I AWYCRS
rfhOPEBWivePuBLisHiHG 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, 0 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. 188.
25 So. D. 596; Smith v, Hatke, 78 S. 5. Wms. Exrs. 1677; Parry v. Ash-
E. 54, 115 Va. 230. ley, 3 Sim. 97; Hassall v. Smithers,
3. Fiupra, § 1202. 12 Ves. 119. E. g., money due from
4. Perkins v. Perkins, 46 N. H. benefit association. 5 Dem. (N. Y.)
110. And see pout as to distribution 326; Bishop v. Curpiiey, 60 Miss. 22.
under modern statutes which give
1108
CHAP. I.] ASSETS OF AN ESTATE. § 1212
personal property founded in a money right, it will appear that in
various instances the decedent's executor or administrator may ac-
quire a technical or pro forma title to a fund or thing whose equita-
ble title is often absolutely elsewhere. Such an equitable title,
wherever clearly proved, sho'uld be respected as something more
than a mere creditor's right to be paid on the usual footing of gen-
eral creditors ; and courts of equity should guard and preserve the
true right to the identical fund or thing.®
§ 1212. Real Estate descends to Heirs; not Assets except for
Deficiency.
Eoal estate, at the common law, becomes vested at once on the
death of the owner in his heirs or devisees, and the executor or
administrator has as such no inherent powex over it^ Lands, there-
fore, are not in a primary sense assets, to be appropriated for the
benefit of creditors; nor has chancery jurisdiction to decree their
sale at the suit of a creditor, unless he has some specific lien or
right therein.'^ N'or has the executor or administrator as such a
right to purchase land for next of kin or legatees.^ It is only as
legisaltion or the will of a testator may have conferred an express
power upon the executor or administrator, that he can exert it in
respect of real estate, unless authority has been conferred by the
heirs or devisees themselves. But modern enactments, as we shall
see hereafter, usually permit the lands of a deceased owner to be
subjected to the satisfaction of his just debts, in so far as the per-
6. Stock of A carried for conven- Lucy, 55 N. H. 9; Laidley v. Kline,
ience in the name of B who died is 8 W. Va. 218; Hankins v. Kimball,
an instance. See 105 N. W. 295, 74 57 Ind. 42; MePike v. Wells, 54 Miss.
Neb. 104; Reiehard v. Hutton. 133 N. 136; Le M'oyne v. Qulmby, 70 111. 399;
Y. S. 44. And cf. Gillette V. Plimpton, Sheldon v. Rice, 80 Am. Rep. 136;
97 N". E. 260, 253 111. 147 (note pay- 30 Mich. 296; 145 Mo. 418, 46 S, W.
able to joint parties). 1000; 54 Neb. 33, 74 N. W. 391; 9S
See, also, as to a mixed deposit by Wis. 385, 74 N. W. 118; 94 N. E.
deceased as "attorney" or " trus- 955, 249 111. 538; 133 N. W. 660, 153
tee " for various others, § 1205. supra. Iowa, 269.
7. Wms. Exrs. 650; Drirkwater v. 8. 122 N. C. 536. 29 S. E. 951; 100
Drinkwater, 4 Mass. 354; Lucy v. Ga. 607, 28 S. E. 288.
1199
§ 1213 EXECUTOES AND ADMINISTEATOES. [PAET III.
sonaltj falls short of paying ttem, and general provision is made
for sale bj the executor or administrator under a judicial license
accordingly.^ When the necessity arises to deal with lands or
assets, the heirs or devisees should have due notice, nor in any case
can their beneficial rights be safely ignored ; ^ and so, too, the full
statutory requirements should be pursued.
]\Ioreover, under statutes for selling the land for debts of the
decedent, the personal representative will only be permitted to
sell so much of the land as may discharge the debts, unless, per-
haps, by a partial sale the interests of the heirs and devisees would
be unduly injured. And e\^en though it should become necessary
to make a sale under a license, the executor or administrator, as
such, is not called upon to perfect the title or relieve the land of
any burden ; but he should sell as he finds it. He has no authority
to warrant the title he conveys in such a case ; but the nile of
caveat emptor applies.' Should there be a fictitious incumbrance
on the lands that would deter purchasers from buying, it may be
ecminently proper for the heir or devisee, in order to protect his
estate by procuring a full price, to institute proceedings for remov-
ing the incumbrance. But separate creditors against the estate ac-
quire no such interest or specific lien on the premises as would
justify such proceedings on their part, even though the sale were
necessary for paying their claims.^
§ 1213. Executor or Administrator has no Inherent Authority as
to Real Estate.
