Eng. ed. 290, 294, 312, 323, 

from the coimty to another court. 344. 
Burks V. Bennett, 55 Tex. 237. 

883 



§ 1014 EXECUTOES AND ADMINISTEATORS. [pART I. 

Appeal lies from this court of probate to the House of Lords : 
the privy council having formerly exercised the final jurisdiction 
in causes testamentary. Courts of equity are courts, as before, 
for the construction of wills ; and so formerly, in concurrence, were 
the ecclesiastical courts ; but the new court of probate is expressly 
forbidden to exercise such jurisdiction ; and no suits for legacies, 
nor for distribution of a residue, can be brought therein. Bonds, 
inventories, and accounts are rendered to the court of probate ; the 
place for depositing wills is under its control ; and calendars are 
kept in its principal registry, district registries being established 
according to its direction. Application for probate or adminis- 
tration may be made to the court of probate ; but in small estates 
the judge of the county where the deceased had his last " fixed 
place of abode " shall have the contentious jurisdiction and au- 
thority.* 

The main purport of this enactment is to supplant the old 
ecclesiastical tribunals by a temporal court whose law and pro- 
cedure shall be in harmony with the general judicial establishment 
of the realm ; to perfect a uniform system of probate registry ; and 
to encourage the practice of procuring credentials of authority 
wherever the estate of a deceased person has to be settled, at the 
same time increasing the facilities for so doing. The English 
probate practice, though simplified certainly by this later legisla- 
tion, is still, however, more costly and burdensome apparently than 
that of most American States, and is less identified with county 
tribunals and the local neighborhood of the decedent.'^ 

4. Act. 20 & 21 Vict. c. 77, witli of Probate with directions that the 
amendment, 21 & 22 Vict. c. 98; costs of both parties should be paid 
Wms. Exrs. 298, 301, 315, 320, 573. out of the estate, it was found that 

5. In a somewhat recent instance, the personal estate would not suflRce 
appeal was taken from the Court of to pay the costs. A chancery suit was 
Probate to the House of Lords on an then instituted to determine wliether 
issue as to tlie person to wliom costs could be enforced out of the real 
probate should be granted. The estate; but it was lield tliat they could 
House of Lords were evenly divided. not, the Court of Probate havin^j 
so that the order of the Court of jurisdiction only over tlie personalty. 
Probate remained unreversed. Tlie Charter v. Cliarter, Ti. R. 7 H. L. 
case having been remitted to the Court 364; ib. 24 W. 11. 874. 

884 



PAKT I.] INTRODUCTION. § 1015 

§ 1015. Conflict of Laws in Wills and Administration; General 
Rule of Comity; Authority of Representative is Local. 

The conflicting laws of various countries give rise to perplexing 
inquiries incidental to the settlement of an estate, w^hich must be 
solved on the principles of comity. As respects the estate of any 
deceased person, the general iTile is that the law of the place of 
his last domicile, rather than the law of the place of his birth, 
or of the place where he happened to die, or of the place where 
the personal property was situated, shall prevail. And, if all 
circumstances favor, the sole, or at least the principal grant of 
letters ought to be taken out and the will (if any) proved, in the 
country, the State, and indeed the very county, where one was a 
domiciled inhabitant at the time of his death. But local sov- 
ereign law does not always give way to the law of the last domicile, 
where assets belonging to the deceased person's estate lie within 
the local sovereign jurisdiction, and a strict compliance with the 
foreign law would prove detrimental to local interests. As to local 
land especially the rule is rigid. 

(1) It is a principle of English and American law that letters 
testamentary or of administration granted in the place of last 
domicile of the deceased confer no authority as such outside the 
jurisdiction of the State or country in which they were originally 
issued ; and if the representative is permitted to collect effects, or 
to sue for assets, in an external jurisdiction, it is because of a 
favor extended to him, and not his right; the usual requirement 
being rather, as local laws frequently provide, that probate of the 
will (if there be one) shall be made in the jurisdiction thus in- 
vaded ; and often that there shall be a local qualification of some 
sort and local letters taken out, if not by the principal executor 
or administrator, by some local person as his attorney or substi- 
tute. The due probate of a will in the original jurisdiction is, to 
be sure, often respected by the law of other States or countries, as 
in permitting evidence by exemplified copy from the original pro- 
bate record to suffice for proof.^ But as respects mere administra- 

6. Price v. Dewhurst, 4 M. & Cr. 8; Campbell v. Wallace. 10 Gray. 162; 
76, SO; Campbell v. Sheldon, 13 Pick. Seventh Day Adventists v. Sanitar- 

885 



§ 1015 EXECUTOKS AXD ADMIXISTKATOES. [PAET I. 

tion on an assumed intestacy, the fact of local assets, or of some 
local necessity for conferring a local probate appointment, may 
serve for invoking the local jurisdiction. Ancillary probate au- 
thority will be granted in one State or country under such cir- 
cumstances, because principal letters testamentary or of admin- 
istration have been granted elsewhere ; and yet the domestic court 
does not necessarily defer its own appointment until the will of a 
non-resident testator has been proved in the State or country of his 
last domicile, nor, in case of the decedent's supposel intestacy, wait 
until administration has been granted in such State or country; 
but the practical convenience of creditors and citizens in its own 
jurisdiction will be steadily regarded, provided there be assets at 
hand whose owner has deceased.^ 

In short, the title of the executor or administrator, derived from 
the grant of administration in the country of the domicile of the 
deceased, does not extend, as a matter of right, beyond the ter- 
ritory of the governmnt which grants it and the personal or movable 
property therein; as to movables or personal property elsewhere, 
the title, if acknowledged, is acknowledged only from comity ; and 
comity yields to the local obligation of protecting domestic rights 
as against foreign.^ 

ium, 132 N. W. 94, 166 Mich. 504; moved by statute; but whore that is 

Wood V. Matthews, 73 Mo. 477; She- not the case, and the representative 

gogg V. Perkins, 34 Ark. 117. See has not removed the assets or some 

§ 1032 et seq., post. portion of them into the State where 

7. Wms. Exrs. 362, 430; Tyler v. action is brought, the prohibition of 
Bell, 2 M. & Cr. 89; 2 Kent. Com. 434. the common law prevails. See Webb's 
And see Bowdoin v. Holland, 10 Matter, 18 N. Y. Supr. 124. On a 
Cush. 17; Doolittle v. Lewis, 7 Johns. claim assigned to the plaintifT by a 
Ch. 45; Willard v. Hammond, 21 N. foreign executor, an action is allow- 
H. 385; Sanders v. Barrett, 8 Ired. able in a State where there has been 
Eq. 246; Story Confl. Laws, §§ 512, no probate or administration. Camp- 
513, and numerous cases cited. bell v. Brown, 64 Iowa, 425. See 

8. Story Confl. Laws, § 512; Moore further, 85 N. W. 976, 110 Wis. 296; 
V. Fields, 42 Penn. St. 472. Foreign Mansfield v. McFarland, 51 A. 763, 
executors and administrators cannot 202 Penn. 173; Taylor v. McKee, 43 
merely by virtue of their ofTices, S. E. 943, 121 Ga. 223; Brown v. 
either prosecute or defend actions in Smith, 64 A. 915, 101 Me. 545, 115 
the courts of other States. In some Am. St. Rep. 359. 

instances the disability has boon ro- 

886 



PART I.l INTKODUCTION. § 1015a 

§ 1015a, Conflict of Laws; Rule as to Foreign Creditors with 
Local Assets. 
(2) With regard to the administration of foreign assets, tlie 
prevailing American doctrine favors the law of the State or country 
where the assets are situated, over that of the last domicile, or at 
least equally to it, so far as regards creditors of the estate ; it being 
a rule of public convenience, that property of the deceased within 
reach of the domestic process shall be applied to the liquidation 
of debts in consonance with domestic policy.^ For, it should be 
observed, the application of one's property to the payment of debts 
is fairly regulated in every State or country according to a public 
sense of justice, which overrides all external regulations or legal 
preferences; where creditors' rights are to be enforced, there the 
law of the forum may well be invoked. A State or country, more- 
over, inclines to uphold its own priorities as to taxes and other 
public claims ; though, as among general claimants, in case the 
estate, as a whole, proves insufficient to pay them in full, comity 
seeks apparently, in modern times, to so adjust the estate in dif- 
ferent jurisdictions as to make a pro rata settlement of claims as a 
whole, and not expend all in paying claims of domestic citizens to 
the prejudice of foreign creditors.^ The tendency of modern legis- 

9. Harrison v. Sterry, 5 Crancli, preference and hence abide as to local 

299, 3 L. Ed. 104; Smith v. Union assets by their own system, though 

Bank, 5 Pet. 523, 8 L. Ed. 452; Hoi- the deceased were domiciled abroad, 

comb V. Phelps, 16 Conn. 127; Story Under provisions of the statute in 

Confi. Laws, §§ 480, 481, 524. As to some States citizens cannot be put to 

the English doctrine cf. Wilson v. the inconvenience of proving their 

Lady Dunsany, 18 Beav. 293; Carron claims abroad when there are local 

Iron Co. V. Maclaren, 4 H. L. Cas. assets; nor, on the other hand, can 

455; Goodall v. Marshall, 11 N. H. the whole estate found there be ap- 

88, 35 Am. Dec. 472; McClung v. propriated to domestic creditors; but 

Sieg. 46 S. E. 210, 54 W. Va. 467, 6G the estate found there is to be so far 

L. R. A. 884. disposed of, as far as practicable, 

1. Mitchell V. Cox, 22 Ga. 32, 6a that all creditors of the deceased. 

Am. Dec. 481: Normand v. Grognard, there and elsewhere, may receive each 

14 N. J. L. 425. Some countries and an equal share in proportion to their 

States make various classes, prefer- respective debts. Davis v. Estey, 8 

ring debts on judgments to simple Pick. 475; Mass. Gen. Stats, c. 101, 

contract debts; others accord no such §§ 40, 41. 

8S7 



§ 1016 E2ECUTOKS AND ADMINISTRATORS. [pART I. 

lation in this last respect, which we gather from local statutes, is 
bj no means selfish ; for it is yielding much not to appropriate 
local assets to the prior satisfaction of local creditors. 

§ 1016. Conflict of Laws ; Comity Favors as to Payments of Leg- 
acies and Distribution. 
(3) But when it comes to the payment of legacies or the gen- 
eral distribution of the residue of one's personal estate, after debts 
and claims are satisfied, comity highly respects the law of the 
last domicile of the deceased.^ For all such dispositions of the 
surplus being at the sole discretion of a decedent, either as mani- 
fested by his last will and testament, if he has left one, or as de- 
nned under the will drawn up for him by the legislature of his 
own last domicile, so to speak, which every intestate may be pre- 
sumed to have accepted in lieu of other express testamentary pro- 
visions on his own part, it is but just to give that express or im- 
plied will due effect in every country where the estate of the de- 
ceased may happen to be situated. Transmission, therefore, to 
legatees and distributees, of a decedent's personal estate, is gov- 
erned exclusively by the law of the decedent's actual domicile at 
the time of his death, no matter what was the country of his birth 
or his former domicile, or the actual situs of such property at the 
time of his death.^ On the whole, it must be pronounced advan- 
tageous as well as just for each independent sovereignty to re- 
spect a decedent's disposition of his own surplus of personal estate, 
and to permit one rule to regulate its beneficial distribution ; and 
no prejudice to the rights of the sovereignty or its citizens follows 
the pursuance of such a course.* 

2. Bruce v. Bruce, 6 Bro. P. C. 566; 485; Grote v. Pace, 71 Ga. 231; 40 

Crispin v. Doglioni, 3 Sw. & Tr. 98; N. J. p:q. 14; Apple's Estate, 66 Cal. 

s. c. L. Pv. 1 H. L. 301; Holmes v. 432; 6 P. 7; 96 N. C. 139, 2 S. E. 225. 

Piomsen, 4 John. Ch. 460; Ennis v. 3. Mr. Justice Story declares tliat 

Smith, 14 How. (U. S. ) 400, 14 L. this universal doctrine was formerly 

Ed. 472; Wms. Exrs. 1515, and Per- much contested. Story Confl. I^ws, 

kina's Am. note; Jennison v. Hap- § 481. 

good, 10 Pick. 77; Crum v. Bliss, 47 4. Lord Hardwickc observes in 

Conn. 592; Russell v. Madden, 95 111. Thorne v. VVatkius, 2 Ves. Sen. 37, 

888 



PAET I.] INTKODUCTION. § 1017 

It has been observed, however, that the local law docs not, in 
such instances, give way actually to the law of the foreign country ; 
but rather adopts, as part of its own law, the doctrine that dis- 
tribution of the surplus of personal property shall be according 
to the law of the owner's last domicile.^ The law of the last 
domicile, as it stands at the time of an intestate's death, is taken 
by the local courts; with a liberal discretion, however, as to the 
true interpretation of that law, and a disposition to disregard retro- 
spective changes therein tending to thwart an intestate's genuine 
purpose,^ And the special rights of a widow, too, by way of allow- 
ance and the like, should be determined by the law in force at the 
death of her husband in the place of his last domicile.'^ 

§ 1017. Conflict of Laws; Rule as to Execution and Validity of 
Will. 
(4r) Furthermore, and from similar considerations, the law of 
the place of last domicile regiilates as to the execution and validity 
of wills of personal property. Whenever local assets may be found, 
the will of a deceased person, in order to operate thereupon, must 
have conformed to the law in force where he had his last domicile, 
and must be there entitled to probate.* And the law of one's last 

that if the rule of distribution were by tlie government of last domicile 
otherwise, it would destroy the credit after the death of the person cannot 
of the public funds; for no foreigner on any just principle of comity be re- 
would put into them if the property spected in other jurisdictions; the 
was to be distributed differently from law at the time of death furnishing 
the laws of his own country. the true criterion. Lynch v. Para- 

The rule of the text applies as to guay. L. R. 2 P. & D. 268. 

the ascertainment of the person; and 5. Doe v. Vardill, 5 B. & C. 452; 

laws of local situs as to primogeni- Wms. Exrs. 1516; Lynch v. Para- 

ture yield, where personal property is guay, L. R. 2 P. & D. 268; Wright v. 

concerned, to the law of the place of Phillips, 56 Ala. 69; 76 Ala. 441, 53 

last domicile. Story Confl. Laws, § Am. Rep. 344. 

481; Crispin v. Doglioni, 3 Sw. & Tr. 6. lb. 

98; s. c. L. R. 1 H. L. 301. See Good- 7. Leib v. Wilson, 51 Ind. 550; 

man's Trusts, in re, L. R. 17 Ch. D. Mitchell v. Word, 64 Ga. 208; Taylor 

266, reversing L. R. 14 Ch. D. 619. v. Pettus, 52 Ala. 287. 

J3ut confiscation and other laws passed 8. Craige v. Lewin, 3 Curt. 435; 

889 



1017 



EXECUTOES AXD ADMIXISTEATOES. 



[part I. 



domicile not only decides what constitutes one's last will, but 
whether one died testate in point of fact or intestate f so that exe- 
cution, with all the formalities required in the country where the 
personalty is situated, cannot of itself give one's instrument the 
force of a valid testamentary disposition. All questions as to the 
forms and solemnities attending a due execution are therefore to 
he referred to the place of last domicile/ 

As a corollary of our main proposition, it may be stated that, 
if one makes a will, valid by the law of the place where he is 
domiciled, and afterwards changes his domicile to a place by whose 
laws such a will is invalid, and there dies, the will connot operate.^ 
Nevertheless, should he move back from the latter domicile to the 
former before his death, with his resumption of the domicile where 
the will was made, the will itself, as it is considered, revives also.^ 
And it would appear that, apart from statute, the validity and 
effect of a will of personal property must be determined according 
to the law in force at the time the will becomes operative : that is 
to say, when the person dies who made that will.'* 



Hare v. Xasmyth, 2 Add. 25; Crispin 
V. Doglioni, 3 S\v. & Tr. 96; s. c. 
L. R. 1 H. L. 301; Grattan v. Ap- 
pleton, 3 Story, 755; 4 Kent Com. 
513, 514; Harrison v. Nixon, 9 Pet. 
483, 9 L. Ed. 201; Crofton v. Ilsley, 
4 Greenl. 139; Story Confl. Laws, §§ 
465-468; Stanley v. Berncs, 3 Hagg. 
374. 

9. Moultrie v. Hunt, 23 N. Y. 394. 
But as to regarding foreign rules of 
evidence in establishing a will, som:' 
fjualifications of the rule may be need- 
ful. See Story Conn. Laws, §§ 260, 
634, 636, and cases cited. Foreign 
laws are to be proved as facts, and 
the question of their existence and in- 
terpretation devolves in a measure 
upon the local tribunal, according to 
the circiimi'tanfios of the case and the 
proof accessible. lb.; VVms. Exrs. 372, 



and Perkins's note; Story Eq. Jur. § 
1068. 

1. Schultz V. Dambmann, 3 Bradf. 
Sur. (N. Y.) 379; Story Confl. Laws, 
§ 465. The authority of the executor 
named in tlie will must be determined 
according to the law of the testator's 
last domicile. Laneuville v. Ander- 
son, 2 Sw. & Tr. 24; Oliphant Re, 30 
L. J. N. S. Prob. 82. 

2. Dupuy v. Wurtz, 53 N. Y. 556; 
Story Confl. Laws, § 473, citing J. 
Voet and other continental authori- 
ties. 

3. Story Confl. Laws, § 473. 

4. Trotter v. Trotter, 4 Bligh N. S. 
4502; Laneuville v. Anderson, 3 Sw. 
& Tr. 24; Harrison v. Nixon, 9 Pet. 
483, 9 L. Ed. 201; De Pcyster v. Clen- 
dining, 9 Paige, 295; Story Confl. 
Laws, § 479; Lawrence v. Hebbard, 



890 



PART I.] 



INTRODUCTION. 



§ 1019 



§ 1018. Conflict of Laws ; Rule as to Accountability of Executor 
or Administrator. 

(5) In general, the laws of the State or country in which an 
appointment, principal or ancillary, is made, govern as to the ac- 
countability of the executor or administrator for assets therein re- 
ceived, and the faithful or unfaithful discharge of his duties.^ 

§ 1019. Conflict of Laws; Personal and Real Estate contrasted; 
Situs prevails as to Real. 

(6) Administration and wills, however, have reference thus to 
movables or personal property. As concerns the transmission of 
real estate, and rights and formalities of title thereto, the law of 
local situation in general prevails instead. Hence, the rule that 
a will of real estate or of fixed and immovable property must bo 
governed by the law of local situation, and can only operate so far 
as it conforms to that law.^ This local law applies as to formal 



1 Bradf. Sur. 252; Gushing v. Ayl- 
■win, 12 Met. 169. But see Kurtz v. 
Saylor, 20 Penn. St. 205, that capac- 
ity to make a will is determined by 
the law as it existed when the will 
was made. And see post as to statute 
changes, etc., § 20. 

If the provisions of a will of per- 
sonal property as to distribution are 
valid in the State of the testator's 
domicile, wliile contrary to the law 
of the State where the personal prop- 
erty is situated, the rule of the domi- 
cile controls. Higgins v. Eaton, 188 
F. 938. See Bonnefoi Re, P. (1912) 
233; Levy's Estate, (1908) P. 108. 

5. Partington v. Attorney G neral, 
L. R. 8 H. L. 100, 119; Kennedy v. 
Kennedy, 8 Ala. 391; Fay v. Haven, 
3 Met. 109; Lawrence v. Elmendorf, 
5 Barb. 73; Marion v. Titsworth, 18 
B. Mon. 582. As to the effect of a for- 
eign appointment see post, Part II., 
c. 7. 



6. Story Confl. Laws, § 474; Bovey 
V. Smith, 1 Vern. 85; 4 Kent Com. 
513; Kerr v. Moon, 9 Wheat. 565, 6 
L. Ed. 161; Potter v. Titcomb, 22 Me. 
303; Robertson v. Pickrell, 109 U. S. 
608; 38 N. J. Eq. 516; Crolly v. 
Clark, 20 Fla. 849. In the title of a 
mortgage upon land the local admin- 
istrator has been preferred to one ap- 
pointed in the State where the mort- 
gagee died. Reynolds v. M'cMulkn, 
55 Mich. 568, 54 Am. Rep. 386, 22 
X. W. 41. Cf. 36 Kan. 271, 59 Am. 
Rep. 550, 13 P. 337; Clark v. Black- 
ington. 110 Mass. 369. The local court 
claims the right to construe a devise 
of local lands. McCartney v. Osburn, 
118 111. 403, 9 N. E. 210. See Dwyer's 
Estate, 115 P. 242, 159 Cal. 680 (pur- 
chase-price of land as per.sonal prop- 
erty) ; Hines v. Hines, 147 S. W. 774, 
243 Mo. 480 (rule as to local real 
estate under a will ) . As to a for- 
eign will dealing with English real 



891 



§ 1020 EXECUTORS AND ADMINISTEATOES. [PAET I. 

characteristics of a will, mode of execution, capacity or incapacity 
and formal revocation/ And, on the other hand, if there be no 
will thus operative to transmit the title, the descent of such real 
estate or immovable property must be in accordance with the law 
of that local jurisdiction. The court of one State or sovereignty 
has no inherent power to order lands to be sold in another State 
or sovereignty or to control the title thereto.^ 

The law of local situation may determine the characteT of prop- 
erty in this connection, as being real or personal.^ N^evertheless, 
comity respects the law of testamentary domicile so far as to en- 
able property to go in the one character or the other, as the testator 
obviously intended/ Very embarrassing questions may arise 
where real and personal estate are so combined in the same will 
that the laws of diiferent sovereign jurisdictions must be applied/ 

§ 1020. Conflict of Laws; General Rules varied by Treaty, Stat- 
ute, etc. 

(7) The general rules of comity which we have set out may be 
found varied by treaty stipulations or by provisions otherwise so 
incorporated with the law of the place of last domicile as to intro- 
duce a different principle for the case in hand from those above 
announced. The law of last domicile for instance is to be con- 
strued with all its appropriate and just qualifications consistent 
with the equal dignity of nations. Thus, if an English-bora sub- 
ject dies domiciled in Belgium, and the Belgian law has prescribed 
a rule of succession for such persons, differing from that of natural- 
born subjects of Belgium, English courts will give that cxc(>i>tion 
effect if beneficial, even though its consequence be to establish a 

estate and personalty in England and man v. Robertson, 6 Paign, 630. 

elsewhere see Von Brentano's Estate 1. Enohin v. Wylie, 10 H. L. Cas. 

(1911), P. 108. 1; Jerningliain v. Herbert, 4 Russ. 

7. Evansville Ice Co. v. Windsor, 388. 

148 Ind. 682, 48 N. E, 592. 2. Story Confl. Laws, §§ 485 489; 

8. Boycc V. rJrundy, 9 Pet. 275, 9 Brodie v. Barry, 2 Vos. & B. 130, per 
L. Ed. 27. Sir VVm. Grant. 

9. Story Confl. Laws, § 447; Cliap- 3. C'cUicr v. Rivaz, 2 Curt. 855; 

892 



PAKT I.] INTRODUCTION. § 1020 

testamentary disposition, valid in form according to the laws of 
England, but invalid according to the general law of Belgiiun;^ 
and on the other hand a sovereignty may correct, where oppor- 
tunity oifers, the injustice attempted by another sovereignty 
towards its own subjects.* 

While, again, the general rule of comity refers, as we have 
seen, the validity of a last will of personal property and questions 
of due execution, to the place of last domicile, various modern 
statutes show more indulgence to the testator, who otherwise might 
inadvertently by changing his domicile after once making a per- 
fectly valid will render that will inoperative and die literally in- 
testate in consequence.^ Thus, the English statute 24 & 25 Vict. c. 
114, provides that wills made by British subjects out of the king- 
dom shall be admitted to probate, if made according to the law 
of the place where made, or where the testator was domiciled or 
had his domicile of origin.® So in various American States, it is 
now provided that a will made out of the State, which is valid 
according to the laws of the St^te or the country in which it is 
made, may be proved and allowed with tlie same effect as if exe- 
cuted according to the law of the State.'^ 

In further extension of the general right of testamentary dis- 
position, the English statute, 24 & 25 Vict. c. 114, enacts that 

Wms. Exrs. 368. And see Maltass v. wills of British subjects dying after 

Maltass, 3 Curt. 231. The foreign rule August 6, 1861. Wms. Exrs. 374. 
in these instances prescribed in effect 7. Mass. Pub. Stats, c. 127, § 5. A 

for English-born subjects domiciled will thus executed, which revokes a 

there that the succession to personal former will, comes within protection 

estate should be governed by English of this statute. Bayley v. Bailey. H 

law. Cush. 245. And so does a nuncupative 

4. As to treaty rights and foreign will, valid where executed, though in- 
consuls, see Lombardi /ie, 138 N Y. S. valid if executed in Massachusetts. 
1007; Bagliori's Estate, 137 N. Y. S. Slocomb v. Slocomb, 13 Allen, 3S And 
175; 139 N. W. 300. 120 Minn. 122: see in Vermont as to a will of per- 
Scutella's Estate, 129 N. Y. S. 20. sonalty duly probated where one died 

5. See Dupuy v. Wurtz, 53 N. Y. and left assets, though the domicile 
556; Story Confl. Laws, § 473; supra, was Vermont. Ives v. Salisbury, 56. 
§ 1017. Vt. 565. 

6. This statute operates upon the 

«93 



§ 1021 EXECUTOES AND ADMINISTRATORS. [pAKT I. 

wills made by British subjects witliin tiie United Kingdom (.wbat- 
ever the domicile of such person at the time of such execution 
or at the date of decease) shall, as regards personal estate, be con- 
sidered as well executed and admissible to probate, if executed 
according to the forms in force for the time being at the place of 
execution ; and that no will or other testamentary disposition shall 
be held to have become invalidated or its construction altered by 
reason of any subsequent change of the testator's domicile.^ So, in 
some parts of the United States, it is provided by local statute 
that a will made and executed in confomiity with the law existing 
at the time of its execution shall be effectual.^ 

The legislation of certain States, moreover, in derogation of 
general rules, expressly or by apparent intendment, permits a 
will which has been duly executed in another State or country to 
operate, if effectual at all, upon real estate as well as personal, 
v;ithin the jurisdiction of the local situs} 

§ 1021. Last Domicile: what this is; Residence, Inhabitancy. 

Domicile is a word not easily defined with precision. It would 
appear that the Roman and civil jurisprudence laid stress upon 
one's place of business as well as his domestic residence ; but the 
common law has fixed the domicile mainly from regard to one's 
home and the place where he exercises political rights. Domicile 
may be viewed as national or domestic : the one having reference 
to the person's country or sovereignty; the other to a political sub- 
division thereof, such as the county. It is the latter which de- 
termines the taking of jurisdiction as be'tween probate county 
courts; but the former, when international rules are under dis- 
cussion.^ The bias of the courts is found to differ in these two 
classes of cases; for, in the latter class, the domestic forum of last 
resort sits as umpire, while in the other there is no umpire, and 

8. Act 24 & 25 Vict. c. 114, §§ 2, 4-15; Shannon v. Shannon, 111 Mas3. 
3; VVras. Exrs. 374; Rcid, in re, L. 331. 

R. 1 P. & D. 74. 2. 2 Kent Com. 449; Story Lonll. 

9. Mass. Pub. Stats, c. 127, § 4. Laws, §§ 39 et seq., 42. 
1, See Mass. Pub. Statri. c. 'J2, §5? 

891 



PAET I.] INTKODUCTIO]Sr. § 1021 

nothing is yielded except it be in the spirit of comity. Moreover, 
a change of domicile in the one instance involves conformity to a 
new and independent system of laws, while in the former it does 
not. In the United States, the law of domicile develops still 
greater perplexities ; for there is the national domicile, which, how- 
ever, is little concerned with the estates of deceased persons; the 
State domicile, which, for most practical purposes, is sovereigTi in 
this connection ; and the domestic or county domicile. 

Domicile may be regarded, in our common-law sense, as the 
place where one has his true, fixed, and permanent home and 
principal establishment, and to which, whenever he is absent, he 
has the intention of returning.^ And one's last domicile — the 
prime fact upon which turn 'those legal issues involved in the 
administration and settlement of his estate — is taken to be his 
fixed and permanent home at the time of his decease. Every one 
has a domicile ; and the elements which establish that domicile are 
more easily conceived by the common mind than reduced to a close 
legal analysis.* Domicile is impressed upon the new-bom 
child by birth, and upon the wife by her marriage; the domicile 
of the child follows that of its parents, and the domicile of the wife 
follows that of her husband. Any person sui juris, however, may 
make a bona fide change of domicile at any time. Nevertheless, 
cue's original domicile continues until another is acquired with a 
genuine full and free intention of making it one's permanent 
home.^ 

Legal residence or inhabitancy is often used in our local leg- 
islation as though synonymous wdth domicile ; but these terms 
are not, strictly speaking, convertible.'^ One may unquestion- 

3. Bouv. Diet. " Domicile." lar case." Thorndike v. Boston, 1 

4. " No exact definition can be Met. 245. 

given of domicile," observes Shaw, 0. 5. Bouv. Diet. "Domicile;" Oilman 

J.; "it depends upon no one fact or v. Oilman, 52 Me. 165; Story Confl. 
combination of circumstances, but, Laws, § 45; Wms. Exrs. 1517, and 
from the whole taken together, it Perkins's note. 

must be determined in each particu- 6. See Bucholz v. Bucholz, 115 P. 

88, 63 Wash. 213 (statute). 

895 



§ 1021 EXECUTOKS AXD ADMINISTEATOES. [pAET I. 

ablj be absent from his domicile; and be may reside or in- 
habit elsewhere for sundry reasons of health, comfort, business, 
recreation, temporary convenience, and the like, without aban- 
doning his former domicile ; for the law, especially in consider- 
ing the national or sovereign domicile, favors the presump- 
tion of an intended continuance of the same domicile, and, even if 
the domicile has changed, 'treats it as revived on an intention to 
return. But a residence or inhabitancy, originally temporary and 
intended for a limited period, may afterwards become general and 
unlimited in its character. In all such connections the intention 
of the person must be studied throughout in the light of consecu- 
tive events. Such intention is manifested from conduct and cir- 
cumstances, and not from words alone ; intention may change ; and 
when the two things concur, the fact of a changed residence, and 
the intention of remaining there, or at least of never returning to 
the former domicile, the domicile is legally changed. This change 
must, however, have occurred from one's choice and voluntarily.^ 
Domicile of origin is the first and fundamental domicile ; though 
perhaps as against the domicile of choice, more strenuously in- 
sisted upon in English than in American practice, 'and where the 
conflict is int-emational than where it is interstate. One may 
change his domicile of origin by choosing and fixing his domicile 
elsewhere, with the intention of there continuing and never return- 
ing. But while American cases appear to favor a change of domi- 
cile according to one's choice, as long as he lives, if it be merely 
from State to State, or from county to county, the English authori- 
tias appear to keep the domicile of origin strongly in view for 

7. l5ouv. Diet. "Domicilo;" Udny period, as upon its being without an 

V. Udny, L. R. 1 H. L. So. 458; Story intention to return. But Lord Wt^st- 

Confl. Laws, § 45; Wilbraham v. Lud- bury speaks of the inference which 

low, 99 Mass. 587; Krone v. Cooper, the law derives from the fact of a 

43 Ark. 547; ITuldane v. Eckford, L. man fixing voluntarily his solo or 

R. 8 Eq. 640. Sec Colt, J., in Il:iil(t chief residence in a particular place, 

y. Bassett, TOO Mass. 170, that cliangc with an intention of continuing to re- 

of domicile does not depend .so much side there " for an unlimited time." 

upon the intention to remain in the L. R. 1 H. L. So. 458. And see King 

new place for a definite or ind<finit" v. Foxwell, L. R. 3 Ch. D. 518. 

800 



PART I.] INTRODUCTION. § 1022 

doubtful emergencies, and to hold that the abandonment of an ac- 
quired domicile ipso facto restores the domicile of origin. The 
■application of such 'a rule, however, appears chiefly confined to 
cases of natural-bom Englishmen, breaking up establishments in 
a foreign land.^ 



§ 1022. Last Domicile ; applied to the Subject of Administration. 
Were the question of one's domicile raised only while he was 
living, it would be comparatively easy for his intention to be es- 
tablished; and in portions of the United States where a party in 
interest is allowed to give his own testimony, one's simple state- 
ment of his purpose, if not inconsistent with the proven facts, will 
often remove all doubt on such an issue; as where, for instance, 
the case relates to taxation. But death leaves the question of last 
domicile to be chiefly infe^rred from extraneous facts and circum- 
stances; each probate tribunal, moreover, which is asked to take 
jurisdiction upon a dead person's estate, naturally inclines to do 
so, and to construe all legal doubts in its own favor. In such a 
controversy, the presumption that one domicile shall prevail un- 
til another has been bona fide and voluntarily acquired in its stead, 
should be allowed great weight; and, more especially, if to con- 
cede a change thereof is to concede that the person intentionally 
expatriated himself and fixed his residence in another country, 
where opposing systems of law must of necessity define the rights 
of succession. For it is a general maxim that, though one may 
possibly have two domiciles for certain purposes, he can have only 
one for the purpose of succession.^ 

8. See expressions of Lord Chelms- of birth but became non compos, see 

ford, Lord Westbury, and others in Eobitaille Re, 138 N. Y. S. 391. 
Udny V. Udny, L. R. 1 H. L. So. App. 9. Somerville v. Somerville, 5 Ves. 

441; Wms. Exrs. 1521, note; King v. 786; Crookenden v. Fuller, 1 Sw. & 

Foxwell, L. R. 3 Ch. D. 518, per Jes- Tr. 441; Green v. Green. 11 Pick, 

sel, M. R. For a singular instance 410; Wms. Exrs. 1518, and Perkins's 

of a naturalized foreigner who after- note; 2 Kent Com. 431. 
wards intended to return to his place 

57 897 



§ 1023 EXECUTOKS AND ADMIXISTKATORS. [PAKT I. 

§ 1023. Last Domicile; Death while on Transit, etc. 

The rule of last domicile disregards the locus of death, if the 
death occurred on transit, or otherwise at a distance from one's 
home. Thus, in case one die^ while travelling abroad, the foreign 
country should take no jurisdiction, unless it be ancillary' merely 
and founded upon the possession of property which he has there.^ 
In this country it has been held that, where a citizen removed from 
one State, with his family, to settle in another distant one, and 
died on the route, his family continuing the journey afterward, 
with the property belonging to the estate, letters of administration 
might well be granted in the place of destination, or where the 
family located ; ^ yet, according to the more reasonable opinion, 
unless the person removing had reached his intended new domi- 
cile, so that the fact of a changed residence and the intention of 
changing concurred, the status of distribution and of testacy should 
be rather according to the law of the domicile he left, as the true 
locus of a last domicile.^ 

Questions of this character are, however, seldom raised with 
reference to administration; and the courts of a State or coun- 
try appear not unwilling to maintain the domestic sovereign juris- 
diction to grant letters upon the estate of a decedent wherever it 
appears convenient to do so, provided some claim may be set up 
that the last domicile or residence was within such limits; or, if 
a jurisdiction can be founded upon the locality of assets.* Under 
our statutes relating to administration, the word " domicile " is not 
alone employed; but local jurisdiction may be determined, to use 

1. See Aspinwall v. Quoon's Proc- Paton, 25 L. J. Ch. 746; Udnv v. 
tor, 2 Curt. 241. Udny, L. R. 1 H. L. Sc. 458. In 01- 

2. Uurnett v. Meadows, 7 B. Mon. son's Will, 63 Iowa, 145, 18 N. W. 
277. And see CJeorge v. Watson. 19 854, a man, after roaming, was held 
Tex. 354; Briggs v. Rochester, 16 to have settled down where he died. 
Gray, 337, 2 Dov. 73. See Holyoke v. Holyokc. 87 A. 40, 110 

3. State V. Hallett, 8 Ala. 159. per Me. 469 (burden of proving a change 
Ormond, .J. Perhaps, if the domicile of domicile). 

loft were an acquired domicili', the 4. As to jurisdiction founded upon 

domicile of origin would revive. This locality of property, see next section, 
is the English theory. Sec Lyall v. 

898 



PART I.] INTRODUCTION". § 1024 

the express words of various local enactments, by the last ^' resi- 
dence " of the intestat-e, if he have one (or the p-lace where he was 
last an "inhabitant"); or, if he have no such residence, etc., 
then by tihe place of his doath.^ 

§ 1024, Locality of Personalty or Bona Notabilia may confer 
Jurisdiction, aside from Domicile ; Questions of Double 
Jurisdiction. 

Lasit domicile affords the suitable principal forum for procur- 
ing credentials of authority and settling the estate of a deceased 
person. But inasmuch as the collection of credits and effects, the 
payment of debts, the distribution of the residue, and the final 
settlement of the estate, are of universal convenience, the courts 
of one country or State do not feel compelled to w^ait until those 
of another have acted, nor to submit domestic claims to foreign 
jurisdictions; but, aside from the deceased person's last domicile, 
and a principal probate appointment, any competent local and 
ancillary appointment is procurable, on the suggestion that prop- 
erty requiring administration lies within the local jurisdiction. 
In other words, locality of personalty belonging to the estate of a 
deceased person (to say nothing of local real property) may con- 
fer a local probate jurisdiction regardless of the consideration of 
his last domicile. This general doctrine is amply recognized in 
the statutes of England and the several United States which re- 
late to probate jurisdiction.® 

So, too, within the same national or sovereign jurisdiction, the 
locality of personal property may afford in various instances oc- 

5. See Burnett v. Meadows, 7 B. and ancillary appointments. " The 
Mon. 277, 278. Under the Kentucky proposition, that the courts of that 
statute referred to in this case, ad- country only in which a testator dies 
ministration where the intestate had domiciled can administer his personal 
no residence was to be determined by estate, is without support from any 
the place of his death or the county authority," except certain dicta of 
wherein his estate or the greatest part Lord Westbury in H. L. C. 1, which 
thereof might be. are disapproved. Ewing v. Ewing, 9 

6. See post, Part II., as to foreign App. Cas. 34, 39. 

899 



§ 1024 EXECUTOKS A^B ADMINISTRATORS. [pART I. 

casion for probate jurisdiction in two or more local courts; as 
where one dies intestate being domiciled abroad, and leaves effects 
•in the county of A and the county of BJ In England, prior to 
the enactment of statute 20 & 21 Vict. c. 77,^ questions of conflict- 
ing jurisdiction might arise where one died leaving bona notahilia, 
or notable goods, of £5 value or more, in different dioceses.^ But 
a convenient rule, sanctioned by statute in some American States, 
is that when a case lies within the jurisdiction of the probate court 
in two or more counties, the court which first takes cognizance 
thereof by the commencement of proceedings shall retain the same ; 
and administration first granted shall extend to all the estate of 
the deceased in the State, and exclude the jurisdiction of the pro- 
bate court of every other county.^ 

Debts due the deceased may be deemed bona notabilia, i. e., per- 
sonalty suitable for conferring a local probate jurisdiction.^ And 
the rule is that judgments are bona notabilia where the record is, 
specialties where they happen to lie, and simple contract debts 
where the debtor (not the creditor) resides, and where they can 
be sued upon.^ Interest in life insurance money is assets, con- 
ferring a local jurisdiction to appoint.* So is any chose in action 

7. lb. Gray, J. Negotiable notes are hona 

8. i. e., Probate Court act. See notabilia in the jurisdiction of last 
supra, § 1014. domicile when left there at the time 

9. Wms. Exrs. 289, 290. of the decedent holder's death. Gpod- 

1. Mass. Gen. Stats, c. 117, § 3; lett v. Anderson, 7 Lea, 286. As to 
King's Estate, 75 N. W. 187, 105 United States bonds deposited for safa 
Iowa, 321; 87 P. 87, 149 Cal. 485 keeping by a citizen of another State, 
(public administrator). upon a special certificate of deposit 

2. A bona fide claim of the deceased transferable by indorsement, see 
will sustain the jurisdiction, even ShaJ<cspeare v. Fidelity Insurance Co., 
though it should appear after the let- 97 Penn. St. 173. 

ters were issued that the claim was 4. Butson Re, 9 L. R. Ir. 21; Holy- 
invalid. Sullivan v. Fosdick, 17 N. oke v. Mutual Life Ins. Co., 29 N. Y. 
Y. Supr. 123. .Supr. 75; Wyman v. Halstead, 109 

3. Attorney General v. Bouwens, 4 U. S. 654, 27 L. Ed. 1068. Cf. 100 
M. & W. 101; Vaughan v. Barrett, Tenn. 177, 43 S. W. 766. A life In- 
5 Vt. 333, 26 Am. Dec. 306; Pinney surance policy or benefit certificate 
V. McGregory, 102 Mass. 186, per payable to some tliird person, without 

900 



PAKT I.] INTKODUCTION. § 1024: 

or money right, this being personal property and assets.^ Modern 
kinds of incorporeal personal property furnish disputes as to their 
locality for such a purpose, which the courts have not as yet clearly 
settled. But where the personal property consists of a debt owing 
upon some security or document of title, which of itself is com- 
monly transferable as possessing a mercantile value, the local situ- 
ation of such security or document of title would, in various in- 
stances, be well held to confer a probate jurisdiction, as of bona 
notahilid, apart from the obligor's or debtor's place of residence; 
as where, for instance, a savings^-bank book, coupon-bond, certi- 
ficate of stock, or perhaps a promissory note were left lying in an- 
other jurisdiction.® However this may be (and the inclinatoin of 
each State or country is to uphold its own jurisdiction), a juris- 
diction founded upon the place where the obligation is enforceable 
is still sustained, whether as concurrent or exclusive; thus shares 
of stock are held bona notabilia in the county and State where the 
stock books are kept and dividends paid.^ Cash, furniture, and 
corporeal chattels in general are of course bona notabilia where 
they lie.^ 

If an assignment be given as collateral security for a debt of 

need of administration on the de- debtor. Cro. Eliz. 472; Swinb. pt. 6, 

cedent's estate, confers no jurisdic- § 11. 

tion. Young v. Roach, 61 So. 984 7. Arnold v. Arnold, 62 Ga. 627; 

(Miss.). Emery v. Hildreth, 2 Gray, 231; 

5. Murphy v. Creighton, 45 Iowa, Owen v. Miller, 10 Ohio St. 136; of. 
179; Fox V. Carr, 16 Hun (N. Y.) Goodlett v. Anderson, 7 L«a, 286. And 
434, 85 P. 445. see, as to a mortgage note where the 

6. Beers v. Shannon, 73 N. Y 292. note and its security are enforced in 
As to negotiable notes, see, also, a certain jurisdiction, Clark v. Black- 
Goodlett V. Anderson, 7 Lea, 286; but ington, 110 Mass. 369, 373. As to 
cf. Owen V. Miller. 10 Ohio St. 136. stock, see Russell v. Hooker, 67 Conn. 
The rule above cited in the text is a 24, 35 L. R. A. 459, 34 A. 711; Mil- 
very old one that specialty debts are ler v. Miller, 136 P. 255, 90 Kan. 
hona notabilia where the bond or 819 (situs in owner's last domicile 
other specialty is; the distinction preferred). 

made being that debt upon simple 8. A folding-chair is property suffi- 

contract follows the person of the cient to confer a jurisdiction, 3 

Demarest (N. Y.) 265. 

901 



§ 1025 EXECUTOES AND ADMINISTEATOES. [PAET I. 

the assignor, the debt is the asset, and the assignment only inci- 
dent. If an assignment be absolute, it should be i-egarded only 
as a muniment of title which follows the situs of the specialty or 
other thing assigned. And so, as it is said, of a corporeal chattel ; 
a bill of sale transferring that chattel follows the situs of the chat- 
tel as the thing happens to lie.® 

"Wherever the local statute has prescribed a jurisdiction with- 
out limitation of value, articles or money rights of trifling con- 
sequence will uphold the local part of administration.^ But it 
is assumed that the thing was left or found in the local jurisdic- 
tion so as to call bona fide for the grant, and has not been brought 
from elsewheJ'e for the purpose of giving falsely a colorable and 
pretended jurisdiction to the local oourt.^ Where there exists no 
local asset, no local administration should be granted. 

§ 1025. The Subject continued; whether Assets brought in may 
confer Jurisdiction. 

The rule of strict construction would seem to refer the locality 

9. Holyoke v. Mutual Life Ins. Co., v. Hodges, 102 N. E. 432, 215 Mass. 

29 N. Y. Supr. 75, 77, per Gilbert, J. 112. 

See -post, Part II., as to foreign and 2. Wells v. Wells, 35 Miss. 638; 

ancillary appointments. Saurcz v. Mayor, 2 Sandf. Ch. 173. 

1. Emery v. Hildreth, 2 Gray, 231; See, further, 36 S. E. 125, 126 N. E. 

Wilkins v. Ellett, 108 U. S. 250, 27 626; 66 P. 971, 135 Cal. 14, 87 Am. 

L. Ed. 718; 2 Dem. (N. Y.) 265. See St. Rep. 00; 143 S. W. 1138, 125 Tenn. 

Anderson v. Tvouisville R., 159 S. W. 408; Lansing's Estate, 131 N. W. 

1086 (non-exempt personal property 1010, 115 Minn. 73 (bank deposit), 

worth $35, such as a pistol, a gold As to stock see Fitch's Estate, 54 N. 

watch and a badge with gold decora- E. 701, 160 N. Y. 87 (location of com- 

tion). And see § 1093. It seems enough pany's property); Richardson v. 

that the non-resident left sucli prop- Busch, 95 S. W. 894, 198 Mo. 174, 

crty within tlie jurisdiction at liis 115 Am. St. Rep. 472; 66 P. 971, 135 

death, although without autliority Cal. 14, 87 Am. St. Rep. 90. See 

some one sent them afterwards to the Barlass's Estate, 128 N. W. 58, 143 

surviving widow who lived outside. Wis. 497 (abuse of judicial discretion 

lb. For a full discussion of bona in appointing distingui.shed from non- 

notabilia in cases of double jur'sdic- jurisdiction). And see Kennedy v. 

tion (Ix)ndB, stock, etc.) see Kennedy Hodges. 102 N. E. 432, 215 Mass. 112, 

205 F. 682. 

902 



PAET I.] INTEODTJCTION. § 1025 

of personalty in siicli cases to the situs as existing at the time of 
the deiceased owner's or creditor's death. Such an interpretation, 
however, is too narrow to meet the practical needs of a probate 
^appointment for local purposes in modern times ; an appointment 
which perhaps may not be invoked for years after one's death. 
Hence, for the welfare of creditors and other interested parties, 
this right of local appointment is more liberally asserted in many 
of the courts, and local jurisdiction is upheld on the ground that 
bona notahilia exists when letters are applied for, notwithstanding 
the goods were brought into the country, or the debtor removed 
thither subsequently to the death of the owner or creditor ; ^ and 
this seems the better opinion,* unless such bringing in or removal 
was in bad faith, and with the intention of conferring improperly 
a colorable probate jurisdiction. According to the modem cur- 
rent of opinion, moreover, letters of administration issued from a 
court of competent authority upon the estate of a deceased per- 
son non-resident, will be presumed in all collateral proceedings to 
have been properly granted.^ But no ancillary appointment should 
be made on the ground that assets were once within the jurisdic- 
tion which the domiciliary administrator has already taken. ^ 

3. See, in Pinney v. M'cGregory, 102 comes within another jurisdiction, 
Mass. 186, the learned opinion pro- bringing assets with him, may, it 
nounced by Gray, J.; Sir John seems, be held to account in chancery 
Nicholl in Scarth v. Bishop of Lon- as a trustee for those in interest. Dil- 
don, 1 Hagg. Ecc. 636. The debtor liard v Harris, 2 Tenn. Ch. 196. 
having voluntarily come to another 5. Hobson v. Ewan, 62 111. 146; Ap- 
State for a temporary purpose after pointment. Part II., post. 

the decedent's death, the right to ap- As a rule there cannot be two valid 
point an ancillary administrator, and grants of administration on the same 
the right of that administrator to estate within a State or country (or, 
sue upon the debt, has been sustained. in other words, within the same gen- 
Fox V. Carr, 16 Hun (N. Y.) 434. eral jurisdiction) at the same time. 
And see Hoes v. N. Y., etc., R. Co., See § 1024. But see statute provision 
6 N. E. 119, 173 N. Y. 435; 59 S. E. for the instance where the assets are 
913, 129 Ga. 676, 121 Am. St. Rep. removed to another country, etc., after 
237. one's appointment. Watkins v. 

4. But cf. Christy v. Vest, 36 Iowa, Adams, 32 Miss. 333. 

285; Goodlett v. Anderson, 7 Lea, 6. 82 N. Y. S. 180; McCabe Re, 69 

286. A foreign representative who N. E. 1126, 177 N. Y. 584. 

903 



§ 1026 EXECUTORS AND ADMINISTEATOES. [pART I. 

§ 1025a. The Subject continued; Suits for Assets owing by a 
Corporation. 

" In the growth of this country," observes a modern case, " and 
the expansions and ramifications of business, and the free commer- 
cial intercourse between the States of the Union, it has come to 
pass that large numbers of life land fire insurance companies and 
other corporations, established with the accumulated capital and 
wealth of the richer parts of the country, seek business and con- 
tracts in distant States which open a large and profitable field. 
The inconveniences and hardships resulting from the necessity on 
the part of creditors, of going to distant places to bring suits on 
policies and contracts, and from the additional requirement, in 
case of death, of taking out letters testamentary or of administra- 
tion at the original domicile of the corporation debtor, in order 
to sue, has led to the enactment in many States of statutes which 
enable resident creditors to bring suits there against corporations 
created by the law^s of other States." ^ The reason why the State 
which charters a corporation is its domicile of other States in 
reference to debts which it owes, is because there only can it be 
positively sued or found for the service of process ; but this is now 
changed in cases by local statutes; and federal courts hold that a 
corporation of one State doing business in another is suable in 
the federal courts established in the latter State, if the laws of that 
State so provide, and in the manner those laws provide.^ 

§ 1026. The Subject continued ; Right of Action created by Local 
Statute confers no External Jurisdiction, etc. 

A right of action created by statute in one State or country is 
not to be regarded as property or assiets which can confer a local 
probate jurisdiction in another State or country; as, for instance, 
■wliere the representative of a person whose death was caused by 

7. Mr. Justice Blatchford in N. E. ris, 12 Wall. 65; 20 L. Ed. 354; 96 
Mutual Life Ins. Co. v. VVoodvvorth, U. S. 369, 24 L. Ed. 853; 104 U. S. 
Ill U. S. 138, 144, 28 L. Ed. 379. 5, 26 L. Ed. 643. 

8. lb.; Lafayette Ins. Co. v. liar- 

904 



PART I.] 



INTRODUCTION. 



§ 1027 



the wrongful act or negligence of another is permitted contrary to 
tlie common-law rule to sue and recover damages.' If the local 
statute empowers such action to be brought against a railway or 
other corporation, it may be said, moreover, that corporations, be- 
ing local to the State or country which creates them, the right of 
xiction against them must be local to the same State or country.^ 

§ 1027. Whether Locality of a Decedent's Real Estate may con- 
fer Jurisdiction. 

Locality of real estate may often confer a jurisdiction to ap- 
point an administrator in various American States.^ Thus, it is 
held in Massachusetts that administration may, upon the petition 
of a local creditor, be granted on the estate of a person who dies 
a resident of another State, leaving only real estate in Massachu- 
setts ; notwdthstanding his general estate is solvent, and an admin- 
istrator has been appointed in the State where he last resided.'^ 
Administration may, indeed, be granted ujDon the basis of real 



9. Illinois Central R. v. Crazin, 71 
111. 177. 

1. lb. 

As to permitting the court of a 
■county where a non-resident of the 
State is killed to appoint an adminis- 
trator there to prosecute a statutory 
action for the injury causing such 
death, see 50 S. E. 860, 138 N. C. 
460; Missouri Pacific R. v. Bradley, 
51 Neb. 596, 71 N. W. 283, with con- 
flicting authorities cited; 68 Mich. 33, 
35 N. W. 829; 36 Conn. 213; 102 
Mass. 786; 53 111. 224; 29 Kan. 420; 
26 Ind. 477; De Valle v. Southern 
Tac. R., 160 F. 216, S. C. 190 F. 689, 
111 C. C. A. 417 (jurisdiction where 
defendant may be sued) ; 68 A. 481, 
28 R. I. 460, 18 L. R. A. (N. S.) 
1252; 90 Kan. 819, 136 P. 255. 

A claim of damages for death aris- 
ing from another's negligence is a 
local asset sufficient for granting ad- 

90 



ministration. Fann v. North Carolina 
R., 71 S. E. 81, 155 N. C. 136; 40 So. 
280, 144 Ala. 192. Contra Louisville 
R. V. Herb. 143 S. W. 1138, 125 Tenn. 
408. The fact that a cause of action 
did not accrue during decedent's life 
is immaterial here. 190 F. 689, 
supra. 

2. Hart v. Coltrain, 19 Wend. 378; 
Apperson v. Bolton, 29 Ark. 418; 
Prescott V. Durfee, 113 Mass. 477; 
Sheldon v. Rice, 30 Micb.. 296, 18 Am. 
Rep. 136; Rosenthal v. Remick, 44 
111. 202; Beasley v. Howell, 117 Ala. 
499, 22 So. 989. 

3. Prescott v. Durfee, supra. And 
see as to postponing the right of the 
foreign and domiciliary representa- 
tive to sell, Apperson v. Bolton arid 
Sheldon v. Rice, supra. But cf. 
Beach's Appeal, 55 A. 596, 76 Conn. 
118 (land not owned by decedent). 



§ 1029 EXECUTOES AXD ADMINISTEATOKS. [PAKT I. 

property alone, under suitable circumstances, ronsistently with the 
policy of many of our States.* For the local policy is, while grant- 
ing letters, as, of course, with a primary reference to settling a de- 
cedent's personal estate, to further license a sale of real estate in 
case the personalty proves insufficient; and the local appointment 
simply puts local creditors in a position to thus assert their rights 
against the real estate, without deitermining of itself whether the 
land shall actually he sold or not.^ 

§ 1028. Constitutional Points affecting Administration in the 
United States. 
Various constitutional points have been raised in our several 
State courts, most of which are referable to familiar principles. 
Thus it is held that a local act which draws a distinction, in the 
distribution of the assets of persons dying insolvent, between per- 
sons whose deaths occurred before the act went into operation and 
those who should die afterwards, is not unconstitutional in the 
sense of '' impairing the obligation of contracts ; " and that under 
such reservations the old rule, according priority to judgment cred- 
itors, may well be abolished.^ A special act of the legislature, it 
as also held, may change the administration of an estate from one 
county to another.'' 

§ 1029. Probate Jurisdiction exercised by each State separately; 
United States Courts should not interfere. 
In the United States, each State regulates the settlement of es- 

4. Lees v. Wetmore, 58 Iowa, 170. ipso facto revoke the letters, but 

5. Temples v. Cain, 60 Miss. 478; leaves the probate court to act ac- 
Moore v. Moore, 33 Neb. 509, 50 N. cordingly. Hull v. Ncal, 27 Miss. 424. 
W. 443. The law in force when the represonta- 

6. Deichman's Appeal, 2 Whart. tive gave bond is presumed to govern 
395, 30 Am. Dec. 271. And see Place as to its prosecution. McGovney v. 
V. Oldham, 10 B. Mon. 400. State, 20 Ohio, 93. 

7. Wright V. Ware, 50 Ala. 549. A probate court can determine as 
And see Peters v. Public Administra- to its own jurisdiction in a contest. 
tor, 1 Bradf. Sur. (N. Y.) 200. The Carr v. Illinois Central B., GO So. 
rfPfal of a Inw designating a certain 277, 43 L. R. A. (N. S.) 034, 180 Ala. 
ollicial as administrator does not 159. 

OOG 



PAET I.] INTRODUCTION. § 1029a 

tates in its own jurisdiction, and no administration is extra-terri- 
torial. In each State, accordingly, estates may be settled and 
claims proved under the State laws. No foreign proof of claims 
can be enforced if the State chooses to require a re-allowance ; nor 
can a foreign judgment, however respected as evidence, be enforced 
as a judgment in the domestic jurisdiction without being estab- 
lished in new legal proceedings. Whatever may be done with the 
final balance, as between a domiciliary and ancillary jurisdiction, 
a dead person's estate must be administered under the probate laws 
and system of the State granting letters, up to the time of dis- 
tribution, or until adjudication is made as to the final balance. 
And it would appear that a decree by a federal court cannot affect 
strangers to the record or interfere with the regular probate settle- 
ment of an estate in a State court which has probate jurisdiction.* 
In fact, it appears well settled that a circuit court of the United 
States has no jurisdiction to affirm or set aside a will or the pro- 
bate thereof, in the proper State forum; ^ nor can such jurisdiction 
be taken to disturb or interfere with the due administration of an 
estate under State probate direction.^ But to some extent an equity 
jurisdiction, incidental to the enforcement of trusts, is here recog- 
nized,^ and also for construction of a will, locally established.^ 

§ 1029a. Interested Parties only are regarded in Probate Pro- 
cedure. 

It is a fundamental rule, whether in the probate of a will or in 
the appointment or removal of executors or administrators, or in 

8. Dickinson v. Seaver, 44 Mich. 32 L. Ed. 13S; .52 Fed. 417. E. g., 
624, 7 N. W. 182. where the necessary diversity of citi- 

9. Broderick's Will, 21 Wall. 503, zen exists, or other constitutional 
22 L. Ed. 599; Ellis v. Davis, 109 U. ground. And see 61 Fed. 423; 134 U. 
S. 485, 27 L. Ed. 1006. S. 47, 33 L. Ed. 405. Local statute 

1. Byers v. McAuley, 149 U. S. 608, may confer a jurisdiction. Ill U. S. 
27 L. Ed. 867; 21 Wall. 276, 22 L. 138, 144, 28 L. Ed. 379. Federal 
Ed. 536; 112 U. S- 294. 28 L. Ed. 728. courts, moreover, have an original 

2. See 58 Fed. 717; Hayes v. Pratt. local jurisdiction in certain places; 
147 U. S. 557, 37 L. Ed. 279. e. g., District of Columbia, territories, 

3. Colton V. Colton, 127 U. S. 30 L etc. 

907 



§ 1029a 



EXECUTOES AND ADMINISTEATOKS. 



[PAKT I. 



the general supervisian of the administration of estates, that only 
parties in immediate interest^ agreeably to the preferences defined 
or indicated by local statutes, can be regarded as having a standing 
to litigate or appeal/ 



4. See McCutchen v. Loggins, 109 
Ala. 457, 19 So. 810; Jones v. Smith, 
48 S. E. 134, 120 Ga. 462; Bernero 
V. McQuillin, 152 S. W. 347, 246 Mo. 
517. This will appear more fully 
in the course of our investigation. 
Aa to the heirs of a beneficiary under 



a will who dies pending probate, see 
Geiger v. Bardwell, 99 N. E. 582, 255 
111. 320. And cf. Naylor v. McRuer, 
154 S. W. 772, 248 Mo. 423 (heirs of 
a beneficiary who is still alive are 
not parties). And see Schoul. WiUa 
(Vol. I), § 492a. 



908 



PART II. 

APPOINTMENT AND QUALIFICATION OF EXECUTORS AND i^DMIN- 

ISTRATORS. 



CHAPTEK I. 

APPOINTMENT OF EXECUTORS. 

§ 1030, Modern Definition of Executor. 

While in modem times it cannot be strictly said that the designa- 
tion of a particular executor is essential in order to constitute a 
will, every executor doubtless derives his authority from such an 
instrument. An executor should in fact be defined as one to whom 
the deceased has duly committed the execution or putting in force 
of his last will and testament; or, in other words, the settlement 
of his estate.'^ In such a connection liaei^es testamemtarius is the 
usual term of the Roman law as to movables ; and as Lord Hard- 
wicke once observed, " executor " is a barbarous term unknown to 
that law ; ^ the truth being, however, that the testator seldom com- 
mitted execution (or perhaps one should say, administration) to 
any other person than the testamentary heir himself; whereas, by 
the codes of modem Europe, the general employment of executors 
is partly favored, as persons, not necessarily legatees, but rather 
official representatives of the estate, to carry out the provisions of 
the will.^ 

1. 2 Bl. Com. 503; 1 Wms. Exrs. legatees and other persons interested 
7th ed. 226; Bouv. Diet. " Execu- in the estate. lb. 

tors;" supra, § 3. Swinburne and other early writers 

2. 3 Atk. 303. of our law state other acceptations 

3. Domat Civ. Law, §§ 3330-3332. of the word "executor" inclusive of 
What we call " executor and residu- administrator, but the executor a tes- 
ary legatee " corresponds to this tes- tatore constitutus, or executor testa- 
tamentary heir of the Roman law, mentarius is the only one meant in 
against whose knavery it was found modern English speech. 1 Wms. Exrs» 
necessary after long experience to ex- 226. 

tend the safeguards for particular 

909 



§ 1032 EXECUTORS AXD ADMINISTRATOES. [PAKT II. 

§ 1031. Designation of Executor under a Will; the Trust may 
be absolute or qualified. 

Wiienever the testator nominates an exectitor, this is enough to 
make his instrument a will and require its probate as such, even 
though no legacy be given and no special direction of a testamen- 
tary character. ]^or is it uncommon for one to make his last will 
and testament for the sole purpose of selecting or nominating the 
person or persons who shall administer; meaning that his estate 
shall be managed and distributed upon his decease as though he 
had died intestate.^ 

Furthermore, the interest of every executor in his testator's es- 
tate is what the testator may have given him ; and hence a testator 
may make the trust absolute or qualified respecting his property; 
qualifying the trust as to the subject-matter, the place where the 
trust shall be discharged, and the time when the executor shall be- 
gin and continue to act as such.^ 

So favorably are regarded a testator's wishes that wherever one 
commits by will the execution of a trust to the executors named 
therein, no other person can execute the trust while any of the 
executors is living and has not declined the office of executor nor 
been shown to be unsuitable.® 

§ 1032. Who are capable of becoming Executors; Rule as to 
Married Women, Infants, Corporations, Aliens, etc. 

All persons, generally speaking, are capable of becoming exe- 
cutors who are capable of making wills.^ The favor of our law 
extends even further in this respect. For, while a wife, under 
the old rule of coverture, was held incapable of making contracts 
or a valid will,^ the husband might concur in the appointment, or, 

4. Lancaster's Goods, 1 Sw. & Tr. E. 806, 214 111. 533, 105 Am. St. Rep. 
464; Jordan's Goods, L. R. 1 P. & 127; Bergdorf's Will. 206 N. Y. 309, 
D. 555; 1 Wms. Exrs. 227. 99 X. E. 714. 

5. Mr. Justice Wayne in Hill v. 7. 2 Bl. Com. 503. 

Tucker, 13 How. 466, 14 L. Ed. 223. 8. As to her will, see Schoul. Hus. 

And sec § 40, post. and Wife, §§ 457-470; Sclioul. Wills, 

6. Hayes v. Pratt, 147 U. S. 557, 37 Part II., c. 3 (Vol. I). 
L. Ed. 279; Clark v. Patter.Mm. 73 N. 

910 



CHAP. 



I.] 



APPOINTMENT OF EXECUTOKS. 



§ 1032 



SO to speak, pcrfonn the tnist vested in her as executrix or admin- 
isitratrix; and only the wife's temporary legal disability, and the 
hus'band's liability for her acts, obstructed practically her sole per- 
formance of such duties under an appointment which the spiritual 
courts at all events were inclined to recognize.^ If a married 
woman may not become legally bound on her bond as executrix, 
this constitutes a practical objection still to her appointment.^ An 
infant, too, though not of full testamentai-y capacity, may, how- 
ever young, and even while unborn and in ventre sa mere be ap- 
pointed executor;^ our modem statutes, however, disqualifying 
one from performing the functions of sole executor during his 
minority, and granting administration cum testamento annexo 
to another until such infant shall have attained minority.^ 



9. Schoul. Hus. and Wife, §§ 163, 
460, and cases cited; 1 Wms. Exrs. 
232-235. Wife made sole executrix 
with her husband's consent. Stewart 
In re, 56 Me. 300. And see Lindsay 
V. Lindsay, 1 Desau. 150. Statutes 
sometimes require the husband to 
join in the wife's bond as executrix. 
See Airhart v. Murphy, 32 Tex. 131; 
Cassedy v. Jackson, 45 Miss. 397. 
Local statutes greatly enlarge at the 
present day the married woman's 
rights in these as in other respects. 
Schoul. Hus. and Wife, Appendix; 
Curser Re, 25 Hun, 579. As to the 
capacity of a wife for such trusts 
where living separated from her hus- 
band, see Hardinge, Goods of, 2 Curt. 
640. And see as to administration 
by a wife, § 1106. 

The English canon law, like the 
civil, made no distinction between 
women married and unmarried, and 
hence permitted a wife to take upon 
her the probate without the consent 
of her husband. Godolph, Pt. 2, c. 10, 
§ 3; Dye, Goods of, 2 Robert. 342. 



But such were the practical disabili- 
ties of coverture, and the necessity of 
joining husband and wife in suits, 
that chancery sometimes enjoined the 
wife from performing the duties of 
executrix. Taylor v. Allen, 2 Atk. 
212. And see 2 Wms. Exrs. 233-235; 
English V. McXair, 34 Ala. 40. Tlie 
husband cannot compel his wife to 
accept an executorship. 1 Wms. Exrs. 
235. He may object, however, to her 
doing so; though it is held under Eng- 
lish statutes that having so objected, 
where she was named sole executrix, 
the grant may be made to her attor- 
ney. Clarke v. Clarke, L. R. 6 P. D. 
103. A man marrying a woman who 
is an executrix becomes executor in 
her right and as such accountable. 
Wood V. Chetwood, 27 N. J. Eq. 311; 
Schoul. Hus. and Wife, § 163. 

1. Hammond v. Wood, 15 R. I. 566, 
10 A. 623. 

2. Wms. Exrs. 232; Piggot's Case, 
5 Co. 29 a; 2 Bl. Com. 503. 

3. 38 Geo. III. c. 88, § 6. Previous 
to this statute an infant seventeen 



911 



§ 1032 EXECUTORS AND ADMINISTEATOKS. [PAKT II. 

Whetlier a corporation aggregate can be executor ha^ long been 
doubted.* In some parts of the United States this point is de- 
cided adversely as to aggregate corporations in general ; ^ though, 
companies may now be found whose charters expressly permit the 
exercise of such functions in connection with the care and invest- 
ment of trust funds/ Modem English practice recognizes the 
right of a corporation unsuitable for the trust, which is named 
executor, to nominate persons who may execute the trust in its 
stead.^ A corporation sole or official, such as the mayor of Lon- 
don or the bishop of Exeter, may be and act as executor. And 
6o may a copartnership, in the sense that the individual members 
composing it, and not the firm collectively, shall be entitled to 
the trust.* 

]^on-residence does not necessarily disqualify an executor at 
common law. Thus an alien friend is not, by the English law, 
disqualified from becoming an executor; and even as to alien ene- 
mies, the rules of modern warfare regard the private interests of 
foreigners more generously than formerly.^ In the United States 

years old might in England act as 6. Statute authorizing trust com- 

executor. See post as to administra- pany, etc., to be executor, is valid, but 

tion. As to American statutes, see only confers a domestic jurisdiction. 

Christopher v. Cox, 25 Miss. 162; 92 N. Y. S. 974. See Farmers' Loan 

Schoul. Dom. Rel. § 416. The request Co. v. Smith, 51 A. 609, 74 Conn. 625; 

in a will that certain executors shall Old Colony Trust Co. v. Wallace, 98 

serve until the testator's son becomes K. E. 1035 ; Bergdoff's Will, 133 N. 

twenty-one, is not an appointment of Y. S. 1012; 99 N. E. 714, 206 N. Y. 

the son at twenty-one. Frisby v. 309 (merger of trust companies). 

Withers, 61 Tex. 134. The " benefici- 7. Darke, In re, 1 Sw. & Tr. 516. 

ary heir " is favored under La. Rev. 8. Fernie, In re, 6 Notes of Cas. 

Code. And if he be a minor with 657; 1 Wms. Exrs. 229. Of course 

parents living, they are entitled to one's surviving partner may be made 

the executorship as representing him. executor. 147 S. W. 739. 148 Ky. 789. 

Gusman's Succession, 36 La. An. 299. See 135 N. Y. S- 949. As to making 

4. 1 Wms. Exrs. 7th od. 228, 229. one's probate judge his executor, see 

5. Ccorgetown College v. Browne, Gregory v. Ellis, 82 N. C. 225; Ayres 
34 Md. 450; Thompson's Estate, 33 v. Weed, 16 Conn. 291. 

Barb. 334. Qu. as to the New Jersey 9. See 2 Wms. Exrs. 229-231, and 

rulf. Porter v. Trail, 30 N. J. E<]. n. by Perkins; Co. Lit. 129 b. The 
106. rule dilVers in various States. Most 

912 



CHAP. I.] APPOINTMENT OF EXECUTORS. § 1033 

the right of non-residents to become executors or administrators is 
regulated by local legislation not by any means uniform ; but the 
better policy favors such rights, provided that adequate security 
be furnished for protecting the interests of parties dwelling within, 
the State, so that, at all events, the non-resident may designate the 
party resident who should represent him; while, as between citi- 
zens merely of different States, any rigid rule of exclusion seems 
especially harsh.^ 

§ 1033. Who are Capable of becoming Executors; Rule as to 
Criminals, Dissolute Persons, Insolvents, etc. 

The principle thus indicated is that, one's choice of an executor 
by his last will being so solemn an act, and by a person legally capa- 
ble of making a choice among friends and kindred, his last wishes 
should be heeded. And so far has our law carried this principle 
as to permit persons obviously unsuitable for the trust to exercise 
it to the detriment of creditors and legatees, on the suggestion 
that the testator, at all events, must have confided in such a per- 
son. Moreover, as courts have observed with a touch of false 
logic, the offiice of executor being held in another's right, is not 
tainted by his personal giiilt.^ Hence, not only might persons 
iattainted or outlawed for political offences become executors, but 
even those convicted of felony ; crime seldom if ever operating to 
disqualify one for the trust ; ^ and persons immoral or habitual 
drunkards were permitted to serve.* But the tendency of our 
modern legislation is to correct this evil, not by permitting a quali- 
fied executor's authority to be collaterally impeached, but by en- 
larging the discretionary power of courts having probate jurisdic- 
tion, so that persons dissolute or otherwise evidently unsuitable, 

of the decisions relate, however, 'o Howard, 9 Wis. 309; Sarkie's Appeal, 

administrators, and perhaps an ex- 2 Penn. St. 157. 

ecutor deserves greater consideration. 1. As to refusing to take the oath 

See McGregor v. McGregor, 1 Keyes of allegiance, see Vogel v. Vogel, 20 

(N. Y.) 133; Hammond v. Wood, 15 La. Ann. 181. 

E. I. 566, 10 A. 023; § 1109; Cutler v. 2. Smethurst v. Tomlin, 2 Sw. & T. 

143. 

58 913 



1033 



EXECUTORS AND ADMINISTEATOES. 



[PAET II. 



shall not be qiTalified, or, if qualified, may be afterwards removed 
for cause duly sho-^m.^ For the interests of creditors and legatees 
should be respected more than any gratification of the testator's 
caprice in selecting the trustee of those interests ; and the proper 
execution of his will is paramount to execution by any particular 
agency, such as the testator may have selected without cognizance 
of the objections which others have disclosed since his death. 

Hence, too, poverty, or even insolvency, constitutes no legal 
cause at common law for disqualifying one from the ofiice of exe- 
cutor ; and thus have English cases insisted to the extent of com- 
pelling spiritual courts to respect the testator's choice, where the 
executor named had absconded, or after the probate had become 
bankrupt, and where legatees were left without adequate security.® 
In consequence, however, of such hardships, the court of chancery 
assumed jurisdiction, and receivers may now be appointed under 
its direction, and the bankrupt or insolvent restrained from com- 
mitting acts injurious to the estate."^ This jurisdiction in the 



3. 1 Wms. Exrs. 7th ed. 235, 236; 
Co. Lit. 128 a; 3 Bulst. 210; Killi- 
grew V, Killigrew, 1 Vern. 184; 
Smethurst v. Tomlin, 2 Sw. & T. 143. 

4. Sill V. McKnight, 7 W. & S. 
244; Berry v. Hamilton, 2 B. Mon. 
191, 

5. See post, c. 3, as to appointing 
administrators. These statutes have 
reference to both executors and ad- 
ministrators. And for habitual drunk- 
enness, as well as lunacy, duly shown, 
the letters testamentary may be re- 
voked. Sill V. McKnight, 7 W. & S. 
244; Webb v. Dietrich, 7 W. & S. 
402. And see McGregor v. McGregor, 
33 How. (N. Y.) Pr. 45r>, 36 Hun, 
122. Letters refused to the paramour 
of a dissolute testatrix. Plaisance's 
Estate, Myrick (Cal.) 117. But, aside 
from statute, the court cannot refuse 
to qualify an executor on account of 



his immoral character. Berry v. Ham- 
ilton, 12 B. Mon. 191. Nor for want 
of integrity or of business experience. 
Smith's Appeal, 61 Conn. 420, 16 L. 
R. A. 538, 24 A. 273, construing " in- 
capable " accordingly. Even " want 
of integrity," ia a disqualification to 
be strictly construed against one 
named as executor. 88 Cal. 303, 26 
P. 178, 532. See, also, Saxe v. Sax^, 
97 N. W. 187, 119 Wis. 557; Pruett 
V. Pruett, 32 So. 638, 137 Ala. 578; 
Shook v. Journeay, 152 S. W. 809; 
105 Tex. 551 (co-embezzler with tes- 
tator) . 

6. 1 Salk. 30, 299; 
Swinb. pt. 5, §§ 2-10; 
230; Hathornthwaite 
Atk. 127. 

7. Rex v. Simpson, 
Utterson v. Mair, 2 
Scott V. Becher, 4 Price, 346; Ellis, 



3 Salk. 


162; 


1 Wms. 


Exrs. 


V. Russell, 2 


L W. Bl. 


458; 


Ves. Jr. 


, 95; 



914 



CHAP. 



I.] 



APPOINTMENT OF EXECUTORS. 



1033 



United States is aided further by local statutes which require an 
executor to give bonds to the probate court for the faithful dis- 
charge of his trust, either with or without sureties, as may be ad- 
judged prudent in the interests of the estate.^ Chancery, aside 
from such legislation, may oblige an insolvent executor, like any 
other trustee, to furnish security ; ^ though not because of his 
poverty or insufficient estate alone; ^ and where it is shown that the 
testator made his choice knowing that the person in question was 
bankrupt or insolvent, the court hesitates to control the latter, out 
of mere regard to those adversely interested, unless invested with 
a statute discretion.^ 

By both the common and civil law, idiots and lunatics have 
been deemed incapable of becoming executors; a good reason, at 
the outset, being that such a person cannot determine whether to 
accept the trust or not; and since, furthei-more, an insane person 



Ex parte, 1 Atk. 101; Elmcndorf v. 
Lansing, 4 John. Ch. 562. So, too, 
where an executrix marries a man 
bankrupt or insolvent, who would 
otherwise have mismanaged the trust 
in her right. Stairley v. Babe, 1 Mc- 
Mull. Gh. 22. Authority under bank- 
rupt acts appears to be an element 
in such jurisdiction. Pecuniary cir- 
cumstances of a widow or near rela- 
tive named as executrix should not be 
taken to defeat the selection unless 
the reasons are strong. 1 Dem. 396, 
501. 

8. See post, c. V., as to bonds of 
executors and administrators. An ex- 
ecutor who offers solvent sureties has 
a good right to qualify, if legally and 
mentally capable. Holbrook v. Head, 
6 S. W. 592, 9 Ky. Law R. 755. 

9. 1 Eq. Cas. Abr. 238, pi. 22; 
Bac. Abr. Executors, A, 6; Slanning 
V. Style, 3 P. Wms. 336; 1 Wms. 
Exrs. 237; Mandeville v. Mandeville, 
8 Paige, 475. 



1. Hathornthwaite v. Russell, 2 
Atk. 126; Mandeville v. Mandeville, 
8 Paige, 475; Wilkins v. Harris, 1 
Wins. (N. C. Eq.) 41; Bowman v. 
Wootton, 8 Mon. 67. Mere poverty 
existing at the testator's death, 
without maladministration, loss, or 
danger of loss, from misconduct or 
negligence, will not authorize a court 
of equity to put the executor under a 
bond, or, as an alternative, require 
him to give up the office. Fairbairn 
V. Fisher, 4 Jones Eq. 390. And see 
Donnelly Re, 95 N. E. 1127, 201 N. 
Y. 596. 

2. 1 Wms. Exrs. 237; Langley v. 
Hawke, 5 Madd. 46. It should not, 
however, be readily inferred from the 
mere circumstances of execution that 
the testator expected that the person 
would be a bankrupt or insolvent when 
the time came to assume the func- 
tions of executor. lb. 



915 



§ 1033 EXECUTOKS AXD ADMINISTEATOES. [PAET II. 

is in no condition to perform the functions of the office at all, 
the court may commit administration to another where the exe- 
cutor becomes afterwards insane.^ In some of our States legisla- 
tion provides fully for the emergency by facilitating the power of 
making removals in such cases.* 

Modem legislation, however, enlarges the control of probate 
courts over improper testamentary appointees. Thus, in Mass- 
iachusetts, the probate court has a discretionary power to remove 
or refuse to appoint executors when insane or otherwise incapa- 
ble of discharging the trust, or evidently unsuitable therefor.* 
In the Xew York code, the necessaiy qualijS.cation3 of an executor 
are prescribed with minuteness; and drunkenness, dishonesty, im- 
providence, want of understanding, conviction of an infamous 
crime, may render one incapable of exercising the trust, as well 
as other causes, to be referred to the principle of unsuitableness.* 
While, therefore, on the whole, the old law dealt indulgently with 
the choice of the deceased, modern statutes, and more perhaps 
those of the United States than of England, regard with much con- 

3. Bac. Abr. Executors, A, 5; 1 unsuitable for the discharge of his 
Salk. 36; 1 Wms. Exrs. 238; Evan3 trust, simply on proof that he was 
V. Tyler, 2 Robert. 128, 134. unsuitable at the time of his appoint- 

4. McGregor v. McGregor, 1 Keyes, ment and without proof that he con- 
133; 33 How. (N. Y.) Pr. 456. tinues to be so. Drake v. Green, 10 

5. Mass. Pub. Stats, c. 131, § 14. Allen, 124. And see Hursey v. Coffin, 
As a person " evidently unsuitable,'' 1 Allen, 354. An interest conflicting 
one may be removed or refused the with legatees does not make one in- 
executorship, on the ground that his competent at common law as execu- 
individual claims on the estate would tor. Bauquier Re, 88 Cal. 303. 
conflict with his duties as executor. 6. See McGregor v. McGregor, 33 
Thayer v. Homer, 11 Met. 104, 110. How. (N. Y.) Pr. 456; 1 Keyes, 133; 
See Hubbard, J., ib. So, too, under Freeman v. Kellogg, 4 Redf. (N. Y.) 
a similar Wisconsin statute, a hostile 218. And see Webb v. Dietrich, 7 W. 
feeling between the executors and par- &, S. 402; Plaisance's Estate, Myrick 
tics interested plainly detrimental to Prob. 117; Clark v. Patterson, 73 N. 
the management of tlio estate may E. 806, 214 111. 533, 105 Am. St. Rep. 
justify removal. Pike's E.state, 45 527 ("legally competent"); 62 A. 
Wi.-j. 391. An executor ought not to G31. 102 M.d. 379; 96 N. Y. S. 895 
be removed, after having been once (pardoned for a crime) ; Munroe'a 
ajipoiiitcd and qualified, as evidently Estate, 118 P. 242, 161 Cal. 10. 

91G 



CHAP. I.] APPOINTMENT OF EXECUTORS. § 1085 

cern the interests of those taking rights under the will; and, in- 
stead of sanctioning temporary grants or receiverships by way of 
supersednre for an emergency, permit rather that letters testa- 
mentary be refused or tho unsuitable incumbent summarily re- 
moved from oflBce/ 

§ 1034. Miscellaneous Disabilities for the Office. 

It should be added that, so long as probate law was shaped by 
canonists and ecclesiastics, and persecutions were made for con- 
6cien.oe' sake, numerous religious disabilities existed in English 
law, which have since been taken off by Parliament, and at the 
present day find recognition neither in England nor the United 
States.^ 

§ 1035. Express Appointment of Executor by Testament. 

An executor must necessarily derive his appointment from a 
testament ; for if the will designates no one for that office, the court 
commits the trust to an administrator with the will annexed.* 
ISTor, as the old books have said, can an executor be instituted by a 
mere codicil; though executors doubtless may be substituted or 
added by a codicil, where the original will made the primary ap- 
pointment.^ 

7. See Latham's Will, 130 N. Y. S. struggles of the 17th and 18th centu- 
535 (statute). Apprehension that the ries, by legislation; relating, for in- 
funds of the estate will not be safe stance, to Popish recusants on the one 
in the incumbent's hands is a ruling hand, and th6se denying the Trinity 
consideration in all such cases. lb. or the Christian religion on the other. 

8. Not only were traitors and felons See Wms. Exrs. 7th ed. 237, 238. 
considered incapable of becoming ex- 9. 1 Wms. Exrs. 239; 3 Redf. Wills, 
ecutors by the civil and canon law, 2d ed. 62. 

but heretics, apostates, manifest usur- 1. Swinb. pt. 1, § 5, pi. 5; I Wms. 

ers, infamous libellers, incestuous Exrs. 8. As for naming A. sole ex- 

ibastards, and persons standing under ecutor in a will, and B. sole executor 

sentence of excommunication. Swinb. in the codicil see Wetmore v. Parker, 

pt. 5, §§ 2-6. Other disqualifications 7 Lans. (N. Y.) 121. And see Wood's 

were created during the religious Goods, L. R. 1 P, & D. 556. 

917 



§ 1036 ESECUTOKS AND ADMINISTRATORS. [pAET II. 

§ 1036. Constructive Appointment by designating Functions, 
etc. ; Executor according to the Tenor. 

But no particular form of appointing an executor is prescribed, 
nor is it necessary that one be designated by that particular name. 
A constructive appointment suffices : as where the testator indicates 
his desire that the essential functions of that office shall be dis- 
charged by a certain person; in which case one is said to become 
executor under the will according to the tenor.^ Thus the testa- 
tor's declaration that A. B. shall hav? his goods to pay his debts 
and otherwise to dispose at his pleasure, and such like expres- 
sions,^ may suffice for this purpose. So, too, the commitment of 
one's property to the " administration " or to " the disposition " 
of A. B. ; ^ or the direction that A. B. shall pay debts and funeral 
and probate charges; or shall receive the property and pay the 
legacies ; ^ or the gift to A. B. of all one's property, to apply the 
same, " after payment of debts," to the payment of legacies ; ^ or 
the naming of trustees " to carry out this will," for the due execu- 
tion of this will " and to pay the debts " and the like.^ For all 
such expressions point at the essential functions of an executor; 
functions which exist in consistent combination. Any words which | 
substantially confer upon a person, either expressly or by implica- \ 
tion, the rights, powers, and duties of an executor, amount to such | 
appointment under the will.^ 

2. Fraser's Goods, L. K. 2 P. & D. Lee, 401; 2 Redf. Wills, 2d. cd. 62; 
183; 1 Wms. Exrs. 239, and Perkins's Fry's Goods, 1 Hagg. 80. 

note; Hartnett v. Wandell, 60 N. Y. 6. Bell's Goods, L. R. 4 P. D. 85. 

350, 19 Am. Rep. 194 ; State v. Rog- And see Manly, In re, L. R. 1 P. & D. 

era, 1 Houst. 569; Carpenter v. Cam- 556; Bradley's Goods, 8 P. D. 215. 
eron, 7 Watts, 51; Grant v. Spann, 7. Russell's Goods. (1892) P. 380; 

34 Miss. 294; Myer v. Daviess, 10 B. lb. 227. 
Mon. 394. 8. Carpenter v. Cameron, 7 Watts, 

3. Henfrey v. Henfrey, 4 ]\Ioo. P. C. 51; Grant v. Spann, 34 Miss. 294; 
33 ; Cro. Eliz. 43. Nimn v. Owens, 2 Strobh. 101. Equit- 

4. Cro. Eliz. 164 ; 1 Wms. Exrs. 239. able Trust Co. v. Coughlin, 147 S. 

5. Pickering v. Towers, 2 Cas. temp. W. 739, 148 Ky. 789; Walsh's Estate, 

144 N. Y. S. 442. 

918 



CHAP. I.] APPOINTMENT OF EXECUTOES. § 1037 

§ 1037. The same Subject ; Mere Designation of Trustees, Lega- 
tees, etc.. Insufficient for Executorship. 

Where, however, the court cannot gather a testamentary intent 
that the person in question should collect dues, pay debts, and settle 
the estate like an executor, executorship according to the tenor 
will not be granted. For instance, it will not if A. B. is designated 
simply to perform some trust under the will ; ^ since trustees un- 
der a will are not necessarily executors, but are postponed in oSice 
to the latter and to a due administration of the estate, taking out 
separate letters; otherwise, however, when the execution of the 
will was evidently conferred likewise upon the trastees, the style 
of the parties as such concluding by no means their right to be 
considered executors also, and to receive letters in such capacity.-' 

A testamentary direction that one's property shall, upon his 
decease, go at once to the legatees or to trustees, as if to dispense 
with administration and the payment of debts altogether, or to 
confer the authority out of course, would be nugatory ; ^ and, in 
such case, the will having provided neither expressly nor by im- 
plication for a lawful executor, the case becomes one for granting 
administration with will annexed ; the usual procedure, as we shall 
see hereafter, wherever there is a will but no executor.^ As for 
language in a will referring to one as " executor and truste®," it 
should be observed that the offices of executor and trustee are dis- 
tinct, and that duties of the trust are properly to be performed in a 
separate capacity from those of executor.* 

9. Jones's Goods, 2 Sw. & T. 155; pointed to execute the will. See also 

1 Wms. Exrs. 242 ; Punchard's Goods, West v. Bailey, 94 S. W. 273, 196 

L. R. 2 P. & D. 369; Wheatley v. Mo. 517; Kibbler's Estate, 81 A. 1133, 

Badger, 7 Penn. St. 459. 79 N. J. 230 ("executor" and " trus- 

1. Myers v. Daviess, 10 B. Mon. 394; tee" distinguished). 
McDonnell, Ex parte, 2 Bradf. Surr. 2. Toomy's Goods, 3 Sw. & Tr. 562; 
(N. Y.) 32; State v. Watson, 2 Drury v. Natick, 10 Allen, 174; New- 
Spears (S. C.) 97. And see Knight comb v. Williams, 9 Met. 533, per 
V. Loomis, 30 Me. 204; Simpson v. Shaw, C. J.; Hunter v. Bryson, 5 
Cook, 24 Minn. 180, that naming the Gill & J. 483, 24 Am. Dec. 313. 
same person as executor and trustee 3. See post, §§ 1122-1127. 
does not necessarily extend the trus- 4. Wheatley v. Badger, 7 Penn. St. 
teeship to others who may be ap- 459. 

919 



§ 1039 EXECUTOES AXD ADMIXISTKATOES. [PAKT II. 

Earlier authorities favor the position that one who is named 
universal heir or legatee under a will may take probate as execu- 
tor ; ° but unless language importing the right to settle the estate is 
superadded,^ the better and the present practice is to grant him 
administration with the will annexed, instead of letters testamen- 
tary according to the tenor.^ 

§ 1038. The same Subject; Identifying the Executor. 

There should be some means of identifying the person desig- 
nated by the will to serve as executor, else the designation cannot 
operate. But an executor who is imperfectly described or desig- 
nated in the will may, by extrinsic evidence, be identified as the 
person actually intended by the testator.^ So an erroneous and 
ambiguous description in the will may sometimes be corrected by 
extrinsic evidence showing which of two persons was really meant.' 

§ 1039. The same Subject; Suggested Executor; Adviser, etc. 

The appointment of a sole or joint executor may bo by way of re- 
quest or suggestion rather than mandate on the testator's part,^ and 
a probate court may consider its force accordingly. 

One who is named in the will as though an assistant in the trust, 
is, by American practice, usually qualified like any co-executor; 
English cases follow often the same rule. But a testator will some- 

5. Godolph. pt. 2. c. 5, § 3; Swinb. 8. In De Rosaz. Goods of, 25 W. R. 

pt. 4, § 4, pi. 3; Androvin v. Foil- 352, "Perceval of B., Esquire," 

l)lanc, 3 Atk. 301, per Lord Hard- was shown to be a friend of the tes- 

wicke. tator, a person whose middle name 

6. Grant v. Leslie, 3 Phillim. 116. was " Perceval." And see Wigram, 

7. 1 Wms. Exrs. 240; Oliphant's Evid. 4th ed. 98; Clayton v. Lord 
Goods, 1 Sw. & Tr. 525. And see Nugent, 13 M. & W. 207; Baylis v. 
Adanison's Goods, L. R. 3 P. & D. Attorney General, 2 Atk. 239 ; Schotil. 
253. Where the testator bequeathed Wills, §§ 567-590 (Vol. I.); Equit- 
all his property to his three sisters, able Trust Co. v. Coughlin, 147 S. W. 
or to such of them as survived him, 739, 148 Ky. 789. 

and appointed cither one " his sole 9. r>rakc's Goods, 29 W. R. 744. 

j-xeciitrix," and only one survived 1. Brown's Goods, 25 W. R. 431. 

him, held that this was insulTicifnt Wlioro tiustocs of a certain lodge are 

designation of her. as executrix. designated, the appointees may be 

Bhukwcll's Goods, 25 W. R. 305. ascertained. 2 Dem. (N. Y.) 91. 

920 



CHAP. I.] APPOINTMENT OF EXECUTORS. § 1040 

times name another person besides his actual executor to advise, 
oversee, or assist the latter in the performance of his duties ; and 
such a person, not unfrequently encountexed in English practice, 
has, if so the testator obviously intended, none of the rights or 
responsibilities of executor, nor any right to intermeddle, but may 
advise, complaining to the court if his advice is injuriously neg- 
lected.^ A will is not readily construed in intent to require per- 
emptorily the employment of any particular person as legal ad- 



§ 1040. The same Subject; Conditional Appointment; Substitu- 
tion; Co-executors, etc. 

From a will, or the will and codicils taken together, may be 
deduced various provisional appointments of executor. These 
should be respected according to the testator's manifest intent. 
Thus, if one be made executor upon condition that another will 
not accept or is dead, the latter, if he prove alive and willing at 
the time of probate to accept, must be accorded the preference, 
as the language of the will implies.* 

Where several executors are named or designated, all may be 
qualified as co-executors, though all are thus legally regarded as 
an individual, in place of a sole executor.^ A testator may, how- 
ever, appoint several executors under his will, substituting one 
after another in order, so that, if the first cannot act, the next 
may, and so on ; in which case the question may arise, whether the 
substitution relates merely to a precedence once and for all at the 
time the will takes effect, or so as to provide for a successor when- 
ever, prior to a final settlement of the estate, a vacancy may pos- 
sibly occur in the office.^ The appointment of executors under a 

2. 1 Wms. Exrs. 7th ed. 244; Powell 4. 1 Wms. Exrs. 243; 2 Cas. temp. 

V. Stratford, cited 3 Phillim. 118; 3 Lee, 54; Swinb. pt. 4, § 4, pi. 6. 

Kedf. Wills, 2d ed. 63. 5. 1 Wms. PJxrs. 246. 

3. Foster v. Elsley, L. R. 19 Ch. 6. Langford's Goods, L. R. 1 P. & 

Div. 518: Ogier Re, 101 Gal. 381, 35 D. 458; Wilmot's Goods, 2 Robert. 

P. 900, 40 Am. St. Rep. 61. 579; Lighton's Goods, 1 Hagg. 235. 

921 



§ 1041 EXECUTORS AND ADMIXISTRATOES. [PAET II. 

will may be revoked by the substitution of others under a codicil/ 
or a re-appointment with others may be made instead ; ^ and of 
various persons named as co-executors, be or they who may be 
alive, competent and willing to accept the tnist on the testator's 
decease can alone be deemed qualified for the office. 

An executor by the tenor may, if the will so intended, receive 
letters jointly with an executor expressly named.^ And a person 
expressly appointed executor for limited purposes may, by a cod- 
icil, receive by implication full general powers.^ There is no 
legal objection to qualifying one executor for general purposes, 
and another for some limited or special purpose, if such be the 
testator's manifest intention.^ 

§ 1041. Testator's Delegation of the Power to name an Executor 
or Co-executor. 

The English ecclesiastical courts were accustomed to grant let- 
ters testamentary as executors to persons named by those who had 
a nominating power conferred under the will.^ And under the 
English wills act, this practice is still sanctioned.* In some parts 
of the United States also, the testator's right to delegate to some 
person designated in the will the power to name an executor is 
likewise upheld.^ And thus may a testator authorize the probate 

Where the will appoints an executor, 2. Lynch v. Bellew, 3 Phillim. 424; 

naming another to act in the event of 1 Wms. Exrs. 245. 

the former's death and to discharge 3. Cringan's Goods, 1 Hagg. 548. 

such duties as were loft unperformed, 4. 2 Redf. Wills, 63; 1 Wms. Exrs. 

such successor, when duly appointed, 245-247; Jackson v. Paulet, 2 Robert, 

possesses the powers of an executor, 344. 

and not merely those of an adminis- 5. Harnett v. Wandell, 60 N. Y. 
trator de bonis non. Kinney v. Kep- 346, 19 Am. Rep. 194. Here, as in 
linger, 172 111. 449, 50 N. E. 131, and Jackson v. Paulet, supra, it is main- 
cases cited. tained that a statute requirement 

7. Bailey's Goods, L. R. 1 P. & D. that the court shall issue letters to 
608. the persons named in a will as exec- 

8. Leese's Goods, 2 Sw. & Tr. 442. utors docs not preclude the issue of 

9. 1 Wms. Exrs. 245 ; Grant v. Les- letters to one not expressly named 
lie, 3 PJiillini. 11 G. but duly designated as such by virtue 

1. Aird's Goods, 1 Ilagg. 336. of such a power. The case is unlike 

922 



CnAP. I.] APPOINTMENT OF EXECUTOKS. § 1042 

court to appoint as executor a suitable person in the event of the 
resignation, inability, or refusal to act, of the executor named by 
the testator himself in his will.® So too, may he in his will dele- 
gate the authority to his legatees, or a majority of them, to name 
the executor.^ Kecent cases have in this manner permitted fur- 
ther a successorship to be maintained, so that of two or more ori- 
ginal executors, the survivor or survivors shall fill the vacancy ; ^ 
all of which, however, should be subject to the court's discretion. 
A like delegation of power may be to one executor, in order that he 
m-ay name his own associate.^ A person authorized to nominate 
an executor has sometimes nominated himself, and thus obtaii:ed 
the office.^ 

§ 1042. Limited or Conditional Executorship. 

From what has been said, the reader will infer that the office 
of executor is not always conferred absolutely. Wills, we know, 
are usually drawn, so that A. B. is named executor, or perhaps A. 
B. and C. D., or A. B., C. D., and E. F. ; and, whether one or 
more executors, the rights and duties thus devolve upon the person 
or persons named, fully and immediately upon the testator's death; 
so that, if there be a condition precedent at all, it is only such as 
probate law interposes in order that the will may be duly proved 
and the executor qualified by letters testamentary. But a testator 
may, and sometimes does, impose conditions and limitations un- 
der the will at his own discretion ; and the old books state numer- 
ous instances of the sort. Thus, the executor's appointment may 
be conditional upon his giving security for paying the debts and 
legacies,^ or so long as he does not interfere with M.'s enjoyment 

tliat of a testator's reserving power istration with the will annexed. lb. 

to himself to deal informally here- 7. Wilson v. Curtis, 151 Ind. 471; 

after with his will. Bishop v. Bishop, 56 Conn. 208. 

6. State V. Rogers, 1 Houst. (Del.) 8. Deichman's Coods, 3 Curt. 123; 

569. Such person being hereby " ap- Jackson v. Paulet, 2 Robert. 344. 

pointed to be my executor," in the 9. Hartnett v. Wandell, supra. 

language of the will, it is proper for 1. Ryder's Goods, 2 Sw. & Tr. 127. 

the court to grant him letters testa- 2. Godolph. pt. 2, c. 2, § 1; 1 

mentary instead of letters of admin- Wms. Exrs. 7th ed. 253. The pro- 

923 



§ 1042 EXECUTORS AND ADMINISTKATOKS. [pAET II» 

of Blackacre,^ or after he has paid such a debt/ or provided he 
prove the will within three calendar months after the testator's 
death ; ° and such condition failing, whether precedent or subse- 
quent, the appointment fails upon the usual principle of a condi- 
tional appointment. 

Again, there may be limitations placed by the testator upon the 
exercise of the office; as where one commits the execution of his 
will in different countries ® (or even, as the old books lay it down, 
in different counties ^) to different persons. So it is said that one 
may divide the duties of executor with reference to the subject- 
matter: appointing one for the cattle, another for the household 
stuff, another to grant leases, and another to collect debts ; ^ but 
Lord Hardwicke exposed the absurdity of such a division, inas- 
much as executors must act jointly, and each have authority as to 
the whole estate; ® and creditors certainly may sue them in such 
a case as united in privity just as though there were only one 
executor.^ 

There may be a postponement of the office, as some proviso by 

curement of such security, where pru- titled to letters in England, and 

dence requires it, is an element in limited executors added for India, 

modorn probate practice, independ- Wallich, Goods of, 3 Sw. & Tr. 453. 

ontly of a testator's directions. See As to granting ancillary letters in a 

bonds, c. 5, post. State or jurisdiction foreign to the 

3. Dyer, 3 b, pi. 8; Cro. Eliz. 219. place of the testator's domicile and 

4. Stapleton v. Truelock, 3 Leon. 2, place of original probate or adminis- 
pl. 6. tration, see c. post, ancillary appoint- 

5. Wilmot's Goods, 1 Curt. 1. Here ments. 

the day of death was held to be ex- 7. Swinb. pt. 4, § 18, pi. 1, 4; 1 

eluded in the computation of time. Wms. E.\rs. 251, 252. Such a division 

6. Hunter v. Bryson, 5 Gill & J. of localities in one jurisdiction, how- 
483, 25 Am. Dec. 313; Mordecai v. ever, seems unreasonable in practice. 
Boylan, 6 Jones Eq. 365; Despard v. 8. Dyer, 4 a; Godolph. pt. 2, c. 3, pi. 
Cburchill, 53 N. Y. 192. An English 2, 3 ; 1 Wms. Exrs. 252. 

testator appoints a resident of Portu- 9. Owen v. Owen, 1 Atk. 495. per 

gal to be his executor in tliat country. Lord TTardwicke. 

Tills does not entitle the Portiigucse 1. Cro. Car. 293: 3 Redf. Wills, 2d 

exwutor to letters in England. ed. r)5. And see Mr. Justice Wayne 

Vfllio V. Leite, 3 Sw. & Tr. 456. So in Hill v. Tucker, 13 How. (U. S.\ 

there may be general executors en- 400, 14 L. Ed. 223. 

924 



CHAP. I.] APPOINTMENT OF EXECUTORS. § 1042 

way of succession or the substitution of one executor or set of exe- 
cutors for anotlier. Thus, two persons may be appointed execu- 
tors with a provision that the one shall not act during the life of 
the other ; ^ or so that B. shall succeed A. in case of A.'s death, 
incapacity, or unwillingness to serve.^ So, too, one may be ap- 
pointed for a definite period of time, or during the minority of ai 
son, or the widowhood of a wife, or until the death or marriage of 
a son, or the remarriage of a widow, or while the instituted exe^ 
cutor is absent from the country.* In all such cases, if a vacancy 
in the office occurs at any time which the will itself does not supply, 
whether permanent or during the interval that must elapse between 
the ending of one executorship and the beginning of another, the 
probate court should grant administration with the will annexed 
of such tenor as the emergency requires.^ 

In short, there may be various qualifications imposed by one's 
will upon the executor or executors therein appointed. Various 
substitutes may be designated to serve upon one and another con- 
tingency, and in succession instead of jointly ; executors, moreover, 
may be appointed having separate and distinct functions to dis^- 
charge, some full and general, others limited and special, in au- 
thority. For, as Mr. Justice Wayne has observed, while the es- 
tate of an administrator is only that which the law of his appoint- 
ment enjoins, an executor's interest in the testatoi*'s estate is what 
the testator gives him.^ But where the authority of the executor is 

2. Wentworth Off. Ex. 13; 1 Wms. § 17, pi. 1-4. Except it be by way of 
Exrs. 250, 251; 3 Redf. Wills, 65. substituting some new executor for a 

3. Lighton's Goods, 1 Hagg. 235; § predecessor upon the happening of 
1040 supra. some event, such executorships are 

4. Wms. Exrs. 251 ; Carte v. Carte, seldom created. 

3 Atk. 180; Cro. Eliz. 164; 2 Cas. t. 5. 3 Redf. Wills, 65; Swinb. pt. 4, 
Lee, 371. Other instances are men- § 17, pi. 2. See c. IV., post as to ad- 
tioned by Swinburne and other early ministration with the will annexed, 
writers; as, where the testator ap- 6. Hill v. Tucker, 13 How. (U. S.) 
points one to be his executor at the 466, 14 L. Ed. 223. And see Hart- 
end of five years after his death, or nett v. Wandell, 60 N. Y. 346, 19 
at an uncertain time. Swinb. pt. 4, Am. Rep. 194. 

925 



§ 1043 EXECUTOES AND ADMIXISTEATOES. [PAKT II. 

restricted, this should appear in the letters testamentary.^ Nor 
can a testator appoint one an executor, and at the same time pro- 
hibit him from administering the estate ; for this would be to deny 
him the essential functions of the office.^ 

§ 1043. Whether the Executorship passes to an Executor's Rep- 
resentatives. 

An executor cannot assign his executorship, the trust being 
pronounced in such connection a personal one ; ^ nor can the exe- 
cutorship pass upon his death to his legally appointed administra- 
tor.^ If there were several executors, so that one at least still sur- 
vives in the office, no interest is transmissible by the deceased exe- 
cutor.^ But by the English law, wherever a sole executor had as- 
sumed office under the will, or all co-executors had died, so that no 
surviving executor or successor could succeed on his decease by 
appointment of the will, such executor was allowed to transmit his 
office by his own will to his own executor, by way of delegating the 
confidence originally reposed in him to the person in whom he him- 
self confided ; and thus might the executor of an executor pass on 
the estate in a series of appointments, until intestacy broke the 
chain, or the estate became finally settled and distributed.^ But 

7. Coudert's Will, 138 N. Y. S. 296; See comments of 1 Wms. Exrs, 7tli ed. 
7 Jur. N. S. 195; Gibbons v. Riley, 7 255, n. And see Grant, Goods of, 24 
Gill, 81. W. R. 929. 

8. See Anon. Dyor, 3 b; 1 Wms. 2. 1 Wms. Exrs. 256, 284, 

Exrs. 250, n., showing some doubt as 3. 1 Wms. Exrs. 7th ed. 254-256, 

to the eflfect of such a proviso: tliough and cases cited; Smith's Goods, 3 

semhle such an appointment is inop- Curt. 31; 2 Bl. Com. 506; (1896) P. 

erative. 129. This rule applied, though the 

9. Bedell v. Constable, Vaugh. 182; original probate was a limited one. 
Briggs, Goods of, 26 W. R. 535. Not Beer's Goods, 2 Robert. 349. A mar- 
even to an administrator with will ried woman as executrix might, so 
annexed, in tlie absence of express far as her testamentary power ex- 
words in the grant. lb. tended, transmit to her executor. 

1. 2 Bl. Com. 500. Otherwise semhle Birkctt v. Vandercom, 3 Hagg. 750. 
with an administrator durante minor But it is essential to such transmis- 
aetate, for such an officer stands in sion that the executor shall have 
place of an executor. 1 Frecm. 287. probated his testator's will before his 

926 



CHAP. I.] APPOINTMENT OF EXECUTOES. § 1044 

in the American States this rule, which so disregards the testator's 
kindred and their wishes, is now quite generally changed by stat- 
ute; and in consequence, the duties and liabilities of the sole exe- 
cutor upon his decease devolve, not upon the executor of the exe- 
cutor as such, but upon an administrator with the will annexed 
of the estate of the original testator, whose appointment is made 
by a court upor considerations favorable to those interested in such 
estate.* The executor of an executor cannot take the office, where 
the will itself provides expressly a different mode for filling vacan- 
cies as they occur; ^ ancj^he may, of course, renounce the trust.^ 

§ 1044. Acceptance and Refusal of the Executorship ; Citation of 
the Person named, etc. 

Having considered how the testator may appoint his executor, 
we next proceed to the executor's decision to take or not to take 
the trust. For every appointment to an office there must be two 
parties at least ; and in the first instance no one is bound to under- 
take private responsibilities which another seeks to fasten upon 
him. The office of executor is a private truSt, devolving upon one 
individual by another's selection, and not by act of the law; and 
hence the office may be accepted or refused at discretion.'^ 

own death. Drayton, In re. 4 Mc- neglected to pay a legacy has died, 

Cord, 46; 2 Wms. Exrs. 255, and his executor is liable to the legatee 

cases cited. if sufficient assets come to him from 

4. See statutes of California, ]\Iass., the original estate or from the estate 

Vermont, Pennsylvania, etc. ; Pres- of the first executor. Windsor v. 

cott V. Morse, 64 Me. 422; Scott v. Bell, 61 Ga. 671. 

Fox, 14 Md. 388; Farwell v. Jacobs, 5. Navigation Co. v. Green, 3 Dev. 

4 Mass. 634. As to jurisdiction under L. 434. 

such statutes of an account presented 6. Worth v. McAden, 1 Dev. & B. 

by the executor of an executor against Eq. 199. 

his testator's estate, see Wetzler v. 7. Lowry v. Fulton, 9 Sim. 115; 
Fitch, 53 Cal. 638. In some States Lewin Trusts, 161, 162; 1 Wms. Exrs. 
the old rule seems to bo still followed. 274. An executor cannot refuse his 
Lay v. Lay, 10 S. C. 208; Thomas v. office in part; he must refuse entirely 
Wood, 1 Md. Ch. 296 ; Crafton v. Beal, or not at all. 2 Roll. Rep. 132 ; 1 
1 Ga. 322; Carroll v. Connet, 2 J. J. Wms. Exrs. 282; Thornton v. Wins- 
Marsh. 195; 20 Fla. 58. See 2 Dera. ton, 4 Leigh, 152. 
327. Where an executor who has 

927 



§ 1044 EXECUTORS AND ADMINISTRATORS. [pAET II. 

The time of acceptance or refusal of an exccutorsliip is properlv 
deferred to the date when the will comes into operation ; that is to 
say, when the testator is dead, and the will ought to be admitted 
to probate and some one undertake the responsibility of settling 
the estate. Hence, one's promise during the lifetime of the testa- 
tor to accept such trust will not conclude him.^ Possibly circum- 
stances might show a consideration given for such a promir^e, so 
as to involve the party refusing in a legal liability to the estate for 
the breach ; and if a legacy was given him under the will as execu- 
tor, and in consideration of such service on his part, he must needs 
forfeit it by his refusal to serve.^ But every presumption favors 
a mutual postponement of one's final decision to serve until the 
contingency of death happens, and the person named as the de- 
cedent's executor may fitly make up his mind whether to serve or 
not, if, indeed, he be the sui*vivoT and capable of serving at all. 
And hence, as a rule, one may renounce a trust to which he is 
nominated under a will without forfeiting any legacy which is 
left to him simply as an individual, and upon no manifest re- 
quirement that he shall serve.^ 

The executor's acceptance of his appointment is signified by 
proving tlie will in court and taking out letters testamentary.^ 
How all this should be done will presently appear.^ But so irc- 
portant is it, in the interests of an estate, that a dead person's will 
should be placed promptly upon record, if he has left one, and his 
estate co'inmitted for settlement, that from very early times the 
ordinary was empowered in England to summon any person before 
him who had been named executor under the will of the deceased, 

8. Doyle v. Blake, 2 Sch. & Lef. 392. retract a renunciation under the New 

9. Roe Slaney v. Watney, L. R. 2 York code. lb. In American probate 
Eq. 418. practice one's renunciation is, as 

1. Pollexfen v. Moore, .3 Atk. 272; nearly as possible, treated as tanta- 

Slaney v. Watney, L. R. 2 Eq. 418. mount to a refusal to qualify in the 

The right to " renounce " an executor- probate court and take out letters, 

ship exists only before one receives 2. Lewin Trusts, 167; 3 Redf. Wills, 

letters testamentary. 3 Demarest 2d ed. 529. 

(N. Y.) 104. See peculiar right to 3. See next c. 

928 



CHAP. I.] APPOINTMENT OF EXECUTOKS. § 1045 

and by summary process compel liim to prove or refuse the testa- 
ment ; punishing him for contempt if he refused to appear ; * an 
authority which has been transferred to the new courts of probate 
in that country,^ and is exercised generally by courts of similar 
jurisdiction in the United States.^ It is the policy of such statutes 
to require the person thus named to decide speedily whether he 
will accept or decline the trust ; and in the latter event, or where 
he unreasonably neglects after due citation to appear, the court 
takes heed that the probate of the will is pursued, and thereupon 
commits the representation of the testator and the administration 
of his estate as though no such person had been named executor; 
or makes some special and temporary appointment in case of de- 
lay; or, if the will ought not to be admitted to probate, proceeds 
as in other cases of intestacy.^ By such procedure, co-executors, or 
executors in succession, may be passed over, and the associate or 
substitute may be qualified by the court; or, instead, an adminis- 
trator with the will annexed, or a general administrator, as the 
state of facts and legal consistency may require.* 

§ 1045. The same Subject; Death equivalent to a Renunciation 
of Trust. 

The death of the sole executor named in the wili, before having 
either taken or renounced probate, leaves a vacancy, whether the 
death occurred during his testator^s life or later, which must be 
supplied as in case of a formal renunciation.^ 

4. See Stats. Hen. 8, c. 5, § 8, 1 8. Where an execvitor of a deceased 
Edw. 6, c. 2, cited 1 Wms. Exrs. 274 ; executor is the rightful representative 
also Stat. 53 Geo. 3, c. 127, as to by law (see supra, § 1043), he may- 
punishment for contempt In the ec- thus be admitted by reason of the 
closiastical court. refusal or neglect of the co-executor. 

5. Act of 1857, erecting the court Lorimer, Goods of, 2 Sw. & Tr. 471; 
of probate; supra, § 1014. Noddings, Goods of, 2 Sw. & Tr. 15. 

6. Supra, § 11. 9. The executor of the executor 

7. Stat. 21 & 22 Vict. c. 95, § 16. cannot fill the office as the law usually 
And see post as to appointments, cs. stands at this day. Supra, § 1043. 
3, 4. See §§ 1124-1127 post. 

59 929 



§ 1046 EXECUTORS AXD ADMIXISTKATOKS. [PAKT II. 

§ 1048. The same subject; Refusal of Record; Constructive Re- 
fusal or Acceptance. 

Probate procedure, under statutes such as we liave alluded to, 
ought readily to establish the fact of an executor's refusal or ac- 
ceptance of his office in most instances.-^ The fact, however, should 
be matter of judicial supervision, and hence of judicial record. A 
formal renunciation of the trust, signed by the executor named for 
it and filed of record, will commonly suffice for that pui'pose. Such 
a writing, or some judgment of record, reciting why the formality 
was dispensed with, ought, in sound probate practice, to precede 
the granting of letters testamentary or administration to another.^ 

With such preliminaries now regularly pursued, and the re- 
moval or resignation of executors, moreover, being more readily 
procured in modem probate practice than when the distrusted 
spiritual courts exercised jurisdiction, some of the old English 
precedents which compelled executors to serve, to the detriment 
of estates, on the theory that one had constructively accepted his 
office, have passed into oblivion. It wsls formerly ruled, indeed, 
that if an executor had once administered at all, the ordinary had 
no discretion to accept his refusal and appoint another in his stead. ^ 
But the true theory, for these days, appears to be rather that if 

1. Statutes are Sometimes quite ex- Stebbins v. Latlirop, 4 Pick. 33. In 
plicit as to form. In New York, for English practice, the person renounc- 
instance, the writing should be at- ing the office takes oath that he has 
tested by two witnesses and acknowl- not intermeddled with the effects of 
edged or otherwise proved and filed. the deceased. But no such oath is ro- 
Redf. Sur. Pr. 141. Uut in Massa- quired in parts of the United States, 
chusetts, and some other States, the nor does it appear desirable to oh- 
instrunient is more like a simple let- struct the issue of letters to anotlier 
tor to the judge. English practice because of any such omission to make 
dispenses, as does the American, in oatli. See.l Wnis. Exrs. 282; Toller, 
general, with the use of a seal. Boj'le, 41, 42. Neglect to qualify may be 
Goods of, 3 Sw. & Tr. 426. Renunei- construed under favorable circum- 
ation should be over the party's own stances into a refusal to serve. Ul- 
signature; but in extreme cases the drick v. Simpson, 1 S. C. 283. 
writing may be executed by an at- 3. 1 \N'm8. Exrs. 277; 1 Roll. Ahr. 
torney. Rosser, Goods of, 3 Sw. & Exrs. c. 2; 1 Mod. 213; 1 Leon. 155; 
Tr. 400. 1 Salk. 308. 

2. Long V. Symcs, 3 Ilagg. 773: 

930 



CHAP. r.J APPOINTMENT OF EXECUTORS. § 10-iG 

the person named as executor undertakes to administer while 
neglecting to prove the will, to procure his letters, and to qualify 
(if so the statute requires) by giving a bond, he ought to be treated 
as executor only so far as to be held responsible to all interested 
under the will, and to the court, for his unauthorized and injudi- 
cious acts ; that othei'wise, whether by his renunciation, resigna- 
tion, or removal, a vacancy, if desired by himself or desirable on 
other grounds, should be declared.* Yet, if the executor thus ad- 
ministering has acted in good faith, with good excuse and not in- 
juriously, and desires to fully qualify for the office, and protect his 
acts, this is a different thing; we speak only of a constructive ac- 
ceptance, such as binds one legally to continue in office against his 
own will and where the court considers it detrimental to the inter- 
ests of the estate.^ 

One who has intermeddled with the estate of the deceased, like 
an executor de son tort, may, however, as it is held, be debarred 
at the discretion of the court from renouncing the trust and its 
responsibilities afterwards, and claiming that he has not intended 
to stTve; for the right to elect on his part, whether to accept or 
refuse the office, may be determined by acts and conduct on his 
own part amounting to an estoppel, irrespective of formal proceed- 
ings in probate. Hence, the rule, that whatever the executor does 
with relation to the estate of his testator, showing his intention to 
assume the trust confided to him, may be alleged as evidence that 
he had already elected to take upon him the executorship.^ As 
where he takes possession and converts goods of the testator^s es- 

4. On general principles of equity as meddled with the effects, and the 
well as at law, such a person is liable record cancelled. Badenach's Goods, 
to others for his acts. Doyle v. Blake, 3 Sw. & Tr. 465. But the oath of non- 
2 Sch. & Lef. 237; Parsons v. Mayes- intermeddling is not usually part of 
den, 1 Freem. 151 ; Reed v. Truelove, the renunciation in American as in 
Ambl. 417. And see post as to the English practice. 

executor de son tort. But parties 6. 1 Wms. Exrs. 279 ; Godolph. pt. 2, 

aggrieved have not the security of a c. 8, §§ 1, 6; Raynor v. Green, 2 Curt, 

bond, etc., to which probate law may 248 ; Van Home v. Fonda, 5 John. Ch. 

have entitled them. 388; Vickers v. Bell, 4 De G. J. & S. 

5. Renunciation held invalid in Eng- 274. As to the executor de son tort, 
lish practice where one had inter- see c. VIII, post. 

931 



§ 1047 EXECUTOES AND ADMINISTEATOES. [PAET II. 

tate to his own use, claiming tliat tliey belong to the estate/ (other- 
wise, however, where he has claimed them as his own, since this 
would show an intention on his part inconsistent with administer- 
ing; ^) and where too he administers on such goods, or under some 
misapprehension takes a stranger's goods for that purpose,^ col- 
lects debts, pays claims and legacies, or even represents himself ^ 
as thus prepared to act on behalf of the estate. On the other hand, 
a constructive refusal has sometimes been inferred by acts and 
omissions of the person named executor. Thus, it is held that the 
executor's neglect for a long time to take out letters and prove the 
will, when he might have done so, amounts to refusal.^ And long 
delay to take such steps ought thus to be construed, in the interest 
of all concerned, where there has been meanwhile no intermeddl- 
ing with the estate on his part, and he has not suppressed the will. 
Again, it may be presumed, where the same party was named ex- 
ecutor and trustee under the will, and has qualijfied and acted in 
the latter capacity but not in the former, that he accepted the one 
trust and declined the other, and vice versa.^ 

§ 1047. The same Subject; Constructive Acceptance or Refusal 
not favored in Modern Probate Practice. 

On the whole, however, theories of constructive refusal or ac- 

7. Tl).; Wms. Exrs. 279. 3. See Williams v. Gushing, 34 Me. 

8. Bac. Abr. Executors, E. 10. 370; Dcering v. Adams, 37 Me. 2C4. 

9. Bac. Abr. Executors, E, 10; 1 A judge of probate named as one of 
Wms. Exrs. 279. the executors under a will, shows, by 

1. Long V. Symes, 3 Hagg. 771; acting as judge in admitting tiie will 
Vickers v. Bell, 4 De G. J. & S. 274. to probate and qualifying the co- 
But assisting a co-executor who has executors, tliat he declines to serve, 
been duly appointed, as any attorney Ayres v. Weed, 16 Conn. 291. Re- 
or agent might do, is not tantamount fusal to act as executor may be im- 
to electing to serve as an executor. plied without record evidence or ex- 
Orr V. Newton, 2 Cox, 274. But cf. 1 press declaration. Solomon v. Wixon, 
P. Wms. 241, note to 6th ed., cited in 27 Conn. 291; Thornton v. Winston, 
1 Wms. Exrsv 280. 4 Leigli, 152; Ayres v. Clinefetter, 20 

2. As for twelve months. Bewa- 111. 4G5; Uldrick v. Simpson, 1 S. C. 
corne v. Carter, Moore, 273. For 283. 

twenty years. Marr v. Play, 2 Murph. 
85. 

932 



CHAP. I.] APPOINTMENT OF EXECUTOKS. § 1047 

ceptance are hardly consistent with our modern probate practice ; 
they may serve to establish presumptions where public records are 
lost, or to facilitate the course of justice in dealing with an inter- 
meddler or an indifferent nominee, according as the interests of 
creditors and legatees may demand. Under both English and 
American statutes, at the present day, summary proceedings are 
available in the court of probate jurisdiction to compel the person 
named as executor to prove the will and qualify, and, in case of 
his unreasonable neglect to appear, to commit the trust to others 
just as if he had formally declined.* Such proceedings render ac- 
ceptance and refusal of an executorship matter of public record, 
and discourage legal inferences from acts and conduct of the 
nomine© in pais. Responsible as an executor may be for his acts 
and negligence respecting the trust before he has been duly quali- 
fied, modern policy disinclines to force one to serve as executor 
against his will or regardless of the true welfare of the estate, pro- 
vided there are others at hand competent and ready to assume the 
management. Such trusts, in the United States at least, being 
now compensated, the office of executor becomes far less burden- 
some than in old times when one was selected to perform these 
pious duties as a last favor to his dying friend, and gratuitously, 
xind while, as a matter of general law, one who has proved the 
will, received letters testamentary, and fully qualified in court, 
cannot afterwards renounce the executorship of his own accord 
or divest himself of its duties,^ our local statutes now provide that 
executors, as well as administrators, may afterwards resign or bs 
removed from office, when in the discretion of the probate court 
it appears proper.^ One's renunciation has been accepted in some 

4. See 21 & 22 Vict. c. 95, § 16; 1 H. 258, 82 Am. Dec. 213. Nor need 
Wms. Exrs. 275. the appointment of a successor await 

5. Sears v. Dillingham, 12 Mass. the settlement of the outgoing execu- 
358 ; Washington v. Blunt, 8 Ired. Eq. tor's accounts. Harrison v. Hender- 
253. son, 7 Heisk. 315. As to resignatioa 

6. Thus is it in Massachusetts and and removal of executors and admin- 
New Hampshire. Thayer v. Homer, istrators, see c 6, post. See also 
11 Met. 104; Morgan v. Dodge, 44 N. Newton v, Cocke, 10 Ark. 169. 

933 



§ 1049 EXECUTOi;S AXD ADMIXISTEATOKS. [part II. 

instances after probate of the will but before qualification ; "' and 
if a bond with sureties must be furnished under the local statute, 
the inconvenience of furnishing a bond such as the court requires 
may furnish good reason for renouncing at the last moment.^ 

§ 1048. Executor's Right to renounce not to be exercised cor- 
ruptly, nor for Sinister Objects. 

An agreement made with persons in interest before a testator's 
death, and contrary to his expressed wishes, by one named as exe- 
cutor, to renounce the executorship for a stated consideration, is 
contrary to public policy and void.^ Nor has one named as execu- 
tor any right, by mispleading or acquiescence- in the unfounded 
claim of another, to change the lawful course of substitution or ad- 
ministration in his stead. "^ In general, any agreement for a con- 
sideration to renounce an executorship is illegal, and a court of 
equity will refuse to enforce it.^ 

§ 1049. Whether an Executor renouncing may exercise a Power. 

Williams, in his excellent work on executors and administrators, 
doubts whether, where a power is given to executors, Uiey may 
renounce probate, and, at the same time, exercise the power, un- 
less the power was conferred upon them personally and without 
reference to the office of executor.^ But he admits that some emi- 
nent authorities point to the contrary conclusion.* 

7. Miller V, Meetch, 8 Penn. St. 417; 9. Staunton v. Parker, 26 N. Y. 
Davis V. Inscoe, 84 N. C. 396. The Supr. 55. 

particular form of renunciation is not 1. Nelson v. Boynton, 54 Ala. 368. 

important. Commonwealth v. Mateer, 2. Ellicott v. Chamberlin, 38 N. J. 

16 S. & R. 416. But the New York Eq. 604, 48 Am. Rep. 327. 

statute requires renunciation to be 3. Wms. Exrs. 286, 287. 

formally executed in the presence of 4. Suj^den Powers, 138, 6th ed.; 2 

witnesses. 2 N. Y. R. S. § 370. Prest. Abstr. 264. Perkins, No. 548, 

8. One who does not qualify nor pre- suggests the point of distinction as 
8ume to act as executor is not to be Mr. Williams has taken it. And see 
treated as such, though lie has filed Keates v. Burton, 14 Ves. 434, per 
no express renunciation. Gall v. Stoll, Sir VVm. Chant. It should be ad- 
102 N. E. 225, 259 111. 174. mitted that one who is executor or 

administrator under a will lias by no 
means tlie power of selling tlie testa- 

934 



CHAP. I.] APPOINTMENT OF EXECUTOKS. § 1050 

§ 1050. Retraction after a Renunciation; Subsequent Appoint- 
ment of the Executor. 
Where an executor upon his own petition has been excused from 
the office, and has formally renounced the trust, he cannot, after 
the issuance of letters to another, retract his renunciation at pleas- 
ure. His election once made, is, for the time being, irrevocable.^ 
But a fresh opportunity may often be afforded him to take the 
trust, should a vacancy in the office afterwards occur, especially 
if a new state of things arises. As, where the co-executor named 
under the will qualified alone and was afterward removed for stat- 
ute cause, or died ; ^ or in case the person renouncing in the first 
instance was named sole executor and sole legatee in the will, and 
administration with the will annexed had been granted upon his 
renunciation to one of the next of kin who presently died insolvent 
and intestate;'' or where the appointed person presently ab- 
sconded.^ In the first instance, letters of administration never 
having issued before the executor's retraction took place, letters 
testamentary would be properly issued to him; but, in the second, 
administration has once been grant/cd, and consequently the exec- 
utor properly takes instead administration de bonis non, with the 
will annexed. Administration with the will annexed having once 
been duly granted, in fact, there would be no further opportunity 
left to the renouncing part}^ to qualify as executor ; and yet, under 
the broad discretion of the court, where a new administrator upon 

tor's real estate, by inference. See an appeal). The old practice was 
Clark V. Tainter, 7 Cusli. 567. One more favorable to permitting those 
may therefore have the power to sell who had once refused to come in after- 
conferred upon him as something not wards and act. Wms. Exrs. 284 ; 4 
annexed to the will or his acceptance M. & Gr. 814, per Tindal, C. J. 
or declination of the executorship. 6. 1 Kobert. 406; Cotlding v. New'- 
Mr. Williams's distinction appears, man, 63 N. Y. 639; Perry v. De Wolf, 
therefore, to this writer a just one in 2 R. I. 103; Maxwell, In re, 3 N. J. 
the sense that the testator's intention Eq. 611; Davis v. Inscoe, 84 N. C. 
should be resorted to in such a case. 396. 

5. Thornton's Goods, Add. 273; ' 7. Wheelwright, Goods of, L. R. 3 

Trow v. Shannon, 59 How. (N. Y.) P. D. 71. 

Pr. 214; Briggs v. Probate Court, 50 8. Stiles's Goods, (1S98) P. 12. 
A. 335, 33 R. I. 125 (not even upon 

935 



§ 1050 EXECUTOKS AXD ADMIXISTEATOKS. [PAET II. 

an unadministered estate has to be appointed, a sole legatee may 
well be pronounced in such an exigency the best suitable for the 
trust, and be appointed to the vacancy accordingly as an adminis- 
trator.^ 

In practice, an executor's retraction of his refusal has been 
treated with considerable indulgence, so long as no orher grant 
of letters supei-venes. Thus, upon consent of all the parties in- 
terested (though not otherwise) an executor who had refused the 
trust in order to become an admissible witness for sustaining the 
validity of the will, was in the English spiritual court regularly 
allowed to withdraw his refusal after the suit was over and receive 
letters testamentary ; ^ palpable evasion, though this might be, of 
the rule which forbade interested persons to testify in court. And 
even supposing letters of administration to have issued, if this 
were upon some misapprehension or error deserving correction, or 
for some temporary purpose not inconsistent with probate, and 
before the executor can be said to have refused the trust, this 
party may have the administration revoked or superseded and let- 
ters testamentary issued to him; as, for instance, should a will 
turn up after the grant of letters as upon an intestate's estate, or 
after a special administration.^ This power of retraction within 
such limits is matter of right, and not of mere privilege.^ 

9. See c. post as to administration; tion and prove the will, might at any 

1 Wms. Exrg. 283. Cf. Thornton v. future time appear to prove the will, 

Winston, 4 Leigh, 152. obtain h'tters testamentary, and have 

1. 1 Wms. Exrs. 7th ed. 283 ; McDon- the administration revoked. 1 Leon, 
iiell V. Prcndcrgast, 3 Ilagg. 212, 216; 90; Godolph. pt. 2, c. 31, § 3. But 
Thompson v. Dixon, 3 Add. 272. Re- the policy of later legislation is (re- 
traction allowed at any time before quiring probate of the will as of 
the grant of letters to anotlier. Rob- course) to treat the executor named 
crtson v. McGeoch, 11 Paige, 640. as such who does not respond to the 

2. Taylor v. Tibbatts, 13 B. Mon. citation, but neglects inexcusably to 
177; 2 Wms. Exrs. 283. Under the appear and perform his duty, as hav- 
old and defective English practic? in ing forfeited all right to the executor- 
Bueh matters, an executor who had ship. 21 & 22 Vict. c. 95, § 16. 
neither actually nor constructively 3. Casey v. Gardiner, 4 Bradf. (N. 
renounced his appointment, but Y.) 13. Cf. as to administrators 
merely defaulted to come in on cita- liaving precedence, § 1112, post. 

936 



CHAP, I.] 



APPOINTMENT OF EXECUTORS. 



§ 1051 



§ 1051. Renunciation where Co-Executors are named. 

Where two or more are named co-executors under a will, all 
must duly have renounced or have defaulted upon citation to the 
same result, before the will can be treated as in effect a will with- 
out an executor, so as to be properly committed to an administra- 
tor with the will annexed. The refusal of one co-executor does 
not exclude the others, nor prevent succession^ substitution, or a 
sole execution of the trust, as the testator's wishes or the just in- 
terests of the estate may require. And although, as we have al- 
ready indicated,* a co-executor who has renounced the office may 
afterwards retract the renunciation so as to succeed to a vacancy 
should one occur (for, here, the situation of the trust having 
changed, one does not stultify himself by recalling his refusal), 
the better practice allows the co-executor's refusal to slumber on 
unless he chooses to arouse it before the opportunity be past ; ^ 
which opportunity closes where other letters are granted.^ One of 
the co-executors having renounced, letters will be granted to the 
lemaining executor,'' and, unless it appears to the court impru- 
dent, to him alone. 



4. Supra, § 1050. 

5. Judson V. Gibbons, 5 Wend. 224. 
And see Jewett v. Turner, 52 N. E. 
1082, 172 Mass. 497; Briggs v. Pro- 
bate Court, 50 A. 335, 23 R. I. 125. 
It was formerly thought that the 
grant of administration would be void 
upon such a vacancy in the office un- 
loss the executor surviving renounced 
the trust once more in due form. 
But this superserviceable regard for 
a testator's wishes is not approved by 
the later and sounder authorities, 
which hold that the surviving exe- 
cutor must come in, retract his re- 
nunciation, and ask to be appointed 
before administration de bonis non 
passes the seals, if he would supply 
Ihe vacancy. 1 Robert. 406; 1 Wms. 



Exrs. 285; Venables v. East India 
Co., 2 Ex. 633. 

6. Even though delay should occur 
in filing a bond, so that the retraction 
of the executor who renounces is filed 
just before the co-executor finally 
qualifies and takes his letters, the re- 
traction comes too late. Jewett v. 
Turner, 172 Mass. 497, 52 N. E. 1082. 

7. Miller v. Meetch, 8 Penn. St. 
417. See Murdoch v. Murdoch, 53 So. 
694, 97 M'iss. 690 (court's power re- 
stricted as to associating others). 
An executor who renounces, being a 
creditor of the estate, is not debarred 
of the usual remedies of creditor. 
Rawlinson v. Shaw, 3 T. R. 557; 
Toscani's Estate (1913), P. 42. 



937 



§ 1052a EXECUTOES AXD ADMi:XISTEATOES. [PAKT II. 

§ 1052. Executors, how appointed by the Court; Letters Testa- 
mentary. 
This chapter has shown us that executors are appointed, or 
rather designated, by the testator's will. The full appoin'tment, 
according- to modern English and American practice, comes from 
thj court of probate jurisdiction, which, recognizing and confirm- 
ino; the testator's selection, cloithes the executor therein named with 
plenary authority by issuing letters testamentary to him. Letters 
testamentary are granted usually in connection with decreeing the 
probate of the will ; and, as our next chapter will show, one's last 
tesiament should be presented for probate, whether the executor 
named be willing to serve and competent for the trust or the re- 
verse. A will is not necessarily put in force by an executor, nor 
dependent for enforcement of its provisions upon any survivor of 
the deceased. Hence, according to our present probate procedure, 
an executor derives his office (1) from a t^tamentary appoint- 
ment, which (2) is confirmed by a decree of the probate court., 
and the issue of letters testamentary to him accordingly.* 

§ 1052a. Probate and Letters Testamentary Distinguished. 

The allowance of a will in probate and the granting of letters 
testamentary are different judicial acts, though embraced usually 
under one petition and one course of procedure.^ 

8. Tlie testamentary appointment would not have made the appoint- 

of an executor should be confirmed by ment with knowledge of bad condi- 

the probate court where all the bone- tions existing at the time when con- 

ficiaries under the will desire it and firmation is asked. Smale's Estate, 

there is no good reason why the tcs- 130 N. W. 119, 150 Iowa, 391. 
tatnr's wishes should not be followed. 9. Gurdy Re, 63 A. 322, 101 Me. 

Aliter, if it appears that the testator 73; Mayer's Will, 144 N. Y. S. 438. 

938 



CHAP. II.] PEOBATE OF THE WILL. § 1053 



CHAPTER II. 

PROBATE OF THE WILL. 

§ 1053. Duty of producing the Will; Fundamental Importance 
of determining Testacy or Intestacy, etc. 

The first and most pressing duty of every executor nominated 
as such is to have the will, by virtue of which he claims the rights 
of representative, admitted to probate. And so fundamental to 
jurisdiction upon the estate of a deceased person is it to ascertain 
whether such person has died tesitate or intestate, and if testate, 
what was his last will and testament, what instrument, in truth, 
made and subscribed by him with due formalities while capable 
and free to exercise the momentous power of testamentary disposi- 
tion, embodied his la,test wishes; so important is it to know 
whether he has chosen in fact to have his property settled and dis- 
tributed according to his own scheme, or to let the law of intestacy 
operate ; that the personal claim of this or that individual to exe- 
cute or administer the estate is but secondary in importance. 

Heuce the will, whoever may be its temporary custodian, should 
be properly produced in court after the testator's death, in order 
that its validity may be finally determined, and incidentally the 
rights of all persons claiming a title and interest in the decedent's 
estate. The executor named in the instrument is the most suitable 
person for such temporary custody and formal production. But 
wills are sometimes received, under appropriate statutes, from 
such as may have chosen during lifetime to deposit the same con- 
fidentially ih the probate registry; or the instrument is committed 
to the care of an attorney, or some confidential friend; or it is 
lodged among one's effects or business papers, so that some mem- 
ber of the family, a partner, or a business clerk, may happen first 
to light upon it; or perchance it may have been carelessly or art- 
fully placed where only accident is likely to discover it, and the 
finder may prove an utter stranger. In any and all of these situa- 
tions, and under whatever otlier circumstances the will, or what 

939 



§ 1054 EXECUTOKS AK^D ADMINISTRATORS. [PAKT II. 

purports to be the will, of a party deceased may be found, the cus- 
todian, come he casually or purposely intO' possession, is bound to 
produce and surrender it in such a manner that, in all reasonable 
expectation, it shall duly and speedily be brought before the proper 
tribunal having probate jurisdiction of the estate. He must not 
clog the surrendei" of that instrument with conditions of pecuniary 
reward ; he must not connive with others at its suppression or con- 
cealment; he must not act as though the paper belonged to him- 
self, or to any particular person interested in the estate, or even 
to the executor named himself; but treat it as a document which 
involves the rights of all concerned in the estate, should either its 
validity or invalidity be established, and of those, besides, who 
should properly manage and settle the estate in one contingency 
or the other, as an instrument whose possession for the time being 
casts upon him a perilous responsibility. Most custodians may 
well, doubtless, surrender the paper to the executor named therein ; 
but the dut}'- does not cease here; and by fair and seasonable no- 
tice, if prudence and good faith so require, to the nearest relative 
of the deceased, or others interested, and giving the fact that the 
instrument has been found due publicity, one should procure what 
the policy of the law now requires, its prompt production for pro- 
bate before the proper tribunal.^ 

§ 1054. Procedure against Persons suspected of secreting, de- 
stroying, etc., the Will. 

Local statutes in modern times quite generally affix criminal 
penalties to the intentional suppression, secretion, ox destmction 
of a dead person's will by any one acquiring possession thereof.^ 
They provide also for summarj-- proceedings in the probate court 
against any person having or suspected of having, or knowing as 

1. An attoriioy or solicitor, the cus- Symcs, Tiiin. & Rus.s. S7. And see ."J 
todian of a will, cannot refuse its Redf. Wills, 3d ed. 1, 2. 
surrender for probate upon any claim 2. Smith Prob. Pra^^t. (Mass.) .'jO; 

of a lien for unpaid fees. Balch v Stcbbins v. Lathrop, 4 Pick. 33; 69 

A. 135, 80 Vt. 510. 

940 



CHAP. II,] PEOBATE OF THE WILL. § 1055 

to the whereabouts of such an instrument; such proceedings being 
in the nature of an inquisition, so that one is cited to appear and 
either surrender the will or purge himself by answering under oath 
such lawful questions as may be propounded in the premises. In- 
dependently of such legislation, according to correct reiasoning, 
every court of competent probate jurisdiction has a lawful au- 
thority, inferable from its peculiar functions, to summon parties 
spontaneously or upon the petition of any person interested, for 
the purpose of compelling production and investigating the where- 
abouts of instruments which ought to be offered before such court 
for probate, and may commit for contempt those who refuse to 
obey its mandate.^ Where one is shovtm to have had the custody 
of a will, he is presumed to retain it and must clear himself upon 
oath, or else be held responsible for its non-appearance; and any 
person having knowledge as to the existence or place of deposit of 
the will ought to give his testimony freely.^ 

§ 1055. Death of Testator; its Effect upon his Will. 

Every instrument purporting to be one's last will and testament 
has (except in a few special instances^) but an inchoate, incom- 
plete and ambulatory operation during the life of the person who 
makes' it; changes may be made by his codicil afterwards; more- 
over, he may cancel and destroy such instruments at pleasure, exe- 
cute a later will, or conclude to dispense with a will altogether; 
provided only that he remains of sound mind and capacity, and 
exercises his unfettered choice concerning the final disposition of 

3. 3 Redf. Wills, 3d ed. 6; Cas. neglect to do so, without reasonable 
temp. Lee, 158; Swinb. pt. 6, c. 12, caiise after being cited for that pur- 
pl. 2; Brick's Estate, 15 Abb. Pr. 12. pose, he may be committed to j;nl, 

4. A Massachusetts statute requires and will be held further liable in 
every custodian of a will, within damages to any party aggrieved, 
thirty days after the notice of the Mass. Gen. Stats, c. 92, § 16. See 
death of the testator, to deliver it also 127 P. 141, 53 Colo. 361; 136 N. 
into the probate court which has Y. S. 218. 

jurisdiction of the case, or to the 5. See Schoul. Wills (Vol. 1). Part 

executors named in the will. For V, wills upon consideration, etc. 

941 



§ 1055 EXECUTORS AXD ADMINISTEATOKS. [PAET II. 

bis estate. But the moment one dies, the instrument or instni- 
inents, if any, which he has left duly executed, constitute his last 
will and testament, and acquire conclusive force and operation as 
such ; and to prove and establish what purports to be such last 
will and testameait, so that it may fully operate, or, more generally, 
to ascertain whether, in a legal sense, any last will and testament 
was left at all, becomes, in the first instance, the peculiar province 
of the local probate court of his last domicile; and, besides, the 
full appointment with qualification of the person or persons who, 
according as he died testate or intestate, may be entitled to man- 
age and settle the estate and represent the deceased.^ 

The fact of the testator's death, superadded to that of last 
domicile,^ is thus essential to our modem probate jurisdiction. 
Death is frequently a fact so well known in the neighborhood, 
that the court requires no proof ; often it is assumed from the alle- 
gations of the petitioner for probate and letters; and familiar 
rules of evidence may be adduced as to presumptions of death after 
a long absence, or disappearance, without being heard from.^ But 

6. 3 Redf. Wills, 3d ed. 1, 2; Wms. der seal issue during the testator's 
Exrs. 7th ed. 6, 10, 319. We have life. The proceeding was simply pre- 
seen that one's will may be received cautionary against loss of the instru- 
for deposit, under suitable English and ment and could not impair tlio testa- 
American statutes, at the registry of tor's right to alter or subsequently 
wills, while he is alive. Supra, § revoke. See Swinb. pt. 6, § 13, pi. 1. 
1053; 2 Wms. Exrs. 319. Such stat- A Michigan statute which attempted 
utes, of course, only provide a con- to provide for an ante mortem pro- 
venient place of deposit. The testa- bate was lately pronounced inopera- 
tor, having the right to revoke, may tive. Llojd v. Chambers, 56 Mich, 
withdraw the will, wlienever he de- 236, 56 Am. Rep. 378, 23 N. W. 28. 
sires, from such custody, during his 7. Supra, § 1015. 
lifetimo. 8. See supra, § 1001a, as to p'-e- 

Tlie earlier English books, liowevcr, sumptions and proof of death. Deatti 

make mention of proceedings which a is presumptively estabblished as a 

living te.stator might invoke on his fact by production of the probate of 

own petition; the elTect of which was one's will before a surrogate, and the 

to Iiave the will duly recorded and proceedings liad upon such probate, 

registered amoni; other wills. But Carroll v. Carroll, 6 Tliomp. & C. (N. 

pro->f so addiiwd had not the cfToct of Y.) 294. See Chamberlayne Evid. §§ 

probate, nor could autlienticatiop un- 516, 955. 

942 



CHAP. II.] PROBATE OF THE WILL. § 1056 

presumptions of death are only for convenience ; and if the person 
on behalf of whose estate proceedings were taken had not actually 
died, probate of the will may be aftei-wards annulled; inasmuch 
as there is no jurisdiction in the court over the property of the 
living,^ nor positive assurance that a particular will embodies the 
maker's final disposition of his property, nor certainty where he 
may actually reside at the time of his death.^ 

§ 1056. How soon after the Testator's Death should the Will be 
presented for Probate, 

The time after the testator's death when his will should be pre- 
sented for probate must depend somewhat upon sound discretion; 
distance, the facility of procuring witnesses and needful testimony, 
and the convenience of the executor and parties interested, boing 
circumstances of no little consequence in this connection. De- 
cency requires delay until after the burial has taken place; but, 
as a rule, the will of a deceased person should be produced for 
public custody as soon after the funeral as possible; whether this 
be in open court, or by first filing the instrument with the register, 
in order that citation may issue for probate later at some conven- 
ient court day, as in conformity with local practice. The oppor- 
tunity for a postponement of the judicial hearing for probate will 
sufiice for most purposes of further delay ; production of the in- 
strument by its individual possessor affording to the court the 
needful primary pledge of good faith. For delaying production 
of the instrument is one thing, and delaying proof of the authen- 
ticity and the issuing of letters another. English and American 
statutes accord in affording reasonable time and opportunity to all 
interested in this latter respect; while, as to the former, discour- 
aging every species of delinquency.^ 

9. D'Arusement v. Jones, 4 Lea, 2. English practice requires an ex- 

251, planation of the delay where one 

1. 1 Bl. Com. 502. " Nam omne seeks probate or administration, after 

testamentum morte consummatum the lapse of three years from the 

est; et voluntas testatoris est am- death of the deecased. 1 Wms. Exrs. 

bulatoria usque ad mortem." Co. 320. On the other hand, no probate 

Litt. 112. See § 1001a. or letters shall issue within seven 

943 



£ 1057 



EXJECUTOES A^'D ADMIXISTEATOES. 



[past n. 



But, however late, from one cans© or anotlier, probate may liave 
been delaved, the better practice, in the absence of a positive stat- 
ute of limitations, is to admit the will on due proof, at any time, 
to probate ; ^ though the authenticity of ancient instruments, whose 
establishment would tend to disturb estates long settled in good 
faith, ought only to be admitted upon the clearest testimony. In 
the absence of positive statute there is no definite limit to the time 
within which a will may be probated.* Xor, apparently, does an 
action lie against one for neglect to probate the will; the proper 
remedy for parties in interest being to cite the executor or custo- 
dian in the court of probate." 

§ 1057. Primary Probate Jurisdiction depends upon Last Domi- 
cile of Deceased; Foreign Wills, 
Jurisdiction over the probate of wills, as over the settlement 



days from the death of the party de- 
ceased, lb, American practice and 
the tenor of statutes, English and 
American, requiring a will to be pro- 
duced from private custody, and for- 
bidding all intermeddling with an es- 
tate without a judicial appointment. 
all tend to hast-en the presentment of 
the will for probate. The Eng. Stat. 
55 Geo, III. c. 184, imposes a penalty 
for administering without proving 
within six months. 1 Wms. Exrs. 
319. niirty days' dflay after 
knowledge of the death in producing 
the decedent's will is all that the 
policy of some American statutes ap- 
pears to tolerate. Mass, Gen. Stats. 
c. 92, § 16. 

3. A will may be probated in 
Massachusetts more than twenty 
years after the testator's death, for 
the purpose of establishing title to 
real estate; although original admin- 
istration be confined by statute to 
twenty years. Shumway v. Hol- 



brook, 1 Pick. 114; Waters v. Stick- 
ney, 12 Allen, 12, 90 Am. Dec. 122. 
See Van Giesen v. Bridgford, 18 Hua 
(X. Y.) 73. After four years from 
the death of a testator a will, by the 
Texas rule, may be probated for the 
purpose of perfecting a title al- 
though letters cannot issue. Ryan v. 
Texas Pacific R., 64 Tex. 239. The 
English rule appears to leave the 
matter to judicial discretion as to 
time, but all the circumstances are 
taken into consideration. 1 Jarm. 
Wills, 218. See 40 N. J. Eq. 3, 
where a surviving husband did not 
prove his wife's will and it was al- 
lowed probate after his death. 

4. Rebhan v. Mueller, 114 111. 343, 
55 Am. Rep. 869, 2 N. E. 75, See 
143 X. C. 345, 55 S. E. 784 (50 
years); 111 N. Y. S. 491. 631 (30 
years) ; Hanley v, Kraftczyk, 96 
N, W. 820, 119 Wis. 352 (real es- 
tate). 

5. Stephens Re, (1898) 1 Ch. 162- 



944 



CHAI'. II.] PKOBATE OF THE WILL. § 1057 

generally of the estates of those dying testate or intestate, is de- 
termined primarily by the last domicile of the person deceased.'^ 
And such jurisdiction being usually entertained by counties, par- 
ishes or districts, both in England and the American States, it 
follows that tJbe county, parish, or district probate court of tho 
testator's last domicile has exclusive original authority to pass 
upon the validity of instruments purporting to constitute his last 
will, to admit or deny probate of the same, and to grant letters 
as for testacy or intestacy. Of foreign executors and administra- 
tors, and their powers, we shall have occasion to speak later; but 
it should be here observed that the probate jurisdiction, rightfully 
taken in the proper county or district, has full domestic operation 
in the Sitate or country of the testator's last domicile, and gives to 
the executor or administrator a corresponding authority to be 
rightfully exercised. And if foreign letters and authority be need- 
ful for facilitating a settlement of the estate, where suit must be 
brought abroad, or part of the property is there situated, the first 
requisite is to probate the will, if there be one, and procure letters 
testamentary within the proper domestic jurisdiction. The filing 
of a copy of the probate of such will, or its duly attested record 
serves, in the foreign probate registry — with, perhaps, security 
given or ancillary letters procured besides in the foreign jurisdic- 
tion — the purpose needful, according as the foreign statute in 
question may prescribe.^ 

6. Supra, § 1015; 3 Redf. Wills, 2d deceased non-resident, the sam« hav- 
ed. 12, 13. ing been dulj- probated in the State 

7. Hood V. Lord Barrirgton, L. R. or country of his last domicile. But 
6 Eq. 218; Carpenter v. Denoon, 29 such authentication of a foreign pro- 
Ohio St. 379; Riley v. Carter, 74 S. bate is inadmissible if it appears that 
E. 463, 158 N. C. 484; Campbell v. the testator was domiciled here in- 
Sheldon, 13 Pick. 8; Ives v. Allyn, stead of abroad at the time of death; 
12 Vt. 589; Bromley v. Miller, 2 for in such case there should have 
Thomp. & C. (N. Y.) 575; Porter v. been original probate here. Stark v. 
Trail, 30 N. J. Eq. 106. Local domes- Parker. 56 N. H. 481; Converse v. 
tic statutes usually provide for filing Starr, 23 Ohio St. 491. As to the 
an authenticated copy of one's will, mode of exemplification of a foreign 
for domestic convenience, in case of a will in New York practice, with pe- 

60 945 



§ 1058 EXECUTOKS AND ADMIXISTKATOKS. [PAET II. 

The will of a person domiciled in a certain coimtv and State 
or country, should be admitted to original probate in the domestic 
jurisdiction, without regard to the place where the will was made 
or where such person happened to die.^ And the judgTiieiit of the 
local court having original jurisdiction ought to be held conclu- 
sive as to the probate, unless vacated by proceedings on appeal, 
or impeached by direct proceedings for setting the probate aside.^ 
One may make a will designed to operate upon property in one 
country and another will for property in another country.^ 

§ 1058. Testamentary Papers Ineffectual until after Proper Pro- 
bate; Probate relates back. 

In general, the necessity of a probate is fully sustained by mod- 
em practice in England and this country. The production of what 
purports to be a will can be of no legal force in the courts, how- 
ever respectable the document, without this public record and seal 
of authenticity ; and neither the temporal courts in England, nor 
the courts of law and equity in the United States, will take cogni- 
zance of the testamentary papers, or of the rights dependent on 
them, until after their proper probate.^ 

tition by one as agent or attorney of 3 N. H. 517; Wood v. Mathews, 53 

the foreign executor to receive letters Ala. 1 ; Pitts v. Mclser, 72 Ind. 469. 

in his stead, see Russfdl v. Hartt, 81 A will not regularly probated cannot 

N. Y. 19. See also 74 N. E. 815, 216 be used to establish title to lands de- 

111. 1G6; 98 S. W. 492. 200 Mo. 492. vised. Willamette Falls Co. v. Gor- 

Tlie foreign jurisdiction, where let- don, 6 Orcg. 175. 
ters and authority are requisite, need But in some States, contrary to 

not wait for a probate first in the rule, it appears to be considered that 

domestic jurisdiction. 63 A. 38, 73 probate is not essential to the validity 

N. H. 495; Chadwick's Will, 82 A. of the will, and that rights may be 

918, 80 N. J. Eq. 168. protected by showing its validity in 

8. Converse v. Starr, 23 Ohio St. any court. Arrington v. !McLemore, 
491; 55 S. E. 652, 129 Ga. 67. And 33 Ark. 759. Cf. 127 N. Y. S. 158. 
see supra, § 1021. The fact that a will has not yet been 

9. Williams, Re, 1 Lea, 529. proved does not prevent a devisee of 

1. Astor's Goods, L. R. 1 P. D. 150; lands or a party under liim from 
(1894) P. 260. bringing ejectment. Richards v. 

2. Rex V. Nethcrspp], 4 T. R. 2.''>S; Pierce, 44 Mich. 444, 7 N. W. 54. 
3 Redf. Wills, 12; Strong v. Perkins, 

94G 



CHAP. II.] PROBATE OF THE WILL. § 1059 

Probate, however, having been duly procured, the probate is 
said to relate back to the time of the testator's death; and this, 
apparently, for the convenience of the executor or of the admin- 
istrator with the will annexed, to whom letters thereupon issue ; 
in order that his title and rightful authority may be adequate for 
the proper management and settlement of the estate, and so as to 
protect needful acts on his part prior to the probate.^ 

§ 1059. What Testamentary Papers Require Probate; Wills of 
Real and Personal Property. 

It is laid down in the older English books, that if an instrument 
be testamentary, and is to operate on personal property, probate 
must be obtained whatever its form ; but that a will which clearly 
respects lands alone ought not to be probated ; while, if the will 
v/as a mixed will, concerning both land and personal property, 
probate is proper, though such probate is without prejudice to the 
heirs of the land.'* But such cardinal distinctions, which the Eng- 
lish chancery asserted somewhat jealously against the ecclesiastical 
courts in times past, with the intent of confining the spiritual 
jurisdiction as closely as possible to goods and chattels, is mater- 
ially done away, under the Court of Probate Act of 1857, which, 
seeking to prevent the mischief of double trials of proof of the 
same will, requires heirs, devisees, and parties in interest, to be 
cited in wherever the formal probate of a will is to affect real 
estate, and declares that such course having been pursued, the pro- 
bate decree, establishing the will as valid, shall bind all such 
parties.^ 

3. 1 Wms. Exrs. 293; 9 Co. 38 a; probated. O'Dwyer v. Geare, 1 Sw. 
Plowd. 281; Ingle v. Richards, 28 & Tr. 465; Barden's Goods. L. R. 1 P. 
Beav. 366; Hood v. Lord Barrington, & D. 325. And so, wherever there is 
L, R. 6 Eq. 218, 224. doubt whether the will concerns land 

4. 1 Wms. Exrs. 388, 389; 3 Salk. or not, since probate may be needful 
22; 2 Salk. 553. It is admitted, too, in such eases and can do no harm. 1 
that where executors are nominated Phillim. 8, 9. 

in a will purporting to dispose of 5. 1 Wms. Exrs. 341, 388; Act 20 

lands alone, the document should be & 21 Vict. c. 77, § 64 (1857). The 

947 



§ 1060 



EXECUTORS AXD ADMINISTEATOES. 



[part II. 



In most parts of the United States discrimination between wills 
of real and of personal property is abolished, and by appropriate 
statute it is expressly pro^dded that no will, whether of real or 
personal estate, shall be effectual to pass the same, unless it has 
been duly proved and allowed in the probate court; and the pro- 
bate of a will devising real estate shall be conclusive as to its due 
execution in like manner as of a will of personal estate.® The 
uniform practice, moreover, of American probate courts is to issue 
a citation to all heirs, next of kin and parties interested before any 
will is admitted in solemn form to probate, whether the testator's 
estate consists of real or personal property or both together^ 

§ 1060. Testamentary Papers requiring Probate; Various Kinds 
stated; Wills, Codicils^ etc. 

All codicils ought. to be presented for probate, together with tlie 
original will ; and this even though a particular codicil contains 



effect of the old English practice was 
to require the registrar of probate to 
attend the temporal court whenever 
in a suit involving title to land proof 
of a devise was needful under a mixed 
will already admitted to probate. 
Chancery regularly enforced such 
production from the registry, though 
Lord Eldon expressed his surprise 
tliat such a jurisdiction should have 
been exercised. 1 VVms. Exrs. 390, 
391; 1 Atk. 628; 6 Ves. 134, 802; 7 
Ves. 293. 

6. Shumway v. Holbrook, 1 Pick. 
114, 11 Am. Dec. 153; 1 Wms. Exrs. 
293, note by Perkins; Mass. Pub. 
Stats, c. 127, § 7; Wilkinson v. Le- 
land, 2 Pet. 655; Bailey v. Bailey, 8 
Ohio, 245; Schoul. Wills, §§ 252-254 
(Vol. 1). 

7. Local peculiarities do not afTcct 
the general rule in this country. Un- 
der the law of Ijouisiana it appear.s 
that the probate of a will is not con- 



clusive against parties in possession 
of property which the executor seeks 
to recover against them unless they 
were parties litigant in the probate 
proceedings. And when the validity 
of a will is brought in question in- 
cidentally on a question of title to 
property, it is open for investigation 
in any court in which the title may be 
litigated. Fuentes v. Gaines, 1 
Woods, 112. In Tennessee a will not 
sufficiently attested to pass realty 
may be established as to personalty. 
Davis v. Davis, 6 Lea, 543. See 
Hegarty's Appeal, 75 Penn. St. 503. 
And in the codes of some of our 
States, fewer witnesses are required 
to a will of personal than one of real 
property; a will in the testator's own 
handwriting being likewise favored 
specially as to attestation. Wms. 
Exrs. 67, note by Perkins; Schoul. 
Wills, Part IIL (Vol. L). 



948 



CHAP. II.] PKOBATE OF THE WILL. § 1060 

no disposition of property, but simply revokes all former wills.' 
Indeed, every testamentary paper should be presented at whatever 
time discovered, whether before or after a regular probate, and 
whether it merely confirms the will already proved, or, on the 
other hand, wholly or partially revokes it.' A paper, it is said, 
which disposes of no property, has, generally speaking, no testa- 
mentary character so as to enable probate thereof to bo granted.^ 
Yet a will might have been executed for the express purpose of 
designating executors, and on that account alone deserve admit- 
tance to probate.^ Of two or more conflicting testaments it may 
be needful for the court to determine which one remains in force 
by way of later revocation, or whether different papers deserve 
probate as together containing the last will of the deceased.^ And 
a will may be properly admitted to probate even though it takes 
effect in certain provisions only, and is void as to others ; ^ and not- 
withstanding the devisee can take nothing because of the will's 
indefiniteness.'*^ 

A will which is made in execution of a power requires to be 
propounded for probate like any other will,^ subject to what we 
have said concerning wills which relate to real estate only.^ But 
a paper executed as a last will, which does no more than to name 

8. Brenchley V. Still, 2 Robert. 162; Bent's Appeal, 35 Conn. 523; 38 
Laughton v. Atkins, 1 Pick. 535. Conn. 26. 

9. Weddall v. Nixon, 17 Beav. 160. 4a.. Canoway v. Fulmer, 54 So. 624, 
As to the proper steps to be taken 172 Ala. 283. For the due construc- 
for establishing a will later in date tion of a will, or the actual condi- 
found after the decree of probate, see tion of a testator's estate, solvent or 
Harrison v. Every, 34 L. T. 238. insolvent, is for further ascertain- 

1. Van Straubenzee v. Monck, 3 ment after a probate and independ- 
Sw. & Tr. 6. ently of it. Schoul. Wills (Vol. I.), 

2. See Barden's Goods, L. R. 1 P. § 492a. 

& D. 325; 1 Wms. Exrs. 227, 389; 5. Goldsworthy v. Crossloy. 4 

Lancaster's Goods, 1 Sw. & Tr. 464 ; Hare, 140 ; Hughes v. Turner, 4 Hagg. 

Miller v. Miller, 32 La. Ann. 437. 30; Tattnall v. Hankey, 2 Moore, P. 

3. See Hughes v. Turner, 4 Hagg. C. 342. 

30; Morgan's Goods, L. R. 1 P. & D. 6. 4 Hagg. 64; supra, § 59; Schoul. 

323. Wills, § 299 (Vol. L). 

4. George v. George, 47 N. H. 27; 

949 



§ 1061 EXECUTORS AND ADMIXISTEATOES. [pART II. 

a guardian for one's children, or appoints to a situation after one's 
death/ and neither disposes of property nor designates an executor, 
is not entitled to probate. 

§ 1061. Testamentary Papers requiring a Probate; Secret Wills; 
Extraneous Documents referred to. 

Sealed packets, directed by a testator to be delivered by the 
executor to persons unopened, cannot, consistently with a rightful 
settlement of the estate upon a representative's official responsi- 
bility, be so delivered; but the packets may be opened in court 
and the directions receive probate or not, according to the circum- 
stances ; the usual reservation as to a sufficiency of assets applying, 
of course, if the contents are to go as legacies.^ The civil law 
appears to have provided a special form of probate for closed tes- 
taments; but with us no testamentary disposition can be valid 
and at the same time secret in the sense of evading successfully 
the scrutiny of a probate court or a public registration after the 
testator's death, for the convenience of all parties interested.® 

But extraneous documents may be referred to in a will by way 
of regulating details in the manner of disposition ; and over such 
documents the testator and his representatives and the court of 
probate gain no control. Thus, sole probate may be made of a will 
which directs a settlement of the cstat-e after the manner of some 
will probated in a different jurisdiction, or according to the trusts 
in a certain deed which those entitled to possession refuse to give 
up or have copied;^ 

7. Morton's Goods, 3 Sw. & Tr. tiplyinpr documents for presentation 

422. But qu. whether this holds true to probate. It is generally a good 

in States where the probate court has rule to make a new instrument, com- 

original jurisdiction in the appoint- plete in its provisions, and destroy 

ment of guardians as well as execu- all previous ones. 

tors. Schoul. Wills, § 294 (Vol. I.); 8. Telhara v. Newton, 2 Cas. temp. 

2 Sw. & Tr. 479. I>'e, 40. 

A testator who changes his will 9. See Swinb. pt. 16, § 14, pi. 1 ; 

from time to time during his life, Ooldolph. pt. 1, c. 20, § 4. 

would do well to guard against mul 1. Sibthorp's Goods, L. R. 1 P. & 

9oO 



CHAP. II.] PEOBATE OF THE WILL. § 10 G2 

§ 1062. Instruments which do not purport to be Testamentary. 

Equity will uphold a paper sometimes as a declaration of trust 
by one deceased, though the same be not entitled to proof as a 
will.^ The memorandum of an intended will not duly executed 
has also been admitted in the English probate out of respect to the 
testator's manifest intentions.^ But a wiser policy should check 
any such inclination in the courts; for under our modem juris- 
prudence the evil is far less of distributing an estate among kin- 
dred as intestate than in curtailing their equal rights under any 
disposition which falls short of tlie testamentary attributes. It is 
held that, in various instances, if a testator refers in his duly 
executed and attested will to another paper which has already been 
written out, clearly and distinctly identifying and describing it, so 
that it may safely be incorporated in so solemn a disposition, that 
paper should be probated as part of the will itself. But a later or 
even a contemporaneous writing, having the character of a mere 
letter of instructionsi to one's executors, and not being executed 
and attested as the law requires, can have no testamentary obliga- 
tion, and should not be admitted to probate ; and, in general, an 
extraneous unattested writing, to be incorporated with the will 
itself, should be reasonably identified by reference as part of it and 
as existing when the will was executed.* Instruments which do 

D. 106. Where another such will or a will need not usually be recorded 

document is rw.errrd to, it is fair, or probated with the will itself, 
wherever practicable, to have an au- 2. Smith v. Attersoll, 1 Russ. 266 ; 

thenticated copy theerof filed in the Inchiquin v. French, 1 Cox, 1. 
registry, without incorporating it in 3. Torre v. Castle, 1 Curt. 303 ; s. 

the probate. Astor's Goods, L. R. 1 c. on appeal, 2 Moore, P. C. 133. But, 

P. & D. 150. Here there were found as Williams has observed, such a pa- 

an English will and codicils, designed per tvas not regarded as an ac'.ual 

for English property, and an Ameri- testamentary disposition, but as 

can will with nine codicils for dispos- fixed and final instructions which 

ing of property in America. (1896) sudden death alone prevented the 

P. 65. See Schoul. Wills, § 281 writer from executing in due form. 

(Vol.1.). And see also as to a bulky 1 Wms. Exrs. 109, 110; Barwi.-k v. 

catalogue made part of a bequest, Mullings, 2 Hagg. 225; Hattatt v, 

Balme's Goods, (1897) P. 261. But Hattatt, 4 Hagg. 211. 
an extraneous writing referred to in 4. Zimmerman v. Zimmerman, 23 

951 



§ 1063 EXECUTOES AXD ad:mi]S'^isteatoes. [part II. 

not purport to be testamentary are usually excluded from, pro- 
bate.^ 

§ 1063. Modern Laxity as to Papers of a Testamentary Character 
corrected by Statutes requiring Attestation, etc. 

All papers, however, which one may have executed with the 
formalities requisite by the law of his last domicile, and which 
purport, moreover, to dispose of any or all of his estate upon his 
decease, ought to be presented to the probate court for such de- 
cision as may be proper concerning their testamentary' character. 
The modem English decisions, prior to statutes of Victoria's 
reign, show a very liberal, not to say lax, course of dealing with 
wills of personal property in this respect,^ the ancient rule having 
been comparatively stringent.'^ And in both England and the 
United States, it must be considered the rule of the present day, 
by a great preponderance of authorities, that the form of a will 
is by no means essential to its testamentary character; for if the 
writing or writings duly witnessed, establish an intent to operate 
a disposal, in whole or in part, of one's estate upon the event of 
his decease, a probate is proper.^ Hence the inference, likewise 
supported by abundant citations, that even though one may have 
intended to dispose by some instrument of a different sort, and not 

Penn. St. 275; Ludlum v. Otis, 15 sonal property. 1 Wms. Exrs. 7th 

Hun (N. Y.) 410; Schoul. Wills, §§ ed. 66. 

2S1, 282 (Vol. 1.), and cases cited. 7. See Schoul. Wills (Vol. I.), §§ 

5. Minot V. Parker, 75 N. E. 149, 265-269, and cases cited. 

189 Mass. 176. Tapley v. Kent, 1 Robert. 400. 

6. "There is nothing that requires See 1 Wms. E.\rs. 104, 105; 1 
fo little solemnity as the making of Rcdf. Wills, 2d ed. 167; Passmore v. 
a will of personal estate, according Passmore, 1 Phillim. 218. That the 
to the ecclesiastical laws of this modern rule is even mon^ danger- 
realm ; for there is scarcely any paper ously lax with respect to establishing 
writing whicli they will not admit a-s gifts cmisa mortis of incorporeal per- 
euch." Per Lord TIardwickc in Ross sonalty. see 2 Schoul. Pers. Prop. 182. 
V. Ewer, 3 Atk. 163. Before the opnra- 8. 1 Wms. Exrs. 7th ed. 104-107, 
tion of Stat. 1 Vict. c. 26, no solera- and cases cited; also Perkins's n. to 

, nitica were needful for a will of per- ib.; Schoul. Wills, §§ 265-274, passim, 

with numerous citations. 

952 



CHAP. II.] 



PEOBATE OF THE WILL. 



§ 10G3 



by a will, yet his disposition being incapable of taking effect in 
the one shape, it might take effect in the other; for, as the person 
had, if not the mind to make a will, the mind, nevertheless, to 
dispose in such a manner as wills operate, his intention may well 
be executed.^ A will to be valid requires the genuine animus 
testandi; the mind should act freely and understandingly to this 
intent.^ 

Under such statutes, however, as insist explicitly upon a for- 
mal method of execution,^ much of this refinement upon the animus 



9. 1 Wms. Exrs. 104-107; Master- 
man V. Maberly, 2 Hagg. 247; Mor- 
gan's Goods, L. R. 1 P. & D. 214; 1 
Eedf. Wills, 167. As to whether an 
instrument, invalid as a deed, but in- 
tended to operate as such, can take 
effect as a will, the English rule is 
very subtle. Schoul. Wills (Vol. I.), 
§ 270. 

Papers which are not on their face 
of a testamentary character require to 
liave the animus testandi proved; 
while a regular paper speaks for itself 
on that point. Thorncroft v. Lashmar, 
2 Sw. & Tr. 794. An instrument mani- 
festly executed as a will is to b? ad- 
mitted to probate without considering 
its eflfect. Taylor v. D'Egville, 3 Hagg. 
206. And see as to various brief and 
informal instruments manifesting the 
testamentary intent, 1 Redf. Wills, 
4th ed. 165-181, and cases cited; 
Schoul. Wills (Vol. I.), §§ 265-274, 
where this subject is treated at length. 

As to a will executed in contempla- 
tion of a particular casualty which 
did not happen and conditional wills 
generally, see 1 Redf. Wills, 176, 177, 
and cases cited; Schoul. Wills, § 285 
et seq. (Vol. 1) and cases cited. The 
point of inquiry is whether the con- 
tingency was the occasion of execution 



simply, or the condition on which the 
will was to become operative. 

1. Schoul. Wills (Vol. I.), §§ 278, 
279. 

2. There are great variations in our 
States concerning the number of wit- 
nesses required for the due attesta- 
tion of the will, though two suffice 
largely or otherwise three are enough. 
In England, prior to 1838, a devise 
of real estate had to conform to the 
statute of frauds in certain respects 
which did not apply to wills of per- 
sonal property; the latter being, of 
necessity, reduced to writing, gener- 
ally speaking, but under the statute 
requiring no further formality; so 
that the same will, if professing to 
dispose of both real and personal es- 
tate, might operate in the latter re- 
spect, but not in the former. But the 
new statute, 1 Vict. c. 26, which took 
effect in 1838 (permitting wills pre- 
viously executed to remain valid), 
abolished this mischievous distinction 
for the future, and superseded the old 
provisions of law by new ones which 
exacted the same formalities of exe- 
cution, whatever the description of 
property; declaring that no will, ex- 
cept those of soldiers and mariners, 
should be valid unless in writing, ex- 



953 



§ 1064 EXECUTOES AND ADMIN^ISTEATORS. [PAET II. 

testandi is dispensed with, and the law of wills becomes restored 
to its legitimate footing. Orders, bills of exchange, and papers 
hastily drawn up may even tliu5 demand judicial recognition as 
wills; but the solemnity of an execution with attestation affords a 
reasonable assurance that the deceased intended thereby a testa- 
mentary act with its attendant consequences to his estate after 
death. The witnesses become sponsors to the probate court when 
the maker's own lips are silent.^ 

There is all the more reason for hedging testaments about with 
peculiar formalities, inasmuch as our courts permit a testamentary 
disposition of one's estate to be partial as well as total, and in some 
instances appear even to have considered that the same instniment 
might operate partly in praesenti and partly after death ; ^ so that, 
except for the safeguards of statute execution, probate would aid 
little the sound policy of a general and equal distribution. Noth- 
ing causes such private heartburnings or so wrecks the peace of 
families as the ill-considered will of an ancestor, and the bestowal 
of preferences out of his estate to particular kinsmen or strangers, 
which they may be suspected of having procured unfairly. 

§ 1064. By whom the Will should be propounded for Probate. 

The duty of propounding the will for probate and maintaining 
its validity devolves naturally upon the person or persons desig- 
nated to execute its provisions.^ Nor ordinarily can the designated 

€cuted at the foot by the testator, and tion by the witnesses is in general re- 
acknowledged in the presence of two quired by English or American stat- 
or more witnesses. 1 Wms. Exrs. 66, utes. Schoul. Wills, Part III., c. 3, 
67. Hence English citations should passim. 

be distinguished under these two sys- 3. Schoul. Wills (Vol. I.), § 279. 
terns by the American practitioner of 4. See Doe v. Cross, 8 Q. B. 714. 
this day who has been accustomed to But cf. as to whether the same in- 
solemn forms of execution under his strument can operate both as a deed 
local law. Our American statutes and a will. Thompson v. Johnson, 19 
which are of local origin present Ala. 59. See Devecmon v. Devecmon, 
great variety, but on the wliole treat 43 Md. 335. 

real and jiersonal estate alike. Schoul. 5. See Hurd v. Reed, 102 N. E. 

Wills (Vol. I.). Part 111., cs. 2, 3. 1048, 260 111. 154. 
But no particular form of att.sta- 

954 



CHAP. II.] PROBATE OF THE WILL. § 10G4 

executor relieve himself of this duty except by filing his renuncia- 
tion in clue form as of probate record, and discharging himself of 
custody in a prudent manner. But the executor might be absent 
or incapacitated for service, when the emergency, so often unfore- 
seen, of the testator's death arose, or else in culpable default. Pro- 
bate, and more especially the production of the document for pro- 
bate custody, is transcendent, however, to all such mischances, and 
the public necessity of clearing titles and placing the dead person's 
estate in due course of settlement for the benefit of creditors and 
all others interested, paramount to the right of any particular 
person to execute the trust. AVlien the person entitled renounces 
or fails to qualify, the court has recourse to the appointment of an 
administrator with the will annexed; and in case of protracted 
contest or inevitable delay from one cause or another, may commit 
the estate to a temporary or special administrator for collection 
and preservation of the property ; all of which will appear more 
fully hereafter.'' But the will itself must be produced before the 
court or register, whoever may be its custodian ; and the death 
having conferred a probate jurisdiction, any person interested, or 
who believes himself interested in the estate of the deceased, may 
petition for citation to have the will brought into the court. Of 
a custodian's excuses for delay or non-production under such cir- 
cumstances the court shall judge.^ 

6. See c. 4, ^J'''^*, as to aclministra- detailed by the local statute. A pro- 
tion. bate judge should entertain a petition 

7. Godolph, pt. 1, c. 20, § 2; 3 Redi. for the allowance of a will wherever 
Wills, 2d ed. 45; 1 Wms. Exrs. 318- the law authorizes him to do so; and 
320; Foster v. Foster, 7 Paige, 48. It it is unimportant that the petition 
is matter of public interest that the applies under the wrong statutes, 
will should be produced. Any one ex- Schober v. Probate Judge, 49 Mich, 
pecting a legacy may thus petition, 323, 13 N. W. 580. 

as the old books say, " to the intent Under some cod?s the clerk or reg- 

that they may thereby be certified ister may give notice and t^ke all ini- 

whether the testator left them a leg- tial steps for probate, whenever any 

acy." Godolph. ib. The jurisdiction one files the will at his office. 107 

of the local probate court for thus Iowa, 3S4. 
subserving public policy is usually 

955 



§ 1066 EXECUTORS AXD ADMINISTEATOES. [PAET II. 

§ 1065. Petition and Proceedings for Probate, etc. ; Probate in 
Common Form and Probate in Solemn Form. 

Any one, tlierefore, who claims an interest under wliat purports 
to be the will of the deceased, or who wishes to discharge himself 
of its custody, may have the instrument seasonably surrendered 
into the probate custody. And it is held that, whenever the ex- 
ecutors decline to offer an instrument for probate, any one claim- 
ing an interest under it, and not a mere intruder, may present it 
in his stead. ^ Usually, however, the petition for probate embraces 
that for the appointment of executor or administrator with the 
will annexed, and is presented by the party claiming the office; and 
under the simple probate practice of our American county courts, 
the petitioner sets forth, in a printed blank, the facts of death and 
last domicile of the deceased, the names and places of residence of 
the surviving widow or husband and next of kin, and, alleging that 
the paper or papers presented constitute the last will and testa- 
ment of the deceas^, prays his appointment, making due refer- 
ence to the foundation of his claim for the office, and his willing- 
ness to qualify according to law.^ 

Probate law recognizes two modes of proving a will: (1) in 
common form; (2) in solemn form, or, as it is said, per testes, or 
by form of law. The essential distinction consists in a careful 
establishment of the validity of the will by proof under the latter 
method, but not under the fonner; tliough the line is not drawn 
with uniform exactness as respects English and American practice 
on this point. 

§ 1066. Probate of Will in Common Form. 

(1) As to the first method, probate in common form applies only 

8. Ford V. Ford, 7 Humph. 92; 9. Smith Prob. Prac. (Mass.) 45. 

Enloo V. Shorrill, 6 Ired. 212; 8 The tostamcntary capacity of the tes- 

Blackf. 452; Vesey v. Day. 94 N. E. tator noe/1 not be allogod in the poti- 

481, 175 Ind. 406; 97 P. 2.3, 154 Cal. tion for probato. Hatbaway's Ap- 

91 (a crfditor) ; Ranicin's E.statf, 127 peal, 4G Mich. 326, 9 N. VV. 435. 
P. 1034, 164 Cal. 138 (assignee of a 
legatee). 

956 



CHAP. II.] PROBATE OF THE WILL. § 1066 

for convenience, expedition, and the saving of expense where there 
is apparently no questdon among the parties interested in the es- 
tate that the paper propounded is the genuine last will, and as such 
is entitled to probate. For contentious business before the court, 
probate in common form would be quite unsuitable. 

According to the English ecclesiastical practice, in which such 
probate originated, a will is proved in common form, as the books 
state, when the executor presents it before the judge, and in the 
absence of, and without citing, the parties interested, produces 
more or less proof that the testament exhibited is the true, whole, 
and last testament of the deceased; whereupon the judge passes 
the instrument to probate and issues letters testamentary under 
the official seal.^ An important feature of this practice, from the 
earliest times, has been the oath of the executor who propounds 
the will for probate as to all the essential facts ; and upon this oath 
60 great reliance has always been laid in England, that by means 
of it a will purporting to be duly attested by witnesses, undisputed 
and apparently regular upon its face, is readily probated. And 
the Court of Probate Act of 1857 (20 & 21 Vict. c. 77), treats 
the disposition of all saich non-contentious business as so purely 
formal that probate or letters of administration may in common 
form be procured from the registrar; direct application to the 
court being nevertheless permitted, as parties may prefer.^ 

1. Swinb. pt. 16, § 14, pi. 1; Wms. instance the will, if attested by two 
Exrs. 325. subscribing witnesses, might be ad- 

2. Wms. Exrs. 7th ed. 320-332, cit- mitted to probate upon the executor's 
ing sections of the above statute, to- oath, if all appeared regular; or, 
gether with rules and orders of court, when not attested at all, by an aflSda- 
To understand the English precedents vit of two persons (or in an extreme 
relating to probate in common form, case, of one person only) to the tes- 
one must distinguish between wills tator's signature. 1 Wms. Exrs. 327- 
made prior to 1838, when wills of 330, and cases cited; Brett v. Brett, 
personal property required no formal 3 Add. 224. In the latter instance, 
attestation by witnesses, and wills the rule is, to admit to probate in 
made since, upon which statut-e 1 common form any will which has a 
Vict. c. 26 {supra, § 63) operates, clear attestation clause upon the ex- 
requiring two witnesses. In the former ecutor's oath alone; but if the attes- 

957 



§ 1066 EXECUTORS AND ADMINISTKATOES. [PAET II. 

Where there is no conteiition, nor reason for contention, Eng- 
lish practice leaves the executor to his own choice as between 
taking probate of the will in common or in solemn form. x\nd it 
is obsei'vable of English probate in common form, not only that 
the mode of proof is thns made to subserve the executor's con- 
venience as far as possible, but that no notice need be given to 
persons interested in the will, nor opportunity afforded them to 
object to the proof. The registrar or court, however, is expected 
to hold the scales impartially, to require sufficient testimony for 
establishing the paper as prima facie a testamentary one, duly 
executed, and to admit nothing to probate but what appears entitled 
thereto. Where probate in common form is sought of an instru- 
ment which on the face of it is imperfect, probate will not be 
granted except upon affidavits stating a case sufficient to establish 
the will upon solemn proof, and upon the express or implied con- 
sent, moreover, of all the parties interested. I^ either can the con- 
sent of all interested parties procure the grant in common form 
of an apparently invalid will; nor can affidavits establish a doubt- 
ful instrument aside from citing in the parties interested or pro- 
curing their formal waiver of the doubt.^ In wills of modem date, 
requiring attestation by two witnesses under the statute 1 Vict. c. 
20, affidavits are called for where there is no regular clause of at- 
testation ; and if it thus appears that the will was executed in due 
compliance with the statute, the informality becomciS of no legal 
consequence ; but, if otherwise, the court rejects the prayer for 
probate in common form, leaving all interested parties to their 

tation clause does not speak clearly Tolclier's Goods. 2 Add. 10. Where 

and there remains doubt, to require minors are parties interested, probata 

ono of the subscribing witnesses to in common form cannot usually bi? 

testify as to regularity; this require- obtained of a will whicli is appar- 

ment being, howovtr, dispensed with cntly imperfect, since tlieir consent 

at discretion. 1 Wims. Exrs. 330-332, is unobtainable. Gibbs's Goods, 1 

and cases cited; Hare's Goods, 3 Curt. ITagg. 376. And as to issue born after 

54. probate, see Taylor's Goods, 1 Hagg, 

3. 1 Wms. Exrs. 329, and cases 642, 
cited ; Edmonds's Goods, 1 Hagg. 698 ; 

958 



CHAP. II.] TEOBATE OF THE WILL. § lOGT 

own course, whether to propound the will afterwards in solemn 
form or to proceed as in case of intestacy.* \Vhere executors pro- 
pound a certain instrument, claiming that another paper, which 
the testator executed afterwards, is invalid as a will, and such 
claim appears correct, besides which the persons interested in 
the late paper, after citation to propound it for probate, decline 
to do so, but assent to the earlier one, probate in common fonn 
of the earlier paper would be proper." 

§ 1067. Probate of Will in Common Form; the Subject con- 
tinued. 

The probate of wills in common fonn is permitted by the local 
laws of several American States, and, as in England, upon a rea- 
sonable assumption that the instrument presented is valid in all 
respects, and its proof not contested by any of the parties inter- 
ested.^ Thus, in New Hampshire, the mode of probate finds dis- 
tinct statute recognition ; not, hoavever, with a similar reliance 
upon the executor's oath ; for, American law commonly demanding 
attestation by witnesses, the judge approves in common form upon 
the testimony of one of the subscribing witnesses alone, without 
requiring the other witnesses to attend ; though approval is given 
apparently upon ex parte proceedings, as in England, so as to 
dispense with a citation to persons interested in the estate.'' 

4. Ayling's Goods, 1 Cxirt. 913. 638, 14 L. E. A. (N. S.) 991, 105 S. 

5. Palmer v. Dent, 2 Robert. 284; W. 858. And see as to New Jersey, 
1 Wms. Exrs. 332. 52 N. J. Eq. 319, 30 A. 19 ; 55 A. 75, 

6. Thus it is or has been recognized 65 N. J. Eq. 329. See, also, Dibble v. 
in New Hampshire, North Carolina, Winter, 93 N. E. 145, 247 111. 243. 
South Carolina, Georgia, Mississippi, 7. George v. George, 47 N. H. 44; 
Missouri, Tennessee, etc. Armstrong Noyes v. Barber, 4 N. H. 406. 

V. Baker, 9 Ired. 109; Kinard v Rid- The probate of a will in common 

dlehoover, 3 Rich. 258; Jones v. form is eflfectual and binding until 

Moseley, 40 Miss. 261, 90 Am. Dec. attacked and overturned in direct 

327; Martin v. Perkins, 5'6 Miss. 204; proceedings. Tucker v. Whitehead, 

Teckenbrock v. McLaughlin, 108 S. 58 Miss. 762, 45 S. E. 504, 118 Ga. 

W. 46, 209 Mo. 533; Hooks v. Brown", 436; Holt v. Ziglar, 79 S. E. 905, 

53 S. E. 583, 125 Ga. 122; 119 Tenn. 163 N. C. 390. Probate in solemn 

959 



§ 1068 EXECUTOKS AND ADMI^TISTEATOES. [PAET II. 

The intent of such probate in common form, granted ex parte, 
appears to be, that in case contest shall hereafter arise, solemn 
proof shall be required and the former decree may be set aside ac- 
cordingly; and a statute length of time (e. g., one year) perhaps 
is prescribed during which there reonains liability for such a con- 
test and the requirement of solemn proof. 

§ 1068. The Subject continued; American Statutes as to Non- 
Contentious Business. 

What in an American State would be called probate in common 
form may well vary still farther from the English method, as do 
the statutes in comparative historical sequence, both as respects 
the needful formalities of wills and probate jurisdiction. Cita- 
tion, for instance, being simple and inexpensive, or by a county 
newspaper publication rather than personal summons, and prac- 
tical distinctions between wills of real and of personal property 
being quite out of favor in our jurisprudence, the American pro- 
cedure usually refers probate to the judge, while the register, exer- 
cising no such functions, receives simple official custody of the 
so-called will, and upon the petition for probate placed upon his 
file at any time, orders a citation to be published, that all parties 
interested miay appear before the judge at the next convenient 
court day. An excellent local statute to which we shall presently 
allude again, provides that, when it appears to the court, by the 
written consent of the heirs-at-law, or other satisfactory evidence, 
that no person interested in the estate intends to object to the pro- 
bate of the will, the court may grant probate thereof upon the tes- 
timony of one only of the subscribing witnesses.^ Probate under 
such a statute is not rendered ex parte, or with the inconclusiveness 

form is ina<lo after all persons whose and cross-examine the witnesses to 

interests may be alFected have been the will, this does not waive the pro- 

duly notified and had an opportunity bating in solemn form. Gray v. Gray, 

to be heard. Tf a petition ia for pro- 60 N. IT. 38. 

biite in common form and without 8. Mass. Gen. Stats, c. 92, § 19; 

notice to the heirs, am] if iijion the post § 1070. 

hearing counsel appear for tlio heirs 

960 



CHAP. 11.] PEOBATE OF THE WILL. § 1069 

of a strict probate in common form, but stands to all intent as a 
probate in solemn form, because all tbe interested parties must 
have been brought within the scope of a judicial investigation, and 
their respective rights fairly protected. For, as we must bear in 
mind, the essential facts which entitle a paper legally to probate 
do not differ, whether the probate- is contested or not contested. 
And as between the executor named in a will and a subscribing 
witness, the testimony of the latter is the safer, as a rule, to depend 
upon in all cases of probate. 

§ 1069. Probate of Will in Solemn Form; English Practice. 

(2) As to the second method of proving wills. Probate in sol- 
emn form is the only kind suitable where the validity of the will is 
disputed; and to accept the English, though not, perhaps, the 
American, distinction, the only kind which a judge alone, and not 
a register, is empowered to grant, and which necessarily brings in. 
all interested in the estate as parties to the probate proceedings,. 
so as to be bound by the final decree. 

The English probate court has established rules for contentious 
business of this description. Thus, an executor may be compelled 
to prove a will in solemn instead of in common form by any one- 
of the next of kin, or a person interested in the will, such person 
having first filed a caveat in the court which takes jurisdiction of 
the estate of the deceased, to the intent that notice shall be given 
him of any application for probate, and afterwards responding to 
a notice sent from the registrar accordingly.* So, too, after an ex- 
ecutor has propounded and proved the will in common form, he 
may be put to the proof over again, per testes, in solemn form, by 
any person having an interest, and this (as it has been held) not- 
withstanding a long lapse of time, like thirty years, and the great 
inconvenience of procuring proper testimony, which the executor 

9. 3 Redf. Wills, 2d ed. 27 n.; Rules contentious business is held to com- 

and Orders under 20 & 21 Vict. c. mence, and the register enters the 

77, and 21 & 22 Vict. c. 95. Upon the cause upon the docket accordingly, 
party answering to his notice, the 

61 961 



1069 



EXECUTOIiS AND ADMINISTRATORS. 



[part II. 



may suffer in consequence.^ That the next of kin acquieiced in 
proving the will in common form does not debar him from insist- 
ing afterwards upon the solemn probate ; nor does even his receipt 
of a legacy under the will, provided he brings the legacy into court 
before pursuing his right, that its payment may abide the result 
of the contest." The right of the next of kin as such to require 
proof of the will in solemn form is absolute; and the same right 
extends to any party in interest. But some interest, however re- 
mote, must be shown before the executor can be put to so trouble- 
some a task. A creditor as such has no recognized interest in the 
probate, but only a right to ascertain whether there be assets sufli- 
cient to meet the debts.^ But as amicus curiae and without costs 
any creditor may contest a will ; and it would appear that when- 
ever the court or registrar finds that probate in common form 
ought not to be granted, probate in solemn form may be compelled, 
though the practice is to wait until some interested party opposes 
the will of his own motion.^ 

Finally, in English practice, the executor may himself propound 
the will in solemn form, in the exercise of a rightful discretion." 



1. 2 Wms. Exrs. 334; Godolph pt. 
1, c. 20, § 4. Swinburne, pt. G, § 14, 
pi. 4, seems to limit the time of com- 
pelling such solemn probate to ten 
years; but Williams considers this a 
typographical error. 1 Wms. Exrs. 
334, n. One who lets a long time 
elapse before requiring such probate 
can claim no indulgence of the court, 
and nothing beyond his legal rights. 
Blake v. Knight, 3 Curt. 553. Where 
no statute fixes the barrier, it is after 
all uncertain whether any specific 
time can be set for limiting such com- 
pulsion. 2 Phillim. 231. note. The 
ordinary statutes of limitation do not 
apply to the probating of a will. Ricks 
V. Wilson, 70 S. E. 47G, 154 N. C. 
282. 

2. Bcnbow's Goods, 2 Sw. & Tr. 44S; 



Core V. Spenser, 1 Add. 374; 1 Wms. 
Exrs. 336, 337. A legatee who has 
renounced aidministration with the 
will annexed is not debarred from 
compelling solemn probate. 2 Gas. 
temp. Lee, 241. 

3. 1 Gas. temp. Lee, 544; Menzies 
V. Pulbrook, 2 Curt. 845; 1 Wms. 
Exrs. 338. 

4. Cas. temp. Lee, 544; Menzies v. 
Pulhr(K)k, supi-a. The vexatious con- 
duct of a party in interest, who com' 
pels probate in solemn form, after 
permitting probate in common form, 
affords reason rather for condemning 
him in costs than for denying tlie 
right of compulsion. See Bell v. Aim- 
strong, 1 Add. 375. 

5. 1 Wms. Exrs. 335; 3 Redf. 
Wills. 3d cd. 27 n. 



9G2 



CHAP. II.] PROBATE OF THE WILL. § 1070 

And manifestly, wherever tJie executor is not of kin and sole 
legatee, but other large pecuniary interests are at stake, this must 
be his only prudent course; unless it is certain that the will is 
neither objectionable in itself nor likely to be objected to. In such 
case, the executor cites the next of kin and all others claiming an 
interest, to attend the proceedings ; and at the appointed time, the 
will having been proved by sufficient testimony, upon a heariug, 
and all direct contest, should any arise, and the proceedings in 
the case terminating in a probate of the will in solemn form, the 
judgment stands conclusive like other final judgments, unless ap- 
pealed from.'' 

Citation to all parties in interest is a feature incident to all con- 
tentious proceedings for establishing a will. And while English 
probate practice had reference formerly to wills of personal and 
not real estate, the Court of Probate Act of 1857 requires heirs- 
at-law and devisees to be cited whenever the validity of a will 
affecting real estate is disputed, on proving it in solemn form, or 
in any other contentious cause; and the validity of the will being 
once solemnly adjudged, the decree binds forever all persons thus 
cited or made parties.^ ' 

§ 1070. Probate of Will in Solemn Form; American Practice. 

Our American practice being simple and inexpensive by com- 
parison, less occasion is found than in England for duplicating 
probates ; and in most States one probate practically concludes all 
issues. This probate deserves the style of solemn form (though 
seldom designated as such), and borrows certain features, includ- 
ing the citation, from the English spiritual practice. One rule 
applying in general, whether the will relate to real or personal 
estate, or to both,^ the citation which issues from the register's 

6. lb. Even though certain next of oppose or be forever barred. Ratcliffe 
kin were not regularly cited ; yet v. Barnes, 2 Sw. & Tr. 486. 
their actual cognizance that probate 7. Act 20 & 21 Vict. e. 77, §§ 61, 

in solemn form was pending through 63; Wms. Exrs. 341; Fyson v. Wes- 
the citation of others binds them to trope, 1 Sw. & Tr. 279. 

8. Such, for instance, is the practice 

9G3 



§ 1070 



EXECUTOES AND ADMIXISTKATOES. 



[part II. 



office, upon the filing of the will accompanied by one's petition for 
letters testamentary or of administration, embraces in terms heirs- 
at-law, next of kin, and all other persons interested in the estate of 
the deceased. These are summoned to appear in court at a day 
named, and show cause, if any they have, why the will should not 
be allowed and the petition granted. This citation requires usually 
no personal service, but simply publication by copy in some desig- 
nated newspaper which circulates in the county of the testator's 
last domicile. Sometimes the petitioner is ordered to mail copies 
to the parties interested besides. Once a week, for three suc- 
cessive weeks, is the rule of publication in many States; though 
the form and terms of notice are largely in the discretion of the 
judge. Formal notice is dispensed with when the hedrs-at-law, 
next of kin, and all others interested in the estate of the deceased 
express in writing their waiver of notice in favor of the petition, 
being all sni juris; otherwise, the petitioner, having served the 
citation in accordance with the terms prescribed, makes his return 



in Massachusetts, which is similar to 
that of many other States. Smith 
Prob. Pract. 46; O'Dell v. Rogers, 44 
Wis. 136; Parker v. Parker, 11 Cush. 
519. In sonje parts of the United 
States personal service or summons 
is insisted upon, and newspaper pub- 
lication alone will not give jurisdic- 
tion of the parties interested suffi- 
cient to conclude tlicm. Tims notice 
must be mailed to each hoir or per- 
sonally served. Bartel's Estate, My- 
rick (Cal.) 130; Cobb's Estate, 49 
Cal. 600. In a suit to contest the 
validity of a will, the legatees and 
devisees are made indispensable par- 
ties in Ohio. Reformed Pre.sb. Church 
V. Nelson, 35 Ohio St. 638. But not 
in New York, wliere they may inter- 
vene but need not be cited. 2 Dem. 
(N. Y.) 160. And see 9 Lea, 571, as 
to a devisee. 

904 



The next of kin has an interest en- 
titling him to contest the probate of 
an alleged will; so, also, one who by 
the probate would be deprived of 
rights under a former will. Merrill 
v. Rolston, 5 Redf. (N. Y.) 220. And 
see 49 S. E. 668, 103 Va. 540. No 
appointment of a guardian ad litem 
for a minor interested is necessary. 
Mousseau's Will, 30 Minn. 202. 
Newspaper publication or personal 
service upon all parties interested, 
is permitted at discretion by mun/ 
local statutes; but the former course 
is the more convenient. One who has 
not been formally made a party to 
probate proceedings can make no mo- 
tion therein. 5 Redf. (N. Y.) 326. 
Local statutes should be consulted ou 
such points of practice. 



CHAP. II.] PKOBATE OF THE WILL. § 1070 

of the fact under oath, on or before the day fixed for the hearing. 
The procedure being thus essentially in solemn form, inasmuch 
as heirs, kindred and all other parties interested are sufficiently 
summoned and made parties to the hearing for probate, to contest 
then and there the will propounded, if they so desire, examine all 
the witnesses to the will and introduce counter testimony, the 
judicial hearing, whether upon contest or not, concludes the valid- 
ity of the will; subject, of course, to vacating probate on appeal, 
the submission of issues of fact to a jury, impeachment by direct 
proceeding, and other rights, such as local statutes and practice 
may secure. The decision of the county judge of probate is that 
of the lower tribunal of competent original jurisdiction, and con- 
cludes, while undisturbed, the common-law courts.^ And the only 
distinction worthy here of regard is, that while at the probate 
hearing the propounder of a will who anticipates a contest must 
be prepared to prove his case (subject to any adjournment of the 
case for good reasons), probate where no contention arises may 
be granted on the favorable testimony of a single subscribing wit- 
ness, as the statutes of some States expressly provide.^ 

9. Brown v. Anderson, 13 Geo. 171; mon form while avoiding its obvious 
1 Wms. Exrs. 333, Perkins's n. "We disadvantage. It is very desirable 
understand a probate in solemn form that such an enactment should be 
to be a probate made by a judge, after general in the United States. In some 
all persons whose interests may be States the propounder of a will is 
affected by the will have been notified bound to have all the subscribing wit- 
and had an opportunity to be heard nesses ready to testify (three or more 
on the subject." Richardson, C. J., in in number, as some States require, 
Noyes v. Barber, 4 N. H. 409. And for a due attestation though else- 
see Townsend v. Townsend, 60 Mo. where two may suffice) , even though 
246; Parker v. Parker, 11 Cush. 524; the attestation clause should appear 
Marey v. Marcy, 6 Met. 367; Dibble perfect and the will regular upon its 
V. Winter, 93 N. E. 145, 247 111. 243. face, and no one objects to the pro- 

1. Mass, Gen. Stats, c. 92, § 19; bate. See Allison v. Allison, 46 111. 
Dean v. Dean, 27 Vt. 746; Rogers v. 61; 3 Redf. Wills, 37, n. This ap- 
Winton, 2 Humph. 178 (as concerns pears a useless formality and expense 
a will of personal property). Such a to an estate. But even though all par- 
statute, in aid of a probate procedure ties interested waive objection, as 
so inexpensive as ours, secures the they might do by .collusion, the court 
main advantage of a probate in com- should not, we apprehend, admit a 

965 



§ 1073 EXECUTOKS AXD ADMINISTEATOES. [PAET II. 