It follows generally that if the representative takes possession
of the real estate of the deceased, he is accountable to the heirs as
(their agent, and not, strictly speaking, to the probate court in his
official capacity, though for convenience he will often manage as
9. lb. See post, Part VI., c. 2, as See Werner v. Wheeler. 127 N. Y. S.
to sale of lands under licrnse. etc. 158 (probate not essential in order
1. McPike V. Wells, 54 Miss. 136. to vest title in a devisee) ; Roberts'
2. Shup V. Calvert, 174 111. 500. 51 Estate, 132 N. Y. S. 39f. (title to land
K. E. 828. contracts held by decedent).
3. Le Moyne v. Quimby, 70 111. 399.
1200
CHAP. I.]
ASSETS OF AN ESTATE.
1213
hy consent of the heirs.^ Proceeds of a sale by an executor em-
powered under the will to sell for the benefit of legatees are not
presumably to be brought into the general administration.^ The
representative has no cause to recover possession of the lands of the
deceased bv a suit at law, and cannot maintain such a suit/'
]Sror has the executor or administrator an inherent right to en-
force the specific performance of a contract to convey land to his
decedent; unless, at all events, the personal estate is insufficient
for the purposes of administration and the land should be sold by
him accordingly," Land clearly conveyed by the decedent during
life is not thus available even thoui'h the deed was not recorded
4. Taylor, Landl. & Ten. § 390;
McCoy V. Scott, 2 RaAvle, 222, 19
Am. Dec. 640: Kimball v. Sumner, 62
Me. 309; Lucy v. Lucy, 55 N. H. 9;
Palmer v. Palmer, 13 ' Gray, 338 ;
Kidwell V. Kidwoll, S4 Ind. 224. See
Glasscock v. Gray, 62 N. E. 433, 148
N. C. 346: Smith v. Black, 132 S. W.
1129, 331 Mo. 6S1; Dameron v. Lan-
yon, 138 S. W. 1, 234 Mo. 637 (de-
terminable fee) .
It is often of advantage to the
heirs to permit the representative to
collect rents while the estate is being
settled, and this course may save
sometimes the sale of the real estate
to pay debts. Kimball v. Sumner,
supra. Inasmuch as the administra-
tor who collects rents holds them for
the heir, and not as assets for the
creditors, he holds them for his own
use where he himself is th > heir.
Schwartz's Estate, 14 Penn. St. 42.
See Coann v. Culver, 80 N. E. 363,
188 N. Y. 9; 161 111. App. 568 (liable
in assumpsit for rents collected) ;
Kelly V. Pettus, 140 S. W. 180, 145
Ky. 350, 799. In Michigan and some
other States the personal representa-
tive is expressly authorized by stat-
ute to collect rents and take control
of the real estate of the deceased dur-
ing the settlement of the estate. Kline
V. Moulton, 11 Mich. 370; 141 N. W.
170 (Minn.); Wms. Exrs. 821, and
Perkins's note. This does not render
him liable to account to the estate
for such rents. Head v. Sutton, 31
Kan. 616, 3 P. 280. And see § 1510.
5. Aston's Estate, 5 Whart. 228;
Frombcrger v. Greiner, 5 Whart. 350.
6. Drinkwater v. Drinkwnt:<r, 4
Mass. 354. Nor a homestead set
apart for the wife. 130 Cal. 421, 52
P. 708. Heirs, and not the adminis-
trator, should enforce a trust in land
in favor of the decedent. Field v.
Andrada, 106 Cal. 107, 39 P. 333.
Or a writ of entry brought by de-
mandant, so far as the right to s\i9
may continue. 153 Mass. 257, 35
N. E. 468.
Money due the decedent for land
Avhich he sold when alive is person-
alty. 137 Penn. St. 454, 457, 30 A.
623; 46 S. E. 839, 119 Ga. 607.
7. Carpenter v. Fopper, 94 Wis.
146, 68 N. W. 874.
76
1201
§ 12M
EXECUTORS AXD ADMIXISTKATOE.S.
[PAET III.
until after liis deatli.^ Land conveyed in fraud of creditors forms
no part of tlie deceased grantor's estate, and it is the creditors, not
the administrator, who should attack the conveyance.^ And what-
ever means a creditor may lawfully pursue in order to render the
heirs of the deceased liable with the personal representative to
settle his demand, the personal assets of the estate must be ex-
hausted before resort can be had to the realty.^
§ 1214. Real Estate of Mortgagor or Mortgagee ; Rule of Assets.