There are States, however, iu which the probate in solemn form 
is distinguished, as in England, from that in common form, and 
where the due citation of all persons in interest to witness the pro- 
ceedings and the production of the will in open court, for proof 
upon testimony which they may fully controvert, becomes appro- 
priate rather to contentious cases, or else calls for an executor's 
discretion.^ In such States, the law sometimes limits the period 
within which a probate in common form may rightfully be con- 
tested.^ And in various States, as in English practice, an inter- 
ested party may file a caveat against the probate of a will he 
means to contest.^ 

§ 1071. Contest over Conflicting Testamentary Papers. 

Contest may arise over the probate of conflicting testamentary 
papers, each of which has been propounded as the instrument 
truly entitled to probate. Here the object being to ascertain 
w^hich, if either or any of them, embodies in testamentary form 
the last wishes of the deceased, proof of the instrument of latest 
date comes first in order.^ A similar rule applies where the valid- 
ity of particular codicils is in dispute. 

§ 1072. Agreement of Parties in Interest to conform; Com- 
promise, etc. 
Out of respect to the wishes of a deceased person, all parties in 

will to probate witliout calling for pleaded as res judicata in a direct 

another witness or better testimony, proceeding to determine the validity 

if the single subscribing witness fails of a will. Martin v. Perkins, 56 

to make satisfactory proof, and tlie Miss. 204. 

validity of the will is not made out 4. 47 N. J. Eq. 585; 62 Md. 342. 

as a prima facie case. Wliere a will is offered for probate 

2. Brown v. Anderson, 13 Ga. 171; in solemn form all the witnesses who 
supra. § 1067. are alive and within jurisdiction of 

3. 1 VVms. Exrs. 335; Perkins's n.; the court are needed. 72 S. E. 340, 
Parker v. Brown, 6 Gratt. 554; Roy 136 Ga. 859. See 136 P. 347; Wells 
V. Scgrist, 19 Ala. 810; Martin v. v. Thomf)son, 78 S. E. 823, 140 Ga. 
Perkins, 56 Miss. 204; 63 A. 38. 73 119, 47 L. R. A. (N. S) 722; 72 S. 
N. H. 495 (one year); 59 S. E. 687, E. 898, 137 Ga. 114. 

146 N. C. 2.54 (seven years). Probate 5. Lister v. Smith, 3 Sw. & Tr. 53. 

in the common form cannot be 

966 



CHAP. II.] 



PEOBATE OF THE WILL. 



§ 1072 



interest in his estate may agree to carry out provisions of a certain 
will or codicil, which, for want of due execution or other cause, 
must be pronounced invalid. To such agreements, all who may be 
lawfully entitled to share in the estate and its benefits (creditors 
not included) should be made voluntary parties. Such trans- 
actions, in fact, stand upon the footing of general dispositions by 
the rightful owners of property, and cannot operate to entitle to 
probate what was not, in the legal sense, a will.^* But where a 
pending contest has been adjusted out of court, by all the parties 
interested, and opposition is withdrawn to the particular will pro- 
pounded, such will may be passed to probate on prima facie evi- 
dence of its validity, leaving private arrangements concerning the 
distribution of the estate for the parties to prove and enforce in 
other courts, or carry out amicably among themselves.^ 



5a. But as to an ante mortem 
agreement of heirs to disregard see 
141 N. W. 615; Field v. Brantley, 77 
S. E. 559, 139 Ga. 437. 

6. See Greeley's Will, In re, 15 
Abb. Pr. N, S. 393. Courts of probate 
have no power or discretion to super- 
add other conditions or dispense with 
any of those enumerated in the stat- 
ute as necessary to admit a will to 
probate. Doran v. Mullen, 78 111. 
342. A New York surrogate has 
power to allow the proponent of a 
will whose admission was contested, 
to withdraw the same from probate; 
but semble not the testimony and pro- 
ceedings on an application for pro- 
bate. Heermans v. Hill, 4 Thomp. & 
C. 602; Greele/s Will, 15 Abb. Pr. 
N. S. 393. Compromises are permitted 
by local statute in various States, 
where litigation over the probate 
arises. Bartlett v. Slater, 65 N. E. 
73, 182 Mass. 208. But independently 
of such legislation, contestants, pro- 
ponents and legatees interested may 



settle out of court and thus conclude 
a contest if all are sui juris. Baxter v. 
Stevens, 95 N. E. 854, 209 Mass. 459; 
Owsley v. Yerkes, 187 F. 530, 109 
C. C. A. 250; Robbins v. Hoover, 115 
P. 526, 50 Colo. 610; 99 N. E. 410. 212 
Mass. 555. Such agreements founded 
in just consideration, are not against 
public policy. Schoonmaker v. Gray, 
101 N. E. 886, 208 N. Y. 209. But 
until a probate all such adjustment 
of controversies is premature. Par- 
ker Re, 102 N. E. 427, 215 Mass. 226. 
Cf. Farwell v. Carpenter, 142 N. W. 
227. 

In case of a statute compromise 
the court admits the whole will as 
offered for probate and the conces- 
sions made take effect under the 
agreement of the parties and the de- 
cree which confirms — not as a modi- 
fication of the will. Baxter v. Stev- 
ens, supra. As to suing upon a con- 
tract to withdraw opposition, see 95 
N. E. 948, 210 Mass. 26. 

Estoppel may apply in will con- 



967 



^ 1073 EXECUTORS AXD ADMINISTEATOES. [PAET II. 

§ 1073. The Proof Needful to establish a Will ; Proceedings at 
the Hearing for Probate. 

The party who propounds a will for probate should be prepared 
to prove affirmatively three things, as conformity with the statutes, 
English or American, at the present day usually demands: 
(1) that the will was in writing duly signed by the testator, or 
under his express direction; (2) that the will was attested and 
subscribed in presence of the testator by the requisite number of 
competent witnesses; (3) that the testator at the time when such 
execution took place was of sound and disposing mind. In other 
words, the essentials of a statute execution must be shown as a 
fact ; and further, that the testator was at the time of such execu- 
tion in suitable testamentary condition ; which latter essential in- 
volves several elements, as we shall presently show, not easily to be 
compressed into a single verbal expression. 

In the foregoing respects, and in general, to show that the 
instrument propounded was the testator's last will and testament, 
the burden of proof rests upon the party who offers the instrument 
for probate; and what is here said of a will applies also to each 
codicil which may be offered with it."^ And inasmuch as the burden 

tests. Thus, one who accepts his legacy 2 Gray, 524 ; Taff v. Hosmer, 14 
assents to the will by implication. Mich. 309; Delafield v. Parish, 25 N. 
Shover v. Ewald, 136 S. W. 130, 143 Y. 9; Comstock v. Hadlyme, 8 Conn. 
Ky. IGO; 133 S. W. 768, 141 Ky. 715. 254, 20 Am. Dec. 100; Evans v. 
As to an executor see Williams v. Arnold, 52 Ga. 169; Gerrich v. Nason, 
Evans (1911), P. 175. 22 Me. 438, 39 Am. Dee. 598; Lock- 
Interested parties, such as judg- wood Re, 69 A. 8, 80 Conn. 513. 
ment creditors, heirs, devisees or lega- See, at length, Schoul. Wills (Vol. 
tees, may oppose probate. Tecken- I.), Book I, Part II, c. 9; ih. Part 
hrock V. McLaughlin, 152 S. W. 38, III., passim, on this whole subject. 
246 Mo. 711; 126 P. 912. One claim- The court may also licar and de- 
ing under an earlier will may impf'ach termine the point whrtlier or not the 
a later one. Childers v. Milam. 70 S. testator was domiciled within the 
E. 118, 68 W. Va. 503. jurisdiction. Whitcliead v. Roberts, 
7. 2 Wins. Exrs. 20, 342; Sutton 85 A. 538, 86 Conn. 351. Sec. further, 
V. Sadler, 3 C. B. N. S. 87; Robinson 128 P. 557, 22 Idaho, 765; 137 N. Y. 
V. Adams, 62 M^-. 369, 16 Am. Rep. S. 155 (genuineness of will and its 
473; Crownjnshield v. Crowninshield, validity). 

968 



CHAP. II.] PROBATE OF THE WILL. § 1073 

of proof rests thus upon the proponent, as to due execution of the 
alleged testator's competency, he is entitled to open and close the 
case where a jury is empanelled.® 

But the usual rules of evidence apply to such judicial hearings. 
The proponent is aided by legal presumptions, and the burden of 
proof may shift from one side to the other in the course of a hear- 
ing. By the old rule of the English ecclesiastical courts, one wit- 
ness could not make full proof of a will in solemn form ; ^ and yet, 
as we have seen, various American statutes now permit a single 
satisfactory witness to prove a will which no party in interest ob- 
jects to,^ while sound modern practice here, as in England, insists 
that the rules of evidence applicable in common-law tribunals shall 
be observed in the trial of all questions of fact before the court of 
probate.^ The party who has the burden of establishing a will gives 
evidence by his subscribing witnesses of such facts as make out 
prima facie a valid testamentary instrument ; showing, as he ought, 
that the execution was formal and regular, with respect to both 
signature of the testator and the attestation ; and that the testator 
appeared to be of sound and disposing mind and capacity. The 
proponent seldom has to go beyond formal proof by the subscrib- 
ing witnesses (who, from their peculiar connection with the testator 
and his instrument, should be deemed of the first consequence in 
the proof), and possibly one or more of these may be dispensed 
with. In some instances force has been given to a presumption 
generally that an adult who executes his will is of sound mind. 
Whether more proof be requisite on his part must depend upon 
circumstances, and particularly (the instrument itself appearing 
regular on its face) upon the mode and force of the opposition 

8. Robinson v. Adams, 63 Me. 369; residents, etc. Swenarton v. Hancock, 
Taff V. Hosmer, 14 Mich. 309. 22 Hun, 43. 

9. 1 Wms. Exrs. 342; Evans v. 2. See English statute 21 & 23 
Evans, 1 Robert. 165. Vict. c. 77, § 33 (court of probat>3 

1. Supra, § 70. But see require- act of 1857), to this effect, cited 1 
ment of a New York statute that all Wms. Exrs. 344; Wright v. Tatham, 
the witnesses shall be examined, if 5 CI. & Fin. 670. And see Hastings v. 

Rider, 99 Mass. 625, per Gray, J. 

9G9 



§ 1074 EXECUTOES AND ADMIXISTEATORS. [PAET II. 

developed at the hearing. It is for the contestant, after cross- 
examining the proponent's witnesses, to enter upon proof of alleged 
incomj)etency in the testator, or other ground for breaking down 
the will, before the proponent need put in his whole case, and pre- 
sent affirmatively all he has to offer on such an issue.^ In such 
a sense, but not more emphatically, it may be said that when the 
proponent has proved the due execution of a paper not incompat- 
ible in its structure, language, or details, with sanity in the 
testator, and when, upon such formal testimony, notwithstanding 
the cross-examination of his own witnesses, it is probable that the 
will was executed by one at the time in competent testamentary 
condition, the burden of showing the contrary becomes shifted 
upon the contestants of the will. And should the contestants 
thereupon establish incompetent testamentary condition, or other 
ground for refusing probate of the will, the burden shifts back 
to the proponent, who, as the result of the whole hearing, is bound 
to establish satisfactorily the essentials we have stated. But fraud 
or undue influence must be proved by those who allege it.'* 

§ 1074. Proof of the Will; Instrument to be in Writing, and 
signed by the Testator. 
The English statute, 1 Vict. c. 26, § 9, concerning the execution 

3. See Cooley, J., in Taff v. Hos- disproving facts and circumstances 

mer, 14 Mich. 509. "All ruU^s of evi- shown by the defence." 

dence," observes the court, in the As to probate of a will and the 

lunid opinion here pronounced, " are testimony in sucli controversies, see, 

designed to elicit truth; and it is at length, passim, Schoul. Wills, 

obvious that to require the proponent (Vol. I.) Part II. Tliore should be 

to anticipate, at his peril, the case no admission of the will to probate 

that would be shown by the defence, in a contest as to the testator's men- 

Avould, in many casos, be equivalent tal capacity, etc., without a fair 

to a denial of justice. For, although hearing, both sides having had due 

tliere would still be a right to give notice. 

r( butting evidence, this, in the sense 4. See Milton v. Hunter, 13 Bush, 

in which rebutting evidence must then 163; Schoul. Wills (Vol. I.), Part 

be undfrstood, would be of little II., cs. 9, 10, and cases cited, 
value, since it must be confined to 

970 



CHAr. II.] PROBATE OF THE WILL. § 107-i 

of wills, does not require literally a sii^natiire hy the testator him- 
self; but that the will should be in writing and signed by the testator 
or by some other person in his presence and by his express direc- 
tion.^ And such is the expression, likewise, of various American 
statutes as to any testamentary disposition, whether of real or per- 
sonal estate, or both.® 

The testator's signature, whatever its position, must have been 
made with the design of authenticating the whole instrument ; and 
the natural presumption as to a document to which one's signature 
has not been appended, is that full execution was not meant.''' One 
signature suffices, especially if it be in its natural place at the end, 
though the will were contained in several pages or sheets, provided 
that by the handwriting, the fastening together, the verbal con- 
nection of words, or otherwise, it satisfactorily appears that all the 
pages or sheets were intended by the testator to be embraced by 
that sufficient signature.^ The end of the instrument, preceding 
the attestation clause (if there be one), is the natural and usual 
place of signature; and the Statute of Wills in England and cor- 
responding statutes in some American States now make such sub- 
scription imperative.^ 

The testator's name may be written by some other person, if 

5. 1 Wms. Exrs. 7th cd. G0-6S; indicates that the preceding pages or 
Schoul. Wills (Vol. I.) , Part III., c 2; sheets were severally signed. Winsor 
Bryce, In re, 2 Curt. 325. Such is the v. Pratt, 5 Moore, 484. Ar,d see Jcnes 
operation of the English statute, 1 v. Habersham, 63 Ga. 146. AUter, 
Vict. c. 26, that formal execution was of course, if upon the whole proof it 
not essential to wills of personalty appears that there has been some 
made in England prior to January, tampering with the sheets or pages; 
1838. This fact, already referred to, since only that which was intended to 
should be kept in mind by the reader, be part of a will at the time of execu- 

6. See for details, Schoul. Wills, tion can be probated. 

ib, and cases cited. 9. 1 Wms. Exrs. 67; Schoul. Wills 

7. See 1 Wms. Exrs. 69; 1 Redf. (Vol. I.), § 312 and cases cited; Stit. 
Wills, 4th ed. 197; Schoul. Wills 1 Vict. c. 26, § 9; 1 Rodf. Wills, 226. 
(Vol. I.), § 311-313. As to signing by mark, see Schoul. 

8. And this, though the attestation Wills (Vol. I.), §§ 303, 304. 
clause, through some inadvertence, 

971 



§ 1074 EXECUTOES AXD ADMINISTKATOES. [PAET II. 

done in his presence and bj his express direction, even where the 
testator does not make his mark, as he often may. This sort of 
execution, however, in instruments so solemn, is so unusual and 
so objectionable on principle, that the fact and reason for such a 
proceeding as, for instance, that the testator was maimed or par- 
alyzed, ought, in common prudence, to be made clearly known to 
the subscribing witnesses, and, moreover, might well be expressed 
in the attestation clause. But where the testator's signature was 
made by another person guiding his hand with his consent, and he, 
being evidently clear in mind and free of volition, then ack- 
nowledged it, the signing is held to be the testator's act, and suffi- 
cient.-^ And, of course, the testator's actual consent, and not any 
alleged reason for signing by another, is the ultimate fact upon 
which the validity of these unusual executions must turn.^ 

Wills are usually written out on paper or parchment, and signed 
in ink; but a writing and signatures in lead pencil satisfy the 
statute requirement,^ as it has been held, provided that all appears 
to have been done with a complete testamentary purpose, and not 
by way of mere draft or preliminary minutes. The use of a seal 
in the execution of a will is now generally dispensed with ; some 
have thought it efficacious in a devise of lands, however, and for 
the execution of a power specially required to be done under seal 
it is still essential.^ Authorities generally concede that sealing 
alone is not a good execution where the statute calls for a signa- 
ture.^ 

1. Wilson V. Beddard, 12 Sim. 28; v. Greenough, 11 Penn. St. 489. See 

1 Redf. Wills, 4th ed. 205; Schoul. Schoul. Wills (Vol. I.), § 308. 
Wills (Vol. I.), §§ 306-308 and cases 2. Jenkins's Will. 43 Wis. 610. 

cited. "A. B. for C. D." (C. D. being 3. And especially if the will do not 

the testator) may thus be shown to concern real estate. Harris v. Pue, 

be a good subscription. The evidence 39 Md. 535. See Schoul. Wills (Vol. 

Khould not leave the testator's consent I.), § 258. 

in such a case very doubtful; that 4. 1 Redf. Wills, 4th ed. 201, 226; 

the other wrote at his request will Schoul. Wills (Vol. I.), § 309. 
not be presumed. Rollwagen v. Roll- 5. 1 Jarm. Wills, 78; Schoul Wills, 

wagen, 5 Thomp. & C. 402; Greenough (Vol. I.), Part III. cs. 1, 2. 

972 



CHAP. II.] PROBATE OF THE WILL. § 1075 

§ 1075. Signing by the Testator ; Subject continued ; Publication, 
etc. 

Presumptions favorable to the due execution of a will may be 
rebutted. As a general rule, however, the subscription and exe- 
cution of a will in the mode prescribed by law sufficiently imports 
that it speaks the language and wishes of the testator.^ But all 
proof of a Avill must consist with a full comprehension of its con- 
tents and an intelligent execution; and where the testator was 
blind or could neither read, writo, nor speak, there should, accord- 
ing to the safer authorities, be proof not only of the factum of his 
will, but that the mind of the testator accompanied the execution ; 
and that he knew and understood the contents of the instrument 
as expressive of his testamentary intentions.'^ If a testator can 
read and write, his signature, duly made, imports knowledge of 
the contents of the paper executed as his will ; in other and peculiar 
instances, the proof of testamentary knowledge and intent should 
be clearer, though not necessarily conclusive, nor upon the point of 
doubt limited to any particular fact or circumstance consistent 
with making out a prima facie case of intelligent execution.^ But 
the testator's condition and surrounding circumstances must always 
be considered ; and if, while the testator is feeble, or hardly con- 
scious, or of doubtful capacity or volition, another person assumes 
the functions of spokesman and director before the witnesses at 
the execution, an adoption, at least, of that person's acts on the 
testator's behalf must appear.^ 

The testator need not declare in words to the subscribing wit- 
nesses that the instrument which they are called to witness is his 
will, though it would be wise for him to do so ; but by acts and 
words he may make it sufficiently clear to his witnesses that he 
so accepts and regards the instrument.^ That the testator need not, 

6. King V. Kinsey, 74 N. C. 261. 9. Schoul. Wills (Vol. I.), § 233. 

7. Schoul. Wills (Vol. I.), § 317 1. Some cases justify a testator in 
and cases cited. concealing that the instrument was 

8. lb. his will. 

973 



1076 



EXECUTOES AND ADMINISTKATOES. 



[PAET II. 



and usually does not, make knoAvn the contents of his will, at the 
time of execution, is certain.^ 



§ 1076. Proof of the Will; Subscribing Witnesses. 

Formerly, in England, as we have seen, no witnesses to the 
execution or publication of a will of personal property were con- 
sidered essential, still less any subscribing witness ; formal pub- 
lication was merely for convenience. Wills of lands were, on the 
other hand, under the Statute of Frauds, to be attested and sub- 
scribed more formally, or, as it was said, " by three or four credible 
witnesses." Acts of Parliament attempted another distinction with 
reference to stock in the public funds. But, under the act of 
1 Vict, c 26, § 9, no will executed on and after January 1, 1838, 
can be valid, unless the testator's signature is made or ack- 
nowledged in the presence of two or more witnesses ; and this re- 
quirement applies to every description of property, real and 
personal.^ For every testamentary disposition of property, two 



2. Some of our American statutes 
explicitly sanction an execution with- 
out any publication. In 1 Redf. 
Wills, 4th ed. 219, 220, such a prac- 
tice is regarded with disfavor. In 
Trimmer v. Jackson, 4 Burn. Eccl. 
Law, 9th ed. 102, the testator led his 
witnesses to believe that the instru- 
ment they executed was a desd, not 
a will; but the execution was ad- 
judf^ed sufficient. And see Schoul. 
Wills (Vol. I.), § 326. It should be 
observed that Stat. 1 Vict. c. 26, § 
13, declares expressly that every will 
executed in the manner prescribed 
shall be valid without any other pub- 
lication thereof. Swinburne gives a 
good reason wliy the testator miglit 
fail to disclose his true purpose, " be- 
cause the testator is afraid to ofTfiid 
such persons as do gape for greater 
bequests than either they have de- 



served or the testator is willing to be- 
stow upon them; lest they, peradven- 
ture, understanding thereof, would 
not suffer him to live in quiet; or 
else he should overmuch encourage 
others, to wliom ho meant to be more 
beneficial than they expected; and so 
give them occasion to be more n?gli- 
gent husbands or stewards about 
their own affairs thnn otherwise they 
would have been if they had not ex- 
pected such a benefit at the testator's 
hands (or for some other considera- 
tions)." Swinb. pt. 1. § 11. All this 
points, however, rather at disclosing 
the contents of one's will, than at his 
recognition of the instrument as tes- 
tamentary. Cf. New York and New 
Jersey rule, Sclioul. Wills (Vol. I.), 
§ 326. 

3. 1 Wms. Exrs. 7th cd. 66, 86. 



974 



CHAP. II.] PEOBATE OF THE WILL. § 1076 

subscribing witnesses are requisite at this day in most parts of the 
United States; in Massachusetts and several other States there 
must be three; while a few States unwisely discriminate still, as 
between wills of real and of personal estate.'* The old Spanish 
law which favored holograph wills (or such as a testator writes 
out in his own hand) impresses the codes of some of our States, 
so, in some instances, as altogether to dispense with subscribing 
witnesses for such a will.'^ As to witnesses and attestation, other 
peculiar provisions, which need not here be specified, are embodied 
in the legislation of individual States by way of exception to the 
American rule.^ 

" Credible witnesses " were required under the Statute of 
Frauds, and " competent witnesses " (to quote the language of 
some American codes) must still be employed.'^ Under either 
form of expression, persons must not prove beneficially interested 
under the will ; and those called in by a testator to witness an in- 
strument whose contents he keeps to himself may generally assume 
that he has willed them nothing. A will of freehold estate at- 
tested by persons found to be beneficially interested therein was 
pronounced invalid long ago ; and this not only as to the part which 

4. Most New England States now Carolina, Mississippi, California, Ar- 
insist (or have done so lately) upon kansas, Tennessee, etc., as to holo- 
three witnesses, as also South Caro- graph wills; 1 Wms. Exrs. 67, 7th ed, 
lina, Florida and Georgia, xn New note by Perkins; Schoul. Wills (Vol. 
York two witnesses suffice, and the I.), § 255. 

same may be said of the Middle and 6. See 1 Wms. Exrs. 67, note by 
Western States quite generally, and Perkins. In Pennsylvania, for in- 
such is the later policy in the ma- stance, it would appear that reduc- 
jority of the United States as well ing the will to writing in pursuance 
as in England. Except, perhaps, for of the testator's directions is suffi- 
mean and sparsely-settled neighbor- cient; that these facts may be proved 
hoods, the practice of employing three by two witnesses; and that formal 
witnesses appears the better one, for publication and attestation by sub- 
a testamentary instrument becomes scribing witnesses are unnecessary, 
thus more readily distinguished from 1 Wms. Exrs. ib. ; and see Schoul. 
other formal writings, and there is Wills (Vol. I.), § 256, etc. 
less inducement to fraud. See Schoul. 7. See 1 Wms. Exrs. 87; Schoul. 
Wills (Vol. I.), § 320. Wills (Vol. I.), §§ 350-358. 

5. See statutes of Louisiana, North 

975 



§ 1076 EXECUTOES AND ADMINISTKATOES. [PAET II. 

created their interest, but as a whole ; and after much controversy, 
the English courts appear to have settled down to the theory that 
credibility was so fundamental to a proper execution, that the 
release of his interest by such a party at the time of judicial in- 
quiry could not restore his competency, nor the sufficiency of the 
Avill.^ Hence, inasmuch as great injustice might thus be done 
by a witness unconsciously, an act whose provision by extension to 
wills of both real and personal estate, under 1 Vict. c. 26, § 15,® 
annuls the interest of each attesting witness beneficially interested, 
and renders him fully competent to prove the validity or invalidity 
of the will. In American States, correspondingly, the local stat- 
ute must be the guide.-^ Disqualification by reason of interest, 
that common-law doctrine upon which our later legislation so 
greatly infringes, has a peculiar significance in the present con- 
nection ; for the public welfare still demands that one's last wishes 
be authenticated by persons who are wholly detached from his 
estate, and stand, so to speak, between the dead and the living. 
These witnesses are in a measure judges of the facts attending the 
execution of the only kind of instrument which a principal signer 
cannot possibly take part in establishing; they surround the tes- 
tator at a critical moment to protect him from frauds which might 
be practiced upon his infirmity or debility ; and hence they should 
be kept totally free from every temptation to bias or importunity. 
If a person, called upon to subscribe as such a witness, thinks the 
testator incapable of making his will, he may and should refuse 
to attest.^ 

8. 1 Jarm. Wills, 05; Doe v. Her- Exrs. 7th Eng. ed. 1053; Brett v. 
eey, 3 Burn. Ecc. L. 27. Brett, 3 Add. 210; Foster v. Banbury, 

9. The ecclesiastical courts had 3 Sim. 40. 

meantime insisted that the statute 1. Schoul. Wills (Vol. I.), §§ 350- 

rcquiroment of "credible Avitncs-es " 358. 

was limited in expression to wills and 2. See, on this point, Wilde, J., in 

codicils of real estate, and had no Hawes v. Humphrey, 9 Pick. 356. On 

application to personalty, wills of all these points and the general ques- 

which might be witnessed by legatees, tion of competency, see, further, 2 

8o as to leave the legacy good. Wms. Greel. Ev. § 691; Wms. Exrs. 87, n. 

by Perkins, citing numerous authori- 

976 



CHAP. 



II.] 



PKOBATE OF THE WILL. 



§ 1078 



§ 1077. Proof of the Will; Mode of Attestation by Witnesses. 

Like the testator himself, the witness may sign by mark, by 
initial, or by fictitious name, though not by seal ; his hand may be 
guided by another if he cannot write ; and the further precautions 
against fraud correspond in the two cases.^ The English statute 
is so construed, however, as to demand a literal " subscription " by 
the witness, in the testator's presence, and after him, either by 
name or mark ; not permitting one to adopt or acknowledge a pre- 
vious signature made by himself or by any other person, as the 
testator might do ; * which rule most American States follow, but 
not all.^ 

Consistent and intelligent execution, taken as a whole, and a 
fair connection between witnesses and testator in the legal formal- 
ities, should appear under all circumstances.® 

§ 1078. Proof of the Will; Attestation Clause. 

A perfect attestation clause must aid greatly in establishing the 



ties; Schoul. Wills (Vol. I.), §§ 350- 
358. 

In the United States, as in Eng- 
land, competency has cardinal refer- 
ence, not to the time of probate, but 
to the time when the will was exe- 
cuted. Sclioul. Wills (Vol. I.), § 
351. A convicted criminal in some 
instances held to be disqualified from 
becoming a subscribing witness; as 
well as a young child or idiot. 1 
Greenl. Ev. § 373 ; Chamberlayne 
Evid. § 2654. But one competent at 
the time of execution would not be- 
come disqualified because of subse- 
quent crime or insanity. 

3. 1 Wms. Exrs. 94, 95; Ashmore's 
Goods, 3 Curt. 756: Christian's 
Goods, 2 Robert. 110; Byrd's Goods, 
3 Curt. 417; Thompson v. Dnvitte, 59 
Ga. 572; Schoul. Wills (Vol. I.), §§ 
331, 332. 

4. 1 Redf. Wills, 230, 231; Hind- 

62 977 



marsh v. Charlton, 8 H. L. Cas. 160; 
1 Wms. Exrs. 95, 96; Eynon's Goods, 
L. R. 3 P. & D. 92. 

5. Chase v. Kittredge, 11 Allen, 49, 
per Gray, J., where the subject is 
carefully examined; Schoul. Wills 
(Vol. I.), § 328. 

6. As to the position of signatures 
by witnesses, subscribing in one an- 
other's presence, or in the presence 
of the testator, and other points with 
regard to attestation and subscrip- 
tion, see Schoul. Wills (Vol. I.), 
Part III., c. 3. Doubtless a careful 
counsellor will insist, wherever he 
may, that witnesses and testator shall 
all execute in one another's presence, 
and at the same time; the testator 
first writing out his name and ac- 
knowledging his Avill, and the wit-» 
nesses in turn subscribing afterwards 
to a formal attestation clause. 



§ 1079 EXECUTOES AXD ADMIXISTEATOKS. [PAKT II. 

reoularitv of a will, for this affords plain written evidence of a 
testamentary execution, and freshens the memory on points readily 
foro-otten. The effect of the statement in an attestation clause, 
that the w^ill was signed by the witnesses in the presence of the 
testator, and of each other and at his request (or in such other 
language as the statute may direct), would be to throw the burden 
of proving that it was not so signed, and that the execution was ir- 
regular, upon the opponents of the will, and to discredit any sub- 
scribing witness who should undertake so to testify^ 'No particu- 
lar form of attestation, however, is requisite under the English 
statute,^ nor probably in most American States; but a sufficient 
number of witnesses may subscribe their names without any express 
attestation clause whatever; in which case circumstantial proof 
that the attestation itself was proper may be supplied at the probate 
hearing.^ 

Recitals of an attestation clause may supply the defect of 
positive testimony as to wdiat transpired in connection with the 
signature of the testator and the subscription by his witnesses.^ 

§ 1079. Proof of the Will; Suitable Testamentary Condition on 
the Part of the Testator. 
Besides proof of a genuine execution such as the statute may 
have directed, on the part of both testator and his witnesses, the 
proponent of the will must be prepared to show affirmatively that 
the testator, at the time of such execution, was in a suitable tes- 

7. Schoul. Wills (Vol. ].), §§ 340, 9. 1 Wms. Exrs. 93; Schoul. Wills, 
347. Want of recollection on the part § 346. Thus, as in the case of ordi- 
of the subscribing witnesses is not nary writings, the signatures may 
enough to overcome the presumption follow the word " witness " opposite 
arising from their certificate that the principal signature, or, indeed, 
the facts were as certified. lb. See there may be no word or clause at all. 
McCabe's Will, 134 N. Y. S. 682; lb. 

Gillmore's Will, 94 N. W. 32, 117 1. Rugg v. Rugg, 83 N. Y. 592; 

Wis. 302; Ward v. Brown, 44 S. E. Grant's Will, 135 N. W. 833, 149 
488, 53 W. Va. 227. Wis. 330. 

8. Stat. 1 Vict. c. 26, § 9, i.s ex- 
plicit on this point. 

078 



CHAP. II.] PROBATE OF THE WILL. § 1079 

tamemtary condition. Suitable testamentary condition appears 
to involve three prime elements: (1) That the testator was of 
sound and disposing mind and memory, capable of understanding 
the nature of the act he was performing, and the relation in which 
he stood to the objects of his bounty and to those upon whom the 
law would have bestowed his property had he died intestate. 

(2) That he executed the will as his own voluntary act, free from 
the fraud, coercion, or undue influence of those about him. 

(3) That he had the testamentary purpose in so executing, and 
understood the instrument to be his last will and testament.^ 
Where the instrument presented for probate appears quite con- 
sistent with all requirements in these respects, and executed after 
the required forms besides, a simple question to the witness as 
to the testator's apparent soundness of mind may suihce ; not so, 
however, if by cross-examination of the witness, or otherwise, the 
proponent's case is shaken ; for although an adult may be presumed 
to execute a writing while in his senses and free from constraint, 
the testamentary act is of all acts liable to sinister influences when 
performed by the sick, the feeble, or the dying. 

And the burden iDeing accordingly upon the proponent of a Avill 
to establish full testamentary condition and capacity in the tes- 
tator, no mere presumption of sanity and free will can avail as 
an independent fact to overweigh proof to the contrary; but the 
issue in all such contests is, whether the will in question was the 
free act and will of a competent testator.^ "Whatever goes to im- 

2. Barker v. Comins, 110 Mass. upon one or more subjects and otlier- 
477. wise sound. One difficult subject dis- 

3. The cases are very numerous cussed in connection with testamen- 
under the head of testamentary ca- tary capacity is senile dementia, or 
pacity, and are somewhat conflicting, that decay which sets in after one's 
though the safer conclusions reached full maturity. Schoul. Wills (Vol. 
appear those of the text. There may I.), Part II.; 1 Jarm. Wills, 4th 
be lunatics, not from birth alone, but Eng. ed. 131-144. Drunkenness, so 
made such through disease or decay; far as it disorders one's faculties and 
persons insane, having lucid inter- perverts his judgment as to what he 
vals; monomaniacs, or those diseased is doing, defeats his will; but not 

979 



1079 



EXECUTOKS AND ADMINISTEATOES. 



[part II. 



peacli the validity of the instrument offered should be open to the 
fullest investigation at all contested hearings; and the simple 
circumsitance that the will is partial and unreasonable in its pro- 
visions may, in cases of doubt, cause a preponderance against its 
admission to probate, especially if the party to be chiefly benefited 
under it showed an officious and unbecoming zeal in procuring 
its execution.* And even though courts should rule so cautiously as 



habitual intemperance alone, nor 
even the actual stimulus of liquor on 
the particular occasion. Schoul. Wills, 
Part II., c. 7, and cases cited. As to 
the effect of religious delusions, mod- 
ern spiritualism aud the like, the rule 
is not stated with precision, judges 
themselves having various preposses- 
sions on issues of religious faith and 
conscience. Schoul. Wills, § 168. The 
I:earing of the fact of suicide upon 
the question of testamentary capac- 
ity is considered sometimes. Schoul. 
Wills, § 120. Mental unsoundness, 
years after the execution of a will, 
does not alone rebut the usual pre- 
sumption of sanity. 

It may be observed generally that, 
notwithstanding one's sickness or in- 
firmity, his testamentary disposition 
may be valid, if, at the time of mak- 
ing it, the testator had sufficient in- 
telligence to comprehend the condi- 
tion of his property, his relation to 
those who were or might naturally b^ 
the objects of his bounty, and to un- 
derstand tlie provisions of the instru- 
ment. Testamentary capacity is the 
normal condition of one of full age. 
Schoul. Wills (Vol. I.), § 68. 

As to free agency, it is recently ob 
served that whatever destroys it and 
constrains a person to do what is 
against his will, and what he would 



not do if left to himself, is undue in- 
fluence, whether the control be exer- 
cised by physical force, threats, im- 
portunity, or any other species of 
mental or physical coercion. The 
state of healtii and mental condition 
of the alleged testator must be con- 
sidered. Undue influence is not meas- 
ured by degree or extent, but by its 
effect; if it is sufficient to destroy free 
agency, it is undue even it if ba 
slight. Schoul. Wills, Part II, c. 10; 
1 Jarm. Wills, 4th Eng. ed. 131-144. 
On the other hand, to avoid a will on 
the ground of undue influence, it must 
be made to appear that it was ob- 
tained by means of influence, amount- 
ing to moral coercion, destroying 
free agency; or by importunity whicti 
could not be resisted, so that the tes- 
tator \vas constrained to do that 
which was against his actual will, but 
which he was unable to refuse or too 
weak to resist. Free agency or free- 
dom from coercion, fraud, or undue 
influence is presumed from mental 
capacity, and the burden is on those 
who deny it. See passim Schoul. 
Wills (Vol. I.), Part II., c. 10 and 
cases cited. 

4. No such circumstance, liy it«clf, 
would suffice. The decisions upon 
contests because of fraud, undue in- 
fluence, or mistake are very numcr- 



980 



CHAP. II.] PROBATE OF THE WILL. § 1080 

seemingly to favor an unjust will, made under circumstances of 
doubtful propriety, a jury rarely sustains such a will; and, after 
all, unless the particular will be established, the proponent loses 
his cause. 

§ 1080. Proof of the Will; Suitable Testamentary Condition as 
Respects Legal Capacity. 
We may add, as a further element of suitable testamentary con- 
dition, what in a single phrase is to be styled " legal capacity." 
The general rule is, that all persons are capable of disposing by 
will; yet there are various classes of persons excepted by the law, 
not only in this respect, but in other instances involving the jus 
disponendi. Thus, aliens have been restricted by the common 
law, and particularly in the acquisition and transmission of real 
estate ; though these restrctions, which, as to lands, are exclusively 
of State cognizance, have been removed in many modern instances, 
and seldom extended to dispositions of personal property^ In- 
fants, again, are wisely excepted by existing statutes both in Eng- 
land and some of the chief American States, notwithstanding the 
earlier doctrine, borrowed from the civilians, which permitted 
males at fourteen and females at twelve to dispose of personal 
property by a last will.^ Coverture, on the other hand, operated 
a legal disability at the common law which our modern married 
women's acts are superseding.''' Idiots and imbeciles are, of course, 
incapable ; ^ but not the deaf, dumb, or blind, who make intelligent 
use of the senses given them.^ And a long, but, happily, obsolete, 

ous. See probate refused in Meyers' Part II., c. 2. Local statutes should 

Estate, (1908) P. 353 (mistake in be consulted on such points, 

executing the wrong will) ; Young's 7. Schoul. Wills (Vol. I.), Part II., 

Estate, 116 P. 95, 59 Oreg. 348 (a c. 3. 

forged will). 8. Schoul. Wills (Vol. I.), Part II. 

5. Co. Litt. 2 b; 1 Jarm. Wills, ed. c. 5. A person under guardianship as 
1861, 35, 60-64; Schoul. Wills (Vol. nan compos is presumptively, but not 
I.), §§ 34-36. conclusively, incapable of making a 

6. 1 Vict. c. 26, § 7; 20 & 21 Vict. will. Hamilton v. Hamilton, 10 R. I. 
«. 77; 4 Kent Com. 506, 507; 1 Jarm. 538; Schoul. Wills, § 8. 

Wills, 39; Schoul. Wills (Vol. I), 9. Schoul. Wills, § 94. 

981 



§ lOSl EXECUTOES A:!v^D ADMI^'ISTRATOES. [PAET n. 

list of disqualified persons is stated in the earlier English books, 
whose disgrace, in this respect, attended their crime or low con- 
dition, less, perhaps, from anj consideration of unfitness in the 
individual than for the sake of enabling the cro\Mi to confiscate his 
chattels beyond a peradventure.^ 

§ 1081. Proof of the Will; Testimony at the Hearing. 

The law confides so greatly in those who were placed round the 
testator as subscribing witnesses, as to permit them, whenever the 
testator's sanity is at issue, to give their opinions upon that point ; 
besides stating fully all material circumstances which attended the 
execution of the will in question. But, if so testifying, they may 
be inquired of as to the grounds of their opinion in cross-exam- 
ination, and other evidence may be put into the case to support or 
contradict them.^ ^^ny other person may testify as to the appear- 
ance of the testator and as to facts from which the state of his 
mind at the date of execution may be inferred ; but the mere opin- 
ions of all such witnesses, who are not experts, are usually pro- 
nounced inadmissible. Experts are to be found at this day who 
are examined on the special subject of insanity ; but an attending 
physician of regular standing is commonly a good enough expert to 
give an opinion upon his patient's mental condition, and from 
facts thus in proof, other experts may draw conclusions.' Sub- 
scribing witnesses may be summoned into court and examined 

1. Swinburne, pt. 3, § 7, enumer- Part II., c. 1; U. S. Constitution, 

ates among those legally di.squalified Art. III., § 3. And see Wnis. Exrs. 

from making a last will and testa- 435, and English stat. 33 & 34 Vict, 

ment, slaves, villeins, captives, pris- c. 23, § 1. 

oners, traitors, felons, heretics, apos- 2. Solioul. Wills (Vol. I.), §§ 198- 

tates, manifest usurers, incestuous 204; Wms. Exrs. 346, and n. by Per- 

per.sons, libellers, suicides, outlaw^^d kins; Brock v. Brock, 79 S. E. 473, 

persons, excommunicated persons, etc. 140 Ga. 590; Conrades v. Heller, S7 

Forfeiture of one's estate, even for A. 28, 119 Md. 448 (two out of three 

treason, is, by the more enlightened subscribing witnesses). 

rule of modern times, confined to the 3. See tliis subject at length, Schoul. 

life of the offender. See 2 Kent Com. Wills (Vol. I.), §§ 204-213. 
385, 386; Schoul. Wills (Vol. I.), 

982 



CHAP. II.] PKOBATB OF THE WILL. § 1082 

viva voce; and the usual rules of evidence which guide the com- 
mon-law courts will apply with the reservations already stated, to 
their testimony, and the credit to be given it.'* 

A will is not to be defeated through the failure of attesting 
witnesses to remember the circumstances of attestation. Due exe- 
cution raises the presumption that all was rightly done ; and not 
only is the proponent free to aid the will by other competent proof, 
but (as these were not essentially his own witnesses) he may rebut 
the adverse testimony of subscribing witnesses, and even discredit 
them. As a general rule, one who offers a will must call in all the 
attesting witnesses, if put to the full proof, provided all are alive, 
within reach of the process of the court, and still competent.^ But 
where the witness is abroad, or disabled from personal attendance, 
his deposition may be taken ; if he has died or become insane since 
the attestation, his handwriting may be proved ; and the utter 
impossibility of presenting one's testimony being shown to the 
court, the proof may go on without him. If the legal execution of 
a will be clearly established aliunde, probate thereof may be al- 
lowed though all the subscribing witnesses were dead or all should 
testify adversely. The testimony of subscribing witnesses, in short, 
is important but neither indispensable nor conclusive; and where 
there arises no contest the proof adduced is simple.*^ 

§ 1082. Revocation or Alteration of Wills ; Codicils ; New Wills, 
etc. 

Every will being revocable during the testator's lifetime, pro- 
bate should be granted of the instrument or instruments only 
which constitute his last will. Accordingly, in case of a contest 
over two or more wills, issue joins first and most naturally on that 

4. Wms. Exrs. 345, 346; Stats. 17 testing witnesses produced appears to 
& 18 Vict. c. 47; and 21 & 22 Vict. c. exist for the benefit of all parties in 
77; and see Sclioul. Wills, (Vol. I.) interest, whether favorable or adverse 
Part II., cs. 9, 10, with citations. to the will. But the right has its 

5. See as to effect of English stat- rational limits. 

ute of 1857 on this point, Wms. Exrs. 6. Schoul. Wills (Vol. I.), §§ 177, 

347. The right to have all the at- 178. 

983 



§ 1082 EXECUTORS AND ADMIXISTRATORS. [pART II. 

which was executed latest. Any distinct will propounded for 
probate, which appears to have been executed as the statute requires 
and preserved intact, is presumed to express the testator's latest 
wishes ; but this presumption may be rebutted by the production 
of a later will, or other evidence of a contradictory nature, Yar- 
ious methods of implied revocation are knowm to our law ; such, for 
instance, as the subsequent marriage of a single woman, or in case 
of an unmarried man, his marriage and the birth of a child." 
From other alteration of the testator's circumstances, revocation 
by parol was formerly presumed ; but parol methods are discour- 
aged by our later English and American legislation, whose aim is 
to specify clearly what shall constitute the legal revocation of an 
existing will, and to insist that an actual revocation shall be plainly 
evinced.^ " To prevent the admission," says Chancellor Kent, " of 
loose and uncertain tCiStimony, countervailing the operation of an 
instrument made with the formalities prescribed, it is provided 
that the revocation must be by another instrument executed in the 
fame manner, or else by burning, cancelling, tearing, or obliterat- 
ing the same by the testator himself, or in his presence and by his 
direction. This is the language of the English Statute of Frauds, 
and of the statute law of every part of the United States." ^ 

We may add that such acts of revocation must be done with cor- 
responding intent, and that under the English statute 1 Vict. c. 
26, § 20, and the latest American legislation, these principles are 
extended (with literal variance, and saving, perhaps, the effect of 
marriage, as aibove stated), so as to embrace wills of real and per- 
sonal property in the fullest sense.^ The object of revocation may 

7. Wms. Exrs. 7th ed. 187-204. Va- Aldrich v. Aldrich, 102 N. E. 487, 
rious statute changes have occurred 215 Mass. 164. 

in this connection. lb.; and sec 1. Wms. Exrs. 127 and Perkins's 

Schoul. Wills, (Vol. 1) Part IV., c. I, note. There are variations of ex- 

niore fully, with cases cited. prcssion in such statutes, which the 

8. Wnis. Exrs. 187, 201; Schoul. practitioner is hound to observe in the 
Wills, (Vol. I.) Part IV., c. 1. -case before him. As to rev<x;:ition 

9. 4 Kent Com. 520, 521. As to by burning, tearing, cancelling, or 
burden of proving a revocation, see- obliterating, see Wms. Exrs. 128-158; 

084 



CHAP. II.] TEOBATE OF THE WILL. § 1082 

be to substitute another will or to adopt intestacy as a condition 
preferable to testacy ; and one may revoke a will by a writing prop- 
erly attested, which contains no disposition whatever,^ 

Where the foiTQcr will is not cancelled or destroyed outright con- 
temporaneously with or prior to the execution of another — a course 
of proceeding highly to be commended in most cases while the 
testator retains his full mental vigor and volition — it becomes most 
convenient to make an addition or supplement to such former will, 
observing the prescribed solemnities of testamentary signing and 
attestation as carefully as before. These testamentary supplements 
are known as codicils, or " little wills ;" and the term " will " in 
a statute being construed to include all such instruments, codicils 
require proof and a probate like any other testament. From a 
will and its several codicils, like a statute with its later amend- 
ments, the maker's full intention is to be gathered ; the latest pro- 
visions modifying, or, if need be, annulling the earlier. From a 
codicil distinct reference to the original instrument is desirable, 
though not indispensable ; and the effect of a codicil which in terms 
ratiiies, confirais, and republishes a will, is to give the original 
will the same force as if it had been rewritten, re-executed, and 
republished at the date of the codicil.^ A new, adequate, and com- 
plete will may be held to revoke all former wills without express 
words of revocation ; but a codicil only revokes a former will, as 
far as it so expressly provides or is inconsistent in terms with it; 
nor, apparently, should any will be construed as revoking another 
still extant, except so far as really conflicting with it.* A codicil 

Schoul. Wills, (Vol. I.) I'art IV., and testament, revoking aU other wills 

c. 1. by him at any time heretofore made. 

2. See Jessell, M. R., in Sothcran And a mere codicil by way of amend- 
V. Dening, 20 Ch. D. 99, 104. ment may well express that the tes- 

3. See Schoul. Wills, (Vol. I.) Part tator thereby ratifies and confirms 
IV., c. 2, and cases cited. his will (referred to) in all other 

4. Schoul. Wills (Vol. I.), § 437, respects, at the same time revoking 
and cases cited. It is usual and most all other wills, so far as inconsistent 
convenient for a new will to be drawn herewith. A testamentary writing, 
up so as to express on its face that styled a " codicil " may yet be so 
the testator hereby makes his last will separable from a will preceding as to 

985 



§ 1083 



EXECUTORS AXD ADMINISTEATOKS. 



[PAET II. 



intends keeping the foiiner will extant, however, while a new and 
complete will does not. 

§ 1083. Will Contest is in Rem ; Appeal or Review from Probate, 
etc. 

A will contest is a proceeding in rem in its nature, and subject 
to peculiar conditions; it is not a civil action nor are the rights 
of parties in immediate eontroversv.^ The point at issue being 
whether the paper or papers offered constituted or not the last 
will of the decedent, evidence as to mental capacity, fraud, undue 
influence or proper execution takes a wide range.^ Review or ap- 
peal to a higher court is provided under our various State practice 
codes; and thus the question is considered de novo and issues are 
frequently framed by a court and made up for a jury to pass upon 
the facts.^ A proceeding to determine the probate of a will cannot 
be turned into an action for construction, reformation or rescission 
of the instrument.^ Allowance of expenses to a losing party is 



be entitled to probate by itself as a 
will. Fmncis' Will. 132 X. Y. S. 60.^,. 

5. 78 P. 810, 94 S. W. 522, 195 Mo. 
527; 87 A. 390, 119 Md. 64.5; Brad- 
ford V. Blossom, 105 S. W. 289, 207 
Mo. 177; 53 So. 337; 12 N. Y. S. 196 

(will not to be valid as to some 
pa.rts and invalid as to others). 
And see post, § ll(?Oa. 

6. See Fowler's Will, 159 N. C. 203. 

7. Kilborn's Estate, 112 P. 52, 158 
Cal. 593; Naylor v. McIUier, 154 S. 
W. 772, 248 Mo. 423; Kellan v. Kel- 
lan, 101 N. E. 64, 258 111. 256; Hartz 
V. Sobel, 71 S. E. 995, 136 Ga. 565; 
Connery v. Connery, 132 N. W. 448, 
166 Mich. 601; Cowie v. Strothmeyer, 
136 N. W. 956, 150 Wis. 401 (seope 
of judicial power on appeal) ; Breslin 
V. Donnelly, 80 A. 474, 81 N. .J. L. 
691. Such finding by a jury is usually 
in special aid of the appellate court: 

9 



it settles the fact in dispute; but it 
does not wholly control the court. 
Where the jury disajrrees on the 
question of fact the court has dis- 
cretion to make its own lindinfi;s and 
conclusions. Shaw v. Shaw, 133 N. 
W. 292, (S. D.). See Lisle v. Couch- 
man, 142 S. W. 1023, 146 Ky. 345; 
142 S. W. 1018, 146 Ky. 396; Seven- 
inn; V. Smith, 133 N. W. 1081; 153 
Iowa, 639. Where there is no sub- 
stantial dispute on a material ques- 
tion of fact, or where a verdict of the 
jury would be .set aside when ren- 
dered, the judfre should not order a 
jury trial. 85 A. 136, 237 Penn. 189; 
Brings V. Caldwell, 76 S. E. 616, 93 
S. C. 268. 

8. Cowie V. Strohmeyer. 136 N. W. 
956, 150 Wis. 401; 141 N. W. 226, 
153 Wis. 337 (probate procedure 
strictlv limited unless local statute 



SG 



CHAP. II.] PKOBATE OF THE WILL. § 1084: 

usually a matter of judicial discretion, according to the facts of 
the case.^ 

Judges of probate, acting in the first instance, usually determine 
issues before them, under the practice of the several States, without 
the intervention of a jury.-^ And in general, actions to contest 
the validity of a will or to resist or set aside, are chiefly statutory 
in the different States. A time limit is usually set for appeals 
and only parties interested or aggrieved by the probate decree are 
recogTiized.' 

§ 1084. Lost Wills ; Informal Alterations, etc. 

A will, proved to have been duly executed, which cannot be 
found after the testator's death, is presumed to have been destroyed 
by him with the intention of revoking it. But this presumption 
may be rebutted by evidence. Thus it may be shown that the will 
was torn up or burned by the testator in some insane freak, or 
through the coercion of another, or that it was accidentally or 
fraudulently destroyed, or that, the testator recognizing it to the 
last, the will must have been lost or else wrongfully suppressed 
by some one. Those interested under such a will do not forfeit 
their legal rights by the non-production of the instrument in ques- 
tion, provided its contents and due execution be shown by satis- 
factory proof, and the absence of the will sufficiently explained.^ 

extends); Holmes v. Campbell Col- 77 P. 461, 143 Cal. 580; 108 S. W. 

lege, 125 P. 25, 87 Kan. 597, 41 L. R. 46, 209 Mo. 533; 83 N. Y. S. 830. 

A. (N. S.) 1126. And see post, c. VI., §§ 1150, 1151. 

9. 69 N. E. 237, 206 111. 378; 2. See Dibble v. Winter, 93 N. E. 

Schoul. Wills, § 213a; Adams v. Page, 145, 247 111. 243. 

81 A. 1074, 76 N. H. 270; 81 A. 1133, Probate of a will may be presumed 

78 N. J. Eq. 580. Costs are only al- from the fact that it was recorded, 

lowed from the estate to contestants Hartwell v. Parks, 144 S. W. 793, 

whose ground of contest was just and 240 Mo. 537 (records burnt, real es- 

reasonable. tate title). 

1. See local practice codes; Scho- 3. Idley v. Bowen, 11 Wend. 227; 

field V. Thomas, 83 N. E. 121, 231 111. Clark v. Wright, 3 Pick. 67; Foster's 

114; 83 N. E. 611, 77 Ohio St. 417; Appeal, 87 Penn. St. 67; Mercer v. 

Phillips V. Phillips, 72 N. E. 1149, 179 Mackin, 14 Bush, 434; 1 Redf. Wills, 
N. Y. 585; 80 P. 751, 38 Wash. 442; 

987 



§ 1084 



EXECrXOES AXD ADMINISTEATORS. 



[PAKT II. 



Where only a part of tlie contents of a lost will can be proved, that 
part has been held admissible to probate ; though this seems an un- 
desirable rule to extend far.* If another person was custodian of 
the will, and the testator had not ready access to it, there appears 
no presumption that it was destroyed with the intent of revoking. 
The evidence in all cases of a lost will should be strong, positive, 
and not uncertain.^ 

Alterations, erasures, and obliterations found in a will should 
be treated according to circumstances. If they preceded the for- 
mal execution, they stand as the final expression of the testator's 
wishes ; but if made afterwards, the instrument in its altered shape 



338-350; Wms. Exrs. 153, 378, 379; 
Harvey's Goods, 1 Hagg. 595; Burls 
V. Burls, L. R. 1 P. & D. 472; Voor- 
hees V. Voorhees, 39 N. Y. 463; Ford 
V. Teagle, 62 Ind. 61; Johnson's Will, 
40 Conn. 587 ; Nelson v. Whitfield, 82 
N. C. 46. Contents may be estab- 
lished by testimony of witnesses who 
have heard it read. Morris v. 
Swaney, 7 Heisk. 591. Or by other 
secondary proof, such as may suffice. 
Sclioul. Wills, (Vol. 1.) § 402 and 
cases cited. Whether proof of a resi- 
duary bequest alone will suffice, see 
Woodward v. Goulstone, commenting 
on 1 P. D. 154; 11 App. 46!). 

4. Sugden v. Lord St. Leonards, L. 
E. 1 P. D. 154; Steele v. Price, 5 B. 
Mon. 58. But if witnesses differ ma- 
terially as to some of the provisions 
of the will, the will cannot be proved. 
Sheridan v. Houghton, 6 Abb. (N. Y.) 
N. Cas. 234. See Brassington's Goods, 
(1902) P. 3 (parties interested in 
intestacy not sui juris). 

The suspected custodian of a miss- 
ing will should be cited into the Pro- 
bate Court, as shown supra. § 1054, 
and reasonable exertions made to find 
the original document, according to 



circumstances, before probate can be 
granted upon secondary evidence of 
the contents. 

5. Schoul. Wills (Vol. I), § 402. A 
lost, suppressed, or destroyed will, 
which ought to be sustained, may be 
probated, no statute prohibiting, or 
may be established by a court of 
equity. Dower v.Seeds, 28 W. Va. 
113. The contents of such a will may 
be proved by the satisfactory testi- 
mony of a single person. But the 
proof of contents should be clear. 
So must suitable notice be given to 
interested parties or their assent ob- 
tained. (1896) P. 289; Schoul. Wills, 
(Vol. I.), § 402. The probate court 
usually has exclusive original juris- 
diction as to establishing a lost will. 
Beatty v. Clegg, 73 N. E. 383, 214 111. 
34. See, further, Harris v. Camp, 76 
S. E. 40, 138 Ga. 752; 71 S. E. 955, 
130 Ga. 565: Ricks v. Wilson, 70 S. 
E. 476, 154 N. C. 282; Cassem v. 
Prindle, 101 N. E. 241, 258 111. 11; 
Jackson v. Hewlett, 77 S. E. 518, 114 
Va. 573; Hall v. Hall, 155 S. W. 755, 
153 Ky. 379; Cassidy's Will, 82 A. 
920, 80 N. J. Eq. 163; 135 N. Y. S. 
515; 134 N. W. 905, 148 Wis. 382. 



988 



CHAP. II.] PKOBATE OF THE WILL. § 1085 

must have been duly attested, or else the alteration will fail, and 
probate be granted as of a valid testament, according to the orig- 
inally attested expression.® The effect of obliterating or cancelling 
should depend as a rule upon the testator's intention ; but partial 
revocations and changes informally made as to an executed will, 
our later statutes wholly discourage ; nor can there be a valid can- 
cellation without the exercise of a free will and a sound mind.'^ 

§ 1085. Probate in Whole or in Part. 

It follows from the preceding summary of principles that pro- 
bate of a will may require a nice judicial discrimination. To 
identify and record as genuine the last will and testament of the 
deceased is the peculiar province of the probate court; and the 
probate of a will, not appealed from, or confirmed upon appeal, 
settles all questions as to the formalities of its execution and the 
capacity of the testator, but not the validity or invalidity of any 
particular bequest, nor any question of construction.^ To construe 
a will duly probated, and define the rights of parties in interest, 
remains for other tribunals; they must interpret the charter by 
which the estate should be settled in case of controversy ; while the 
probate court, by right purely of probate or ecclesiastical functions, 
establishes and confirms that charter. But in order to do this, 
the probate tribunal throws out the false or the superseded will, 
or the instrument whose execution does not accord with positive 
statute requirements; it determines what writing or writings shall 
constitute the will. Moreover, in numerous instances, the Eng- 
lish rule has been, that a will may be in part admitted to probate 
and in part refused ; as, for example, where some clause has been 
fraudulently inserted in the will without the testator's knowledge 

6. Wms. Exrs. 143-153; Schoul. 8. Hawes v. Humphrey, 9 Pick. 
Wills (Vol. I.), Part IV., c. 2. 350. And see Schoul. Wills (Vol. I.) 

7. Schoul. Wills, (Vol. I.) §§ 382, §§ 223, 248-251. As to full or 
432; supra, § 1082. As to a parol partial probate in case of error, see 
revival after express revocation, see ib. §§ 216-219. 

Blacliett V. Ziegler, 133 N. W. 901. 
153 Iowa 344. 

989 



§ 1085 EXECUTORS AND ADMINIST5ATOE.S. [PART II. 

and free consent, or in other instances of illegal and improper 
alteration, after the will was formally signed and attested.^ AVhere 
the executor was misdescribed or imperfectly described, to ascer- 
tain his identity may be incidental to granting the proper letters 
testamentary.^ The probate tribunal may, from the best proof 
afforded, gather and set forth the items of a will which has been 
lost or accidently destroyed, or rendered illegible, so far as the 
last wishes of the testator may thus be established with certainty.^ 
But jurisdiction to separate the false from the true and except 
special clauses from probate, is to be exercised with the utmost 
prudence; and in England the spiritual courts could not, even by 
consent, expunge material passages which the testator intended 
should make part of his will, nor substitute names, nor identify 
legatees, nor make the probate an occasion for commentary upon 
the testator's text ; " wdiile in this country the usual tenor of the 
decisions is to require probate to be granted of a testamentary in- 
strument, as it stood when duly signed and attested, but otherwise 
without ruling out one part of it or another.* 

9. Wms. Exrs. 377, 378; Plume v. P. D. 68. And see Schoul. Wills, 

Beale, 1 P. Wms. 388; Allen v. Mc- (Vol. I.) §§ 248-250. 

Pherson, 1 H. L. Cas. 191; Hej^arty's 1. Sliuttleworth's Goods, 1 Curt. 

Appeal, 75 Penn. St. 514; Welsh, In 911. 

re, 1 Redf. Sur. 238; Fulton v. An- 2. Trevelyan v. Trevelyan, 1 Phil- 
drew, L. R. 7 H. L. 448. Semblc that lim. 149; Wms. Exrs. 380-382; Sug- 
in the English probate, scurrilous den v. Lord St. Leonards, L. R. 1 P. 
imputations in a will, not affecting D. 154; Rhodes v. Vinson, 9 Gill, 169. 
the disposition of the estate, may be 3. Notes of Cas. 278; Wms. Exrs. 
excluded from the probate. Hony- 378, 379; Curtis v. Curtis, 3 Add. 33. 
wood's Goods, L. R. 2 P. & D. 251 ; 1 4. If a will may take effect in any 
Robert. 423; Wms. Exrs. 378. As to part, it may be admitted to probate 
this country, Cf. Meyer Re, 131 N. Y. although indefinite in other parts. 
527; Le Blanc's Succession, 55 So. George v. George, 47 N. H. 27. Pro- 
672, 128 La. 1055. And as to a par- bate of a will which contains illegal 
ticular bequest procured by undue and void bequests may be general, 
influence, see Fulton v. Andrew, and without reservation of such parts. 
supra; Harrison's Appeal, 48 Conn. Bent's Appeal, 35 Conn. 523; s. c. 38 
202. A word mistakenly introduced Conn. 26; Hegarty's Appeal, 75 Penn. 
into a will may l)o stricken out in St. 503. But cf. Welsh, In re, 1 Redf. 
the probate. Morrcll v. Morrell, 7 (N. Y.) 238. Probate of a lost will 

990 



CHAP. II.J PROBATE OF THE WILL. § 108G 

A partial probate assumes that the instrument executed by tli3 
testator contained a false part which was so distinct and severable 
from the true part, from that which was his will, that the rejection 
of the former does not alter the construction of the true part. But 
where the rejection of words or a clause necessarily alters the sense 
of the remainder of the will, the question is more difficult; for 
even though the court be convinced (to use the words of Lord 
Blackburn) that the words were improperly introduced, so that 
if the instrument was inter vivos, they would reform the instru- 
ment and order one in different words to be executed, they cannot 
make the dead man execute a new instrument.^ There is no differ- 
ence, at all events, between the words which a testator himself 
uses in drawing up his will and the words which are bona fide 
used by one whom he trusts to draw it up for him ; and the will 
in either case must be probated and construed as it reads.'' And 
while words or a clause introduced into a will fraudulently, or 
simply without the testator's knowledge or authority, may b^ 
stricken out, the probate admitting of such a severance withouc 
doing violence to the rest of the will, partial changes cannot be 
made in the probate where the testator knew and virtually adopted 
the words or clause.^ In general, a full probate does not insure 
against a partial failure in effect.^ 

§ 1086. Probate in Fac-Simile, or by Translation. 

According to English practice under the statute 1 Vict. c. 26, 

should be granted as it existed in its 7. See Harter v. Harter, L. R. 3 P. 

integral state if this can be ascer- & M. 11, 22; Schoul. Wills, (Vol. I.) 

tained. Scruby v. Fordham, 1 Add. §§ 223, 248-251. 

74. And see supra, § 1084. See 8. For probate of an altered will, 

further, Swartz's Will, 139 N. Y. S. see also Schoul. Wills, (Vol. I.) 

1105; 136 N. Y. S. 933. §§ 434, 435. And as to probate of 

5. See Rhodes v. Rhodes (1SS2), 7 joint or mutual wills, see ib. §§ 450- 
App. Cas. 192, 198. Quaere whether 459. Where the will gave the wrong 
there is in such a case a valid will surname to the executor, the court 
within the meaning of the statute. corrected the probate and issued let- 
lb. ters to the right person. Cooper's 

6. Rhodes v. Rhodes, 7 App. Cas. Goods, (1899) P. 193. 
192. 

991 



§ 10S7 EXECUTOES AXD ADillXISTEATOES. [PAET 11. 

if a will presented for probate contains upon its face an unattested 
alteration or obliteration, the change must be accounted for; and 
if, upon full proof, the will appears to have been executed before 
the alteration was made, probate may be engrossed as if the change 
had not occurred, unless it appears likely that the construction of 
the will might be affected by the appearance of the paper, in which 
case a probate in facsimile is decreed.^ 

"Where a will is written in a foreign language, probate may b© 
granted with an accompanying translation.^ 

§ 1086a. Slanderous Statements in a Will. 

Slanderous statements contained in a will may be omitted from 
the probate. 



la 



§ 1087. Probate of Two or More Testamentary Papers; Dupli- 
cate Wills ; Grant to Executors. 

Probate is not necessarily confined to a single instniment ; but 
several papers may be found to constitute altogether the last will 
of the deceased, and be entitled to probate accordingly; ^ and let- 
ters testamentary may be granted to all the executors named in the 
several papers.^ 

Where a will is executed in duplicate, only one of them is to be 
probated, but the other copy ought to be produced in court if pos- 
sible.^^ 

Probate granted once at the domicile inures to the benefit of all 

9. Gann v. Gregory, 3 De G. M. & Perkins; Harley v. Bagshaw, 2 Phil- 

G. 777; Wms. Exrs. 331, 332. lim. 48; Tonnele v. Hall, 4 Comst. 

1. Wms. Exrs. 386. In such case it 440; Plielps v. Robbins, 40 Conn. 250. 
seems proper that original and trans- 3. Morgan's Goods, L. R. 1 P. & D. 
lation should pass to probate to- 323. Cf., however, as to the probate 
gether; the original serving as the wliore different executors were ap- 
test, should questions of interprota- pointed for different countries, .Astor, 
tion arise in other courts. See L'Fit Goods of, 1 P. D. 150. See also 
V. L'Batt, 1 P. Wms. 52G; Mayer's Sclioul. Wills, (Vol. I.) § 280. 

\\ ill, 144 N. Y. S. 438. 3a. Schoficld's Will, 129 N. Y. S. 

la. White Rr, (1914) W. N. 228; 190; 140 N. Y. S. 478 (triplicate? 
eupra, p. 990. execution). 

2. \\'ins. Exrs. 107, and note by • 

992 



CHAP. II.] PKOBATE OF THE WILL. § 1089 

who may be appointed within the domestic jurisdiction to execute 
the will and administer the estate.* And though different execu- 
tors be designated by the will to ser\'e, with distinct powers, or 
for different periods of time, but one proving of the will is 
requisite.^ 

§ 1088. Decree of Probate entered; Public Custody of the Will. 

The general form of decree recites the admission of the will to 
probate, with perhaps the citation of kindred and procedure under 
the proponent's petition; it embraces usually the appointment, 
besides, of the executor or an administrator with the will annexed. 
The will having been proved, the original is deposited in the 
archives of the registry, and a copy entered upon the records ; an 
attested copy being also delivered to the duly qualified executor or 
administrator with his letters, as constituting the full credentials 
of his official authority.^ Where the original probate was lost, the 
spiritual court granted no second probate, but furnished an exem- 
plification from the records ; ^ and in American practice, at this 
day, certificates under seal are regularly furnished by the registrar 
of probate as the convenience of individuals may require.^ 

§ 1089. Nuncupative Wills. 

It remains to make mention of nuncupative wills, or those which 
consist in a verbal disposition by the testator in presence of wit- 

4. Watkins v. Brent, 7 Sim. 512; roll v. Carroll, 6 Thomp. & C. 294. 
Wms. Exrs. 382. Where letters testamentary were is- 

5. Wms. Fxrs. 382; 1 Freem. 313; sued and a/ record made of the exec- 
Bac. Abr. Exrs. C. 4. utor's appointment, the appointment 

6. See Wms. Exrs. 385, 385, as to is not vitiated by the clerk's failure 
the English practice. to record the letters testamentary. 

7. Wms. Exrs. 386; 1 Stra. 412. Wright v. Mongle, 10 Lea, 38. See 

8. As to transcript of the record of a-lso Parsons' Estate, 114 P. 570, 159 
probate of a will devising land and Cal. 425 (judge's formal admission to 
its effect in ejectment, see Allaire v. probate) ; Harris v. Wyatt, 74 S. E. 
Allaire, 37 N. J. L. 312. Death of 189, 113 Va. 254. See also 96 Mo. 
a person presumptively established by 348, 1 Xeb. Unoff. 372. 
production of the probate, etc. Car- 

C3 993 



§ 10S9a 



EXECUTORS AND . ADMIXISTEATOES. 



[PAET II. 



ness€S. In early times such wills were as to personal estate quite 
efficacious ; but under the Statute of Frauds and the various Wills 
Acts of later date in England and the United States the privilege 
has become restricted almost exclusively to soldiers in actual mili- 
tary service and mariners at sea, with the addition, perhaps, of 
estates of a trifling value in other instances. Such wills, moreovei-, 
are favored as to personal but not as to real property.^ All nun- 
cupative wills are established in probate by convenient proof of the 
testator's expressed wishes under appropriate circumstances, and 
while in testamentary condition, strict proof being required accord- 
ing to the intent of the local statute.^ 

§ 1089a. No Injunction ; Effect of Probate. 

Such is the exclusive jurisdiction of probate courts, in the first 
instance, over all probate of wills, that a court of equity cannot in- 
terfere by injunction to prevent an alleged will from being offered, 
nor otherwise obstruct the probate court in its primary discre- 
tion.^ 



9. Stat. 29 Car. 11. c. 3, §§ 19-23; 
2 Bl. Com. 501. 1 Vict. c. 26, § 11. 

1. As to nuncupative wills, see at 
length Sclioiil. Wills, (Vol. I.) Part 
III., c. 4, and cases cited; Wms. E:;rs. 
110-123, 394. 

The ground in general, of admitting 
nuncupative wills to stand, appears 
to be that the deceased had not time 
nor fair opportunity to reduce his 
will to writing before he died. See 
as to " oral wills," Mulligan v. 
Leonard, 46 Iowa, 692. See also 
Greenleaf's Estate, 125 P. 789, 69 
Wash. 478. Informal writings are 
favored in the case of soldiers and 
mariners, as above. Schoul. WMlls, 
(Vol. I.) § 378. 

2. Israel v. WoU, 100 Ga. 339, 28 
S. E. 109. See also as to Federal 
courts, § 1029. And see Wooften v. 

99 



Matz, 7C S. E. 131, 71 W. Va. 63; 
Bradley v. Bradley, 83 A. 446. 117 
Md. 515; Dibble v. Winter, 93 N. E. 
145, 247 111. 243; Werner v. Wheeler, 
127 N. Y. S. 158; Wells v. Thompson, 
78 S. E. 823, 140 Ga. 119, 47 L. R. A. 
(X. S.) 772; 88 A. 311, 241 Pcnn. 117. 

The probate of a will cannot be at- 
tacked in a collateral proceeding; but 
a direct appeal and review concludes 
tl'.e matter. Dibble v. W^inter, 93 N. 
E. 145, 247 111. 243; Kaplan v. Cole- 
man, 60 So. 885, 180 Ala. 257; Giv- 
en''s Estate, SI A. 64, 232 Penn. 3; 
O'Gorman v. Pfciffer, 130 K Y. S. 
77 (unless local statute enlarges 
specially) ; 137 N. Y. 1002. 

Aliter, where the probate decree 
shows on its face that only one wit- 
ness signed the will. Blaclcshor Co. 
V. Northrup, 57 So. 743, 70 Ala. 190. 

1 



CHAP. II.] PKOBATE OF THE WILL. § 1089a 

The effect of probate, indeed, aside from the issue of testamen- 
tary credentials to an executor, is to authenticate the formal dis- 
position made by decedent as his last will, with all due fonnalities. 
Devisavit vel non is here the issue. But as to the decedent's title 
to property, or his right to dispose, as declared by him, or the legal 
meaning or effect of the instrument itself, the probate decides noth- 
ing, but leaves all interested parties to settle such controversi©? by 
other proceedings, based upon the fact of such probate.^ 

Or in general, where the jurisdictional the decedent had bound himself by 

defect appears on the face of the contract to dispose of his property 

record. See post, § 1092. diflferently, or that the will offered re- 

3. Sumner v. Crane, 115 Mass. 483, vokes a will made upon contract co'i- 

and cases cited. Hence probate is not sideration. See §§ 1160, 1161; Schoul. 

to be restrained by the objection that Wills (Vol. I.), §§ 456-459. 

995 



§ 1090 EXECUTOES AXD ADMI]N"ISTKATOES. [PART II. 

CHAPTER III. 

APPOINTMEin' OF OEIGINAL AND GENERAL ADMINISTEATOES. 

§ 1090. Original and General Administration granted wherever 
there is no Executor, etc. ; Origin of this Jurisdiction. 

The grant of original and general administration by a probate 
court corresponds to that of letters testamentary issued to an execu- 
tor; its application being, however, in cases where a deceased per- 
son whose estate should be settled either died wholly intestate or 
left a will of which, for some reason, no one can be a qualified 
executor within the jurisdiction. According to the various cases 
which may arise, there are various special kinds of administration, 
besides what may be tenned '' general administration." 

Anciently, as we have seen, it was regarded in England as a pre- 
rogative of the crown to seize upon the goods of one who had died 
intestate, and dispose of them for the benefit of his creditors and 
family; but the prelates, being afterwards intrusted with these 
functions, appropriated a large part of such estates upon the pre- 
tence of pious uses, until Parliament interposed and required them 
thenceforth to depute administration to " the next and most law^ful 
friends of the dead person intestate," who should be held account- 
able to the ordinai'ies, and in common-law courts in the same man- 
ner as executors.^ Hence originated the office of administrator 
in the modem sense of our law; and estates testate and intestate 
becoming thus assimilated, ecclesiastical courts were taught to con- 
fine their jurisdiction to issuing the credentials of title and au- 
thority in either case under fixed and uniform rules, and to super- 
vise without meddling in the active management of the affairs of 
the dead. Finally, in England, as in the several United States, 
the whole authority as to probate, and the settlement of the estates 
of deceased persons departed from ecclesiastical control and be- 

1. Hupra, § 1007; Wms. Exrs. 401- 
404; 31 Edw. 3, c. 11, § 1; 2 Bl. 
Com. 495. 

99G 



CHAP. III.] APPOINTMENT OF ADMINISTRATORS. § 1091 

came vested in responsible civil tribunals, known most commonly as 
courts of probate, and exercising what is styled " probate jurisdic- 
tion." 2 

§ 1091. Intestacy Fundamental to the Grant of General Admin- 
istration; Death and Domicile or Local Assets. 

To the grant of general and original administration upon the 
estate of a deceased person, intestacy is a prerequisite ; such alle- 
gation should be made in the petition, and the court should have 
reason to believe the statement true.^ Letters of general adminis- 
tration, granted during the pendency of a contest respecting the 
probate of a will, or after probate, regardless of the executor, are 
null and void.* And local statutes interpose reasonable delay to 
such grants of administration, in order to give full o'lportunity 
for the production of a will, so that the estate may be generally 
committed, if need be, according to the last expressed wishes of the 
deceased. 

Death of the intestate is of course a fundamental requirement,^ 
and the grant of administration to any one is prima facie, though 
by no means conclusive- evidence, that the death has actually oc- 
curred.^ 

So, too, as in the probate of a will, primary jurisdiction should 
be taken in the county where the deceased was domiciled or resided 
at the time of his death.'^ But, inasmuch as public law treats the 
gathering in of a dead person's property as a matter of mutual 
convenience to creditors, kindred, and the State or Sovereign, stat- 
utes now in force in most civilized States or countries provide ex- 

2. Part I.; Wms. Exrs. 401-404", special administration. And as to 
English Stat. 29 & 21 Vict. c. 77 waiver of an alleged will by all the 
(Court of Probate act of 1857). parties in interest, see (1899) P. 187, 

3. Bulkley v. Redmond, 2 Bradf. 191, 247. 

Sur. 281. 5. §§ 1001a, 1055 and cases cited. 

4. Slade v. Washburn, 3 Ired. 557; 6. lb. 

Pvyno V. Ryno, 27 N. J. Eq. 522; Lan- 7. This, if the decedent's domicile 

ders V. Stone, 45 Ind. 404; Watson be otherwise uncertain, is generally 

V. Glover, 77 Ala. 323 ; Miller's Es- assumed as in the State or county 

tate, 65 A. 681, 216 Penn. 247. But where he died. Leake v. Gilchrist, 2 

see post, § 1135, as to letters of Dev. 73, §§ 1021-1023, 1057. 

997 



§ 1092 



EXECUTOES AXD ADMINISTEATOES. 



[part II. 



pressly for administration upon the estates of persons who die 
resident abroad, leaving property to be administered within the 
domestic jurisdiction. In such a case, the grant having no extra- 
territorial force, and the State showing solicitude for the rights of 
foreign parties in interest, if there be such, the existence of bona 
notabilia or local assets is taken, nevertheless, to confer the juris- 
diction, regardless of domicile.^ Hence original general adminis- 
tration may be granted upon either of two distinct grounds: (1) 
last domicile or residence; or (2) in case of non-residence, asset3 
within the local jurisdiction of State or country. But as far as 
a certain State or country is concerned, the county of last domi- 
cile or residence of the decedent is the appropriate one.^ 

§ 1092. Presumption favors Jurisdiction where the Grant is con- 
ferred; but the Fundamental Facts must exist. 
In genera], the county court of probate will be presumed to have 



8. See post, §§ lllfi, 1117, as to 
public administrators; supra, §§ 1024- 
1027: Wilkins v. Ellctt, 108 U. S. 
256, 27 L. Ed. 718; Little v. Sinnett, 
7 Iowa, 324. Generally, personal es- 
tate is requisite for conferring such 
jurisdiction : or estate, at least, 
wliich in a due course of administra- 
tion would be converted into person- 
alty. Crosby v. Leavitt, 4 Allen, 410 ; 
Grimes v. Talbert, 14 ]\Id. 169; Thumb 
V. Greeham, 2 Met. (Ky.) 306; Jef- 
fersonville R. v. Swayne, 26 Md. 474; 
Eoughton V. Bradley, 34 Ala. 694, 73 
Am. Dec. 474; supra, § 1028. Land 
may be regarded as " assets " under 
a statute conferring local jurisdic- 
tion. Bisliop V. Lalonette, 67 Ala. 
197; Temple v. Cain, 60 Miss. 47S; 
Lees V. VVetmore, 58 Iowa, 170, 12 
N. W. 238; §§ 1024-1027 Claim of 
damages for death from negligence 
is deemed local assets. See §§ 1024- 
1027; Reiter Conley Co. v. ITamlin. 

098 



40 So. 280, 144 Ala. 192. Statutes 
are found conferring such riglits 
specially. But as to statute claim 
for damages solely for benefit of 
widow and next of kin, see Perry v, 
St. Joseph R., 29 Kan. 420. 

9. Sometimes by statute declared 
the county of "' exclusive jurisdiction." 
King's Estate, 105 Iowa, 321. Let- 
ters of administration will be vacated, 
wherever the jurisdictional facts did 
not exist. Power v. Green, 76 S. E. 
567, 139 Ga. 64. But the legal proof 
of such non-existence should be satis- 
factory. Owsley Re, 137 N. Y. S. 
1040. And see Dayton Co. v. Dodd, 
188 F. 597, 110 C. C. A. 395. There 
can be no collateral attack of the 
probate appointment unless the jur- 
isdictional defect appears on the face 
of the record. Dayton Coal Co. v. 
Dodd, 188 F. 597, 110 C. C. A. 395; 
supra, § 1089a. 



CHAP. III.] APPOINTMENT OF ADMINISTEATOES. 



§ 1092a 



exercised its jurisdiction lawfully and upon satisfactory evidence 
of the essential facts. And this jurisdiction is not usually to be 
attacked in collateral proceedings, but the order granting adminis- 
tration must be reversed on appeal, or the letters themselves re- 
voked or vacated.^ But, if the person upon whose estate letters 
were issued proves not to have died in fact, the grant is without 
jurisdiction." liiov can a county court rightfully grant adminis- 
tration, unless either the deceased was domiciled (or resident) 
therein, at the time of his decease, or, if a non-resident of the State 
or country, has left suitable property in the county to be adminis- 
tered upon.^ 

§ 1092a. Administration Grant in Ignorance of a Will. 

So, too, the grant of administration, in ignorance of a valid will 
appointing an executor, is void, ah initio^ though procured in good 
faith." 



1. Roderigas v. East River Saving^ 
Inst., 63 N. Y. 460, 30 Am. Rep. 555; 
46 N. J. L. 211; Ilobson v. Ewan, 62 
111. 146 ; McFeeley v. Scott, 128 Mass. 
16; § 1160. 

2. Jochumsen v. Suffolk Savings 
Bank, 3 Allen, 87; Moore v. Smith, 11 
Rich. 569 ; Hooper v. Stewart, 25 Ala. 
408, 60 Am. Dec. 527; D'Arusment 
V. Jones, 4 Lea. 251 , 40 Am. Rep. 12 ; 
Thorman v. Frame, 176 U. S. 350. 
The person whose estate was commit- 
ted to administration may claim, if 
alive, that his property was taken 
without due process of law. Labin v. 
Emigrant Bank, 18 Blatchf. 1 ; Burns 
v. Van Loam, 29 La Ann. 560. Sen- 
tence of a person to imprisonment for 
life does not justify the grant of ad- 
ministration upon his estate as of 
one " civilly dead." Frazer v. Ful- 
cher, 17 Ohio, 260; 50 Hun, (N. Y.) 
523. Even if the person, in fact alive, 
had been absent and not heard of for 



fifteen years, the grant of letters is 
void. Devlin v. Commonwealth, 101 
Penn. St. 273, 47 Am. Rep. 710. And 
see Scott v. McNeal, 154 U. S. 34, with 
citations, 38 L. Ed. 896. Wlicther 
local codes may change such rules and 
allow administration as in effect after 
seven years, see N. Y. Life Co. v. 
Chittenden, 112 N. W. 96, 134 Iowa 
613, 11 L R. A. (N .S.) 233, 107 
N. Y. S. 491. See Wisconsin Trust 
Co. v. Wisconsin Bank, 81 N. W. 642, 
105 Wis. 464; Donovan v. Major, 97 
N. E. 231, 253 111. 179 (letters in- 
valid only from the time that the pre- 
sumption of death is rebutted). 

3. As to bringing property into the 
jurisdiction, see supra, § 1025. And 
see Paul v. Willis, (Tex.) 7 S. W. 
357; Moore v. Moore, 33 Xeb. 509, 50 
N. W. 443; § 1093. 

4. Hewson v. Shelley, (1913) 2 
Ch. 384 (sale of real estate by ad- 
ministrator to pay debts). 



999 



§ 1093 EXECUTOES A^"D ADMIXISTEATORS. [PAET II. 

§ 1093. Value or Kind of Estate, whether Fundamental. 

Under various American statutes a limitation of value is set 
to the grant of original administration, so that the court cannot 
grant letters, unless there appears to be estate of the deceased 
amounting, at all events, to a specified sum, as for instance twenty 
dollars.^ But apart from express acts of this tenor, no such par- 
ticular amount appears requisite; and in Massachusetts, legisla- 
tion restrains only the grant of administration de bonis non in 
this manner.^ "Where there are debts due from the estate, and no 
personal property but only real estate left by the deceased, there 
is usually a probate jurisdiction, provided the real estate can by a 
sale or conversion into personalty be made to respond for such 
debts.'' In general, the existence of assets within the State or coun- 
try is essential only when the jurisdiction concerns the estate of 
a, non-resident deceased person; the situation of estate being here 
the test, but in principal grants simply the last residence or domi- 
cile of the deceased.^ 

Administration may be granted for procuring assets by litiga- 
tion, on behalf of creditors for instance, who seek to set aside a 
conveyance claimed to be fraudulent and voidable.^ Trust or 
partnership property, however, is not estate to be administered, 
but an individual's own property is the criterion.^ 

5. Bean v. Bumpus, 22 Me. 549; 81 43 N. W. 889; 148 Mass. 248, 19 N. E. 
Me. 207. 370. 

6. Pinney v. McGregory, 102 Mass. 1. See Shaw's Appeal, 81 Me. 207, 
89, per Gray, J.; Jochumsen v. Wil- 16 A. 662; 4 ISIason 16, 29; 
lard, 3 Allen, 87. And see as to Johnson v. Ames, 11 Pick. 173. 
estates worth less than $300, Ind. Where the decedent was member 
statute referred to in Pace v. Op- of a partnership and the personal 
penheim, 12 Ind. 533. See also 128 property all belongs to the firm, 
K. \V. 58, 143 Wis. 497. the winding up of the partnership 

7. Little V. Sinnett, 7 Iowa, 324 ; belongs rather to an equity court than 
Murphy v. Crcighton, 45 Iowa, 179; a court of probate, but administra- 
§ 1091. tion assets should be rather such as 

8. Harlan's Estate, 24 Cal. 182, 85 definitely belong to the individual, 
Am. Dec. 58; Watson v. Collins, 37 wliother by an immediate dissolu- 
Ala. 587; § 1024, supra. tion on his death with a winding up, 

9. Nugcnt's Estate, 77 Mich. 500, or otherwise. Shaw's Appeal, supra. 

1000 



CITAP. 



III.] 



APPOINTMENT OF ADMINISTKATORS. 



109i 



§ 1094. Time within which Original Administration must be ap- 
plied for. 

Statutes are found which expressly limit the time within which 
original administration must be applied for. Thus, in Massachu- 
setts, such administration cannot (with a certain reservation) bo 
granted after twenty years from the death of the person whose 
estate is concerned;^ though no such limits are set to the probate 
of a will.^ English practice requires any delay longer than three 
years in applying for letters to be satisfactorily explained, whether 
the application be for letters testamentary or of administration.* 

Long acquiescence by persons sui juris in an infonnal distri- 
bution of an estate will debar them from seeking the administra- 
tion merely to disturb such settlement, there being no creditors.^ 

§ 1095. No Original and General Administration granted while 
Other Letters are in Full Force, etc. ; Double Jurisdic- 
tion. 
There can be, of course, no grant of original and general admin- 



2. In Mass. Gen. Stats, c. 94, §§ 3, 
4, there is the express reservation that 
when property accrues to the estate 
or first comes to the knowledge of a 
person interested after twenty years, 
etc., administration may be applied 
for, as to such property, within five 
years. lb. See Parsons v. Spaulding, 
130 Mass. 83; Dallinger v. Morse, 94 
N. E. 701, 208 Mass. 501 (a fund 
withheld by State Treasurer and 
"undistributed"). See also, as to 
the demurrer that there is no prop- 
erty, Brooks Re, 110 Mich. 8. 

3. Supra, § 56; Shumway v. Hol- 
brook, 1 Pick. 114. 

4. Wms. Exrs. 7th ed. 452. 453; 3 
Hagg. 565. And see Townsend v. 
Townsend, 4 Coldw. 70, which makes 
exceptions after twenty years in favor 
of those who were infants or married 
women when tlie death occurred. 
Under the Texas act of 1870 no such 
administration can be granted after 



four years have elapsed from the 
death of the intestate. Lloyd v. 
Mason, 38 Tex. 212. But in North 
Carolina an administrator may be ap- 
pointed at least ten years after the 
intestate's death, notwithstanding the 
next of kin possessed the property 
meantime. Whit v. Ray, 4 Ired. 14. 
In Pennsylvania, letters should not 
be issued after twenty years, except 
under statute qualifications. But as 
to the effect of so issuing, see Foster 
V. Commonwealth, 35 Penn. St. 148. 
Seven years is the Connecticut lim- 
itation in intestate estates only, 49 
Conn. 411. See Colburn's Appeal, 56 
A. 608, 76 Conn. 378; Mowry v. 
Latham, 20 R. I. 786. 

A reasonable time to apply for let- 
ters is in general permitted. Tod- 
hunter v. Stewart, 39 Ohio St. 181; 
18 Ga. 520. 

5. Beardslee v. Reeves, 76 Mich. 
661; Ledyard v. Bull, 119 N. Y. 62. 



1001 



§ 1096 EXECUTORS a:s'd admi:s^isteatoes. [part ii. 

istration, while other letters granted and confirmed as of a testate 
estate or to an original administrator remain in full force within 
the same general and appropriate jurisdiction.® And hence the 
rule, convenient where local assets may confer double jurdisdic- 
tion, that when a case is within the jurisdiction of the probate 
court in two or more counties, the court which first takes cogni- 
zance thereof by the commencement of proceedings shall retain 
the same, and the competent administration first granted shall 
extend to all the estate of the deceased in the State, so as to ex- 
clude the jurisdiction of every other county.^ But where the court 
of county of last residence has exclusive jurisdiction in a State, 
it may properly ignore as void an appointment in another county 
of the SUte.^ 

Real estate, to be appropriated to the payment of a debt of the 
decedent, may perhaps require a local appointment of adminis- 
trator under the rale of situs f but, notwithstanding such appoint- 
ment, an administrator, appointed in the local jurisdiction where 
the decedent resided, becomes the principal and primary adminis- 
trator, and entitled eventually as such to the personal assets.^ 

§ 1038. Judicial Inquiry into the Facts Essential to the Grant of 
Administration. 
Letters of administration are issued by the court in many 
States, upon the mere allegations of the petitioner, aided by the 
public nature of the proceedings, and the requirement of a bond 
for general security. ^Yhere such is the practice, the grant itself 
must needs afford very little proof of the facts essential to juris- 
diction, unless those facts were controverted ; and tlie adminis- 

6. Landers v. Stone. 45 Ind. 404; 9. See post, Part VI., as to admin- 
Rlade v. Washburn, 3 Ired. L. 557; 58 istrator's dealings with real estate. 
N. E. 734 (wrong county). See § 1. Chamberlin v. Wilson, 45 Iowa, 
1121 po8t. 149; post, as to ancillary adminis- 

7. § 1024, supra. For a similar tration, etc. As to a land claim, see 
Enjrlish local rule, cf. Ross /.v, Fletcher v. McArtliur, 68 Fed. 65; 58 
(1007), 1 Ch. 482. Fed. 51, 65, 66, 29 L. R. A. 73. 

8. King's Estate, 105 Iowa, .320, 
75 N. W. 187. 

1002 



CHAP. III.] APPOIIV'TMEXT OF ADMINISTRATORS. § 1097 

trator should act accordingly ; under a full sense of the perilous 
responsibilities with which he has been invested. But the probate 
judge in each case has sound discretion to investigate and deter- 
mine as to death and other facts fundamental to the grant of ad- 
ministration ; and in some States the judicial nature of the inquiry 
in the probate court, and the necessity of requiring due proof, ap- 
pear to be strongly insisted upon.^ 

§ 1097. Persons to whom General Administration is granted. 

The appointment of administrators, botli in England and the 
United States, is founded upon the statute 31 Edw. Ill, c, 2 ; 
local legislation at the present day^ however, expressly regulating 
the whole subject. The policy of this statute in connection witli 
a later one, passed during the reign of Henry VIII., ^ both ante- 
dating the settlement of the American colonies, was to depnte ad- 
ministration to those most directly interested in the estate, in case 
the deceased himself had made no choice by a will. " The next 
and most lawful friends of the dead person intestate," was the 
language of the first of these statutes, which took the right of ad- 
ministering away from the clergy. Stat. Hen. VIII. c. 5, § 3, 
conferred upon the ordinary a right to exercise discretion as be- 
tween widow and next of kin, and in case various persons equal 
in degree of kindred should desire the administration.* 

The fundamental principle of both English and American en- 
actments now in force on this subject is, that the right to admin- 
ister, wherever the deceased chose no executor, shall go according 
to the beneiicial interest in the estate ; a principle which may 

2. See Roderigas v. East River Sav- petitioner's averment tliat, to his best 

ings Inst., 63 N. Y. 460; Biilliley v. knowledge, information, and belief. 

Redmond, 3 Bradf. Sur. (N. Y.) 281; M. was dead, with no other proof of 

Vogel's Succession, 16 La. Ann. 13; death. Roderigas v. East River Sav- 

Burns v. Van Loan, 29 La. Ann. 560. ings Inst., 76 N. Y. 316. And see 107 

It is not enough, in New York State, N. Y. S. 491; 105 S. W. 952; 70 P. 

to give the surrogate jurisdiction, so 369, 65 Kans. 484, 93 Am. St. Rep. 

as to render the person appointed 299. 

even a de facto administrator, that 3. Stat. 21 Henry VIII. c. 5, § 3. 

the appointment was made upon the 4. Wms. Exrs. 409, 436. 

1003 



§ 1098 EXECUTORS AXD ADMINISTEATOES. [PAET II. 

yield, however, to other considerations of sound policy and con- 
venience. And the grant should be according to the preference at 
the time, not of the intestate's death, but of the application.^ 

§ 1098. Husband's Right to Administer upon the Estate of his 
Deceased Wife. 

It was part of the common law which divested the wife of her 
personal property for her husband's benefit, and merged her status 
in his, that on her death, leaving a husband surviving, the latter 
could rightfully administer her estate to the exclusion of all kin- 
dred. The foundation of this claim has been variously stated ; 
some have though it derived from the statute 31 Edw. III., ho 
being her " next and most lawful friend ;" while others deduce it 
from the fundamental law of coverture, with whose general scops 
it fully haiTQonizes. The right is confirmed, both in England and 
in many parts of the United States, by modem statutes, and con- 
stitutes an exception to the usual rule of administration upon the 
estate of intestates.® Often, under the theory of coverture, there 
was no occasion for a husband to administer upon his deceased 
wife's estate at all; her personalty was his if recovered during her 
life, and he had to respond personally for her debts irrespective 
of her fortune; but administration might be necessary in order 
to sue or to reduce her choses into possession after her death.'' The 

5. Subject to local statute varia- 7. Sclioul. Hus. & Wife, § 405. No 
tions, of course, which one should con- administration was needful to entitle 
suit. Griffith v. Coloman, 61 Md. 250; the husband to that which he already 
87 A. 750, 120 Md. 329. The prant of possessed, by virtue of his marital 
administration must be to the per- rights, or to confirm his right to 
sons in the order and under the con- choses in action recoverable without 
tingoncics provided by the local the aid of the courts. Whitaker v. 
statute. 51 Mich. 29, 16 N. W. 188. Wliitakcr. f. Jolin. 117; Clough v. 

6. See Wms. Exrs. 410; Schoul. Hus. Bond, 6 .Jur. r,0. 

& Wife, § 405. This right is not an But see recent Maryland statute re- 
ecclesiastical, but a civil, riglit of quiring a special order of court to de- 
tlie liusband; a riglit, however, to be volve the title upon the surviving 
administered in the court of probate. husband. Wilkinson v. Robertson, 85 
Sir J. Nicholl in Elliott v. Gurr, 2 Md. 447. 
Phillim. 19. 

1004 



CHAP. Til.] APPOINTMENT OF ADMINISTRATORS. § 109S 

modern creation of a separate estate on the wife's behalf changes 
this old rule considerably; nor can the husband in these days be 
said to administer so exclusively for his own benefit as formerly.*' 
And owing to modem facilities for separation and divorce, and 
to the enlarged capacity given to the wife to act as a feme sole, 
and to acquire and dispose of property in her own right, the hus- 
band's privilege to administer upon his wife's estate in preference- 
to kindred, whether for his sole benefit or in the interest of others, 
appears a somewhat precarious one. 

Thus, in England, where a married woman lives separate from 
her husband under a protection order giving her the capacity to 
deal and be dealt with as a feme sole, administration will bo 
granted upon her death to her next of kin, exclusive of the hus- 
band.^ So may a husband's general misconduct prejudice his 
claim to administer as against others interested in the estate.^ 
And in the United States may be found similar exceptions, founded 
in considerations of the husband's misconduct, where others are 
interested in the estate, and the court has a statute discretion in_ 
the matter of appointment.^ 

8. Schoul. Hus. & Wife, §§ 408, serted, supra, § 1094. See Crippen's. 
409; Distribution, post, Part V. Estate, (1911) P. 108 (husband who 

9. Worman's Goods, 1 Sw. & Tr. had murdered his wife, whose estate 
513; Stat. 20 & 21 Vict. c. 85. Such was to be administered) ; Townsend's 
administration appears to be limited Succession, 36 La. Ann. 525. 

to the personal property the wife In most parts of the United States 

may have acquired since the hus- the husband's exclusive preference to 

band's desertion. Wms. Exrs. 411. administer on his wife's estate is 

Administration has been granted to a recognized by statute. See, upon this 

guardian elected by her son, a minor, point, Hubbard v. Barcas, 38 Md. 

without citing the husband. Stephen- 175; Willis v. Jones, 42 Md. 422; 

son's Goods, L. R. 1 P. & D. 285. Fairbanks v. Hill, 3 Lea, 732 ; Shum- 

1. (1898) P. 147. way v. Cooper, 16 Barb. 556; Happiss 

2. See Coover's Appeal, 52 Penn. v. Eskridge, 2 Ired. Eq. 54; Clark v. 
St. 427; Cooper v. Maddox, 2 Sneed. Clark, 6 W. & S. 85. To deprive him 
135. And see post, as to general in- of such right, the statute should be 
capacity for service as administrator, clear and positive in terms. A writ- 
which may apply to a surviving hus- ten agreement for separation, in con- 
band; also for limitation of the time templation of a divorce, with coven- 
within which the right should be as- ants as to property, will not be pre- 

1005 



§ 109S 



EXECUTOES AND ADMINISTEATOES. 



[PAET II. 



The wife's will, lawfully made and operating, may control a 
surviving husband's right to administer.^ And, in general, that 
the husband may be preferred in the trust, it is assumed that he 
is both competent and willing to exercise it. But the mere fact 
that the husband has no pecuniary interest in his wife's estate 
does not per se deprive him of his common-law right to admin- 
ister.* 

Both in England and the United States, if a marriage were 
voidable only and not annulled before the wife died, the surviving 
husband was alvvavs entitled to administer;^ but if utterly void, 



sumed to have intended a relinquish- 
ment of the riglit to administer in 
case the husband survives, nor will 
such construction be given, no divorce 
having been decreed. Willis v. Jones, 
42 Md. 422. Nor presumably will an 
ante-nuptial settlement for tlie wife's 
benefit. Hart v. Seward, 12 B. Mon. 
391. Nor the fact of non-residence. 
Weaver v. Chace, 5 R. I. 356. Xor 
relinquishment of rights to her prop- 
erty by a post-nuptial contract. 
O'Rear v. Crum, 135 III. 294, 25 N. E. 
1097. 