Where one dies seized of real estate incumbered by a mortgage,
the land descends to heirs or devisees subject to that special incum-
brance ; in other words, the equity of redemption vests in them.
If such mortgage be afterwards foreclosed and the land sold, any
surplus on the sale is regarded as realty, and goes to the heirs or
devisees ; and the representative, as such, cannot regard it as per-
sonal assets nor sue to recover it,^ except for the statute contin-
8. 167 Mass. 205, 45 N. E. 351.
9. Willis V. Smith, 65 Tex. 656.
But statutes sometimes extend the
representative's right in this respect.
69 A. 133, 81 Vt. 97; 86 N. E. 360,
200 Mass. 293; 122 N. C. 683, 29 S.
E. 949; 150 Ind. 260, 49 N. E. 1050;
71 Wis. 148, 36 N. W. 624. And see
Stam V. White, 81 S. W. 1127, 183
Mo. 164; § 1297, post.
Remainderman after a life estate
became at once entitled to possession
of the land, regardless of executor.
80 S. E. 261, 130 Ga. 120. See, fur-
ther, Eatterman v. Appeison, 133 S.
\\. 1005, 141 Ky. 821 (land held in
common) ; Winter v. Dibble, 95 N. E.
1093, 251 111. 200.
1. Hoffman v. Wilding. 85 111. 453;
Bale of lands. Part VI., c. 2, post. In
Arkansas and some other States the
law is that the real as well as the
personal estate of the deceased shall
he treated as assets in the hnnd> of
the representative; neither species of
property, however, to be sold with-
out an order of the probate court.
Tate V. Norton, 94 U. S. 746, 24 L.
Ed. 222; Meeks v. Vassault, 3 Saw-
yer, 206. In Delaware, too, at a very
early period under the proprietary
government, the common law was
changed in this respect; lands were
made liable as well as chattels for the
payment of debts, and they miglit be
taken and sold on execution process,
or sold by executors and adminstra-
tors for the debts of their decedents.
Vincent v. Piatt, 5 Harring. 1'64. See
also Jones v, Wightman, 2 Hill (S.
C.) 579; Jennings v. Copeland, 90 N.
C. 572. See 7S N. W. 941. 58 Neb.
457, 40 A. 1063, 68 N. H. 413; 49 A.
1085, 62 N. J. Eq. 314.
2. Though the mortgage provides
that the surplus shall be paid to the
mortgagor or " his executors or ad-
ministrators," this is the true con-
struction to place upon the trausac-
1202
CHAP. I.] ASSETS OF AN ESTATE. § 1214
gency of having to sell under a license, as already noticed. Gener-
ally, when land is sold for a specific purpose or under a mortgage,
the surplus money, as also between the heirs and next of kin, is
considered as land ; but after it has once vested in the person enti-
tled to it, it becomes money, and on his death passes to his own
representatives as personal estate.^
As for the mortgagee of real estate, such mortgage before fore-
closure is only security in his hands for indebtedness or a liability,
and equity treats it as a chattel interest, which passes to the ex-
ecutor like the principal chose in action.* The same doctrine ap-
plies to the assignee of a mortgage.^ Where lands mortgaged to
the deceased are taken into possession, and foreclosed after his
death by his executor or administrator for breach of condition, the
executor or administrator shall hold the estate until his functions
touching it are fully performed, or until distribution ; ^ and such
property, it would appear, is to be held and dealt with like other
personal assets, this being its character when the representative's
title vested by reason of the owner's death.^
tion. Dunning v. Ocean Nat. Bank, 4 Allen, 417; Burton v. Hintrager, 18
61 N. Y. 497, 19 Am. Rep. 293. And Iowa, 348. A Welsh mortgage fol-
see Cox v. McBurney, 2 Sandf. 561 ; lows this rule. Longuet v. Scawen,
Clark V. Seagraves, 71 N. E. 813, 186 1 Ves. Sen. 406. See 175 Mass. 213.
Mass. 430; 99 N. W. 514, 71 Neb. 5. Statutes sometimes emphasize
732. Cf. Heigh way v. Pendleton, 15 the rule of the text. Mass. Gen.
Ohio, 735. So where heirs of the Stats, c. 96, § 9
mortgagee buy in the land at a fore- 6. Boylston v. Carver, 4 Mass. 598;
closure sale, their position is like that Palmer v. Stevens, 11 Cush. 148 ;
of an ordinary purchaser. Johnson Terry v. Ferguson, 8 Port. 500; Har-
V, Patterson, 13 Lea, 626. per v. Archer, 28 Miss. 212; Taft v.