But in some States the husband is 
not entitled to administer to the ex- 
clusion of the children. Randall v. 
Shrader, 17 Ala. 333; Williamson, 
Succession of, 3 La. Ann. 261; Good- 
rich V. Treat, 3 Col. 408. This will 
become further apparent when Dis- 
tribution is considered, post, and it 
is perceived that the surviving hus- 
band must share the estate with chil- 
dren or other kindred; for the gen- 
eral principal is that the right to ad- 
minister follows the interest in the 
estate. An ante-nuptial settlement, 
properly worded, may exclude the 
husband's marital right in this 
respect. Ward v. Thompson, 6 Gill. 



& J. 349; Fowler v. Kell, 22 Miss. 
68; Schoul. Hus. & Wife, § 363. The 
Massachusetts statute makes express 
reservation where, by force of a tes- 
tamentary disposition or otherwise, 
the wife has made some provision 
which renders it necessary or proper 
to appoint some one else to admin- 
ister. Mass. Pub. Sts. c. 130. 

3. Wms. Exrs. 415. See Schoul. 
Wills, Part II., c. 3, as to the wills of 
married women in modern practice. 
The wife's choice of executor under 
her will, if rightfully made in con- 
formity with rules of equity or a 
modern statute, is to be respected. 
As to the effect of her will naming no 
executor, etc., see post, §§ 1122-1127, 
administration with the will annexed. 
But the wife's will, if limited in op- 
eration, calls for a limited probate, 
and administration of the rest should 
be granted to her husband. Wms. 
Exrs. 415; Stevens v. Bagwell, 15 
Ves. 139. 

Administration granted upon tlie 
estate of a married woman as thougli 
she were single may be revoked for 
error. (1893) P. 16. 

4. O'Rear v. Crum, 135 111. 294, 25 
N. E. 1097, and other cases supra. 

5. Schoul. IIus. & Wife, § 13 ; Wms. 

lOOG 



CHAP. III.] APPOINTMENT OF ADMINISTRATORS. § 1099 

or annulled during their joint lives, the man was no surviving hus- 
band at all, and could claim no rights as such.® On principle, too, 
while the husband's right to administer would seem not to be for- 
feited by a mere decree of judicial separation or divorce from bed 
and board/ a divorce absolute, or from the bonds of matrimony, 
annihilates his right with the marriage relation.^ 

§ 1099. Widow's Right to Administer upon the Estate of her 
Deceased Husband. 

The surviving wife's right to administer on her husband's es- 
tate is not, under most statutes which regulate the grant of general 
administration, co-extensive with the right of a surviving husband. 
The husband in the one instance is preferred to all others ; but in 
the other (to quote from statute 21 Hen. VIII, c. 5, § 3), admin- 
instration shall be granted at the court's discretion, " to the widow 
or the' next of kin or to both," so that kindred and the widow 
stand apparently upon an equal footing, though not unfrequently 
parties adverse in point of fact. Such is the rule of England ; ^ 
and it still prevails in many parts -of the United States.^ As we 
shall see hereafter, the division of interests as between widow and 
kindred is its basis. 

The widow must be actually and bona fide such, and the sur- 
viving wife, in order to be entitled to administer upon the estate 
of an intestate. The partner of a void marriage, or the survivor 
of a conjugal pair, absolutely and finally divorced by a competont 
tribunal, can assert no such claim.^ Divorce from bed and board, 

Exrs. 411; Elliott v. Gurr, 2 Phillim. Goods of, 2 Sw. & Tr. 634; Grundy, 
19. Goods of, L. R. 1 P. & D. 459 ; Widg- 

6. lb.; Browning v. Reane, 2 Phil- ery v. Tepper, 5 Ch. D. 513. 

lim. 69. 1. 2 Kent Com. 410, 411, and notes. 

7. Schoul. Hus. & Wife, § 563 ; 2 But see next section. A non-resident 
Bish. Mar. & Div. 5th ed. § 739; widow may be objectionable even 
Clark V. Clark, 6 W. & S. 85. though a statute imposes no absolute 

8. Schoul. Hus. & Wife, § 559; 2 limitation upon her. O'Brien's Es- 
Bish. Mar. & Div. 5th ed. § 725; Al- tate, 63 Iowa, 622, 19 N. W. 797; 
temus's Case, 1 Ashm. 49. Ehlen v. Ehlen, 64 Md. 360, 1 A. SSO. 

9. Wms. Exrs. 416; Browning. 2. O'Gara v. Eisenlohr, 38 N. Y. 

1007 



§ 1099 



EXECUTOES AND ADMIIN'ISTKATOKS. 



[part II. 



however, or a marriage simply voidable, works no forfeiture of 
the widow's statute right to administer; nor would voluntary sepa- 
ration of the pair; ^ yet the discretion of the court, here permitted, 
as between widow and kindred, may suffice to exclude the former 
whenever her past misconduct has rendered her unworthy of the 
trust, or from other cause her appointment is obviously unsuitable.* 
Marriage settlements, too, may exclude the rights of one surviving 
spouse as well as the other.^ And we here consider, of course, sim- 
ply the estate of a husband who dies intestate, leaving a widow 
mentally and otherwise competent, when we speak of her right to 
administer. 

Notwithstanding the statute expression, English courts in mod- 
ern practice select the widow to administer, in preference to the 
next of kin, unless good reason appears for appointing differently.® 
As against next of kin of remote degree or creditors, the wife de- 
serves the strongest consideration ; and even children should re- 
spect a surviving parent. Administration may doubtless be 
granted to both widow and next of kin; but a sole and harmonious 



296; Schoul. Hus. & Wifo, § 559; 2 
Bish. Mar. & Div. 5th ed. § 739. But 
where a decree of divorce had been 
vacated and annulled after the hus- 
band's death, the widow wag held to 
be competent. Boyd's Appeal, 38 
Penn. St. 246. 

3. See Schoul. Hus. & Wife, §§ 13, 
563; Wms. Exrs. 418; 3 Hagg. 217, 
556; 2 Bish. Mar. & Div. 5th ed. § 
725. One may leave a lawful widow, 
by remarrying after a complete and 
bona fide divorce. Ryan v. Ryan, 2 
Phillim. 332. See also Nusz v. Grove, 
27 Md. 391; Odiorne's Appeal, 54 
Penn. St. 175, 93 Am. Dec. 683 ; Wag- 
staff Re, (1907) 2 Ch. 35. 

4. And see as to the liusband un- 
der corresponding circumstances, § 
1098. .Administration refused to a 
wife divorced from bed and board be- 



cause of her adultery, Davies's 
Goods, 2 Curt. 628; Wms. Exrs. 418. 
Refused to a wife dissipated and an 
eloper. Stevens's Goods, (1898) P. 
126. Stat. 20 & 21 Vict. c. 77, § 73, 
permits the refusal of administration 
to the widow under " special circum- 
stances." See Wells v. Brook, 25 W. 
R. 463. 

5. Schoul. ?Iu8. & Wife, § 363; 2 
Cas. temp. Lee, 560; § 1098 supra. 

6. Goddard v. Goddard, 3 riiillim. 
638; Wms. Exrs. 417. But with an- 
cillary administration it might be 
otherwise. Rogerson's Goods, 2 Curt. 
656. See 4 Mass. 348; 5 La. Ann. 
689; 14 Miss. 448; 36 So. 594, 112 
La. 572; 64 P. 402, 132 Cal. 309. 
Laches may defeat right. 61 S. W. 
776, 106 Tenn. 434 (five years' de- 
lay); 72 N. E. 114, 213 111. 488. 



1008 



CHAP. III.] ArPOINTMENT OF ADMINISTKATOES. § 1100 

administration is always preferred in practice to a joint and di- 
Tided one.^ Where letters are issued to the widow and one of the 
next of kin jointly, it is desirable that the other next of kin should 
consent to the co-appointment.^ 



§ 1100. Widow's Right to Administer; The Subject continued. 

The American rule as to the choice for administration between 
widow and kindred must be gathered from a variety of acts appli- 
cable in different States. There is, perhaps, on the whole, more 
disposition than in England to construe the statute literally; bal- 
ancing the preference of widow and kindred more evenly, and 
according to the merits of each case, and granting administration 
to one or the other or jointly to both ; regarding, moreover, that 
personal suitableness for the trust which we shall presently con- 
sider in its wider bearings.' A preference of the widow to chil- 
dren and other kindred is, however, expressly accorded by the 
statutes of j^ew York and certain other States.-' Where there are 
no children or descendants of children, the widow's distributive 
interest in the surplus of the estate may render her all the more 
preferable to kindred.^ 

English courts have held that the re-marriage of the widow is 
'per se no valid objection to her claim to administer; ^ but if chil- 
dren unite in their choice as against her, under such circimistances, 
it seems proper that they should at least have a co-administrator 

7. Wms. Exrs. 417; 1 Salk. 36. preferred right in Pennsylvania, if 

8. Newbold's Goods, L. R. 1 P. & her mind and judgment are good; 
D. 285. Bowersos's Appeal, 100 Penn. St. 

9. See McClellan's Appeal, 16 Penn. 434, 45 Am. Rep. 387; 108 Penn St. 
St. 110; Smith's Probate Practice 567. 

(Mass.) 70. 2. In Tennessee, and in various 

1. Pendleton v. Pendleton, 6 Sm. & other States (see Distribution, post), 

M. 448; Lathrop v. Smith, 24 N. Y. the widow in such a case is entitled 

417; McBeth v. Hunt, 2 Strobh. 335; to the whole surplus of the personal 

Curtis V. Williams, 33 Ala. 570. II- estate after payment of the debts, 

literacy and poverty or old age do S^van v. Swan, 3 Swan, 3 Head, 163. 

not deprive a widow of her statutory 3. Webb v. Needham, 1 Add. 494. 

64 1009 



§ 1101 EXECUTOKS AXD ADMIXISTEATOES. [PAET H. 

appointed.^ Both in England and the United States, where the 
widow is heir and distributee, and for au^ht that is known the 
only one, she will be appointed in preference to any stranger.^ 

§ 1101. Right of the Next of Kin to Administer; Consanguinity. 

Subject to the possible claims of sur\nving husband or widow, 
as already noticed, the right of an intestate's next of kin to admin- 
ister, as well as to take the residue of the personalty by way of dis- 
tribution after settling all claims, is paramount These " next of 
kin," or "next and most lawful friends" of the de<^ased (to use 
the language of the old statute ^) Lord Coke defines as " the next 
of blood who are not attainted of treason, felony, or have any other 
disability." ^ 

In general, no one comes within the term " next of kin " who 
is not included in the provisions of the statutes of distribution 
hereafter to be detailed. And, as we have stated, the fundamental 
principle in the award of administration is tliat the right to ad- 
minister upon the estate of an intestate follows the interest or right 
of property therein.^ Hence precedents, under the one head may 
serve to establish a rule under the other. In most American States 
the statutes of distribution fix the order of preference among kin- 
dred with much precision.^ And the general rule is, that where 
there is neither husband nor wife of the intestate surviving, ad- 
ministration shall be granted to one or more of the distributees, if 
such be competent and desirous of serving.^ 

As between husband and wife, neither can, by virtue of the 
marriage relation alone, be regarded as next of kin to the other, 
for they are not blood relatives ; ^ and this reservation extends to 

4. See ib. Exrs. 7th Eng. ed. 419, and note by 

5. Cobb V. Newcomb, 19 Pick. 336; Perkins. 

Block's Succf'ssion, 6 La. Ann. 810; 9. See post. Part V., Distribution. 

Atwood's Estate, 59 P. 770, 127 Cal. 1. Hawkins v. Robinson, 3 B. Mon. 

427. 141. 

6. 31 Edw. 3, c. 11. 2. Watt v. Watt. 3 Vcs. 244; 2 

7. 9 Co. Bep. 39 b. Kent Cora. 136, 142; Wliitaker v. 

8. 3 Atk. 422, per Sir John Nioholl; Wliitaker, 6 Johns. 112. 
Gill's Goods, 1 Hagg. 342; Wms. 

1010 



CHAP. III.] APPOINTMENT OF ADMINISTEATORS. § 1102 

all marriage connections. Consanguinity or kindred, in fact, is 
tliat relationship of persons which is derived from the same stock, 
or a common ancestor and common blood in the veins. Consan- 
guinity is either collateral or lineal. Collateral consanguinity is 
the relationship of persons descended from the same common an- 
cestor, but not one from the other ; as in the case of nephew, cousin, 
or even brother and sister. These spring from the same root or 
stock, but in different branches. Lineal consanguinity, on the 
other hand, is that relationship which exists where one is de- 
scended from the other, as between son or daughter, and the father 
or grandfather, and so directly upwards or downwards.^ A simple 
perpendicular line on the chart, against which names are written, 
shows the lineal kindred of any person deceased intestate ; while 
connecting lines, centered at some preceding name, exhibit the col- 
lateral kindred.* 

§ 1102. The same Subject; How to ascertain the Preference 
among Kindred. 
In order tO' ascertain who are next of kin and lawfully prefer- 
able for administration, we reckon on such a chart from the de- 
ceased intestate to the nearest in degree of blood surviving him. 
By the rule alike of the civil, canon and common law, every gon- 
eration in the direct course of relationship makes a degree for 
computing the degree of lineal consanguinity ; or, in other words, 
we are to count either directly upwards or directly downwards to 
the nearest relative who survived the deceased. Father and son 
are both in the first lineal degree ; grandfather and grandson both 
in the second. Collateral consanguinity, according to the prefer- 
able method, is computed by a similar process, extended into the 
diverging lines; that is to say, we count upwards to the common 
ancestor of both the deceased and the surviving kinsman, and then 
follow the branch downwards until the kinsman is reached, reck- 
oning one degree for each generation. The civil law took, thus, 

3. 2 Bl. Com. 202. of consanguinity at the end of this 

4. 2 Bl. Com. 203-205. See table volume. 

1011 



§ 1102 EXECUTORS AND ADMIXISTEATOES. [PART II. 

the sum of tJie degrees in both lines to the common ancestor, so as 
to point out the actual degree of kindred in all cases ; our English 
canon law, though less exact, arrived at the same general result.^ 
Hence, following the civil method, we pronounce the intestate's 
brother in the second degree, both his uncle and nephew in the third 
degree, and his cousin in the fourth.^ 

Other rules in this connection deserve our consideration. (1) 
Relatives of the deceased by the father's side and the mother's 
side stand in equal degree of kinship,'^ so that, in tracing out pedi- 
gree beyond one's immediate family, two trees may be required for 
comparison. (2) Half-blood must be reckoned as, on principle 
and save for those feudal disabilities at the common law which had 
reference to the inheritance of lands, entitled equally with the 
whole blood ; so that the half-brother stands in higher degree than 
the full uncle.^ (3) Primogeniture gives no preference of admin- 
istration among kindred of the same degree, as matter of right; 
and, indeed, in the United States the modern rule is to dispense 
altogether with legal distinctions in favor of the first-bom of a 
family.® (4) The right to administer, as to kindred, will follow 

5. See 2 Bl. Cora. 202, 207. By our Hardwicke in 1 Ves. Sen. 335; Wms. 

canon law, the numbering of degrees Exrs. 421, note. 

was different where collateral consan- 6. v^ee table of consangiiinitv at end 

guinity was reckoned; for the rule of volume. 

was to begin with the common ances- 7. Wms. Exrs. 422 ; 1 P. Wms. 53. 

tor and reckon downwards; and the Local statutes sometimes discrim- 

degrees the two persons, or the more inate in favor of relatives on the 

remote of them, was distant from the father's side. Kearnej' v. Turner, 2S 

ancestor, was taken to be the degree Md. 40S. 

of kindred subsisting between them. 8. 1 Vent. 424. And see 2 Bl. Com. 

For instance, two brothers were said 505. To this, however, are found 

to be related to each other in the first statute exceptions in favor of the 

degree, and an uncle and nephew in whole blood. And, among those of 

the second. lb., Christian's note. equal degree, whole blood kindred are 

Chancery judges charge the canonists usually selected to administer in 

with reckoning degrees of kindred so preference to those of the lialf-blood. 

closely in order to increase tlieir trade Stratton v. Linton, 31 L. J. P. M. & 

in selling dispensations of marriage. A. 48; Wms. Exrs. 427. 

Prcc. Ch. 593, per Sir J. Jekyl; Lord 9. Wms. Exrs. 423; 1 Phillim. 124; 

1012 



CHAP. III.] APPOINTMENT OF ADMINISTKATOES. § 1103 

the proximity of kindred; and kindred of the nearest degree ac- 
cordingly take precedence over those more remote, as the true^ 
*' next of kin." Thus, if one dies leaving no children, but parents, 
these are of the first degree iby reckoning; and their rights are ac- 
cordingly superior to those of brother and sister, who occupy the 
second degree.^ Indeed, the rights of parents in such a case are 
theoretically paramount and equal. But the old doctrines of the 
common law forbade the theory that mother and father should 
have equal title as parents ; ^ and the English statute 1 Jac. 2, c. 
17, moreover, which has been re-enacted in numerous American 
States, retrenches the rights formerly accorded to a mother as the 
only surviving parent, by distributing the estates of intestates 
equally between mother, brothers, and sisters, where there is no 
surviving father.^ Following the proximity of kindred, the grand- 
parent excludes the uncle or aunt, being nearer in degree.* 

§ 1103. The same Subject; Preferences among Kindred of the 
same Degree, etc. 

It is plain that one may die leaving various parties related to 
him in the same degree of kindred, but in different classes, and 
without any common bond of affection. Further rules of discrimi- 
nation have, therefore, been established for convenience. A cer- 
tain preference among kindred, in fact, is regarded, in according 
rights of administration, as well as in legal descent and distribu- 
tion ; natural affection and the natural instincts of family iniiu- 
encing, no doubt, such a selection. Thus, should one die, leaving 
a child or children, these among kindred are the closest to him; 
and though of the same degree as his father or mother, they should 
be preferred.^ And the same consideration gives precedence to 
lineal descendants in the remotest degree; or, in other words, the 

Distribution, Part V., post; Shomo's 3. Wms. Exrs. 423; Distribution, 

Appeal, 57 Penn. St. 356. Part V., post. 

1. 1 P. Wms, 51; Wms. Exrs. 423; 4. lb.; 1 P. Wms. 45; 1 Ld. Eaym. 
Brown v. Hay, 1 Stew. & P. 102. 686. 

2. See next section. 5. 2 Bl. Com. 504; Whitby v. Man- 

gles, 4 Beav. 358. 

1013 



§ 1103 EXECUTORS AXD ADMIXISTRATOKS. [PAKT II. 

Stock one has founded takes the priority of that from which he was 
derived.^ As between one's own brothers and sisters and his 
grandparents, though both classes are of the second degree, yet the 
ties are knit less closely in the latter case than in the former; 
hence, and to avoid dispersion of the estate among more remote 
branches of the family, brothers and sisters are preferred.' 

All these discriminations are fundamental in English and 
American law. Others may be traced, in the legislation of certain 
States, which are founded in reasons less forcible, and operate 
by virtue of local laws, mostly of an experimental character. To 
this latter class may be referred the preference, in case both par- 
ents sur\dve the intestate, which the father takes over the mother; 
a preference so ingrained in the common law, that, except for the 
modem tendencies of legislation, we should include it in our pre- 
ceding paragraph among fundamental discriminations.^ For, when 
a child dies intestate without leaving wife or issue, his father, if 
there be one living, is still usually entitled to administer, as next 
of kin, exclusive of all others; ^ while a mother receives considera- 
tian only when the widowed mother, nor always then as against the 
other children.^ Next, as between lineal and collateral kindred, 
the civil law, without respect of degree, preferred the former in 
every case, except that of brothers and sisters; while the common 
law selects the collateral of nearer degree, rather than the lineal 
of more remote; and this, too, is a matter of statute definition in 
various States.^ There are limits to right of representation (or 
where the descendant stands in place of ancf-stor, among those of 
the ancestral degree), as we shall see hereafter; biat whether en- 
titled to take the ancestor's share in the final distribution or not, 
the issue may well be subordinated in the grant of administration.^ 

6. Evelyn v. Evelyn, 3 Atk. 702; 9. Aleyn, 36; Wms. Exrs. 424. 
B. c. Amb. 191. 1. Supra, § 1102. 

7. Evelyn v. Evelyn, supra; IP. 2. 1 P. Wms. 58; Wms. Exrs. 424. 
Wms. 45 ; Wms. Exrs. 424. But as to lineal descendants, see 

8. Wms. Exrs. 423; Blackborough supra, p. 1013. 

V. Davis, 1 P. Wms. 51. And see as 3. Administration is to bo prantfd to 

to Distribution, Part V., post. the daughter in preference to the son 

1014 



CHAP. 111.] APPOINTMENT OF ADMINISTEATORS. § 1104 

While it is a maxim that the persons entitled to participate in 
distribution have also the right to administer, it nevertheless hap- 
pens often that the person designated by the statute to administer 
in preference may have disproportioned rights in the estate, or 
perhaps no beneficial right therein at all/ But v^here the statute 
does not settle the right to administer, the question^ who is entitled 
to the surplus of the intestate's personal estate, must generally be 
the practical test.^ 

§ 1104. Leading Considerations v^^hich affect the Choice among 
Persons equally entitled by Lav^^ to administer; Suit- 
ableness, etc. 
As among the next of kin, or persons all of the same class in 
respect of a legal right to administer, the actual choice of admin- 
istrator by the court may be guided by various considerations. 
Personal suitableness, for instance, is a vei-y important element, 
whether in determining the appointment as between the widow 
and next of kin of an intestate, or where one or more next of kin 
alone are concerned. Favoraibly as our law treats the widow's 
claim to administer, even though the intestate's next of kin were 
his own children,^ a widow evidently unsuitable may be passed over 
in favor of the next of kin ; but if the next of kin are all unsuit- 
able, the widow, being competent, is entitled to the sole adminis- 
tration; while, if both widow and next of kin are unsuitable, the 
application of all should be refused.^ And so, too, where only next 
of kin of a certain class are concerned in the administration, if one 
is suitable and the others are unsuitable, the suitable one will bo 
taken ; if two or more are equally entitled, equally suitable, and 
equally strenuous to be appointed, the court has power to appoint 

of the eldest son of the intestate. Gooch, 4 Mass. 348; Sears v. Wilson, 

Lee V. Sedgwick, 1 Root, 52. And see 5 La. Ann. 689; Pendleton v. Pedle- 

60 N. Y. S. 382. ton, 14 Miss. 448. 

4. Lathrop v. Smith, 24 N. Y. 417. 7. Stearns v. Fiske, 18 Pick. 24. 

5. Sweezey v. Willis, 1 Bradf. Sur. Suitableness is an element of special 
(N. Y. ) 495. importance in States which have 

6. Supra, § 1100; McGooch v. ^Ic- legislated on this point. 

1015 



§ 1104 ESECUTOES AND ADMINISTEATORS. [PAET II. 

one or more of them; but if all are unsuitable, the appointment 
must be otherwise bestowed. From among two or more persons 
equally akin to the deceased, the court may choose the most suit- 
able at discretion.^ 

As to suitableness, there are numerous decisions, just as there 
are various kinds and degrees of unsuitableness. Separation of hus- 
band and wife, apart from the question of fault, does not, we have 
seen, disqualify one from administ-ering on the estate of the other. 
Xor, as it is held, does inat>ility to read or write render one an un- 
suitable administrator.^ jSTor ignorance of the language, where 
intelligent in his own tongue.^ iSTeither illiteracy nor narrow 
means ne'cessarily makes one unsuitable.^ !N'or habits of intemper- 
ance.^ K'or old age.^ ISTor the bare fact of intermeddling with the 
effects before appointment.^ ISTor that the party in interest is a 
nun or priest.® But, as between individuals of the same class, 
moral fitness and integrity may well be considered in the selec- 
tion; ^ also efficiency of mind and body; also business habits and 
experience in the management of estates.^ A bankrupt or an in- 
solvent is an unsuitable person for the trust of administrator, es- 
pecially if embarrassed habitually.^ One may be considered un- 

8. See post, § 132, as to adminis- tion ; i. e., conviction of an offense 
tration during minority; Taylor v. against local law. O'Brien Re, 3 
Delaney, 2 Cai. (N. Y.) Cas. 143; Dera. 156; 96 N. Y. S. 98 (as to U. S. 
liloore V. Moore, 1 Dev. (N. C.) 268. court). Nor semhic is legal dishon- 

9. Nusz V. Grove, 27 Md. 391; Alte- esty, as in theft, etc., " imjjrovidence." 
mus's Case, 1 Ashm. 49. lb. Otherwise as to gambling. Mc- 

1. 108 Cal. 484, 41 P. 486. Mahon v. Harrison, 6 X. Y. 443; 

2. Emerson v. Bowers, 14 N. Y. 449; Emerson v. Bowers, 14 N. Y. 449: 84 
Levan's Appeal, 3 A. 804, 112 Penn. N. Y. S. 1102. The question as to 
Pt. 297; Small, Ex parte, 48 S. E. 40, " improvidence" is wlietlicr it is such 
69 S. C. 43. as is likely to endanger the safety of 

3. Elmer v. Kechele, 1 Redf. (N. Y.) the estate. 5 Dem. (N. Y.) 456. 
472. 7. Coope v. Lowerrc, 1 Barb. Ch. 

4. 3 Demarest (N. Y.) 263. 45; McMahon v. Harrison, 6 N. Y. 

5. Bingham v. Crenshaw, 34 Ala. 443. 

09.1. 8. Stephenson v. Stephenson, 4 

6. Smith V. Young, 5 Gill, 197. Jones L. 472; Williams v. Wilkins, 2 
" Conviction of infamous crime " is Phillim. 100. 

sometimes a statute disqualifica- 9. Cornpropst's Appeal, 33 Penn. 

lOlG 



CHAP. III.] APPOINTMENT OF ADMINISTEATORS. § 1104 

suitable for the appointment who holds already some other trust 
whose interests decidedly conflict with those of the estate in ques- 
tion.^ Or who is largely indebted to the estate, especially if the 
amount dne has not been ascertained. O'r who was partner of tho 
deceased at the time of his death.^ Or who is hostile to another 
of the next of kin.^ Or who is otherwise so adversely interested 
to heirs, creditors, or other kindred, as to prejudice the due settle- 
ment of the estate, if it be placed under his charge.* For the ad- 
ministrator should be interested in settling the estate, not unfaith- 
fully or partially, but faithfully, for the welfare of all concerned.^ 
Unsuitableness is not overcome by the fact that the party per- 
sonally unsuitable is ready to give ample bonds with sureties for 
the faithful performance of his tnist; though this is doubtless of 
great advantage to overcome a doubt. For it is just neither to par- 
ties in interest nor to those offering to become bondsmen, that in 
an office of trust the chief reliance must be placed upon the se- 
curity, instead of the principal ; nor can remedies for misman- 
agement compensate for detriment suffered through the want of 
good management.'' 

St. 537; Bell v. Timiswood, 2 Phil- a creditor is rather unfavorable than 

lira. 22. Cf. Tilley v. Trussler, 26 W. favorable to his selection. Webb v. 

R. 760; Levan's Appeal, 112 Penn. Needham, 1 Add. 494. 
St. 294, 3 A. 104; § 1154. A steady 5. The New York statute declares 

industrious man is not disqualified by that letters shall not be granted to 

reason of owing a small sum on old any person adjudged to be incompe- 

debts. Levan's Appeal, ib. ; see 92 tent to execute the trust "by reason 

N. W. 101, 131 Mich. 577 (bankrupt of drunkenness, improvidence, or want 

daughter's trustee). of understanding." See McMahon v. 

1. State V. Reinhardt, 31 Mo. 95. Harrison, 6 N. Y. 443. Some statutes 
Cf. Wright V. Wright, 72 Ind. 149. appear to extend the incompetency 

2. Cornell V. Gallagher, 16 Cal. 367; which may arise from illiteracy and 
Brown's Estate, 11 Phila. (Pa.) 127. ignorance of accounts and business. 

3. Drew's Appeals, 53 N. H. 317. Stephenson v. Stephenson, 4 Jones L. 

4. Pickering v. Pendexter, 43 N. H. 472. A convicted criminal or one of 
69; Moody v. Moody, 29 Ga. 515; 6 immoral character is sometimes ex- 
Phila. (Pa.) 87; Justice v. Wilkins, pressly excluded. See 132 P. 439, 
95 N. E. 1025, 251 111. 13; 133 P. 777. 587 (Cal.). 

The fact that one of the kindred is 8. See Stearns v. Fiske, 18 Pick. 27. 

1017 



§ 1106 EXECUTORS AXD ADMINISTRATORS. [PART II. 

§ 1105. The same Subject; Suitableness as between Males and 
Females, the Elder and Younger, etc. 

Next, we observe that by the old rule males have no legal 
preference over females, in the grant of administration to the next 
of kin, though in the succession of lands feudal law pronounced 
otherwise. But on practical considerations of suitableness, where 
the settlement of an estate is involved and various kindred are to 
be protected, woman herself generally desires a man's manage- 
ment; and hence, aside from the discretionary choice of a court, 
there are American statutes which distinctly place the male next 
of kin before the female, for receiving the appointment.^ So may 
it be thought fit that the younger and less discreet should yield to 
the older under some circumstances.^ As between several appli- 
cants of the same degree of kinship, therefore, the court may pre- 
fer a male to a female and an older and more discreet to a younger 
applicant, all other things being equal.^ 

§ 1106. Suitableness as concerns Married Woman; Husband's 
Administration in Wife s Right. 
Local statutes are also found to give unmarried women the ap- 
pointment in preference to married women/ Legislation may 
debar the husband of a woman who is entitled to administer from 
succeeding by the marriage to her right." But the old and familiar 
rule, English and American, is that, while property held by the 
wife in a representative capacity at the time of marriage cannot 

7. 2 N. Y. Rev. Stat. 74, § 28; 9. Hill's Case, 55 N. J. Eq. 764, 37 
Cook V. Carr, 19 Md. 1. But other A. 952. 

considerations, such as the minority 1. 2 N. Y. Rev. Stat. 74, § 28; 

or non-residence of male relatives, Owings v. Bates, 9 Gill. 483. This 

may control this rule. Wickwire v. preference applies where the intestate 

Chapman, 15 Barb. 302; 64 P. 691, leaves two dauf,'hters, one of whom 

132 Cal. 401. is married and the other is not. 

8. Wms. Exrs. 427; 1 Phillim. 125; Smitii v. Young, 5 Gill, 197; Curaer, 
4 Ilagg. 376. Though not, of course. Re, 89 N. Y. 401; reversing 25 Hun. 
in any such sense as to set up the 579. 

rule of primogeniture. 2. Richards v. Mills, 31 Wis. 450; 

Barber v. Bush, 7 Mass. 510. 

1018 



CHAP. III.] AI'POIXTMENT OF ADMINISTRATORS. § HOT 

vest personally in the husband, he acquires, nevertheless, the right 
to perform her trust, on the assumption that she becomes inca- 
pacitated by marriage from performing it. In this sense it is said 
that if tlie wife be executrix or administratrix at the time of her 
marriage, the husband may administer in her right ; ^ also that he 
becomes co-administrator in the sense of being liable for all her 
further acts of administration.^ Changes in this doctrine are in- 
troduced by modem equity, and the married women's acts ; thus. 
the wife may be sole fiduciary, in England and some American 
States, with her husband's consent,^ or perhaps witliout it ; ** and 
provision is made for the husband's joinder in his wife's official 
bond.^ 

If the wife be executrix or administratrix, and dies intestate, 
administration de bonis non as to such estate is proper; and parties 
in interest have the right to be considered for the new appointment, 
rather than her surviving husband.^ The same effect is sometimes 
given by statute to the marriage of a single woman.^ 

§ 1107. Unsuitableness as to Insane Persons; Infants, etc. 
Insane persons are doubtless unsuitable for the personal trust 

3. Schoul. Hus. & Wife, § 163; a deed of separation. Hardinge, 
Dardier v. Chapman, L. R.ll Cli. D. Goods of, 2 Curt. 640. And see May- 
442: WoodruiTe v. Cox, 2 Bradf. Sur. chell's Goods, 26 W. R. 439. 

(N. y.) 153; Keister v. Howe, 3 Ind. 7. Airhart v. Murphy, 32 Tex. 131; 

"68; Ferguson. V. Collins, 8 Ark. 241; Cassedy v. Jackson, 45 Miss. 397. 

Pistole V. Street, 5 Port. (Ala.) 64. 8. 3 Salk. 21; Wms. Exrs. 416. See 

4. Dowty V. Hall, 83 Ala. 165, 3 Risdon's Goods, L. R. 1 P. & D. 637. 
So. 315. 9. See Mass. Gen. Stats, c. 101, § 

5. Stewart, In re, 56 Me. 300: Bin- 1, which specifies, as a proper case for 
nerman v. Weaver, 8 Md. 517; Wms. granting administration de bonis non, 
Exrs. 450; Schoul. Hus. & Wife, ap- that of the marriage of a single 
pendix. A woman appointed admin- woman who is sole executrix, etc. 
istratrix while sole is permitted by And see next chapter as to adminis- 
some codes to resign her trust on her tration de bonis non. A married 
marriage. Rambo v. Wyatt, 32 Ala. daughter's right to administer her 
363. father's estate, if not unfit, is con- 

6. Administration granted to a wife ceded in Guldin's Estate, 81 Penn, St. 
living apart from her husband under 362. 

1019 



§ 1109 



EXECUTORS AXD ADMIXISTEATOES. 



[PAET II, 



of administrator, and, indeed, incompetent to serve. "^ So, too, are 
infants.^ The usual disqualifications of an executor extend to ad- 
ministrators ; and other disqualifications are sometimes annexed.^ 
In the case of a sole next of kin who is insane and incapable, 
his duly appointed guardian may be allowed to administer in his 
stead.* 

§ 1108. Illegitimate Children and their Right to Administer. 

As to illegitimacy, the peculiar rules of distribution, as defined 
by statute, must be applied for determining the right to admin- 
ister; whether the case be one of an illegitimate decedent or of 
illegitimate relationship to a decedent.^ 

§ 1109. Whether Non-residence disqualifies. 

Xon-residence is an objection to the appointment; ^ but in prac- 
tice not usually a decisive one, especially as between residents in 
different parts of the United States. But it is sometimes said that 
a non-resident ought only to be appointed under special justifying 



1. McGooch V. McGooch, 4 Mass. 
348. And see New York statute con- 
strued in McMahon v. Harrison, 6 
N. Y. 443. 

2. See post, § 1132, as to adminis- 
tration during minority. And see 
Carow V. Mowatt, 2 Edvv. (N. Y.) 57; 
Collins V. Spears, 1 Miss. 310. That 
the minor is married does not qualify 
her. Briscoe v. Tarkington, 5 La. 
Ann. 692. Nor that there is no other 
next of kin capable to administer. 
Rea V. Engk'sing, 56 Miss. 463. As 
to guardian of minor, see 77 P. 144, 
143 Cal. 438. 

3. 1 Wras. Exrs. 449 mentions at- 
tainder of treason or felony, outlawry, 
etc. The statute of New York enu- 
merates among other special di.squali- 
fications, the conviction of an infa- 
mous crime. See McMahon v. Harri- 



son, 5 N. Y. 443. And see Stat. 33 
& 34 Vict. c. 23; Wms. Exrs. 435; 
§ 1033 supra; § 1114 post; 132 P. 
439, 587 (Cal. stat.) ; Crippen's Es- 
tate, (1911) P. 108. 

4. (1894) P. 160; Mowry v. 
Latham, 17 R. I. 480, 23 A. 13; 20 R. 
1. 780. 

5. See Public Administrator v. 
Hughes, 1 Bradf. (N .Y.) 125; Pico's 
Estate, 56 Cal. 513, 38 Am. Rep. 515; 
Ferrie v. Public Administrator, 3 
Bradf. 249; Schoul. Dom. Relations, § 
276; Wms. Exrs. 433; Goodman, Re, 
L. R. 17 Ch. D. 266; 48 S. E. 134, 
120 Ga. 642; 36 S. E. 908, 58 S. C. 
469; 101 S. W. 791, 160 Tex. 515; 44 
Wash. 513, 87 P. 841. 

6. Child V. Gratiot, 41 111. 357; 
Radford v. Radford, 5 Dana, 156; 
Wickwire v. Chapman, 15 Barb. 302.. 



1020 



CHAP. III.] APPOINTMENT OF ADMINISTRATORS. § 1109 

circumstances ; and some States have treated such appointments 
as quite impolitic.'^ Other States permit the non-resident next of 
kin to serve as administrator upon duly qualifying with resident 
sureties; and perhaps such an administrator must further appoint 
a resident attorney who shall accept service on his behalf and in 
general represent him.^ So might the resident nominee of a non- 
resident kinsman be taken where no suitable kinsman within the 
State desired to administer.^ Alienage is considered no incapacity 
in England as concerns personal estate ; but some American stat- 
utes exclude or restrict the right of aliens, and particularly non- 
resident aliens, to administer.^ As among next of kin, some resi- 
dent and some non-resident, those resident, if otherwise suitable, 
or their nominee, would seem worthy of a preference.^ Where 
in fact several persons are of the same degree of kindred to the 
deceased, one living out of the State is not entitled to administra- 
tion as of right ; but in case those living in the State are unsuit- 
able, upon stronger grounds the non-resident may, at the discre- 
tion of the court, be appointed upon the non-residence terms.^ 
English practice recognizes the grant of administration to the at- 
torney of next of kin residing abroad.* 

7. Chicago R. v. Gould, 64 Iowa, 2. 5 Dem. (N, Y.) 292; (1898) P. 
343, 20 N. W. 464; Sargent, Re, 62 11. 

Wis. 130, 22 N. W. 131: Frick's 3. Pickering v. Peudexter, 46 N. H. 

Appeal, 114 Penn. St. 29; 63 Cal. 69. See, further, 1 Robert. 468; 2 

458, 80 P. 828; 78 P. 705; Campbell's Bradf. (N. Y.) 105 (attorney of 

Estate, 85 N. E. 392, 192 N. Y. 312, foreigTi executor). 

18 L. R. A. (N. S.) 606. Whether a person appointed is or 

8. Mass. Public Stat. c. 132, § 8; is not a resident of the State, is a 
Robie's Estate, Myrick (Cal.) 226. question of fact for the court's con- 
And see Barker, Ex parte, 2 Leigh, elusive determination. Livermore v. 
719; Jones v. Jones, 12 Rich. 623. Ayres, 119 P. 549, 86 Kan. 50 (not 
Local statutes vary from time to to be collaterally impeached ) . See 
time in such matters. Fann v. Railroad, 71 S. E. 81, 155 

9. Smith V. Munroe, 1 Ired. L. 345. N. C. 136. 

See post, § 1116. 4. Wms. Exrs. 439; Burch's Goods, 

1. Wms. Exrs. 449; New York 2 Sw. & Tr. 139. 
Stats., cited Redf. Surr. Pract. 138; 
4 Dem. (N. Y.) 33. 

1021 



§ 1111 EXECUTORS AND ADMINISTRATORS. [pART II. 

§ 1110. Other Considerations for determining the Choice of Ad- 
ministrator. 
One detennining consideration betwten next of kin, in cases 
of doubt, may be their relative extent of interest.^ But another 
important one is, the confidence reposed by kindred ; and hence, in 
cases of conflict, it is not unfrequent to appoint the one upon whom 
a majority of the parties in interest agree.® The wishes of the 
party or parties having the largest amount of interest may in other 
respects preponderate in the selection of administrator.^ The 
party first seeking the appointment has some claim to preference.* 
The?e, and the other considerations already set forth, which touch 
rather upon personal suitableness or competency for the trust, the 
court taking jurisdiction should duly weigh, where controversy 
has arisen, and grant the administration to such party or parties 
in the preferred class as shall seem most proper.' 

§ nil. Statute Order among Next of Kin stated. 

Following the computation of kindred already set out, and 
obson-ing the preferences of interest, the c^^des of many States 
now specify in order the classes who shall be entitled to admin- 

5. Leverett v, Dismukes, 10 Ga. 9S. 76 S. E. 1001; 139 Ga. 224, 43 L. 

6. ilandeville v. Mandeville, 35 Ga. R. A. (N. S.) 236. 

243. This course is sometimes di- 9. In English practice, it is said, a 

reeled by statute. But it is an old solo administration is preferable, 

established rule in English cccles- cacteris paribus, to a joint one, and 

ia.stical practice. iFreem. 258: ^Yms. a joint administration will never be 

Exrs. 426; Budd v. Silver, 2 Phillim. forced. Wms. Exrs. 428; 2 Pliillim. 

115. Tlie rule is by no means invar- 22, 55; 4 Hagg. 376; 398. But where 

iable. Wctdrill v. Wright. 2 Phillim. the estate is a large and intricate one 

248. See also Stainton's Goods, L. R. to settle, the appointment of two or 

2 P. & D. 212. three administrators may be quite 

7. McClellan's Appeal, 16 Penn. St. judicious in the interest of kindred, 
110. and in American practice the court 

8. Cordoaux v. Trasler, 29 Jur. N. may probably exercise a liberal dis- 
S. 587; Wms. Exrs. 427, 428. Parties cr(>tion in this respect. See Read v. 
having tlie jirior riglit must (under Ifnwe. 13 Iowa, 50. Two separate co- 
loeal statute) ai>j)ly witliin a stalerl onlinate ailininistrations cannot be 
time (such as thirty days) or lose granted. Brubakcr's Appeal, 98 Penn. 
tlicir preference. Alabama R. v. Hill, St. 21. 

1022 



CIIAP. III.] APPOINTMENT OF ADMINISTRATORS. § 1112 

ister, if otherwise competent. After providing as to sui^iving 
husband or widow, they name first, children (with their lineal 
descendants, it may be presumed); next, the fatlier; next, tha 
mother (or else mother, brothers and sisters) ; next, if there are 
neither children nor parents, the brothers and sisters; next, the 
grandparents; next, nephews, nieces, uncles, aunts; next, first 
cousins.^ 

On principle, it would appear, that, as in distribution, the 
right to administer as " next of kin " is limited to the class 
which fulfils that description at the intestate's death, and takes 
the surplus ; thus excluding more distant kindred not bene- 
ficially entitled.^ But, according to the law of certain States, 
where the nearest of kin, from death or incompetency, cannot 
receive letters, the next in order appear to be entitled; kindred 
in a due turn of choice taking the absolute precedence of cred- 
itors or strangers.^ Beyond the range of husband, wife, and dis- 
tributees, who alone have the legal right to administer, the ap- 
pointment in Mississippi is treated as within the ample discretion 
of the court.* American statutes vary greatly in scope, however, 
and in each State the law must be construed according to the legis- 
lative expression of latest date. 

§ 1112. Renunciation or Non- Appearance of those entitled by 
Preference to administer; Citation. 
Before creditors and strangers in interest can be admitted to 

1. See Wms. Exrs. 425; 2 Bl. Com. 451, 143 Cal. 607. And it is the 
505. The order under the New York English rule. Wms. Exrs. 437. Ac- 
statute is peculiar; viz.: first, the cordingly, if all who were next of kin 
intestate's widow; second, his chil- at the time of the intestate's death 
dren; third, his father; fourth, his are dead, then the representative of 
mother; fifth, his brothers; sixth, such next of kin, in default of some 
his sisters; seventh, his grandchil- person originally in distribution, may 
dren; eighth, any of the next of kin receive the appointment. Wms. Exrs. 
who would be entitled to share in the 437; 2 Hagg. Appendix, 157. 
distribution of the estate. 3. Churchill v. Prescott, 2 Bradf. 

2. Such is the rule in Massachu- 304; Carthey v. Webb, 2 Murph. 268; 
setts. Cobb v. Newcomb, 19 Pick. McClellan's Appeal, 16 Penn. St. 110. 
337. See also Edson's Estate, 77 P. 4. Byrd v. Gibson, 2 Miss. 56S. 

1023 



§ 1112 EXECUTOES AJNT) ADMINISTRATORS. [PAET II. 

tlie trust, it is usual to wait a reasonable time and require proceed- 
ings on the part of tlie petitioner tantamount to summoning 
those entitled bj preference to appear and exercise their right 
if thev so desire. For the rule, long established in ecclesiastical 
and probate practice, is that the party having a prior right should 
be cited, or else waive his right, before administration can be 
granted to any other person."* The citation is sometimes by a 
personal service ; but frequently, in our modem practice, by 
posters or a simple newspaper publication, the method being fixed 
by statute or a rule of court, and the citation issuing from the 
register's office when the petition to administer is presented ; the 
course being similar to that pursued in obtaining letters testa- 
mentary, and as preliminary to the formal hearing. To dispense 
with the citation, those of the class entitled to preference should 
renounce their claim or signify their assent to the grant of the 
petitioner's request by indorsement upon the petition or other 
writing of record.^ And grant of letters by the court should fol- 
low reasonably soon upon the citation, as otherwise a new citation 
or notice may be requisite.'' 

5. Wms. Exrs. 440, 448; Barker, bert, Succession of, 16 La. Ann. 230; 
Goods of, 1 Curt. 592. For the Eng- Torrance v. McDougald, 12 Geo. 526. 
lish practice of citation, where the Administration of the estate of an in- 
next of kin is insane, see Windeatt testate may be granted to his widow 
V. Sharland, L. R. 2 P. & D. 217. And or next of kin, or both, as the probate 
see Grierson, In re. 7 L. R. Ir. 589. court shall deem fit; and if they do 
Letters issued in disregard of the rule not either take or renounce admin- 
on this subject are invalid, and this istration, they shall, if resident with- 
although the statute be silent on the in the county, be cited by the court 
subject of giving notice to those hav- for that purpose. Cobb v. Newcomb, 
ing the preference. Gans v. Dabor- supra; Stebbins v. Lathrop, 4 Pick, 
gott, 40 N. J. Eq. 184. Such letters 33 (stat.). As to afTidavit that cita- 
arc not void, however, but only void- tion was given, see Gillett v. Need- 
able. Garrison v. Cox, 95 N. C. 353; ham, 37 Mich. 143. A citation in 
Jones v. Bittenger, 110 Ind. 476, 11 South Carolina has sometimes been 
N. E. 456; 108 N. Y. S. 281; Bran- published by being read in church by 
dagc's Estate, 75 P. 175, 141 Cal. an oflTiciating clergyman. Sargent v. 
53S; post, c. 6. Fox, 2 McCord, 309. Some codes ex- 

6. Col)b V. Newcomb, 19 Pick. 336; jiressly insist tliat renunciation by 
Arnold v. Sabin, 1 Cush. 525; Tal- those having prior right sliall be ia 

1024 



CHAP. III.] APPOINTME^STT OF ADMINISTEATOES. § 1113 

A similar procedure appears highly suitable where one of tho 
class entitled to preference desires an appointment, as against 
others of the same class and equal in right. But where several 
are equally entitled, and in general as among those from whom 
the court is free to select without disturbing ji statute preference 
or violating legislative directions, the citation is sometimes dis- 
pensed with.^ So, again, in small estates, on proof of actual 
notice.^ A court is presumed to exercise its lawful discretion 
fairly in such a case ; and although parties passed over, who have 
the statute priority, may have the administration set aside or 
reversed on appeal, when granted irregularly and in disregard of 
their lawful rights, the appointment, nevertheless, remains valid 
meantime, if the court had jurisdiction, and cannot be assailed, 
except directly and by the parties aggrieved.-^ 

Renunciation or waiver of the right should appear of record 
in order to bind the parties first entitled to administer; nor is 
the language of such a writing to be strained beyond the obvious 
sense.^ Thus, where all the next of kin consent that one of them, 
A., shall serve if he can find security, and A., unable to give 
security, nominates a stranger, this does not comply with the 
condition.^ But persons sui juris who voluntarily appear and par- 
writing. Barber v. Converse, 1 Redf. Penn. St. 110. It is held in EnorJand 
(N. Y. ) 330. that Avhere a party entitled to admin- 

7. Elgutter v. Missouri R., 53 Neb. ister has renounced, such renuncia- 
748. tion may be retracted at any time 

8. See Widger's Goods, 3 Curt. 55; before the administration has passed 
Wms. Exrs. 448; Peters v. Public the seal. West v. Wilby, 3 Phillim. 
Administrator, 1 Bradf. (Sur. ) 200. 379. Probably under some of our 
And see statute cited in Bean v. American codes this would not be 
Bumpus, 22 Me. 549, as to dispens- permitted, unless, at all events, good 
ing with notice in certain cases. reason for the retraction was shown. 

9. (1895) P. 6. See Carpenter v. Jones, 44 Md. 625; 

1. See post, c. 6, as to effect of ap- Kirtlan's Estate, 16 Cal. 161; 62 N. 
pointment, etc.; 85 S. W. 1105, 114 Y. S. 819; 75 N. Y. S. 1058; Slay v. 
Tenn. 289. Beck, 107 Md. 357, 68 A. 573. But 

2. Arnold v. Sabin, 1 Cush. 525. executors and administrators appear 

3. Rinehart v. Rinehart, 27 N. J. to be alike favored in New York as 
Eq. 475; McClellan's Appeal, 16 under the English rule. Casey v. 

65 1025 



§ 1113 EXECUTOKS AND ADMIXISTEATOKS. [PAET II. 

ticipate in the proceedings as shown by the record, cannot set up 
informality of citation against the judgment.* And in some 
States the preferred party under the statute may receive letters 
without notice or citation to others.^ 

§ 1113. Nomination of a Third Person by the Person entitled to 
administer. 
It is held that a renunciation of her claim by the widow does 
not give her the right to nominate another person to the exclusion 
of the next of kin.^ ISTor can kindred who waive the right to sen^e 
dictate the selection of a stranger.'' But in Kentucky, the court, 
in granting administration to the widow, has, at her request, as- 
sociated with her a stranger in blood to the intestate, although the 
blood relatives object.^ And in JSTew York, where a widow re- 
nounced her right to administer her husband's estate, and recom- 
mended another person, all the children being minors, the ap- 
pointment of her nominee w^as considered proper.^ Even grant- 
ing, as we must, that the court is not bound by the nomination 
made by a widow or the kindred first entitled to administer, yet 
the wishes and preferences of those having the greatest interest in 
presenting the estate are entitled to great weight.^ And hence 
the appointment, at the court's discretion, of any suitable person 
upon whom the next of kin entitled to the office, or a majority 

Gardiner, 4 Bradf. (N. Y.) 13. Cf. not be delegated. Georgetown Col- 

§ 1050. lege v. Browne, 34 Md. 450. And as 

The law will not sanction an agree- to California, see Shiels, Re, 120 Cal. 

iTiont whose consideration is the re- 347, 52 P. 808. 

linquishment of the right to admin- 7. Cresses, Matter of, 28 N. J. Eq. 

istration by one party to the other. 23G; Root, Re, 1 Rcdf. (N. Y.) 257. 

Bowers v. Bowers, 26 Penn. St. 74, 8. Shropshire v. Withers, 5 J. J. 

67 Am. Doc. 398. Marsh. 210. 

4. 43 Neb. 8, 07 N. W. 858. 9. Sheldon v. Wright, 5 N. Y. 497. 

5. 76 S. E. 1001, 139 Ga. 224, 43 And this without citing kindred. lb. 
L. R. A. (N. S.) 236. 1. McBeth v. Hunt, 2 Strobh. (S. 

6. Cobb V. Newcomb, 19 Pick. 332. C.) 335; McClellan's Appeal, 16 Penn. 
And see Triplett V. Wells, Litt. (Ky.) St. 110; Brown's Estate,' 79 S. E. 
Sol. Cas. 49. Under Maryland stat- 791, 96 S. C. 34 (guardian of minor 
utea the right of administration can- children nominated by widow). 

1020 



CHAP. III.] APPOINTMENT OF ADMINISTKATOKS. 



lli: 



of them, may agree, is liig'hly favored in American practice;" the 
rights of more remote kindred, creditors and all strangers in in- 
terest being postponed to such an expressed choice accordingly. 
Where the next of kin reside abroad, their resident nominee may 
receive the appointment;^ any such attorney, so called, however, 
being responsible to all parties in interest.'* And where widow 
and next of kin unite in their request for some other suitable 
third person, their nomination should be strongly regarded.^ 

Inasmuch as the regular administration of estates, whether tes- 
tate or intestate, is so highly favored at the present day, the selec- 
tion of third persons of integrity, experience, and sagacity for 
such responsible duties must often be most desirable. And if a 
testator makes such a selection, or associates others with his next 



2. Mandeville v. Mandcville, 35 Ga. 
243; Munsey v. Webster, 24 N. H. 
126; Halliday v. Du Boss, 59 Ga. 238; 
Wooten's Estate, 41 A. 1000, 189 
Penn. St. 71. 

3. Supra. § 1100; Smith v. Muiiroe, 
1 Ired, L. 345; Wms. Exrs. 439; 
Cotter's Estate, 54 Cal. 215; 93 Cal. 
611, 29 P. 244. But in other cases 
except for the " special circum- 
stances," etc., under recent statutes, 
the right to select a third person ap- 
pears not to be favored in English 
practice. See Wms. Exrs. 446, 447; 
Stat. 20 & 21 Vict. c. 77, § 73. Un- 
less it be some one related to the 
family. Tyndall's Goods, 30 W. R. 
231. An impartial stranger may be 
preferable to widow or kindred where 
these are unsuitable. Hassinger's 
Appeal, 10 Penn. St. 454. See Pot- 
ter's Estate, (1899) P. 265 (stranger 
appointed by consent of the parties 
interested). No jurisdiction to ap- 
point third person upon nomination 
of one, unless all in the same class 
concur or waive their equal rights. 



Justice V. Wilkins, 95 N. E. 1025, 
251 111. 13. And see § 1115. 

4. Chambers v. Bicknell, 2 Hare, 
536. But the court will not grant 
administration to the attorney-in- 
fact, where the party himself is resi- 
dent in the jurisdiction, and able to 
take it himself. Burch, In re, 2 Sw. 
& Tr. 139. Where the sole next of 
kin was a married woman living 
apart from her husband whose ad- 
dress was unknown, administration 
was granted with her consent to the 
trustees of her marriage settlement. 
Maychell's Goods, 26 W. R. 439. The 
nomination of a non-resident is not 
to be favored where the policy of the 
law discourages generally the appoint- 
ment of non-residents. ' Supra, § 1109 ; 
Sargent, Re, 62 W^is. 130, 22 N. W. 
131; Muorsing, Re, 103 Cal. 585, 37 
P. 520. 

5. See Swarfs Estate, 189 Penn. 
St. 71; Shiels Re, 120 Cal. 347, 53 
P. 808. One who rightfully requests 
the appointment of another may re- 
voke such nomination at any time 
before the court has acted upon it. lb. 



1027 



§ 1114 EXECUTORS AND ADMI^^ISTKATOES. [PAET IJ. 

of kin or legatees in the trust, for reasons admittedly sound, tliere 
seems no good reason why the next of kin themselves, if the estate 
be intestate, should not exercise a corresponding discretion and 
nominate some trustworthy friend rather than forfeit all claim 
to administer bj failing to qualify personally for the office.^ 

§ 1114. Unsuitableness of a Judge of Probate, Corporation, etc., 
for the Appointment. 

A judge of probate would be an unsuitable person to receive 
the appointment from his own hands or within his own jurisdic- 
tion; and delicacy, moreover, ought to prevent any judge from 
serving as administrator in an adjoining county, or at least where 
he might sometimes be called upon to hold a court; though pro- 
bate judges in this country are not always found so scrupulous 
about taking advantage of their official position, to emulate the 
example of the early English bishops. Legislation should curb 
such temptations, and keep local judges of probate from throw- 
ing estates and probate business into one another's hands.^ Prob- 
ably, for a judge to appoint himself administrator would be void, 
as against public policy.^ But as to the appointment of his own 
son by a judge of probate, it is held, that, although manifestly 
improper and even voidable, such appointment is not void.^ In 
general, a corporation cannot lawfully administer unless the right 
is expressly conferred by its charter or statute.^ A trust com- 
pany or other corporation in Xew York expressly empowered to 
administer may not be appointed on the request of those entitled 
to administer so as to take priority even of a public administrator.^ 
Yet, all other things being equal, certain corporations chartered 
recently in England and various American States are expressly 

6. As to nominooa of guardians of ministration. Sifrournoy v. Sibley, 
a widow, there being no issue, see 22 Pick. 507, 33 Am. Doc. 762. And 
(1802) P. 50. sec Ti.ornton v. Moore, 61 Ala. 347. 

7. See Wilson v. Wilson, 78 S. E. 9. Plowman v. Henderson, 59 Ala. 
41, 139 Ga. 771 (stat.). 559; 79 Ala. 505. Cf. 105 Mass. 219. 

8. A judge of probate interested in 1. Thompson's Estate, 33 Barb. 334. 
the estate lias no right to grant ad- 2. Goddard's Estate, 94 N. Y. 544. 

1023 



€HAP. III.] APPOINTMENT OF ADMINISTKATOKS. § 1115 

empowered to serve as executor or administrator, as well as in 
other specified trusts.^ 

§ 1115. Right of Creditor to be appointed in Default of Kindred, 
etc. 

A creditor having a right of action against the deceased is in 
most States the party entitled to administration on the intestate's 
estate, where the husband or widow and next of kin refuse or 
neglect to apply, or do not nominate, or are incompetent.'' The 
d\ew York statute specifies as to creditors, that the creditor first 
applying, if otherwise competent, shall have the preference.^ The 
largest creditor, or some principal creditor of the deceased, takes 
priority, according to the expression of other local codes.^ By 
English practice, too, a creditor may take out administration on an 
intestate estate, if none of the next of kin or others in legal 
priority do so; this rule resting in custom and not statute law, 
and the court frequently selecting a larger creditor instead of 
the creditor applying.^ In Texas, however, such " proper per- 

3. See Hunt's Goods, (1S96) P. 288. latter is a creditor. 95 Ga. 383, 22 S. 
§ 1032 and cases cited: Mulhern v. E. 611; 85 P. 277, 30 Utah 351; 93 
Kennedy, 48 S. E. 437, 120 Ga. 1080; N. Y. S. 973. 

58 S. W. 755; 110 N. W. 316, 76 Note the expression of the local 

Neb. 411. statute on this point: e. g. " prin- 

4. Mitchell v. Lunt, 4 Mass. 654 ; cipal creditor," " creditor first apply- 
Stebbins v. Palmer, 1 Pick. 71, 11 ing," "largest creditor applying," 
Am. Dec. 146. etc. Sullivan's Estate, 65 P. 793, 25 

5. New York Laws 1867, c. 782, § 6. Wash. 430. See Caughey v. Byrnes, 

6. Curtis V. Williams, 33 Ala. 570. 80 A. 653, 115 Md. 85 (rule applies 
As to nomination of a third person only in intestate estates) ; 139 N. W, 
by creditors, see Long v. Easly. 13 300, 120 Minn. 122 (creditor cannot 
Ala. 239; 139 N. W. 300, 120 Minn. nominate a stranger). Of. § 1113. 
122. A relative who becomes sole A creditor entitled to administer 
creditor has a strong claim. Lentz may, like parties prior in interest, 
V. Pilert, 60 Md. 296, 45 Am. Rep. renounce the trust, or fail to respond 
732. But a party claiming as trus- when cited in. See next section; 
tee and not in his individual capacity. Carpenter v. Jones, 44 Md. 625. 

is not entitled as "largest creditor." 7. Wms. Exrs. 7th ed. 440-442; 2 

74 Md. 238, 21 A. 788. Nor is the Bl. Com. 505; 2 Cas. temp. Lee, 324, 
president of a corporation, where the 502; Maidman v. All Persons, 1 Phil- 

1029 



§ 1115 EXECUTOES A^'D ADMIXISTKATOKS. [PAKT II. 

son " as will accept and qualify is designated, and it is held that 
a creditor as such has no special claim to the appointment over 
a confidant of the deceased not interested.^ Administration can- 
not in general be granted to a creditor or stranger until after the 
lapse of the time allowed for the application of the widow, next 
of kin, and others previously entitled and suitable, nor except 
upon their failure to pursue their rights, notwithstanding a due 
citation." 

The main reason why a creditor has usually been selected imder 
such circumstances, is in order that his claim may not be lost 
for want of administration upon the estate.^ He is a person in 
interest. The amount of one's claim seems not essential, except 
it be for preferring the principal creditor.^ But it ought to be 
a claim which survives by law.^ The creditor should make affi- 
davit or be prepared to prove his claim before the probate court, 
as a prerequisite to obtaining the appointment.* Administration 
may usually be committed to one or more creditors ; but one is 
preferred by the court where the estate is small and easily man- 

lim. 53. Tho applicant must make peculiar limitation in Alabama, see 

affidavit as to the amount, etc., of Davis v. S\vearingen, 56 Ala. 539. 

his debt, and that he has cited in the And see Frick's Appeal, 114 Penn. St. 

kindred. Von Desen, Goods of, 43 29, 6 A. 363. 

L. T. 532. 1. Elme v. Da Costa, 1 Pliillim. 

8. Cain v. Haas, 18 Tex. 616. And 177; Brackenbury, Goods of, 25 W. 
as to Virf^inia, see !McCanlish v. Hop- R. 698; Stevens v. Gaylord, 11 Mass. 
kins, 6 Call. (Va.) 208. 256. 

9. JIullanphy v. County Court, 6 2. Arnold v. Sal)in, 1 Cush. 525. 
Mo. 563; Haxall v. Lee, 2 Leigh. 267; 3. Stebbins v. Palmer, 1 Pick. 71; 
Wms. Exrs. 440, 441. Thirty days is Smith v. Sherman, 4 Cush. 408. That 
the period allowed in some vStates to tiie claim would be barred, if the 
the widow and next of kin, before a statute of limitations were pleaded, 
stranger can api)ly. Munsey v. Web- is held no objection. Caig, Ex parte, 
ster, 24 N. TI. 126; Cobb v. New- T. U. P. Charlt. (Ga.) 159; Coombs 
comb, 19 Pick. 336 ; 32 Neb. 480, 49 v. Coombs, L. R. 1 P. & D. 288. 

N. W. 427. Six months' delay im- 4. Wms. Exrs. 442; Aitkin v. Ford, 

ports renunciation of priority in 3 Hagg. 193. But a formal filing of 

North Carolina. Hill v. Alspaugh, 72 claim is not requisite. 32 Neb. 480, 

N. C. 402; 95 N. C. 353. For the 49 N. W. 427. 

1030 



CHAP. III.] APPOINTMENT OF ADMINISTKATORS. § 1115a 

aged.^ A creditor having ample security, wliicb he could enforce 
without an administration at all, appears not to have been favored 
for the trust in the English ecclesiastical practice, lest simple con- 
tract creditors should receive detriment;*' and administration is 
regularly refused to one who buys up a debt after the death of the 
deceased, and so becomes a creditor.'' Policy, however, not prin- 
ciple, seems to have dictated this rule of refusal, for tliere are 
admitted exceptions;^ and not only has a creditor's assignee in 
bankruptcy been permitted to apply in his stead ;^ but likewise 
a surety who, after the death of his principal, has cancelled an 
obligation;^ one, too, like an undertaker, whose claim accrues after 
the death in all strictness, and yet in connection with rendering 
last offices to the deceased, such as a preferred claim upon the 
estate may well be based upon, independently of administration.^ 
The creditor should, of course, be a suitable and competent per- 
son for the trust, as in other cases, and he should give secuVity to 
administer ratably, or otherwise comply with the statute require- 
ments as to qualifying for the office.^ 



§ 1115a. Right of Stranger, etc., as a Last Resort. 

If there is no husband, widow, next of kin, or creditor, willing 
and competent to the trust, administration may be granted to 
such other person as the court deems fit. Such has long been 

5. Wms. Exrs. 442; Harrison v. 2. Newcombe v. Beloe, L. R. 1 P. 
All Persons, 2 Phillim. 249. & D. 314. 

6. Roxburgh v. Lambert, 2 Hagg. 3. Brackenbury's Goods, 25 W. R. 
557. 698. The largest creditor may in the 

7. Cole's Goods, 3 Sw. & Tr. ISl; court's discretion be preferred to one 
Wms. Exrs. 443. requested by the majority of the 

8. lb. ; Downward v. Dickinson, 3 creditors and by the intestate's widow 
Sw. & Tr. 564. besides. Ostendorff, Re, 17 S. C. 22. 

9. Wms. Exrs. 443; Schwertfegen's See 36 S. E. 908, 58 S. C. 469. See 
Goods, 24 W. R. 298; and see Bur- 139 N. W. 300, 120 Minn. 122 (a 
dett's Goods, 45 L. J. 71. funeral bill with a claim for wrong- 

1. Williams v. Jakes, 35 L. J. P. ful death of decedent as assets gives 
M. & A. 60. jurisdiction). 

1031 



1116 



EXECUTORS AXD ADMIXISTEATORS. 



[PAET II. 



the Eng-lisb practice/ and statutes confirm or enlarge this judicial 
discretion both in England and the United States.^ Distant kin- 
dred, having no legal interest in the distribution, may thus receive 
letters of administration; or an entire stranger in point of blood 
imd interest.^ But a stranger who has been hastily and without 
reason appointed, has no status in court to object to the grant of 
letters to the suitable next of kin, nor to the revocation of his own 
letters.'^ 

§ 1116. Public Administrator or other Official appointed in Cer- 
tain Cases. 

In English practice, administration by a public officer on behalf 
of absentee or non-resident parties in interest is not clearly pro- 
vided for. That discretion of tlie court, to which we alluded in 
the last section, and which may be exercised in default of com- 
petent creditors and next of kin, fastens upon kindred more dis- 



4. Wms. Exrs. 445 ; Davis v. 
Chanter, 14 Sim. 212. 

5. Mass. Pub. Stats, c. 130, § 1; 
Thompson v. Bucket, 2 Hill (S. C.) 
347; English Probate Act of 1857 
(Stat. 20 & 21 Vict. c. 77, §73); 

cited Wms. Exrs. 446, 447. " Special 
circumstances" are recognized, un- 
der tliis English act, as affording 
ground for departure from the rule 
of priority. 

6. lb.; Keane's Goods, 1 Hagg. 692; 
WyckhofT, Goods of, 3 Sw. & Tr. 20. 
We have already seen that in some of 
the United States all kindred in or- 
der, and not simply "next of kin." in 
distribution, may have a legal right 
to administer. In case of a lunatic 
next of kin, a stranger was appointed, 
with the consent of the lunatic's 
guardian and own ne.xt of kin. 
IIuHtings, Goods of, 47 L. J. P. D. A. 
.^O. As to "special circumstances," 
see, further, Clark, Goods of, 25 W. 



R. 82; Tyndall's Goods, 30 W. R. 231. 
Guardians or trustees are thus sub- 
stituted. Bond's Goods, L. T. 33 N. 
S. 71. 

7. Neidig's Estate, 183 Penn. St. 
492. 

Such appointment of a suitable 
person being discretionary with the 
judge, and the time having expired 
within which the next of kin or 
creditors might liave appeared, the 
fact of their incompetency or unwill- 
ingless need not be alleged by the pe- 
titioner for appointment. 21 Neb. 
663, 33 N. W. 206. 

The expiration of a certain time for 
those having prior right bears upon 
this practice. Markland v. Albea, 81 
Ala. 433, 2 So. 123. 

See, further, Randall's Estate, 63 
A. 806, R. 1. (1906); Carpenter v. 
Jones, 44 Md. 625; 104 S. W. 732, 31 
Ky. Law. 1059; 107 N. W. 1004. 7G 
Neb. 28. 



1032 



€nAP. III.] APPOINTMENT OF ADMINISTRATORS. § lllG 

tantlj related, the guardian or agent of an incompetent distributee, 
and other persons having a nominal or remote interest, if such 
may be had. But as to an utter stranger, or the mere appointee 
of the court invested with authority, in the total absence of kin- 
dred, it has been deemed that letters of administration should 
only be granted for such special purposes as collecting and pre- 
sendng the effects, and doing what must be strictly beneficial to 
the estate.^ The Court of Probate Act of 1857 enlarged that 
jurisdiction which the modem spiritual courts had so cautiously 
exercised, conferring upon the new tribunal the power under 
*' special circumstances " to pass over the person or persons who 
might otherwise be entitled to the grant of administration, and 
appoint such person as the court in its discretion should think fit f 
a discretion which is usually exercised in favor of more distant 
kindred, family connections, or the fiduciary or agent of the person 
beneficially entitled.^ 

But the wise policy of the legislature has been, in several of 
the United States, to commit administration to a designated pub- 
lic officer wherever those survivors are wanting whose vigilance 
should protect distribution and the general interests of the dead 
person's estate. To a mere stranger the temptation in such a 
case would be to appropriate all to himself; debtors would of 
ohoice continue indebted ; and even a creditor who administered 
in his partial interest might plunder the estate under pretext of 

8. Wms. Exrs. 445, 446; Radnall, Where a creditor seeks adrainistra- 
Goods of, 2 Add. 232 ; Clarkington, tion in default of appearance of next 
Goods of, 2 Sw. & Tr. 380. of kin — as where the latter are 

9. Act 20 & 21 Vict. c. 77, § 73. abroad or have no known address — 
This section is held not to apply and they fail to appear to a citation 
where there is no absence of persons by advertisement, he must make affi- 
entitled to administration, etc., and davit that service was attempted and 
no insolvency — insolvency of the es- failed, and that the next of kin have 
tate being referred to as one of the no known agent in England. Von 
*' special curcimstances " alluded to Desen's Goods, 43 L. T. 532. 

by the statute. See Hawke v. Wed- 1. See § 1117 post, for a further 

derburne, L. R, 1 P. & D. 594, and examination of this subject, 
other cases cited in Wms. Exrs. 447. 

1033 



§ 1116 EXECUTORS AND ADMIXISTKATOKS. [PAET II. 

assertiug a legal claim. A probate court cannot readily keep 
vigilance over a miscellaneous throng of administrators watched 
by no private persons in interest, nor see that the security one 
has given remains good and ample. There may be urgent need 
of an immediate administration, notwithstanding the absence of 
a known husband, widow, or kindred; these, if wanting at first, 
may present themselves afterwards ; and, in final default of such 
priority, the State falls heir to the final balance of the estate. 
Hence, the modern creation of an office, known usually as that 
of public administrator. The public administrator, receiving let- 
ters in any and all proper cases of intestacy, collects and preserves 
the estate, adjusts all claims upon it, charges it with such com- 
pensation for his service as the court may approve, corresponds 
with the non-resident or absent husband, widow, or next of kin, 
should such he found out, and finally distributes the residue ac- 
cording to law, turning it into the State treasury when the ad- 
ministration is completed, unless the rightful claimant has mean- 
time taken the trust into his own charge or established a title to 
the surplus as distributee. Such an officer is subject to the double 
scrutiny of the probate court and the State executive ; creditors 
and all others in interest may always inquire into tlie sufficiency 
of his bonds ; his accounts are regularly returned and recorded 
under special safeguards created by law against fraud, embezzle- 
ment, and concealment; while his general official bond, if such 
be furnished by him, dispenses with all necessity of finding special 
bondsmen for numerous petty estates, and so facilitates an econom- 
ical settlement. The public administrator performs the usual 
functions and is subject to the usual rules whicli pertain 
to ordinary administration; he holds, moreover, a public trust, — 
insignificant, perhaps, but honorable. He is, in a sense, repre- 
sentative and attorney of the presumed heir and distributee, 
namely, the State; and, more than this, he is charged with the 
concerns of all private persons interested in the estate, whoever 
and wherever they may be; winding up the affairs of the deceased 
on belialf of creditors and absent kindred according to their re- 

1034 



CHAP. III.] APPOINTMENT OF ADMINISTRATOES. 



§ lllG 



spective rights, if any such there be. Intruder, as such an official 
must seem to sly pilferers, exorbitant claimants, skulking debtors, 
and the whole swarm of meddlesome friends and spurious relatives 
that gather about the corpse of him who has left property aecessiblo" 
but none to represent the title, the public administrator, rightly 
viewed, is next friend of all who may be legally concerned, and 
his authority should befit the peculiar exigencies under which the 
law, with sound wisdom, invokes it; requiring him to act always 
with energy, promptness, usually upon his sole personal responsi- 
bility, and often in the face of a bitter, if not superstitious, op- 
position.^ 



2. The Massachusetts statute pro- 
vides that if the deceased leaves no 
known widow, husband, or next of 
kin in the State, administration sliall 
be granted to a public administrator 
in preference to creditors. In each 
county one or more public adminis- 
trators are appointed by the governor, 
and it is the duty of such adminis- 
trator, upon the foregoing state of 
facts, to administer upon the estate 
of any person who dies intestate 
within his county, or dies elsewhere 
leaving property in such county to be 
administered. But administration 
will not be granted to the public ad- 
ministrator when the husband, widow, 
or an heir of the deceased claims in 
writing the right of administering, 
or requests the appointment of some 
other suitable person, if such husband, 
widow, heir, or other person accepts 
the trust and gives proper bond; and 
such husband, widow, heir, or other 
person may be appointed after let- 
ters of administration have been 
granted to a public administrator and 
before the final settlement of the es- 
tate. So may a will be proved and 
allowed after his letters are granted. 



Upon such appointment of a successor 
and his qualification, the public ad- 
ministrator shall surrender his own 
letters, with an account of his doings, 
and his power over the estate shall 
cease. Mass. Pub. Stats, c. 131. 
What aids in distinguishing this of- 
ficer as one invested with plenary 
official powers, and not the mere ap- 
pointee, in fact, of the probate court, 
is a further provision that as to 
estates under twenty dollars in value, 
he shall proceed summarily without 
procuring letters of administration at 
all, converting assets into cash, and 
accounting directly with the State 
treasurer for the proceeds. lb. § 18. 
Public administrators are appointed 
in other States with peculiar func- 
tions prescribed by statute ; as in New 
York, Louisiana, Alabama, Georgia, 
Wisconsin, Missouri, Illinois, and 
California; such administration be- 
ing found chiefly useful at the large 
centres of wealth and population. 
The estates are usually too small to 
bear litigation, and require a prudent 
management, consisting at most of a 
few thousand dollars, and more fre- 
quently of a few hundred or less. 



1035 



1116 



EXECTJTOKS AND ADMIXISTEATOKS. 



[PAET II. 



A public administrator is usually permitted by legislation to 



The public administrator's duties in 
New York are defined by statute; and 
bv virtue of his office, and without a 
special delegation of powers by let- 
ters of appointment from the probate 
court, such administrator may settle 
small estates (as e. g., where the value 
does not exceed $100), and in gen- 
eral perform the functions of collector 
or special administrator before pro- 
curing a formal grant of adminis- 
tration. Redf. Surr. Prac. 175-180. 
See Union Mutual Life Ins. Co. v. 
Lewis, 97 U. S. Supr. 682, 24 L. Ed. 
1114. As to Alabama, see McGuire 
V. Buckley, 58 Ala. 120. In Cali- 
fornia the status of the public ad- 
ministrator at the time administra- 
tion is granted him, determines his 
competency. 100 Cal. 78, 34 P. 521; 
McLaughlin Re, 103 Cal. 429, 37 P. 
410. And legislation requires the is- 
sue of letters to the guardian of in- 
competent kindred in preference. 103 
Cal. 429. A resident devisee under 
will probated abroad is also preferred 
to a public administrator. 100 Cal. 
376. 

The public administrator in Xow 
York city is entitled to administer 
where next of kin is not in the State 
or is otherwise disqualified to admin- 
ister. Public Administrator v. Watts, 
1 Paige, 357; 4 Dem. 33. But cf. 
Public Administrator v. Peters, 1 
Bradf. 100, preferring relatives in the 
statute order named. Public admin- 
istrator is preferred in cases of il- 
legitimacy. Ferrie v. Public Admin- 
istrator, 3 Bradf. 249. 

The city of New York is, under tho 
statute, responsible for the applica- 
tion of all moneys received by the 

10 



public administrator " according to 
law;" but not for effects unlawfully 
taken by him as belonging to an in- 
testate, but, in fact, belonging to 
another. Douglass v. New York, 56 
How. (N. Y.) Pr. 178. Grant of ad- 
ministration to a public administra- 
tor should only be upon due citation. 
Proctor V. Wanmaker, 1 Barb. Ch. 
302. But see 5 Dem. 259, as to ir- 
regularities not fatal on his part in 
procuring the grant. 

In Illinois, contrary to the usual 
policy elsewhere," a creditor is pre- 
ferred to the public administrator. 
108 111. 128, 444. 

Expressed wish of decedent or next 
of kin may often be disregarded in 
California. Morgan's Estate, 53 Cal. 
243. Public administrator prefer- 
able, in court's discretion, to tlie 
nominee of a non-resident executor in 
that State. Murphy's Estate, My- 
rick (Cal.) 185; 119 CaL 663. And 
preferred to nominee of non-resident 
next of kin. 57 Cal. 81; 103 Cal. 585. 
Or to a creditor. 64 Cal. 226, 228. 
As to preferring the public adminis- 
trator to kindred who are not "next 
of kin," the language and practice 
under the statutes of appointment 
must determine. See Langworthy v. 
Baker, 23 111. 484; supra, § 1111. 
Aiid see Hanover, Re, 3 Redf. (N. 
Y. ) 91. Administration granted to 
the attorney of a foreign adminis- 
trator, however, as matter of comity, 
saving certain rigiits of a public ad- 
ministrator. Hanover, Re, 3 Redf. 91. 
See c. 7, post as to foreign and an- 
cillary appointments. Prior riglit of 
public administrator over attornej' 
for disqualified next of kin. Blank, 

30 



CHAP. III.] APPOINTMENT OF ADMINISTRATORS. 



§ 1110 



administer upon estate within his county of any decedent, regard- 
less of the place of the latter's death or last residence.^ 



Matter of, 2 Redf. (N. Y.) 443. But 
the public administrator's right ex- 
ists only in case of intestacy. Nunan's 
Estate, Myrick, 238. As to conflict 
with creditor, see Doak, Estate of, 46 
Cal. 573. Semble that if no one else 
can be found for the trust, the public 
administrator must serve. Calalian 
V. Griswold, 9 Mo. 784; Johnston v. 
Tatum, 20 Ga. 775. In Louisiana the 
public administrator is postponed to 
the attorney-in-fact of an heir. Hen- 
ry's Succession, 31 La. Ann. 555. And 
otherwise limited as to contests. 
Miller's Succession, 27 La. Ann. 574. 
See other local statutes in point. As 
to citing in a widow present in the 
State, see Dietrich's Succession, 32 
La. Ann. 364. In Louisiana a public 
administrator may be appointed where 
the executor is under duress for the 
murder of the testatrix. Town- 
send's Succession, 36 La. Ann. 535. 
Or in California (with will annexed) 
where the executor is incompetent. 
Munroe's Estate, 118 P. 242, 161 Cal. 
10. Some States require a delay be- 
fore the public administrator can be 
appointed. 156 S. W. 136, 153 Ky. 
547 (three months). 

The language of some local statutes 
requires not only that the public ad- 
ministrator shall yield to the claim 
of any one of foreign next of kin to 
^administer, but also to any suitable 
nominee of such a kinsman. How- 
ever this may be, the present writer 
thinks that a non-resident next of 
kin should not be permitted to nom- 
inate another non-resident to the 
utter exclusion of the resident public 
3. See 120 
10 



administrator and resident creditors- 
These points may be noted as ta 
the official authority of a public ad- 
ministrator as statutes frequently 
provide. (1) Jurisdiction may be 
claimed by him on the ground that 
the last domicile or residence of the 
intestate was in the county (or 
simply perhaps that the intestate 
died there), or because the intestate 
left property in the county to be ad- 
ministered, no matter where he died 
or resided; the facilities for admin- 
istration being extended as far as 
possible to all such cases on a simple 
shoAving of one's deatli, leaving as- 
sets. But property to be adminis- 
tered, or some occasion for granting 
administration, should exist in either 
case. (2) This public officer is pre- 
ferred to creditors, distant kindred, 
unauthorized strangers, and absent 
and non-resident next of kin, as the 
person on the whole most suitable 
for managing and settling an estate 
when there is no knowm husband, 
widow, or next of kin to the deceased 
within the State. (3) But the prior- 
ity of surviving husband, widow, and 
next of kin claiming to administer is 
fully preserved, and at any time be- 
fore the estate is settled, should any 
such, even if non-resident appear, such 
a person's wishes and claim to ad- 
minister or choice will be respected, 
and the public administrator must 
give way; and so, too, should a will 
be probated. (4) Nevertheless, the 
non-resident husband, widow, or next 
of kin of an intestate may permit 
the public administrator to take or 

Cal. 344. 

37 



§ 1116 



EXECUTORS AND ADMINISTEATOKS. 



[part II. 



Under various favoring treaties now made with foreign nations, 
the resident consul or other representative here of a foreign sub- 



continue in the trust: such officer be- 
ing a most fit representative of non- 
residents interested who are poor and 
ignorant, if the estate will not bear 
great expanse. (5) The public ad- 
ministrator, furthermore, has an in- 
terest, from his ofTicial character, to 
oppose the claims of all pretended 
kindred or spouses; and as amicus 
curiae, and acting on behalf of the 
State and absentees, he should take 
heed, as a public officer, that no 
false claimant procures the estate or 
its surplus, and that no one admin- 
isters at all without furnishing to 
the court an adequate bond, in order 
that the rights of all interested in 
the estate may be properly protected. 
And it is only when a person shown 
lawfully entitled to administer, or 
perhaps his resident nominee, or an 
executor who has proved a hona fide 
last will, qualifies locally by furnish- 
ing a suflBcient bond, that the prudent 
vigilance of this officer should cease. 
See Cleveland v. Quilty, 128 Mass. 
578. 

In various States tlie slierifT of tlic 
county or the clerk of the county 
courts is designated as virtual public 
administrator, and if no one else can 
be found competent or willing, may 
be even compelled to take tlie trust. 
Johnson y. Tatum, 20 Ga. 775; 
Scarce v. Page, 12 B. Mon. (Ky.) 
311; Williamson v. Furbush, 31 Ark. 
539; Hutcheson v. Priddy. 12 Gratt. 
85. A grant to the sherifT expires 
with his term of office. 71 Ala. 504. 
But a public administrator wlin takes 
out letters is a general adiiiiiiistratDr 



of the estate. 2 Dem. 650. In New 
York the commissioners of emigra- 
tion are also empowered to act in 
certain cases where foreigners die in- 
testate on the passage. Commission- 
ers, Ex parte, 1 Bradf. (N. Y.) 259. 
And, outside of the city of New York, 
the county treasurers may exercise 
functions. Ward, Re, 1 Redf. (N. 
Y.) 254. Authority extends to set- 
tling an estate already in his hands 
after his official term expires. 24 
Mont. 37, 60 P. 495. See 4 Dem. (N. 
Y.) 33. 

See further, as to public adminis- 
trators, Rankin's Estate, 127 P. 1034, 
164 Cal. 138 ; Cox v. Kansas City, 120 
P. 553, 86 Kan. 298 (petition not 
stating a jurisdictional fact) ; Cotter- 
ell V. Coen, 92 N. E. 911, 246 111. 410 
(letters refused unless an emer- 
gency) ; 165 111. App. 1; 52 P. 832, 
120 Cal. 344; 95 S. W. 894, 198 Mo. 
174, 115 Am. St. Rep. 472; 63 S. W. 
678, 163 Mo. 510; 87 P. 17, 149 Cal. 
485 (conflict in two separate coun- 
ties) ; 98 N. W. 214, 120 Wis. 377; 95 
S. W. 898, 190 Mo. 189 ("papers" 
as assets) ; United States v. Tyndale, 
116 F. 820 (dead body floating on the 
high seas) ; 65 S. W. 130, 23 Ky. 
Law, 1287; 48 S. E. 699, 121 Ga. Ill; 
69 N. E. 909, 207 111. 385, 99 Am. St. 
Rep. 225. 

Under some codes tlie public ad- 
ministrator is preferred to any non- 
resident spouse or kindred; and such 
legislation is constitutional. Mc- 
Wliirke's Estate, 185 N. E. 918, 235 
111. 607. 



1038 



CHAP. III.] APPOIXTMENT OF ADMINISTEATORS. § 1117 

ject has been allowed precedence for administration over a public 
administrator.^ 

§ 1117. English Rule in Cases Analogous to Those which call 
for a Public Administrator. 

Public administration is thus seen to apply most especially to 
estates which, in default of nearer known distributees, are likely to 
go to the State, subject to the further assertion of any such claims 
upon the treasury. The estate administered may, however, be 
that of a person leaving a non-resident spouse or kindred, or of 
one, resident or non-resident, whose kindred and family are un- 
known or appear to have died out. In English practice, when a 
foreigner dies intestate within the British dominions, administra- 
tion appears to be granted to the persons entitled to the effects of 
the deceased according to the law of his own country, unless a 
question of British domicile is iraised.^ If the intestate was/ 
domiciled abroad or out of English jurisdiction, leaving assets in 
England, there should be an administration taken in England as 
well as in the country of domicile.'^ Where a party entitled to 
administration is resident abroad, due diligence must be used to 
given him notice of the application, before administration will be 
granted to another party not of his selection.'^ Stat. 24 and 25 
Vict. c. 121, § 4, provides with reference to all countries which 

4. Many recent cases have arisen (preferred on behalf of foreign widow 

where the treaty precedence has thus and child as against a resident 

been accorded to a consul in prefer- brother). 

ence to the public administrator or The consul thus appointed should 

others. See 223 U. S. 317, 56 L. Ed. give the usual bond. 144 N. Y. S. 

453, 32 Sup. Ct. 207; Li's Estate, 139 429 (resident creditors). See also 

N. W. 300, 120 Minn. 122; Lombard! § 1117 post. 

Re, 138 N. Y. S. 1007; 137 N. Y. S. 5. Wms. Exrs. 429, 430; 1 Add. 340; 

175; 137 N. Y. S. 176; Scutella's Von Desen, Goods of, 43 L. T. 532. 

Estate, 129 N. Y. S. 20; Carpigiani v. See generally, as to foreign and an- 

Hall, 55 So. 248, 172 Ala. 287; Wy- ciliary administration, etc., c. 7, post. 

man Re, 77 N. E. 379, 191 Mass. 276, And see supra, § 1116. 

114 Am. St. Eep. 601; Sinovci's Es- 6. Wms. Exrs. 430; Attorney-Gen- 

tate, 83 A. 917, 80 N. J. Law. 260; eral v. Bouwens, 4 M. & W. 193. 

D'Adamo's Estate, 144 N, Y. S. 429 7. Wms. Exrs. 429; 3 Phillim. 637. 

1039 



§ 1118 EXECUTOES AIST) ADMINISTKATOES. [PAET II. 

reciprocate by treaty, that wlien a subject of a foreign country 
shall die within the British dominions, leaving no person present 
who is rightfully entitled to administer the estate, the foreign 
consul may administer on procuring letters from the proper court.^ 
But in the case of a bastard, or of any other person dying intes- 
tate without leaving lawful kindred, husband or wife, the Eng- 
lish sovereign is entitled to the surplus as last heir; and the Eng- 
lish practice has been to transfer by letters patent the royal claim, 
■with the reservation of a tenth part, whereupon the court usually 
grants letters of administration to the patentee as nominee of the 
crown. But whoever may be appointed to the trust, the right of 
the crown by way of distribution is not impaired.^ Under the 
modern statute 15 Vict. c. 3, administration similar to that of a 
public administrator is recognized, though within naiTow bounds ; 
for this act provides that administration of the personal estate of 
intestates, where the crown is entitled, may be granted to the so- 
licitor of the treasuiw as the crown's nominee. Such administrator 
need not give bonds, but in other respects he is subject to the usual 
obligations and has the usual rights and duties of an adminis- 
trator.^ 

§ 1118. Method and Form of granting Letters of Administration. 

The method of procuring letters of administration is quite simi- 
lar to that pursued by executors in obtaining letters testamentary, 
but dispensing with a probate.^ The person claiming administra- 
tion must apply by petition in writing to the probate court having 

8. Wms. Exrs. 430. L. Cas. 654 ; Wms. Exrs. 434, 435 ; 

9. Wms. Exrs. 433, 434: Dyke v. Canning, Goods of, 28 W. R. 278. 
Walford, 5 Moore, P. C. 434; 2 Cas. When money of an estate has been 
temp. Lee, 394-397. A similar course paid to the solicitor of the treasury 
appears to have been pursued in case in default of next of kin, and after- 
cf forfeiture to the crown, as for wards an applicant establishes his 
treason, felony, or felo de se. By right to the money as next of kin, he 
Stat. 33 & 34 Vict. c. 23, § 1, such is entitled to the balance, together 
forfeiture is abolished; and in this with accruing interest. Gosman, Re, 
country is not allowed. 49 L. J. Ch. 590. 

1. Attorney-General v. Kolilcr, 9 IT. 2. § IOCS supra. 

1040 



CHAP. III.] APPOINTMENT OF ADMINISTRATORS. § 1118 

jurisdiction of the case. Siich petition is usually filed with the 
register in the first instance, whereupon a citation issues, unless 
the petitioner, by the written assent or renunciation of all othere 
equal or prior in interest, can show an undoubted right to his 
immediate appointment; the citation, made returnable at a con- 
venient court day, serves to notify all persons interested of the pro- 
ceedings pending. At the hearing any person interested in the 
estate may appear and show cause for or against the appointment 
of the person named in the petition, who should on his part be 
prepared to show the facts essential to the grant of letters.^ One 
petitions for his own appointment and cites in others accordingly.* 
The English rule is that parties contesting the right to admin- 
istration, before any grant, must proceed pari passu and propound 
their several interests.^ But probate procedure is quite simple 
ill most parts of the United States. The surrogate, ordinary, or 
judge of the probate or orphans' court, or whoever exercises statute 
jurisdiction in such matters, passes upon the petition in which 
citation was issued, and upon such adverse petitions besides as 
may be drawn up later to suit the occasion ; making the appoint- 
ment after a summary hearing of all persons interested. There is 

3. The petition in American States various cases of creditor, stranger, 

is drawn up after a regular form ap- public administrator, etc., as well as 

proved by the court, and usually in the various kinds of administra- 

contained in a printed blank. In an tion to be considered hereafter. See 

original petition for general admin- Smith's Prob. Pract. 75 (Mass.). 

istration, it is proper to set forth the As to informalities in the petition 

fact of the death of the person who considered immaterial, see Abel v. 

deceased intestate, the time of the Love, 17 Cal. 233; Townsend v. Gor- 

death, the place of last residence, the don, 18 Cal. 188. A petition not 

name and residence of the spouse, if showing on its face that it is made 

any, and the names, residences, and by a person interested as the statute 

degree of kindred of his next of kin. requires should be dismissed. Ship- 

If the next of kin are minors, this man v. Butterfield, 47 Mich. 487. 

fact should be stated. Other grounds 4. 48 S. E. 40, 69 S. C. 43 ; Turner's 

on which the petitioner bases his Estate, 77 P. 1099, 142 Cal. 549 (va- 

right to administer should be alleged; rious opposing petitions); 83 Law 

and local statutes will suggest what T. N. S. 296; (1899) P. 59. 

such statements should be, in the 5. 1 Phillim. 459; Wms. Exrs. 425. 

66 1041 



§ 1118 EXECUTOES AXD ADMIXISTEATOKS. [PAET II. 

etrictlj neither plaintiif nor defendant; but, of applicants, some 
inaj withdraw and others come in at anv time while the case is in 
progress.^ "When a petitioner for administration withdraws his 
petition in the pix>bate court, he ceases to be a party to the recordJ 
If contest arises as to the essential facts, such as pedigree, the 
case may be adjourned from time to time ; and witnesses are 
summoned or a commission issued to take depositions as con- 
venience may require.^ Affidavits, which in probate proceedings 
are much used, precede the gi-ant of administration both in Eng- 
land and American States ; as, for instance, an oath by the peti- 
tioner to the essential facts of death and intestacy of the deceased, 
to the right or relationship of the claimant, the value of the es- 
tate, or the proper service of the citation.^ 

As a prerequisite to the grant of administration, a satisfactory 
bond, in modem practice, must usually be furnished by the per- 
son selected for. the trust; which bond having been approved and 
filed in the registry as the law directs, letters of administration 
issue to the person appointed,' who may proceed forthwith in the 
execution of his trust unless an appeal is taken from the probate 
court.^* Administration should never be granted by parol, but 

6. Delorrae v. Pease, 19 Ga. 220. succeeding the publication of the 
Applicant who is resisted, allowed to citation, unless the petition is regu- 
open and close. Weeks v. Sego, 9 Ga. larly continued. McGhee v. Ragan, 
199. Objection to a grant, on the 9 Ga. 135. As to issuing letters in 
ground that there are other kindred term time, see 67 Iowa, 316. 
preferred, cannot be taken by a A grant of administration is prima 
stranger. Burton v. Waples, 4 Harr. facie evidence of all precedent facts 
73; 56 Ga. 146. essential to jurisdiction; and the 

7. Miller v. Keith, 26 Miss. 166. record need not alTirmatively show 

8. See Ferrie v. Public Adminis- the superior qualifications of the per- 
trator, 3 Bradf. (N. Y.) 151. son appointed over the contesting ap- 

9. See Wms. Exrs. 454, as to the ad- pi leant. Davis v. Swearingen, 56 
rainistrator's oath. And see Torrance Ala. 31. As to the form of letters, 
V. MeDougald, 12 Ga. 526; Gillett v. see W'itsel v. Pierce, 22 Ga. 112; 
Ncedham, 37 Mich. 143. ^^lns. Exrs. 452; Smith's Prob. Prac. 

9a. Proljate bonds are considered in (Mass.) A.i)pendix. " Aduiinistra- 
c. 5, prist. Letters sliould usually be tion on the estate of A. granted to 
granted at the next term of the court B., he giving bond," is an uncondi- 

1012 



CHAP. III.] APrOINTMENT OF ADMIXISTEATORS. 



§ 1119 



entered as of judicial record, and preserved at the registry of pro- 
bate where the bond and other papers relative to the case are 
kept; letters duly authenticated under the seal of the court being 
furnished to the qualified administrator, and certificates of the 
appointment supplied by the register, from time to time as oc- 
casion may require.'^ 

§ 1119. Administrator as Such must be appointed; Credentials 
of Authority. 

No one is ex officio administratoT of a deceased person's estate ; 
but the appointment must in each case be made and letters Issued 



tional grant of administration, the 
bond being filed as of the same date. 
Haskins v. Miller, 2 Dev. L. 360; 
Tucker v. Harris, 13 Ga. 1. And see 
further, Post v. Caulk, 3 Mo. 35; 
Davis V. Stevens, 10 La. Ann. 496; 
Pleasants v. Dunkin, 47 Tex. 343. 

In cases of certain officials, such as 
public administrator, a general bond 
is often given ; and an order to ad- 
minister will sometimes issue by way 
of a sufficiently valid appointment, 
though this mode is not usual. See 
Thompson v. Bondurant, 15 Ala. 346; 
Russell V. Erwin, 41 Ala. 292. 

1. Wms. Exrs. 452. In this coun- 
try, the person appointed administra- 
tor sometimes leaves his letters lying 
in the registry, having no occasion to 
exhibit them as credentials. If he 
has been duly appointed and qualified, 
however, the probate records show 
this, and the grant of administration 
doubtless takes effect without delivery 
of the letters from the registry. 

If the law has prescribed no 
specific form in which the appoint- 
ments of administrators are to be 
made effect must be given to the act 
of the probate judge who signs a cer- 
tificate of appointment, although it 



may not be expressed in the usual 
form and manner. Carlon's Succes- 
sion, 26 La. Ann. 329. As to dis- 
pensing with the judge's signature, 
see 85 N. C. 258. The decree of the 
probate court is aften expressed as 
appointing the applicant, " he giving 
bond with sufficient sureties," etc. The 
effect of this appears to be that the 
signing of such decree does not per se 
complete the appointment; but the 
condition must first be complied with, 
and the intimation is that only upon 
formal approval of the bond, where- 
upon letters under seal issue, shall the 
appointment take full effect. The rule 
is to date decree, bond, and letters all 
on the same day. See c. 5 as to qual- 
ifying by bond; also preceding note. 
A grant which includes two estates 
under one administration is held not 
to be void. Grande v. Herrera, 15 
Tex. 533. But such a grant would 
certainly be thought irregular and 
highly objectionable in probate prac- 
tice. Letters of administration are 
not void because the seal of the court 
is affixed in the wrong place. Sharpe 
V. Dye, 64 Cal. 9, 27 P. 789. And see 
86 A. 31, 109 Me. 421 (decree signed 
by judge at his private law office). 



1043 



§ 1120 ESECUTOES AISTD ADMIIflSTRATORS. [pAET II. 

bj the probate court, before one can lawfully assume the rights 
and duties of the trust. This general rule applies to a sheriff, cor- 
oner, police officer, or whoever else may come into the charge and 
temporary custody of the effects of a deceased person;^ and, sub- 
ject to statute qualifications already noted, the same holds true of 
public administrators.^ The proper evidence that one is an ad- 
ministrator is the letters of administration, or a certified copy 
thereof, under the seal of the court.^ And the possession of 
such letters by the person in whose favor the grant runs is prima 
facie proof that they were duly granted and delivered.^ 

§ 1120. In what Cases Administration may be dispensed with. 