3. Sayers's Appeal, 79 Penn. St. Stevens, 3 Gray, 504; 69 A. 694, 103
428; Foster's Appeal, 74 Penn. St. Me. 410; 52 S. W. 296, 103 Tenn. 1,
391, 15 Am. Rep. 553; Sweezy v. Wil- 48 L. R. A. 130. See Horton v. Rob-
Us, 1 Bradf. (N. Y.) 495. inson, 98 N. E. 681, 212 Mass. 248
4, Wms. Exrs. 687; Tabor v. Tabor, (absolute deed executed by testatrix
3 Swanst. 636; Jones and other gen- construed as a mortgage)
€ral writers on Mortgages; Chase v. 7. Local statutes are found to
Lockerman, 11 Gill & J. 185; Fay v. affirm this rule. Mass. Gen. Stats.
Cheney, 14 Pick. 399; Steel v. Steel, c. 96, §§ 9-12.
1203
§ 1216 EXECUTOES AXD ADMIXISTEATOKS. [PAKT III.
§ 1215. Rule of Assets as to Lands set off in Execution,
Land set off to an executor or administrator upon an execution
recovered hy liini on a debt wliicli was due to the deceased person-
ally, appears to follow the same rule as in the representative's fore-
closure of a mortg'age. The right of action, in other words, having
once vested in the representative, whatever may be realized thereon
afterwards goes properly as assets for the general benefit of the
estate, being the result of a prudent pursuit or enforcement of that
right; and hence the real estate taken on execution, or its proceeds,
will vest in the representative as personal assets, to be paid out or
distributed eventually, and meanwhile held in trust.^
§ 1216. Rents, Profits, and Income of Real Estate; Damages,
etc. ; Rule of Assets.
The profits and income of real estate, incidental to its beneficial
enjoyment, follow by operation of law the title to the premises.
The rents of a decedent's lands (not being apportionable at common
law) go according to this principle, in the absence of local statutes
providing for apportionment. The rents accruing previous to the
lessor's death belong to his personal representative, and those ac-
cruing after his death to the heir or devisee.^
8. Uoylston v. Carver, 4 Mass. 598; 123; Smith v. Bland, 7 B. Mon. 21;
Taft V. Stevens, 3 Gray, 504. Local Fleming v. Chunn, 4 Jones Eq. 422;
statutes confirm this rule. Mass. Gen. Bloodworth v. Stevens, 51 Miss. 475;
Stats, c. 96, §§ 9-12; Williamson v. Crane v. Guthrie, 47 Iowa, 542; 80
Furbush, 31 Ark. 539. Ala. 388. So, too, where rfent is p.iy-
9. Tayl. Landl. & Ten. § 390; able in kind. Cobel v. Cobel, 8 Penn.
supra, § 1213; Peck v. Ingnrsoll, 7 N". St. 342. Except as to payment in
Y. 528; Stinson v. Stinson, 38 Me. crops not yet ripe. Wadsworth v.
593; Sparhawk v, Allen, 25 N. H. Allcott, 6 X. Y. 64.
261; Gibson v. Farley, 16 Mass. 280; Accordingly, the executor of a los-
Fay V. Holloran, 35 Barb. 295; Koh- sor might distrain for arrears of rent
ler V. Knapp, 1 Bradf. 241; Robb'a due at the lime of tlie testator's
Appeal, 41 Penn. St. 45; King v. An- death, but not for rent which accriiod
derson, 20 Ind. 385; Foltz v. Prouse, subsequently. Taylor Landl. &. Ten.
17 111 487; Foteaux v. Lepage, 6 Iowa, § 570.
1204
CHAP, l.j ASSETS OF AN ESTATE. § 1217
(So, too, a lessor's claim for damages accruing after his death
goeis with) the title to the heir or devisee.^
§ 1217. Legal Character of Property, Real or Personal, fixed at
Owner's Death; Rule of Equitable Conversion.