Subject to convenient rules of limitation as to time, such as 
we have already noticed, administration is always desirable for 
the settlement of intestate estates not trivial in amount, ^or 
does American policy so much dispense with the judicial fomiali- 
ties as it renders the judicial procedure simple and inexpensive 
so far as possible. The custody of the law must, in this instance, 
be regarded as a custody for the benefit of all parties interested; 
and whether citizen or stranger, the estate of every person who dies 
capable of acquiring and transmitting property should be sub- 
jected to this process, for a due collection of effects, settlement and 
distribution. In no legal sense can heir, next of kin, or creditOT, 
be regarded as the representative of the deceased or successor in 
title, unless administration has been duly committed.^ iNTor can 
one portion of the kindred sue another portion in matters per- 
taining to an intestate's estate, without the medium of an ad- 

2. Wilson V. Dibble, 16 Fla. 782; 5. McNair v. Dod^e, 7 Mo. 479. 
Williamson v. Furl)ush, 31 Ark. 539. Letters of administration are credcri- 

3. Supra, § 1117; 34 Cal. 464; tials of autiiority simply, and are 
Thomas v. Adams, 10 111. 319. not necessary where tlie order or 

4. Davis V. Shuler, 14 Fla. 438; Al- record of the court shows autiiority 
bright V. Cobb, 30 Mich. 355; Davis to act. 130 P. 251. 

V. Stevens, 10 La. Ann. 496; Tuck v. 6. Bartlett v. Hyde, 3 Mo. 490; 

Boone, 8 Gill, 187; Moreland v. Ah-xander v. Barfield, Tex. 400. 
Lawrence, 23 Minn. 84. 

1044 



CHAP. III.] APPOINTMENT OF ADMINISTRATORS. 



§ 1120 



ministrator for tlie court to recognize."^ Creditors of the deceased 
intestate who have occasion to press their claims or to re-open the 
transactions of his life; parties in interest, too, who may wish 
to collect a claim or quiet a title on behalf of the estate; Uiese 
all need administration as a step preliminary to invoking legal 
process in other courts.^ A person exclusively entitled to the estate 
must get such credentials of authority before be can sue others for 
what belongs to the estate.^ Distributees cannot obtain their dis- 
tributive shares, nor ascertain what those shares should be, with- 
out such a representative; and it is against sound policy to permit 
an action to be sustained upon any promise to settle and pay over 
the distributive shares without taking out letters.^ Where, in 
fact, the next of kin and heirs-at-law have taken possession of the 
estate of a deceased person and held it for many years, dividing 
it and exercising other acts of ownership, they may nevertheless 
be held . accountable for the whole property to an administrator 
regularly appointed afterwards ; and a court of equity will not, at 
their instance, restrain him from recovering the assets in an action 
at law.^ 



7. Davidson v. Potts, 7 Ired. Eq. 
272; Miller v. Eatman, 11 Ala. 609. 

8. See Bowdoin v. Holland, 10 Cush. 
17. 

' 9. Bradford v, Felder, 2 McCord 
(S. C.) Ch. 168; Cochran v. Thomp- 
son, 18 Tex. 652. 

1. Marshall v. King, 24 Miss. 85; 
Allen y. Simons, 1 Curtis, 124; Sharp 
V. Farmer, 2 Dev. & B. 122. There 
being no legal administrator, a cred- 
itor of the intestate cannot ask a 
court of equity to appoint a receiver 
to administer. Walker v. Drew, 20 
Fla. 908. 

2. Whit V. Ray, 4 Ired. 14; Carter 
V. Greenwood, 5 Jones Eq. 410; Echols 
V. Barrett, 6 Geo. 443; Eisenbise v.- 
Eisenbise, 4 Watts, 134. And see 



Weeks v. Jewett, 45 N. H. 540; Wil- 
kinson V. Perrin, 7 Monr. 217. 

Rarely, if ever, can exception be 
asserted at this day because of in- 
capacity in the intestate. American 
law recognizes neither slaves nor out- 
laws; but all may acquire and trans- 
mit title to personal property. As to 
free persons of color, see Scranton v. 
Demcre, 6 Ga. 92. But as to a de- 
ceased Indian not taxed, see Dole v. 
Irish, 2 Barb. 639. An infant may 
die entitled to property in his own 
right, so that administration of the 
estate becomes requisite. Miller v. 
Eastman, 11 Ala. 609; W^heeler v., St. 
Joseph R., 31 Kan. 640, 3 P. 297. 
Cf. Cobb V. Brown, Speer's Eq. 564; 
150 Mass. 234, 22 N. E. 915. And al- 



1045 



§ 1120 



EXECUTORS AXD ADMIXISTEATOES. 



[part II. 



There are, however, as we have observed, statute limitations to 
the grant of original administration; the bounds set being, on 
sound principle, those usually fixed for quieting titles and cheek- 
ing litigation.^ So there may be limitations of value, lest trifling 
estates be frittered away in the course of a needless settlement* 
Moreover, it has been held competent for all the heirs and kin- 
dred of a deceased person, if they be of age, to settle and pay 
the debts of the estate, and divide the remaining property fairly 
among themselves, without the intervention of an administrator; 
for in such a case the rights of no one are prejudiced.^ Such set- 
tlement and division would not, however, be in strict compliance 
with the law, and, if made unfairly, or in disregard of the rights 
of some party in interest, it might be avoided afterwards through 



though the status of the wife at com- 
mon law forbade her to acquire per- 
sonal property in her own right, and 
the husband has been said to adminis- 
ter for his own benefit, if he admin- 
isters at all, the modern tendency is 
to require administration in all cases 
wliere a married woman having a 
separate estate dies intestate. Schoul. 
Hus. & Wife, §§ 408, 409; Holmes v. 
Holmes, 28 Vt. 765; Patterson v. 
High, 8 Ired. Eq. 52; supra, § 1098. 
But some States, even where no real 
necessity exists for administration 
upon a wife's estate, require instead 
an order of the court to devolve legal 
title upon the Imsband. Wilkinson 
V. Robertson, 85 Md. 447, 37 A, 208. 
3. Supra, § 1094. Cf. Foster v. 
Commonwealth, 35 Penn. St. 148; 
Piimey v. McGregory, 102 Mass. 89. 
Twenty years is the Massachusetts 
limit. lb. After a long adverse pos- 
fiOKHion of personalt)', equity will 
presume a former administration, to 
protect the rights of bo7ia fide pur- 



chasers. Woodfolk V. Beatly, 18 Ga. 
520. 

4. Estates less tlian twenty dol- 
lars need not, in Maine, be admin- 
istered upon. Bean v. Bumpus, 22 
Me. 549. In Massachusetts no such 
general limit of value is placed; 
Pinney v. McGregor, 102 Mass. 89; 
but public administrators are em- 
powered to collect and pay over to the 
State treasurer without taking out 
letters for estates so small. § 1113. 
In Indiana, estates worth less than 
$300 are to be inventoried, appraised, 
and settled without an administra- 
tor. Pace V. Oppenlicim, 12 Ind. 533. 
Should an estate turn out to be of the 
full value, letters ouglit afterwards 
to be procured. 

5. Taylor v. Phillips, 30 Vt. 238; 
Babbit v. Brown, 32 Vt. 437; Hender- 
son V. Clarke, 27 Miss. 436; Needham 
V, Gillett, 39 Mich. 574. Under the 
peculiar practice of Louisiana, this 
course is sometimes followed. 29 La. 
Ann. 347; Welch's Succession, 30 La. 
Ann. 702. 



1046 



CHAP. III.] APPOINTMENT OF ADMINISTRATOES. 



§ 1120 



the inter\'ention of a legal administrator.^ Other instances are 
found where courts disincline to appoint an administrator unneces- 
sarily, or to permit one already appointed to overthrow the reason- 
able transactions of distributees witli reference to the estate, for 
the mere sake of asserting his own lawful authority.'' Adminis- 
tration is granted on an estate because there is some occasion for 
such a grant; and where there is no occasion, no substantial object 
to be gained by the issue of letters, the grant should be withheld.^ 

Statutes specially dispense with letters of administration in 
various instances; and particularly where the balance of pay 
due some public servant is to be settled by government, or the 
bounties, prize-money, or pensions of soldiers and sailors remain 
to be adjusted. For the public interest is often thought to be 
best subserved in such cases by dealing directly with widows, 



6. Hibbard v. Kent, 15 N. H. 516; 
Clark V. Clay, 31 N. H. 393. 

7. Thus, in Alabama, a court of 
equity may decree distribution direct 
when administration, if granted 
could be for no other purpose. Fret 
well V. McLemore, 52 Ala. 124, 10 So 
319. See also 94 Ala. 479; 45 S. C 
17, 22 S. E. 750. And, in Pennsyl 
vania, an administrator was not per 
mitted to disturb a sale of personal 
property made before liis appointment 
by the widow and kindred, where he 
could not show debts or any good 
cause for re-opening tlie transaction. 
Walworth v. Abel, 52 Penn. St. 370. 
For an administrator can proceed both 
prudently and with delicacy by 
charging off the proceeds to the 
shares of widow and kindred in his 
accounts. And see 84 N. E. 58, 233 
111. 19. See, further, 118 N. W. 43; 
106 N. W. 354, 130 Iowa, 132; 94 P. 
155, 77 Kans. 97; Devereuxfie, (1911) 
2 Ch. 545 (small estate); Webb v. 
Trimble, 136 S. W. 870, 143 Ky. 375 



(no estate) ; Moore v. Brandon, 93 
N. E. 733, 248 111. 232 (no debts or 
claims against estate) ; 149 S. W. 
323 (only exempt property), 138 S. 
W. 929, 157 Mo. App. 416; Cotterell 
V. Coen, 92 N. E. 911, 246 111. 410. 
But cf. Sasseen's Estate, 141 N. W. 
1026 (Neb.); Barlass' Estate, 128 
N. W. 58, 143 Wis. 497 (assets used 
for funeral expenses) : Whiting v. 
Farnsworth, 81 A. 214, 108 Me. 384 
(administration for collecting inliei- 
itance tax). 

8. Graves's Succession, 50 La. Ann. 
435; 82 Md. 383. It does not follow 
that because another party is in pos- 
session of a deceased person's chattels 
he should be made to surrender them, 
regardless of a necessity of settling 
debts, or making just distribution. 
People V. Abbott, 105 111. 588; Fort 
V. Fitts, 66 Tex. 593. Partial intes- 
tacy under a will affords no occasion 
for granting administration. See § 
1250. 



1047 



§ 1120a EXECUTOES AND ADMINISTRATORS. [pART II. 

orphans, and otlier next of kin, tlirough tlie executive ; to tlie 
utter exclusion, if need be, of tJie intestate's creditors, and the 
avoidance of controversies in probate court over the locus of assets 
or of the decedent's last domicile.^ 

§ 1120a. Procedure in Administration is in Rem, 

As under a will, the procedure in administration in proWt© 
courts is in rem; and in all such cases the res is the decedent in 
whose name and on behalf of whose estate proceedings have be- 
come needful.-^ 

9. For English statutes concerning tribution and settlement through the 

administration of the effects of in- auditors of the treasury, 

testate seamen, marines, and soldiers, 1. Supra, § 1083; Anderson v. 

see Wms. Exrs. 455-460. United Qualey, 103 N. E. 90, 216 Mass. 106; 

States army and navy acts make fre- 62 So. 176. 
quent provisions for a peculiar dis- 

1048 



CHAP. IV.] APPOINTMENT OF ADMINISTKATORS. § 1122 

CHAPTER IV. 

APPOINTMENT OF ADMINISTRATORS NOT ORIGINAL AND GENERAL. 

§ 1121. Administration is not always Original or General. 

Since administration in our law fulfils every purpose of settling 
estates where no executor serves, it follows that the grant can- 
not always be both original and general, as considered in the pre- 
ceding chapter. On the contrary, there remain several kinds of 
administration, all of a special and limited nature, to be stated, 
and all fully recogTiized in probate practice, English and Amer- 
ican. These may be enumerated in order, as chiefly: (1) ad- 
ministration with the will annexed (cum testamento annexo) ; (2) 
administration of personalty not already administered (de bonis 
Tion) ; (3) temporary administration, as for instance, during 
minority (durante minore aetate) ; (4) and special administration 
for limited and special purposes (ad colligendwm, etc.). The 
Latin idiom admits of other names and classes ; not to speak of 
ancillary administration, whose discussion belongs to a later chap- 
ter, as contrasted with the principal or domiciliary administration 
in foreign estates.^ 

There cannot be two valid administrations on the same estate 
within the same jurisdiction; but one of them must be void.^ 

§ 1122. Administration with the Will annexed (cum testamento 
annexo) ; When granted and how. 
In various instances administration should be granted of tes- 
tate estates ; as where the decedent omitted in his will to name 
an executor, or where the executor or executors named are all 
found dead or incompetent to act when the will is to be presented 
for probate, or where the sole executor refuses the trust, or has 
disappeared, or neglects to appear and qualify as the statute directs. 

1. See c. 7, post. So. 277, 43 L. R. A. (N. S.) 634, 180 

2. Carr v. Illinois Central E, 60 Ala. 159. But cf. § 1160a, post. 

1049 



§ 1122 EXECUTOKS A^'D ADMIXISTEATOKS. [PAKT II. 

Here the court must grant an administration, while giving to 
the will its due operation as far as possible, and admitting it to 
probate; and tbis sort of grant is known as administration with 
the will annexed.^ 

The will should, of course, be presented for probate, even 
though there be no executor to serve under it; and, in default of 
an executor, the person applying to be appointed administrator 
with the will annexed takes usually the burden of probate, petition- 
ing after the same form as an executor, but alleging the special 
circumstances, besides, under which he claims the appointment. 
Letters of administration with the will annexed should not be 
granted unless the exigency is made apparent; executors, if alive 
and competent, should have full opportunity to take or renounce 
the trust ; any renunciation on their part should be made in proper 
form; and if, out of several executors named, one is willing and 
competent to serve, such administration is not to be granted.* 
"WTien granted upon proof of the will in common form, such ad- 
ministrator may be called upon, like any executor, to prove the 
will afterwards in solemn form ; and renunciation of this trust 
in one's favor does not necessarily involve renunciation of the 
right to contest probate.'' Pending an appeal from probate of 
the will, a petition for such administration cannot be allowed.® 

3. See 2 Inst.; Mass. Gen. Stats. 1 Roll. Abr. 907, pi. 6. But as to 
c. 94, §§ 6, 7; Wms. Exrs. 461; Mississippi practice, when the execu- 
Peebles v. Watts, 9 Dana (Ky.), 102, tor named was a non-residont and did 
33 Am. Dec. 531 ; Vick v. Vicksburtr, not seasonably object to such a prant, 
2 Miss. 379, 31 Am. Doc. 167; Tuttle see Cox v. Cox, 16 Miss. 292. Where 
V. Turner, 8 Jones L. 403; Crawshay's an executor was bodily incapacitated 
Goods, (1S93) P. 108. by illness, letters with the will an- 

For a limited grant of adiiiinistra- ncxcd were granted to a residuary 

tion under a will, see Butler's Goods, legatee for the use of tl;e executor 

(1898) P. 9. until his recovery. Ponsonby's 

4. Wms. Exrs. 281, 283, 461; Stob- Goods, (1S95) P. 287. And see § 
bins V. Lathrop, 4 Pick. 33; Maxwell, IVM, post. 

Re, 3 N. J. Eq. 611; supra, § 1044; 5. Wms. Exrs. 337; 2 Cas. temp. 

Springs v. Irwin, 6 Ircd. L. 27. If Leo, 241. 

there are several executors, all must 6. Fisher, Re. 1.5 Wis. 511. See 

duly renounce liefore administration Pcnn v. Fogler, 182 111. 70. 

with the will annexed can be granted. 

1050 



CHAP. IV.] APrOINTMEXT OF ADMIiVISTKATOES. § 1124: 

§ 1123. Administration with the Will annexed; Functions of the 
Office. 
The functions of administrator with the will annexed are, in 
general, those of executor; for the probate court makes him pilot 
hy substitution, to steer like an executor by the chart which the 
deceased has left behind. His letters are worded to fit the case ; 
but he qualifies substantially as an administrator.'^ A will is not 
vitiated by the failure of executors, to carry out its provisions; 
and the full appointment of an administrator with the will an- 
nexed assumes, though not perhaps conclusively, that the court 
has in point of fact, admitted the will to probate.^ 

§ 1124. Administration with the Will annexed ; to whom granted ; 
Residuary Legatee. 

The rule, when uncontrolled by statute, is to grant administra- 
tion with the will annexed to the claimant having the greatest in- 
terest under the will, for which reason the residuary legatee is 
preferred to mere next of kin. And statute 21 Hen. VIII. has 
accordingly been construed, in English courts, as admitting of such 
iin exception to the rvle of administration, forasmuch as that 
statute conforms, in its spirit, to the presumed last wishes of 
the deceased.® Of two or more residuary legatees, any of them 
may be taken as the court may see fit to select.^ And though the 

7. Wms. Exrs. 470: next c. By the See Wms. Exrs. 467. All who are 
better practice, the judicial record immediately and ultimately inter- 
should show that there was cause for ested in the fund created by the will 
granting such administration. But may be classed together as " principal 
see Peebles v. Watts, 9 Dana, 202. or specified legatees," from whom the 
See also Giessen v. Bridgford, 83 N. statute choice is to be made. 5 Dem. 
Y. 348. ■ (N. Y.) 128; 4 Dem. 168. The tes- 

8. Lackland v. Stevenson, 54 Mo. tator's expressed wish as between two 
108. See Hanna v. Prewitt, 155 S. persons having equal rights is en- 
W. 726, 153 Ky. 310 (power of sale titled to some weight. 5 Dem. (N. 
under the will transmitted). Y.) 281. Under the New York stat- 

9. 1 Ventr. 219, per curiam: Wms. ute, such letters must be issued to 
Exrs. 463, 464 ; Atkinson v. Barnard, the guardian of any infant who, but 
2 Phillim. 318. for infancy, would be entitled to them. 

1. Taylor v. Shore, 2 Jones, 162. 4 Dem. 297. 

1051 



§ 1125 EXECUTOES AND ADMINISTRATOES. [pAET II. 

estate be such that the residuary legatee is not likely to have a 
residue, or bv the terms of the will must hold that residue with 
limitations, the presumption of the testator's favor upholds his 
claim, nevertheless, to be appointed.^ He is preferred, not only to 
next of kin, but to all other legatees under the will besides; and 
if he die aft^r the testator, and before obtaining letters, his per- 
sonal representative takes precedence in his right to the fullest 
extent.^ If one is not only sole residuary legatee but sole bene- 
ficiary under the will, still stronger becomes his claim for appoint- 
ment where an executor is wanting/ 

§ 1125. Administration with the Will annexed; Appointment of 
Next of Kin. 

So far, however, from having any legal right to the grant of 
such letters, the residuary legatee could not compel the selection 
of himself by mandamus; and the English spiritual court thu& 
proceeded at its own discretion.^ But if the residuary legatee was 
also next of kin (saving the rights of husband or widow surviv- 
ing) practice and statute united in his favor, and the court could 
not pass him over.^ Upon the refusal or inability of the residuary 

2. Hutchinson v. Lambert, 3 Add. where the so-called residuary legatee 
27; Atkinson v. Barnard, 2 Phillim. is a mere trustee under the ■will. 
316; Mallory's Appeal, 62 Conn. 218, Hutchinson v. Lambert, 3 Add. 27; 
25 A. 109, (administration de bonis Ditchficld's Goods, L. R. 2 P. & D, 
non) . But where one is made a mere 152. In M'Auliffe's Goods, (1895) 
trustee of the residue it is otherwise. P. 290, a convent was a residuary 
2 Cas. temp. Lee, 243, 294, 327; legatee, and letters were granted to 
Ditchfield's Goods, L. R. 2 P. & D. tlie Mother Superior. See Fulgham 
152. Where a residuary legacy is v. Fulgham, 119 Ala. 403 (non-resi- 
given to a trustee to be paid over, dcnce of residuary legatee does not 
the cestui que trust, not the trustee, disqualify). 

f<hould be appointed. Tliompson's 4. Crawshay's Goods, (1893) P. 108. 

Estate, 33 Barb. 334. And see Campion's Goods, (1900) P. 

3. Wras. Exrs. 464, 465; Jones v. 13, (grant to assignees of the resl- 
P.aytagh, 3 Phillim. 635; Wetdrill v. duary legatee). 

Wright, 2 Phillim. 243; 6 Notes of 5. 2 Stra. 956; Wms. Exrs. 465. 

Cas. 44; Booraem's Estate, 55 N. J. 6. Cas. temp. Lee, 414. 

Eq. 459. Alitor, as suggested above, 

1052 



CHAP. IV.] APPOINTMENT OF ADMINISTRATORS. § 1126 

legatee to fill the vacancy under the will, administration with the 
will annexed has been granted most commonly to the next of kin ; 
though the English practice is to refuse such administration where 
the next of kin takes under the will no beneficial interest.'^ Ad- 
ministration may be granted to next of kin where the will con- 
tains no clear disposition of the residue.^ Where residuary estate 
is held in trust, the beneficiary of the trust should be preferred 
to the trustee.^ 

§ 1126. Administration with the Will annexed; Surviving 
Spouse's Right considered. 
Where a wife makes a lawful will, but appoints no executor, or 
names one without any right to do so, her surviving husband's 
right has been variously construed; but it would appear that the 
grant of letters is discretionary in the court according to the cir- 
cumstances. One of these circumstances is the lawful interest 
acquired under such a will ; another, whether, apart from such 
interest, the wife had a right to constitute any executor other than 
her husband.^ As to the wife's partial disposition rightfully made, 
the rule appears to be to respect her wishes, or those of the 
parties in interest, and to grant an administration with the will 
annexed accordingly, where there can be no executor; but limit- 
ing the grant thus, to decree an administration caeteroriim honoruni 
to her husband.^ On the whole, the husband's right to administer 
is favored in England and the United States, save so far as the 
wife may have lawfully controlled it by her own testamentary 
<lisposition.^ 

7. Wms. Exrs. 466; Kooystra v. executor is not a "creditor" in the 
Buyskes, 3 Phillira. 531. statute sense. 1 Dem. (N. Y.) 240. 

8. Aston's Goods, L. R. 6 P. D. 203. And see 62 A. 556. 

9. 5 Dem. (N. Y.) 523. The next 1. Dr. Lushington in Brenchley v. 
of kin has a preference over any Lynd, 2 Robert. 441; Bailey's Goods, 
creditor. Little v. Berry, 94 N. C. 2 Sw. & Tr. 135; Salmon v. Hays, 4 
433. The case of a non-resident tes- Hagsr. 3S6. 



<?&• 



tator who leaves local property is 2. 2 Gas. temp. Lee, 537. 

not within the statute. 49 Conn. 411. 3. Wms. Exrs. 415, 416; Schoul. 

A claimant under a contract with Hus. & Wife, §§ 457-470, passim; 

1053 



§ 1127 EXECUTOES AXD ADMIXISTKATORS. [PAKT II. 

What lias been said of the widow's general right to adminis- 
ter on the estate of her deceased husband may suffice for estab- 
lishing her precedence over the next of kin, or statute equality 
with them, wherever occasion arises for granting administration 
with the will annexed, of such estate/ Where under the will 
the largest or the residuary beneficiary is the surviving spouse, 
all the greater becomes the right to be appointed.^ 

§ 1127. Administration with the Will annexed; Executor's 
Rights. 
If there be an executor living and competent, his paramount 
rights must be respected. And any order of court which grants 
administration with the will annexed to another before the exe- 
cutor has formally renounced the trust is voidable upon his ap- 
plication made in due time.^ Logically speaking, an executor 
ought not to be allowed to take out administration with the will 
annexed '^ but there are cases in which an individual may be con- 
sidered entitled to such grant, after renoimcing the claim of execu- 
tor. Thus, it is held in Missouri that an executor, whose appoint- 
ment as such was avoided by his being an attesting witness, may 

supra, § 1098; Schoul. Wills, (Vol. either of them survived the other, 

I.) Part II., c. 3. Son appointed as administration with the will annexed 

trustee for beneficiaries where the of the estate of each was granted to 

husband had deserted the testatrix next of kin as in case of intestacy, 

long before her death and had not Alston's Goods, (1892) P. 142. See 

since been heard from. (1894) P. 23. § 1001a. 

4. Supra, § 1099. Scmble, by Eng- 6. Baldwin v. Buford, 4 Yerg. 16; 
lish practice, that, following the in- Thompson v. Meek, 7 Leigh. 419. But 
tent of tlie will, administration " dur- the e-xecutor cannot formally re- 
ing widowhood " may be the proper nounce, and claim his right after ad- 
limitation. Wms. Exrs. 463, n; 7 ministration with the will annexed 
Notes of Gas. 684. has been granted. Wms. Exrs. 284; 

5. Sec Long v. Huggins, 72 Ga. Add. 273. 

776. 7. Wms. Exrs. 470, citing English 

Where husband and wife executed rules of court, which preclude a per- 

corresponding wills, each appointing son entitled to a grant in a superior 

the other universal legatee and sole character from taking it in an ia- 

executor, and both perislied together fcrior. 
in a aliipwrock, with no evidence that 

1>}54 



CHAP. IV.] APPOINTMENT OF ADMINISTEATOKS. § 1128 

nevertheless be appointed administrator with the will annexed.* 
In England a similar grant was made to a husband who was made 
sole executor and universal legatee under his wife's will, and 
who, after having renounced in the probate, desired afterwards to 
prove the will.^ And a widow appointed sole executrix has been 
pennitted to decline that responsible trust, and aftei'wards serve 
as administratrix with tlie will annexed, in connection with an- 
other administrator.^ 

When an executor resides abroad, rules of non-residence applv, 
such as we have already considered ; non-rcsideiioe does not 
essentiaHy disqualify, but in English practice the executor, by a 
power of attorney revocable at pleasure, may have another ap- 
pointed administrator with the will annexed.^ 

§ 1128. Administration of Personalty not already administered 
(de bonis non) ; when granted, etc. 

The general principle of administration de bonis non is that this 
grant shall be made where a vacancy must be filled by the court 
while the estate remains incompletely settled. Hence the grant is 
made under either of two aspects: (1) where there was a will, 
or (2) where there was no will. In the former instance letters 
testamentary, as we have seen, hold good so long as one of two or 
more executors survives to fulfil the trust, and holds his ofiice ; 
and wl>ere, on the other hand, there was no capable executor at 
the time of probate, the original appointment becomes tliat of ad- 
ministrator with the will annexed. In the latter instance tJie 
vacancy created is that of sole original administrator. Failing 
the original ofiice, therefore, under a will, administration de bonis 

8. Murphy v. Murphy, 24 Mo. 526. effect tliat where one renounces pro- 

9. Blisset's Goods, 44 L. T. 816. bate his right in respect of the execu- 
Having renounced probate in his torship shall wholly cease, and ad- 
capacity of executor, his interest, ministration be committed as if lie 
nevertheless, as universal legatee, had not been appointed, 
supported the grant of administra- 1. Briscoe v. Wickliffe, 6 Dana, 157. 
tion with the will annexed. See 2. Supra, § 1109; 1 Cas. temp. Lee, 
Stat. 20 & 21 Vict. c. 77, § 79, to the 402: Bayard's Goods, 1 Robert. 768; 

1055 



§ 1128 EXECUTOES AND ADMIXISTEATORS. [PAET II. 

non with tlie will annexed is proper; but failing the original office^ 
where there was no will, administration de bonis non simply. In 
modern practice, to render any grant de bonis non valid, the orig- 
inal office must be vacant at the time by the death, resignation^ 
or removal of the sole executor or original administrator.^ 

Where the sole executor, whose functions cease, has not com- 
pleted the administration of the estate, where he has not paid 
all the legacies, satisfied all the lawful claims, and delivered over 
the balance in his hands to the persons entitled thereto, an ad- 
ministrator de bonis non with the will annexed may be rightfully 
appointed.^ And various local statutes are quite explicit in de- 
claring that when a sole executor or administrator with the will 
annexed dies after entering upon the duties of his trust and before 
it is discharged, or is removed by the court or resigns, adminis- 
tration de bonis non with the will annexed may be granted f there 
being, of course, occasion for the appointment, such as imsettled 
debts or unadministered estate, and something remaining to be 
performed in execution of the Avill. English practice regards, by 
way of exception, the right of a sole executor to transmit the 

Wms. Exrs. 468. Administration vesting in her husband, as under the 

with will annexed may be granted to old law of coverture. >^itpra, §§ 1032, 

the attorney of the foreign executor 1106; Schoul. Hus. & Wife, §§ 163, 

in some States. St. Jurgo v. Duns- 460. 

comb, 2 Bradf. (N. Y.) 105. Or the 4. Alexander v. Stewart, 8 Gill & J. 

non-resident executor empowers a 226: Brattle v. Converse, 1 Root 

resident attorney to accept service of (Conn.) 174. The old common law 

process, etc. Mass. Pub. Stats, c. 132. rule may have stopped somewhat 

3. See Rambo v. Wyatt, 32 Ala. short of this conclusion, but accord- 

363; 70 Am. Dec. 544; Wms. Exrs. ing to the tenor of modern legislation 

7th ed. 471: Creath v. Brent, 3 Dana, the rule is substantially that stated 

129. And as to attacking decree, see al)ove. Chamberlin, Re, 70 Conn. 363, 

103 Ind. 223; 2 N. E. 601; 70 Ala. 39 A. 734. No such successor in th& 

140. Under Massachusetts statutes, trust can sell lands under a power 

administration de bonis non (with or given by the will. Albright v. Bangs, 

without the will annexed, as the case 83 P. 1030, 72 Kan. 435 115 Am. St. 

may be) is proper whenever an un- Rep. 219. See 83 N, E. 526, 78 

married woman, being sole executor Ohio St. 271 (bond as residuary 

or administrator, marries; the trust legatee), 

terminating accordingly, instead of 5. Mass. Gen. Stats, c. 101, § 1, 

105G 



CHAP. IV.] APPOINTMEISTT OF ADMINISTRATOES. 



§ 112S 



office to his own executor;*' but that distinction, we have seen, is 
not upheld in most of the United States.^ 

So, correspondingly, is it with the administration of an intes- 
tate estate. If a sole administrator dies before completing the 
trust committed to him, or is removed by the court or resigns, 
administration de bonis non will be granted, provided there is 
personal property left unadministered or debts remaining due 
from the estate.^ As with co-executors, however, so in joint ad- 
ministration, the sun-ivor becomes sole administrator, and the 



6. Supra, § 1043; Wms. Exrs. 471- 
473. See Grant's Goods, 24 W. R. 
929; (1896) P. 129. Such a rule 
involves a very nice inquiry as to the 
necessity of administration de bonis 
non when there is an administration 
durante minoritate of an executor of 
an executor. Wms. Exrs. 473. 

7. Supra, § 1043; 1 Dem. (N. Y.) 
353. But see Hart v. Smith, 20 Fla. 
58. That rule cannot, at all events, 
apply when the testator named the 
successor by his will. See § 1040. 
The representative of an executor who 
has died without completing his trust 
must not meddle with the unadmin- 
istered assets. Law-ofi v. Burgee, 88 
A. 121, 121 Md. 203. 

8. Mass. Gen. Stats, c. 101, § 1; 
2 Bl. Com. 506; Scott v. Fox, 14 Md. 
388 ; Hendricks v. Snodgrass, 1 Miss. 
86; Wms. Exrs. 474. 'Debt" con- 
strued not to include " legacy." 
Chapin v. Hastings, 2 Pick. 361. 

Statute restrictions are imposed, 
however, on this grant. In Massa- 
chusetts unadministered estate or un- 
settled debts, upon the lapse of sole 
executorship or sole administrator- 
ship, must be left to the amount of 
at least twenty dollars. Mass. Gen. 
Stats, c. 101, § 1. This is for the 
purpose evidently of checking litigious 

67 10 



proceedings, and dispensing with mul- 
tiplied offices for trifling estates. Ad- 
ministration de bonis non is often 
granted with the view of overhauling 
the acts and conduct of some pre- 
decessor, and making him, his bonds- 
men, and his personal representatives 
answerable to dissatisfied parties in 
interest. If the trust has been essen- 
tially fulfilled under the original 
grant, it is thought better to sufTer 
the administration to expire. Sec 77 
S. W. 105, 103 Mo. App, 281; 67 S. 
W. 989, 24 Ky. Law. 31. 

Removal from office for insanity be- 
fore the administration is completed 
gives jurisdiction to grant letters de 
bonis non. McCraine v. Hutchinson, 
77 S. E. 1064, 139 Ga. 792; (code) ; 
§ 1154 infra. Guardian of the in- 
sane person is not preferred here for 
appointment. lb. 

Notwithstanding statute limitations 
concerning original administration, it 
is held that administration de bonis 
non may be granted after the lapse 
of twenty years from the death of the 
former administrator. Bancroft v. 
Andrews, 6 Cush. 493 ; Holmes, in re, 
33 Me. 577, 92 S. W. 763, 116 Tenn. 
122. But long lapse of time and 
other circumstances favor a pre- 
sumption that the estate has been 

57 



§ 1128 



EXECUTOEs a:s"d ad:mixistkatoks. 



[PAKT II. 



original office does Hot lapse so long as one remains to fill it.^ 
The goods of an intestate do not go to the legal represeotfltive of 
a deceased administrator, nor has such representative any pre- 
ferred ri^t to the successorship/ The administrator de bonis non 
" is appointed," it has been said, to " finish a business already 
commenced; and this makes the case different from that of a full 
and immediate administrator, whether temporary or otherwise, 
since the present one is entitled to all the personalty which the 
former executor or administrator has n'ot converted."^ 

It is held that where, in consequence of the death of a quali- 
fied executor pending proceedings to test the validity of the will, 
there is no legal representative of an estate, the probate court may 
grant lettjers of administrajtion de bonis non, even while an appeal 
from that cause is pending.^ But it would have been better to 
defer such grant, and as a general Bule, there cannot be two valid 
grants of administration subsisting at the same time in one juris- 
diction upon one estate; but wherever there is an executor or 



fully settled. Murphy v. Menard, 14 
Tex. 62. And s«e San Roman v. 
Watson, 54 Tex. 254. But the ques- 
tion is not merely whether debts re- 
main unpaid, but whetlier the estate 
has been wholly settled and the trust 
closed. Protection of the rights of 
distributees may give occasion for the 
appointment-; as where the final set- 
tlement of a deceased administrator 
is set aside by the courts. Scott v. 
Crews, 72 Mo. 261; Byerly v. Donlin, 
72 • Mo. 270. And see Neal v. 
Charlton, 52 Md. 495. Local statute 
may somewhat affect the considera- 
tion. 70 Cocn. 363. 39 A. .734. 

9. Wms. Exrs. 474; 2 Vern. 514; 
62 Tex. 54. But as to a co-adminis- 
trator where one resigns, under some 
codes, see 131 U. S. 315, 33 L. Ya\. 170. 

1. See Taylor v. Brooks, 4 Dcv. & 
B. L. 139; Donaldson v. Raborpr, 26 



Md. 312: Lawson v. Burgee, 88 A. 
121, 121 Md. 203 (executor of a de- 
ceased executor who had not settled 
the estate not competent). 

2. Hinton v. Bland, 81 Va. 588, 595; 
5 Rand, 51; Clarke v. Wells, 6 Gratt. 
475. Whenever money is to bo paid 
to the decedent's estate, an admin- 
istrator de bonis non is a necessary 
party. 81 Va. ib. And see 4 Dcni. 
487. An administrator refused to 
bring a suit on a certain cause of ac- 
tion, resigned and was discharginl ; 
and administration dc bonis non was 
granted. Merklc v. Bennington, 68 
IVfich. 138, 35 N. W. 846. Adminis- 
tration rf-e bonit! non may be needful 
to perfect some one's title to assets. 
25 Fla. 080, 7 So. 163. 

3. Finn v. Hempstead, 24 Ark. 
111. 



1058 



CHAP. 



IV.] 



APPOINTMENT OF ADMINISTEATOES. 



§ 1120 



administrator still in office, with powers not liiiiito<l as to objects 
or time, even though he ought to be removed, the appointment 
of an administrator de bonis non is a nullity.'* Where the county 
court of competent jurisdiction in a State has granted probate and 
letters testamentary, or administration of an estate, the same court 
has jurisdiction to grant administration de honi^s non.^ And the 
American doctrine is that the administrator de bonis non derives 
his title from the deceased, and no,t from his predecessor in office.® 

§ 1129. Administration de bonis non; to whom committed. 

Administration de bonis non is usually committed according to 
the rules already laid down concerning the original grant of let- 
ters. Thus, for administration de bonis non with the will annexed, 
administration with the will annexed furnishes the criterion of 
preference.^ And for administration de bonis non on an intestate 



4. Creath v. Brent, 3 Dana, 129; 
Hooper v. Scarborough, 57 Ala. 510. 
Under Mississippi statutes, however, 
peculiar provision is made for a new 
grant of letters in the county to which 
the administrator moves or to which 
the property is removed. Watkins v. 
Adams, 32 Miss. 333. As to what 
constitutes removal from office, resig- 
nation, etc., see c. 6. post. 

WheFe a second administration is 
granted without the restriction of 
" de bonis non " the court's error in 
appointment calls for direct and not 
a collateral attack, even though no 
vacancy appears of record. Sands v. 
Hickey, 33 So. 827, 135 Ala. 322. 
And see 32 So. 1009, 134 Ala. 646, 92 
Am. St. Rep. 4S. 

5. Lyons, Ex parte, 2 Leigh, 701. 

6. Foreign Missions, In re, 27 Conn. 
344. The reduction of the assets to 
cash is not necessarily a full settle- 
ment of the estate, so as to dispense 
with administration de bonis non. 

1059 



Md. 312. 
may be 



Donaldson v. Raborg, 26 
And such administration 
proper where the executor has ad- 
vanced for debts and distribution 
from his own funds, but has not had 
an opportunity to reimburse himself, 
Munroe v. Holmes, 13 Allen, 109. Cf. 
77 N. E. 630, 190 Mass. 336. 

Every administrator after the first 
is an administrator de bonis non in 
fact, and it is not needful that this 
should so appear of record. Vcach v. 
Rice, 131 U. S. 293, 315, 33 L. Ed. 170. 
That such administration may be 
granted because of debts reported 
desperate by the former representa- 
tive, which prove later collectible, see 
62 Conn. 218, 25 A. 1©9. Real estate 
to be sold may sometimes furnish the 
occasion for such a grant. Cushman 
V. Albee, 66 N. E. 590, 183 Mass. 108 ; 
Atherton v. Hughes, 94 N. E. 546, 
249 111. 317. 

7. Wms. Exrs. 7th ed. 472; § 1124. 



§ 1129 EXECUTORS AXD ADMIXISTEATOKS. [PAKT II. 

estate, the ecclesiastical rule, sanctioned likewise by courts of 
common law. has been that there is no distinction in the choice 
between this and original administration.^ But while these rules 
prevail in England, they diflfer in parts of the United States.^ 
Thus the Xew York statute provides that letters shall be granted 
" to the widow, next of kin, or creditors " of the deceased " in 
the same manner as thereinbefore directed in relation to original 
letters of administration," but without prescribing the order of 
preference as between the classes named. -^ But in other States, 
Massachusetts for instance, it is provided that where a sole execu- 
tor or administrator dies before he has fully administered tlie 
estate, the next of kin of the deceased have no right to clstim ad- 
ministration de bonis non, but the judge of probate may grant 
it to any suitable person.^ 

The grant of administration de bonis non regards, according 
to the better reasoning, the interest of the original estate, rather 
than of those representing the original appointee, whose man- 
agement, indeed, may require a close investigation, after his death, 
removal, or resignation ;^ and hence it seems better still that the 
court should have power to appoint at discretion some third person 

8. Wms. Exrs. 474, 475: 2 Hagg. administrator, cf. Hagan's Estate, 
Appendix, 169, 170. See §§ 1097- 139 N. Y. S. 463. 

1111. 1. Bradley v. Bradley, 3 Redf. (N. 

9. If creditors of an estate declared Y. ) 512. This statute is construed to 
insolvent fail to nominate, the court give the residuary legatee preference 
may appoint an administrator de as against the widow, where the sole 
honis non at discretion. Long v. executor dies, in like manner as if he 
Easly, 13 Ala. 239. A female first had renounced. lb. And see Cobb 
cousin on the father's side takes pre- v. Beardsley, 37 Barb. 192; supra, 
cedence of a male first cousin on the § 1099. 

mother's side under the Maryland 2. Neither widow nor next of kin 

code. Kearney v. Turner, 28 Md. 408. has, therefore, a right to claim ad- 

The widow's preference is considered ministration de bonis non in Massa- 

in Pendleton v. Pendleton, 14 Miss. chusetts. Russell v. Hoar, 3 Met. 

448. The creditor for the greatest (Mass.) 187. 

amount will be appointed adminis- 3. Under the English Stat. 20 & 21 

trator de honis non, otiicr tilings be- Vict. c. 77, authorizing a di.sregard of 

ing equal. Cutlar v. Quince, 2 Ilayw. tlic usual priority under " special cir- 

(N. C.) 60. But as to the public cumstances,'' etc., joint grant of ad- 

lOGO 



<JHAP. IV.] APPOINTMENT OF ADMINISTRATORS. § 1130 

committed to neither interest, but impartial between them, as well 
as honest, energetic and prudent. So, too, in determining here the 
right of kindred to administer, the status at the death of the per- 
son who left the estate, and not the status at the time the trust 
became vacant, should be regarded f for thus does the appointment 
go by the beneficial interest. 

§ 1130. Death of Surviving Spouse pending Settlement of De- 
ceased Spouse's Estate. 
If the husband dies pending the settlement of his deceased in- 
testate wife's estate, the interest will devolve upon his next of kin. 
This is the English rule, and it applies in this country wherever, 
certainly, the right to administer for a husband's own benefit pre- 
vails. But by the old ecclesiastical practice in England, the course 
of administration was irregular. If the husband died before his 
appointment, administration was granted to the wife's next of 
kin and not the husband's; such administrator, however, being 
treated in equity as trustee for the husband's legatees or next of 
kin.^ But thus to pass over those beneficially interested for 
strangers pro forma, who might be hostile, seemed so contrary to 
sound principle, that the husband's representatives were afterwards 
preferred in a case of administration de bonis nan, and it was held 
that administration ought to go with the interest, whether the 
husband had taken out letters on his wife's estate before his own 
death or not.^ In fine, the more rational rule has been established, 

ministration de bonis non has been .to terminate the trust so that the ad- 
made to a next of kin and a person ministration de bonis non would be 
entitled in distribution. Grundy's proper. Mass. Gen. Stats, c. 101, § 1. 
Goods, L. R. 1 P. & D. 459; and see And see supra, § 1128. 
L. R. 1 P. & D. 450, 538. 4. Wms. Exrs. 475, 476; 1 Cas. 

If a married woman be executrix or temp. Lee, 179. 

administratrix and dies, those inter- 5. Schoul. Hus. & Wife, § 415; 

ested in the estate, rather than her Wms. Exrs. 412; Squib v. Wyn. 1 P. 

surviving husband, should be taken Wms. 378; 2 Hagg. Appendix, 169. 

for the succession. Wms. Exrs. 416. 6. Fielder v. Hanger, 3 Hagg. 769; 

The marriage of a woman, serving in Attorney-General v. Partington, 3 H. 

such a capacity, is by some codes made & C. 193; Wms. Exrs. 413. 414. 

1061 



§ 1131 EXECUTOKS AXD ADMINISTEATOES. [PAET II. 

both in England and the United States, that administration on 
the wife's estate shall be granted, in case of the husband's death 
pending its settlement, to the husband's representatives; unless 
indeed (as under a marriage settlement or some peculiar statute) 
the wife's next of kin are entitled to the beneficial interest ; the 
grant in either case following the interest.^ 

§ 1131. Administration de bonis non; Miscellaneous Points. 

Where a statute order of preference is preserved in the grant 
of administration de bonis non, the citation, which is always a 
proper preliminary to the grant of such letters, may be found 
indispensable for concluding those in priority;^ otherwise, how- 
ever, where the statute dispenses witli such precedence and leaves 
the court to its own unfettered choice.^ 

Letters of administration de bonis non issue in due form as 
in other cases; following, however, the peculiar style appropriate 
to the grant; and the probate record or judicial order makes due 
reference to the former grant and the manner of its tennination. 
The administrator thus appointed makes oath and qualifies after 
the manner of a general administrator, mutatis mutandis} This 

7. Fielder v. Hanger, supra; Hen- died before having fully administered 

drin v. Colgin, 4 Munf. 231 ; Wliitaker her husband's estate, and collateral 

V. Whitaker, 6 Johns. 112: Bryan v. kindred on her side and on the hus- 

Rooks, 25 Ga. 622; Harvey, Re, 3 band's side both desired letters, 

Redf. (N. Y.) 214; Patterson v. Cutch in v. Wilkinson, 1 Call (Va.) 1. 

High, 8 Ired. Eq. 52; Schoul. Hus. & 8. Wms. Exrs. 477, 478; 1 Hagg. 

Wife, § 415. See statute in New York 699; 2 Hagg. 626; § 1112, supra. 

specially providing that the hus- 9. See Sivley v. Summers, 57 Miss, 

band's administrators and executors 512. In English practice the grant 

may take the property, so as to dis- of administration de bootis non may 

pense with administration de honie be limited to a pairticular interest, as 

non on the wife's estate. Lockwood that of a sole creditor. Burdett's 

V. Stockliolm, 11 Paige, 87. But cf. Goods, L. J. 45, P. D. A. 71. See 

Han'ey, Re, 3 Redf. (N. Y.) 214. French's Estate. (1910) P. IGO (ab- 

And see Briasco's Estate, 126 N. Y. sconding administrator). 

1001. 1. See Wms. Exrs. 478, 479; Veach 

See as to a preference, likewise ac- v. Rice, 131 U. S. 293, 33 L. Ed. 63. 
cording to the interest, where a widow 

1002 



CHAP. IV.] appoi^"t:me'Nt of administeators. § 1132 

sort of administration is usually to be regarded as a general grant ; 
but under exceptional circumstances it may be limited.^ A prima 
facie showing of assets unadministered will suffice for the appoint- 
ment.^^ 

§ 1132. Temporary Administration; Administration during Mi- 
nority (durante minore aetata). 

Temporary administration deserves attention among the peculiar 
classes enumerated in the present chapter. Unlike tliose already 
described, this administration is of a limited or circumscribed 
character, in being confined to a particular extent of time, though 
the administrator has the powers of an ordinary administrator for 
the time being. 

To this class belongs what is known as administration during 
minority. Administration during minority (durante minore 
aetate) may be granted where the person who was constituted sole 
executor under a will, or who has the right of precedence to ad- 
minister an intestate estate, is under age, and therefore legally 
incapable of serving for the time being. In the one instance, ad- 
ministration during minority with the will annexed may be prop- 
erly committed to another; in the other, administration simply, 
wuth the like qualification. English practice deals witli this ad- 
ministration more fully than American f but it is recognized more 
or less clearly in parts of the United States, where, however, the 
policy is to avoid such grants limited in terms as much as pos- 
sible.'* If there are several executors, and one of them is of full 

2. In English practice it lias been should be unadministered assets, 

limited in certain instances. See Sydnor v. Graves, 86 A. 341, 119 Md. 

Hammond's Goods, L. R. 6 P. D. 104. 321. 

So American statutes provide, too, 3. VVms. Exrs. 479-495 ; Cope v. 

where this administration is taken Cope, L. R. 16 Ch. D. 49. 

out after twenty years, as to prop- 4. Pitcher v. Armat, 6 Miss. 288; 

erty, etc., ascertained afterwards. Ellmaker's Estate, 4 Watts, 34; Tay- 

Mass. Pub. Stats, c 101 ; • Dallinger lor v. Barron, 35 N. H. 484, 493, per 

V. Morse, 94 N. E. 701, 208 Mass. 501. Bell, J. And see jNIass. Gen. Stats, c. 

2a. McCranie v. Hutchinson, 77 S. 93, § 7, as to committing administra- 

E. 1064, 139 Ga. 792. But there tion with the will annexed where the 

1063 



1132 



EXECUTORS AND ADMINISTEATOKS. 



[part II. 



age and capacity, administration during minority need not be 
granted, because the person of full age maj seiTe, notwithstanding 
the nonage of others.^ 

The usage of the English courts has been to grant administra- 
tion during minority to the child's guardian ; but this rule is not 
invariable; and next of kin and guardians alike may be passed 
by; for after all this sort of administration is a grant discretionary 
with the court.^ An administrator durante minore aetate has the 
functions of an ordinary administrator so long as his authority 
lasts.^ It was formerly held that an infant executor was capable of 
serving at seventeen, but the confusion of legal rights and re- 
sponsibilities thereby entailed upon the administration of estates 
ended with the prohibition of statute 38 Geo. III. c. 87.^ 



executor named in the will of the de- 
<>eased is a minor. In North Caro- 
lina, the court may appoint an ad- 
ministrator durante minoritate, 
%vhere the widow is under twenty-one 
years of age, and give the administra- 
tion to her on her attaining full age, 
or the office may be filled by such per- 
son as she shall nominate. Wallis v. 
Wallis, 1 Wins. (N. C.) 78. 

5. Wms. Exrs. 479. See Cart- 
wright's Case, 1 Freem. 258. Tlie 
Massachusetts statute provides tliat 
in such a case the other executor shall 
administer until the minor arrives at 
full age, when, upon giving bond and 
qualifying, the latter may be admit- 
ted as joint executor with him. Mass. 
Gen. Stat.s. c. 93, § 7. As to admin- 
istration, American jjraotice usually 
passes over those in minority, and 
selects, without any punctilious re- 
gard for their right of choice, some 
suitable administrator invested with 
general powers as in other cases. 

6. Wms. Exrs. 481, 482, and cases 
cited; 1 Ilagg. 381. Tlie Kiii,'lisli 



Probate Act, § 73, enlarges the dis- 
cretion of the courts. See its appli- 
cation under a will making the 
daughter sole executor, where limited 
administration was granted to the 
trustees, but probate was refused. 
Stewart, Goods of, L. R. 3 P. & M. 
244. And see Burchmore's Goode, 
L. R. 3 P. & D. 139. 

7. Cope V. Cope, L. R. 16 Ch. D. 49. 
But formerly the opinion prevailed 
that such administrator had scarcely 
more than a bailiff's or servant's 
authority. See Wms. Exrs. 553, 554, 
sliowing how the functions were very 
gradually admitted by judicial pre- 
cedents. 

8. Section 6 of this act, reciting the 
inconvenience of grants to infants 
under the age of legal majority, enacts 
that " where an infant is sole ex- 
ecutor, administration with the will 
annexed shall be granted to the 
guardian of such infant, or to such 
other person as the spiritual court 
shall think fit, until sucli infant aliall 
liave attained Mie fiill age of twenty- 



lOGl 



<jnAr. IV.] APPOIIS'TMEXT OF ADMINISTRATORS. § 1133 

Where there are several executors, all under age, and admin- 
istration during minority is granted in consequence, it will cease 
upon anj one of the executors coming of age.^ 

§ 1133. Temporary Administration; Administration durante ab- 
sentia. 

We have elsewhere seen how executors and administrators out 
of the jurisdiction may substitute their nominees; and what gen- 
eral statute provisions are made for the case of non-residence, as 
Ly taking out letters and having a resident attorney authorized to 
accept service.^ But in English ecclesiastical practice, if probate 
had not been obtaine'd, and the sole executor named in the will 
was out of the kingdom, a limited administration durante absentia, 
might be granted, limited in time correspondingly; and so, too, 
where the next of kin was abroad, and letters of ordinary adminis- 
tration had not been granted.^ Similar grants are found in our 
earlier American practice.^ But the more usual course in the 
United iStates at present is (subject of course to local variations 
in accordance with statute direction on the subject), for the court 
to appoint some one the general administrator of the estate, either 
with or without the will annexed, according as one may have died 
testate or intestate, treating this official as the general and re- 
sponsible representative of the estate ; the case admitting, perhaps, 
of what we term a special administration, if the emergency be 
pressing and likely to be temporary only; while here the rights 
of next of kin, as such, to dictate administration, are more lightly 
weighed than in England, under all circumstances.* 

one years, at which period, and not reported in 4 Mod. 14, as is shown in 

before, probate of the will shall be Slater v. May, 2 Ld. Raym. 1071. 

granted to him." Wms. Exrs. 485. 3. Willing v. Perot, 5 Rawle, 264. 

9. 4 Burn Eccl. Law, 228; 3 Redf. 4. See § 1135, post, as to special 

Wills, 107. administration. Various local stat- 

1. Supra, §§ 1109, 1127. utes may be found to meet the case of 

2. Wms. Exrs. 502-512; Clare v. non-residence or absence. Prolonged 
Hedges, 1 Lutw. 342; s. c. cited in 2 absence, detrimental to the interests 
P. Wms. 579. This case was mis- of an estate, and involving negligence, 

1065 



§ 1133 ESECUTOES AXD ADMI^'ISTEATOKS. [PAKT II. 

Lord Holt has observed that it was reasonable there should be 
an administrator durante absentia, and that this administration 
stood upon the same reason as an administration durante minore 
aetate of an executor, viz. : that there should be a person to manage 
the estate of the testator till the person appointed by him is able."* 
But while both grants are of the temporary administration sort, it 
is not certain that they confer commensurate authority.'' 

Administration durante absentia was formerly available only 
where original letters testamentary or of administration had not 
issued ; in other words it was for the preliminary convenience of 
the estate alone. When pi-obate had onee been granted, and the 
executor afterguards went abroad, the spiritual courts would not 
grant new administration.^ This produced inconvenience; for 
while a power of attorney might answer all ordinary purposes on 
the absentee's behalf there are special cases where the demand for 
a personal representative within the jurisdiction is indispensable. 
Hence the statute 38 George III. c. 87, was passed, which in con- 
nection with still later acts, permits the grant of special adminis- 
tration whenever the ordinary executor or administrator goes and 
remains abroad out of the reach of process ; the special appointee 
having been at first intended simply to represent the estate in pro- 
ceedings in equity, though limited grants are now permitted in a 
much wider seuse.^ The appoin^tment of a mere attorney may ter- 

might present a case perhaps for re- 6. Thus it is observed that an ad- 

moval from office in some States. The ministrator durante absentia may as- 

Louisiana code in the case of an sign tlio leaseholds and other prop- 

" absentee " requires a curator ad erty of deceased. Webb v. Kirby, 3 

hoc appointoil to defend certain suits. Sm. & G. 333. 

Morris v. Bionvenu, 30 La. Ann. 878; 7. In South Carolina administra- 

Woaver v. Penn, 27 La. Ann. 129. tion durante absentia cannot 1)0 

Good security will be required of an granted after probate of the will and 

absentee, who, under some local stat- letters testamentary are grunteil. 

utes, must appoint an attorney au- GrifTith v. Frazier, 8 Cranch, 9. 

thorized to accept process, etc., on 8. Wins. Exrs. 503-509, citing these 

his behalf. statutes and numerous decisions. 

5. Slater v. May, 2 Ld. Raym. The act 38 Goo. IIL c. 87 (known as 

1071. Mr. Simeon's act), liad only this lim- 

lOGG 



CHAP. IV.] APPOINTMENT OF ADMINISTRATORS. § 1134 

/ 

ijiinate by the death of the absent fiduciary who conferred it ; Ijiit 
no such effect attends the grant of limited administration under 
these statutes.^ The limited purpose of the grant, as for pending 
proceedings in court, is lik0%vise protected by the same means. 
But, aside from legislation, and as concerning the appointment 
durante absentia preliminary to proBate or to the grant of ordi- 
nary administration, of whicli the court took earlier cognizance, 
it is said that such administration is at an end the moment the 
absentee returns.^ 

§ 1134. Other Temporary Administrations; Administration pen- 
dente Li^;e, etc. 

English pi\>bate pract-ice recognizes other temporary administra- 
tions; usually limited, however, in purpose as well as time. Ad- 
ministration pendente lite is of this description ; a graiit long since 
allowable where controversy arose touching the right of adminis- 
tration, and afterwards equally permitted in contests over the 
probate of wills and letters of executorship.^ Administrators pen- 
dente lite are "stirtually appointees of the probate court, correspond- 

ited application to proceedings in keeper of the intestate may be tem- 
equity. It was passed, moreover, porarily appointed. (1897) P. 82. 
with reference to executors only. The 9. Wms. Exrs, SO'Q; Taynton v. 
Court of Probate Act, 20 & 21 Vict. Hannay, 3 B. & P. 26. 
c. 77, § 74 (1857), extended the op- 1. Rainsford v. Taynton, 7 Ves. 
eration of this statute to the case of 466; Wms. Exrs. 509. 
absent administrators. And by the 2. See Wms. Exrs. 496-501, and 
statute 21 & 22 Vict. c. 95, § IS, a cases cited passim. Formerly the 
general scope was given to these acts, English spiritual court would not ap- 
" whether it be or be not intended point an administrator pendente lite 
to institute proceedings in the oourt except in cases involving the right to 
of chancery." Limited grants are administration. Moore, 638; 3 Keb. 
now accordingly made as the con- 54. But it was decided in 1731 that 
A'enienee of an estate may require. such administrator" might be ap- 
Ruddy's Goods, L. R. 2 P. & D. 330; pointed in contests touching an exec- 
Jenkins, Goods of, 28 W. R. 431; utorship. Walker v. Woolaston, 2 P. 
Richardson, Goods of, 35 L. T. 76T. Wms. 5S9. The Probate Court Act of 
Where next of kin are in a distant 1857 gave the probate courts full 
country and immediate necessity jurisdiction as to controversies 
arises, the resident agent or book- touching the validity of a will or for 

1067 



§ 1134 EXECrTOES AXD ADMIXISTEATORS. [PAET II. 

ii;g nearly to receivers in chancerv, so far as the occasion for an 
appointment may be regarded, and they are assumed to be indif- 
ferent between the contending parties.^ 'No one should be ap- 
pointed by the court to this trust who stands committed as to the 
choice of one contestant against the other ; nor should the deced- 
ent's estate be subjected to the cost and encumbrance of such an 
administration, where a rightful executor or administrator can. 
discharge the duties of his office, whose appointment is not ques- 
tioned.* Administration pendente lite is recogTiized in parts of 
the United States under various qualifications, though statutes of 
more extensive scope are found to include this case under what is 
rather to be termed special administration^ The powers of the 
English administrator pendente lite, though originally limited by 
construction, have been so far extended under the Court of Pro- 
bate Act of 1857, and later acts, that he may be made receiver of 
real estate pendente lite, with power to receive rents and profits, 
and let and manage, and, as to personal estate, exercise all the 
rights and powers of a general administrator, other than the dis- 
tribution of the residue; subject, nevertheless, to the immediate 
control and direction of the court.® which may likewise require 

obtaining, recalling, or revoking any the chancery court under Tennessee 

probate or any grant of administra- code, § 2213, is not a mere adminis- 

tion. Act 20 & 21 Vict. c. 77, § 70. trator pendente lite, but a general 

And see the later act, 21 & 22 Vict. administrator. Todd v. Wright, 12 

c. 95, §§ 21, 22, which gave still Heisk. 442. An administrator pcn- 

further scope to this appointment. dente lite should not be appointed 

Wms. Exrs. 496, 497. after the general administrator has 

3. Wms. Exrs. 498-501 and cases fully settled the estate. Fisk v. 
cited. Xorvcll, 9 Tex. 13, 58 Am. Dec. 128. 

4. Mortimer v. Taull, L. R. 2 P. & And see Slade v. Washburn, 3 Ircd. 
D. 85. An appointment by consent L. 557. 

of the contesting parties obviates ob- 6. Statute 20 & 21 Vict. c. 77, §§ 70, 

jections of this character. Wma. 71; Wms. Exrs. 496, 497; Dawes's 

Exrs. 497. Goods, L. R. 2 P. & D. 147; Tich- 

5. See § 1135, post; Lamb v. Helm, borne v. Tichl)()rne, L. R. 2 P. & D. 
56 Mo. 420; Crozier v. (Joodwin, 1 41. An administrator pendente lite 
Lea, 368; Wade v. Bridges, 24 Ark. cannot, in South Carolina, coUeet tlie 
569. An administrator appointed by estate for tlie puri)ose of administra- 

1068 



CHAP. IV.] APPOINTMENT OF ADMINISTRATORS. § 1135 

security and grant him a reasonable remuneration for his trouble.'' 
The authority of an administrator pendente lite ceases with the 
suit ; ^ as for instance, where the contest was over a will, upon the 
due admission of tlio will to pi^obate.* 

The old books suggest other occasions for requiring a limited 
administration as to time ; as where the testator appoints a person 
to be his executor at the expiration of five years from his death, 
in which case administration with the will annexed for the inter- 
mediate period from probate seems proper.-^ Administration lim- 
ited until a will left in a distant land, or missing and requiring* 
long search or delay, could be found and presented for probate, has 
been granted in various modern English cases, agreeably to the 
peculiar state of facts presented and the urgency of an immediate 
appointment,^ Administration, too, appears by the English rule 
to be well granted where a sole executor or administrator becomes 
insane and incapable of discharging his official functions ; ^ or 
perhaps out of regard to a beneficiary or person entitled ordinarily 
to take the office ; so that a vacancy shall be filled by some one as 
for the use and benefit of the insane person,* such grants running 
as during such incapacity. 

§ 1135. Special Administration, for Limited and Special Pur- 
poses, etc. 
While the English probate practice accords so many varieties 

tion. Kaminer v. Hope, 9 S. C. 253. 8. Cole v. Wooden, 18 N. J. L. 15. 

Local statutes should be consulted on 9. Wieland v. Bird, (1894) P. 262. 

such points by the American prac- 1. Godolph. pt. 2, c. 30, § 5; Wms. 

titioner. In Maryland such an ad- Exrs. 513. 

ministrator may be required to dis- 2. Metcalfe's Goods, 1 Add. 343 ; 

charge debts of the decedent. Bald- Campbell's Goods, 2 Hagg. 555; 2 

'win V. Mitchell, 86 Md. 379, 38 A. Add. 351; (1893) P. 21. 

775. See also 54 N. J. Eq. 638, 35 3. Phillips's Goods, 2 Add. 336; 1 

A. 643. He may be sued by a cred- Salk. 36; Wms. Exrs. 518. And see 

itor of the estate. (1897) 1 Ch. 866, as to physical incapacity by illness, 

See Bolton's Estate, (1899) P. 186. Ponsonby's Goods, (1895) P. 287. 

7. Stats. 20 & 21 Vict. c. 77, § 72; 4. lb.; Evelyn, Ex parte, 2 M. &. 

21 & 22 Vict. c. 95, § 21; Wms. Exrs. K. 4. 
496. 

10G9 



§ 1135 EKECUTOES AIST) ADMIK'ISTEATOES. [pAET II. 

of temporary administration, it also limits frequently tlie grant to 
specific purposes; the prime object being a temporary protection 
of the estate and all parties in interest. And thus administration 
may be granted in exigencies such as we have just considered, lim- 
ited in terms to the purpose of some particular litigation.^ In an 
exceptional case (though not without strong reason), administra- 
tion may be granted so as to be limited to certain speoified chattels, 
while the general administration goes elsewhere ; ^ or administra- 
tion may be revived for the performance of some particular act.^ 

The result of all this should be to discourage any specific enu- 
mei-ation of limited or special administrations of various kinds, as 
at English law; whose real force and effect, as in the kinds pe?i- 
dente lite, aaid durante absentia, it is not easy to define. The vital 
elements in all such grants are two: limitation of time, and limi- 
tation of purpose; and these limitations frequently, but not always, 
subsist together. In the United States, legislation directs, as it 
may, the whole matter, and American policy appears to be to re- 
gard g-eneral or full administration, on the one hand, whether 
original or de bonis non, and whether as to estates testate or in- 
testate, as (together with appointing executors) the usual and nor- 
mal grant of authority ; ^ and discouraging on the other hand lim- 

5. See Howell v. Metcalf, 2 Add. power to sell at once. Schwertfegen, 
348, 351, note, which was limited to Goods of, 24 W. R. 298. And see 
answering a specified suit in chan- l^olton's Goods, (189Q) P. 186, where 
eery; also 1 Ilagjr. 93; 2 Sw. & Tr. tlie next of kin were in a distant con- 
614. tinent, and it was necessary to sell 

6. Harris v. Milburn, 2 Hagg. 62; the good will of a business at onco. 
Somerset's Goods, L. R. 1 P. & D. \Vc have seen that administration 
350; Wins. E.xrs. 520-528. As to ad- durante minore aetate is essentially 
ministration in different countries, a general or full administration while 
see c. 7, post, ancillary administra- it la«ts; and so in order to be elfi- 
tion. carious, should administration dur- 

7. Wlicx- A. died intosta-tc. witliout ing tiie lunacy of an executor, etc. 
known relativT?8, the English court, See sections preceding. 

on the ground that expense was in- 8. lAon, Ex parte, 60 Ala. 650. As 

curred daily, and the value of the betwci'ii thr words " special " and 

estate depreciating, granted adminis- "general" in a grant of adniinistia- 

tration ad colligcnda bona witli tion, see Jones v. Rittor, 56 Ala. 270. 

1070 



CHAP. IV.] APPOINTMENT OF ADMINISTEATOES. § 1135 

ited grants under strange names upon mere judicial discretion, 
but rather, facilitating removals and the creation of vacancies in 
an emergency, to provide by way of substitute for the miscellan- 
eous kinds of limited administration, what may be termed a special 
administration. This special administration is temporary by in- 
ference, because wholly superseded by the grant of general admin- 
istration or letters testamentary; and it is limited in scope to the 
necessities of the situation. Legislation defines this scope ; and 
special administration thus becomes a clearly understood grant, 
well adapted to the various exigencies likely to arise for invoking 
it. Its chief purpose is ad colligendum, or rather the collection 
and preservation of the decedent's effects ; and the statute which 
creates the office explains sufficiently its purpose and incidents. 
Two general administrations cannot, we all admit, subsist at the 
same time; nor, as a rule, can a special and a general grant. For 
in this latter instance the special grant necessarily precedes a gen- 
eral, being made to suit a temporary exigency ; an exigency w^hich 
may precede either the original appointment or the filling of some 
vacancy created by an appointee's death, removal, or resignation.^ 
'Special administration is well developed in the Massachusetts 
probate practice. When (as the statutes of that State expressly 
provide) by reason of a suit concerning the proof of a will, or from 
any oilier cause, there is a delay in granting letters testamentary 

9. Mass. Pub. Stat. c. 130, §§ 10- from the decree of probate, the execu- 

17. Letters of general administra- tor though qualified has no authority 

tion issued during the pendency of a to act, and the power and functions 

contest over a will would be null. of the temporary administrator last 

Slade V. Washburn, 3 Ired. L. 557. until the determination of the appeal. 

Where the probate of a will has been Brown v. Ryder, 42 X. J. Eq. 356, 7 A. 

in litigation, the power and func- 568; Crozier, Re, 65 Cal. 332, 4 P. 

tions of an administrator pendente 109. But cf. 63 Tex. 220, as to a later 

lite are ended when the contest is litigation over the will not in the 

entirely over, the will duly admitted, nature of an immediate appeal. In 

and the executor qualified. Ro Bards Moore v. Alexander, 81 Ala. 509, 8 

V. Lamb, 89 Mo. 303, 1 S. W. 222; So. 199, an administrator with full 

Baldwin v. Mitchell, 86 Md. 379, 38 power was required, not one ad litem. 

A. 775. But if there be an appeal Cf. (1894) P. 262. 

1071 



§ 1135 EXECUTORS AND ADMIXISTEATORS. [PAKT II. 

or of administration, the probate court may appoint a special ad- 
ministrator to collect and preserve the effects of the deceased. The 
paramount duty of this special administrator is to collect all the 
personal estate of the deceased, and preserve the same for the gen- 
eral executor or administrator, when appointed. For this purpose 
he may commence and maintain suits, though creditors of the 
estate are not to bring actions against him ; and he may sell such 
perishable property and other goods as the judge shall order to 
be sold. In suitable cases the judge may authorize him to take 
charge of the real estate, collect rents, and do all that may be need- 
ful for the preservation of the property.^ Such an administration 
may readily be shaped by the legislature to meet the usual exigen- 
cies of a temporary appointment for limited purposes ; thereby dis- 
pensing with the cumbrous classification of administration pc7i- 
dente lite, durante absentia, and so on. 

In various States express provision is made for this special or 
temporary administrator who shall collect and preserve the estate 
for the permanent and general appointee. A disinterested person, 
not a litigant, is to be selected ; nor are the rights of widow and 
next of kin, or legatees, so strictly regarded in the choice as they 
would be in a general administration ; but rather the sound dis- 
cretion of the court, aided by the common consent and confidence 
of litigants and all who may be interested in the permanent ap- 
pointment, directs the selection. Furthermore, it is the general 
rule that this officer may be removed or superseded in his functions 
by the court, and that his powers shall cease whenever general let- 
ters testamentary or of administration are granted, and due quali- 
fication follows, whether general letters be original or de bonis 
non ; but that meantime, being an officer of the court, as it were, 

1. Mass. Pub. Stats, c. 1.10, §§ 10- Wash. 452 (not an executor) ; 129 P. 

17. And see 141 Mo. 642, 43 8. W. 395, 71 Wash. 679; Harrison v. 

617; 82 P. 688, 1 Cal. App. 482; 96 Clark, 52 A. 514, 95 Md. 908 (two 

N. Y. S. 772; Breeding v. Brcedinj;, wills in a contest) ; 136 N. Y. S. 953 

30 So. 881, 128 Ala. 412; 87 N. Y. S. (notice dispensed with) ; 87 A. 750, 

793; Hartley v. Lord, 80 P. 554, 38 120 Md. 329. 

1072 



CHAP. IV.] APPOINTMENT OF ADMINISTRATORS. 



§ 1135 



litigant parties cannot obstnict the exercise of his functions nor 
tinder him bj frivolous appeals from tlie judge. For a trust must 
not be kept in abeyance which the law intends should be filled at 
once.^ 

This special administration appointment is preliminary to a 
general one, according to the usual American practice, lasts at 
all events for an emergency undefined as to time, and cannot be 
granted w'hile a general appointee holds office, nor so that the 
i^pecial appointee shall fulfil all the functions of general executor 
or administrator. There are States, however, whose code clearly 
extends this appointment to the temporary necessities of minority, 
durante minore aetate;^ though it should be observed that hero 
the exigency lasts for a definite or definable temporary period, like 
a guardianship, and that the appointment, to be efficacious at all, 
ought frequently to confer full general functions, as we have see a 
the English appointment docs.* As for the departure of a general 



2. A " special collector " is thus 
recognized in New York practice, 
wherever, by reason of contest or 
other cause, there is likely to be de- 
lay in the general grant. Mootrie v. 
Hunt, 4 Bradf. (N. Y.) 173; Law- 
rence V. Parsons, 27 How. (N. Y. ) Pr. 
26; Crandall v. Shaw, 2 Redf. (X. 
Y. ) 100. If a will is contested, the 
executor named ought not, when ob- 
jected to, to receive the special ap- 
pointment. Howard v. Dougherty, 3 
Eedf. (N. Y.) 535. But this depends 
on circumstances. 2 Dem. 286; 4 
Dem. 137. An executor who is 
charged with undue influence in 
proving the will is certainly not suit- 
able. 1 Dem. 1. That a widow or 
next of kin has no preference in the 
choice of special or " temporary " 
administrator, see Lamb v. Helm, 
56 Mo. 420. The administrator ad 
colligendum is the mere agent or of- 
ficer of the court, and may be com- 

68 107 



pelled at any time to give way to 
an administrator-in-chief. Flora v. 
Mennice, 12 Ala. 836. After a re- 
moval from office, the special admin- 
istrator may be appointed. De 
Flechier's Succession, 1 La. Ann. 20. 
Pending the appeal of an executrix 
or administratrix upon the question 
of bonds, etc., the probate court may 
appoint a special administrator. 
Searle v. Court of Probate, 7 R. I. 
270. And see Thompson v. Tracy, 
60 N. Y. 174. 

Contest over an administration 
with will annexed is to be included 
among the exigencies calling for a 
special appointment. Lamb v. Helm, 
56 Mo. 420. And see State codes as 
to such local legislation. 

3. VVagn. (Mo.) Stat. 72, § 13, re- 
ferred to in Lamb v. Helm, 56 Mo. 
420. 

4. Supra, § 133. E.xcept as the 
statute may have provided, a probate 

3 



§ 1135 



EXECUTOES AXD ADIMIXISTKATORS. 



[PAET II. 



executor or administrator for foreign parts, after bis appointment, 
to remain long absent, or bis subsequent incapacity, by reason of 
insanity, to the plain detriment of tbe interests of tbe unsettled 
estate, American practice seems to prefer to tbe vague and limited 
grants of administration, usual in Englisb practice, tbat a vacancy 
sball be made in tbe office, and tbat vacancy filled in tbe usual 
"'.vay ; " unless tbe appointment of attorney to accept service ob- 
viates all objections.^ 

Every special administrator, or temporary appointee pcndc7iie 
lite, should, when his authority ceases, pay over whatever be ni'ay 
nave received and transmit tbe estate to the general appointee, or 
do otherwise Avith it. as the probate court sball direct ; rendering 
a proper account of bis doings and retaining a proper compensa- 
tion for his services ; whereupon bis responsibility comes to an 
end, if bis duties have been faithfully performed.' 



court has no power to direct a special 
administrator or " collector " to pay 
debts, legacies, or distributive shares. 
Haskett, Re, 3 Redf. (N. Y.) 165; 2 
Dem. 292. Nor should such admin- 
istrator, nor an administrator pen- 
dente lite, do such acts. Kaminer v. 
Hope, 9 S. C. 253; Ellmaker's Estate, 
4 Watts, 34. Observe statute direc- 
tions on this point. 

5. Upon a general application for 
administration, a special grant may, 
in this State, be made. Dean v. Big- 
gers, 27 Ga. 73. In Tennessee, where 
the English system appears to be more 
closely followed than in most other 
States, it is lield that a special ad- 
ministration may be granted, witli 
powers to be exercised in a limited 
manner, or upon a part of the estate 

1074 



merely, or for the performance of a 
single act. McNairy v. Bell, 8 Yerg. 
302; Smith v. Pistole, 10 Humph. 
205: Jordan v. Polk, 1 Sneed, 430. 

As to appointing a special admin- 
istrator under the Iowa code, see 
Pickering v. \Yeiting, 47 Iowa, 242. 

6. See Mass. Pub. Stats, c. 132, §§ 
8-13, whose provisions fit the case of 
an executor or administrator remov- 
ing or residing out of the State after 
his appointment. 

7. See Ellmaker's Estate, 4 Watts, 
36. As to the special administrator's 
compensation, see Duncan, Re, 3 Redf. 
(N. Y.) 153. Notice in court of his 
settlement with the general executor 
or administrator is not necessary. 
S9 Mo. 303. 



CHAP, v.] BONDS OF EXECUTORS AXD ADMINISTEATOKS. § 1137 

CHAPTER V. 

THE BONDS OF EXECUTORS AND ADMINISTRATORS. 

§ 1136. Necessity of Qualifying before Appointment; Security 
required by the Court. 

In modern probate practice, as we understand it in the United 
States, an executor or administrator is required to qualify by giv- 
ing bonds before lettere conferring the appointment can issue to 
him. This bond is expressed in such sum as the probate court may 
see fit to order; its form is established by the court after the stat- 
ute requirements; it is made payable to tlie judg-c or his successors 
in office; its conditions recite the essential duties of the trust re- 
posed in the appointee ; and, filed in the probate registry, it serves 
as legal security furnished by the executop or administrator for 
the benefit of all persons who may bo interested in the estate, and 
in case of maladministration may be sued upon accordingly. 
Sometimes sureties are required on these bonds; and sometimes 
sureties are dispensed witli. 

This subject we now examine in detail, with separate reference 
to the bonds of executore and of administrators ; observing through- 
out this chapter the distinctions which obtain in English and 
American practice. 

§ 1137. Bonds: When and How required from an Executor. 

In English practice, the spiritual court exerted, from early 
times, so little authority over an executor, whose credentials were 
thought to be derived rather from his testator's selection than the 
ordinary, that bonds could not be required from such fiduciaries. 
But chancery stretched its arms for the better protection of widows 
and orphans while the ordinary was thus powerless, and it became 
a rule that an insolvent or bankrupt executor could not only be 
restrained by the appointment of a receiver, but compelled in chan- 

1075 



§ 1137 EXECUTORS AXD ADMIXISTEATOES. [PAKT II.' 

eery, like any other trustee, to furnish security before entering ac- 
tively upon his trust/ 

The American rule, both as to the appointment and qualifica- 
tion of executors, is far more consonant to justice and impartial, 
and brings administrators and executors more nearly under one 
system of rules. The qualification of executors is not left to the 
interposition of equity, but is confided in the first instance by leg- 
islation to the discretion of the court most competent to exercise 
it ; so that the probate court now passes upon the bond in connec- 
tion with the appointment, withholding letters testamentary unless 
the executor complies with the judge's prudent requirement. 
Local statute prescribes the form and manner of giving this bond, 
as well as indicating the extent of security. Thus, in certain 
States, the executor, before letters testamentary issue to him. must 
give bond with condition to return his inventory to the probate 
court within the time fixed by statute; to administer, according 
to law and the will of the testator, all the personal estate and the 
proceeds of all real estate sold for the payment of debts and lega- 
cies; and to render upon oath a just and true account of his ad- 
ministration within one year and at any other time when required 
by the court.^ If a person appointed executor refuses or neglects 
unreasonably to give the statute bond as required, letters testa- 
mentary will be granted to the other executors if there be any 
such capable and willing; otherwise, administration with the will 
annexed. In other words, qualification by bond is a prerequisite 
to receiving letters testamentary ; the executor derives his office 
only under a testamentary appointment which has afterwards been 
confirmed by a decree of the probate court and the grant of letters; 
nor is one entitled to exercise any power as executor until be has 
been duly qualified. Such is the rule of most iVmerican States 
as prescribed by the legislature.^ 

1. Wms. Exrs. 7th od. 237; Holt, 2. Smith Prol). Prac. (Mass.) GO- 

310; 1 Eq. Cas. Abr. 238, pi. 21; 2 G4 ; Mass. Gen. Stats, o. 03. 

Vcrn. 240; Slanning v. Style, 3 P. 3. Gardner v. Onatt, 10 Ala. OGG; 

Wms. 330. Ecliols v. Barrett, 6 Ga. 443; Hall v. 

107G 



CHAP, v.] BONDS OF EXECUTORS AND ADMINISTRATOES. 



113T 



As to furnisliing a bond with surety or sureties, however, the 
executor is still favored above administrators in American prac- 
tice. Our rule appears to be that the executor shall give bond 
" with sufficient surety or sureties." * But executors are exempted 
from furnishing a surety or sureties (as such statutes frequently 
direct) when the testator has ordered or requested such exemption, 
or when all the persons interested in the estate certify their con- 
sent, or, upon being cited in, offer no objection. Even thus, the 
judge is still to regard the interests of the estate, according to the 
preferable practice, and may, at or after the granting of letters 
testamentary, require a bond with sufficient surety or sureties, if 
he thinks this desirable because of some change in the situation or 
circumstances of the executor or for other sufficient cause.^ Nor 
is even the testator's request for such an exemption to be taken 
otherwise than as the expression of his confidence in the person 
he himself designated ; and hence, if that person renounces or is 



Cashing, 9 Pick. 395; Fairfax v. 
Fairfax, 7 Gratt. 36; Holbrook v. 
Bentley, 32 Conn. 502; Webb. v. 
Dietrich, 7 Watts & S. 401; Pettin- 
gill V. Pettingill, 60 Me. 411: Bank- 
head V. Hubbard, 14 Ark. 298; 109 
N. W. 776. One named as executor 
in a will has no authority to act with- 
out qualifying after probate, and his 
a,cts without qualifying are void. 
Moore v. Ridgeway, 1 B. Hon. 234. 
And where a testator appointed two 
persons as executors of his will, only 
one of whom qualifies, that one has 
all the authority under the will which 
both would have had if both had 
qualified. Bodley v, McKinney, 17 
Miss. 339; Phillips v. Stewart, 59 
Mo. 491. But see Cronk v. Cronk, 
148 Ala. 337, 42 So. 450 (chancery 
bond required ) . 

4. Mass. Gen. Stats, c. 93, § 1; 
Wms. Exrs. 529, n. by Perkins. 

5. See Mass. Gen. Stats, c. 129; 
Smith V. Phillips, 54 Ala. 8; Clark 

10 



V. Niles, 42 Miss. 460 ; Atwell v. Helm, 
7 Bush, 504. In Massachusetts only 
persons of full age and legal capacity 
need certify their assent; as to cred- 
itors and the guardian of any minor 
interested therein, a published cita- 
tion after the usual form, incorpor- 
ating notice of the request to be ex- 
empted from furnishing sureties with 
that of the pending probate and ap- 
plication for letters testamentary, 
will suffice. Wells v. Child, 12 Allen, 
330. In some States upon a cred- 
itor's objection, sureties may be re- 
quired of the executor. Smith v. 
Phillips, 54 Ala. 8. If there are in- 
fants concerned, the court must look 
carefully to their interests. Johns v. 
Johns. 23 Ga. 31. Executors pecun- 
iarily irresponsible required to give 
security notwithstanding the tes- 
tator's request, knowing such irre- 
sponsibility. Freeman v. Kellogg, 4 
Redf. (N. Y.) 218. See also 62 S. 
E. 549, 148 N. C. 461. 

77 



1137 



EXECUTORS AXD ADMIXISTRATOES. 



[part II. 



found incapable, the request cannot operate for the benefit of others 
appointed by the court to administer.^ In some States the court 
cannot dispense with security even should the will direct other- 
wise.^ But in others, once more, the testator's request appeajs to 
be more of a criterion in this regard than the rule of common piii- 
dence would allow.^ 

A few States, conforming more nearly to English procedure, 
appear to treat executors differently from administrators, requir- 
ing bonds from one of the former class only when his circumstances 
are precarious or the interests of the estate render such security 
necessary. In each State, however, the legislature prescribes the 
course to be pursued and furnishes a rule for judicial action, by 
no means constant and uniform.^ But the bond, however given, 
and whether with or without sureties, contemplates commonly a 
due administration of the estate to the full extent of paying all 
debts and legacies, distributing the residue properly, and render- 
inir an inventorv and accounts to the court.-^ 



6. Fairfax v. Fairfax, 7 Gratt. 36; 
Langley v. Harris, 23 Tex. 564. 

7. Bankhead v. Hubbard, li Ark. 
29S. 

8. Wilson V. Whitefield, 38 Ga. 269 ; 
Bowman v. Wootton, 8 B. Mon. 67. 
See 80 N. Y. S. 789; 63 S. W. 479, 
23 Ky. Law. 605: 60 S. W. 396, 22 
Ky. Law. 1267; 109 N. W. 776, 135 
Iowa, 430; 66 P. 607, 134 Cal. 357 
(oath of value if exempted). 

9. Mandeville v. Mandeville, 8 
Paige, 475. As to the bond required 
in New York from an executor, see 
Senior v. Ackerman, 2 Redf. (N. Y.) 
156; Redfield's Surr. Courts, 145; 
Freeman v. Kellogg, 4 Redf. 218; 
Sliields V. Shields, 60 Barb. 56. An 
executor about to leave the Stat« 
should give security. Wood v. Wood, 
4 Paige, 299. And as to the husband 
of the executrix who misconducts 
himself, see South Carolina case of 
Powel V. Thompson, 4 Dosau. lf)2. 

10 



In Louisiana an executor should be 
required on the expiration of his year 
to give security, or in default thereof 
dismissed and a dative executor ap- 
pointed. Peale v. White, 7 La. Ann. 
449. A testamentary executor domi- 
ciled out of the State is not entitled 
to letters without giving security as 
is required from dative testamentary 
executors. Davis's Succession, 12 La. 
Ann. 399; Bobb's Succession, 27 La. 
Ann. 344. 

The South Carolina Act of 1839 
contemplates a bond to be given by 
an executor for purclia-ses made I)y 
liim at his own sale of liis testator's 
property. State v. Baskin, 1 Strobli. 
35. 

1. See Cunningham v. Souza, 1 
Redf. Sur. 462. It must be in statute 
form; else it has no effect except as 
a common law bond. 77 Me. 157; § 
1110 post. 



CHAP, v.] BONDS OF EXECUTORS AND ADMINISTRATORS. § 1138 

§ 1138. Bonds required from an Executor; Residuary Legatee's 
Bond. 

Statutes are found to dispense with the U5ual bond when the 
executor is residuary legatee, and it appears that so extensive a 
security is not needful for the protection of any person interested 
in the estate. In such a case the executor may, at his option, give 
a bond with condition merely to pay all debts, and legacies, and 
the statute allowances to widow and minors.^ The advantage of 
such a bond is in saving him the labor and expense of an inven- 
tory, reducing the penal sum to the minimum of satisfying such 
claimants and reser\^ing all evidence of assets to himself; and the 
law thus indulges the residuary legatee, inasmuch as it is no con- 
cern of others what may be the bulk of the fortune he acquires, 
provided their demands are satisfied. But the disadvantage is that 
such a bond conclusively admits assets sufficient for the payment 
of all debts, legacies, and allowances in full, binding the executor 
and his sureties absolutely in the penal sum, to pay accordingly, 
even though the estate should prove insolvent; and hence an ex- 
ecutor who does not feel certain when he qualifies that the assets 
are ample for all such demands, or who has no special reason for 
settling with claimants on his own responsibility, should qualify 
in the usual form, so as to limit his liability by the inventory, as 
returned to the court, and the actual assets.^ 

2. Mass. Gen. Stats, c. 93; Duvall v. v. Snowden, 7 Gill. & J. 430. Where 
Snowden, 7 Gill. & J. 430; Morgan v. the bond to pay legacies, etc., is 
Dodge, 44 N. H. 255, 82 Am. Dec. given, and one sues to recover a 
213. " As many persons have been legacy, the plaintiff need give no proof 
ruined by giving bonds in this form, except this bond that the executor has 
we think it the duty of judges of assets sufficient in his hands. Jones 
probate always to discourage tliis v. Richardson, 5 Met, 247. Such a 
kind of security, and to take special bond binds sureties as well as prin- 
care that no such bond is received in cipal to the full penal sum named, 
any case where it is not beyond doubt regardless of the amount of assets in 
that the estate is solvent." Per cur- the estate. Kreamer v. Kreamer, 52 
iam in Morgan v. Dodge, ib. And see Kan. 97, 35 P. 214. And notwith- 
Wms. Exrs. 543; 2 Stra. 1137. standing some controversy, it seems 

3. Stebbins v. Smith, 4 Pick. 97: the better opinion that the giving of 
Colwell V. Alger, 5 Gray, 67; Duvall such a bond does not vest the assets 

1079 



§ 1139 EXECUTORS AXD ADMIXISTKATOES. [PAKT II. 

§ 1139. Bonds required from an Administrator; English Rule, 

The practice of taking bonds from administrators, as distin- 
guished from executors, must have prevailed in the English 
spiritual coui'ts long before the first English colony was planted in 
America. Eor the statute -21 Hen. VIII. c. 5. § 3. directs the 
ordinarv to take suretv on orrantins: administraton.* Before the 
transfer of this spiritual jurisdiction to the new courts of probate 
in England, statute 22 & 23 Car. IL c. 10. served from 1671, and 
for nearly two centuries, to fully detail what should be the form 
and condition of this administration bond ; the ordinai-y being di- 
rected to take " sufficient bonds with two or more able sureties, 
respect being had to the value of the estate, in the name of the 
ordinary." The condition herein imposed upon the administrator 
was, to return a true inventory t-o the court at or before a specified 
date; to administer the estate well and truly; t^ make a true and 
just account of his administration : to deliver and pay the residue 
as the judge should appoint : and to render up the letters in court, 
should a will afterwards be presented." Under the modern court 
of probate act, 20 6: 21 Vict. c. 77. every person to whom adminis- 

in the residuary legatee or close the character, but not in proper conform- 

administration. in any such sense as ity to the statute, 

to prejudice legatees and creditors. A bond given by an executrix who 

lb.: LafFerty v. Savings Bank, 76 takes a life interest in the personal 

Mich. 35, 43 N. W. 34. Xor can such property administered upon is no 

a bond be cancelled or surrendered by continuing security to those entitled 

the executor and the bond in usual in remainder for their interest in the 

form substituted, long after it was property: but on due settlement of 

time, in the ordinary course, to file the estate and final account in the 

an inventory. Alger v. Colwell. 2 probate court, with distribution, the 

Gray, 404. The giving of bond to condition of the bond is satisfied, 

pay debts and legacies does not, as a Sarle v. Court of Probate, 7 R. I. 270. 

rule, discharge the lien on the tes- The court cannot compel an in- 

tator's real estate for payment of ventory to be furnished under a resi- 

debts, as statute provides. Mass. Gen. duary legatee's bond of this kind. 

Stats, c. 93, § 4. And see Moody v. State v. Clark, 53 A. 638. 24 R. I. 

Davis, 67 N. H. 300, 3S A. 464. See 470. 

Cleaves v. Dockray, 67 Me. 118, as to 4. Wms. Exrs. 7th Eng. ed. 529. 

the effect of a bond given, of this 5. Wms. Exrs. 529, 530, citing the 

language of this act. 
1080 



CHAP, v.] BONDS OF EXECUTORS AND ADMINISTRATORS. § 1130 

tration is granted must give bond to tbe probate judge, in a penal 
sum double the amount under which the estate and effects shall be 
sworn; but a wider judicial discretion is allowed than under the 
former statute, so that the penal sum may be reduced, and the re- 
sponsibility of sureties divided; moreover, the requirement of a 
surety or sureties, as well as the general form and condition of tho 
bond, are matters likewise confided to this court,^ 

The English court of probate act, it is perceived, does not insist 
upon sureties in an administration ; and there are instances in 
which the court has accordingly dispensed with them ; though only 
by way of exception to the rule, and at all events so as to insist 
still upon a bond/ "V\'Tiere the administrator is out of England, 
the sureties must usually be resident; a rule relaxed latterly, how- 
ever.^ If the husband of a married woman refuses to execute the 



6. Act 20 & 21 Vict. c. 77, §§ 80-82; 
Wms. Exrs. 531-533. The form of ad- 
ministration bond required by tlie 
present rules of the English probate 
court may be seen in Wms. Exrs. 532. 
The bond is expressed after the usual 
form of bonds, beginning " Know all 
men by these presents," etc. : express- 
ing the date; stating first the penal 
sum to be paid and then the condi- 
tion, and being signed and sealed at 
the end. A. B., C. D., and E. F. (the 
administrator and his sureties) bind 
themselves jointly and severally unto 
O. H., the judge of the court of pro- 
bate, in the penal sum named, to be 
paid to the said G. H., or to the judge 
of the said court, for the time be- 
ing ; " for which payment well and 
truly to be made, we bind ourselves 
and of us for the whole, our 

heirs, executors, and administrators 
firmly by these presents. Sealed with 
our seals. Dated the day of , 
A. 4. 18 ." The condition then fol- 



lows, preceding the execution; this 
condition being in substance for the 
most part like that prescribed in 
statute 22 & 23 Car. II. c. 10, supra, 
but worded differently, and varying 
in some material respects. As usual 
in bonds, this portion begins : " The 
condition of this obligation is such 
that if the above-named A. B. (re- 
citing A. B. as administrator on the 
estate of I. J. in addition) do" ac- 
cording to tlie condition next stated 
in detail, " then this obligation to be 
void and of none effect, or else to 
remain in full force and virtue." 

7. Cleverly v. Gladdish, 2 Sw. & Tr. 
335; Powis's Goods, 34 L. J., P. M. & 
A. 55. The court allows a bond with 
one surety under some circumstances. 
Bellamy's Goods, L. T. 33 N. S. 71. 

8. Cf. O'Byrne's Goods, 1 Hagg. 
316; Hernandez's Goods, L. R. 4 P. D. 
239; Houston's Goods, L. R. 1 P. & 
D. 85; with Reed's Goods, 3 Sw. & 
Tr. 439; Wms. Exrs. 544. The rea- 



1081 



§ 1139 EXECUTORS AND ADMINISTEATORS. [PAET II. 

administration bond witli her, the court will allow administration 
to her and permit the hond to be executed by a third person ; ^ and 
in other instances a third person may inten^ene and furnish se- 
curity.-^ Under a gi-ant of limited administration, a bond is some- 
times taken in a penal sum merely nominal.^ 

Letters of administration will not issue to a creditor except on 
condition of his entering into a bond to administer ratably ; ^ and 
as to a stranger appointed, the court -will require special secui'ity, 
according to circumstances.* Where there has been an adminis- 
tration pendenie lite, and the minor on coming of age takes upon 
himself the trust, he must give security as would the administrator 
in the first instance.^ In cases of administration not within the 
statute 21 Hen, VIIL, or where the deceased died testate, a bond 
is conditioned for the due payment of debts and legacies;® and 
under statute 20 & 21 Vict, c 77, rules of court provide for fram- 
ing peculiar bonds appropriate to the gTant pendente lite, and 
other limited or special administrations; two sureties being here 
required, as elsewhere, in double the amount of property to be ad- 
ministered upon. The registrar inquires into the responsibility 
of the sureties offered by an administrator, and attests the bond in 
token of its sufficiency. ^ 

son of this change is that common-law creased while the administrator had 

practice now permits of a substituted gone abroad. 

service in the case of non-residents. 2. Bowlby's Goods, 45 L. J., P. D. 

As to the justification of securities to A. 100. 

the administration bond, this is at the 3. Brackenbury's Goods, 25 W. R. 

court's discretion, but with qualifi- 698; Wms. Exrs. 443. 

cations stated in Wms. Exrs. 545. A 4. Act 20 & 21 Vict. c. 77, § 73; 

husband residing abroad, and admin- Wms. Exrs. 446, 447. 

istering on his deceased wife's estate, Double the amount of unadminis- 

has been required at tl)« instance of tered assets is proper for a dc bonis 

creditors to give resident security. non administrator. Oakley's Goods, 

Noel's Good.s, 4 Hagg. 207, (1896) P. 7. 

9. Sutherland's Goods, 31 L. J., P. 5. Wms. Exrs. 545; Abbott v. Ab- 

M. & A. 126. bott, 2 Phillim. 578. 

1. See Ross's Goods, L. R. 2 P. D. 6. 2 Stra. 1137. 

274, where the bond was thus in- 7. Wms. Exrs. 548, citing rules of 

English probate court. 

1082 



CHAP, v.] BONDS OF EXECUTOES AND ADMINISTKATOKS. § 1140 

§ 1140. Bonds required from an Administrator; American Prac- 
tice. 

American practice in respect of probate bonds is based upon 
English requirements under the earlier statutes cited in the pre- 
ceding section ; and while, in all or most States, the form of bond 
is carefully prescribed, as seems quite appropriate to our statute 
tribunals which a legislature invests with probate jurisdiction, 
Stat. 22 & 23 Car. II. c 10, appears to have supplied the model. 
Thus, in Massachusetts, the bond of an original administrator 
or of a simple administrator de bonis non, binds him to return an 
inventory within tlie time designated by law ; to administer accord- 
ing to law all the personal estate and the proceeds of all real estate 
sold for the payment of debts; to render regular accounts of his 
administration; to pay any balance remaining in his hands upon 
the settlement of his accounts to such persons as the court shall 
direct, and to deliver his letters of administration into the pro- 
bate court in case any will of the deceased is thereafter proved and 
allowed.^ For administrators with the will annexed, and likewise 
administrators de bonis non with the will annexed, a similar form 
is prescribed, but with appropriate allusions added to the pajTuent 
of " legacies." ® A special administrator's bond is conditioned to 
return an inventory within the specified time ; to account on oath 
whenever required for all the personal property of the deceased 
tliat shall be received by him in such capacity; and to deliver the 
same to whoever shall be appointed executor or administrator of 
the deceased, or to such other person as shall be lawfully entitled 
to receive the same.^ In most of our States, local statutes relative 
to administration will be found to suggest the varying forms appro- 
priate to different kinds of administration, even though no precise 

8. Mass. Gen. Stats, c. 94. Penn. St. 101: Frazier v. Frazier, 2 

9. lb. See Casoni v. Jerome, 58 Leigh, 642. But of. Judge of Pro- 
K Y. 315. The bond of such admin- bate v. Claggett, 36 N. H. 381. 
istrators must conform to the peculiar 1. lb. § 7. Administrators pendente 
conditions of a will, otherwise lega- lite usually give bonds, and the legal 
tees may lose their rights to sue validity of such bonds is beyond 
upon it. Small v. Commonwealth, 8 doubt. Colvin Re, 3 Md. Ch. 278; 

1083 



1140 



EXECUTOKS AND ADMINISTEATORS. 



[part II» 



form be specified ; and probate tribunals should see that all pro- 
bate bonds conform to law, and are correctly expressed.^ Bonds 
limited in expression are not favored in the United States, any 
more than limited grants of administration. But as administra- 
tors do not ex officio dispose of real estate, it is sometimes pro- 
vided that an administrator may be exempted from giving bonds 
for the proceeds of such property, except where authorized to make 
such sales. ^ 

The public administrator has the option in some States either 
io furnish a separate bond for every estate which he may be called 
upon to administer, or a general bond for the faithful administra- 
tion of all estates on which administration is granted to him ; and 
in either case with conditions expressed appropriate to his peculiar 
fimctions.* 



Bloomfield v. Ash. 4 N. J. L. 314. 
Notwithstanding the exemption of 
executors favored in New York, who- 
ever administers with will annexed 
must give bond, wliether legatee, next 
of kin, widow, or creditor. Brown, 
Ex parte, 2 Bradf. (N. Y.) 22. As to 
construing statute provisions respect- 
ing the several conditions of an ad- 
ministrator's bond, see Lanier v. 
Irvine, 21 Minn. 447; Hartzell v. 
Commonwealth, 42 Penn. St. 45,3; 
Ordinary v. Smith, 14 N. J. L. 479. 
As to the condition to surrender the 
letters in case a will shall be proved, 
etc., see Hunt v. Hamilton, 9 Dana, 
90. A condition to " administer tlic 
estate according to law " has been 
construed to include adtriinistration 
according to a will already admitted 
to probate. Judge of Probate v. 
Claggett, 36 N. H. 381, 72 Am. Dec. 
314. But see § 1146 po&t. 

2. Wliere a statute was precise with 
respect to the several forms of bond 
and the bond used in tlic probate of- 



fice contained omissions or additions 
of importance, it was pronounced 
fatally defective as a statute bond. 
Frye v. Crockett, 77 Me. 157. A. bond 
which does not conform to statute 
cannot be sued against the surety of 
the executor or administrator in the 
name of the successor of the judge ta 
whom it was given. lb. 

3. Mass. Gen. Stats, c. 94, § 6; 
Hughlett V. Hughlett, 5 Humph. 453. 
And see Sayler v. State, 5 Tnd. 202. 

4. Mass. Gen. Stats, c. 95, § 7. See 
Buckley V. McGuire, 58 Ala. 226; 
State V. Purdy, 67 Mo. 89. In Ala- 
bama the official bond of the sherifT 
becomes an administration bond, wlien 
the administration of an estate is 
committed to him ex officio, and he 
and his sureties are rendered liable 
accordingly. Payne v. Thompson, 48 
Ala. 535. See, further, Hcaly v. Su- 
perior Court, 60 P. 428, 127 Cal. 659; 
58 Neb. 261, 76 Am. St. Rep. 98, 78 
N. VV. 507. 



1084 



CHAP, v.] BONDS OF EXECUTORS AND ADMINISTRATORS. § 1141 

§ 1141. Probate Bonds; How Taken. 

Administration bonds, as American codes usually provide, musfc 
bo given by the administrator, with at least two sufficient sureties, 
in such penal simi as the court shall direct; double the estimated 
value of the estate to be administered serving as the usual basis for 
fixing the amount.^ In this and various other respects, the same 
holds generally true of executors' bonds. A discretion as broad 
as that conferred on the new probate court of England by Parlia- 
ment is not usually exercised by the probate courts in this country 
as to administration bonds. The register or clerk in some States 
attends to the qualification by bond ; more commonly, however, 
the judge, as to the main particulars of security, his approval 
being; written at the foot of the bond in token that the administra- 
tor has fully qualified, and the letters being meanwhile withheld 
by the register.® The bond of an administrator or executor runs 



5. See local codes; Clarke v. Chapin, 
7 Allen (Mass.) 425; Tappan v. Tap- 
pan, 4 Fost. (N. H.) 400; Bradley v. 
Commonwealth, 31 Penn. St. 522; 
Atkinson v. Christian, 3 Gratt. 448; 
Kidd's Estate, Myrick (Cal.) 239. 
And see, as to Louisiana rule, Soldini 
V. Hyams, 15 La. Ann. 551 ; Ferray's 
Succession, 31 La. Ann. 727. There 
are circumstances (as in ancillary ad- 
ministration for some particular pur- 
pose) where a small penal sum is ap- 
propriate. Piquet, Be, 5 Pick. 65. 
The security required should be for 
no more property than that on which 
administration is granted in the 
State. Normand v. Grognard, 17 N. 
J. Eq. 425. See as to taking a bond 
without sureties, Jones v. Gordon, 2 
Jones Eq. 352. A disputed claim not 
probably enforceable may be ignored 
in fixing the amount. 3 Dem. 427. 
Or property transferred by the de- 
cedent fraudulently or otherwise. 3 
Dem. 548. Where a will gives the 

108 



executor full power to deal with real 
as well as personal estate, the pen- 
alty of his bond should be reckoned 
accordingly. Ellis v. Witty, 63 Miss. 
117. Aliter, where an executor or an 
administrator (as usually) has noth- 
ing to do with the decedent's land. 
U. S. Fidelity Co. v. Russell, 133 S. 
W. 572, 141 Ky. 601. The local 
statvite sometimes permits the pen- 
alties to be reduced under an admin- 
istration bond (e. g. with will an- 
nexed) if the interested parties as- 
sent. Or even so that sureties may be 
dispensed with. See 3 Dem. 53 ; 
supra (as to executors), § 1137. 

In some States the court or regis- 
ter is liable in damages if he neglects 
to take a bond according as the stat- 
ute directs. McRae v. David, 5 Rich. 
(S. C.) Eq. 475; Penn. Act, March 
15, 1832, § 27. 

6. Mass. Gen. Stats, c. 101; Austin 
V. Austin, 50 Me. 74; ,wpra, § IIS. 
Approval in writing is not an essen- 

5 



1141 



EXECUTORS AND ADMIXISTEATORS. 



[PAET II. 



in some States to the State; in others, to the judge of probate and 
his successors, as in the statute 22 Car, II. c. 10.^ If one who has 
applied to administer does not qualify with sureties within a rea- 
sonable time, it is the duty of the court to appoint another ; * and 
the office of administrator is not filled until the bond is given.^ But 
whei-e the administrator fully qualifies, giving bond according to 
law, the decree of the court may be considered his sufficient ap- 
pointment whether he receives his formal letters or not; for the 
letters issue as of the same date, and if not actually delivered, are 
to be deemed ready for delivery.^ 

A probate bond which divides up the penal sum among the sure- 
ties is not void ; but this form of bond appears to be regarded with 
disfavor by American courts in the absence of legislation which 
expressly sanctions it, like the English act now in force.^ 



tial in all States. James v. Dixon, 
21 Mo. 538. 

As to order of approval and an ap- 
pointment, without certifying an ap- 
proval upon the face of the bond, see 
Chesapeake R. v. Banks, 135 S. W. 
285, 142 Ky. 74r, (sufficient). See 
also State v. Morrison, 148 S. W. 907, 
244 Mo. 193; Elizalde v. Murphy, 
126 P. 978, 163 Cal. 681. 

7. Johnson v. Fuquay, 1 Dana, 514; 
Vanhook v. Barnett, 4 Dev. L. 258. 
In Missouri the approval of the court 
is not indispensable to the validity 
of an administration bond. State v. 
Farmer, 54 Mo. 539. 

8. Crozier v. Gocxlvvin, 1 Lea, 125. 

9. Feltz v. Clark, 4 Humph. 79; 
O'Neal V. Tisdalc, 12 Tex. 40. 

1. State V. Price, 21 Mo. 434. A 
judge cannot «eject arbitrarily the 
bond offered, but he may require 
sureties to justify if there is rea- 
sonable doubt of their res])onsil)ility. 
48 Mich. 318, 12 N. W. 197. 

2. Act 20 & 21 Vict. c. 77, cited 



supra. Hence, an executor's bond, ap- 
proved by the judge, in which tlie 
sureties are each bound in half the 
sum for which the principal is bound, 
was held in Massachusetts not void 
for that cause, but binding on the 
obligors and sufficient to give effect 
to the executor's acts. Baldwin v. 
Standish, 7 Cush. 207. But the 
court further intimated that, had ap- 
peal been made from the decree of tlie 
judge of probate approving the bond 
in that form, such a departure from 
the usual course of proceeding would 
not have been sanctioned. lb. With 
tlie increasing wealth of this country, 
and the growing value of estates 
lirought necessarily into the probate 
court for settlement, it seems to this 
writer desirable that bonds of this 
character should hv autliorized, as 
they now so frequently are in the 
case of public o^Iicials. One siiouhl 
not be asked to risk utter ruin for 
the sake of a friend. 

Companies specially cluirtered and 



1086 



CHAP, v.] BONDS OF EXECUTORS AND ADMINISTRATORS. § 1142 

§ 1142. Probate Bonds; Irregularities, etc., attending Execution, 
How far Available. 

Courts disincline to treat a probate bond as void, to the detri- 
ment of an estate, bj reason of mere informalities and omissions 
attending its execution, -provided a regular execution was obviously 
intended ^ by principal and sureties. Thus, inserting the name 
of the intestate in a blank, where that of the administrator should 
be, has been treated as a mistake apparent on the face of the in- 
strument; and omissions of this sort are sometimes supplied in 
the blank by construing the decree of appointment and the bond 
together.* Even where the principal and his sureties executed a 
blank bond, the qualification thereon and appointment are held 
good until revocation of the letters ; ^ and though the executor's 
or administrator's bond were accepted without sureties Or upon 
ill compliance with the statute, the appointment itself may be 
valid, as made de facto and voidable only.® An administration 
bond is not void because its condition varies from that required by 
statute, when it was voluntarily given, and is not made void by 

organized for fidelity and surety bus- amount imports an authority to the 

iness upon recompense are desirable; principal, to whose care they confide 

and such companies, with approval of the bond, to fill in such a penal sum 

local statute or special charter, may as the court may require. Such a 

now be employed in England and practice, however, is exceedingly 

America, thus taking the place of careless, and no probate court should 

individual sureties, who have gener- knowingly sanction it. Leaving the 

ally run risks gratuitously in former date of the bond blank, however, in 

times. See Hunt's Goods, (1896) P. order that the principal may fill it up 

288. according to the date of probate de- 

3. Moore v. Chapman, 2 Stew. cree, is quite common; nor does such 
(Ala.) 466, 20 Am. Dec. 56. See also a course appear objectionable. 
Luster v. Middlecoff, 8 Gratt. 54, 56 6. Jones v. Gordon, 2 Jones (N. 
Am. Dec. 129. C.) Eq. 352; Mumford v. Hall, 25 

4. State V. Price, 15 Mo. 375. But Minn. 347; Herriman v. Janney, 31 
judgment at law upon a blank bond La. Ann. 276 ; Max^vell, Be, 37, Ala. 
is refused. Cowling v. Justices, 6 362, 79 Am. Dec. 62. For a probate 
Rand. 349. And see 68 N. E. 205, 184 bond of sureties not binding on them 
Mass. 210, 100 Am. St. Rep. 552. where the principal did not sign, see 

5. Spencer v. Cahoon, 4 Dev. L. 225. 101 Cal. 125, 35 P. 567, 40 Am. St. 
For sureties to execute for a blank Rep. 46. 

1087 



§ 1142 



EXECUTORS ANT) ADMIXISTEATOES. 



[PxiET II. 



statute, and prescribes no more than the law requires ; "^ though the 
omission of suitable conditions therein may rule out remedies for 
a corresponding breach, especially as against the sureties.* Obli- 
gors on a probate bond who have executed it and suffered the bond 
to go upon record, may, on general principles, be estopped from 
afterwards denying its validity or availing themselves of irregu- 
larities, or setting up their private arrangements as to the manner 
in which the bond should be filled out and used, to the injury of 
innocent interested parties who were led to rely upon the security,* 
especially where they themselves had not been misled to their own 
injury/ 



7. Ordinary v. Cooley, 30 N. J. 
L. 179. 

8. See Small v. Commonwealth, 8 
Penn. St. 101; Frazier v. Frazier, 2 
Leigh, 642: Roberts v. Colvin, 3 
Gratt. 358; Rose v. Winn, 51 Tex. 
545 ; Burnett v. Nesmith, 62 Ala. 261 ; 
Frye v. Crockett, 77 Me. 157; 45 A. 
921, 195 Penn. St. 230. 

9. Franklin v. Depriest, 13 Gratt. 
257; Cohea v. State, 34 Miss. 179; 
Field V. Van Cott, 5 Daly (N. Y.) 
308; Wolff V. Schaeffer, 74 Mo. 154. 
One who signs the probate bond may 
retract, if others intended do not sign, 
or the principal fails to make good his 
promises, but he must do so before the 
bond is returned and the court and 
innocent parties have placed reliance 
upon it. 4 La. Ann. 545; 10 La. Ann. 
612, Not even a surety's allegation 
that he signed on condition that an- 
othr surety should be procured, and 
that the judge of probate was so in- 
formed, can avail him, where there is 
no evidence that the bond was de- 
livered as an escrow. Wolff v. Schaef- 
fer, 74 Mo. 154. And still less, whfre 
the judge was not informed. Herkey 
V. Judd, 34 Minn. 393. But qu, 
wlietlier, in States where two sureties 



to a probate bond are requisite, the 
surety may not presume that the 
judge will not accept the bond unless 
another surety executes. It is plain, 
however, that one who executes as 
surety a probate bond, without 
ascertaining in what manner blanks 
are filled, or what other signatures 
are added before the bond becomes ap- 
proved and filed, trusts his principal, 
in many instances, farther tlian pru- 
dence warrants. Sureties on a publie 
administrator's bond cannot set iip 
that his appointment was irregular. 
16 Lea, 321. In Louisiana, where the 
amount is left blank in the bond, it 
is fixed by the code at one-fourth over 
the inventory, bad debts deducted. 
35 La. Ann. 920. A bond with one 
surety where the law required two is 
not void, 68 Ala. 107. Cf, 45 A. 
921, 195 Penn. 230 (discretion of 
court). And see, further, State v. 
Morrison, 148 S. W. 907, 244 Mo. 193; 
McGauhey v. Jacoby, 54 Ohio St. 
487, 44 N. E. 231; Fuller v. Dupont, 
67 N. E. 179; Tidball v. Young. 58 
Neb. 261 (bond fatally defective 
which names no obligee ) . 

1. Veach v. Rice, 131 U. S. 293, 3a 
L. Ed. 63. 



1088 



CHAP, v.] BONDS OF EXECUTORS AND ADMINISTRATOES. § 1143 

But alterations made after execution, and irregularities of in- 
jurious effect, to which the bondsmen themselves were not privy, 
but rather they to whom the security was given, and which the 
bondsmen cannot be said to have adopted by open acts or inex- 
cusable silence, may release them from responsibility. And in such 
connection a judge or register is greatly to be blamed who changes 
in material respects or mutilates the bond submitted to him, with- 
out the knowledge of all the parties executing it ; ^ or who, with- 
out assent of the sureties, directs that the bond one gives as special 
administrator of an estate shall stand over for his bond as general 
administrator.^ 

It follows that a bond may, under peculiar circumstances, bind 
the principal but not the sureties; * also that the judge in whose 
name the bond runs should regard himself as obligee in the inter- 
est and for the protection of all parties interested in the estate, and 
sanction nothing, out of complaisance to his appointee, to impair 
the security required in their behalf. And furthermore the judge 
should see that a bond conforms to the law in its provisions. 

§ 1143. Whether a Probate Bond may bind as a Common-law 
Bond. 

It has been ruled that, though the appointment of an adminis- 
trator be void for want of jurisdiction, inasmuch as the intestate 
neither resided nor left assets within the county at the time of 
death, a bond given by the administrator, while deriving no valid- 

2. In Howe v. Peabody, 2 Gray, 556, judge. It was held that the bond 

a probate bond executed by a prin- was binding upon the principal, but 

cipal and two sureties was altered by not upon any of the sureties. Howe 

the judge of probate so as to increase v. Peabody, 2 Gray, 556. Otherwise 

the penal sum. After this alteration, where supposed sureties were added, 

which was made with the knowledge who cannot legally be held, but upon 

of the principal, but not of the sur- whom the original sureties themselves 

eties, the same bond was executed by had placed no reliance. Veach v. 

two additional sureties, who did not Rice, 131 U. S. 293, 33 L. Ed. 63. 

know the circumstances of the alter- 3. Fisher, Re, 15 Wis. 511. 

ation, and was then approved by the 4. Howe v. Peabody, 2 Gray, 556. 

69 1089 



§ 1144 EXECUTOES AXD ADMINISTRATOES. [PAKT II. 

itj from the statute, may be good, nevertheless, at common law.^ 
And the fact, that one who was improperly appointed acts under 
the letters granted to him, is held to render him and his sureties 
liable on their bond to the parties interested in the estate, on gen- 
eral principle.® 

§ 1144. Sufficiency of Probate Bonds, as to the Security and the 
Parties offered. 
It is not of itself a sufficient objection to sureties offered, that 
they do not reside in the county where letters are applied for.^ 
!Non-residents, moreover, may, in some parts of the United States, 
be taken as sureties, the court exercising its own discretion as to 
their sufficiency ; ^ though the cod-es elsewhere expressly require 
that the indispensable sureties shall be inhabitants of the State;'* 
and the question, whether local practice of the common-law courts 
jjermits of a substituted service or not, in the case of non-residence, 
may be thought material in such a connection.^ There are local 
statutes which prohibit certain parties — attorneys, and coimsel, 
for instance — from being sureties on administration bonds: a pro- 
vision, however, held merely directory, and so as not to vitiate a 
bond, approved by the court, upon which one of the prohibited 
class is placed, nor so as to justify a party so execiiting in pleading 
exemption.^ Sureties are usually permitted to prove their suffi- 
ciency under their own oath, as in the qualifying of bail; and it 

5. McChord v. Fisher, 13 B. Mon. 7. Barksdale v. Cobb, 16 Ga. 13. 
193. 8. Jones v. Jones. 12 Rich. L. 623. 

6. Shalter's Appeal, 43 P( nn. St. 9. Mass. Gen. Stats, c. 101. § 12. 
83, 82 Am. Dec. .')52; Clfaves v. There may be a tliird person, an in- 
Dockray, 67 Me. 116. And see Frye habitant of another State, if two surc- 
V. Crockett, 77 Me. 157. An admin- ties are resident. Clarke v. Chapin, 
istrator's bond, though not approved 7 Allen, 425. 

by the probate court, may be good as 1. See Wms. Exrs. 544 ; Hernandez, 

a voluntary bond. State v. Creus- Goods of, L. R. 4 P. D. 229. 

bauer, 68 Mo. 254. And see Central 2. Hicks v. Chouteau. 12 Mo. 341; 

Banking Co. v. Fidelity Co., SO S. E. Wright v. Schmidt, 47 Iowa, 233. 
121 (W. Va.). 

1000 



CHAP, v.] BONDS OF EXECUTORS AND ADMINISTKATORS. § 1145 

tien devolves upon the opponent to show the insufficiency by cross- 
examination or evidence produced aliunde." 

In American practice, sureties, to save themselves trouble, fre- 
quently execute a probate bond in anticipation of the executor's 
or administrator's appointment; their principal holding the in- 
strument until ready to qualify. Such a bond should be drawn up 
with an ample penal sum (usually limited to double the amount 
of assets) and the principal should come prepared to establish its 
sufficiency to the satisfaction of the court ; and care should be 
taken, moreover, that no material change is made in the bond with- 
out reference anew to all the sureties* 

§ 1145. Co-Executors and Co- Administrators ; Joint and Separ- 
ate Bonds. 

On a joint probate bond, co-executors or co-administrators be- 
come, as a rule, jointly liable as sureties for the acts and defaults 
of one another; " and jointly as principals, moreover, to indemnify 
the surety who has been subjected to liability for the default of one 
of them during the continuance of the joint office.^ And though 
one or more of the co-executors or co-administrators should die,^ 
it is to be presumed that the bond remains a security for the per- 
formance of duty by the survivor, unless jDroper steps are taken to 
have the bond made inoperative for future defaults.^*^ But as to 

3. Ross V. Mims, 15 Miss. 121. 7. As to resignation of all co-exe- 

4. A person who writes to the pro- cutors but one, who gives a new bond 
bate judge that he will become surety and sues his former associates, see 
if A. B. is appointed, is not so liable Brown v. Brown, 78 S. E. 1040. 
unless he executes the bond. New Or- 7a. Stephens v. Taylor, 62 Ala. 269 ; 
leans Canal Co. v. Grayson, 4 La. Ann. Dobyns v. McGovern, 15 Mo. 662. Bit 
511. cf. Brazier v. Clark, 5 Pick. 96; Cora- 

5. Litterdale v. Robinson, 2 Brock. monwealth v. Taylor, 4 Phil. (Pa.) 
159; Brazer v. Clark, 5 Pick. 96; 270; Lancaster v. Lewis. 93 Ga. 727, 
Moore v. State, 49 Ind. 55S; 76 Va. 21 S. E. 155; Municipal Court v. 
85. Whalley, 55 A. 750, 25 R. I. 289, 63 

6. Dobyns v. McGovern, 15 Mo. L. R. A. 235, 105 Am. St. Rep. 890. 
662; 54 Kan. 793, 39 P. 713, 45 Am. 

St. Rep. 308. 

1091 



§ 114G EXECUTOES AXD ADMIXISTKATOKS. [PAIIT II. 

the sureties in a joint administration bond, it is held that they are 
not liable to one administrator for the defaults of the other.^ 

The real tenor of the bond must, however, detennine greatly 
its legal effect, on the usual theory of principal and surety, though 
not without reference to the law in pursuance of which it was 
made. In Massachusetts and some other States, the statute ex- 
pressly authorizes the court, in case joint executors or administra- 
tors are appointed, to take either a separate bond with sureties 
from each, or a joint bond with sureties from all.^ 

§ 1146. Probate Bond; What Property is covered; What Func- 
tions included, etc. 
The liability of a surety on an executor's or administrator's bond 
is limited to the assets which rightfully come, or ought to have 
come, to the principal's hands in the State or country in which he 
was appointed and qualified.^ This will be better understood, 
when, in the course of the present treatise, the subject of adminis- 
tration assets is hereafter discussed. The proceeds of such assets, 
arising out of sales, conversions, change of investment, and trans- 
fers in general, also profit and interest, are properly thus included.^ 
So, too, effects left in the executor's or administrator's hands, and 
property which has come to his possession or knowledge and re- 
mains unaccounted for;^ and this even though he received the 
property before his appointment; since the liability extends to 
assets received before as well as after the execution of the bond.* 
Failure to perform the duties recited in the bond, such as retum- 

8. Hwll V. Blancliard, 4 Desau. 21. C.) 224; Verret v. Belanger, 6 La. 
See Elliott v. Mayfi(>ld, 4 Ala. 417. Ann. 109. 

9. Mass. Gen. Stats, c. 101, § 14. 3. Bouhvare v. Hendricks, 23 Tox. 
Two sets of sureties are properly GG7. 

made parties to one suit, where it i.s 4. Gottsbergcr v. Taylor, 19 N. Y. 

necessary to show whether both sots 150; Goode v. Buford. 14 La. Ann. 

are liable or which sot. 65 Tex. 152. 102; Choate v. Arrington, 116 Mass. 

1. Fletcher v. Weir, 7 Dana, 345; 552; 99 N. W. 582, 90 Me. 505. 10 
Governor v. Williams, 3 Ircd. L. 152. L. R. A. 33, 60 Am. St. Rep. 235; 

2. Watson v. Whitten, 3 Rich. (S. Head v. Sutton, 31 Kan. 61G, 3 P. 

1092 



CHAP, v.] BONDS OF EXECUTOKS AND ADMIXISTIIATORS. § 1140 

iiig an inventory or rendering an account, is also a breach for 
■which principal and sureties are liable, even though the damage 
sustained may prove but nominal.^ If an executor or administra- 
tor is able to pay a debt due by him personally to the estate, his 
sureties v^^ill be liable with him, unless he discharges it.^ Ordi- 
narily, as will be seen hereafter, administration does not extend to 
the real estate of the deceased ; and hence rents received after the 
death of an intestate may not be thus included, nor the proceeds 
of lands sold,^ for which last an administrator usually procures a 
license and gives a special bond. But statutes regulate this whole 
subject, and ultimately, according to the modern tendency, an ad- 
ministrator or executor may incur an official responsibility for 
rents and profits or for the proceeds of the sale of real estate, so 
as to involve the sureties on his general bond for his default ; ' 
bonds in general being, furthermore, construed according to their 
particular tenor. 



280; 68 N. H. 511; 182 111. 390; 108 
Ga. 430. 

All moneys received under color of 
official authority are covered by the 
bond. State v. Young. 125 N. C. 296. 

5. Forbes v. IMcHugh, 152 Mass. 
412; 25 N. E. 622; 83 Wis. 394, 53 
N. W. 691; 166 Mass. 569, 44 N. E. 
1065. 

6. Piper's Estate, 15 Penn. 533. 
See McGaughey v. Jacoby, 54 Ohio 
St. 487, 44 N. E. 231, where the ex- 
ecutor was insolvent when appointed. 
State v. Morrison, 148 S. W. 907, 244 
Mo. 193. Money set down in the in- 
ventory as part of the estate must in 
some way be accounted for. Goode 
V. Buford, 14 La. Ann. 102; Wattles 
V. Hyde, 9 Conn. 10. As to executor's 
or administrator's own debt, see 
Judge of Probate v. Sulloway, 44 
A, 720, 68 N. H. 511, 49 L. 
R. A. 347, 73 Am. St. Rep. 619; 
85 Tenn. 486, 3 S. W. 178; 



Sanders v. Dodge, 103 N. W. 597, 140 
Mich. 236; 82 S. W. 235, 26 Ky. Law. 
494; 77 P. 748, 45 Ore. 247. And see 
173 Mass. 112, 53 N. E. 152; State 
v. Morrison, 148 S. W. 907, 244 Mo. 
193. 

7. Cornish v. Wilson, 6 Gill. 299; 
Hartz's Appeal, 2 Grant (Pa.) 83; 
Commonwealth v. Higert, 55 Penn. 
St. 236; Hutchenson v. Pigg, 8 Gratt. 
220; Reno v. Tyson, 24 Ind. 56; Old- 
ham v. Collins, 2 J. J. Marsh. 49; 
Brown v. Brown, 2 Harr. (Del.) 51; 
22 N. E. 969, 121 Ind. 92; 101 Ga. 
681, 29 S. E. 37; People v. Huffman, 
55 N. E. 981, 182 111. 390; Forbes v. 
Keyes, 78 N. E. 733, 193 Mass. 38; 
40 S. E. 683, 62 S. C. 306; 133 S. W. 
572, 141 Ky. 601. Cf. 90 S. W. 197, 
40 Tex. Civ. App. 489. 

8. Phillips v. Rogers, 12 Met. 
(Mass.) 405; Wade v. Graham, 4 
Ohio, 126; Strong v. Wilkson, 14 Mo. 
116; Judge of Probate v. Heydock, 8 



1093 



1146 



EXECUTORS AND ADMIXISTEATOES. 



[part II. 



Probate bonds in these days are usually so worded as to em- 
brace all the general functions which the executor or administrator 
may be required to perform in pursuance of his trust-; both to- 
wards the court, and with respect of the creditors, legatees, dis- 
tributees, and all others interested.^ So, too, may a general admin- 
istration bond be held to cover all the duties of an administrator, 
as well in the saie of land, where occasion arises for the court's 
license, as in the settlemene of the personalty.^ But if an admin- 
istration bond contains no clause securing the interest of dis- 
tributees, the sureties, as some States hold, will not be liable for 



N. H. 491. An executor receiving the 
residue in trust for charities, but 
giving no bond as trustee nor turn- 
ing it over to the trust, his bondsmen 
are liable for it. White v. Ditson, 
140 Mass. 351, 5*4 Am. Rep. 473, 4 
N. E. 606. And see 14 R. I. 495. As 
to liability for proceeds of real estate 
sold, see ib. See, also, Dowling v. 
Feeley, 72 Ga. 557; Reherd v. Long, 
77 Va. 839; Mann v. Everts, 64 Wis. 
372, 25 K W. 209; 78 Va. 720. Lia- 
bility may arise for the proceeds of 
life insurance policies not used in 
paying debts. 16 Lea. 321; Nickels 
V. Stanley, 81 P. 117, 146 Cal. 724. 
The surety on the bond of an in- 
solvent executor who owed his testator 
is not liable for that debt. Lyon v. 
Osgood, 58 Vt. 707, 7 A. 5. Unless it 
could have been realized with due 
diligence. 85 Tenn. 486. Where one 
was induced fraudulently to become 
a surety in such a case, all the 
stronger is his defence. Campbell v. 
Johnson, 41 Ohio St. 588. The surety 
on the administrator's replevin bond 
has a right against the sureties on the 
administration bond. 77 Mo. 175. 
Failure to pay over a balance de- 
creed is a breach. 89 N. W. 742, 64 
Neb. 175; Ferguson v. Carr, 107 



S. W. 1177, 85 Ark. 246. See, further, 
34 S. E. 213, 108 Ga. 430; 111 S. W. 
817, 213 Mo. 66; Glover v. Baker, 
83 A. 916, 76 N. H. 393. 

The obligation is not to be extended 
beyond the terms of one's undertak- 
ing. People v. Petrie, 61 N. E. 499, 
199 111. 497, 85 Am. St. Rep. 268; 
57 S. W. 1087, 157 Mo. 609, 80 Am. 
St. Rep. 643. Cf. 67 P. 333, 135 Cal. 
361. 

As to discharge of executor, etc., 
see 159 111. App. 35 (bond not satis- 
fied). 

9. Woodfin V. McXealy, 6 Fla. 256; 
People V. Miller, 2 111. 83; Hazen v. 
Darling, 2 N. J. Eq. 133, 62 N. H. 228; 
Williams v. Starkweather, 66 A. 67, 
28 R. I. 145 (equity decree) ; McKim 
v. Haley, 173 Mass. 112. 

1. Clark V. West, 5 Ala. 117. But 
a bond expressly confined to personal 
property does not extend to rents and 
profits derived from the decedent's 
real estate. Worgang v, Clipp, 21 
Ind. 119; 121 Ind. 92. Nor are 
sureties liable for proceeds of real 
estate not turned over to heirs where 
the latter made the convcyajice as of 
their own property. 101 Ga. 687. 

Money belonging to an estate re- 
ceived by one who is subsequently ap- 



1094 



CHAP, v.] EO:XDS OF EXECUTORS AND ADMINISTRATOES. § 1146 

failure or refusal to distribute.^ The sureties are not usually liable 
for the acts of an executor or administrator in meddling with 
property to which he has or acquires no official right ; ^ nor for any 
mere breach by him of a personal duty ; * nor with respect to prop- 
erty held or acts done by him in some other distinct capacity,^ In 
general liability on the fiduciary bond is limited to such damages 



pointed executor or administrator 
becomes assets for which his bond is 
security. 90 Me. 505. 

2. Arnold v. Babbitt, 5 J. J. Marsh, 
665. The condition to " well and truly 
administer according to law " has re- 
lation to the interest of creditors and 
not of distributees. Barbour v. Rob- 
ertson, 1 Litt. 93. And correspond- 
ingly as to " legatees," in a bond taken 
for administration under a will, see 
Small V. Commonwealth, 8 Penn. St. 
101; Frazier v. Frazier, 2 Leigh. 642. 
But cf. Peoples v. Peoples, 4 Dev. & 
B. L. 9; Judge of Probate v. Clag- 
gett, 36 N. H. 381, 72 Am. Dec. 314. 
"Due admnistration of the estate" 
includes the payment of the balance 
to the persons entitled. Cunningham 
V. Souza, 1 Redf. (N. Y.) 462. And 
see Sanford v. Oilman, 44 Conn. 461. 
Statutes are differently construed. It 
was the English rule of construction, 
under the statute 22 & 23 Car. II. 
c. 10, thjat the condition to " well and 
truly administer according to law," 
did not include the neglect or refusal 
to distribute; though it would be a 
breach that the adminstrator had 
converted the assets to his own use. 
Wms. Exrs. 540, 541. A condition 
prescribed by New York statutes re- 
quires the fiduciary to " obey all 
orders of the sutrrogate touching the 
administration of the estate." Tliis 
clause is construed in Scofield v. 
Churchill, 72 N. Y. 565. 

1095 



3. McCampbell v. Gilbert, 6 J. J. 
Marsh. 592. And see Douglass v. 
New York, 56 How. (N. Y.) Pr. 178; 
Jackson v. Wilson, 117 Ala. 432, 23 
So. 521. 

4. 101 Ga. 46, 28 S. E. 674; 37 S. C. 
174, 158 E. 922. 

5. Barker v. Stamford, 53 Cal. 451; 
Sims V. Lively, 14 B. Mon. 433; 
Reeves v. Steele, 2 Head. 647. As to 
the same person being guardian or 
trustee and administrator, see § 1247, 
post; Schoul. Dom Rel. § 324; 48 S. 
E. 699, 121 Ga. Ill; 81 P. 117, 146 
Cal. 724; 61 N. E. 491, 196 111. 382; 
Campbell v. Bonding Co., 55 So. 306, 
172 Ala. 458. Where an executor is 
named trustee under the will, he is 
chargeable as executor on his bond as 
sucli until he has given bond as 
trustee, and charged himself with 
the property as trustee, administra- 
tion being the prior duty. See § 
1247. Where one is both executor 
and trustee under a will, he should, 
of course, give separate bonds for 
each trust. 85 Ind. 312. As to lia- 
bility of sureties where the executor 
or administrator dies and his per- 
sonal representative settles the ac- 
counts, see Williams v. Flippin, 68 
Miss. 680, 10 So. 52, 24 Am. St. Rep. 
297. For waste or misapplication by 
the representative himself, such 
sureties need not respond. lb. 



§ lliT 



EXECUTOES AND ADMINISTKATOES. 



[PAET II. 



as are equitably due to the party or parties for whose benefit the 
action is brought, and the penal sum named marks only a final 
limit.® 

Sureties on a probate bond, it is held, are liable for defaults of 
the principal occurring after their own death, especially if they 
expressly bind in terms their own executors and administrators.^ 

§ 1147. Release or Discharge of Sureties. 

American statutes frequently provide that the surety to a pro- 
bate bond may, upon his petition, be discharged from all further 
responsibility, if the court deems it reasonable or proper, after duo 
notice to all persons interested ; ^ whereupon other security will 
be required of the executor or administrator, in default of which 
his letters may be revoked.^ The principal's failure to perform his 
duties as the bond prescribes is good ground for presenting such 
2)etition.^ 

Release of the sureties on the bond, must, however, be a judicial 



6. State V. French, 60 Conn. 478, 23 
A. 153. One who has no beneficial 
interest in the estate, even though a 
next of kin, cannot maintain an action 
as for breach of the fiduciary bond. 
63 N. H. 228. And see 50 S. E. 388, 
121 Ga. 111. 

As for the expenses of an adminis- 
tration de bonis non made needful by 
the executor's carelessness, see 166 
Mass. 569. 

7. Mundorifi" v. Wan{];lcr, 44 N. Y. 
f^uper. 495; 2 Dem. 469. And see 
§ 1145. 

8. Mass. Gen. Stats, c. 101, § 16 
Lewis V. Watson, 3 Redf. (N. Y.) 43 
Valcourt v. Sessions, 30 Ark. 515 
Johnson v. Fuquay, 1 Dana, 514 
Korris v. Fristoe, 3 La. Ann. 646; 61 
So. 777, 132 La. 746; McKay v. Mc- 
Donald, 8 Rich. 331; Harrison v. 
Turbeville, 2 Humph. 241; Jones v. 



Ritter. 56 Ala. 270; 2 Dem. (N. Y.) 
201, 251. As to citation in such a 
case, see Stevens v. Stevens, 3 Redf. 
(N. Y.) 507; 27 La. Ann. 344. The 
statute discretion of the court to dis- 
charge a surety from liability (un- 
like that of requiring new and addi- 
tional security) appears to be strictly 
construed. Jones v. Ritter, 56 Ala. 
270; Wood v. Williams, 61 Mo. 63; 
People V. Curry, 59 111. 35. Sucli 
proceedings are summary, and the 
record should show the essential 
facts. 16 La. 652; 63 Md. 14. Dis- 
charge upon ex parte proceedings is 
wrongful. 36 So. 315, 112 La. 305. 

See Blake v. Bayne, (1808) App. 
371 (duration of liability of sureties). 

9. lb. 

1. Sanders v. Edwards, 29 La. Ann. 
696. 



1096 



-CIIxVP. v.] BONDS OF EXECUTORS AXD ADMINISTRATORS. § 1148 

act regularly performed. Often before sucli release is permitted 
the principal may have to settle his balances or else furnish new 
sureties, as various codes require. And where an executor's or ad- 
ministrator's bond has been delivered into probate custody and 
duly accepted, the subsequent erasure of their names found upon 
the bond will not release the sureties.^ But the intention of the 
court to discharge an old bond and take a new one by way of sub- 
stitution will take due effect.^ The loeal statutory provisions for 
such release must be duly complied with by the court.^ 

§ 1148. New or Additional Bonds; when and how required. 

A new bond will be required of an executor or administrator, 
not only (as local acts often provide) when a former surety is dis- 
charged upon his request, leaving the probate security inadequate, 
but in general wherever it appears that the sureties are insufficient 
or the penal sum, under existing circimistances. The court, in con- 
formity with statute, may at any time, on the petition of any per- 
son interested in the estate, require of the representative a new 
bond with a surety or sureties, and in such penal sum as shall ap- 
pear just.^ And a decree requiring an additional bond is held to 
be within the jurisdiction of the court of probate, even though no 
petition to that effect was first presented.^ Sureties, themselves, 

2. Brown v. Weatherby, 71 Mo. 152. 5. Mass. Gen. Stats, c. 101, § 15; 

3. Brooks v. Whitmore, 139 Mass. Loring v. Bacon, 3 Cush. 465. As 
S56. where it is shown that the aggregate 

4. A court cannot waive statute property of the sureties is not equal 
perrequisites to such release. Clark to that of the personal estate in the 
"V. American Surety Co., 171 111. hands of the administrator. Renfro 
235. And the surety is the v. White, 23 Ark. 195. Or that one 
proper party to apply ; not the admin- or more of the sureties has died, 
istrator. lb. And see Eddy v. State v. Stroop, 22 Ark. 328. 
People, 58 N. E. 397, 187 111. 304. 6. Ward v. State, 40 Miss. 108; 
Release from liability while the bond Governor v. Gowan, 3 Ired. L. 342. 
remains in efifect is not to be allowed Statutes may well confer authority 
on trivial grounds. Elizalde v. Mur- upon the court to require new or ad- 
phy, 126 P. 978, 163 Cal. 681; Allen ditional security at the court's own 
v. Puritan Trust Co., 97 N. E. 916, instance. See 126 P. 978, 163 Cal. 
211 Mass. 409. 681. 

1097 



§ 1143 EXECrTOES A^T) ADMIXISTEATOKS. [PAET II. 

according to the practice of certain States, may, instead of peti- 
tioning to be discharged, ask for what is termed coimter-security.' 
If the principal fails to give the new or additional bond within 
such reasonable time as the court mar have ordered, he will be re- 
moved, and some other person who can qualify will be appointed 
in his stead.® It is quite desirable that the discretion of the pro- 
bate court in requiring bonds should extend to all changes of cir- 
cumstance in the representative himself, his sureties, or the amount 
of the estate. 

Whenever a new bond has been required of the executor or ad- 
ministrator, by way of substitution, the sureties in the prior bond 
are usually treated as liable for all breaches of condition com- 
mitted by him before the new bond is executed and accepted by the 
court ; * but as released and exempt from liability for his defaults 
committed afterwards.^ "Where, however, a new additional bond 
is given by the executor or administrator for the performance of 
his trust, the second bond is cumulative and relates back, so that 
the sureties on the new and original bonds shall all be regarded as 
parties to a common undertaking. To distributees and other par- 

7. Caldwell v. Hedges, 2 J. J. Heisk. S14. As to an error of bal- 
Marsh. 4S5; Brown v. Murdock, 16 ance shown where the surety peti- 
Md. 521; Russell v. McDougall, 3 tioned for further security, see Bobo 
Sm. & M. 234. v. Va»iden, 20 S. C. 271. 

8. Mass. Gen. Stats, c. 101, § 17; 1. State v. Stroop, 22 Ark. 32S: Lin- 
Xational Bank v. Stanton, IIG Mass. gle v. Cook, 32 Gratt. 262: Russell v. 
435. An order requiring the admin- McDougall, 3 Sm. & M. 234: State r. 
istrator to give a new bond affects Fields, 53 Mo. 474; Perry v. Camp- 
his right to administer, and his ap- bell, 10 W. Va. 228; 68 Ala. 7, 21; 
peal therefrom without a bond does 36 La. Ann. 414. As to the presump- 
not suspend the order. Bills v. Scott, tion on lapse of time that the default 
49 Tex. 430. occurred after the substitution, see 

9. Mass. Gen. Stats, c. 101, § 18; Phillips v. Brazeal, 14 Ala. 745. For 
McMet'ken v. Huson, 3 Strobh. 327. as to liability of sureties in the 
It is held that in case of release and second or substituted bond, the grava- 
Bubstitution the second set of sureties men of the breach may be, not a prior 
become principally liable to the extent misapplication, but the failure to 
of their bond; and then if tliey prove pay over. Pinkstaff v. People, 59 
insufficient, the first set to the date 111. 148; Morris v. Morris, 9 Heisk. 
of their release. Morris v. Morris, 9 814. 

1098 



CHAP, v.] BONDS OF EXECUTORS AND ADMINISTRATORS. § 1148a 

ties protected thereby, they beceme responsible to the extent of, and 
as among themselves, in proportion to the penalties of their re- 
spective bonds ; ^ and they will all share the benefit of counter- 
securities given to one or more of them, unless it was originally 
agreed tha-t such securities should operate for some exclusive bene- 
fit.^ Co-sureties m»ay stand liable together towards the court and 
those for whose benefit the obligation was taken, but as among 
themselves unequally responsible. Where it is not clear that the 
new bond was properly taken by the court in lieu of the former 
one, and so intended, the legal effect must be to furnish additional 
securities for the performance of the principal's duties under his 
original obligation.* ISTew bonds may be needful sometimes to 
cover newly discovered property of the decedent.^ 

§ 1148a. Liability on Bond, how enforced. 

Ordinarily the liability of sureties on an administration bond 
is enforceable only in a court of law having jurisdiction, and an 
action is not thus sustainable until the probate court has adjusted 
the administration accounts, has found a breach, and has ordered 
the amount found due to be paid over.^ 



2. Loring v. Bacon. 3 Cusli. 465 
Enicks v. Powell, 2 Strobh. Eq. 196 
Central Banking Co. v. Fidelity Co 



will be discussed hereafter. And see 
general works on bonds, and the rela- 
tion of principal and surety. 



80 S. E. 121 (W. Va.). Thus is it 5. 36 La. Ann. 414. 

held as to a cause of action arising 6. Planters' Association t. Harris, 

between the giving of the two bonds. 131 S. W. 949, 96 Ark. 222; Part V. 

Lingle V. Cook, 32 Gratt. 262. post; 3 Alaska, 121; Municipal 

3. Enicks v. Powell, 2 Strobh. Eq. Court v. Bostwick, 78 A. 53, 31 R. I. 
196: Wood v. Williams, 61 Mo. 63; 550. And see 82 A. 218, 85 Vt. 358; 
Wolff V. Schaeffer. 74 Mo. 154. 83 A. 653, 86 Vt. 31; Allen v. Puritan 

4. Wood V. Williams, 61 Mo. 33; Trust Co., 97 N. E. 916, 211 Mass. 
People V. Curry, 59 111. 35; Lacoste 409; Judge v. Sulloway, 68 N. H. 
V. Splivalo, 64 Cal. 35, 80 P. 571. 511; 129 P. 693. 

A new bond given by a public ad- As to the enforcement of bond, 

ministrator held cumulative, and not where executors are also trustees 

to discharge the old sureties. 10 Mo. under a will, and liable in each ca- 

App. 95. The remedies for breach of pacity, see § 1491a post; Coates v. 

an executor's or administrator's bond Lunt, 100 N. E. 829, 213 Mass. 401. 

1099 



§ 1149 EXECUTOES AJ^D ADMIXISTEATOES. [PAET II. 

§ 1149. Lost and Missing Probate Bonds. 

Since probate bonds are usually copied into the probate records^ 
in American practice, tbe record may serve as secondary evidence 
for all needful purposes where tbe original bond is missing from 
the files. Local acts provide, in some instances, for a substitution, 
by judicial decree, where the oflficial bond together with the record 
thereof has been lost or destroyed/ 

7. See Tanner v. Mills, 50 Ala. 356. 

1100 



CHAP, VI.] KEVOCATION OF LETTERS, ETC. § 11 50 



CHAPTEE VI. 

APPEAL, REVOCATION ; NEW APPOINTMENT, ETC. 

§ 1150. Appeal from Decree of Probate Court; Mandamus, etc. 

Appeal from a decree of the county or district probate court is 
regulated, in England and the United States, by local statutes, 
varying from time to time, which need not here be examined at 
length. While the spiritual jurisdiction obtained, as to probate 
and administration, in the mother country, appeal lay, through 
the ecclesiastical hierarchs, to what was known as the court of 
delegates, but afterwards, instead, to the judicial committee of the 
privy council.'^ Since that jurisdiction has become temporal in 
its nature, however, under the Court of Probate Act of 1857,^ 
the right of final appeal from a decree of the couj't of probate has 
been transferred to the House of Lords.^ 

In most American States the supreme judicial court of com- 
mon law is also the supreme court of probate and equity, and 
hence, a ready appeal is taken from the county probate court, 
bj any one aggrieved by its decree. Indeed, in certain matters 
pertaining to the estates of deceased persons, especially where the 
probate of a will involving some^ considerable property is con- 
tested, the decree of the surrogate or county judge of probate often 
appears procured pro forma only, the full trial being had on ap- 
peal, where a jury may be empanelled, and the case finally de- 
termined upon the law and evidence before a more august tribunal, 
as seems befitting to the gravity of the controversy.* 

To such higher tribunal, therefore, intermediate or final, any 
/one aggrieved by the order, sentence, decree, or denial of the court 

1. Wms. Exrs. 571, 572, citing 4. Supra, § 1001. This right to 
Btats. 24 Hen. VIII. c. 12; 25 Hen. appeal, being a statutory right, can 
VIII. c. 19; 3 & 4 Wm. IV. c. 92. only be secured by a strict compliance 

2. 20 & 21 Vict. c. 77. with the statute conditions. Denni- 

3. Wms. Exrs. 574. son v. Talmage, 29 Ohio St. 433. 

1101 



§ 1150 EXECUTOES AXD ADMIl^ISTEATOES. [PAET II. 

or judge taking primary jurisdiction of the case, may appeal. This 
appeal has sole reference, however, to the order or decree in ques- 
tion, as, for instance, in admitting such a will to probate and is- 
suing such lettere testamentary, or in gTanting such letters of ad- 
ministration; though interlocutory orders may thus be considered 
as well as the final decree complained of. The appeal, in fact, 
gives the appellate court no jurisdiction to proceed further in the 
settlement of the estate; but its judgTuent on appeal being upon 
such decree, order, sentence, or denial of the court below, it is 
certified to that tribunal, where further proceedings are had ac- 
cordingly, or stopped, as if it had made no decisien. The judg- 
ment of the appellate tribunal is to be carried into effect by the 
probate court, whose jurisdiction over the cause and the parties 
is not tak-en away by the appeal.^ 

Mandamus from the superior temporal courts was a remedy 
formerly invoked* against courts spiritual in English practice; as, 
for instance, to compel probate of a will or a particular grant of 
administration, or in case of an improper appointment or repeal.' 
But by modern practice, in the United States at least, since the 
whole jurisdiction vests in the temporal courts, appeal has be- 
come the regular mode of procedure before a higher tribunal, 

5. Metcalf, J., in Dunham v. Dun- will be found, the court may revoke 

ham, 16 Gray, 577 ; Curtiss v. administration. Crocker v. Crocker, 

Beardsley, 15 Conn. 523. Where, upon 84 N. E. 476, 198 Mass. 401. And 

reversing on appeal the decree of the see Gurdy Re, 63 A. 322, 101 Me. 73. 

surrogate admitting a will to probate. The appellate court does not grant 

the case is sent back for a re-trial of new letters. Wooten's Estate, 85 S. 

a question of fact, the powers of W. 1105, 114 Tenn. 289. And see 

executors continue until a final de- Farnham's Estate, 41 Wash. 570, 84 

termination of such issue and a re- P. 602; White v. Savings Bank, 131 

vocation by the surrogate of the pro- N. Y. S. 311. 

bate. Tliompson v. Tracy, 60 N. Y. 6. Wms. Exrs. 235, 387, 435, and 
174. The probate court cannot re- cases cited; 2 Sid. 114; 1 Stra. 552. 
voke its own decree of appointment In ♦•ase of an undue grant of admin- 
pending an appeal. 55 N. J. Eq. 764, istratlon, wliich liad not already 
37 A. 952. Nor appoint any one else, passed the seals, a prohibition issued 
except for the special and temporary instead. 1 Frecm. 372; Wms. Exrs. 
exigency. §§ 1134, 1135. But if a 585. 

1102 



CHAP. VI.] EEVOCATION OF LETTEES, ETC. § 1151 

wherever the grievance was based upon a decree of the probate 
court ;^ though mandamus or prohibition might still lie if the pro- 
bate judge refused to entertain a proper petition or to decide at 
all upon the case, or if he obstructed an appeal from his decision.* 

§ 1151. Appeal from Decree of Probate; Subject continued. 

The right to appeal depends upon the relation of the appellant 
to the subject-matter of the probate decree or order. A person 
is aggrieved, within the meaning of our practice acts, when his 
rights are concluded or in some way affected by such decree or 
order; nor is it essential that he was directly connected with the 
proceedings below. A legatee or distriutee, a surety on the bond, 
another administrator, a guardian or a trustee, a creditor, any 
and all of them may, under various circumstances, exercise the 
right to appeal from the probate of a will or the issue of letters 
to a particular appointee.^ Appeal, according to the practice of 
some States, as fully detailed by the local statute, should be claimed 
in writing, and notice given at the probate office, together with the 
reasons of appeal, within a specified brief time (such as thirty 
days) after the decree complained of; copy being served meanwhile 
on the appointee and adverse party. The appeal should be entered 
ai the next convenient rule day of the supreme court (or in about 
sixty days). The supreme court may exercise a further discretion 
in revising the matter, within a much longer period (such as one 

7. State V. Mitchell, 3 Brev. (S. C.) utor, vested with discretion, may ap- 
520. peal from a refusal of probate, not- 

8. State V. Castleberry, 23 Ala. 85; withstanding the opposition of the 
Gresham v. Pyron, 17 Geo. 233; Wil- beneficiaries who have made a private 
liams v. Saunders, 5 Coldw. 60. settlement. Cheever v. Judge, 45 

9. See Livermore v. Bemls, 2 Allen, Mich. 6, 7 N. W. 186. See, also, 96 P. 
394; Northampton v. Smith, 11 Met. 792, 8 Cal. App. 254 (public admin- 
390. Where an appeal fails merely istrator or non-resident heirs ag- 
because the appellant cannot prove grieved) ; 77 N. E. 305; 37 Ind. App. 
that he is a party entitled to appeal, 449 ; Gurdy Re, 63 A. 322, 101 Me. 
the probate decree stands as if not 731 (appeal from refusal to grant 
appealed from. Cleveland v. Quilty, letters of executorship). 

128 Mass. 578. The designated exec- See supra, § 1083 and cases cited. 

1103 



§ 1151 EXECUTOES AXD ADMIiXISTKATORS. [PAKT H. 

or two years) where the petitioner was abroad at the time of the 
decree, or where the omission to seasonably claim and prosecute 
an appeal was otherwise excusable. After an appeal is claimed 
and notice given at the probate registiy, all proceedings in pursu- 
ance of the order or decree appealed from will cease until the de- 
termination of the supreme court is had ; but if the appellant in 
writing waives his appeal before entry of the same, proceedings 
may be had in the probate court, and the appointment or probate 
may stand as if no appeal had been taken. Where, however, an 
appellant fails to enter and prosecute his appeal, the supreme court 
may, at the instance of any person interested, aflSrm the former sen- 
tence, or make such other order as law and justice require. On ap- 
peal, issues of fact, such as the due execution of a will, may be tried 
by a jury.^ Appeal to a higher tribunal to reverse the sentence by 
which letters or a probate had been granted offers thus a ready 
means of revocation, where the grant or the probate was improper.^ 
But appeal may be thus taken not upon facts alone, but upon some 
point of law involved in the decree or order rendered below\^ 

A supreme court of equity has sometimes taken jurisdiction to 
set aside letters of administration or a probate fraudulently pro- 
cured.* In general, however, the fair and honest discretion of the 

1. Mass. Gen. Stats, c. 117; Peters appeal. 165 Mass. 240. 43 N. E. 98. 

V. Public Administrator, 1 Bradf. Sec White v. Tlill, 56 So. 444, 76 Ala. 

(N. Y.) 200; supra, Part I.; Thonip- 480 (joint petitioners). 

son V. Tracy, 60 N. Y, 174; Wortli- 2. From the nature and necessities 

ington V. Gittings, 56 Md. 542. The of the case, however, it is Udually 

practitioner should consult the local provided that in case of an appeal 

statute and procedure of his own from a decree appointing a special 

State on this general suVjject. Eng- administrator he sliall proceed in the 

lish rules of court, regulating appeals execution of his duties until the su- 

from probate court, may be compared premc court directs otlierwise. Mass. 

in Wms. Exrs. 574. The discretion Gen. Stats, c. 94. Supra, § 1135. 

of the judge below, notwithstanding 3. (1893) P. IG. 

a claim of appeal, appears by these 4. Thus, in Georgia, a court of 

rules to be more favorably considered. equity has entertained jurisdiction to 

lb. set aside letters of administration 

An appeal is usually restricted to i)rocured on fraudulent representation 

the matters stated as cause for such of intestacy, and to compel the wrong- 

1104 



CHAP. VI.] REVOCATION OF LETTEES, ETC. § 1152 

probate judge is respected, and the appointment made bj bim may 
be presumed a proper one.^ 

§ 1152. Revocation by Proceedings in the Probate Court. 

Tbe probate court bas always exercised a plenary jurisdiction in 
revoking or vacating its ovm. decrees improperly rendered ; thereby 
correcting errors such as arise out of fraud or mistake, cancelling 
letters which had been issued without jurisdiction, revoking an 
appointment gi^anted to the wrong party, and admitting a subse- 
quent will or codicil notwithstanding the improper probate of an 
earlier one. Such jurisdiction is available after the time of ap- 
pealing from the decree is past. " This power," observes Gray, 
J., " does not make the decree of a court of probate less conclusive 
in any other court, or in any way impair the probate jurisdiction, 
but renders that jurisdiction more complete and effectual, and by 
enabling a court of probate to correct mistakes and supply defects 
in its own decrees, better entitles them to be deemed conclusive 
upon other courts. There is no reason to apprehend that such a 
power may be unjustly exercised. It is vested in the same court 
which is intrusted with the original jurisdiction over all probates 
and instruments." ^ Moreover, proceedings for such revocation or 
change in the probate decree are conducted upon the same principle 
as the original petition ; notice issues as before to all parties in 
interest, and the executor or administrator is cited before the judge, 
to show cause why the original probate or administration should 
not be revoked and his letters surrendered accordingly. And from 
the decree thus rendered, an aggrieved party may take an appeal, 
as in other instances.^ 

Due course of procedure before the probate court requires that 

ful administrator and his sureties to 6. Waters v. Stickney, 12 Allen, 15, 

account with the lawful executor. and cases cited; Vance v. Upson, 64 

Wallace v. Walker, 37 Ga. 265, 92 Tex. 266. 

Am. Dec. 70. But see Cooper v. 7. lb. And see Wms. Exrs. 571; 

Cooper, 5 N. J. Eq. 1. Curtis v, Williams, 33 Ala. 570; 8 

5. Copeland v. Shapley, 100 N. E. Blackf. 203; Thompson v. Hucket, 2 

1080, 214 Mass. 132; § 1160. Hill (S. C.) 347; Wilson v. Hoes, 3 

70 1105 



n.* Ti.n.ii-irwu.^ Ik— 



§ 115^ EXEcrroiBS ajsb jldmixxstsatobs. [pjjct n. 

the etn-^T* sIdsI]! i>eT<&te tlie : .^le or administratioiL before or 

si: witli gramr. _ 7 <Hie. This has usuallv been 

^ .' " oDiJTfe : * thoB^ niuiien>Tis 

.„:_.:_;_:_- r nisdiiiiaiiied that if admin- 

isirati'om was : : ._ : .-::- and thai to the ri^t, 

tiifi" latster gTami ne; ■".: auT formal decree of 

— ■ - ■ - -^- ■ n bemg, of course, 

: _ ree to stand effee- 

T7. r ^ :5 t© be stvled :- -_ ' '.ztx and which i^ 

li^i. ".e^lheTr" ■ : ::1 s.:"—? v.: SOTne way 

r-— And if 

' "- onit 3iaa.de tlae latter ffrant ill: '.~. tlh- 

:_ - - "ending. Tr. ' ' 

~ _ _ - - - : -Toked, t - - - - _ 

•. ';.:,-'_ : : ihe j&rs: - .. . ... 



ooKBiiitiT ai the ssmae S&ate. ithe amt 
of r^gMfnl jnnsdietsoB should leqfiiire 
a revoeaiiao oi tlie fanner Idttexs be- 
fose gTMuHiBg letteis. CdUtart t. JO- 
kst, m Jkla. 1S5. 

TniE. Ethts. 575. Under the Uew Jer- 
rr -.-T ^tntnte. vliiew it^tin'f^t off nd]nin]9~ 

z: aune rerolced for inionnalitT 

'ri.!r!iT. nev ktteis mar ba 

the same person, vhete 

.-_- " "- T"Tx»per. urithoiit. a new 

" — ~ 559. BerocatioK 

E135. 57A: - RoL^ r. HiEL 45 

4-, li: Gi. 752. SC Am. SL 

-IT. See i3 X. Y. S. 971. 



~~ 


- - - ^ T. JOttuSDIIB, 7 




:_ i T. QmihtT, 12S 




'Z"]rewr5. 72 lifiitL 


. _ 


: -- im m. 406; 


Hjuii-T- 


i:, S7 X. T. 57^ 


a. F 


■- '"4 575: Cm. Elii- 


315: r 


IJte T. BixminD, 



CHAP. VI.] EEVOCATIOX OF LETTERS, ETC. § 1153 

•bj at least a definitely inconsistent grant ; " and so with an execu- 
tor duly appointed, though there may be a later will not yet offered 
in probate.^ 

§ 1153. Grounds upon which Revocation is Proper. 

Among the grounds upon whicli revocation is proper, may be 
be stated the following : That the letters testamentary or of admin- 
istration were issued without jurisdiction, inasmuch as the party 
was still living, or his last residence and situs of property con- 
ferred the whole jurisdiction elsewhere.'* That tlie will was pro- 
bated through fraud or error, or that some later will or codicil 
should be admitted.^ That general administration was granted, 
whereas the deceased died testate.^ That administration with will 
annexed was granted regardless of the executor's rights.^ That 
administration was granted earlier than the statute permits to one 
of a class not preferred therein; or that it was granted to another 
person than the widow or the next of kin, regardless of the legal 
priorities.^ That administration was granted to a disqualified per- 
son or one not entitled to all.^ That the preferred party's renun- 

2. Franklin v. Franklin, 91 Tenri. 64 Tex. 266. And see Nelson's Estate, 
119, 18 S. W. 61. A mere order for 88 A. 974, 242 Penn. 167. 

probate without an actual grant of 6. Edelen v. Edelen, 10 Md. 52; 

probate or letters testamentary is in- Bulkley v. Redmond, 2 Bradf. (N. Y.) 

sulHcient. Hadjiar v. Pitchey, (1894) 281: 77 Ala. 323; Dalrymple v. Gam- 

A. C. 437. ble; 66 Md. 298, 7 A. 683, 8 A. 468. 

3. 50 N. J. Eq. 295. 7. Thomas v. Knighton, 23 Mo. 318; 

4. Morgan v. Dodge, 44 N. H. 255, Patton's Appeal, 51 Penn. St. 465; 
82 Am. Dec. 213; Napier's Goods, 1 Baldwin v. Buford, 4 Yerg. 16. 
Phillim. 83; Hooper, v. Stewart, 25 8. Mills v. Carter, 8 Blackf. 203; 
Ala. 408, 60 Am. Dec. 527; Earring- Williams' Appeal, 7 Penn. St. 259; 
ton V. Brown, 5 Pick. 519, 522; Burns Thompson v. Hucket, 2 Hill (S. C.) 
V. Van Loan, 29 La. Ann. 560. See 347; Wms. Exrs. 578; Stebbins v. 
Coltart V. Allen, 40 Ala. 155, 88 Am. Lathrop, 4 Pick. 33; Pacheco's Estate, 
Dec. 757. 23 Cal. 476; Rollin v. Whipper, 17 

5. Wms. Exrs. 576; Waters v. S. C. 32; 40 N. J. Eq. 184. 
Stickney, 12 Allen, 4; Hamberlin v. 9. Thomas v. Knighton, 23 Md. 
Terry, 1 Sm. & M. Ch. 589. But see 318, 87 Am. Dec. 571; Harrison v. 

Clark, 87 N. Y. 572; 13 Phila. 296. 

1107 



1153 



EXECUTORS AND ADMINISTKATORS. 



[part II. 



ciation was forged or fraudulently procured.^ That the judge of 
probate who granted the letters was an interested party.^ That the 
party having a right to intervene was not cited in nor cognizant 
of the proceedings.^ That grant upon the estate of a married 
woman was made as though she were single/ In general, that 
there was essential fraud, error, or mistake in the original decree 
and appointment,'' or that the appointment was without authority 
of law.^ If the grant may be considered voidable rather than void, 
revocation becomes eminently proper in such cases. 

It would appear that a county probate court may, of its own 
motion, institute and carry on proceedings to revoke its irregular 
decrees. Yet, as a rale, the private party who, as of right, seeks 
revocation of an appointment, because some preferred party was 
passed over, should be of that class himself, and in a position to 
profit by such revocation." That the letters testamentary or of ad- 



1. Thomas v. Knighton, supra; 
Wilson V. Hoes, 3 Humph. 142. And 
see as to renunciation upon a condi- 
tion not fulfilled, Rinehart v. Rine- 
hart, 27 N. J. Eq. 475. 

2. Coffin V. Cottle, 5 Pick. 480; 
Echols V. Barrett, 6 Ga. 443. It is held 
that an administrator may accept the 
office of probate judge without vacat- 
ing the trust of administrator. Whit- 
worth V. Oliver, 39 Ala. 286. But 
semble he should resign or be removed 
if the trust is within the same 
county jurisdiction, and remains un- 
fulfilled. 

3. Young V. Holloway, (1895) P. 
87. 

4. (1893) P. 16. 

5. Hamberlin v. Terry, 1 Sm. & M. 
CIi. 589; Com. Dig. Administrator B; 
Proctor V. Wanmaker, 1 Barb. Ch. 
302; Broughton v. Bradley, 34 Ala. 
094, 73 Am. Dec. 474. Special causes 
of revocation are suggested by local 
statutes. 4 Dem. 394. 

1108 



Where probate of a will has been 
granted in common form, the execu- 
tor may be afterwards cited to prove 
it in solemn form; and if he cannot 
sufficiently prove it, the probate will 
be revoked. Wms. Exrs. 575; supra, 
§ 1066. But see Floyd v. Herring, 
64 N. C. 409. 

6. McCabe v. Lewis, 76 Mo. 296. 

7. Mecklenburgh v. Bissell, 2 Jones 
(N. C.) L. 387; Edmundson v. Rob- 
erts, 1 How. (Miss.) 217; De Lane's 
Case, 2 Brev. 167. And see Harda- 
way v. Parhara, 27 Miss. 103; Kelly 
V. West, 80 N. Y. 139. A debtor can- 
not thus proceed. 1 Dem. 103. Where 
administration was granted in tlie 
belief that tiiere was no will, revoca- 
tion may be ex mero motii. 77 Ala. 
323. As to a public administrator, 
only the party having a prior right 
to administer the particular estate 
should ask revocation. Boynton v. 
llcartt, 74 S. E. 470, 158 N. C. 488. 



CHAP. VI.] EEVOCATION OF LETTERS, ETC. § 1153 

ministration have irregularly issued without the notice or citation 
of proper parties, as required by law, is a cause for revoking or 
vacating the decree, on the application of those entitled to such 
notice. And the same holds true where a will is admitted to solemn 
probate, in similar disregard of statute formalities.^ It should, 
however, be borne in mind that the right to be cited in does not 
necessarily render an appearance indispensable ; and that in grant- 
ing administration, the failure of one entitled to the trust in 
preference may often be concluded by his waiver or the failure to 
seasonably apply or to qualify.^ A regular appointment should 
not be revoked because parties in priority, once concluded by their 
o^vn acts or laches, seek without special good reason to assert such 
priority afterwards.^ A judge may select one or more from the 
class primarily entitled ; but having exercised his discretion, he 
ought not to revoke without good cause. ^ 

That the occasion for a limited or special administration has 
ceased to exist is good cause for revocation or supersedure.^ The 
failure to qualify by bond in the first instance appears in some 
States to be regarded as cause for revocation ; * but this is only 
for convenience, and the more correct view is, that the condition 
precedent failing, there is no appointment to be revoked, but 
rather a supplementary decree of suitable tenor to be entered.^ 

8. Wms. Exrs. 578; 1 Lev. 305; a competent person will they be re- 
Fitzgib. 303; Kerr v. Kerr, 41 N. Y. voked upon the subsequent claim of 
272; Lawrence's Will, 3 Halst. Ch. a person who was incompetent at the 
215; Waters v. Stickney 12 Allen, time of the grant. Sharpe's Appeal, 
15; W^allace v. W^alker, 37 Ga. 365; 87 Penn. St. 163. And see Ehlen v. 
McCaffrey's Estate, 38 Penn. St. 331; Ehlen, 64 Md. 360. This becomes 
Morgan v. Dodge, 44 N. H. 260, 82 often a matter of statute construc- 
Am. Dec. 213; 45 S. E. 42, 117 Ga. tion. See Dietrich's Succession, 32 
722, 97 Am. St. Rep. 217. La. Ann. 127. 

9. Stoker v. Kendall, Busb. (N. C.) 2. Brubaker's Appeal, 98 Penn. St. 
L. 242; Cold v. Dial, 12 Tex. 100; 21. 

and see supra, § 1112. The juris- 3. Morgan v. Dodge, 44 N. H. 260, 

diction to revoke in such cases held 82 Am. Dec. 213 ; 54 Md. 359. 

discretionary under the code in 4. See Wlngate v. Wooten, 5 Sm. 

Hutchinson v. Priddy, 12 Gratt. 85. & M. 245. 

1. lb. Nor where letters issued to 5. But it might happen that the 

1109 



§ 1154: EXECUTOES AXD ADMIXISTEATOES. [pAET II. 

§ 1154. Removal of Executor or Administrator. 

Under statutes now in force in most of tlie United States, the 
probate court is empowered to make a vacancy in the fiduciary office 
for sundry good causes specified, and to appoint a successor. Thus, 
in Massachusetts, if an executor or administrator, beoomes insane, 
or proves othei-wise incapable of discharging his trust, or for any 
reason " evidently unsuitable " therefor, he may be removed, no- 
tice of such proceedings having been given to him and to all par- 
ties interested.^ Moreover, inasmuch as no one can be appointed 
without first qualifying by furnishing a suitable bond, provision 
is made for the summary removal of an executor or administrator 
v,'ho, upon being ordered by tlie probate court to give a new bond, 
does not seasonably comply with the order.'' And inexcusable neg- 
ligence to file an inventory or settle his accounts in court, after 
having been duly cited, is sometimes specified as proper cause for 
removal.^ 

It is perceived that statutes of this character confer upon the 
court, and most appropriately too, a broad discretion as to the 
various instances which may justify removal. Whenever, from 
any cause, the executor or administrator becomes unable to per- 
form properly the substantial duties of his office, he may be re- 
garded as " evidently unsuitable." ^ Unsuitableness may be in- 

court had imprudently and irregu- ity. Michigan Trust Co. v. Ferry, 
larly issued the letters \vithout wait- 33 S. Ct. 550, 228 U. S. 346; 77 S. E. 
ing for a proper bond, in which case 1064, 139 Ga. 792. 
revocation or vacating the appoint- 7. Mass. Gen. Stats, c. 101, § 17; 
ment would be suitable, new letters ^Morgan v. Dodge. 44 N. H. 261, 
issuing wlien the requisite bond was 82 Am. Dex;. 213; De Flechier's Sue- 
filed. See Bell, C. J., in Morgan v. cession, 1 La. Ann. 20; Davenport v. 
Dodge, 44 N. H. 261, 82 Am. Dec. Irvine, 4 J. J. Marsh. 60; McFadgen 
213. Removal may sometimes reach v. Council, 81 N. C. 195; Bills v. 
sucli a case. See 10 La. Ann. 94; Scott, 49 Tex. 430. 
95 N. C. 353; § 155. 8. See Mass. Gen. Stats, c. 101, 

6. Mass. Gen. Stats, c. 101, § 2; § 2; c. 99, § 26. 
c. 100, § 8. See 72 Cal. 335. The 9. See Thayer v. Homer, 11 Mot. 

probate court may require a settle- 104. Under the Texa.s act of 1R76, a 

mi'nt of the accounts of an executor pro1)ate judge may of his own motion 

or administrator removed for insan- remove one for failing "to obey any 

1110 



CliAP. VI.] 



REVOCATION OF LETTERS, ETC. 



115i 



ferred also from wilful misconduct, or even from obstinate per- 
sistency in a course plainly injurious to the interests of the estate, 
and impairing its value ; and in fact, as a rule, any unfaithful or 
incompetent administration, which will sustain an action on one's 
probate bond, should be sufficient cause for his removal.^ Causes 
of unsuitableness, operating at the time of tlie appointment, but 
disclosed more fully in the course of administration, and upon 



order consistent with this act," etc. 
Wright V. McNatt, 49 Tex. 425. As 
to insanity, see 68 Cal. 281; 4 Dcm. 
81. 

1. As where, the estate being in- 
solvent, the executor or administra- 
tor refuses to take steps for recover- 
ing property fraudulently conveyed, 
when the creditors oiTer to indemnify 
him. Andrews v. Tucker, 7 Pick. 250. 
Or for his fraud and corrupt deal- 
ings. 28 La. Ann. 784. Or where he 
gives an unauthorized and final 
preference in paying or distributing 
(though this, seinble, should t>e a 
case of gross injustice, and not where 
some reasonable favor was bestowed 
at discretion). Foltz v. Prouse, 17 
111. 487. Or where he is ignorant of 
his duties and liable to be imposed 
upon. Emerson v. Bowers, 14 Barb. 
658. Or where he has other interests 
in positive conflict with the official 
trust. 118 P. 1024, 60 Or. 240; 
Thayer v. Homer, 11 Met. 104; Hus- 
sey v. Coffin, 1 Allen, 354; 148 Mass. 
248, 19 N. E. 317. Waste, negli- 
gence and mismanagement are good 
grounds for removal as well as fraud. 
3 Nev. 93. Or habitual drunkenness. 
83 Ind. 501. Or misconduct. 104 
N. Y. 103, 10 N. E. 35. And see 
Peale v. White, 7 La. Ann. 449; 
Reynolds v. Zink, 27 Gratt. 29; 64 
Md. 399, 2 A. 1; 4 Dem. 227. So is 



the unwarranted refusal to prosecute 
claims on behalf of the estate, es- 
pecially if the office was obtained by 
inducing those in interest to believe 
that he would prosecute. Kellborg's 
Appeal, 86 Penn. St. 129. Or for 
squandering the estate. Newcomb v. 
Williams, 9 Met. 525. As to remov- 
ing an executor for " improvidence " 
under the New York code, see Free- 
man V. Kellogg, 4 Redf. (N. Y.) 218. 
And see 40 Hun, 291; Gray v. Gray, 
39 N. J. Eq. 332. Refusal to bring a 
suit which may reasonably be sup- 
posed to bring in assets for creditors 
has been treated as ground for re- 
moving an administrator. 137 Mass. 
547. And as to misconduct with re- 
gard to his bond, see 3 Dem. 542; 63 
Tex. 396. So where one fraudulently 
induces Ms beneficiary to sell out to 
him. 37 N. J. Eq. 535. 

But it is no cause for removal that 
the executor or administrator declines 
to aid heirs or others outside the line 
of his official duty. Richards v. 
Sweetland, 6 Gush. 324. Nor that 
doubtful claims are not prosecuted, 
especially if the estate be small. ]\Iy- 
rick Prob. 97. Nor that he makes no 
returns, when there is nothing to re- 
turn. Harris v. Seals, 29 Ga. 585. 
Nor where his delays are satisfac- 
torily explained. Andrews v, Carr, 2 
R. I. 117. Nor, as ruled, simply that 



1111 



§ 1154 



EXECUTORS AND ADMINISTEATORS. 



[part it. 



experiment, may afford the ground of one's subsequent removal 
from office ; the point here being, not that the unsuitableness 



he cannot read or write (cf. supra, 
§ 1104) ; Gregg v. Wilson, 24 Ind. 
227. And see 1 Dem. 577. Oppor- 
tunity to file accounts and inventory- 
should be given if this be the griev- 
ance alleged; the court ordering him 
to account. 28 La. Ann. 800. Cf. 77 
N. C. 360; 62 S. E. 549, 148 N. C. 
461; 54 So. 127, 127 La. 857; Man- 
ser's Estate, 118 P. 1024, 60 Or. 240. 
As to his bankruptcy, or insolvency, 
see Dwight v. Simon, 4 La. Ann. 490 ; 
Cooper V. Cooper, 5 N. J. Eq. 9 ; 
§§ 1033, 1104; Gibson v. Maxwell, 85 
Ga. 235, 11 S. E. 615. As to trans- 
actions by the executor or adminis- 
trator, not perhaps justifiable, but 
held insufficient cause for his removal, 
see Carpenter v. Gray, 32 N. J. Eq. 
692; 18 S. C. 396; Killam v. Costley, 
52 Ala. 85. Conflicting interest will 
not furnish ground for removal ex- 
cept in a clear and extreme case. 
Handle v. Carter, 62 Ala. 95. For 
failing to sell his testator's land, 
where the time of sale was left to his 
discretion, and where he has tried in 
good faith to sell, an executor should 
not be removed. Haight v. Brisbin, 
96 N. Y. 132. Nor for apprehended 
insolvency where the estate is well 
protected. 14 Phila. 317. Nor upon 
a mere citation to appear and settle 
his accounts. 108 111. 403. An order 
requiring another bond does not oust 
a court of its jurisdiction to remove. 
38 N. J. Eq. 490. 

'I'lie causes of removal are discussod 
in many of the latest cases, turning 
largely upon the statute construction 
of such words as " unauital)le," etc. 
And see supra, §§ 1104-1109. See 

11 



e. g. (1) removal justified. 31 So. 
491, 132 Ala. 233; 66 P. 175 (Cal.) ; 
74 N. Y. S. 33; Mark v. Coats, 62 
P. 488, 37 Or. 609; 81 N. Y. S. 791; 
Collins V. Carr, 38 S. E. 346, 112 Ga. 
868; 105 N. Y. S. 1141 ("graft"); 
Frothingham v. Petty, 64 N. E. 270, 
197 111. 418; 85 N. E. 774, 171 Ind. 
453; 71 A. 689, 75 N. J. Eq. 219; 79 
A. 1119, 77 N. J. Eq. 271. (2) Re- 
moval not justified. Claney v. McEl- 
roy, 70 P. 1095, 30 \Yash. 567; 
Healy's Estate, 70 P. 455, 137 Cal. 
474; 46 So. 784, 121 La. 721: Odlin 
V. Nichols, 69 A. 644, 81 Vt. 219: 41 
So. 206, 116 La. 912; 75 N. Y. S. 
1058; 104 N. Y. S. 29; 105 N. Y. S. 
303 (material question of fact not 
investigated) ; 114 P. 1012 (excus- 
able delay in giving notice of ap- 
pointment) ; Wittner's Estate, 82 A. 
1023, 233 Penn. 599 (mere deposit of 
trust funds with one's own). 

The sound discretion of the probate 
court will be favored on appeal. 
Bell's Estate, 67 P. 123, 135 Cal. 194. 
See Kuntz's Estate, 79 A. 755, 230- 
Penn. 557. And courts will reluct- 
antly remove an executor, if there is 
no weighty cause therefor, and no 
prejudice to the estate appears. 
Chadbourne's Estate, 114 P. 1012, 14 
Cal. App. 481. And see Bates v. 
Rovoll, 82 A. 986, 116 Md. 691 (mere 
omissions in an inventory) ; 133 N. 
Y. S. 1105. 

Concerning " jxTsons interested " 
wlio may seek removal in such cases, 
sec Carpigiani v. Hall, 55 So. 348, 
172 Ala. 287 (consular agent) ; Ken- 
nedy's Estate, 128 N. Y. S. 626; 



12 



CHAP. 



VI.] 



EEVOCATION OF LETTERS, ETC. 



§ 1154 



operated when the appointment was made, but that it operates at 
the time of the complaint." 

Kon-residence or the permanent absence of an executor or ad- 
ministrator is made a specific cause of removal by our local stat- 
utes under various circumstances ; as where such absent fiduciary 
neglects, on citation, to render his accounts and settle the estate ; 
or where one moves out of the State without having settled his 
accounts, or without appointing an attorney, or, as held in some 
States, if he be a non-resident at all.^ On the marriage of a sole 
executrix or administratrix, her authority as such ceases ; and our 
statutes provide for the grant of administration de bonis non in 
such a case.* But removal from the jurisdiction does not ipso facto 
operate a revocation of letters; for due proceedings for making a 
vacancy should be instituted.^ 



Sterling Re, 124 N. Y. S. 894 (par- 
ticipants in a fraud). 

2. Drake v. Green, 10 Allen, 124. 
Cf. Lehr v. Turball, 3 Miss. 905. 

3. Mass. Gen. Stats, c. 101, § 2; 
Harris v. Dillard, 31 Ala. 191; local 
codes. One temporarily absent may 
often delegate his trust by power of 
attorney ; yet temporary absence to 
the detriment of the estate might fur- 
nish cause for removal. Mere non- 
residence or absence is not necessar- 
ily a disqualification per se, or cause 
for removal, unless the statute so 
provides. Walker v. Torrance, 12 Ga. 
€04; McDonogh's Succession, 7 La. 
Ann. 472; 4 Dem. 492; Wiley v. 
Brainerd, 11 Vt, 107; Cutler v. 
Howard, 9 Wis. 309; 81 P. 1061, 39 
Wash. 520. And though absence from 
the State may or may not be cause 
for removal, the administration is 
not meantime vacant, and a new ap- 
pointment cannot be made until the 
vacancy is made. Hooper v. Scar- 
borough, 57 Ala. 510; McCreary v. 



Taylor, 38 Ark. 393. See Berry v. 
Bellows, 30 Ark. 198. As to sus- 
pension, under local statute, see 122 
Cal. 379. 

4. Mass. Gen. Stats, c. 101, §§ 1, 
4; Whitaker v. Wright, 35 Ark. 511; 
Duhme v. Young, 3 Bush, 343 ; Kava- 
naugh V. Thompson, 16 Ala. 817; 
Teschemacher v. Thompson, 18 Cal. 
211. But as to the effect at common 
law of joining her husband in the 
trust, see Schoul. Hus. & Wife, § 163. 
A formal revocation of authority or 
removal from office is in some States 
required before the wife ceases to be 
the de facto and de jure incumbent of 
the office. Frye v. Kimball, 16 Mo. 
9; Yates v. Clark, 56 Miss. 212; 70 
Cal. 343, 11 P. 651; 94 Cal. 357, 9 
P. 774; 33 So. 827, 135 Ala. 322. 

5. Railroad Co. v. McWherter, 59 
Kan. 345, 53 P. 135; McKniglit Re, 
71 N. E. 1134, 179 N. Y. 522; 51 A. 
1050, 24 R. I. 35. And see § 1160. 

Where one has been summarily re- 
moved from office without a petition 



1113 



§ 1155 EXECUTOES AXD ADillXISTEATOKS. [PAKT II. 

§ 1155. Procedure in Case of Appeal, Revocation of Appoint- 
ment or Removal from Office. 
Where one has been regularly appointed, he is not bound to pro- 
pound his interest in such proceedings until the party calling it in 
question has established liis own position.^ And the first duty of 
the appellant from a decree in probate is to show affirmatively his 
right to appeal; for, until this is done, or the right admitted by 
the opposite side, the merit-s of the appeal will not be entertained.^ 
An executor or administrator is entitled to notice and a reasonable 
opportunity to appear and defend himself in all cases of complaint 
before he can be properly removed or his letters revoked ; ^ and if 
his failure to file a bond or increase his security be the cause of re- 
moval, it should appear that he was allowed fair time to comply 
with the order of the court and failed to do so.^ At the hearing 
for his removal, as well as for the revocation of a probate decree, 
both petitioner and respondent may offer evidence pertinent to 
the issue; and either party may appeal from the decree of the court 
making or refusing to make the removal.-^ 

or hearing, his remedy lies in certior- for the revocation of letters or pro- 

ari for review, since appeal is inef- bate, or for the removal of an exec- 

fective. Haddock v. District Court, utor, administrator, or other probate 

141 X. W. 925. functionary, numerous late decisions 

6. Phillim. 155, 166. are found. The local statute usually 

7. Pettin<,'ill v. Pettingill, 60 Me. enters fully into the details of suoli 
419. Statutes concerning removal proceedings. Removal cannot be de- 
sometimes require the petitioner to manded by way of opposition, but if 
show an interest in like manner. at all it must be by direct procced- 
Vail V. Givan, 55 Ind. 59. ings with petition and citation. 

8. Murray v. Oliver, 3 B. Mon. 1. P.oyd's Succession, 12 La. Ann. 611. 
But the executor or administrator l?ut as to allegations in the petition, 
may waive notice by his voluntary see Neighbors v. Hamlin, 78 N. C. 42. 
appearance. Ferris v. Ferris, 89 111. Sec First Nat. Bank v. Towle, 137 N. 
452. See Kelly /ic, 137 N. Y. S. 1099 ; W. 291, 118 Minn. 514 (mistrial on 
168 111. App. 04^1. ai)peal). 

9. Wingate v. Wooten, 5 Sim. & M. Imjjliod revocation of one's au- 
245. thority by such judicial acts as a new 

1. See Smith (Mass.) Prob. Pract. ai>i)ointment is in some States per- 
99; Bailey v. Scott, 13 Wis. 618. mitted, even though the reason for 
Concerning the method of applying revocation or removal arose subse- 

mi 



CHAP. VI.] EEVOCATION OF LETTERS, ETC. § 1156 

An executor or administrator removed from office should settle 
his accounts in court and turn over the estate to his successor with- 
out delay; otherwise, he and his sureties may be pursued.^ Dis- 
charge from office relieves from further responsibility, but not 
from the consequences of malfeasance and neglect while in office. 
One discharged for pressing cause, such as the insolvency of him- 
self and his sureties (which, properly speaking, constitutes ground 
for removal), is not relieved from the obligation to account; while 
the interests of an estate may, of course, require one to be thus dis- 
charged, or, in general, removed, before any accounting at all.^ 

§ 1156. Re^gnation of Executor or Administrator. 

Removal without cause shown, or by way of favor to the incum- 
bent, would be improper. For such cases, and as a gentler means 
of vacating an office unsuitably filled, our statutes further provide 
the opportunity for a fiduciary officer to resign. Thus, in Massa- 
chusetts, it is enacted that, upon the request of an executor or ad- 
ministrator, the probate court may, in its discretion, allow him to 
resign his trust ; but the party applying for leave to resign should 
present his administration account to the court with his petition; 
nor will his request be allowed until his accounts are settled, after 
such notice to the parties interested as circumstances may require.* 

quently to the appointment. Berry v. trust. Turner v. Wilkins, 56 Ala. 

Bellows, 30 Ark. 19S: Bailey v. Scott, 173. 

13 Wis. 618. But the more correct 2. See Aldridge v.' McClelland, 34 

practice discountenances implied re- N. J. Eq. 237; West v. Waddill, 33 

vocations. See supra. § 1152. As to Ark. 575; Schlecht's Estate, 2 Brews, 

superseding a. general administrator (Pa.) 397: Hood Re, 104 N. Y. 103, 

by the simple probate of a will, and 10 N. E. 35. The court may settle 

the appointment of execxitor or ad- the accounts of a removed fiduciary, 

ministrator with the will annexed at discretion, without appointing a 

without a removal, etc., see Mc- successor. 68 Hun, (IST. Y.) 114. 

Cauley v. Harvey, 49 Cal. 497. An 3. Union Bank v. Poulson, 31 X. J. 

incumbent administrator's accept- Eq. 239. See 64 Ala. 545. 

ance of a grant of administration de 4. INIass. Gen. Stats, c. 101, § 5 ; 

bonis non jointly with another, held Thayer v. Homer, 11 Met. 144. See 

equivalent to resigning the former also local codes; Haynea v. Meek, 

1115 



§ 1157 EXECUTOES AKD ADMI^SISTKATOKS. [PAET II. 

An executor or administrator \y1io lias already qnalificd has, how- 
ever, been permitted to terminate his trnst before he has taken 
actual possession of the assets or attempted to exercise any control 
whatever over the estate ; in which case, the acceptance of his res- 
ignation may be followed, as usual, by the appointment of a suc- 
cessor." 

The correct settlement of one's accounts, and transfer of the bal- 
iince as the court may direct, is the usual condition upon which 
resignation is permitted. And where there is a personal trust re- 
posed in an excutor under the will, he should not be discharged 
until he has performed that duty ; ® nor, in general, ought one's res- 
ignation to be accepted regardless of the detriment which the estate 
may suffer in consequence.^ 

§ 1157. Jurisdiction, in general, as to Revocation, Removal, and 
Accepting a Resignation. 
Revocation of letters or a probate appears to be a different thing* 
from the creation of a vacancy in the office by death, removal, or 
lesignation, though the books do not keep this distinction clear. As 
a general rule, where the probate court has once regularly con- 
ferred the appointment, it cannot remove the incumbent after- 
wards except for causes defined by statute.* Xor, if precedents 

10 Cal. 110, 70 Am. Dec. 703: Carter Van Wyck. Mattor of, 1 Barb. Ch. 

V. Anderson, 4 Ga. 516; Coleman v. 5G5. 

Raynor, 3 Cold. (Tenn.) 25; Morgan 7. 4 Dem. 102. See 14 Atl. 808. 

V. Dodge, 44 N. H. 258, 82 Am. Dec. 8. Muirliead v. Muirhcad, 6 Sm. & 

213. M. 451. Citation or notice of pro- 

5. Comstock v. Crawford, 3 Wall. ceedings to interested parties ought 
396, 18 L. Ed. 34. In English prac- to be preliminary to discliarging one 
tice an executor is permitted to re- who wishes to resign. 50 Mich. 22, 
nounce probate even after he has 14 N. W. 684; 67 Ga. 227; 37 N. J. 
taken the oath of office, if he had not Eq. 521. And only for cause and after 
already taken possession or control. notice and opportunity to be heard 
3 Hagg. 216; Wms. Exrs. 276, 281. should one be removed. Levering v. 
And see Mitchell v. Adams, 1 Ired. Levering, 64 Md. 399, 2 A. 1. But 
298. a decree of discharge regular and 

6. Lott V. Meacham, 4 Fla. 144 ; legal on its face and never challcngeii 

lllG 



CHAP. VI,] KEVOCATION OF LETTERS, ETC. § 1157 

maj be trusted, can an executor or administrator, who has once 
fully accepted and entered upon his trust, resign it unless the 
statute permits him to; for the English rule always discounte- 
nanced such a practice, as to these and similar fiduciaries.® Other 
courts, therefore, having equity powers, must incline to exercise 
them in restraint of the probate appointment, where the probate 
courts have no plenary jurisdiction to remove or accept the resig- 
nation of an executor or administrator; appointing, it may be, a 
receiver of their own, and temporarily restraining the authority of 
an executor, in an emergency.^ So, too, English practice appears 
to enlarge the right of revocation, in default of the power to re- 
move; for, as the books say, administration may be revoked if a 
next of kin to whom it has been committed becomes non compos 
or otherwise incapable, and perhaps, too, if he goes beyond sea." 
But in our later American practice the court of original probate 
jurisdiction is the most suitable tribunal in the first instance for 
revoking such appointments, for removing or accepting resigna- 
tions, and, in general, for regulating the succession in the office of 

is not to be set aside after twenty 2. Bac. Abr. Exrs. etc. E; Wms. 

years merely because some interested Exrs. 579. And yet revocation, so 

party was a minor when the decree called, appears to involve in probate 

was rendered. 102 Penn. St. 258. And the idea of vacating that which was 

see 63 Cal. 473. originally void or voidable and 

9. 1 Ventr. 335; Wms. Exrs. 281; clogged at the outset. Thus, the ap- 

Haigood v. Wells, 1 Hill (S. C.) Ch. pointment of one already non com- 

59; Sears v. Dillingham, 12 Mass. pos, like the probate of a will which 

358; Sitzman v. Pacquette, 13 Wis. was not really the last one, is based 

291; Washington v. Blunt, 8 Ired. upon some fundamental error; the de- 

Eq. 253. As to guardians, see Schoul. cree never should have been entered. 

Dom. Rel. § 315. But if an appointment be regularly 

1. Long V. Wortham, 4 Tex. 381; made, while one is sane and com- 

Leddell v. Starr, 4 C. E. Green, 159. petent, his subsequent incompetency 

See Cooper v. Cooper, 5 N. J. Eq. 9; does not invalidate the original de- 

Wilkins v. Harris, 1 Wms. (N. C.) cree more than his subsequent mis- 

Eq. 41. conduct; the decree was good, but the 

As to restraining an executor who case calls later for removal from oi- 

has become bankrupt since his ap- fice. See § 1154. 
pointment, see Bower v. Phillips, 
(1897) 1 Ch. 174. 

1117 



§ 1160 EXECUTOES AND ADMINISTKATOES. [PAET II. 

executor or administrator j and to such courts tlie statute authority 
chiefly relates.^ 

§ 1158. Natural Termination of an Executor's or Administrators 
Authority. 

The death of an executor or administrator, leaving his trust 
unperformed, gives occasion, of course, to the appointment of a 
successor; and death in any event terminates his own functions; 
his estate continuing liable for any maladministration on his part 
while in ofiice. It is not usual to discharge such an officer for- 
mally, even though his trust be fully performed; but on the ap- 
proval of his final account, no appeal being taken, and the final 
distribution of the estate, it may at all events be presumed that 
his functions have reached their natural end.** 

§ 1159. Delegation of Authority does not relieve; but Superse- 
dure does. 

An executor or administrator cannot, by delegation of his own 
authority, avoid any of the liabilities imposed on him by law.^ But 
it is otherwise, where a court having jurisdiction supersedes his 
authority, and vests the new appointee with his functions. 

§ 1160. The Effect of Probate Decrees; Collateral Attack, etc. 
Concerning the legal effect of the revocation of probate or letters 

3. See Waters v. Sticknoy, 12 Al- also enjoin the executor from acting 

len, 15; Lredbetter v. Lofton. 1 Murph. where he is likely to abuse his author- 

(N. C.) 224; Hosack v. Ropers, 11 ity. Leddell v. Starr, 4 C. E. Green, 

Paige, 603; Chew v. Chew, 3 Grant 159. 

(Pa.) 289; Wilson v. Frazier, 2 4. See post as to distribution and 
Humph. 30; Lunsford v. Lunsford, accounts. Under the Louisiana code 
122 Ala. 242. In New Jersey, where of 1808, the office of testamentary 
chancery courts exercise similar executor expired at the end of the 
powers with those of England, it is year, unless the will expressed other- 
iield that the court of probate alone wise or the term of office was pro- 
can remove an executor; but that longed by the judge. Deranco v. 
chancery may intervene, as to tlie Montgomery, 13 La. Ann. 513. 
functions of trustee, where these are 5. Driver v. Riddle, 8 Port. (Ala.) 
exercised also by the executor, and 343; Bird v. Jones, 5 La. Ann. 645. 

1118 



CHAP, 



:i.] 



REVOCATION OF LETTEES, ETC. 



§ IIGO 



on the intennediate acts of the former executor or administrator, 
a distinction is made in the books between grants void and void- 
able. A grant utterly void and without jurisdiction, as in the case 
of administration upon the estate of a living person, gives no shel- 
ter to the acts of the appointee ; and revocation in such case appears 
to be only for the sake of correcting the records and preventing fur- 
ther miscbief.® The grant of administration on the estate of a 
decedent, wbile a will was in existence, being for a time concealed, 
is treated as void with similar consequences ; ^ and so, too, is it, 
■we may presume, where the grant was under a certain will, and 
a later will came to light afterwards, conferring the executorship 
elsewhere, and making a different disposition of the estate.^ The 
sale or collection of one's property under such circumstances, by 
the wrongful representative, may (subject to the usual exceptions 
ir- favor of bona fide third parties, and negotiable instruments) be 
avoided by the living person who was supposed dead, or, as the 
case may be, by the rightful representative of his estate duly ap- 



6. In Jochumsen v. Suffolk Sav- 
ings Bank, 3 Allen, 87, the living de- 
positor was allowed to sue for his 
deposit, notwithstanding an adminis- 
tration had been granted on due pre- 
sumption of his death, and payment 
was made to such administrator. And 
see Burns v. Van Loan, 29 La. Ann. 
560; Moore v. Smith, 11 Rich. 569, 
73 Am. Dec. 122; Devlin v. Common- 
wealth, 101 Penn. St. 273, 47 Am. 
Rep. 710; Scott v. McNeal, 154 U. S. 
34, 38 L. Ed. 896. But a decree of 
distribution may sometimes protect 
a bona fide representative in such 
cases. 84 Md. 557. 

7. See English case of Graysbrook 
V. Fox, Plowd. 276; Wms. Exrs. 586, 
587. Not necessarily, however, 
where the will was foreign, and local 
jurisdiction arose because of local 



assets. Shephard v. Rhodes, 60 111. 
301. See next page. 

8. Woolley v. Clark, 5 B. & Aid. 
744. A similar fatal consequence has 
been held to attend the grant of 
letters by an interested judge. Gay 
V. Minot, 3 Cush. 352. Sed qu, un- 
less a statute is explicit on this point. 
See Aldrich, Appellant, 110 Mass. 
193; Moses v. Julian, 45 N. H. 52, 
84 Am. Dec. 114. Where a will ad- 
mitted to probate is declared void on 
appeal, letters under the will cannot 
issue properly. Smith v. Stock- 
bridge, 39 Md. 640; 3 Ired. 557. And 
see Elgutter v. Missouri R., 53 Neb. 
748, 74 N. W. 255; 66 N. E. 119, 173 
N. Y. 435 (collusive bringing of as- 
sets for a local grant) ; 61 A. 573, 
212 Penn. 57, 57 N. E. 83, 162 N. Y. 
513; Beach's Appeal, 55 A. 596, 76 
Conn. 118. 



1119 



§ 11 GO EXECUTOES AXD ADMIXISTEATOES. [PAET II. 

pointed ; trover or detinue for the property may be maintained, or 
assumpsit for the money produced (the tort being waived), as so 
much money received to the use of the rightful party.' Nor is it 
certain how far the defendant thus sued shall be permitted to re- 
coup, by way of offset, payments made in due course of adminis- 
tration, or for debts which were lawfully due from the supposed 
•decedent or his estate; though, doubtless, such recoupment is to 
some extent proper/ 

Where, however, the grant was voidable only, as in case letters 
of administration are issued by a competent court to a party not 
entitled to priority, and without citation of those so entitled or 
their renunciation, all the lawful and usual acts of the appointee 
performed meanwhile, and not inconsistent with his grant, shall 
stand good until the authority is revoked.^ If, after administra- 
tion has been granted, a will is produced for probate, acts per- 
formed under the grant in good faith and beneficially are some- 
times held valid.^ 

It has been laid down, and quite broadly, that a payment honO' 
fide made to any de facto executor or administrator, appointed by 
a court of competent jurisdiction, will discharge the debtor.* This 
rule has been applied to the case of a probate which was afterwards 
declared null, because of a forged will ; and upon the sensible rea- 

9. Laminfi v. Dorrcll, 2 Ld. Eaym. A grant of letters to one who has 

1216; Woolley v. Clark, 5 B. & Aid. not qualified by giving the statute 

744; Dickinson v. Xaul, 4 B. & Ad. bond is void. Bradley v. Common- 

638; Wms. Exrs. 587; Ellis v. Ellis, wealth, 31 Penn. St. 522. In such 

(1905) 1 Ch. 613; Mowry v. Latham, case the appointment perhaps was 

20 R. I. 786. never completed, properly speaking. 

1. In Graysbrook v. Fox, Plowd. i^upra, § 1153. 

276, it was ruled tliat if the sale had 2. Wms. Exrs. 588, and cases cited; 

been made to "discharge funeral ex- Kelly v. West, 80 N. Y. 139; Pick v. 

penses or debts which the executor or Strong, 26 Minn. 303. 

administrator was compelled to pay, 3. Kittredge v. Folsom, 8 N. II. 

the sale would have been indefeasible 98; Kane v. Paul, 14 Pet. 33, 10 L. 

forever. But cf. Woolley v. Clark, 5 Ed. 341; Bigelow v. Bigelow, 4 Ohio 

B. & Aid. 744; Wms. Exrs. 271, 588. 138, 19 Am. Dec. 591. 

And see post as to executors de son 4. Wms. Exrs. 590, and cases cited. 
tori, c. 8. 