In general, so far as executors or administrators are concerned,
'the character of property, whether as real or personal, is
that impressed upon it at the death of the testate or intestate,
and does not change by any subsequent conversion in the course of
administration.^ Indeed, a testator cannot alter the legal character
of his real or personal property by directing that it shall be con-
sidered of the one class instead of the other.^
In equity, however, that which should have been done is treated
in many instances as actually done; agreeably to which maxim,
money is often to be regarded as land, and land as money ; though
the principle is not, apparently, pushed to the extent of allowing
property to be retained in the one shape, and yet devolve in title
as though it were of the other.^ An equitable conversion may take
place, therefore, subsequently to the testator's death, by reason of
directions contained in the will itself and properly executed. Such
conversion, however, is not favored, nor extended upon inference.
Accordingly, a testator's direction to convert his real estate into
personalty, for specified purposes, must be restricted to those ob-
jects, and any surplus proceeds after execution of the power will
go as realty ; ^ though, should it clearly appear that the testator
intended an absolute conversion for all the purposes of the will, the
proceeds will constitute assets in the hands of the executor, for
1. Kernochan v. Elevated R., 128 4. Wms. Exrs. 659; 1 Jarm. Wills,
N. Y. 559, 29 N, E. 65; § 1218, post. 3d Eiig. ed. 551.
As to leases and a deceased lessee, 5. Wms. Exrs. 658; Fletcher v.
see § 1223. Ashburner, 1 Bro. C. C. 497; Hill v.
2. Hamer v. Betliea, 11 S. C. 416; Cock. 1 Ves. & Bea. 173. And see
Rogers v. Paterson, 4 Paige, 409. Foster's Appeal, 74 Penn. St. 391,
3. Wms. Exrs. 657; Clay v. Willis, 15 Am. Rep. 553; 4 Thomp. & C. (N.
1 B. & C. 364; Johnson v. Arnold, 1 Y.) 410.
Ves. 171.
1205
§ 1217 EXECUTOKS AA'D ADMIXISTEATOES. [PAKT III.
the payment of legacies as well as of debts and funeral expenses.*
Again, there may be a constructive conversion of real into per-
sonalj or personal into real, property, at the time of the testator's
decease.^
In the administration of an intestate estate, the rule of equitable
conversion is of little or no practical consequence. But in admin-
istration under a will it may be found of much importance. In
the latter instance, the general rule deducible from English and
American decisions is, that, where the will shows unequivocally
that the testator meant to convert real estate into personal, the law
will consider the conversion as actually made at the death of the
testator, and treat the estate as personal for all the purposes plainly
intended by the will.^ Conversely, where the testator shows a clear
intention that personal estate shall be converted into real, as by
an explicit direction that certain money shall be laid out in land
and settled on A. in fee, the money is descendible at once upon
the testator's death, with the usual incidents of real estate tenure.^
In either case, the death of the surviving legatee or devisee, before
an actual conversion takes place, and before the administration is
completed and the claims of creditors disposed of, causes a devolu-
tion of title as between his personal or real representatives, ac-
cording to the character impressed upon the property by the tes-
tator's will. But an intended postponement, or an option of dis-
cretion conferred by the will upon the executors, should postpone
the constructive conversion to the time when conversion, by sale
or otherwise, actually takes place.^ There may be an equitable
6. Smith V. First Presby. Cliurch, kins's note; Smith v. First Presby.
26 N. J. Eq. 132; Hammond v. Put- Church, 26 N. J. Eq. 132; Phelps v.
nam, 110 Mass. 235; Phelps v. Pond, Pond, 23 N. Y. 69; Craif? v. Leslie, 3
23 N. Y. 69. Wheat. 562, 4 L. Ed. 460.
7. Hammond v. Putnam, 110 Mass. 9. Bramhall v, Ferris, 14 N. Y. 41;
232, and cases cited. Phelps v. Pond, 23 N. Y. 69; Dod-
8. Johnson v. Woods, 2 Beav. 409; son v. Hay, 3 Bro. C. C. 404; Wms.
Collier v. Collier, 3 Ohio St. 369; Exrs. 658, and Perkins's note.
Morton, J., in Hammond v. Putnam, 1. Bective v. Hodjrson, 10 H. L.
110 Mass. 36; 1 Jarm. Wills. 3d Cas. 6fi7; De Beauvoir, Re, 3 H. L.
Eng. ed. 549; Wms. Exrs. 662, Per- Cas. 524.
1206
CHAP. I.] ASSETS OF AN ESTATE. § 1218
interest in land wliicli passes to the executor or administrator
and is assignable by him.^
§ 1218. Character of Property at Owner's Death; Instances;
Contract to Sell ; Land Damages ; Fire-insurance Money,
etc.