1120 



CHAP. VI.] EEVOCATION OF LETTERS, ETC. § 1160 

soning that the debtor cannot controvert the title of the executor, 
who presses him, so long as the probate remains unrepealed, nor 
possess himself of the means of procuring such repeal.^ Statutes 
now in force confirm and enlarge the validity of payments made 
hona fide to any executor or administrator, under a probate or ad- 
ministration afterwards revoked, if made before revocation ; declar- 
ing such payment to be a legal discharge to the person making it.^ 

English and American statutes in modem times aim to correct 
the legal mischief of overturning act-s performed in good faith and 
pursuant to a probate or letters of appointment afterwards set aside 
for cause. Apart from any right to recoup for funeral and other 
lawful debts of the deceased, it is expressly provided by the Eng- 
lish Act 20 & 21 Vict. c. 77, that the executor or administrator who 
shall have acted under a revoked probate or administration may 
retain and reimburse himself in respect of any payments made by 
him which the person to whom probate or letters of administration 
are afterwards granted might have lawfully made. American leg- 
islation is also found providing for the relief of the parties simi- 
larly affected, in cases where the appointment of an executor or ad- 
ministrator shall be vacated or declared void afterwards.^ And the 
rule to be favored at the present day is, that all acts done in the due 
and legal course of administration are valid and binding on all 
interested, even though the letters issued by the court be after- 
v/ards revoked or the incumbent discharged from his trust.^ And 

5. Allen v. Dundas, 3 T. R. 125 ; administrator whose office has expired, 
Best, J. in Woolley v. Clark, 5 B. & see Rogers v. Hoberlein, 11 Cal. 120: 
Aid. 746. Beale v. Hall, 22 Ga. 431. 

6. Stat 20 & 21 Vict. c. 77 ; Wms. As between revocation of an ap- 
Exrs. 591, 592; Hood v. Barrington, pointment and the creation of a va- 
L. R. 6 Eq. 222. cancy by death, removal, or reaigna- 

7. Wms. Exrs. 592 ; McFeely v. tion, it would appear on principle 
Scott, 128 Mass. 16. And see 3 Wash. that, in the former instance, further 
C. C. 122. proceedings are de novo, giving rise 

8. Foster v. Brown, 1 Bailey (S. to an original appointment by new 
C.) 221, 19 Am. Dec. 672; Brown v, letters; while, in the latter, there 
Brown, 7 Oreg. 285 ; Shephard v. arises successorship, and the proper 
Rhodes, 60 111. 301. As to a public appointment for the vacancy should 

1121 



1160 



EXECUTORS AXD ADMIXISTRATORS. 



[part II. 



although one's appointment as executor or adminisrator may have 
been erroneous, or voidable, the safer doctrine is, that the letters 
and grant issued from the probate court shall not be attacked col- 
lat«rallj where the court had jurisdiction at all, and least of all by 
common-law courts ; ^ and that the acts of the representative de 
facto shall bind the estate and innocent third parties. Statutes ex- 
tend this principle to cases where there was no jurisdiction, pro- 
vided no want of jurisdiction appear of record ; ^ thus, in fine, dis- 
couraging collateral issues of fact upon a grant of authority which 
appears regular on its face, and making such decrees voidable, in 
effect, until vacated, and not utterly void, if at all events there was 
a dead person's estate. And a similar rule applies to tlie probate 
decree which discharges an appointee or revokes his appointment.^ 



be by letters de bonis non. See Cal- 
lahan V. Smith, T. U. P. Charlt. (Ga.) 
149. 

9. Peters v. Peters, 8 Cash. 542; 
Wms. Exrs. 549; 2 Vern. 76; 3 T. R. 
125; Boody v, Emerson, 17 N. H. 
577; Clark v. Pishon, 31 Me. 503; 
Naylor v. Moffatt, 20 Mo. 126; 
Fisher v. Bassett, 9 Leigh, 119, 33 
Am. Dec. 227; Morgan v. Locke, 2S 
La. Ann. 806; Taylor v. Hosick, 13 
Kan. 518; Hart v. Bostwick, 14 Fla. 
162; Burnett v. Xesmith, 62 Ala. 
261; Pick v. Strong, 26 Minn. 303; 
Wright V. Wallbaum, 39 111. 554; 59 
Kan. 345, 53 P. 135; Bradley v. Mis- 
souri R., 51 Neb. 653, 66 Am. St. Rep. 
473, 71 N. W. 282; Strong's Estate, 
119 Cal. 663, 51 P. 1078; 51 Neb. 
596. 71 N. W. 283. And especially 
not Ijy a person not " interested " in 
legal contemplation. Taylor v. Ho- 
sick, 13 Kan. 518. Nor by a debtor 
sued. 107 Iowa, 384. In collateral 
proceedings a probate court may dis- 
incline to treat the letters issued as 
void on merely defective recitals. 146 
111. 40. 



1. McFeely v. Scott, 128 Mass. 16; 
Record v. Howard, 58 Me. 225 ; 30 So. 
510, 127 Ala. 411; Salomon v. People, 
61 N. E. 83. 191 111. 296: 38 S. E. 
634, 60 S. C. 401, 54 L. R, A. 660; 
49 S. E. 775, 121 Ga. 798: 110 S. W. 
594, 80 Ark. 186 (appointment reg- 
ular on face) ; 87 P. 841, 44 Wash. 
513: 110 N. W. 198, 130 Wis. 419; 
65 N. E. 02, 182 Mass. 205; 70 P. 
369, 65 Kan. 484, 93 Am. St. Rep. 
299; Dallinger v. Morse, 94 N. E. 
701, 208 Mass. 501. The presump- 
tion here is favorable to regularity. 
McKenna v. Cosgrove, 83 P. 240, 41 
Wash. 332; Raughtigan v. Norwich 
Co., 85 A. 517, 86 Conn. 281. And 
see Gorham v. Montfort, 72 S. E. 893, 
137 Ga. 134. Lapse of time favors. 
Chandler v. Munkwitz Co., 134 N. W. 
148, 148 Wis. 5 (60 years). And see 
137 N. W, 502; 79 S. E. 791, 96 S. C. 
34. 

2. Simpson v. Cook, 24 Minn. 180; 
Bean v. Chapman, 62 Ala. 58; Froth- 
ingliam v. Petty, 64 N. E. 270, 197 
111. 418. Sec Jenks v. Allen, 130 N. 
W. 433, 151 Wis. 625 (appointment 



1122 



CHAP. VI.] KEVOCATION OF LETTERS, ETC. § 1160a 

§ 1160a. The Same Subject. 

But the grant of letters by a local probate court, having no jurds- 
diction of the person or subject-matter, will not bind the competent 
probate tribunal ; which latter tribunal may proceed to grant let- 
ters, though the void grant by the former tribunal be not revoked. 
So, administration granted upon the estate of a person actually 
alive, no matt^pr upon what bona fide supposition of his death, may 
be treated by him as utterly void, and the disposition of his prop- 
erty overturned.* And doubtless the appointment of an adminis- 
trator may be attacked collaterally by a party sued where the rec- 
ord on its face discloses an entire want of jurisdiction by the 
county court to act in the premises.^ 

The conclusiveness of probate decrees is deducible from such ex- 
elusive jurisdiction as may be conferred upon probate courts to 
decide on the validity of wills, to grant administration, and to su- 
pervise the settlement of the estates of deceased persons. And ac- 
cording as the local statute may extend or limit this special juris- 
diction, so must the effect of such decrees be detennined. Probate 
courts are usually made courts of record, and treated as courts of 
general jurisdiction on all subjects pertaining to their peculiar 
functions.^ 

Avhich minors interested might have 90 Am. Dec. 122: Stearns v. ^Yright, 

avoided held binding on the other 51 N. H. 609, and cases cited; Veach 

parties) ; White v. Hill, 58 So. 444, v. Rice, 131 U. S. 293, 33 L. Ed. 163. 

76 Ala. 480 (adjudication as to rela- That the administrator appointed 

tionship conclusive) ; Doran v. Ken- was not a citizen is not good ground 

nedy, 141 N. W. 85, 122 Minn. 1; of collateral attack. 67 Ga. 103. Nor 

Kellan v. Kellan, 101 N. E. 614, 258 generally, if the judge has acted 

111. 256; Koloff v. Chicago R., 129 P. within his jurisdiction as to subject- 

398, 71 Wash. 543. matter, can the validity of the letters 

3. Barker, Ex parte, 2 Leigh, 719 ; be thus impeached. And see 12 Or. 
King's Estate, 105 Iowa, 320, 75 N. 108, 6 P. 456. The Michigan rule is 
W. 187. that whatever may be the immunity 

4. Scott V. McNeal, 154 U. S. 34, of letters of administration against 
38 L. Ed. 896, and cases cited; § attacks from strangers, parties in- 
1092. terested may always object to the 

5. Elgutter v. Missouri R., 53 Neb. want of jurisdiction in the court 
748, 74 N. W. 255 ; § 1160. which issued them. And no one can 

6. Waters v. Stickney, 12 Allen, 3, intervene in the affairs of an estate 

1123 



§ llGOa 



EXECUTORS AXD ADMINISTRATORS, 



[part II. 



Formerly, in the English ecclesiastical practice, probate did not 
authenticate a will of real estate ; ^ but in England and most Amer- 
ican States, at the present day, the statute jurisdiction of courts 
of probate extends to wills of both real and personal proj>erty with- 
out distinction.^ The decision of such a court is final, unless ap- 
pealed from in plenary proceedings relating to a will's validity.^ 
The probate or grant is conclusive upon all persons interested, 
whether infants, persons insane, or absentees ; provided citation 
was duly granted in the premises.^ But the probate of a will, 
while stamping it as authentic and originally valid, does not in- 
terpret the document.^ Probate and letters furnish no proof of 
death for the suits of strangers;^ though to dispute thus an ex- 
ecutor's or administrator's authority, in his own suit, should re- 
quire appropriate pleading, an admission of his authority being 
admission of the death essential to such authority, so as to dis- 
pense with other proof.* Xor does the legal conclusiveness attach- 



unless he is either personally inter- 
ested or else authorized to do so by 
law. Breen v. Pangborn, 51 Midi. 
29, 16 N. W. 188. 

One sued by an administrator is 
not authorized to petition the probate 
court to revoke the plaintiff's letters. 
Missouri Pacific R. v. Jay, 53 Xeb. 
747, 74 N. W. 259. Nor can he set up 
collaterally that such administrator 
was a minor, hence improperly ap- 
pointed. Davis V. Miller, 109 Ala. 
589, 19 So. 699; 107 Iowa 384, 77 N. 
W. 1058; Railway Co. v. McWherter, 

59 Kan. 345, 53 P. 135. 

7. 2 Camp. 389; Carroll v. Carroll, 

60 N. Y. 125. 

8. See English Court of Probate 
Act, 1857, 20 & 21 Vict. c. 77; supra, 
§ 1008; Parker v. Parker, 11 Cuah. 
525. 

9. 86 Md. 623, 39 A. 423 (caveat 
proceedings). 



1. Wms. Exrs. 565. 

2. Holman v. Perry, 4 .Met. 492, 
497; Fallon v. Chidester, 46 Iowa, 
588, 26 Am. Rep. 164. The probate 
ascertains nothing but the original 
validity of the will as such, and that 
tlie instrument, in fact, it what it 
purports on its face to be. Fuller, 
Ex porte, 2 Story, 332. 

3. The death of the deceased is a 
fact not usually passed carefully upon 
in granting letters, but is rather as- 
sumed by the probate court upon very 
slight prima facie evidence or the pe- 
titioner's allegation. Hence, it is 
held, in suits between strangers, as 
wliere tlie widow sues upon an insur- 
ance policy on the life of lier hus- 
band, that letters of administration 
issued upon his estate furnish no 
proof of his death. Mutual Benefit 
Lifi' Ins. Co. V. Tisdalo, 91 U. S. 238; 
§ inoia and cases citexi. 

4. Lh^vd V. Finlnyson, 2 Esp. 564; 

124: 



CHAP. VI.] EEVOCATION OF LETTERS. ETC. § llGl 

ing to probate decrees prevent proof, in a collateral suit, that the 
pretended decree in question was a forgery, or that the alleged ap- 
pointment has been revoked; for this is to affirm what is of genuine 
2)robato record.^ 

§ 1160b. EfFect of Misnomer of Decedent. 

If the name of the decedent, as stated in the grant of letters and 
petition, be positively incorrect, such misnomer becomes fatal to 
the appointment and the common-law courts may ignore the ap- 
pointment accordingly.^ 

§ 1161. Effect of an Appeal from Decree. 

The usual effect of an appeal from probate, or from one's ap- 
pointment as executor or administrator, is to suspend the authority 
conferred by such appointment; and pending such appeal, and 
until termination of the controversy, it is a special administrator, 
if any appointee, who should protect the estate.^ An appeal by the 
executor or administrator from a decree revoking his authority, 

Newman v. Jenkins, 10 Pick. 515. The specify the estate, see 7 S. W. 789, 70 

fact that one is executor or adminis- Tex. 538. 

trator may be traversed in pleading. 6. Anderson v. Qualey, 103 N. E. 

Wms. Exrs. 560, 561; Plowd. 283. 90, 216 Mass. 106; 62 So. 176. See 

5. 1 Stra. 671; Wms. Exrs. 563. supra, §§ 1083, 1120a. But the peti- 

Tlie judgment of a probate court tion and grant might state names in 

may be impeached for fraud, in a the alternative, e. g., "A., otherwise 

court of equity in a proper case. An- known as B.," etc.; in a doubtful 

derson v. Anderson, 178 111. 160. Cf. case of identity or where there is a 

Alabama R. v. Hill, 76 S. E. 1001, misnomer in some bank book, stock 

139 Ga. 224, 43 L. R. A. (N. S.) 236 certificate or other asset of the de- 

( voidable, not void) ; Carr v. Illinois cedent to be realized in the adminis- 

€ent. R., 60 So. 277, 43 L. R. A. (N. tration. 

S.) 634, 180 Ala. 159; 130 P. 255; 7. Wms. Exrs. 588. But an execu- 

102 N. E. 189, 259 111. 80. tor duly qualified upon probate of a 

There must be an order for letters will in common form may continue to 

to issue, signed by the judge or clerk; act, notwithstanding an issue joined 

otherwise the letters are void. Wirt afterwards testing the validity of the 

V. Pintard, 4 So. 14, 40 La. Ann. 233. will as to real estate only. Byrn v. 

For a void decree which did not Fleming, 3 Head, 658. 

1125 



§ 1161b 



EXECUTOES AXD ADMINI6TEAT0RS. 



[PAET II. 



leaves him, of course, without authority and suspended in his 
functions.^ The appeal should conform to objections raised below.^ 

§ 1161a. Effect of Revocation, etc., upon the late Office. 

After a revocation or the removal of an executor or adminis- 
trator, or the acceptance of his resignation, he cannot complete a 
sale which he had been negotiating on behalf of the estate; nor 
collect assets ; nor carr\' on or defend a suit in his official capacity ; 
nor in general exercise the functions of his late office.'^ 

§ 1161b. Court cannot Appoint anew while a Former Appoint- 
ment Continues. 
The probate court has no power to appoint a new executor or 
administrator while a former one remains in office ; but there must 
Jirst be a removal or an accepted resignation of the former execu- 
tor or administrator, so that the office may become vacant and such 
vacancy may be filled.^ 



8. Thompson v. Knight, 23 Ga. 399; 
86 Cal. 72. 

9. See 131 N. Y. 587. A court of 
review reluctantly reverses the decree 
of the lower court of probate where 
evidence is conflicting, yet it must do 
so wherever the fact clearly appears. 
Austin V. Austin, 103 N. E. 268, 260 
111. 299. And see Guarantee Trust 
Co. V. Waller, 88 A. 13, 240 Pcnn. 
575; King v. King, 87 A. 180, 35 R. 
I. 375; Houston v. Wilcox, 88 A. 32, 
121 Md. 91 (fraud) ; Bradley v. Brad- 
ley, 87 A. 390, 119 Md. 645 (will and 
codicil part of an antenuptial con- 
tract). On questions of a subsequent 
■will, etc., the probate court takes orig- 
inal jurisdiction. Mather v. Minard, 
102 N. E. 1062, 260 111. 175. 

1. Owens V. Cowan, 7 B. Mon. 152; 

1126 



5 Sm. & M. 130 (enjoined in chan- 
cery) ; Wiggin v. Plummer, 31 N. H. 
251; National Bank v. Stanton, 116 
Mass. 435; 26 Tex. 530. See local 
statute in point. Cf. Starr v, Wil- 
loughby, 75 N. E. 1029, 218 111. 485, 
2 L. R. A. (N. S.) 623. But removal 
from a trusteeship is not necessarily 
a removal from the executorship. 22 
Hun (N. Y.) 86. See Wms. Exrs. 
592-594. 

Where a will is declared void and 
its probate invalid the authority of 
an executor under such will ceases 
and he has no right to prosecute an 
appeal with funds of such estate. 
Cavanaugh's Will, 131 N. Y. S. 982. 

2. Barboza v. Cement Co., 120 P. 
7G7, 102 Cal. 30. 



CilAP. VII.] FOREIGN AND ANCILLARY APPOINTMENTS. § 1163 

CHAPTER VII. 

FOREIGN AND ANCILLARY APPOINTMENTS. 

§ 1162. The Subject of Foreign and Ancillary Appointments con- 
sidered frequently in the United States but not in Eng- 
land. 
The subject of foreign and ancillary appointments is considered 
frequently, in connection with administration of the estates of de- 
ceased persons, in the United States ; but seldom, comparatively 
speaking, in England. There probate jurisdiction is always do- 
mestic, save as to colonies and foreign countries ; but here it is 
strictly domestic only in pertaining to some particular State. A 
person may be domiciled in one State jurisdiction at the time of 
his death, and yet leave property which another State can reach 
by its own independent process, under circumstances justifying its 
own territorial grant of administration ; and cases may arise, 
though in practice more rarely, by comparison, where there are 
found local assets of some foreigner who died testate or intestate, 
leaving an estate in his own country to be administered. Domestic 
2')robate jurisdiction is here internal, in other words, either as re- 
spects other States in the same federal Union, or other countries.^ 

§ 1163. What is Ancillary Administration. 

We have seen that original letters of administration may be 
taken out upon the estate of a foreigner, on the ground that local 
assets are within the jurisdiction and there is occasion for such ap- 
pointment; and further, that the non-existence of known kindred 
will not debar the local probate court from granting these letters. 
Such a grant, however, is feunded usually upon ignorance of any 
last will of the deceased, or of any probate or principal administra- 
tion duly granted in the courts of his last domicile ; ^ hence, the 

1. Supra, §§ 1015-1020, on the sub- 2. Supra, §§ 1015-1020. 

ject of conflict of laws. 

1127 



§ 1161 EXECUTORS AND ADMINISTRATOES. [PART II. 

administration is looked upon as sufficiently a principal one for 
the convenience of the court and of the sovereign authority which 
exercises jurisdiction in the premises. But were such a foreign 
will or a foreign appointment of executor or principal administra- 
tor known to exist, the case would be properly treated, in England 
find the United States, on the principles of comity; international, 
<~^r inter-State comity, as the case might be. And regarding the 
fundamental rules of comity, principal administration is properly 
that of the country or State only where the deceased person had his 
last domicile ; administration taken out elsewhere, in the country 
or State where assets were locally situate, being known an ancillary 
(that is to say, auxiliary or subordinate) administration. In the 
course of this treatise it will be seen that one who actually officiates 
as ancillary administrator observes somewhat peculiar rules as to 
managing and settling the estate. And in the present chapter we 
?hall first observe that peculiar rules guide the court with respect 
to the character and method of making the ancillary appointment.^ 

§ 1164. Letters Testamentary or of Administration have no 
Extra-territorial Force. 

The first proposition to be laid down, with reference to foreign 
iind domestic, principal and ancillary administration, is that, ac- 
cording to the recognized law both of England and the United 
States, letters granted abroad confer, as such, no authoritv to sue 
or be sued, or to exercise the functions of the office in another juris- 
diction; though they may afford ground for specially conferring a 
i:>robate authority within such other jurisdiction; and the same per- 
son sometimes qualifies as principal and ancillary representative. 
ITence, letters testamentary granted to an executor in one State 
or country have no extra-territorial force.'* And an administrator 

3. Stevens v. Gaylord, 11 Ma.«9. 4. Enohin v. Wylie, 10 H. L. Oas. 

256; Merrill v. N. E. Mut. Life Ins. 19, per Lord Cranwortli; 2 CI. & Fin. 

Co.. 103 Mass. 245, 4 Am. Rep. 548; 84; 3 Q. B. 507; Wms. Exrs. 7th Enp. 

Clark V. Clement, 33 N. H. 567; ed. 362; Korr v. Moon. 9 Wlioat. 565; 

Childress v. Bennett, 10 Ala, 751; 44 Stearns v. Btirnham. 5 Gmenl. (Me.) 

Am. Dec. 503. 261; 17 Am. Dec. 228; Harper v. But- 

1128 



CHAP. VII.] FOREIGN AND ANCILLARY APPOINTMENTS. § 11G5 

Las no authority beyond the limits of the State or country in which 
he was appointed.^ In either case, one mu5t be confirmed in his 
authority by the courts of the State or country in which property 
is situated or debts are owing before he can effectually administer 
the property or collect the debts there. For the rights of citizens 
in the local jurisdiction must be protected, and one is incapable of 
suing outside the jurisdiction which appointed him.^ 

§ 1165. Each Sovereignty competent to confer a Probate author- 
ity within its own Jurisdiction. 

A second proposition (which may be regarded as the correlative 
of the preceding, and universally recognized both in England and 
the United -States) is, that each independent sovereignty considers 
itself competent to confer, whenever there is occasion, a probate 
authority, whether by letters testamentary or of administration, 
which shall operate exclusively and universally within its own sov- 
<3reign jurisdiction, there being property of the deceased person, 
or lawful debts owing, within reach of its own mandate and judi- 
cial process.^ Such sovereign jurisdiction is not national, of neces- 

ler, 2 Pet. 239, 7 L. Ed. 410; Treco- Vaughn v. Barret, 5 Vt. 333; Willard 

thick T, Austin, 4 Mas. 16, 3 Am. v. Hammond, 21 N". H. 382; McCarty 

Dec. 189; Patterson v. Pajan, 18 S. v. Hall, 13 Mo. 480; Smith v. Guild, 

C. 584; Reynold v. Torrance, 2 Brev. 34 Me. 443; Carmichaol v. Ray, 1 

59; Naylor v. Moffatt, 29 Mo. 126; Rich. 116; Williams v. Storrs, 6 

66 P. 846, 135 Cal. 7 (grant of an- Johns. Ch. 353, 10 Am. Dec. 340; 

ciliary letters discretionary) ; Gil- Nowler v. Coil, 1 Ohio, 519, 13 Am. 

man v. Gilman, 54 Me. 453; supra, Dec. 640; Sheldon v. Rice, 30 Mich. 

§ 1015. A dictum of Lord Westbury, 296, 18 Am. Rep. 136. 

in Enohin v. Wylie, supra, to the 6. See Wilkins v. EUett, 108 U. S. 

effect that only the courts of that 256, 258. 27 L. Ed. 718. 

country in which a testator dies 7. Banta v. Moore, -15 N. J. Eq. 97; 

■domiciled can administer his personal Naylor v. Moffatt, 29 Mo. 126. Thus, 

property is erroneous. 6 App. Cas. in England, one having an English ap- 

34, 39. pointment as executor is permitted to 

5. Picquet v. Swan, 3 Mas. 469; sue there in respect of foreign assets, 

Mason v. Nutt, 19 La. Ann. 41 ; Cut- so far as local courts can be of service 

ier V. Davenport, 1 Pick. 81; 11 Am. to him. Whyte v. Rose, 3 Q. B. 493. 

Dec. 149; Dorsey v. Dorsey, 5 J. J. And see Reynolds v. Kortwright, 13 

Marsh. 280, 22 Am. Dec. 33; Beav. 417; Price v. Dewhurst, 4 M. 

1129 



§ 1167 EXECUTOES AXD ADMINISTKATOES. [PAET II. 

sitj ; for in the United States, agreeably to tlie limitations of our 
federal constitution, it applies as between the several States. 

§ 1166. Local Sovereignty recognizes Limitations grounded in 
Comity, Good Policy, and Natural Justice. 
But we may remark, again, that, competent as each sovereign 
jurisdiction regards itself, in this matter, limitations are neverthe- 
less placed to the exercise of such authority, out of respect to 
comity, good policy, and natural justice; which limitations we shall 
find respected by local legislatures and the local courts of England 
and the United States. And hence our third proposition : that in. 
practice, the local sovereignty, State or national, permits letters to 
issue upon the estates of deceased non-residents, mainly for the 
purpose of conveninntly subjecting such assets to the claims of 
creditors entitled to sue in the local courts, and for appropriating 
whatever balance may remain to the State or sovereign, by way of 
distribution, in default of known legatees or kindred. If, there- 
fore, the non-resident proves to have left legatees and a will whoso 
probate may be established, or kindred lawfully entitled to distri- 
bution, or foreign creditors, the rights of all parties thus inter- 
ested should be respected ; and, subject to local demands upon the 
estate, the local administration and settlement of the estate will be 
regulated accordingly.^ 

§ 1167. Administration in the last Domicile is the Principal; 
other Administrations are Ancillary. 

Our fourth proposition is, that regarding this subject from an 
inter-State or international standpoint, wherever authority to ad- 
minister the estate of one deceased, testate or intestate, is granted 

& Cr. 76. And ■wliotlicr tho local 8. See post as to distribution in 

property shall bo remitted abroad is cases of ancillary administration; 

matter of local discretion. Fretwell Davis v. Estoy, 8 Pick. 475; Mitclioll 

V. Lemore, 52 Ala. 124; Mackey v. v. Cox, 22 Ga. 32; Normand v. Grog- 

Coxe, 18 How. (U. S.) 100; Car- nard, 14 N. J. L. 425. 
michacl v. Ray, 5 Ired. Eq. 305; 
Huglies, lie, 95 IST. Y. 55. 

1130 



CHAP. VII.] FOKEIGN AND ANCILLAKY APPOINTMENTS. § 11G8 

in two or more competent jurisdictions, the principal administra- 
tion or appointment must be that where the deceased had his last 
domicile ; and that administration, or an appointment granted else- 
where, or because of local property or assets, is ancillary merely.* 
And this chiefly because, as an international as well as inter-State 
doctrine, it is usually conceded that the law of the domicile of the 
owner of personal property governs regarding the right of succes- 
sion thereto, whether such owner die testate or intestate; ^ or to 
cite the broader fundamental maxim, mobilia sequuiitur perso- 



§ 1168. Principal Letters need not precede the Ancillary. 

But, fifth, since each local sovereignty may act independently of 
all others in conferring the local grant, out of regard to local con- 
venience, and since what might otherwise be or become ancillary 
may stand alone, it is not necessary that principal and ancillary 
administration should be committed in consecutive order. Thus, 
the will of a non-resident testator need not be proved in the State 
or country of his last domicile, before the domestic State can grant 
valid letters upon his estate situated within its local confines ; ^ 
though, if it were shown after the domestic State had granted let- 
ters as upon an intestate estate, that the deceased left a will which 
was duly probated in his last and foreign domicile, the domestic 
domicile should revoke the grant and proceed to appoint as in case 
of testacy.* And if a resident of one State dies testate, leaving 
property in another State upon which the will can act, it may be 

9. Fay v. Haven, 3 Met. (Mass.) Crispiai v. Doglioni, 9 Jur. N. S. 653; 
109; Merrill v. N. E. Life Ins. Co., s. c. L. R. 1 H. L. 301; Enohin v. 



103 Mass. 245, 4 Am. Rep. 548; Child 
ress V. Bennett, 10 Ala. 751, 44 Am 
Dec. 503; Perkins v. Stone, IS Conn 
270; Adams v. Adams, 11 B. Mon 
77 ; Spraddling v. Pipkin, 15 Mo. 117 
Clark V. Clement, 33 N. H. 563; Col 



Wylie, 10 H. L. Cas. 1; Wilkins v. 
Ellett, 108 U. S. 256, 27 L. Ed. 71S; 
97 111. App. 270. 

2. Movables follow the person. 

3. Bowdoin v. Holland, 10 Cush. 
17; Burnley v. Duke, 1 Rand. (Va.) 



lins v. Bankhead, 1 Strobh. (S. C) 108. 

25; Green v. Rugely, 23 Tex. 539. 4. See Shepard v. Rhodes, 60 111. 

1. See Sir Crosswell Cressvvell in 301. 

1131 



§ 1169 EXECUTOKS AND ADMIIS'ISTEATOES. [PAET IT. 

probated in that other State, and the State of residence will give 
such probate due faith and credit.^ ISIor is it essential that admin- 
istration be granted on an intestate estate, in the place of the domi- 
cile of the deceased, before an administrator is appointed in an- 
other State or country, where, agreeably to local law, administra- 
tion is proper.® And once more, administration granted in one 
State, on property there situated of a resident of another State, 
is not impaired or abridged by the previous grant of administra- 
tion in such other State;" though the distribution and final dis- 
position of proceeds^ after payment of debts, may be affected in 
c*onsequence. 

§ 1169. Foreign and Domestic Probate and Letters Testamen- 
tary; English Doctrine. 
The foregoing are the propositions mainly to be considered in 
the present connection ; and now to apply them to the probate of 
wills and the grant of letters testamentary. In England, the last 
domicile of the deceased is finnly respected, in all matters of ad- 
ministration as to personalty. '' All questions of testacy or intes- 
tacy," observes Lord 'Chancellor Cranworth, in a modem case,^ 
^' belonff to ihe jn.lii'e of the domicile. It is the right and duty of 
that judge to constitute the personal representative of the deceased. 
To the court of the domicile belong the interpretation and construc- 
tion of the will of the testator.^ To determine who are the next of 
kin or heirs of the personal estate of the testator, is the prerogative 

5. Walton v. Hall, 66 Vt. 455, 29 qualification. Domcsitic courts incline 
A. 803. to weigh the foreign proofs and ex- 

6. Stevens v. Gaylnrd, 11 Mass. planations procurable, but with such 
256; Pinney v. McGregory, 102 Mass. extraneous assistance to interpret the 
192; Rosenthal v. Remick, 44 111. instrument upon domestic principles 
202. of construction. See Wms. Exrs. 370, 

7. Crosl)y v. Ciilclirist, 7 Dana. 206; 371, and Perkins's w. ; Di Sora v. Phil- 
Pond V. Makepeace, 2 Met. 114. lips, 10 IT. L. Cas. 633. 639, 640; 

8. Enohin v. Wylie, 10 H. L. Gas. United States v. McRnc. L. R. 3 Gh. 
1, cited by Sir Gresswell Gresswell in 86. And see in general Story Confl. 
Crispin v. Doglioni, L. R. 1 IT. L. 301. Laws, § 638; supra, §§ 1115-1120. 

9. This statement is subjfct to 

1132 



CKAP. VII.] POREIGN AND ANCILLARY APPOINTMENTS. § 11C1> 

of the judge of the domicile. In short, the court of domicile is the 
forum concursus to which the legatees, under the will of the tes- 
tator, or the parties entitled to the distribution of the estate of an 
intestate, are required to resort." And hence, as between testacy 
or intestacy, it is held that the courts of the last domicile must de- 
termine; and that, so far as personalty is concerned, a will must 
be executed according to the law of the country where the testator 
was domiciled at the time of his death.-* An English court of pro- 
bate jurisdiction may, doubtless, ascertain what was in fact the 
last domicile of the party whose will has been presented for pro- 
bate; but if probate be judicially granted, the conclusive inference 
is, that the will must have been executed according to the law of 
testator's last domicile.^ We here refer to wills of personalty, in 
strictness; for, with respect to real property, the descent, devise, or 
conveyance thereof, and other general incidents affecting its title 
and transfer, the law of local situation appears to have constantly 
prevailed in English law.^ 

Accordingly, the will, so far at least as personalty is concerned, 
must conform to the place of the testator's last domicile ; and 
the law of this last domicile decides, as to one domiciled abroad, 
what was his last will, how and by whom such will is to be 
executed, and in general, all questions of one's testacy, testamen- 
tary capacity, and disposing power.'* Modern statutes and modem 
probate practice provide for the authentication of foreign wills 

1. Whicker v. Hume. 7 H. L. Cas. V. & B. 131; Freke v. Lord Carbery, 
124; Douglas v. Cooper, 3 Myl. & K. L. R. 16 Eq. 461. See act 24 & 25 
378. Vict. c. 114; the new English wills 

2. 1 Redf. Wills. 398; Whicker v. act. Modern jurisprudence favors the 
Hume, 7 H. L. Cas. 124. But where execution of wills with the same for- 

■, the transcript of foreign probate fails malities, regardless of the character 

to show an adjudication by the court, of the property to be transmitted, 

but that the clerk issued the letters Supra, § 1008. A provision of the 

on his own authority, this is a min- will fails as to land if it conflicts 

isterial act on the face, and the do- with a statute where the land lies., 

mestic court may inquire collaterally 86 N. E. 245, 236 111. 333. 
into tlie sufficiency of the grant. II- 4. 1 Hagg. Ec. 373, 498; Price v. 

linois Central R. v. Crazin, 71 111. 177. Dewhurst, 4 M. & Cr. 76, 82; Wms. 

3. 1 Vern. 85; Brodie v. Barry, 2 Exrs. 366. 

1133 



§ 1169 EXECUTOKS AND ADMINISTEATOES. [PAKT IL 

where local and domestic convenience requires it. An official copj 
of the probate, or act of recognition of the will bj the court of 
such foreign domicile, should be produced before the local probate 
tribunal, with a translation or a re-translation of the will, as may 
be deeemed suitable.^ 

Under a will of this character thus exemplified, the foreign ex- 
ecutor is respected in the English courts. If the executor, consti- 
tuted under a foreign will, finds occasion to institute a suit in Eng- 
lish jurisdiction for the purpose of recovering local assets, he must 
prove his will before the English probate tribunal, and procure 
local authority or constitute some personal ancillary representative, 
as by virtue of his foreign appointment. And so, too, where it is 
intended that the foreign will shall operate upon local property.® 
Without an English gTant he cannot sue or exercise general author- 
ity as to English assets of the estate. But the probate tribunals of 
England will, in such cases, follow the grant of the court of that 
foreign country where the deceased died domiciled; and the last 
will sanctioning his appointment having been authenticated abroad 
and proved by exemplified copy in the proper English probate 
court, the latter court will clothe him with the needful ancillaiy 
authority to enable him to execute his local functions.^ As to the 

5. De Vigny, In re, 13 L. T. N. S. made, or Avhere a testator was then 
246; L'Fit v. L'Batt, 1 P. Wms. 526. domiciled, or where he had his domi- 

6. Wms. Exrs. 362. cile of origin. See Wms. Exrs. 374. 

7. Wms. E.xrs. 370; Enohin v. This changes much of the law pre- 
Wylie, 10 H. L. Cas. 14. The duly viously in force in that country on 
appointed attorney of the person in the subject. Apart from such legis- 
interest may be selected to administer lation (which does not apply to 
under the will upon the usual prin- aliens) the will of a foreigner exe- 
ciples. Dost Ali Khan's Goods, L. R. cuted abroad with English formali- 
6 P. D. 6. The English statute 24 & ties is not on that consideration en- 
25 Vict. c. 114, provides as to wills titled to English probate. Von Pai- 
made by British subjects dying after sock's Goods, L. R. 6 P. D. 211; 
August 6, 1861, that every such will Gatti's Goods, 27 W. R. 323. See as 
made out of t!ie kingdom shall, as re- to Scotch assets, Sterling-Maxwoll v. 
gards personal estate, be held to be Cartwright, L. R. 9 Ch. D. 173; L. R. 
well executed, if mado according to 11 Ch. D. 522; Wms. Exrs. 363. Eng- 
tlie law of the place where it was lish courts liave jurisdiction to ad- 

1134 



CHAP. VII.] FOREIGN AND ANCILLARY APPOINTMENTS. § 1170 

probate tribunal and the general mode of administration, and to a 
certain extent in the construction of the will, the law of the place 
where the personal estate is situated, and where ancillary letters 
are sought, must prevail.^ 

§ 1170. The same Subject; American Doctrine. 

In the United States the same general rules prevail as to probate 
and executors, subject, however, to much statute regulation. Pro- 
bate and administration are local, and the foreign executor has no 
authority as such which local tribunals are bound to obey.^ It has 
been regarded as not indispensable to the proof of a foreign will, 
in the courts of another place than that of the testator's domicile, 
that the foreign probate should be recorded in the domestic probate 
court ; though it must be shown in evidence that the will has been 
duly admitted to probate in the proper tribunal of the testator's 
domicile.^ But it is now the American practice, fortified by local 
legislation, for the executor or other person interested in a will, 
which has been proved and allowed in any other of the United 
States or in a foreign country, to produce a copy of the will and of 
'the probate thereof, duly authenticated, to the probate court in any 
oounty of the domestic State in which there is any estate real or 
personal upon which the will may operate, or assets ; and upon his 
petition, after due citation and a hearing, the court orders the copy 
to be filed and recorded. This gives the will the same effect as if 
it had been originally proved and allowed in such domestic State. 

minister trusts of a will as to the 9. See supra, § 1164; 138 Mi?h. 247, 

whole estate, both Scotch and Eng- 101 N. W. 535. A court of one State 

lish, though the testator be domiciled need not recognize the removal of an 

in Scotland. Ewing v. Ewiiig, 9 App. executor there appointed, which the 

Cas. 34. court of another State orders. Till- 

8. Price v. Dewhurst. 4 M. & Cr. man v. Walkup. 7 S. C. 60. 

76 ; Reynolds v. Kortwright. 18 Beav. 1. Townsend v. Moore, 8 Jones Law, 

417; supra, §§ 1015-1017. As to the 1S7; Jemison v. Smith, 37 Ala. 185. 

will of a foreigner made in England, See Hoysradt v. Gas Co., 194 Penn. 

according to English law. see Lacroix, St. 251 ; Chadwick's Will, 85 A. 266, 

Goods of. L. R. 2 P. D. 97; Gally's 80 N. J. Eq. 471. 
Goods, 24 W. R. 1018. 

1135 



§ llTl 



EXECUTOES AXD ADMI^'ISTRATOKS. 



[part II. 



After the will is so allowed and ordered to be recorded, tlie court 
grants letters testamentary or of administration witii the will an- 
nexed, with a qualification as circumstances may require, and pro- 
ceeds to the settlement of the estate which may be found in such 
State.2 



§ 1171. Whether Will, to be operative, must conform to the Law 
of Last Domicile. 
Aside from statute, a will to be operative must, according to the 
better authority, conform to the law of the place of the testator's 
last domicile.^ But, by statute, it is now quite frequently pro- 
vided that a will executed out of the local jurisdiction, in conform- 
ity with the law of the place where made, shall effectually prevail 
within such local jurisdiction. The fonnal probate ol such a will 
is the same as that usually pursued ; the testator's soundness of 
mind, capacity, and disposing intent should appear; and though 



2. See Beers v. Shannon. 73 X. Y. 
292; Mass. Gen. Stats, c. 92; Parker 
V. Parker, 11 Cush. 519; Leland v. 
Manning, 4 Hun (N. Y.) 7; Arnold 
v. Arnold, 62 Ga. 627; Butler's Suc- 
cession. 30 La. Ann. 887; 66 Vt. 455, 
29 A. 803; 89 N. Y. S. 732; 47 So. 
45; 45 A. 62, 194 Penn. 251; Pope v. 
Waugh. 103 X. W. 500. 94 Minn. 502 
(waiver of requirement) ; Dibble v. 
Winter, 93 N, E. 145, 247 111. 243. 
The copy of the will and of the decree 
of the court of original jurisdiction 
are conclusive, in the absence of 
fraud, of all the facts necessary to 
the establishment of the will, the 
regularity of the proceedings, etc. 
Crippen v. Dexter, 13 Gray, 330. The 
object is to furnish genuine documen- 
tary proof of the original probate. 
TIelme v. Sanders, 3 Hawks. 5G6. 
That the court of local assets is not 
to meddle with the domiciliary pro- 
bate, or raise issues whicii properly 



belong to that forum to determine, 
see Loring v. Oakey, 98 Mass. 267. 
As to a foreign transcript indicating 
no adjudication, see Illinois Central 
R. V. Crazin, 71 111. 177. 

An executor appointed in the State 
where the testator was domiciled mav 
accept the office in such State, and re- 
nounce it in the State of local assets. 
Hooper v. Moore, 5 Jones L. 130. 

The executor who applies for ancil- 
lary letters testamentary is not re- 
lieved from giving bond with sureties 
as the ancillary court may require, 
notwithstanding the testator's request 
nor the exemption allowed by the 
domiciliary court of probate. Keith 
v. Proctor, 114 Ala. 676, 21 So. 502. 

3. Story Confl. Laws, § 468; 1 Binn. 
336; Stanley v. Bernes, 3 Hagg. 373; 
Moore v. Darrell, 4 Hagg. 346. But 
cf. Roberts's Will, 8 Paige. 519; Cur- 
ling v. Thornton, 2 Add. G, 10. 



^IPS 



CHAP. VII.] FOREIGN AND ANCILLAKY Ari'OINTMENTS. § 1172 

the particular facts to be proved must depend upon requirements 
of tlie local law in which the will was executed, the same cer- 
tainty of proof is essential as if the will had been made in the 
place of local jurisdiction/ There has been much conflict, and 
among continental jurists especially, as to whether a will executed 
in accordance with the law, both of the place where made and of 
the testator's domicile at the time of its execution, shall be inop- 
erative merely for not conforming with the law of the place of 
the testator's domicile at the time of his death f but even here 
the general rule obtains, requiring conformity to the law of last 
domicile under all circumstances ; which rule, however, has been 
reversed by legislation as to personal property, if not as to prop- 
erty whether real or personal.'' A will need not have been exe- 
cuted according to the law of the State in which ancillary letters 
are desired, except that a will of real property must conform to 
the law of local situation.^ 

§ 1172. Foreign and Domestic Administration. 

Next, as to administration and the estates of intestates. Ad- 
ministration must be taken out in the State or country where there 
are assets to be administered, as well as in the country of the intes- 
tate's last domicile; for, as we have seen, a local appointment 
can alone confer local authority.^ Administration, whether prin- 
cipal or ancillai'y, aims in theory to distribute according to the 
law of the country in which the deceased had his last domicile; 
and the right of appointment might well follow the interest ac- 

4. See Bayley v. Bailey, 5 Cush. termine the validity of a will made 
245. in another State, so far as concerns 

5. Moultrie v. Hunt, 23 N. Y. 394; local real estate, see Monypeny v. 
Irwin's Appeal, 33 Conn. 128; Story Monypeny, 95 N. E. 1, 202 N. Y. 90. 
Confl. Laws, § 473. And see Dibble v. Winter, 93 N. E. 

6. English act 24 & 25 Vict. c. 114; 145, 247 111. 243; Holyoke v. Holyoke, 
Bayley v. Bailey, 5 Cush. 245; supra, 87 A. 40, 110 Me. 469 (jurisdiction 
§ 1169. of the foreign court to grant probata 

7. Langbein Be, 1 Dem. (N. Y.) questioned). 

448. As concerning a suit to de- 8. Supra, § 1022. 

1137 



§ 1173 EXECUTOES AXD ADMIXISTEATOES. [PAET II. 

cordingly;^ nevertheless, statutes in force at tlie place where juris- 
diction is taken, practically control the subject.^ Under, or in- 
dependently of statute provisions, the rule generally obtains in 
England and our several States, that whenever an intestate for- 
eigner or non-resident dies leaving estate to be administered in 
the local jurisdiction, administration of such estate may tberein 
be granted ; such administration, in case of a grant in the juris- 
diction where the intestate had his last domicile, becoming an- 
cillary to the principal grant. The law of the local situation of 
the personalty governs the grant of administration.^ And the 
local statute may apply in general terms to those who die without 
the State, leaving property within the same to be administered 
upon, whether the deceased w^ere alien or citizen.^ 

§ 1173. Foreign Appointment of Executors or Administrators 
Unavailable in Domestic Jurisdiction; Local Letters re- 
quired; Exceptions. 

The executor or administrator appointed in one State or country 
has, therefore, no right of control, as such, over property in an- 

9. Wms. Exrs. 430; Johnston's controversy. See Aspinwall v. 

Goods. 4 Hagg. 182. A party who Queen's Proctor, 2 Curt. 241. The 

applies as agent of a non resident en- English statute, 24 & 25 Vict. c. 121, 

titled to administer must exliibit provides that the consul of a foreign 

proper authority. 1 Hagg. 93. Domi- State may administer in English jur- 

ciliary administrator may appeal isdiction, where reciprocal rights are 

from local grant. 17 N. E. 310. See secured by convention in such foroign 

Hopkins's Appeal, 60 A. 657, 77 Conn. State to British consuls. Wms. Exrs. 

644: Levy's Estate, (1908) P. lOS 430. Cf. § 1116. s«pro, as to appoint- 

( limited foreign grant). mcnt of foreign consuls under treaty 

1. This subject receives considera- stipulations of the United States, etc. 

tion in c. 3, supra. It would appear 2. Isliam v. Gibbons, 1 Bradf. (N. 

that a foreign consul has no riglit. Y. ) 60; Plummor v. Brandon, 5 Ircd. 

on principle of mere comity, to take Eq. 190; Willing v. Perot, 5 Rawle, 

possession of a deceased foreigner's es- 264; WoodruflF v. Scluiltz, 49 Iowa, 

tate in a particular local jurisdiction. 430. 

Local statutes, which vest the right in 3. Piquet, Appellant, 5 Pick. 65, 44 

a public administrator, or other If)cal Fed. 243. 
functionary, are decisive of the local 

1138 



CHAP. VII.] FOREIGN AND ANCILLARY APPOINTMENTS. § 1173 

other State or country. As to external assets, be cannot inter- 
fere. He has no power to collect debts or incorporeal personalty 
in such other State or country; nor, perhaps, to discharge.'' He 
cannot control lands so situated.^ Nor can be be sued or defend 
a suit as executor or administrator in one State or country by 
reason of an appointment conferred in another.^ The well-settled 
rule is that administration operates of right only in the State 
or country where it was granted, and there may operate exclusively 
of all foreign appointment ; and tliat, before one can be recognized 
in a jurisdiction as personal representative of the deceased, to sue 
for assets or otherwise, he must be clothed with the correspondent 
probate authority which the sovereignty of that jurisdiction is com- 
petent to confer, or at least to conform to requirements which the 
local law sees fit to impose.^ 



4. Supra, § 1164; Sanders v. Jones, 
8 Ired. Eq. 246; People v. Peck, 4 111. 
118; Pond v. Makepeace, 2 Met. 114; 
Beaman v. Elliot, 10 Cusli. 172; Chap- 
man V. Fish, 6 Hill, 555; McClure v. 
Bates, 12 Iowa, 77; Sabin v. Oilman, 
1 N. H. 193; Cockleton v. Davidson, 
1 Brev. 15; Doe v. McFarland, 9 
Cranch, 151, 3 L. Ed. 687; Kerr v. 
Moon, 9 Wheat. 556, 6 L. Ed. 159; 
Mansfield v. Turpin, 32 Ga. 260; 
Union Mutual Life Ins. Co. v. Lewis, 
97 U. S. Supr. 682, 24 L. Ed. 114; 
Ferguson v. Morris, 67 Ala. 389; 58 
P. 849; Jones v. Cliett, 40 S. E. 719, 
114 Ga. 673; 56 S. E. 548, 144 N. C. 
44. 

5. Apperson v. Bolton, 29 Ark. 
418; Sheldon v. Rice, 30 Mich. 296, 
18 Am. Rep. 136; 16 Neb. 418, 20 N. 
W. 266. 

6. Allsup V. Allsup, 10 Yerg. 283; 
Curie V. Moore, 1 Dana, 445; Winter 
V. Winter, 1 Miss. (Walk.) 211; Ver- 
milva V. Beatty, 6 Barb. 429; Norton 
V. Palmer, 7 Cush. 523; Kerr v. 



Moon, 9 Wheat. 565, 6 L. Ed. 161; 
Hedenberg v. Hedenberg, 46 Conn. 
30; 33 Am. Rep. 10; Jefferson v. 
Beall, 117 Ala. 436, 67 Am. St. Rep. 
177, 23 So. 44; 120 Fed. 718; 88 N. 
W. 765, 63 Neb. 431; Patterson v. 
Pagan, 8 S. C. 584; Sloan v. Sloan, 
21 Fla. 589. A court of chancery can- 
not decree against a foreign adminis- 
trator as such. Sparks v. White, 7 
Humph. 86. 

7. Turner v. Linam, 56 Ga. 253; 
Bells V. Nichols, 38 Ala. 678; Kansas 
Pacific R. V. Cutler, 16 Kan. 568; 
Moore v. Fields, 42 Penn. St. 467; 
Price V. Morris, 5 McLean, 4; Naylor 
V. Moody, 2 Blackf. 247; Rockham v. 
Wittkowski, 64 N. C. 464. As to the 
running of limitations against such 
foreign appointee, see Bells v. Nichols, 
supra. A State administration 
granted upon bo^ia notabilia may en- 
able the administrator to recover as- 
sets in the District of Columbia. 
Blydenburgh v. Lowry, 4 Cranch. C. 
C. 368. But the appointee of the Dis- 



1139 



11' 



EXECUTORS AXD ADMIXISTEATORS. 



[part II. 



To this rule, however, are exceptions, grounded in comity or 
favor. Some American States permit a foreign executor or ad- 
ministrator qualified abroad to sue for local assets belonging to 
the estate of the deceased, without qualifying under a local pro- 
bate appointment ; which permission, however, being in deroga- 
tion of sovereign right, the statutes which prescribe the terms 
of such suits, as by record, or otherwise, must be strictly followed. 
If qualified locally according to the laws of that particular State, 
by probate appointment or otherwise, he may sue and collect, of 
course.^ So have statutes permitted the non-resident executor 
or administrator to defend local suits on similar terms f or made 
him subject to suits by attachment^ or otherwise, at least when 
the cause of action arose in the local forum.^ Foreign representa- 
tives, by virtue of the property belonging either to the estate, 
or to themselves, or their own place of local residence, are some- 
rimes made amenable in equity courts of the local jurisdiction, as 
we shall see hereafter, for fraudulent conduct and delinquency in 



trict, has the usual immunities. 
Vaughan v. Xorthup, 15 Pet. 1, 10 
L. Ed. 639. The foreign appointee on 
the estate of a domiciled citizen is 
not likely to be rccngnizod in the 
domiciliary jurisdiction as 1 aving 
the right to sue or collect. Simtli- 
western R. v. Paulk, 24 Ga. 356. 

See as to ancillary appointment of 
a foreign representative, Knight v. 
Moline R., 140 N. W. 839 (Iowa); 
Cheney v. Cheney, 101 N. E. 10!)6, 
214 Mass. 580. Of course there can- 
not be two principal places of admin- 
istration. 139 N. Y. S. 713. And as 
to incapacity to sue, apart from a 
local statute, see St. Bernard v. 
Shane, 201 F. 453; 141 N. Y. S. 161; 
61 Co. 837, 132 La. 821. 

Questions of double jurisdif^tion, 
b rausc of incorporeal (or intangil)lc) 
kinds of property arise often in our 



States, because of local inheritance 
taxes and the local disposition to en- 
force their payment. See supra, § 
1024 and cases cited; Kennedy v. 
Hodges, 102 N. E. 432, 215 Mass. 112. 
States are found in conflict on this 
point at the present time (1915). 

As to tlie a<ppointmrnt and removal 
of ancillary representatives, see 
IMcicr's Estate. 132 P. 764. 165 Cal. 
456; Middleby's Estate, 88 A. 773, 
242 Penn. 39. 

8. Hobart v. Connecticut Turnpike 
Co., 15 Conn. 145; Crawford v. 
Graves. 15 La. Ann. 243; Naylnr v. 
MolTatt, 29 Mo. 126; Banta v. Moore, 
15 N. J. Eq. 97; 70 Cal. 403, 11 P. 
833, 59 Am. Rep. 423. 

9. Moss V. Rowland, 3 Busli, 505. 

1. Cady V. Bard. 21 Kan. 667. 

2. Hopper v. Hopper, 125 N. Y. 
400, 26 N. E. 457, 12 L. R. A. 237. 



1140 



CHAP. VII.] FOREIGN AND ANCILLAEY APPOINTMENTS. 



ll7o 



their trust, or intermeddling; a principle which runs deep in 
chancery practice.^ And local statutes enable foreign executors 
or administrators to sell or deal with real estate in the local situs 
for due administration purposes, or to transfer local stock, or to 
perform various other specified acts in the local jurisdiction.'' 

The executor or administrator appointed in another State has 
been permitted to maintain an action on a judgment there re- 
covered, on the ground that such suit need not be brought in the 
official character.^ Also by indorsement or without it, as the case 
may require, to enable his assignee or transferee to sue on a 
negotiable instrument or other written evidence of debt in another 
State, although he might not have sued directly upon it as a 
representative of the deceaed f and, indeed, one might, in his 
own name, sue on a negotiable instrument payable to bearer, its 
production in the local court affording prima facie evidence of 
the right to sue and collect.^ The right of a foreign executor or 
administrator to assign or indorse in such capacity, so as to 
confer a right to sue in the foreign local court, has, however, been 



3. See Montalvan v. Clover, 32 
Barb. 190; Evans v. Tatem, 9 S. & 
R. 252, 11 Am. Dec. 717; Field v. 
Gibson, 56 How. (N. Y.) Pr. 232; 
Colbert V. Daniel, 32 Ala. 314; Pat- 
ton V. Overton, 8 Humph. 192; Tun- 
stull v. Pollard, 11 Leigh, 1; Powell 
V. Stratton, 11 Gratt. 792. The ruU 
of charging a foreign executor wiio 
has not taken out local letters is not 
uniformly asserted, and gives rise to 
various opinions. See Story Confl. 
Laws, § 514 b, and notes. 

4. See Williams v. Penn. R., 9 
Phila. (Pa.) 298; local codes; rights 
of executors, etc., as to real estate, 
post; 69 A. 959. 74 N. H. 507; 42 So. 
42, 144 Ala. 393. 

5. Talmage v. Chapel, 16 Mass. 71; 
Parton v. Higgins, 41 Md. 539; 
Young v. O'Neal, 3 Sneed. 55; Slauler 

1 



V. Chenowith, 7 Ind. 211; Trecothick 
V. Austin, 4 Mason, 16; Biddle v. 
Wilkins, 1 Pet. 686, 7 L. Ed. 315; 70 
Gal. 403, 59 Am. Rep. 423. But the 
fact that a foreign administrator had 
recovered judgment as such will not 
entitle him to sue in Georgia, save 
upon compliance with the local re- 
quirement of filing a copy of his let- 
ters. Buck V; Jolinson, 67 Ga. 82. 

6. Peterson v. Chemical Bank, 32 
N. Y. 21, 88 Am. Dec. 298; Wilkins 
V. Ellett, 108 U. S. 256, 27 L. Ed. 
718; Leake v. Gilchrist, 2 Dcv. L. 73. 
Bond and mortgage may be thus as- 
signed so as to confer a right to fore- 
close. Smith V. Tiffany, 16 Hun, 562. 
Cf. 20 S. C. 167, 58 S. W. 637. 

7. Barrett v. Barrett, 8 Greenl. 
353; Robinson v. Crandall, 9 Wend. 
425. 

141 



§ 11T4 



EX-ECUTOKS AXD ADMIXISTEATOES. 



[PAET II. 



questioned.^ Upon a contract made with himself, as exocutor 
or administrator, a foreign executor or administrator may sue* 
or be sued.^ 



§ 1174. Principal and Ancillary Letters; Comity as to transmit- 
ting Assets for Distribution, after Local Debts are satis- 
fied. 

The estate of a deceased person is, substantially, one estate, and 



8. Stearns v. Burnham. 5 Greenl. 
261, 17 Am. Dec. 22S; 66 P. 971, 135 
Lai. 14; Thompson v. Wilson, 2 N. H. 
291. See further, 35 S. E. 503, 57 
S. C. 235; Stoddard v. Aiken, 35 S. 
E. 501, 57 S. C. 134 ; Taylor v. Syme, 
57 N. E. 83, 162 N. Y. 513; Hare v. 
O'Brien, 82 A. 475, 233 Penn. 330 
(suit on a foreign judgment) ; Wat- 
kins V. Eaton, 183 F. 384, 105 C. C. 
A. 604. 

As to suit for killing decedent, see 
Dodge V. North Hudson, 18S F. 489 
(foreign and ancillary); Bell's Es- 
tate, 127 P. 100, 70 Wash. 498. 

9. Lawrence v. Lawrence, 3 Barb. 
Ch. 71; Barrett v. Barrett, 8 Greenl. 
346; Du Val v, Marshall, 30 Ark. 
230; Trotter v. Wliite, 10 Sm. & M. 
607; Story Confl. Laws, §§ 513, 516, 
517. 

■'The administrator, by virtue of 
his appointment and autliority as 
such, obtains the title in promissory 
notes or other written evidences of 
debt, held by the intestate at the time 
of his death, and coming to the pos- 
ae-ssion of the administrator, and may 
sell, transfer and endorse the same; 
and the purcliasers or endorsees may 
maintain actions in their own names 
against the debtors in another State, 
if the debts are negotiable promissory 
notes, or if the law of the State in 

114 



which the action is brought permits 
the assignee of a chose in action to 
sue in his own name." Mr. Justice 
Gray, in Wilkins v. Ellett, 108 U. S. 
256, 258, 27 L. Ed. 718. See § 1176, 
post. 

The principal administrator, unless 
forbidden by statute, may sell and as- 
sign stock of a local corporation where 
no ancillary administration exists. 
Luce V. Manchester R., 63 N. H. 588, 
3 A. 618. A State which charters a 
corporation is its domicile in refer- 
ence to the debts which it owes, for 
there only can it be sued or found for 
the service of process. This is now 
changed considerably by legislation, 
so that a corporation of one State do- 
ing business in another is made su- 
able. See N. E. Mutual Life Ins. Co., 
Ill U. S. 138, 28 L. Ed. 379; Rail- 
road Co. V. Harris, 12 Wall. 65, 20 
L. Ed. 354. 

Injunction refused to prevent a 
foreign executor from removing assets 
from the jurisdiction, where no es- 
pecial grounds demanding relief were 
shown. 51 N. Y. Super. 441. 

1. Johnson v. Wallis, 112 N. Y. 
230, 8 Am. St. Rep. 742, 19 N. E. 
653, distinguishing such liabilities as 
were purely based upon transactions 
of the decedent. 



2 



CHAP. VII.] FOEEIGN AND ANCILLARY APPOINTMENTS. § 1174: 

in this sense the residuary legatees or distributees are interested 
in it as a whole, even though it be spread through various juris- 
dictions; while, as a rule, each administration must be settled, 
so to speak, in the jurisdiction where it was granted. When any 
surplus remains in the hands of a foreign or ancillary appointee, 
after paying all debts in that jurisdiction, the foreign court will, 
in a spirit of comity and as a matter of judicial discretion, order 
it to be paid over to the domiciliary executor or administrator, 
if there be one, instead of making distribution;^ in which case, 
the fund is applicable to debts, legacies, and expenses at the prin- 
cipal jurisdiction, as well as to distribution.^ The rule to thus 
pay over is not, however, absolute; on the contrary, the transfer 
will not be made if deemed, under the circumstances, improj)er ; ^ 
and legislative policy is to secure the rights of its creditors and 
citizens at all hazards. The legal personal representative consti- 
tuted by the forum of the domicile of a deceased intestate is 
usually the person entitled to receive and give receipts for the 
net residue of his personal estate obtained in any country.^ And 
to such legal representative, and not to an ancillary one, claim- 

2. Wright V. Phillips, 56 Ala. 69; 115 P. 242, 159 Cal. 6S0; Gilchrist 
105 Fed. 2S. v. Cannon, 1 Coldw. 581; Porter v. 

3. Such transmission is natural and Heydock, 6 Vt. 374; Fretwell v. Le- 
proper where it appears that no debts more, 52 Ala. 124; Harvey v. Rich- 
were owing in the ancillary jurisdic- ards, 1 Mason, 381; Hughes, Re, 95 
tion. Wright v. Gilbert, 51 Md. 146. N. Y. 55. As between different States, 
Where a foreign distributee is an in- assets will be more readily trans- 
fant, this is preferable to ordering mitted in advoidance of claimants of 
payment to bis " foreign guardian." the residue, semble, than where the 
Twimble v. Dziedzyiki, 57 How. (N. domiciliary jurisdiction was a foreign 
Y. ) Pr. 208. See also Wms. Exrs. one. Aspden v. Nixon, 4 How. 467. 
1664, and Perkins's note; Story Confl. And if doubts arise as to the genuine- 
Laws, § 513; Low V. Bartlett, 8 Al- ness of foreign claims to the residue, 
len, 259; Mackey v. Coxe, 18 How. as against domestic distributees or 
(U. S.) 100, 15 L. Ed. 299; Hayes v. the State itself, this might furnish 
Pratt, 147 U. S. 557, 37 L. Ed. 279. reason for holding back the funds for 

4. Williams v. Williams, 5 Md. inquiry. 

467; Lawrence V. Kitteredge, 21 Conn. 5. Eames v. Hacon, 50 L. J. Ch. 

577, 53 Am. Dec. 385; Higgins v. 740. 
Eaton, 188 F. 938; Dwyer's Estate, 

1143 



§ ll'i'4 EXECUTORS AND ADMINISTEATOKS, [PART II. 

ants who are not creditors of the estate, and especially legatees, 
residuaries and distributees, should usually report for the allow- 
ance of their respective rights.® Distribution of the estate, and 
the rights of legatees and of the surviving husband or widow, 
affecting the surplus, should be regulated by the law of the domi- 
cile of the testator or intestate, at the time of his decease.^ 

But as to the payment of local debts out of the local assets, 
or of local funeral or burial expenses, properly chargeable against 
the estate, the law of the place under which an ancillary admin- 
istration is taken, must govern f and the satisfaction of local 
creditors, in full or i)ro rata, according as the general solvency 
or insolvency of the estate may require, or the local statute 
prescribe, is incumbent upon the ancillary administrator, before 
he remits the balance to the foreign executor or administrator.* 
Domestic distributees may also have an interest in the questions 
of transmitting the assets.^ For the spirit of comity does not re- 
quire that citizens shall be put to the inconvenience and expense 
of proving and collecting their claims abroad when there are assets 
at hand, or that local rules for distributing an insolvent's estate 
shall yield to foreign; nor, on the other hand, can it approve of 
the absorption of local assets by local creditors, to the prejudice of 
creditors at the domicile ; but what it asks is, that the local estate 
shall, as far as practicable, be so disposed of that all creditors 
of the deceased, in whatever jurisdiction, shall receive their pro- 
portional share, if the estate be insufficient to pay them in full.^ 
Where there are distributees or le2:ateos locally resident, and no 

6. Brown v. Brown, 1 Barb. Ch. 8. 11). And see Wms. Exrs. 1(104 
189; Richards v. Dutch, 8 Mass. 506; and P.rkins's note. As to such 
Campbell v. Sheldon, 13 Pick. 23; funeral or burial expenses, see 165 
Russell V. Hooker, 67 Conn. 24, 34 A. Mass. 240, 43 N. E. 9S. 

711. 9. Davis v. Estey. 8 Pick. 475; 

7. Churchill v. Proscott. 3 Bradf. Mitchell v. Cox, 22 Ga. 32, 68 Am. 
(X. Y.) 233; Ordronaiix v. Helic, 3 Dec. 481; Normaml v. Grognard, 14 
Sandf. Ch. 512; Goodall v. Marshall, N. J. L. 425. 

11 N. H. 88, 35 Am. Dec. 472; Jones 1. Newell v. Peaslee, 151 Mass. 604, 

V. Gerock, 6 Jones (N. C.) Eq. I'JO; 25 \. E. 20. 
Tucker v. Candy, 10 Rich. Eq. 12. 2. lb. 

1144 



OITAP. VII.] FOREIGN AND ANCILLARY APPOINTMENTS. § llTS 

domiciliary creditors, the ancillary jurisdiction is indisposed to 
transmit local assets to the domiciliary jurisdiction, regardless 
of such local claimants.^ 

ISTot only does the place where letters are locally granted gov- 
ern as to the local grant of letters and the rules for settlement of 
local debts, but the accountability of an administrator for all assets 
received in one State or country, and all questions as to the faith- 
ful or unfaithful discharge of his duties and his liability therefor 
are rightfully decided by the laws, solely, of the State or country 
where he is appointed.* 

§ 1175. Duty of the Domestic Representatives as to Foreign As- 
sets. 

The earlier rule frequently asserted in England in one loose 
form or another, is that assets in any part of the world shall bo 
assets for which the domestic executor or administrator is charge- 
able; the practical effect being to enjoin upon the principal per- 
sonal representative the duty of procuring, so far as foreign law 
and the peculiar circumstances will permit, personal assets 
wherever situated ; realizing the bulk of the estate of his decedent 
as best he may, gathering in the property as one who represents 
the whole fortune, and having gathered it, account to those inter- 
ested accordingly.^ Some of the judicial expressions on this point, 

3. Welles's Estate, 161 Penn. St. every local creditor the usual stat- 
21S, 28 A. 1117. utory recourse, notwithstanding his 

4. Partington v. Attorney-General, right of action does not at once ac- 
L. R. 8 H. L. 100, 119; Fay v. Haven, crue. Newell v. Peaslee, supra. And 
3 Met. 109; Hooper v. Olmstead, 6 see 50 Mich. 22, 14 N. W. 684; Craw- 
Pick. 481; Heydock's Appeal, 7 N. H. -lord Re, 67 N. E. 156, 68 Ohio St. 5S, 
496 ; Lawrence v. Elmendorf, 5 Barb. 96 Am. St. Rep. 648 : Ramsey v. Ram- 
73; McGehee v. Polk, 24 Ga. 406; sey, 63 N. E. 618, 196 111. 179; Bedell 
Kennedy v. Kennedy, 8 Ala. 391; v. Clark, 137 N. W. 627, 171 Mich. 
Marrion v. Titsworth, 18 B. Mon. 582 ; 486. 

Grant v. Reese, 94 N. C. 720. As to 5. Touchst. 496; Wm. Exrs. 1661, 

a widow's petition to a foreign juris- 1662; Attorney-General v. Dimond, 1 

diction to have the administrator re- Cr. & Jerv. 157 ; Attorney-General v. 

moved, see 50 Mich. 22. Local assets Bouwens, 4 M. & W. 171, 192. 
should be retained long enough to give 

114S 



§ 1175 EXECUTORS AND ADMIXISTRATOES. [PAET n. 

to be sure, import too onerous a responsibility on the representa- 
tive's part; and Mr. Justice Story lias pointed out the fallacy of 
holding a domestic executor or administrator answerable for for- 
eig-n property which it is admitted that he can neither collect nor 
sue upon, nor compel its j)ayment or delivery to himself by virtue 
of his domestic appointment;^ foreign property, we may add, of 
whose existence, or of the grant of foreigii administration for 
realizing it as assets, he may be quite unaware.^ 

And yet, to let external assets knowingly escape his control, 
and be lost to the estate, when with reasonable diligence they 
might have been procured seems a plain dereliction of duty in 
the principal or domiciliary representative ; whose function, as 
rightly understood, is to grasp the whole fortune, as the decedent 
did during his life, save so far as the obstructive law of foreign 
situs or the limitations of his own appointment may restrain 
him. If, therefore, assets cannot be collected and realized for 
the benefit of the estate, without a foreign ancillary appointment, 
the executor or administrator of the decedent's last domicile ought 
(so far as may be consistent with his information, the means of 
the estate at his disposal and the exercise of a sound discretion), 
to see that foreign letters are taken out and that those assets are 
collected and realized, and the surplus transmitted to him. If, as 
frequently happens, the domestic representative may collect and 
realize such property in the domestic jurisdiction, as by selling 
negotiable bonds, bills, notes or other securities, payable abroad ; 
or by delivering bills of lading or other documents of title (in- 
dorsing or assigning by acts of his own which would be recognized 
as conferring the substantial title in such foreign jurisdiction), 
or otherwise by effectually transferring property of a chattel na- 
ture, situated or payable elsewhere, which is capable, nevertheless, 
of being transferred by acts done in the domestic jurisdiction, 
he should be held accountable for due diligence as to such net 

6. Story Confl. Laws, § 514 a, com- 7. lb. 

monting upon Dowdale's Case, Cro. 
Jac. 55, 6 Co. 47 6. 

1140 



CHAP. VII.] FOREIGN AND ANCILLARY APPOINTMENTS. § 1175 

assets.* And so, too, if he may enforce the demand against the 
debtor, without resort to the foreign jurisdiction.^ If, however, 
foreign letters and an ancillary appointment at the situs be need- 
ful or prudent, in order to make title and to collect and realize such 
assets, the principal representative should perform the ancillary 
trust or have another perform it, observing due diligence and 
fidelity, according as the laws of the foreign jurisdiction may 
permit of such a course; and if, in accordance with tliose foreign 
laws, a surplus be transmitted to the principal and domiciliary 
representative, or otherwise transferred, so as to be held by him 
in such capacity for payment and distribution, he will become 
liable for it, accordingly.^ 

Whether, then, the principal or domiciliary representative be 
required pro forma or not, to include in his inventory assets 
which come to his knowledge, either situate in the State or country 
of principal and domiciliary jurisdiction, or out of it, his liability, 
as to assets of the latter sort, depends somewdiat upon his means 
of procuring them, and the fact of an ancillary administration in 
the situs of such assets.^ In any case he is bound to take reason- 
able means, imder the circumstances, for collecting and realizing 
the assets out of his jurisdiction; nor is his liability a fixed, abso- 
lute one, but dependent upon his conduct; and it is getting the 
foreign assets into his active control that makes a domestic repre- 
sentative chargeable as for the property or its proceeds, rather 
than the duty of pursuing and recovering such assets.' 

8. Attorney-General v. Bomvens, 4 Merrill v. N. E. Mut. Life Ins. Co., 
M. & W. 171, 192, per Lord Abinger; 103 Mass. 245. 

Trecothick v. Austin, 4 Mason, 33; 1. Attorney-General v. Dimond, 1 

Hutchins v. State Bank, 12 Met. 421: Cr. & Jerv. 370; Ewin, In re, 11 Cr. 

Butler's Estate, 38 N, Y. 397; § 1173 & Jerv. 157; Wms. Exrs. 1661; Jen- 

supra. nison v. Hapgood, 10 Pick. 78 ; Clark 

9. As wliere the principal repre- v. Blackington, 110 Mass. 372; Stoke- 
sentative holds the evidence of the de- ly's Estate, 19 Penn. St. 476. 

mand or the document of title, and 2. See Schultz v. Pulver, 11 Wend, 

finds the debtor or his property with- 363 ; Butler's Estate, 38 N. Y. 397. 
in the jurisdiction of the appointment. 3. See Wms. Exrs. 1664, and Per- 

kins's note: 116 N. W. 986, 153 Mich. 

1147 



§ 1176 EXECUTORS AXD ADMIXISTKATORS. [pART II, 

If assets situated in another jurisdiction come into the posses- 
sion of the executor or administrator in the domiciliary jurisdic- 
tion, bj a voluntary payment or delivery to him, without adminis- 
tration there, it follows that he should account for them in the 
domiciliary jurisdiction whose letters were the recognized cre- 
dentials in the case.^ And it is held in several American cases^ 
consistently with this rule, that, no conflicting grant of authority 
itppearing, the domiciliaiy appointee of another State may take 
charge of and control personal property of the deceased in the 
State of its situs.^ 



§ 1176. Voluntary Surrender of Assets in Local Jurisdiciion to 
Domiciliary Administrator. 
The powers of a representative being referable to the laws of 
the country or State from which he derives his authority, a for- 
eign executor or administrator can only collect assets in another 
jurisdiction by virtue of a legislative or sovereign permission. 
kSuch legislative permission is accorded on various terms; and 
the terms of such permission must be complied with.® We have 
seen that the representative is usually confined, in suits for the 
recovery of assets, to the territorial jurisdiction of his appoint- 
ment, and, subject to an ancillary appointment, to procuring! 
the residuum, after satisfying the claims and rights of residents 
in the ancillary jurisdiction.'^ But m&y not the title and authority 

20f). IS L. R. A. (X. S.) 149: Young 7. l^nprn, § 1174. Wliorcvor iho 

V. Kennedy, 95 N. C. 265. title to the corporeal thinjr, or in- 

4. Van Bokkelen v. Cook, 5 Saw- corporeal right owned by tlie decedent, 
yer, C. C. 587. becomes so perfected in the repre- 

5. Vroom v. Van Horn, 10 Paige, sentative under the foreign adminis- 
549, 42 Am. Dec. 94; Parsons v. Ly- tration, that a local and domestic ap- 
man, 20 N. Y. 103; Barnes v. Brash- pointment would be inappropriate, 
ear, 2 B. Mon. 380; Denny v. Faulk- he sliould be permitted to procure or 
ner, 22 Kan. 89. sue, as it seems, witliout a local ap- 

6. Harrison v. Mahorner. 14 Ala. jjointment. Purple v. Whited, 49 Vt. 
843; supra, §§ 1173, 1174: Cutrer 187. 

V. State, 54 So. 434, 98 Miss. 841 
(bond given). 

1148 



CHAP. VII.] FOREIGN AND ANCILLARY APPOINTMENTS. 



117G 



of a foreigii domiciliary representative be voluntarily recognized 
and debts paid him, or other assets voluntarily surrendered to him 
tliere? The doctrine of the English courts is, that such payment 
or surrender affords no protection against the claim of a local 
administrator.^ A preference for the English doctrine seems to 
be expressed in Justice Story's treatise, though he had judicially 
affirmed the contrary in a circuit decision.^ The Supreme Court 
of the United States, however, has maintained the validity of such 
payments or delivery of the assets, as between different States, 
60 as to discharge the local debtor or possessor; and the general 
current of American authority supports this doctrine ; there being, 
it is assumed, when such payment or delivery was made, no local 
administration.^ But this rule cannot be upheld, to the extent 
of violating the local law of the jurisdiction where the assets lie; 
and each State or country has the right to enlarge or limit the 
privilege and to prescribe the terms upon which it shall be con- 
ceded, or to denv it altoffcther.^ 



8. Whart. Confl. Laws, § 626; 
supra, § 1172. See Eames v. Hacon, 
50 L. J. Ch. 740. 

9. Story Confl. Laws, § 515 a; 
Trecothick v. Austin, 4 Mason, 16. 

1. Mackey v. Coxe, 18 How. 104, 15 
L. Ed. 299; Hutchins v. State Bank, 
12 Met. 425; Wilkins v. Ellett, 9 
Wall. 741, 19 L. Ed. 587; Parsons v. 
Lyman, 20 N. Y. 103: Abbott v. Mil- 
ler, 10 Mo. 141; Whart. Confl. Laws, 
§ 626; Hatchett v. Berney, 65 Ala. 
39, per Brickell, C. J.; Citizens' 
Bank v. Sharp, 53 Md. 521: Wilkins 
V. Ellett, 108 U. S. 256, 258, 27 L. 
Ed. 718. " If a debtor, residing in 
another State, conies into the State 
in which tlie administrator has been 
appointed, and there pays him, the 
payment is a valid discharge every- 
where. If the debtor being in that 
State, is there siied by the adminis- 
trator, and judgment recovered 



against him, the administrator may 
bring suit in his own name upon that 
judgment in the State where the 
debtor resides." Mr. Justice Gray 
in Wilkins v. Ellett, ib. ; supra, § 1173. 
2. Ib. Perhaps this doctrine of 
voluntary recognition is especially to 
be favored where payment or deliv- 
ery was made to the domiciliary 
executor under a probated will. See 
Shaw, C. J., in Pond v. Makepeace, 
2 Met. 114. Where a debtor makes 
payment of a naked debt to the prin- 
cipal administrator of his foreign 
creditor, he may be compelled to pay 
it again to a domestic representative 
subsequently appointed, and suing for 
it in the debtor's own jurisdiction. 
Young V. O'Neal, 3 Sneed. 55. Cf. 
Mackey v. Coxe, supra. And see 77 
N. Y. S. 256 (debtor should inquire) ; 
72 N. Y. S. 1068, distinguishing 117 
X. Y. 125, 22 N. E. 572, 15 Am. St. 



1149 



§ 1177 EXECUTOES A^'D ADMIXISTEATOKS. [PAET II. 

Wherever the domiciliary executor or administrator may pro- 
cure assets of the deceased from the local jurisdiction, without 
being obstructed by local claimants upon the estate, or by a local 
executor or administrator, and without having to invoke the aid 
of the local courts, his rights are favorably regarded in many of 
the later decisions. Foi, ^f local claims are satisfied out of the 
estate, the local sovereignty can rarely complain.^ 

§ 1177. Liability of Representative in Domestic Jurisdiction for 
Acts done Abroad. 

How far executors or administrators are liable in a domestic 
jurisdiction for acts done abroad, does not appear clearly settled ; 
and different States or countries may be expected to uphold their 
own legislative policy in preference to external systems. Beyond 
what has been already stated as to holding a domestic represcnta- 
tative responsible for assets received from abroad, and requiring 
a principal representative to pursue assets in an ancillary juris- 
diction, it would appear that a legal liability upon one's domestic 
statutory bond should be construed somewhat strictly with refer- 
ence to the statute in question.'* But one may be cliarged in equity, 
as trustee, for the misapplication of funds received from abroad. 
And in some States it is held that, if foreign executors or ad- 
ministrators come within the jurisdictional limits of the State, 

Rep. 494, 5 L. R. A. 541. See, fur- own name in the courts of another 

ther, 105 S. W. 952, 32 Ky. Law. 303; State; and may receive dividends on 

27 So. 735, 52 La. Ann. 1298; Moore and sell and transfer stock in a cor- 

V. Kraft, 170 F. 685, 103 C. C. A. poration of another State. All this, 

231 (may sue on a domestic judp- inasmuch as domiciliary letters vest 

ment debt) ; Owsley v. Central Trust tlie entire personal estate, subject to 

Co., 196 F. 412. the limitations wliich otlier jnris- 

3. An executor or aministrator dictions may liave rendered requisite 

under letters granted at the domicile for local protection. 51 N. J. L. 78, 

of the deceased may receive and <lis- 16 A. 191. See 76 Minn. 216 (local 

charge debts voluntarily paid him in mortgage indebtedness voluntarily 

another jurisdiction; may transfer paid to a foreign domiciliary c.xecu 

negotiable ohosoa in action so as to tor), 

enable the transferee to sue in his 4. Cabanne v. Skinker, 66 Mo. 357. 

1150 



CHAP. VII.] FOREIGN AND ANCILLARY APPOINTMENTS. § 117S 

they are liable to be held by creditors or to be brought to account 
by legatees or distributees f while in other States the rule appears 
to be, that the representative cannot be sued elsewhere, even on 
a judgment rendered against him in the State of his appointment, 
or, at all events, if charged in his representative character, and 
not de bonis propriis.^ 

§ 1178. Permitting Foreign Creditors to sue in the Local Juris- 
diction, 

Upon reciporcal terms, foreign creditors are sometimes per- 
mitted to come into the domestic jurisdiction and prosecute their 
claims against the local assets; not, however, in such a way as to 
gain an advantage over domestic creditors ; and, in general, they 
may fairly bo required to exhaust the foreign assets before at- 
tempting to have domestic assets subjected to their claims.^ Fur- 
thermore, a judgment rendered against the foreign administrator 
furnishes no right of action against tlie domestic administrator 
unless it appears that the latter has transmissible assets.^ 

But a judgment against one, in his character of executor or 
administrator, is not usually entitled to operate in another State 
with greater extent or force than in the State where it wCcS re- 
covered.^ And where a demand against the estate of a deceased 
non-resident is barred by the laws of the State where he was 
domiciled at the time of his death, it is equally barred in another 
State.^ 

5. Johnson v. Jackson, 55 Ga. 326; been proved. Cocks v. Varney, 43 
Swearingen v. Pendleton, 4 S. & R. N. J. Eq. 514, 8 A. 722. 

389 ; Gulick v. Gulick, 33 Barb. 92. 7. Fellows v. Lewis, 65 Ala. 343, 39 

See this subject discussed with con- Am. Rep. 1 ; Morton v. Hatch, 54 Mo. 

flicting citations. Story Confl. Laws, 408. 

§ 514, h; VYms. Exrs. 362, 1929, and 8. Carrigan v. Semple, 72 Tex. 306, 

Perkins's notes. 12 S. W. 178; 28 Tex. 503; Ela v. 

6. Pond V. Makepeace, 2 Met. 114; Edwards, 13 Allen, 48, 90 Am. Dec. 
Willard v. Hammond, 21 N. H. 382; 174; Stacy v. Thrasher, 6 How. 57, 
\Yms. Exrs. 362, note by Perkins. 12 L. Ed. 337. 

Executors cannot be called to account 9. Coates v. Mackey, 56 Md. 416. 

in a State wherein the will has not 1. Wernse v. Hall, 101 111. 423. 

1151 



§ 1179 EXECUTOES AXD ADMIXISTEATORS. [pAET n.. 

The attempt of a domiciliary creditor, who cannot prosecute 
his claim in the jurisdiction of last domicile, to enforce that claim 
upon assets, by procuring letters in another jurisdiction, is not ta 
be countenanced; and letters procured by him, on the allegation 
that he is a creditor, are improperly obtained.^ 

§ 1179. Principal and Ancillary Jurisdiction, how far Independ- 
ent of One Another. . 

It is held, in the Supreme Court of the United States, that dif- 
ferent executors of the same testator, appointed by his will in 
different States, are in privity with each other, and bear the same 
responsibility to creditors of the testator as if there were only one 
executor; and hence, that a judgment against the executors in 
one State is evidence against those in another State.^ But as to 
administrators, whose appointments are necessarily derived from, 
different sovereign jurisdictions, there is no such privity; and, 
according to the universal American rule, where uncontrolled by 
local statute, so independent are different ancillary administra- 
tions of the principal administration and of each other, whether 
in case of testacy or intestacy, that property and assets received 
in the one forum cannot be sued for nor its application compelled 
in another, nor can a judgment obtained in one such jurisdiction, 
furnish conclusive cause of action in another.* 

2. Wernse v. Hall, 101 111. 423. If trator. Carron Iron Co. v. Maclaren, 

the circumstances of a case are such 5 H. L. Caa. 416; Crofton v. Crofton, 

as would make it the duty of one 29 W. R. 169. A judfjment obtained, 

domestic court to restrain a party however, apainst the administrator by 

from proceeding in another domestic default in such proceedings would ap- 

court, they will also warrant it in pear to be only prima facie evidence 

imposing on him a similar restraint of the debt. Crofton v. Crofton, 29^ 

with regard to proceeding in a for- W. R. 169. 

eign court. But it is held in Eng- 3. Hill v. Tucker, 13 How. 458; 

land that chancery is not warranted, Goodall v. Tucker, ib. 469. 
even where an administration decree 4. Mr. Justice Wayne in Hill v.. 

has been obtained, to restrain a for- Tucker, supra; Harvey v. Richards, 

eifrn creditor from proccedinf; in a 1 Mason, 415. per Mr. Justice Story; 

foreign court against the adminis- Taylor v. Barron, 35 N. H. 484; Wms.. 

1152 



CHAP. VII.] FOREIGN AND ANCILLARY APPOINTMENTS. 



1179 



But the forum of original administration is the forum in which 
the final account is to be made; and this forum, though treating 
the allowance of probate accounts in the ancillary jurisdiction as, 
for the most part, conclusive of items there so returned, some- 
times reviews independently fundamental questions involving 
fraud and error in such ancillary administration, and affecting 
the distribution of the estate.^ 

Foreign executors and administrators cannot merely by virtue 
of their offices either prosecute or defend actions in the courts 
of other States or countries.^ The disability is, however, removed 
in some ins'tances by local statute; and in others by bringing part 
of the assets into the jurisdiction.^ And in the cases where the 
representative is not permitted to sue as such, in a foreign juris- 
diction, it is usually foimd that the subject-matter of the suit is the 
subject of local administration within such foreign jurisdicion.^ 
'Not is an executor or administrator suable, as a rule, in a foreign 
jurisdiction.^ 



Exrs. 363, and Perkins's n.; King v. 
Qarke, 2 Hill (S. C.) Ch. 611; 97 111. 
App. 270; 2 Kent Com. 434; Fay v. 
Haven, 3 Met. 109, and cases cited; 
Hedenberg v. Hedenberg, 46 Conn, 30, 
33 Am. Rep. 10; Magraw v. Irwin, 
87 Penn. St. 139; McCord v. Thomp- 
son, 92 Ind. 565. But as to foreign 
judgment, see Barton v. Higgins, 41 
Md. 539; Talmadge v. Chapel, 16 
Mass. 71. The possession of land by 
the loeal administrator for local 
administration cannot be disturbed 
by the foreign and domiciliary 
executor for the purpose of selling, 
until such local debts and adminis- 
tration charges are settled. Appcr- 
son V. Bolton, 29 Ark. 418; Sheldon 
V. Rice, 30 Mich. 296, 18 Am. Rep. 136. 
5. Clark v. Blackington, 110 Mass. 
369; Ela v. Edwards, 13 Allen, 48, 
90 Am. Dec. 174; Baldwin's Appeal, 



81 Penn. St. 441. See § 1173 supra. 

6. See § 1173, supra. 

7. Supra, § 1025. But see Martin 
V. Gage, 17 N. E. 310 (Mass.). 

8. Purple V. Whited, 49 Vt. 187; 
Kilpatrick v. Bush, 23 Miss. 199. 
Where an ancillary administration is 
had, the executor or administrator of 
the domicile cannot withdraw or dis- 
pose of tlie ancillary assets, by direct 
or indirect means, until the ancillary 
administration is settled, whether 
debts are found in the ancillary juris- 
diction or not. Du Val v. Marshall, 
30 Ark. 230. 

9. Jeft'erson v. Beall, 117 Ala. 436, 
and cases cited. " The accepted 
theory of administration is that the 
right and liability is purely repre- 
sentative, and exists only by force of 
the official character, and so cannot 
pass beyond the jurisdiction which 



73 



1153 



§ 1180 EXECUTORS AXD ADMIXISTEATORS. [pAET II. 

§ 1180. Responsibility where the same Person is Principal and 
Ancillary Representative, 

The want of privity between different administrators in different 
States has been so much insisted upon in this country, that Amer- 
ican authorities may be found, apparently to the effect that a 
person who is administrator of the same estate in different States, 
and who has received assets under both administrations, cannot 
be compelled to account for any such assets, except in the place 
where they were received.^ We apprehend that this is not en- 
tirely accurate, inasmuch as a point may be reached where the 
transfer of surplus assets from the ancillaiy to the principal ad- 
ministrator may be said to have actually t^ken place; and because, 
moreover, as we have shown, the principal is so far related to the 
ancillary administrator, meanwhile, that a certain duty exists of 
vrhich he cannot divest himself, namely, to hold the latter to his 
trust of making a transfer in conformity with the local law. And 
in accordance with 'this latter view, it is rulo-d that where the 
r^dministration, both at home and abroad, has been taken out by 
the same person, the presumption is that he has done his duty; 
and when he comes to settle his account in the State where dis- 
tribution is to be mad^, he cannot deny that he has received what 
the foreign administrator, if he had been a different person, would 
have been compelled to pay, and what he would have been bound 
in duty to demand and get.^ And the rational rule is that, the 
full and final settlement being made in the jurisdiction of last 
domicile, the principal representative must be held to account in 
the domiciliary jurisdiction for the whole of the personal prop- 
erty which has come to his hands, wherever found, or by what- 
ever means collected ; so that if he has a surplus in his hands 
arising out of the administration elsewhere, after paying the ox- 
grants it, and reserves to itself full TTow. 467; commented upon in Story 
and exclusive authority over all the Confl. Laws, § 529 ?). 
assets of the estate witliin it« lim- 2. Black, C. J., in Stokely's Estate, 

its." 117 Ala. 439. 19 Penn. St. 476, 483. And sec Bald- 

1. Stacey v. Tlirashcr, 6 How. 44, win's Appeal, 81 Penn. St. 441. 
12 L. Ed. 337; Aspdcn v. Nixon, 4 

11.54 



CHAl'. VII.] FOKEIGN AND ANCILLARY APPOINTMENTS. § 1181 

penses of administration and discharging liis own liabilities tbere, 
he becomes accountable for it in the domiciliary jurisdiction in 
the same manner as he would be if another had been appointed 
administrator and had paid over a balance.^ 

But where the same person is appointed administrator in two 
different States, each with its own separate fund for the due set- 
tlement of debts, funeral and burial expenses and administration 
charges, he is not bound to see that either estate is exonerated at 
the expense of the other, but should administer and dispose of 
each fund in good faith as the local law may require, so as to 
satisfy local claims.* 

§ 1181. Ancillary or Local Representative, how far Responsible 
for Assets, 

Since the ancillary or local representative represents only the 
assets of his particular jurisdiction, he is not responsible for assets 
in other jurisdictions; nor in such capacity alone, and indepen- 
dently of some appointment conferred in the jurisdiction of the 
decedent's last domicile or residence, does it appear that he has 
any right to follow assets elsewhere. His duty is to apply the 
local assets as the local laws may have determined ; paying local 
creditors, as such laws usually direct, and remitting the surplus 
as the local court may order. But even an ancillary and local 
administrator, who receives assets from some jurisdiction to which 
his authority did not extend, has no right to pervert them to his 
own use.^ 

An ancillary or local administrator has no authority, under the 
general limitations imposed by the rule of comity, to allow and 

3. Jennison v. Hapgood, 10 Pick. some States there is no statutory pro- 
77, 100. vision for ancillary administrations 

4. Cowden v. Jacobson, 165 Mass. as a distinct species; but administra- 
240, 43 N. E. 98. tions granted upon the estates of 

5. See Baldwin's Appeal, 81 Penn. non-residents stand upon the same 
St. 441; Wms. Exrs. 432; Fay v. footing as other administrations. 
Haven, 3 Met. 109 ; Norton v. Palmer, Carr v. Lowe, 7 Heisk. 84. See Cure- 
7 Cush. 523. Local statutes may be ton v. Mills, 13 S. C. 409. 

found to modify these rules. In 

1155 



§ 11S3 EXECUTOES AND ADMIXISTEATOES. [pAET II. 

paj claims of residents of the State or country where the principal 
administration was granted, especially where the claims originated 
abroad.^ 

§ 1182. Where different Executors are named in a Will for dif- 
ferent Sovereign Jurisdictions, 
We have seen that a testator may name one executor or set of 
executors for one State or country, and another for another State 
or country.^ And if, in doing so, he confines their duties to their 
respective jurisdictions, the case is not one of principal and auxil- 
iary (or ancillary) appointments. The fact that the executor of 
one locality has the same right to control assets here that the execu- 
tor of another locality has to control assets there, is hostile to the 
supposition that the executor of the last domicile shall be bound 
to charge himself with the assets abroad. The executor of last 
domicile may well demand that the assets be surrendered to him ; 
but there his duty ends, provided he has not the means to compel 
the surrender of such assets.* 

§ 1183. Where the Principal Representative cannot procure 
Foreign Assets, Legatees or Distributees may pursue. 
Where, by reason of the law in the jurisdiction of foreign ad- 
ministration, or otherwise, it appears impracticable for the domes- 
tic representative, appointed in the decedent's last domicile, to pro- 
cure the control of the foreign assets or surplus of foreign adminis- 
tration, it remains for -the legatees or distributees, by such pro- 
cedure in the foreign jurisdiction as may be suit-able, to obtain 
what belongs to them ; and if the name of the domestic representa- 
tive should be needful in such proceedings, the use of it may be 
granted upon proper terms.' 

6. Story Confl. Laws, §§ 334. 336, See, further, Aokerman v. Ackornian, 
337; 2 Kent. Com. 434; Shogogg v. 86 A. 542, 81 N. J. Eq. 437 (poculiar 
Perkins, 34 Ark, 117 and cases cited circumstance for procuring a full title 
in the opinion of the court; supra, to property). 

§ 1015. 9. Sherman v. Page, 85 N, Y. 123, 

7. Supra, § 1042. 129. 

8. Sherman v. Page, 85 N, Y. 123. 

11 50 



CHAP. VIII.] OFFICIATING WITHOUT AN APPOINTMENT. 



1184 



CHAPTER VIII. 

OFFICIATING WITHOUT AN APPOINTMENT. 

§ 1184. Executor de son Tort at Common Law defined. 

English ecclesiastical law has long applied an offi^iai name to an 
unofficial character; styling as executor de son tort (or executor 
of his own wrong) whoever should officiously intermeddle with 
the personal property or affairs of a deceased person, having re- 
ceived no appointment thereto. This designation is not apt, since 
it applies the term " executor " as well to intestate as to testate 
estates, and signifies, moreover, that the person who intruded his 
sei'vices had no legal authority in any sense. But courts have not 
clearly discriminated in the definition.^ In several American 
States the title executor de son tort is now simply repudiated ;^ 



1. Wms. Exrs. 257: Bennett v. Ives, 
■30 Conn. 329; Wilson v. Hudson, 4 
Harr. 168; Barron v. Burney, 38 Ga. 
264; Brown v. Durbin, 5 J. J. Marsh. 
170; White v. Mann, 26 Me. 361; 
Leach v. Pittsburg, 15 N. H. 137; 
Emery v. Berry, 8 Fost. 473; Scoville 
V. Post, 3 Edw. (N. Y.) 203; Hubble 
V. Fogartie, 3 Rich. 413. Williams 
observes (Wms. Exrs. 7th ed. 257, n.) 
that the definition of an executor de 
son tort by Swinburne, Godolphin, 
and Wentworth, is in the same words ; 
viz.: "He who takes upon himself 
the office of executor by intrusion, 
not being so constituted by the de- 
ceased, nor, for want of such con- 
stitution, substituted by the [ec- 
clesiastical] court to administer." 
Swinb. Pt. 4, § 23, pi. 1; Godolph. 
pt. 2, c. 8, § 1 ; Wentw. Off. Ex. c. 14, 
p. 320, 14th ed. " But," adds Wil- 
liams, " the term is, in tiie older 
books, sometimes applied to a lawful 

1157 



executor who mal-administers; as by 
the Lord Dyer in Stokes v. Porter, 
Dyer, 167 a." All this might seem 
to intimate that the stigma was 
originally applied with exclusive re- 
gard to estates where the deceased 
person had left a will. But the mod- 
ern cases above cited make it clear 
that the significance of executor de 
son tort is not so confined in modern 
practice; for the rule now is that a 
party intermeddling with the estate 
of a deceased person, and doing acts 
which an executor or administrator 
alone may do, will make himself lia- 
ble as executor de son tort. 

2. Field v. Gibson, 20 Hun (N. Y.) 
274; Fox V. Van Norman, 11 Kan. 
214; Ansley v. Baker, 14 Tex. 607, 65 
Am. Dec. 136; Barasien v. Odum, 17 
Ark. 122; 107 Ala. 355, 18 So. 141; 
73 Cal. 459, 14 P. 302, 15 P. 64; 
§§ 1189, 1190, post. 



§ 11S5 EXECUTORS AXD ADMINISTKATOK.S. [PAET II. 

and yet one's exercise of functions whicli properly pertain to ad- 
ministration without proper credentials, may, by whatever name 
we call iit., be brought to the attention of legal tribunals in any 
age or country. 

§ 1185. Various Circumstances under which one may act with- 
out having been qualified. 

It is obvious that one who performs acts which only a qualified 
executor or administrator could have properly performed, may 
act either as a wrong-doer, utterly without authority, or instead, 
in perfect good faith, as having a colorable right and perhaps ex- 
pecting the appointment; that the acts performed may be injurious 
to the estate, and obstructive to those lawfully entitled to its con- 
trol, on the one hand, or, on the other, beneficial and fairly designed 
for its protection pending the selection and qualification of a legal 
representative. While, moreover, some person who, as conditions 
develop, cannot receive probate credentials from the court, may, 
under one or another of such aspects, occupy a certain unofficial 
relation towards the estate of the deceased, the suitable executor 
named in the last will, or, if there be no will, the suiwiving hus- 
band, widow, or next of kin qualified to administer may, and 
almost of necessity must, before qualification, perform certain acts 
when death stops short the machinery of an individual's affairs ; 
acts which of themselves cannot be regarded perhaps as author- 
ized in advance by any 'tribunal, and yet are appropriate to the 
emergency; acts which letters subsequently granted should suffice 
to protect. Besides this, there are certain duties connected with 
supervising the funeral and burial, and involving expense to the 
estate, which may fitly devolve upon one's immediate relatives, 
rather than upon any executor or administrator at all, and which 
are usually performed, in fact, before any examination of the 
papers of the deceased serves to disclose what last will, if any, 
was left behind, how large was the estate, or who shall rightfully 
settle the affairs. 

According to the different aspects above suggested our modern 

1158 



CHAP. Vin.] OFFICIATING WITHOUT AN APPOINTMENT. § 1186 

law pronounces differently, as it would seem, upon acts performed 
with reference to the estate of a deceased person by one who at the 
time had not been legally appointed and qualified to administer. 
These differing aspects we shall endeavor to consider apart.^ 

§ 1186. Wrongful and Injurious Dealings with a Dead Person's 
Estate; Executor de son Tort, 
It is the wrongful or tortious iutermeddler, without claim or 
the color of a title, upon whom sound authorities in law fasten, 
in effect, the liabilities of executor de son tort, whether tliat stigma 
of a designation be applied to the intruder or not.* The old books 
cite, however, many examples in terrorem, to show that the slight- 
est misappropriation of 'the goods and chattels of a deceased person 
will constitute an executorship de son tort, unless one was a real 
executor or administrator; as, for instance, taking a bible or a 
bedstead ; or appropriating goods to one's own debt or legacy ; 
and even the widow of the deceased came within this category, it 
was said, if she milked the cows, or took more apparel than she 
was entitled to.^ Wherever one killed the cattle, consumed, wasted, 
or destroyed goods and effects of the deceased ; or sold, gave away, 
or loaned what belonged to the dead person's estate; he became 
an executor de son tort. Living in the house, and carrying on 
the trade of the deceased, wa« held an intermeddling in the same 
sense f so, too, paying debts or charges on account of the deceased, 

3. It has already been seen that their custody should expose one to 
administration has sometimes been the liabilities of an executorship de 
wholly dispensed with. § 1120. son tort. Milking is needful for the 

4. See Smith v. Porter, 35 Me. 287; health of such creatures; and as for 
Ward V. Bevill, 10 Ala. 197, 44 Am. so perishable a commodity as milk, it 
Dec. 478; Claussen v. Lufreuz, 4 is for the best interest of an estate 
Green (Iowa) 224; Flemings v. Jar- that it should be sold or appropriated 
rat, 1 Esp. 336. at once, account being duly made 

5. Wms. Exrs. 257, 258 ; Noy, 69 ; afterwards for the proceeds to the 
Godolph. pt. 2, c. 8, § 4; Dyer, 166 h. representative duly appointed. 

It seems absurd that the milking of 6. Hooper v. Summersett, Wight, 

cows by a widow or another having 16; Wms. Exrs. 259. 

1159 



§ 11S6 EXECUTOKS AKD ADMINISTRATORS. [pART II. 

unless the payment was made with one's own money ;^ also de- 
manding, collecting, and giving acquittances for debts due the 
estate of the deceased.^ All such dealings being tortious in theory, 
one's agent or servant who meddled knowingly with the assets 
of the deceased person might be treated as executor de son tort, 
fis well as his unqualified principal or master.' Creditors, too, 
who participated in the wrong collusively with the widow or kin- 
dred, have been held tlius liable.^ 

Where a person deceased gave his property to the person in 
whose house he died, it was held that the donee, by receiving and 
using the property, became an executor de son tort} And gen- 
erally one who holds property of a deceased person under color 
of some gift or sale from him in fraud of the deceased person's 
creditors, may be sued in that capacity.^ So, too, may a widow 
who continues, understandingly, in possession of her deceased hus- 
band's goods, and uses them as her own;* and her claim for sup- 
port or her interest in the estate cannot be offset to her full ac- 
counting.^ 

But acts performed towards one's property, by virtue of an 
agency whose revocation by death has not been brought home to 
the agent, will not constitute an executorship de son tort. x\s where 
a man left home, having placed money in the hands of his wife, 

7. Carter v. Robbins, 8 Rich. 29. 4.3 Eliz. c. 8, cited Wins. Exrs. 260. 

8. Godolph. pt. 2, c. 8, § 1; Wms. Cf. Barnard v. Gregory, 3 Dev. 223. 
Exrs. 259. Fraudulent transfers by the testate 

9. Sharland v. Mildon, 5 Hare, 469; or intestate are open to attack in the 
Turner v. Child, 1 Dev. L. 331. due course of settling the estate. 

1. Mitchell V. Kirk, 3 Sneed, 319. Bowdoin v. Holland, 10 Cush. 17; 

2. Gleaton v. Lewis, 24 Ga. 209. Norfleet v. Riddick, 3 Dev. 221, 22 

3. Edwards v. Harben, 2 T. R. 537; Am. Dec. 717. 

Alexander V. Kelso, 57 Tenn. 5 ; Wms. 4. Hawkins v. Johnson, 4 Blackf. 

Exrs. 261; Allen v. Kimball, 15 Me. (Ind.) 21; Madison v. Shockley, 41 

116; Norfleet v. Riddick, 3 Dev. L. Iowa, 451; 126 Mo. App. 348. 103 

221, 22 Am. Dec. 717; Tucker v. Wil- S. W. 510. And see aa to a surviving 

Hams, Dudley (S. C.) 329, 31 Am. husband, Phaolon v. Houseal. 2 Mc- 

Dec. 561; Hopkins v. Towns, 4 B. Cord Ch. 423. 

Mon. 124, 13 Am. Dec. 497; Simon- 6. Walton v. Hull, GO Vt. 456, 29 

ton v. McLane, 25 Ala. 353. And sec A. 803. 

1160 



CHAP. VIII.] OFFICIATING WITHOUT AN APPOINTMENT. § 118G 

who used it in paying liis debts and providing the needs of the 
family, before she received knowledge that he had died abroad.^ 
A voluntary conveyance of property, which is disposed of during 
the donor's lifetime, cannot be made the ground of a suit against 
the donee as executor de son tort;'' nor can transfers, by way of 
security or otherwise, which were made by the deceased during 
ibis life, and are unimpeachable as in fraud of his creditors.* One 
•who takes, by purchase or otherwise, property of the deceased, shall 
not, unless in collusion with the interaieddler, be chargeable as 
executor de son tort, but the intermeddler shall be charged alone.* 
In modem times, too, the innocent custodian or bailee is sheltered 
by the law; thus, one who holds the goods of a deceased person, 
under some colorable claim, as that of a lien, or by reason of some 
mistake, has been pronounced no executor de son tort at all ;^ and 
where one happens to be left in charge of a dead person's goods 
(as in case the death occurred at his house), he may keep them 
until he can lawfully discharge himself, without incurring the 
responsibilities of such an executorship.^ One may, under the 
circumstances presented, become the temporary bailee of a dead 
man's goods, to carry them home, with powers and responsibilities 
regulated accordingly.^ 

One, moreover, who takes and may claim as his or her own, 

6. Brown v. Benight, 3 Blackf. 39. given his note for the balance. 
See also Outlaw v. Farmer, 71 N. C. Rockwell v. Young, 60 Md. 563. 

31. 1. Flemings v. Jarrat, 1 Esp. 336; 

7. Morrill v. Morrill, 13 Me. 415. Wms. Exrs. 263. And this even 

8. O'Reily v. Hendricks, 2 Sm. & though one's claim of lien may not 
M. 388; Garner v. Lyles, 35 Miss. be positively established. 

176. Equity has jurisdiction of a 2. Godolph. pt. 2, c. 8 ; Wms. Exrs. 

bill by the creditor under such cir- 263. 

cumstances. lb. 3. Graves v. Page, 17 Mo. 91. One 

9. Paull v. Simpson, 9 Q. B. 365 ; who in good faith sells as the widow's- 
Wms. Exrs. 263 ; Smith v. Porter, 35 agent perishable property, and ac- 
Me. 287. One who buys assets of counts for the proceeds, is not liable 
the estate on credit from an execu- to the administrator afterwards ap- 
tor de son tort, may defend by show- pointed. Perkins v. Ladd, 114 Mass. 
ing that he has paid a part to the 420. 

legally appointed representative and 

llGl 



§ 11S7 EXECUTORS AXD ADMIXISTKATOES. [PAET H. 

property held by the decedent as bailee, does not bold sucb prop- 
erty as executor de son tortJ^ 

§ 1187. Executorship de son Tort; Legal Consequences. 

The legal consequence of becoming what was styled an executor 
de son tort, was to render one's self liable, not only to an action 
by the rightful executor or administrator, but also, so as to be 
sued as executor by a creditor of the deceased, or by a legatee;'' 
for, as Lord Cottenhaw observes, an executor de son tort has all the 
liabilities, though none of the privileges, that belong to the char- 
acter of executor.^ By the intermeddling of such a party, it was con- 
sidered that creditors had been aggrieved. Of his liability to the 
rightful executor or administrator we shall speak presently; tliis 
liability to the creditor or legatee deserving our previous attention, 
as something quite abnormal, and exposing the intermeddler to 
penalties by no means apportioned to his particular offence. 

Why a person who thus acts should be suable by third parties 
as an executor, is, so the older text-writers affirm, because strangers 
may naturally conclude from such conduct that he has a will of 
the deceased which he has not yet proved.^ Yet such a supposi- 
tion must, in many cases, be purely imaginary; the party who 
sued knowing perfectly well, all the time, that the intermeddling 
was wrongful, or done for some other and inconsistent pui'pose. 
Upon such a fiction, however, the pleadings are conducted. If 
the person sued as executor de son tort should plead ne unques 
executor, and the creditor suing him joined issue, the judgment 
on proof of acts such as constitute in law an executorship de son 
tort would be that the plaintiff recover the debt and costs, to be 

4. Morris v. Lowe, 97 Tenn. 243, 6. Carinichacl v. Carmichacl, 1 
36 S. W. 1098. Here a wife claimed Phil. Ch. 103. 

as her own what had been bailed to 7. 2 Bl. Com. 507, 508; Wms. Exrs. 

her husband and paid debts of the 265. See Grace v. Seibert, 85 N. E. 

estate out of her own means. See 308, 235 111. 790; Milbra v. Sloss- 

§ 1193. Sheffield Co., 62 So. 176. 

5. Wms. Exrs. 265; Bac. Abr. Ex- 
ecutors, B, 3. 

11 G2 



CHAP. VIII.] OFFICIATING WITHOUT AN APPOINTMENT. § 1187 

levied out of the assets of the testator, if the defendant have so 
much; but it not, then out of the defendant's own goods.* And 
all this heavy responsibility incurred in law, to creditors, because 
of giving away the dog or bedstead of the deceased debtor; a pen- 
alty out of all proportion to the character of the offence, and with 
so little exercise of real discrimination, that the gross intermeddler 
might fare hotter than a custodian who had thoughtlessly, and not 
wilfully, disposed of what was likely to spoil before a lawful rep- 
resentative could intervene.* While, however, by sincerely deny- 
ing that he was an executor, the incautious intermeddler might 
thus fall upon the thorns, it was open to him to escape the worst 
by taking the humor of the fiction, and alleging on his own part 
plene administravit ; under which plea he was only chargeable for 
the assets which had actually come to his hands, and might relieve 
himself by showing payments made to other creditors of equal 
or superior degree, so as to have exhausted such assets, or a de- 
livery of assets to the rightful executor or administrator before 
action brought.^ And by pleading both ne ungues executor and 
plene administravit, absurdly inconsistent as such pleas must have 

8. Wms. Exrs. 266; Cro. Jac. 648. 64; Hubble v. Fogartie, 1 Hill (S. C.) 

9. In Robinson v. Bell, 2 Vern. 147, 167, 26 Am. Dec. 163. The doctrine is 
it is intimated that in cases of gross considerably upheld in North Carolina, 
disproportion of this levy to the prop- Morrison v. Smith, Busb. L. 399 ; 
erty meddled with, equity will re- Bailey v. Miller, 5 Ire. 444. See Rid- 
lieve the executor de son tort; as die v. Hill, 51 Ala. 224; Ellis v. Mc- 
where the widow of an ale-house Gee, 63 Miss. 168. 

keeper is thus sued for debts of the 1. Wms. Exrs. 267; 1 Salk. 313. 

intestate on proof merely that she But payment made, after action 

had taken money for a few pots of ale brought, to the rightful administra- 

sold in the house after her husband's tor is not a good plea to the cred- 

death. Modern precedents decidedly iter's action. Curtis v. Vernon, 3 T. 

favorable on this point appear, how- R. 587; 2 H. Bl. 18; Morrison v. 

ever, to be wanting. Wms. Exrs. 266. Smith, Busb. L. 399. Yet it is held 

The English principles of pleading, that after action brought he may 

where one is sued by creditors as ex- apply the assets in his hands to the 

ecutor de son tort, are recognized in payment of a superior debt, and plead 

some American cases, — mostly early accordingly. Oxenham v. Clapp, 2 

ones. See Campbell v. Booth, 7 Cow. B. & Ad. 309. 

1163 



§ 1188 EXECUTORS AND ADMi:XISTEATOES. [PAET II. 

been, the intermeddler had a double means of escaping the perilous 
consequences of tie creditor's suit.^ 

§ 1188. Effect of Wrongful and Injurious Dealings, aside from 
the Theory of Executorship de son Tort. 
Aside from all fictions of an executorship de son tort, the ra- 
tional consequence of acting without authority in an estate must be, 
that the acts shall be judicially treated with reference to their in- 
jurious or beneficial character to the estate, as also to the situation 
and motives of the person whose conduct toward it is considered. 
The common-law pleadings, if carefully pursued, w^ere not un- 
favorable to such a discrimination ; and such a discrimination 
does a man of sense, unread in the law, draw when left, as any^ 
one may be, with assets of a dead person in his custody, which 
no one else for the moment has any legal right to demand of him. 
That he should be specially charged, and that to the extent of hav- 
ing to respond to creditors as well as to the lawful representative ; 
that he should be stigmatized by any such title as executor de son 
tort, unless he had injuriously intermeddled ; that the test should 
be, not whether he has dealt with prudent regard to the interests of 
others under the circumstances, but whether he has assumed official 
functions; is not likely to occur to him. And, accordingly, do 
we find the legislative policy of modem times tending to reject 
this antiquated theory of executorship de son tort, and defininsj 
one's liability, under circumstances like thesQ, by rules more con- 
sonant to reason and justice. For, otherwise, it might be said 
that the common law preferred that tlie personalty of a deceased 

2. ITooppr V. Summersett, Wight, iion, 2 T. R. 5?<1. Tl)c impolicy of 

20. An executor de son tort cannot allowinji; such a defence is the reason 

set up in defence to the creditor's given for refusing it admission, 

suit that he retained the property for Though it is otlierwise, if pendente 

his own debt; not even the rightful lite, he procures letters from the 

executor'B or administrator's assent court; for this appears to warrant 

■will give such a plea validity. See the inference that his previous acts 

Wms. Exrs. 269; Cro. Eliz. 630; Yelv. were performed under color of right. 

137; Bull. N. P. 143; Curtis v. Ver- See Wms. Exrs. 270; 2 Ventr. ISO. 

1164 



CHAP. VIII.] OFFICIATING WITHOUT AX ArPOINTMENT. § llSf> 

person should go to waste rather than let any one without regular 
authority take the responsibility of protecting it at a critical 
moment, even though that possession and responsibility had been 
thrust upon him without his agency. The acts, moreover, of one 
having the color of a title or a claim to administration, and like 
a widow, next of kin, legatee, or creditor, directly interested in 
preserving the estate, are, if so performed that the rightful allow- 
ance, share, legacy, or debt of the custodian may stand as in- 
demnity for the transaction, treated with increasing indulgence, in 
contrast with those performed by some stranger who officiously in- 
trudes. 

§ 1189. Modern Statutes restrict the Liability of Intruder to 
Creditors and Strangers. 

Modem legislation is found, therefore, to reduce very consid- 
erably this common-law liability of the executor de son tort; em- 
ploying perhaps, the old official title; but making such a person 
liable to the actions of creditors and others aggrieved, if liable 
to them at all, only for the property taken and to the extent 
of the actual damage caused by his acts f or, perhaps, in some 
definite penal sum based upon the amount of the estate taken by 
him.* Creditors cannot be considered aggrieved, under such 
statutes, without regard to the legal priorities observed among 
them, in settling an estate ; nor legatees, apart from the usual rule 

3. McKenzie v. Pendleton, 1 Bush, tion; and, if claiming to be a cred- 
164; Mitchel v. Lunt, 4 Mass. 654; iter, the defendant may challenge his 
Cook V. Sanders, 15 Rich. 63, 94 Am. right to be considered such by setting 
Dec. 139; Elder v. Littler, 15 Iowa, up the statute of limitations, etc. 
65; Hill V. Henderson, 13 Sm. & M. Brown v. Leavitt, 26 N. H. 493. See 
688; Stockton v. Wilson, 3 Penn. St. also Spaulding v. Cook, 48 Vt. 145. 
130; Collier v. Jones, 86 Ind. 342. And see 14 Or. 256, 12 P. 370. One 

4. Double the amount of the estate may be an executor de son tort with- 
intermeddled with is fixed by a New out becoming subject to a statute 
Hampshire statute. Bellows v. penalty for the ofTence of intermed- 
Goodal, 32 N. PI. 97. A party ag- ling without letters. 90 N. C. 553. 
grieved within this statute is one See 72 N. J. Eq. 740, 66 A. 1090; AI- 
who has a status in the courts as len v. Hurst, 48 S. E. 341, 120 Ga.. 
such at the time of bringing his ac- 763. 

1165 



§ 1190 EXECUTORS AKD ADMINISTEATOES. [pAET II. 

that the claims of creditors take precedence.^ So inequitable in 
fact were the tedious and expensive proceedings against inter- 
meddling at common law, with their partiality towards the credi- 
tor who invoked them, that present legislation inconsistent with 
that whole system may be fairly and not strictly construed.^ 

§ 1190. Liability of Intruder upon the Estate to the Rightful 
Executor or Administrator. 
Modem inclination, and that particularly of American States, 
tends, moreover, to the natural and reasonable doctrine of holding 
the intruder or officious intenneddler liable, according to the wrong- 
ful character of his acts, to the rightful executor or administrator 
upon the estate, and to him alone. Such a person must, accord- 
ing to the Massachusetts statute, for instance, respond to the right- 
ful executor or administrator for the full value of the goods or 
eifects of the deceased taken by him, and for all damages caused 
by his acts to the estate of the deceased ; and he shall not be al- 
lowed to retain or deduct any part of the goods or effects except 
for such funeral expenses, or debts of the deceased, or charges, as 
the rightful representative might have been compelled to pay.''' A 
purchase from an executor de son tort confers no better title than 
that of the vendor;^ subject to the usual exceptions in favor of 
the bona fide purchasers of negotiable instruments, for valuable 

5. McConnell v. McConnell, 94 111. Ind. 351; Ferguson v. Barnes, 58 Ind. 

295; Rozelle v. Harmon, 103 Mo. 169. 

339, 15 S. VV. 432, 12 L. R. A. 187. 6. 103 Mo. 343, 344, 15 S. W. 432, 

Where one died leaving no property 12 L. R. A. 187. 

but his wearing apparel, and his 7. Mass. Gen. Stats, c. 94, § 15. 

widow paid out of her own means the And see Hill v. Henderson, 13 Sm. & 

expense of his last sickness and bur- M. 088; Barasien v. Oduni, 17 Ark. 

ial, and gave to his brother a suit of 122. To take a collectible note, and 

his clothes of less value than the lose, by negligence, the opportunity 

amount thus paid out by her, it was to collect, may render one cliargeable 

held that she could not be held liable to the legal administrator. Root v. 

to a general creditor as executrix in Geiger, 97 Mass. 178. 

her own wrong. Taylor v. Moore, 47 8. Carpenter v. Going, 20 Ala. 587; 

Conn. 278. And see GofT v. Cook, 73 Rockwell v. Young, GO Md. 563. 

1166 



CHAP. VIII.] . OFFICIATING WITHOUT AN APPOINTMENT. § 1190 



consideration.^ But tlie execntor de son tort is thus compelled to 
account with only the rightful personal representative; and that, 
according as he may have wrongfully and injurously intermeddled 
with the estate, or the reverse.^ 

As a general rule, any one who assumes to dispose of personal 
property belonging to the estate of a deceased person may be held 
responsible to the rightful personal representative, in tort, as for 
.a conversion of the property, whether such representative receive 
his appointment before or after the conversion.^ If thus sued, 
one may show, in mitigation of damages, payments made by him 
such as the lawful executor or administrator would have been 
bound to make, though nothing beyond.^ But, while the act of 



9. As to the rights of a hona fide 
purchaser against all the world, ex- 
cept the legal representative, see 
Woolfork V. Sullivan, 23 Ala. 548, 58 
Am. Dec. 305. 

1. That some American States ex- 
pressly repudiate the theory of an 
executor de son tort, while leaving 
those who intermeddle liable to the 
rightful representative, see Ansley v. 
Baker, 14 Tex. 607, and other cases 
cited supra, § 1184. 

2. Manwell v. Briggs, 17 Vt. 176; 
Wms. Exrs. 270. And so, where the 
intruder was a wife whose husband 
is liable for her acts as at the com- 
mon law. Shaw v. Hallihan, 46 Vt. 
389, 14 Am. Rep. 628. 

3. Tobey v. Miller, 54 Me. 480; 
Reagan v. Long, 21 Tnd. 264; Saam 
v. Saam, 4 Watts, 432; Wms. Exrs. 
270, 271, and cases cited; Dorsett v. 
Frith, 25 Ga. 537; Weeks v. Gibbs, 9 
Mass. 74 ; McMeekin v. Hynes, 80 Ky. 
343; 68 Fed. 605. Application of 
assets to debts should be in due order 
of preference. Gay v. Lerale, 32 Miss. 
309. Whether, when sued in trover, 
one can show paj'ment of debts to the 
value of goods not sold but still in 

IIG 



his custody, see Wms. Exrs. 270, 
and n; Mountford v. Gibson, 4 East. 
447; WooUey v. Clark, 5 B. & Aid. 
744; Hardy v. Thomas, 23 Miss. 544, 
57 Am. Dec. 152. Upon the subject 
of recouping damages, local rules of 
practice in corresponding cases must 
be considered, and general works like 
that of Sedgwick on that subject. 
For similar limitations under stat- 
ute provisions see local statute, e. g., 
Mass. Gen. Stats, c. 94, § 15, cited 
supra. It is to be understood that 
the right to recoup debts paid is af- 
fected by the solvency or insolvency 
of the estate. Mountford v. Gibson, 
4 East, 453; Wms. Exrs. 271; Neal 
V. Baker, 2 N. H. 477. It is held in 
Alabama, however, that one who has 
received and used assets of an in- 
testate under circumstances consti- 
tuting him an executor de son tort, 
may show, when called to account in. 
equity by the rightful representative, 
that there are no outstanding debts, 
and that he has applied the assets 
for the use and benefit of the dis- 
tributees, as they must have been ap- 
plied in due course of administration 
Brown v. Wallcer, 53 Ala. 310. 

7 



§ 1101 EXECUTOES AND ADMINISTEATOES. [PART II. 

the intruder is itself tortious, as in selling, for instance, it may, 
nevertheless, be advantageous to tlie executor or administrator to 
waive the tort, and bring assumpsit for the proceeds; which he 
may accordingly do; and even for the tort the damages recover- 
able may be merely nominal/ 

The true modem principle appears to be, therefore, that one who 
intermeddles with the persona] property of a deceased person, and 
disposes of it or does any other act of administration of the assets 
without the authority or direction of the proper court, or of the 
will of the deceased, stands liable to the suit of the rightful execu- 
tor or administrator, for whatever he may have taken or disposed 
of unlawfully ; he must account fully and he cannot tlirough his 
wrong acquire any benefit for himself. But, on such accounting^ 
he is protected in all acts, not for his benefit, but for that of the 
estate, and in such as were proper in any administration. He 
cannot be charged beyond the assets which came to his hands, and 
against these he may set off the just debts which he has paid.^ 

§ 1191. Intermeddling with Lands of the Deceased. 

^o intermeddling with the lands of the deceased will charge 
a person as technical executor de son tort; for such interference, 
on general principles, is a wrong done immediately to the heir or 
devisee.® And the fact, that an executor de son tort does not 
collect the effects and pay the debts, will not justify creditors in 
levying on the real estate of the deceased ; for the lands of the 
deceased are in no sense assets in the hands of an executor de son 

ioh: 

4. Upchurch v. Nosworthy, 15 Ala. v. Licht, 21 Penn. St. 98; Rockwell v. 

705; 52 Penn. St. 370. A bill in Young, 60 Md. 563. 
equity by distributees against an in- 5. Cases supra; 68 Fed. 605. 

termcddlcr should make the rightful 6. Mitchel v. Lunt, 4 Mass. 654; 

jtcrsonal reproHentative a party plain- King v. Lyman, 1 Root, 104; Nasa v. 

tiff or defendant. Nease v. Capehart, Van Swearingen, 7 S. & R. 196; Ela 

8 W. Va. 95. V. Ela, 47 A. 414. 70 N. H. 163. See 

See further, Ross v, Newman, 26 Stratford v. Parker, [1914] 2 K. B. 

Tex. 131, 80 Am. Dec. 646; Sellers 562. 

7. Parsons, C. J., in Mitchell v. 

1168 



CIIAr. VIII.] OFFICIATING WITHOUT AN APPOINTMENT. § 1193 

§ 1192. Liability of One who administers under Void Letters, 
etc. 

Where one takes out letters under a void or voidable grant, as 
executor or administrator, it is said, sometimes, that he becomes 
executor or administrator de son tort} That he shall be held 
answerable for his official acts committed de facto, to the same 
extent as if he had been rightfully appointed, and must make good 
all losses occasioned through maladministration, purging himself 
of blame, and rendering due account, we cannot doubt; but it does 
not appear that his status is that of the common-law executor de 
son tort, necessarily, uuder circumstances which impute to him no 
intentional wrong,^ 

§ 1193. Beneficial Dealings with a Dead Person's Estate by One 
not appointed. 
Upon the ancient theory of intermeddling, various acts, bene- 
ficial in their character, might be performed without exposing one 
to the perilious risk of an executor de son tort; though the dis- 
crimination made was a very cautious one. One might order or 
furnish a funeral suitable to the estate of the deceased, and defray 
the cost out of such estate or his own private means ;^ or supply 
the young children of the deceased with necessaries; ox feed his 
cattle, ov make out an inventory, or lock up the effects ; or move the 
property to some secure place; or carry or send it to his home 
and to lawful representatives; and, in general, take good care of 
it, according to the circumstances and its situation.^ All these were 

Lunt, 4 Mass. 654; 5 S. E. 629, 80 Williams v. Kiernan, 25 Hun (N. Y.) 

Ga. 260. But cf. Part VI. post. And 355. 

Bee Minck v. Walker, 88 A. 378, 81 1. The ordering of the funeral and 

N. J. Eq. 112. even of the immediate place of burial 

8. Bradley v. Commonwealth, 31 belongs naturally to the surviving 
Penn. St. 522. And see Damouth v. spouse or immediate family. 167 
Klock, 29 Mich. 290; 49 Ala. 137, 586. Mass. 307, 45 N. E. 748. And see 

9. See supra, c. 6; Plowd. 82; Wms. §§ 1421, 1422. 

Exrs. 272. A void administration 2. Brown v. Sullivan, 22 Ind. 359, 

fraudulently procured may render the 85 Am. Dec. 421 ; Church, J., in 
administrator and his sureties liable. Bacon v. Parker, 12 Conn. 212; 
74 1169 



§ 1193 EXECUTOKS AIVD ADMIXISTEATOES. [PAET II. 

said to be " offices merely of kindness and cliarity,"^ or, one 
should say rather, beneficial acts and offices of decency and pru- 
dence, commendable thougb performed from less exalted motives.* 

Legal and proper acts done by an executor de so-n tort, more- 
over, are held good against the true representative of the estate, 
if the latter would have been bound to do likewise in the due 
course of administration; and the fair sale of goods, or payment 
of money out of the assets which the executor de son tori con- 
trolled, in order to discliarge debts binding to their full extent 
upon the estate of the deceased, should not be needlessly dis- 
turbed by the true representative;^ or, at all events, where the 
parties to the transaction appear to have acted in good faith, pru- 
dently, and honestly.^ Piiidence is exacted not only from admin- 
istrators and executors, but from custodians and other bailees; 
and diligence to keep the estate from loss is not only commendable 
in one who has a temporary charge, but a matter of duty.^ 

Again, the circumstance that a widow is left in possession of 
some goods of her deceased husband does not, as modem practice 
inclines, justify a ready inference of executorship de son tort on 
her part, with its penal obligations; especially if young children 

Graves v. Page, 17 Mo. 91; Wms. 5. 1 Ld. Raym. 661; Plowd. 282, 

Exrs. 262; Godolph. pt. 2, c. 8; Har- The reason said is (Lord Holt, 1 Ld. 

rison v. Rowley, 4 Ves. 216; 119 N. Raym. 661) that the creditors are not 

C. 510. Receiving a debt due the bound to seek farther tlian him wlio 

estate, for the alleged purpose of pro- acts as executor. 

viding the funeral, may or may not 6. But sec Mountford v. Gibson, 4 

constitute one an executor de son East, 441, as to solitary acts of 

tort, according as the assets so pro- wrong. Payments made in rightful 

cured were reasonably small or un- course of administration, and proj)- 

reasonably great for that purpose. erly chargeable upon tl»e estate, may, 

Camden v. Fletcher, 4 M. & W. 378. we have seen, be set off by the execu- 

And see Taylor v. Moore, 47 Conn. tor de son tort. Supra, § 1190. See 

278. Peters v. Leader, 47 L. J. Q. B. 573. 

3. Swinb. pt. 2, § 23 ; Wms. Exra. 7. Sec Root v. Geiger, 97 Mass. 173 ; 
262. Graves v. Page, 17 Mo. 91; SchouL 

4. " It is clear that all lawful acts Bailments, pa.'isim. 
•^hich an executor de son tort doth, 

are good." 5 Co. 30 b. 

1170 



CHAP. VIII.] OFFICIATING WITHOUT A^^ APPOINTMENT. § 1194 

must be maintained by ber;^ nor sbould the act of any otber per- 
son or public official, vested with proper custody of a dead per- 
son's estate, pending the appointment and qualification of a legal 
representative. For this is very different from the taking of 
custody by an utter stranger, to the detriment of kindred and 
otbers immediately concerned.^ 

But for contracts made by a third person with some relative 
OT a stranger and not with the personal representative, and while 
there was in fact no personal representative of the estate, the 
representative cannot after his appointment be held liable against 
his consent.^ In general, however, he may ratify beneficial deal- 
ings with the estate, and thus assume the responsibility.^ 

§ 1194. Acts done by a Rightful Executor before qualifying. 
It remains to consider the effect of acts done by the legal rep- 



8. Chandler v. Davidson, 6 Blackf. 
367; McCoy v. Paine, 68 Ind. 327; 
Crashin v. Baker, 8 Mo. 437. See 
Peters v. Leader, 47 L. J. Q. B. 573, 
a late English case, where a widow, 
compelled to vacate premises, who 
moved some of the furniture and sold 
the rest at auction, was held to be 
no executrix de son tort, she duly 
accounting to the administrator af- 
terwards. Nor was the auctioneer so 
liable. lb. But for injurious inter- 
meddling the widow must respond. 
66 Vt. 455, 29 A. 803. See Merrill v. 
Comstock, 143 N. W. 313, 154 Wis. 
434 (widow not liable for using assets 
in paying proper funeral expenses ) . 

Under the Georgia code, if one 
chargeable as executor de son tort 
dies, bis administrator as such is 
cliargeable to the same extent as the 
intestate; but by no technical con- 
struction does the latter become per- 
sonally chargeable because of his own 
intestate's wrong. Alfriend v. Daniel, 

11 



48 Ga. 154. As to the effect of a 
widow's re-marriage, in making her 
husband an executor de son tort, 
technical wrong is not favored. Winn 
V. Slaughter, 5 Heisk. 191. 

But parties who have assumed with- 
out authority to administer an es- 
tate, and claim to have administered 
fully, are estopped, when called upon, 
either in a probate court or a court 
of equity, for an accounting, from de- 
nying their representative character, 
or their liability to account accord- 
ingly. Damouth v. Klock, 29 Mich. 
290. 

9. Taylor v. Moore, 47 Conn. 27S. 
And see 97 Tenn. 243; 163 Mass. 202. 

1. Watson, R€, 19 Q. B. D. 234. 
Here a solicitor did work which he 
considered for the benefit of the 
estate and tried to make the admin- 
istrator pay his bill of costs after- 
ward. 

2. See Seaver v. Weston, 153 Mass. 
202, 53 S. W. 763. 

71 



§ 1194 EXECUTORS AIS'D ADMINISTKATOES. [pART II. 

resentative before he has been duly appointed and qualified. The 
old law inclined to treat executors and administrators differently 
in this respect. Upon an executor, the various preliminary acts 
■which pertain to preserving the personal estate, like a prudent 
bailee, and (as it might happen, besides) ordering the funeral 
and meeting other emergencies of the situation, were thought to 
devolve most fitly ; for courts of common law and equity looked 
chiefly to the title one derived from the testator's own selection; 
regarding probate and qualification in the ecclesiastical court as 
of secondary importance. All acts of this character performed by 
an executor were confirmed by his subsequent probate credentials; 
credentials which English courts have pronounced to be not the 
foundation but only authenticated evidence of the executoi-^s title.' 
ISlore than this, an executor by sole virtue of the authority which 
his testator had conferred upon him, might proceed at once to do 
almost all the acts incident to his office, except to sue.* He might 
seize and take any of the testator's personalty, entering peaceably 
for that purpose into the house of heir or stranger ; he might, as 
it was said, collect, release, and compound debts due the estate;^ 

3. 9 Co. 38 a; Plowd. 281: Wm3. Plowd. 281; Oughton v. Seppings, 1 
Exrs. 293, 629; Woolley v. Clark, 5 B. & Ad. 241; Wms. Exrs. 306. 307. 
B. & Aid. 745; 2 W. Bl. 692; White- A bailee's title is enough for many 
head v. Taylor, 10 Ad. & E. 210. sucli cases. But where the executor's 

4. In order to sue, as we shall see suit is on behalf of the estate, and in 
hereafter, letters of authoritj' ap- a representative capacity, the letters 
propriate to the jurisdiction were must be produceil. 1 Salk. 285 ; 3 
generally needful. See Dixon v. Ram- Taunt. 113; Webb v. Adkins, 14 C. 
say, 3 Cranch, 319. Where an execu- B. 401. Yet it is held that, provided 
tor had actual possession of the per- the credentials be produced in season, 
sonal property in question, he might, the suit may be commenced before 
on general principle, sue another who probate. 1 Salk. 307; Wms. Exrs. 
had acquired it under a contract 308. The latest Englisli rule is, how- 
with himself, or, as having been ever, tliat all proceedings (c. r/., a 
wrongfully dispossessed l)y a suit against bankers of (he decedent) 
stranger, sue for the wrong done him slionld be stayed until probate is 
in trespass, trover, or replevin. For granted. Tarn v. Coniniercial Bank, 
here actual possession makes a 12 Q. B. D. 294. 

privia facie title sufTicient to serve 5. But as to releasing, compound- 

as the foundation of an action. ing debts, etc., see c. 5, pvst, Part IV. 

1172 



CHAP. VllI.J OrFlCIATIiVG WITHOUT AN APPOINTMENT. § 1194 

lie might distrain for rent due the testator, and enter upon his 
torms for years; he might settle or assent to the claims of credi- 
tors and legatees upon the estate; he might, at discretion, sell, 
give away, assign, or otherwise transfer and dispose of the testa- 
tor's goods and chattels; and all this before probate.* Although 
the executor might die before probate after doing any of those 
acts, the act itself stood firm and good ; and, by such death, the 
executorship was not avoided but only brought, so to speak, to 
an end.^ If, however, what the executor had thus done before 
probate was relied upon by another, as the foundation of his title 
or right, and its enforcement sought, — as in the case of a transfer 
of certain assets belonging to the estate, — it would be necessary to 
show a probate; and hence, subsequent letters to this executor, or, 
if he died without having obtained them, letters to another with 
the will annexed, would have to be produced.^ And so, corre- 
spondingly, if enforcement was sought on behalf of the estate 
against another, by virtue of an arrangement entered into before 
probate.* 

Tt is generally admitted in this country, as in England, that 
one's appointment as executor relates back so as to absolve him 
from all personal liability for acts committed before his appoint- 
ment without a strict probate sanction ; though this, by fair in- 
ference, affords immunity only as to acts which come properly 
within the authority and scope of a rightful representative.-^ Amer- 
ican legislation departs so far, however, from the older theory, 
that, as we have elsewhere shown, no appointment as executor 
may be safely deduced from the will itself, even though the right- 

6. Godolph. pt. 2, c. 20; Rex v. 9. Newton v. Metropolitan R., 1 Dr. 
Stone, 6 T. R. 298; Whitehead v, & Sm. 583. 

Taylor, 10 Ad. & E. 210; Wms. Exrs. 1. Bellinger v. Ford, 21 Barb. 311; 

302, 303. Brown v. Leavitt, 6 Fost. 493; Stock- 

7. 1 Salk. 309; Johnson v. War- ton v. Wilson, 3 Penn. St. 130; 
wick, 17 C. B. 516; Wms. Exrs. 303, Shirley v. Healds, 34 N. H. 407; 
304. Dawes v. Boylston, 9 Mass. 337, 6 

8. Johnson v. Warwick, 17 C. B. Am. Dec. 72; Johns v. Johns, 1 Mc- 
516; Pinney v. Pinney, 3 B. & C. 335. Cord, 132; Wiggin v. Swett, 6 Met. 

197; 55 N. J. 456, 37 A. 455. 

1173 



§ 1194 



EXECUTORS AXD ADMIXISTEATOES. 



[PAET II. 



ful probate of that will were unquestioned ; for, as American 
statutes so frequently provide, tlie will should be presented speedily 
for probate, nor should an executor designated therein act as one 
having genuine authority, until he has been duly appointed by 
the court and has qualified by giving bonds. Hence, acts not of 
themselves justifiable in the prudent interest of the estate, pend- 
ing one's full appointment, are not likely to be upheld as readily 
in this country as in England ; and, if because of his death or the 
proper refusal of the court to appoint him, or his failure to qualify 
as the law directed, some one else should be appointed in his 
stead, his imprudent and officious dealings with the estate, mean- 
while, his needless transfers, and hasty promises, may involve ■ 
him and his own estate in trouble, rather than bind the estate 
which he assumed to represent.^ 



2. See next section as furnishing 
analogous cases under the head of 
administration. But the rightful ex- 
ecutor, tliough without official author- 
ity in Connecticut, may lawfully re- 
ceive into his possession here assets 
if voluntarily delivered to him; and 
may approve of payments in some in- 
stances. Selleck v. Rusco, 46 Conn. 
370. See Dixon v. Ramsay, 3 Cranch, 
319, 37 App. D. C. 296; Gall v. Stoll, 
102 N. E. 225, 259 111. 174 (can do 
no more, before probate and qualifi- 
cation, than to pay funeral expenses 
and preserve the estate ) . 

As to the executor's title, the true 
theory appears to be (unless where 
the doctrine of relation applies) that 
the personal estate of the deceased 
vests in him before probate, as a sort 
of trustee for the creditors, legatees, 
and wlioever else may be interested in 
the estate under the will. Clapp v. 
Stoughton, 10 Pick. 463; Sliirley v. 
Healds, 34 N. H. 407. He is not only 
sole trustee in this sense, but the only 
legal representative of the deceased, 



and, as such, the person who should 
cause the will to be proved; and he 
is aggrieved by any decree which di- 
vests him of his title in the estate of 
the deceased, or which disallows, re- 
jects, or refuses the probate of the 
will. Wiggin v. Swett. 6 Met. 197, 
39 Am. Dec. 716; Shirley v. Healds, 
34 N. H. 407; Brown v. Gibson, 1 
Nott. & M. 326. All this, we pre- 
sume, is to be said in strictness only 
of an executor who virtually accepts 
the trust under the will, and proceeds 
for probate, qualification, etc., con- 
sistently with that intention; for, if 
he refuses the trust, or the will is 
invalid, or he fails to qualify, the title 
appears to be practically in abeyance 
as in the case of administration; and 
another title, such as that of special 
administrator, must sometimes and 
for certain purposes intervene. 

Notice of the dishonor of a note 
sent to an executor before his quali- 
fication is sufficient. Shoenberger v. 
Savings Institution, 28 Penn. St. 459. 



CHAP. VIII.] OFFICIATI]^G "WITHOUT AN APPOIISTTMENT. § 1195 

§ 1195. Acts done by a Rightful Administrator before qualifying. 
An administrator may, by relation, ratify and make valid all 
acts which come within the scope of a rightful administrator's 
authority f and whatever dealings, justifiable on this principle, and 
in the interest of the estate, he may have had with it before his 
appointment, are cured, in modem practice, by the grant of sub- 
sequent letters.'* The modem tendency, in fact, is to look 
indulgently upon previous acts and dealings, not positively arbi- 
trary and wrongful on his part, for which he can show a subse- 
quent appointment; and thus is lessened the force of earlier dis- 
tinctions which availed more strongly in an executor's favor. Such 
beneficial acts as have been seen not to constitute one an execu- 
tor de son tort are certainly protected by a subsequent appoint- 
ment as administrator; and even acts less justifiable in theory, 
such as selling or pledging sundry chattels of the deceased, have 
been sustained on the ground that the act was beneficial to the 
estate,^ or at least such as others had no reason to complain oif 
while, of course, for acts injurious to the estate, previous to his 
appointment, one must respond.^ The greater leniency appears 
due where the appointee had previously the responsibility of cus- 
todian of the dead person's effects, and acted virtually in that 
capacity. 

3. Alvord V. Marsh, 12 Allen, 603; buj's hay to feed cattle belonging to 
Outlaw V. Farmer, 71 N. C. 35. the estate, he may be sued for the 

4. Bellinger v. Ford, 21 Barb. 311; price, notwithstanding credit was 
Emery v. Berry, 8 Fost. 473; Shilla- given to the estate. "Credit to the 
ber V. Wyman, 15 Mass. 322; Globe estate means, if it means anything, 
Insurance Co. v. Gerisch, 163 111. credit to the administrator, who, if 
625, 54 Am. St. Rep. 480, 45 N. E. he makes a cash act for the benefit of 
563; 75 S. E. 750, 114 Va. 20. the estate after the intestate's death, 

5. Moore, 126; 1 Salk. 295; Wms. may be personally sued thereon." 
Exrs. 407, 408 ; Mountford v. Gib- Tucker v. Whaley, 11 R. I. 543. And 
son, 4 East, 446; Magner v. Ryan, 19 see Luscomb v. Ballard, 5 Gray, 403, 
:Mo. 196; Rattoon v. Overacker, 8 66 Am. Dec. 374. 

Johns. 126; Priest v. Watkins, 2 Hill 7. Jones v. Jones, 118 N. C. 440, 24 

(N. Y.) 225, 38 Am. Dec. 584. S. E. 774 (as in cancelling a just 

6. Taylor v. Moore, 47 Conn. 278. debt). 
Where one before his appointment 

1175 



§ 1195 EXECUTOES AND ADMIXISTKATORS. [PART II. 

To an action on a judgment obtained against an executor de 
son tort, the latter has been permitted to show his subsequent 
appointment as administrator, and a full settlement of the es- 
tate as insolvent ; * and his promise before appointment to pay a 
debt will not prevent the bar of limitations to a suit brought after 
his appointment against him.^ As a defendant, such an adminis- 
trator, properly speaking, becomes personally answerable for his 
transactions, without the scope of authority ; ^ but he may, after 
his appointment, obtain immunity on his accounts for such tran- 
sactions as are proper." 

According to the old law, it is true, executors and administrators 
were differently treated.^ For an administrator's title, being 
founded in letters and on a formal appointment by the court, such 
officer had no right of action, it was said, until he had actually re- 
ceived his credentials.* This distinction, however, has become of 
little consequence at the present day, — and especially in the United 
States, — for both executors and administrators are required by our 
probate law to qualify before the appointment can be considered as 
of full legal force. Appointment and qualification, whether of ex- 
ecutor or administrator, cause one's letters of authority, when 
granted, to relate back for most practical purposes, therefore, to the 
time of the death of the testate or intestate whose estate is to be set- 

8. Olmsted v. Clark, 30 Conn. 108. a; Whiteliead v. Taylor, 10 Ad. & El. 
But not semble to set up his own 210; 2 W. Bl. 692; Shirley v. Healda, 
Avrong so at to defeat the judgment. 34 N. H. 407 ; Dawes v. Boylston, 9 
Walker v. May, 2 Hill Ch. 22. Mass. 337; Johns v. Johns, 1 McCord, 

9. Hazelden v. Whitesides, 2 132; Wiggin v. Swett, 6 Met. 197. 
Strobh, 353. See post, Pt. V., c. 5. The executor may accordingly release 

1. Wma. Exrs. 405-407 ; 1 Salk. a di^ht due to the deceased before 
295; 5 B. & Ad. 188; Parsons v. procuring probate. 9 Co. 39 a. So 
!Mayesden, 1 Freem. 152. he may maintain trespass, trover, 

2. Mountford v. Gibson, 4 East, etc., for goods taken out of his poa- 
446; Wma. I']xrs. 407. Aa to con- session before probate of the will, 
firming a sale after appointment, see Com. Dig. Exrs. B, 9; supra, § 1194. 
also Hatch v. Proctor, 102 Mass. 351. 4. Woolley v. Clark, 5 B. & Aid. 

3. Woolley v. Clark, 5 B. & Aid. 745;, Wms. Exrs. 030; 5 B. & Aid. 
745; Wms. Exrs. 629; 9 Co. 38 a, 39 204; Pratt v. Swaine, 8 B. & C. 285. 

117G 



CHAP. VIII.] OFFICIATING WITHOUT AN APPOINT^MENT. § 1195 

tied, the title meanwhile being in a sort of abeyance.^ Even the 
old text writers an English ecclesiastical law admitted that, for 
particular purposes, letters of administration would relate back of 
the date or grant to the time when the intestate died. Thus, an ad- 
ministrator might bring trespass or trover for goods of his intes- 
tate taken before letters were granted him, the necessity of the case 
overriding the legal theory of a dispossession ; ^ so might he ratify 
a sale of effects of the deceased made before his appointment, and 
recover the price ; ' and in various other instances take officially 
the benefit of contracts previously made on account of the estate.' 
I'urthermore, on the doctrine of relation, an administrator entitled 
to bring trover for a conversion has been permitted to waive the 
tort and recover as on a contract. And there are various instances 
of acts done by an administrator before appointment, such as sell- 
ing and contracting charges, which, being prudent and reasonable 
in the interest of the estate, have been held valid ; for, though the 
act were that of an executor de son tort, in some such instances, 
yet letters may relate back so as to legalize even technically tor- 
tious acts ; ' and here we are to observe that the peculiar liability 
of an executor de son tort to creditors, to the rightful administa- 
tor, or to others, who may have suffered by his wrongful acts, is 
not necessarily in question when the transaction itself calls for en- 
forcement.^ Moreover, an executor might commence an action at 
law before proving the will, getting his appointment completed in 
season for his declaration, while an administrator would have to 
get his appointment first ; and yet, in chancery suits, executors and 
administrators have been treated on substantially an equal footing 

5. Lawrence v. Wright, 23 Pick. 7. Foster v. Bates, 12 M. & W. 226, 
128; Alvord v. Marsh, 12 Allen, 603; 233. 

Babcock v. Booth, 2 Hill, 181, 38 8. Wms. Exrs. 632; Bodger v. 

Am. Dec. 578 ; Wells v. Miller, 45 111. Arch, 10 Ex. 333. 

382; Goodwin v. Milton, 25 N. H. 9. Wms. Exrs. 406, 632; Welchman 

458. V. Sturgis, 13 Q. B. 552; 1 Salk. 295; 

6. Foster v. Bates, 12 M. & W. 226, Hatch v. Proctor, 102 Mass. 351. 
233 ; W^ms. Exrs. 631. 1. Hatch v. Proctor, 102 Mass. 351, 

354. 

1177 



1195 



EXECUTORS AXD ADMINISTKATOES. 



PAKT TI. 



in this respect,^ Modem statutes, to some extent, regulate ex- 
pressly the devolution of title to personal property where one dies 
intestate ; ^ and tend to put executors and administrators, before 
the issuance of letters, upon a corresponding footing of authority.* 



2. Bateman v. Margerisoii, 6 Hare. 
496; 3 P. Wms. 351; Wooldridge v. 
Bishop, 7 B. & C. 406; Wms. Exrs. 
405; Gatfield v. Hanson, 57 How. 
(N. Y.) Pr. 331. 

3. Thus the English statute 3 & 4 
Wm. IV. c. 7, permits the adminis- 
trator to claim for the purpose of the 
act as if he had obtained tlie estate 
without interval after the death of 
the deceased. By stat. 22 & 23 Vict, 
c. 95, § 19, the personal estate and 
effects of any person dying intestate, 
shall from his decease and until the 
grant of administration vest in the 
judge of the court of probate to tlie 
same extent, etc., as heretofore in 
the ordinary. See Wms. Exrs. 635. 

4. By 2 New York Rev. Stat. 71, 
§ 16, the executor is inhibited from 
transferring assets until letters are 
issued to him; and the statute ap- 
plies notwithstanding full powers of 
sale are expressly conferred by the 
will. Humbert v. Wurster, 22 Hun 

(N. Y.) 405. 

A person to whose order money be- 
longing to an estate was paid, I)efore 
an administrator was appointed, is 
accountable therefor to the adminis- 
trator when appointed, although the 
money or its avails never came to his 
actual use. Clark v, Pishon, 31 Me. 
503. 

" By the law of this State," ob- 
serves the court in Hatch v. Proctor, 
102 Mass. 351, 354, " the letters of 
administration, by operation of law, 
make valid all acts of the adminis- 



trator in settlement of the estate from 
the time of the death. They become 
by relation lawful acts of adminis- 
tration for which he must account. 
And this liability to account involves 
a validity in his acts which is a pro- 
tection to those who have dealt with 
him." And see Hoar, J., in Alvord 
V. Marsh, 12 Allen, 603. The doc- 
trine of relation, however, appears not 
here applicable so as to constitute an 
estoppel as to title against the sound 
interests of the estate. Cooley, J., 
in Gilkey v. Hamilton, 22 Mich. 283, 
286, 287, well observes that, while 
this doctrine is quite necessary to 
the protection of the interests of the 
estate, this necessity is the reason 
upon which it rests, and it is no part 
of its purpose to legalize lawless acts 
which may, and generally would, 
work the estate a prejudice. " Cer- 
tainly," he adds, " there is nothing in 
the fact that a man is appointed ad- 
ministrator, who has previously mis- 
conducted himself, which can justly 
raise against the estate any equities, 
or which can justly deprive the 
creditors or next of kin of any of 
their rights in its assets." And see 
Morgan v. Thomas, 8 E.x. 308; Crump 
v. Williams, 56 Ga. 590. 

Where one has qualified as admin- 
istrator of a succession and has j)or- 
formod acts of administration, lie can- 
not deny that he was administrator. 
Kerleo v. Land Co., 57 So. 647, 130 
La. 111. 



117S 



CHAP. VIII.] OFFICIATIXG WITHOUT AN APrOIXTMEXT. § 1197 

§ 1196. Whether a Suitable Representative who has intermed- 
dled can be compelled to take out Letters. 

In English practice, agreeably to the theory that an executor's 
title is mainly derived from his testator, the person designated as 
executor under a will, who performs an act of administration, can- 
not afterward refuse to probate the will and accept the office. He 
is held, in other words, an executor of right rather than executor 
in his own wrong.'' This course seems incompatible with the 
American doctrine, which refers the appointment rather to one's 
qualification by proving the will, furnishing bonds, and satisfying 
the court that he is suitable in fact for the office; from which as- 
pect, indeed, one who had acted imprudently and injuriously to 
the estate, before receiving letters, might be deemed most unsuit- 
able. ISTeither in English nor American practice will a widow, 
next of kin, or other person lawfully entitled to take out letters of 
administration, be compelled to do so because of having previously 
intermeddled ; but some one else may receive the appointment.® 

On the other hand, save so far as injurious intermeddling may 
bear upon the issue of personal suitableness for the trust, it appears 
to be no objection to the appointment and qualification of a person 
as executor or administrator who claims the appointment of right, 
that he is an executor de son tort of the estate.^ 

§ 1197. Intermeddling by a Third Person after the Grant of Let- 
ters Testamentary or Administration. 

After probate of the will, and the grant of letters testamentary, 
or, as the case may be, after an administrator has been duly ap- 
pointed and qualified, there is a person legally authorized to take 
full possession of the dead person's personal property. Whoever 
shall afterwards injuriously intermeddle with the estate renders 
himself liable to suit as a trespasser.^ Such intermeddler is not 

5. Perry's Goods, 2 Curt. 655; 7. Carnochan v. Abrahams, T. P. 
Wms. Exrs. 276. Charlt. (Ga.) 196; Bingham v. Cren- 

6. Ackerley v. Oldham, 1 Phillim. shaw, 34 Ala. 683. 

248; Wms. Exrs. 438. 8. Salk. 313; Wms. Exrs. 261. 

1179 



§ 1197b EXECUTORS AISTD ADMINISTEATOES. [PAET II. 

l\v technical construction an executor de son tort; but if bis inter- 
ference be actually under claim of an office, be migbt be thus 
charged ; since, according to the better opinion, it seems not logi- 
cally absurd that there should exist an executor of right and an 
executor do son tort at the same time.^ One upon whom the char- 
acter of executor de son tort fastens, may be sued as such, notwith- 
standing the legal representative qualified afterwards and before 
action was brought.^ 

§ 1197a. Debtor's Payment to Sole Distributee, etc. 

A court, it is said, is not bound at all times to enforce a strict 
legal right, but should always look to and protect an equitable title 
or right where good conscience requires it. Hence the bona fide 
payment to the sole distributee of an ample estate by a debtor of 
the decedent, before administration is granted, should operate to 
discharge him from liability to the administrator.^ 

§ 1197b. Public Official Acting in Good Faith. 

A public administrator or other official, acting prudently and 
in good faith towards the estate of a decedent in an emergency, is 
not readily to be charged as an executor de son tort or a culpable 
intenneddler.^ 

9. Wms. Exrs. 261, and note, com- against a representative later ap- 

menting on Peake, X. P. C. 87, and 1 pointed, where tlicre are no debts. lb. 

Turn. & R. 438, which bear contra. And see § 1120. 

1. 1 Salk. 313; Wms. Exrs. 261. 3. Berger's Estate, 133 S. W. 96, 

2. Vail V. Anderson, 61 Minn. 552, 152 Mo. App. 663 (title of executor 
555, 64 N. W. 47, and cases cited. found superior) ; Lenderink v. 
So, too, should the sole distributee Sawyer, 138 N. W. 744, 02 Neb. 587 
be protected in possession of what he (coroner selling to pay funeral ex- 
may bona fide have collected, as pcnses). 

1180 



PART III. 

ASSETS AND THE INVENTORY. 



CHAPTER I. 

ASSETS OF AN ESTATE. 



§ 1198. What comprise Assets of a Deceased Person's Estate; 
Personal contrasted with Real Assets. 

The word " assets," which may be used in various primarv 
senses, as its French derivation indicates, our English and Ameri- 
can law usually applies to such property helonging to the estate 
of a deceased person as may rightfully he charged with the obliga- 
tions which his executor or administrator is bound to discharge.^ 

In modem practice, and conformably to our modern legislation, 
all the property of a deceased person, real, personal, or mixed, is 
liable for his debts and the usual charges incidental to death and 
the settlement of his estate. But a fundamental distinction has 
always been recognized between the real and personal estate, in the 
application of this rule ; for the personal estate left by the deceased 
constitutes the primary fund for all purposes of administration; 
his real estate as a secondary fund not being available for assets 
until the personalty has been exhausted, leaving obligations still 
undischarged ; nor available at all without proceedings which courts 
of equity pursue with strict care and even reluctantly." Personalty 

1. The word " assets," from the sets per descent," by which latter 

French assez, is here used to denote expression was designated that por- 

property " sufficient " to make a rep- tion which descends to the heir. lb. 

resentative chargeable to creditors See Owsley v. Central Trust Co., 

and legatees, or parties in distribu- 196 F. 412; Louisville R. v. Herb. 143 

tion, so far as that property extends. S. W. 1138, 125 Tenn. 408 ("assets" 

Wms. Exrs. 1655. The older writers defined). 

Bometimes applied to this portion of 2. How far modern local statutes 

the estate the term '' assets enter vary to clear a distinction, see post 

mains" in contradistinction to "as- §§ 1212, 1509-1517. 

1181 



§ 1200 EXECUTOKS AIS'D ADMIXISTRATOES. [PAET III. 

vests immediately in the executor or administrator for the pur- 
poses of his trust; but real estate (subject to such personal excep- 
tions as a will may have created) in the heir or devisee ; only to be 
divested afterwards under circumstances of necessity, as regards 
legal obligations, and when the personal assets prove insufficient; 
for a due settlement of the liabilities of the estate. 

§ 1199. Personal Property of the Decedent vests in the Execu- 
tor or Administrator. 

In pursuing his first and important duty of gathering, as into 
a heap, under his own control, for the purposes of administration, 
the property which the deceased may have left behind, an executor 
or administrator seeks rightfully, therefore, simply the personal 
property. Goods and chattels of the deceased person are to be 
traced out and brought into this trust officer's immediate posses- 
sion and control ; for these are the assets which concern him ; and 
title to such assets or to the personal property of the deceased vests 
in the executor or administrator, if not prior to his probate quali- 
fication, at least back by relation after he has qualified to the in- 
stant of the death of his testate or intestate. ^^ 

§ 1200, Enumeration of Personal Assets; Choses in Action as 
well as Choses in Possession. 

Incorporeal property or money rights, as well as corporeal per- 
sonal property, — bonds, notes, book accounts, bank deposits, debts 
and balances due the deceased, as well as his cash, household furni- 
ture, ornaments, cattle, vessels, and sole stock-in-trade, — all these 
vest in the executor or administrator, therefore, as assets for ad- 
ministration purposes.^ Legacies and distributive shares vested in 

2a. Rockwell v. Saunders, 19 T5.arb. Prop. 25-160: Wma. Exrs. 650-770, 

473: supra, § 1195; Wells v. Miller, and Perkins's notes. The property 

45 111. 382; Toiich.st. 496; Wms. Exrs. must, of course, be that of the de- 

105G; Snodgraas v. Cabiness, 15 Ala. cedent. See 70 Vt. 458, 41 A. 508. 
100, 133 S, W, 572, 141 Ky. 601. 3. Wms. Exrs. 703 et seg., 1656; 

What is personal property, as con- Slocum v. Sanford, 2 Conn. 533; Bul- 

trasted with i-eal, the reader will find lock v. Ropers, 16 Vt. 294; Kohlor 

discussed at length in 1 Schoul. Pers. v. linapp, 1 Bradf. (N. Y.) 241. The 

1182 



CHAP. I.] ASSETS OF AN ESTATE. § 1200 

one person by another's death, and without restriction, go, on his 
death before receiving the same, to his o\vii personal representative 
as assets/ 

Savings and accumulations out of the general personal estate 
become assets as well as the original estate itself.^ Principal and 
interest, capital and the income and profits thereof, vest in the 
personal representative, upon whom, subject to rules of apportion- 
ment upon decease and specific dispositions under a will, devolves 
usually the right and duty of collecting and accounting for the 
interest and income, for the benefit of the estate and those inter- 
ested in it, whether it accrue before or after the decease of the 
person, in the course of a prudent management of his administra- 
tion trust.^ So, too, goods which have accrued by increase, and 
the offspring or produce of animals belonging to the deceased/ 
Likewise, the profits of a trade or business, carried on under or 
independently of a testator's directions, go to swell the assets of 
the estate; also, investments of the deceased, with principal and 
interest, as actually realized; and even profits made by specula- 
tions with the assets, which the executor or administrator had no 
right to engage in, or rightfully with funds left as invested by the 
deceased, and not yet recalled, belong legitimately to the estate, for 
the benefit of those interested therein. It is seen, therefore, that 
assets are not necessarily restricted to personalty which the de- 
ceased owned in his lifetime, but embrace, usually, the proper and 
just earnings and accretions of those assets, as they vest in the 
course of administration.^ 

Rights under a contract must be treated as personalty, and 

popular distinction betw'een corporeal 6. See Sweigart v. Berk, 8 S. & R. 

and incorporeal personal property is 299; Ray v. Doughty, 4 Blackf. 115; 

now (1914) commonly stated as be- Wingate v. Pool, 25 111. IIS. 

tween "tangible" and "intangible." 7. Wms. Exrs. 1657; e. g., the 

4. Storer v. Blake, 31 Me. 289; lambs born and the wool shorn of a 
Pease v. Walker, 20 Wis. 573; 144 flock of sheep. Merchant, Re, 39 N. 
N. Y. 557, 39 N. E. 69. See Lam- J. Eq. 506. 

bright V. Lambright, 78 N. E. 265, 74 8. Wms. Exrs. 1658; Gibblett v. 

Ohio St. 198. Read, 9 Mod. 459. 

5. Wingate v. Pool, 25 111. 118. 

1183 



§ 1200 



EXECUTOKS AKD ADMINISTRATOKS. 



[PAET ni. 



■hence as vesting a title for assets in the executor or administrator 
of the estate.^ So with a claim for services rendered by the de- 
cedent during his lifetime, or for wages due.^ Or the fees or salary 
of an employee or public officer.^ Or one's patent rights and copy- 
rights, subject to the terms of the statute relating thereto.^ So with, 
money receivable from the government in adjustment of a claim 
(unless the title, in case of a claimant's death, goes otherwise, ac- 
cording to the statute), such as indemnity money given by a for- 
eign treaty;* distinguishing here usually between what govern- 
ment may allow in satisfaction of something due the decedent and 
a mere bounty or gratuity to living kindred." Whatever chattel 
right one has with another, not subject to the rule of survivorship^ 
is thus included.® So is a deceased partner's interest in the part- 
nership firm of which he died a member ; '^ and in computing such 



9. Stewart v. Chadwick, 8 Iowa, 
463; Pollock, Re, 3 Redf. (N. Y.) 
100. A mere right to preempt land 
goes to the executor or administrator. 
Bowers v. Keesecker, 14 Iowa, 301; 2 
Wash. 59, 25 P. 1077. But not a 
squatter's right to occupy. 99 Ga. 
250. 

1. Lappin v. Mumford, 14 Kan. 9. 

2. Steger v. Frizzel, 2 Tenn. Ch. 
369. Salary voted by a company to 
a person after his decease, and paid 
to his executor, constitutes assets in 
the executor's hands. Loring v. 
Cunningham, 9 Cush. 87. See Spyker 
V. Wiblc, 84 A. 840, 236 Penn. 380 

(dues to a county treasurer, the de- 
cedent) ; Mayo v. Dawson, 76 S. E. 
241, 160 N. C. 76 (outstanding busi- 
ness accounts). 

3. 1 Schoud. Pers. Prop. §§ 518, 
535. 

4. Foster v. Fifield, 20 Pick. 67 ; 49 
La. Ann. 1096, 22 So. 319; Thurston 
V. Doane, 47 Me. 79. Cf. Eastland 
V. Lester, 15 Tex. 98; Grant v. Bod- 



well, 78 Me. 460, 7 A. 12. See § 1211 
post. 

5. Grant v. Bodwell, lb.; Leonard 
V. Nye, 125 Mass. 455; Phelps v. Mc- 
Donald, 99 U. S. 298, 25 L, Ed. 473» 
171 U. S. 466, 43 L. Ed. 243. 

6. Wms. Exrs. 652. See as to joint 
and common ownership of chattels, 
1 Schoul. Pers. Prop. §§ 154-167; 
Harris Ferguson, 16 Sim. 308. 

7. Wms. Exrs. 651, 652; Buckley v. 
Barber, 6 Ex. 164; Moses v. Moses, 
50 Ga. 9; Piatt v. Piatt, 42 Conn. 
330; Pitt V. Pitt, 2 Cas. temp. Lee, 
508; Schenkl v. Dana, 118 Mass. 236. 
And see Hutchinson v. Reed, 1 Hoffm. 
(N. Y.) 316; 102 N. W. 1074, 124 
Wis. 583. The usual rule is, that on 
the decease of a partner the partner- 
ship must be wound up and accounts 
settled between the surviving partner 
and the representative of the deceased 
member. See Colly. Partn. § 199; 1 
Schoul. Pers. Prop. § 194; post § 
1325. 



1184 



CHAP. I.] 



ASSETS OF AN ESTATE. 



1200 



interest, the good will of the business is proper to be considered.' 
So is a share in a newspaper business/ or in valuable recipes.^ 
Damages assessed in favor of the deceased during his lifetime con- 
stitute assets ; ^ also the right to bring a suit for damages suffered 
by the decedent, in respect of person or property ; ^ and, in general, 
claims, demands, and causes of action of every kind, which survive 
by common law or statute, so that the personal representative may 
sue upon them, together with the incidental recompense or indem- 
nity which may attend the suit.'' 

Personal annuities, or annual payments of money not charged 
on real estate, constitute personal property, and the right to claim 
arrears goes to one's executor or administrator, subject to the old 
rule against apportionment, so far as that rule may apply.^ A 
" rent-charge," that is, a burden imposed upon and issuing out of 
lands, should, however, be distinguished from a personal annuity.* 



8. Piatt V. Piatt, 42 Conn. 330. 
Here the business was continued after 
such partner's death. And see Wms. 
Exrs. 1659. A subscription-book or 
list containing the names and ad- 
dresses of correspondents may consti- 
tute the good will of a particular 
business and valuable assets of the 
estate. Thompson v. Winnebago Co., 
48 Iowa, 155. But see Seighman v. 
Marshall, 17 Md. 550, An executor 
cannot appropriate to himself the 
good will of decedent's liquor license. 
Buck's Estate, 185 Penn. St. 57, 64 
Am. St. Rep. 616. And see Graeser's 
Estate, 79 A. 242, 230 Penn. 145 
(good will of a business, but not the 
personal license to pursue it). 

9. Gibblett v. Read, 9 Mod. 459. 

1. lb.; Wms. Exrs. 1659. 

2. Astor V. Hoyt, 5 Wend. 603; 
Welles V. Cowles, 4 Conn. 182, 10 Am. 
Dec. 115. 

3. As to this point, and for distinc- 
tions in respect of real and personal 

75 118 



property, see Part IV., as to survival 
of actions, collection of assets, etc. 

4. Money recovered upon an appeal 
bond given to executors as an appeal 
from a judgment obtained by them 
in that character constitutes assets. 
Sasscer v. Walker, 5 Gi'il. & J. 102, 
25 Am. Dec. 272. A claim against a 
former representative is an asset. 
Nesmith, Re, 6 Dem. 333. The fact 
that a hona fide claim when sued 
upon results unfavorably does not im- 
pair the right to consider such claim 
as assets. Robinson v. Epping, 24 
Fla. 237. A government claim may 
constitute assets. 171 U. S. 466. Cf. 
§ 1211 post; Ives v. Beecher. 52 A. 
746, 75 Conn. 153 (judgment debt). 

5. 1 Schoul. Pers. Prop. § 373; Co. 
Lit. 2 a: Wms. Pers. Prop. 5th Eng. 
ed. 180-182. 

6. 2 Bl. Com. 40, 41. It was for- 
merly questioned whether annuities 
were realty or personalty; for, when 
granted with words of inheritance, an 

5 



§ 1202 EXECUTOES AND ADMINISTRATORS. [PART III. 

§ 1201. Enumeration of Personal Assets continued; Contingent 
and Executory Interests^ etc. 

'Not absolute interests alone in personal property pass to the ex- 
ecutor or administrator as assets, but contingent interests likewise, 
provided the interest be valuable at all to the estate.'^ For choses 
in action, and incoi*poreal (or intangible) rights of every kind 
upon which a value may be placed, are to be classed among assets. 
In short, contingent and executory interests, though they do not 
vest in possession, may vest in right so as to be transmissible to 
executors or administrators. But if the contingency upon which 
the interest depended was the endurance of the life of the party 
until a particular period, whereas his death occurred in fact sooner^ 
there would occur a lapse or extinguishment of the interest, and 
nothing transmissible to his personal representative remaining.^ 

If a debt is due optionally to decedent, and the latter, though 
never demanding it while he lived, never released nor extinguished 
it, nor abandoned his option, it should be considered assets of the 
estate, if the option was left open.^ 

§ 1202. Enumeration of Personal Assets continued; Stock; Pub- 
lic and Corporation Securities; Life Insurance Policies. 
Stock is in modem times usually treated as personal property, 
notwithstanding the corporation, a railway or turnpike company, 

annuity is held to descend to the heir ford v. Buckley, 2 Ves. Sen. 170. And 
to the exclusion of a personal repre- see Wms. Exrs. 809, 810. 
tentative. Turner v. Turner, Ambl. 7. Wms. Exrs. 653, 887; Peck v. 
782. But this appears to be out of Parrot, 1 Ves. Sen. 236; Fyson v. 
respect simply to the express terms Chambers, 9 M. & W. 460; Clapp v. 
of its creation. Like a life insurance Stougliton, 10 Pick. 268; Ladd v. 
policy, an annuity, when given with- Wiggins, 35 N. H. 421, 69 Am. Dec. 
out words of restriction, passes to 551; Johns v. Johns, 1 McCord, 132; 
the personal representative for the Dunn v. Sargent, 101 Mass. 33G. 
benefit of tlie estate. Lord Hard 8 Wms. Exrs. 889. 
wlcke once observed that it was a 9. Colgan's Estate, 160 Penn. St 
personal inheritance which the law 140. 28 A. 646. But not a mere in- 
suffered to descend to the heir. Staf- dividual option. 46 S. E. 841, 119 

Ca. 597. 

1186 



CHAP. I.] ASSETS OF AN ESTATE. § 1203 

for instance, derive its profits in a certain sense from the use of 
real estate.^ Dividends declared by a stock company during the 
decedent's life, and not collected, belong to his estate as personal 
assets, as does also the stock ;^ while, in respect of dividends de- 
clared and payable after his death, the executor or administrator 
usually collects for the purposes of his trust, accounting in a proper 
manner, as the directions of the testator and the general law of ad- 
ministration may require. Stock in the public funds, and govern- 
ment and municipal bonds and securities of all kinds, are likewise 
treated as personal property at the present day.^ And all these, 
being personal property of the incorporeal or intangible sort, are 
transmitted as personal and primary assets to the executor or ad- 
ministrator upon the owner's decease. But under a mere contract 
to receive or deliver stock, it is the right of action under the con- 
tract that constitutes assets.^ 

If in a life policy the assured himself is named the beneficiary, 
the money accruing at his death belongs as assets to his estate,^ 
though not where the policy is expressed for the benefit of some 
other person or pea-sons.'^ 

§ 1203. Enumeration of Personal Assets continued; Personal 
Property taken or given in Security. 
Debts owing the deceased upon chattel security, such as pledge, 
mortgage, and lien to the testate or intestate, give the benefit of the 

1. See 1 Schoul. Pers. Prop. §§ 480- 3. Wms. Exrs. 812, 813; 1 Schoul. 
482; Bligh v. Brent, 2 Y. & C. 268; Pers. Prop. §§ 478, 479. 

Weyer v. Second Nat. Bank, 57 Ind. 4. Hitchcock v. Mosher, 106 Mo. 

198. Canal shares, etc., were con- 578, 17 S. \V. 638. 

sidered real property, but this rule 5. Union Mut. Life Ins. Co. v. Stev- 

has long since changed. To remove ens, 19 Fed. R. 671; Hathaway v. 

all doubt, the legislature, in acts of Sherman, 61 Me. 466; Butson, Re, 

incorporation, frequently declares 9 L. R. Ir. 21 ; Wright v. Wright, 100 

that the stock shall be considered per- Tenn. 313. 45 S. W. 672. 

sonal property. See Drybutter v. 6. See § 1211, post. As to construc- 

Bartholomew, 2 P. Wms. 127; Wms. tion of will, see Golder v. Chandler, 

Exrs. 811. 87 Me. 63; § 1300. 

2. Welles v. Cowles, 4 Conn. 182, 10 
Am. Dec. 115. 

1187 



§ 1204 EXECUTOES AND ADMIXISTEATOES. [PART III. 

security to tlie estate ; and the security must not be left out of con- 
sideration in the assets. But bonds executed to an administrator 
or executor in his fiduciary character, in consideration of assets 
transferred by him, are not necessarily assets for the benefit of the 
estate.^ Security, in general, enures for the direct benefit of that 
upon which the security was placed ; and hence a bond of indem- 
nity, or a judgment recovered thereon by the deceased during his 
lifetime, vests only as assets for the purpose of applying it to the* 
satisfaction of the debt or demand against which the indemnity 
was afforded.^ Whatever a debtor may give the executor or admni- 
istrator, to secure or discharge what he owes, belongs to the 
estate.^ 

Debts, on the other hand, owing from the deceased, and secured 
by pledge or mortgage of his personal property, or a lien thereon, 
leaves the surplus as general assets of the estate beyond such sum 
as may be required for discharging the security; or, as one might 
say, the personal property given in security constitutes assets, sub- 
ject to the preferential claim of the secured creditor.^ 

§ 1204. To constitute Personal Assets, the Title must have stood 
in the Decedent at his Death. 
The deceased must have owned such personal property or been 
the creditor or claimant at the time of his death, since otherwise 
the title cannot devolve upon his legal representative ; and the de- 
cedent's title, when he died, is the test of the title which devolves 
upon his personal representative. Thus, notes, securities, or other 
incoi'poreal property bona fide and regularly transferred to others 
by the decedent during his lifetime, and indorsed, assigned, or de- 
livered with mutual intention that the title should so pass, do not 

7. Saffran v. Kennody, 7 J. J. 1. 1 Loon. 155. 225; VVms. Exrs. 
Marsh. 187. IGGO; Vincent v. Sharpe, 2 Stark. N. 

8. Molloy V. Elam, Meigs (Tenn.) P. 507; Ilaynsworth v. Frierson, 11 
590. Rich. (S. C.) 476. See 96 Ga. 625; 

9. See 32 Hun, 599; Sain v. Bailey, B i.stol Bank v. Holley, 58 A. 691, 
90 N. C. 566. See § 1214, post, as 77 Conn. 225. 

to real estate security. 

11S3 



CHAP. I.] ASSETS OF AN ESTATE. § 1204 

vest in tlie representative of the deceased ; " and the same may be 
said of corporeal goods and chattels, duly delivered upon a like 
understanding, by the decedent.^ If, however, the transfer was 
voluntary and fraudulent against one's creditors, remedies are open 
and should be pursued, as we shall see, for assailing such stranger's 
title.* And since legal transfer implies parting with dominion over 
the thing, any professed transfer during one's life which left the 
possession, control, and power to revoke in the transferrer, keeps 
his title virtually undivested, so that at his decease the chattel 
must be administered as assets.^ I*3^or does a bailment, made under 
instructions which death countermands, divest the bailor's title.*^ 

Where, on the other hand, personal property attached by the 
trustee process was assigned by the owner subject to the attach- 
ment, and such attachment was dissolved by the owner's death, it 
was held that the property passed by the assignment and did not 
constitute assets available for administration.' Advancements 
made during life to children are regarded essentially as gifts ; so 
that these are not to be reckoned among assets of the estate.^ A 
savings bank deposit belonging to a donee is not assets of the donor, 
even though the donee may have to recover it from the bank in the 

2. Wms. Exrs. 1675; 1 Salk. 79. Y. 544 (a technical title only); Fel- 

3. Thomas v. Smith, 3 Whart. 401; ton v. Brown, 145 S- W. 552, 102 Ark. 
Garner v. Graves, 54 Ind. 188; Burke 658 (bank deposit in decedent's 
V. Bishop, 27 La. Ann. 465; 21 Am. name). 

Rep. 567. As to the general subject 4. See § 1297, jwst. 

of assignment, see 1 Schoul. Pers. 5. Cummings v. Bramhall, 120 

Prop. §§ 73-83. The old doctrine of Mass. 552; Madison v. Shockley, 41 

the law was that a chose in action Iowa, 451. 

could not be assigned. But equity has 6. Bigelow v. Paton, 4 Mich. 170. 

so encroached upon the law that every A promissory note should be charged 

species of incorporeal property, with as assets, notwithstanding oral ex- 

a few nominal exceptions, may now be pressions used by the deceased to his 

practically assigned so as to pass the executor insufficient to constitute a 

title. 1 Schoul. Pers. Prop. §§ 73-83. release. Byrn v. Godfrey, 4 Ves. 6. 

For sale on the instalment plan 7. Coverdale v. Aldrich, 19 Pick, 

with title still in seller, see 50 S. E. 391. 

100, 122 Ga. 312. And see as to 8. See post, §§ 1499, 1500; Wms. 

equitable owner, 105 N. W. 295, 74 Exrs. 1498, 1502. 
Nob. 704; Reichard v. Hutton, 133 N. 

1189 



§ 1205 EXECUTOES AA'D ADMINISTEATOES. [PAET IH. 

name of tlie donor's representative.^ The mistaken delivery of a 
thing by its custodian to the executor or administrator, vehere the 
(title had in fact passed out of the owner before his death, does not 
conclude it as assets, for it is proper that the mistake be rectified.^ 

§ 1205. Personal Property of Another among the Goods of De- 
ceased not Assets; Identification. 

If goods, money, or securities belonging to another person lie 
amongst the goods of the deceased, capable of identification, and 
they come altogether to the hands of the personal representative, 
such other person's things are not to be reckoned among assets of 
the estate.^ JSTor is money collected by an attorney, factor, or agent, 
and kept distinct and unmixed with the rest of his property.^ So, 
property held by a trustee or fiduciary officer is not assets in the 
hands of his executors, administrators, or assignees ; but a new 
trustee should rather be appointed to hold the fund in the stead 
of the decedent.* Only those things in which the decedent had a 
beneficial interest at his death are assets, and not those which he 
holds in trust or as the agent, bailee or factor of another.^ 

In order, however, that the third party or new fiduciary may 
claim his specific thing as separable from assets, its identity should 
have been preserved ; and the ride is that if the deceased held 
money or other property in his hands belonging to others, whether 
in trust or otherwise, and it has no car-mark and is not distinguish- 

9. Watson v. Watson, 69 Vt. 243, P. 74, 29 Wash. 535, 92 Am. St. Eep. 

39 A. 201; 72 N. E. 333, 186 Mass. 916 (trust funds) ; 91 N. W. 172, 131 

684 Mich. 213; 56 A. 773, 25 R. I. 509. 

1. Sherman v. Sherman, 3 Iiicl. 337. See O'Brien v. U. S. Trust Co., 66 X. 

2. Wms. Exrs. 1675; Cooper v. E. 794, 183 Mass. 186; Horn's Estate, 
White, 19 Ga. 554. 140 N. W. 58, 152 Wis. 482. 

3. Schoolfield v. Rudd, 9 B. Mon. 5. See Shakespeare v. Fidelity Co., 
291. 97 Pcnn. St. 173. But any lien for 

4. United States v. Cutts, 1 Sumn. recompense, etc., may he practically 
133; Johnson v. Ames, 11 Pick. 173; uplield. And the executor or admin- 
Green V. Collins, 6 Ired. L. 139; istrator of the deceased usually rend- 
Thompson v. White, 45 Me. 445; ers account on a settlement accord- 
Wms. Exra. 1675; Belt's Est.ite, 70 ingly. 

1100 



CHAP. I.] ASSETS OF AN ESTATE. § 120G 

able from the mass of his own property, it falls within the descrip- 
tion of assets ; in which case the other party must usually come in 
as a general creditor.^ 

"Wihere the decedent had kept a bank deposit as " trustee " or 
" attorney " and mixed therein money all of which belonged to 
others, the mixed fund should be duly divided among the proper 
owners and not be reckoned as assets of the estate.^ 

§ 1205a. Literary Property; Letters, etc. 

The receiver of letters has but a qualified property in them ; they 
pass to the executor or administrator, but not absolutely as avail- 
able assets, inasmuch as the sender is interested in their publica- 
tion.* 

§ 1206. Personal Property of the Decedent left in Another's Pos- 
session is Assets. 

Personal property belonging to the deceased, on the other hand, 
which was in the possession or control of a third person, whether 
rightfully or wrongfully, at the time of his death, will vest as 
assets in the executor or administrator of the owner; and to him 
the custodian should surrender possession ; though here, once more, 
the decedent's property must be capable of identification, else there 
is left but a right of action to recover their value or damages. 
Chattels and money in the hands of a deceased minor's guardian 
vests likewise for purposes of administration in the minor's ex- 
ecutor or administrator, if there be one; and this even though the 
guardian may be eventually entitled to the same as legatee or dis- 
tributee after the estate is settled.® 

6. Story, J., in Trecothick v. Aus- trol and divide up such joint fund 
tin, 4 Mason, 29; Jolinson v. Ames, with due regard for any lien for 
11 Pick. 172. Where a life benefici- recompense which belonged to his de- 
ary invests the capital and income as cedent. 

one fund, the division of the property 8. Eyre v. Higbee, 35 Barb. 502; 

at her death is largely a question of Pope v. Curl, 2 Atk. 342. 

convenience. 65 N. H. 139. 9. Bean v. Bumpus, 22 Me. 549. 

7. But the representative, it would Whatever one receives before appoint- 
Beem, is a fit custodian and may con- ment are assets. Head v. Sutton, 31 

1191 



§ 1208 EXECUTOES AXD ADMIXISTEATOES. [PAET III. 

Here, too, the lien of such otlier person for jusi demands should 
be respected by the decedent's representative. 

§ 1207. Personal Property constitutes Assets notwithstanding 
Ultimate Title of Legatees, Heirs, etc. 

Personal property constitutes assets for the purposes of admin- 
istration and a general winding up of the deceased person's estate ; 
even though upon a due adjustment that property or its residue 
shall go to legatees, general or specific, or to residuary legatees or 
distributees, or trustees, if not otherwise needed; for administra- 
tion is in fact the crucial test by which the title of all such parties, 
tlirough the sufficiency or deficiency oi the estate, shall be deter- 
mined, and the title devolves first of all upon the decedent's per- 
sonal representative.'^ 

As against even a sole legatee or distributee, therefore, or the 
person to whom such party in interest has given a promissory note 
or other asset of personal property, the representative may follow 
up and claim such assets for administration.^ 

§ 1208. Debt due from Representative or Legatee, etc., to the 
Decedent constitutes Personal Assets. 
By the common law, the appointment of one's debtor to be the 
executor of the will was held to extinguish the debt ; ^ and so far 
was the rule carried, out of favor to the representative, that if he 
'lied before probate or was one of joint debtors, extinguishment 
occurred, notwithstanding the technical reasons given for the doc- 
trine.* But this is changed in most parts of the United States by 

Kan. 616. See Harrison v. Hirrison, by him. Pritohard v. Norwood, 155 

84 P. 381, 73 Kan. 25, 117 Am. St. Ma.ss. 539, 30 N. E. 80. And see 61 

Kep. 453; 60 A. 437, 101 Md. 148 A. 267, 69 N. J. Eq. 743; § 1220, posL 

(identified aissct, thonjrh placed norai- 3. Cro. Car. 373; 1 Salk. 299; 

Tially in a corporation). Cheetham v. Ward, 1 B-. & P. 630; 

1. See Woodfin v. McNealy, 9 Fla. Wms. Exrs. 1310; Co. Lit. 264 b. 
2.j0. 4. Perhaps, where the executor re- 

2. 136 Mass. 54; Bean v. Bumpus, nounced, the rule was different. In- 
22 Me. 549. Replevin may be brought tendment of the will appears to be the 

1192 



•CHAP. 



I.] 



ASSETS OF AN ESTATE. 



§ 1208 



statutes whose intendment appears to be to place the debt owing 
from a personal representative upon the same footing with debts 
duo the estate from other sources;^ and our probate and equitv 
rule is to hold the executor accountable for the debt as assets. In 
some States where the old rule has been discarded, the right of 
those interested in the estate to compel the executor or adminis- 
trator to charge himself with an indebtedness due from him to the 
deceased, is fully recognized; but it is said that as soon as the 
debtor is appointed, if he acknowledges the debt, he has actually 
received so much money and is answerable for it, he and tlie sure- 
ties of his probate bond, in like manner as if he had received it 
from any other debtor of the deceased.^ 



true reason; but that alleged by the 
courts was, the rights of debtor and 
creditor united in one and the same 
person. Wms. Exrs. 1310. 

5. McCarty v. Frazer, 62 Mo. 263; 
Adair v. Brimmer, 74 N. Y. 539; Sov- 
erhill v. Suydam, 59 N. Y. 142; 
Jacobs V. Woodside, 6 Rich. 490; 
Shields v. Odell, 27 Ohio St. 398. And 
see English stat. 1 Vict. c. 26, § 7; 
20 & 21 Vict. c. 77, § 79 ; Wms. Exrs. 
15, 286, 1312; Bourne, Re, (1906) 1 
Ch. 697. The effect of the New York 
statute charging the representative as 
for money, etc., is not to discliarge 
any security given for the debt. 
•Soverhill v. Suydam, supra. Where 
'one of two administrators was liable 
as principal to the intestate who was 
his surety, his liability to the intes- 
tate's estate is assets in the adminis- 
trators' hands, for which they are 
both accountable. Bassett v. Granger, 
136 Mass. 175. And see Hines v. 
Hines, 95 N. C. 482; Hodge v. Hodge, 
38 A. 535, 90 Me. 505, 60 Am. St. 
Rep. 285, 40 L. R. A. 33; 27 So. 465, 
124 Ala. 550, 82 Am. St. Rep. 199; 
100 N. Y. S. 215; 144 Fed. 308; 



Judge V. Sulloway, 68 N. H. 511 
(bond covers liability for such 
debt). 

6. Stevens v. Gaylord, 11 Mass. 
269; Leland v. Felton, 1 Allen, 531, 
and cases cited; Hall v. Hall, 2 Mc- 
Cord Ch. 269; 99 S. W. 1156, 30 Ky. 
Law, 1020. Upon the acceptance of 
the trust, and returning the same in 
the inventory as assets of the de- 
ceased, a correspondent legal liabil- 
ity is assumed which cannot be di- 
vested by a subsequent resignation 
of the trust. Leland v. Felton, 1 Al- 
len, 531. Indeed, the liability to duly 
account for such a debt is assumed 
on acceptance of the office. lb. 

Yet the return of a debt in the in- 
ventory as solvent is usually prima 
facie proof that it is collectible, but 
by no means conclusive proof that it 
has l>een collected. The rule, if as- 
serted, as in the text, with especial 
stringency against the representa- 
tive's own debt to the deceased, is 
from motives of policy, and to dis- 
courage bad faith under circum- 
stances of especial temptation. The 
more consistent rule appears to be 



1193 



1208 



EXECUTORS AXD ADMIXISTEATOES. [PAET III. 



The fact tliat the representative charges himself in his inven- 
tory or account with his debt, settles the question that he owes the 
estate and the amount of his debt; it is a fact upon which great 
stress is laid ; but an executor cannot escape his liability or change 
the character of it by failing to charge himself with his own debt ; 
nor is charging himself with it the only way in which the fact of 
his indebtedness may appear to be proved^ An extinguishment of 
the instrument upon which the indebtedness was founded, may, in- 
dependently of statute, occur here by operation of law, with the 
modem consequence that the sums due thereon have become real- 
ized assets of the estate ; ^ but the rule appears not to apply regard- 
less of the particular circumstances. 

A debt due the deceased from a legatee or distributee is further- 
more reckoned as assets by the modem rule, in the absence of evi- 
dence that forgiveness of the debt was intended ; and for realizing 
upon this indebtedness, the legacy or surplus accruing to such per- 
son may afford good security.* Forgiveness of a debt, therefore, 



that the return of the inventory 
affords a presumption only, and that 
if the representative shows that he 
cannot pay, and has not paid, he need 
not be charged with tlie debt as cash. 
Baucus V. Stover, 24 Hun (N. Y.), 
109; United States v. Eggleston, 4 
Sawyer, 199; 92 N. W. 760, 66 Neb. 
575, 61 L. R. A. 313; 3 Dem. 610; 
§ 1542. 

The appointment de bonis non of 
one who was surety on the bond of 
his predecessor does not make a debt 
due the estate from such predecessor 
assets in his hands by reason of his 
suretyship. Shields v. Odell, 27 
Ohio St. 398. 

7. Endicott, J., in Tarbell v. Jewett, 
129 Mass. 457, 461. 

8. Tarbell v. Jewett, 129 Mass. 
457; Freakley v. Fox, 9 B. & C. 130; 
Ipswich Man. Co. v. Story, 5 Met. 



310; Robinson v. Hodgkin, 99 Wis. 
327, 74 N. W. 791. 

The general rule is that where a 
judgment debtor becomes the per- 
sonal representative of the judgment 
creditor, the judgment is extingu- 
ished, and the debt becomes a realized 
asset in his hands to be accounted for 
in court. But this rule is subject to 
many exceptions; and the manner in 
which the representative treats this 
judgment debt in the course of his 
dealing with the estate may afTect the 
question whether an extinguishment 
has actually taken place. Charles v. 
Jacob, 9 S. C. 295. See Andiison v. 
Anderson, 38 A. 1007, 183 Pcnn. St. 
480. 

9. Post, § 1248, as to the effect of 
giving a legacy to one's debtor; Wms. 
Exrs. 1303, 1304; Springer's Appeal, 
29 Penn. St. 203; and see § 1445o. 



1194 



CHAP. I.] ASSETS OF AIST ESTATE. § 1209 

operates only pro tanto, if so limited by the deceased ; and this is 
a rule of general application. Thus, where one leaves a legacy 
and releases only the pi'incipal of an interest-bearing debt, the in- 
terest should be treated as assets and set against the legacy ; ^ the 
true intent of the transaction resolving, however, the question. 

Where the partner of a firm or the officer of a corporation, owing 
the deceased a debt, becomes executor or administrator, such in- 
debtedness becomes assets in his liands.^ An administrator, who 
owes the estate to which he was appointed, must account far the 
debt; and since his appointment was not the act of the creditor, 
the common law never treated him as privileged like an executor 
in this respect.^ 

§ 1209. Personal Assets coming to the Knowledge but not Pos- 
session of the Representative. 
An executor or administrator is chargeable, because of the trust 
he has accepted, with goods and chattels of the deceased coming to 
his possession or knowledge; and the want of actual possession does 
not dispense with prudent attempts on his part to collect, enforce, 
or obtain possession. All the chattels of the deceased, wherever 
situated, are assets, if the representative, by reasonable diligence, 
considering the means of the estate already under his control, might 
have possessed himself of them.* If the jurisdiction afforded by 
his letters of authority does not enable him to obtain or collect 
them, it is somewhat different; and yet as to such assets, one ap- 
pointed within the original jurisdiction should have ancillary let- 
ters' taken out. if this course appear prudent, in order that no rea- 
sonable means may be wanting to gather in the whole of the de- 
ceedent's personal estate.^ 

1. Hallowell's Estate. 23 Ppnn. St. at most, only a suspension of the 
223; 184 Mass. 210, 68 N. E. 205, 100 remedy on his appointment. 

Am. St. Rep. 552. 4. Gray v. Swain, 2 Hawks. (N. C.) 

2. Eaton t. Walsh, 42 Mo. 272; 15: Tuttle v. Robinson, 3.3 N. H. 104; 
James v. West, 65 N. E. 156, 67 Ohio Palmer v. Palmer, 55 Mich. 293, 21 
St. 28. N. W. 352; § 1146. 

3. 1 Salk. 306. It was said that in 5. Supra, § 1175, as to assets out 
case of an administrator there was, of the sovereign jurisdiction. 

1195 



§ 1210 EXECUTORS AXD ADMI^'ISTEATOES. [PAET IIK 

On the other hand, chattels of the deceased, not actually pro- 
cured from the possession of others, and debts uncollected, do not 
constitute available assets in the hands of his executor or adminis- 
trator, where there has not been culpable negligence or remissness 
on his part in the trust ; ^ though it would appear incumbent upon, 
such fiduciai-y to consider himself chargeable with all such things, 
and be prepared to show why he failed to collect or obtain posses- 
sion of each according to its value, while in the exercise of his offi- 
cial functions. 

§ 1210. Personal Assets or not, where Decedent's Title was 
Qualified. 
In what has been said under the present head, we have supposed 
the title to personal property, indeed, to be so vested in the deceased 
at his death, as properly to devolve at once upon his legal repre- 
sentatives. But where the deceased was entitled to the chattel or 
fund, jointly with another, so as to carry the title over to his sur- 
vivor, or in common, or in partnership, or under a trust which ex- 
cluded his beneficial interest, — in these and similar peculiar rela- 
tions, the title not devolving upon the executor or administrator of 
the deceased, or devolving not with respect to the specific thing, 
but rather so as to constitute a claim for partition of a thing, or 
for sharing in the surplus of some fund yet to be ascertained, there 

6. Tuttle V. Robinson, 33 N. H. possession or not, and is personally 

104; Ruggles v. Sherman, 14 Johns, chargeable with the value of that 

446. The general rule laid down in which belonged to the estate, and was 

the old books is that an executor or lost or never recovered at all through 

administrator shall not be charged his negligence. The English doctrine 

with any other goods or assets than appears to regard the executor as a 

those "which come to his hands." "gratuitous bailee;" but in the 

But the construction placed upon this United States, and where the trust is 

expression is such as to deprive it of regularly compensated, it seems that 

literal force. See 5 Co. 33 b, 34 a; his responsibility is equivalent to 

Wcntw. OfT. Ex. 227, 14th ed.; Wms. that of a bailee for hire. Under an 

Exrs. 1667, 1668. The exe.'Utor or appropriate head this subject will be 

administrator is, in truth, cliargeablo, more fully considered hereafter. Sei? 

as a sort of bailee or fiduciary, Part IV., post. 
whether the things have come to his 

119G 



CHAP. I.] ASSETS OF AN ESTATE. § 1211 

16 nothing to be considered assets, or else, the assets assume for ad- 
ministration a different shape, such, for instance, as an undivided 
interest, or a claim to some unascertained surplus.^ All this in is 
general conformity with the laws which regulate the transfer and 
transmission of title to personal property.* 

§ 1211. Various Cases where Representative does not hold 

strictly as Assets. 
So, again, the principles which regulate the reciprocal title of 
husband and wife, whether under the old coverture rules or as em- 
bodied in statutes passed for the more especial behoof of the sur- 
viving widow, may affect the transmission of title as assets to the 
personal representative ; depriving him of the right to take posses- 
sion, or to collect, or else making him a mere conduit of title to 
the surviving spouse, regardless of creditors of the estate.^ And 
in various other instances legislators exhibit tenderness toward the 
distressed survivors of a family at the expense of those who have 
claims upon the general assets; ^ all of which qualifications to his 
authority the legal representative of an estate should duly observe. 

7. See as to a debt or legacy going but not possession) ; Morris v. 

to a survivor, Green v. Green, 3 Sm. Wueher, 80 N. E. 1114, 188 N. Y. 568 

& M. 256; Cote v. Dequindre, Walk. (completed gift). 

(Mich.) 64. As to a deceased part- 8. See 2 Schoul. Pers. Prop., §§ 1- 

ner's interest in his partnership firm, 3, and other general works upon Per- 

see § 1200. Where a^ surviving part- sonal Property. 

ner is also executor of the estate of 9. Schoul. Hus. & Wife, §§ 409, 

his (deceased co-partner, and he col- 441; post, § 1447, as to a widow'3 

lects partnership assets which are not paraphernalia, allowances, etc.; 25 S. 

needed to pay partnership debts, he W. 114, 15 Ky. Law 710 ("special 

will be presumed to hold such assets fund for widow under a will); 

as executor. Caskie v. Harrison, 76 Chamboredom v. Fayet, 57 So. 845, 176 

■Va. 85. Ala. 212. 

But as to a bond running to one 1. lb. As to property exempt from 

for her own interest and as trustee administration, see Taylor v. Pettus, 

for others, see 165 Penn. St. 423. 52 Ala. 287; Heard v. Northington, 

See further, 110 S. W. 1100, 131 49 Tex. 439; 113 F. 766; 57 S. W. 

Mo. App. 178 (imperfect gift by de- 210, 67 Ark. 239; 113 N. Y. S. 441. 

cedent) ; Bennor's Will, 113 N. W. And see Baldwin's Estate, 124 N. Y. 

€63, 133 Wis. 325 (bequest in right, S. 859 ("exemptions" in a husband's 

1197 



§ 1211 EXECUTOES AIS'D ADMINISTEATOKS. [pART IH. 

Tlie proceeds of a life insurance policy taken out hj tlie de- 
cedent and expressed to he payable to anotlier, as, for instance, to 
his widow, or a cbild, or in trust for such a one's benefit, are not 
assets of the estate ; ^ though it may be that suit should be brought 
p7'o forma in the representative's name on behalf of the beneficiary 
named. But where the person insured takes out life insurance gen- 
erally, and not for the express benefit of others surviving him, or 
where the beneficiaries named have predeceased, the fund goes prop- 
erly to legal representatives for the benefit of the estate,and becomes 
assets for the payment of debts.^ Pensions and public gratuities, 
or pay for army and navy service, are often made payable for the 
direct benefit of widow, children or parents ; * and public statutes, 
thus expressly providing for the beneficial payment of arrears to 
surviving members of a family, exclude the notion of general assets 
for creditors. There are other instances where personal property 
may come to the executor or administrator pro forma, and yet be 
applicable only to special purposes." 

§ 1211a. Equitable Title of Others to Technical Assets. 

With our modem development of incorporeal (or intangible) 

favor as against wife's administra- compensation to the widow, children, 

tor). " etc., of one killed, by the tort of a 

2. Senior v. Ackerman, 2 Redf. (N. person or corporation. For such a 
Y.) 302; Cables v. Prescott, 67 Me. cause of action does not strictly be- 
582; Van Dermoor, Re, 42 Hun, 326; long to the estate. 53 Neb. 674. 74 
19 Fed. 671; Golder v. Chandler, 87 N". W. 50; 107 N. W. 608, 130 Iowa, 
Me. 63, 32 A. 784; Wright v. Life 553; 63 A. 339, 72 N. J. L. 480; 45 
Ins. Co., 164 Mass. 302, 41 N. E. S. E. 894, 102 Va. 201; People v. 
303; 50 S. E. 644, 71 S. C. 123; 67 Prendergast, 131 N. Y. S. 441; Ken- 
S. W. 814, 105 Tenn. 316; Parker nedy v. Davis, 55 So. 104, 171 Ala. 
V, Wilson, 136 S. W. 981. 98 Ark. 609; 111 P. Ill, 14 Cal. App. 75; 
553; Grattan's E.state, 78 A. 813. 78 Ruiz v. Electric Co., 128 P. 33t), 164 
N. J. Eq. 225. See 127 N. W. 595; Cal.