Where a deed executed by the vendor of real estate is held by
some third person as an escrow, to be delivered upon the payment
of an unpaid balance of the purchase-money, the death, meantime,
of the vendor will cause the estate to descend to the heirs, sub-
ject to the vendee's equitable right to a conveyance.^ A mere
contract for tlie sale of land passes, as a beneficial right for en-
forcement, to the executor, as between him and the heir or devisee,
for it is personalty f whi^ the estate to the land vests, in equity,
in the vendee, and in case of the latter's death goes to his heirs,
and not to the personal representative.^ Where a testator devises
land, to which he still holds the legal title, but which he has sold,
giving to the purchaser a bond for a deed, the purchase-money,
when paid by the purchaser, will belong to the devisee.®
Damages assessed in favor of land taken for public uses, before
the owner's death, though not made payable until after his death,
pass as assets to the executor or administrator; but otherwise, if
the land was not taken until after the owner's death.^ So, if a
person sells real estate and dies afterwards, that portion of the
purchase-money which remains unpaid must be treated as per-
sonal property and assets, however the same may have been se-
cured.^
2. Atkinson v. Henry, 80 Mo. 670. 5. Id.; Champion v. Brown, 6
3. Teneick v. Flagg, 29 N. J. L. 25. John. Ch. 398.
Escrows are to be respected. See 1 6. Wright v. Minshall, 72 111. 584.
B. & Aid. 606. 7. Astor v. Hoyt, 5 Wend. 603;
4. Moore v. Biffrows, 34 Barb. 173; Welles v. Cowles, 4 Conn. 182; Good-
Williams V. Haddock, 145 N. Y. 144, win v. Milton, 25 N. H. 458; Neal v.
39 N. E. 825; 88 N. W. 384, 129 Knox R., 61 Me. 298.
Mich. 177, 95 Am. St. Rep. 427, 10 8. Loring v. Cunningham, 9 Cush.
Am. Dec. 343. 87; Henson v. Ott, 7 Ind. 512; Everit,
1207
§ 1219 EXECUTOKS AXD ADMIXISTRATOES. [PAKT III.
Insurance money paid to the heirs on a fire insurance of the
decedent's real estate, the buildings being burned after his death,
vests in the heirs, like the realty, and constitutes no part of the
ordinary personal assets of the deceased.^ But if the buildings
were burned while the decedent was alive, any claim for unpaid
insurance money should, on principle, constitute assets for the
personal representative to collect and. administer upon.
§ 1219. Gifts Causa Mortis, etc., as affecting Question of Assets.
A gift of personal property causa mortis, which differs from
ordinary gifts in being made with an anticipation of imminent
death, and constituting a sort of ambulatory disposition by de-
livery, without the essential formalities of a will, carries two dis-
tinct consequences, when fully executed and followed by the donor's
death : one with respect to the donee himself, the other as con-
cerns creditors of the estate. As concerns the donee, his title is
derived directly from the donor and not from the donor's execu-
tor or administrator ; consequently, the assent of such representa-
tive after the donor's death is not in any way essential to the
donee's title, nor has the executor or administrator any claim
whatever upon the property for the ordinary purposes of ad-
ministration and the claims of distributees.^ At the same time
the executor or administrator of an alleged donor has correspond-
IMatter of, 2 Edw. 597; Sutter v. See, further, Mass. Hospital v. Bos-
Ling, 25 Penn. St. 466. Whore one ton, 98 N. E. 583, 212 Mass. 20 (land
dies having an interest in mortgaged devised for a city park) : Dnran v.
land sold under prpcoedings in par- Kennedy. 141 N. W. 851, 122 Minn. 1.
tition, such interest being ve-strd. is 9. Wyman v. Wyman, 26 N. Y.
not real but personal estate. Jacobus 253; Harrison v. Harrison, 4 Leigh.
V. Jacobus, 37 N. J. Eq. 17; see § 371. As to owners subject to life es-
1213n.. Note local statute as to suit tate, see 42 Hun (N. Y.) 423.
on land damages, 101 S. W. 127, 123 1. 2 Schoul. Pers. Prop. § 193;
!Mo. App. 545. As to life support out Gaunt v. Tueker, 18 Ala. 27; Mich-
of land conveyed, see 104 S. W. ener v. Dale, 23 Penn. St. 59; West-
982, 32 Ky. Law 159. And see 85 erlo v. De Witt, 36 N. Y. 340. 93
P. 87, 36 Col. 35 (trespass for in- Am. Dec. 517. See Wadsworth V.
jury to land). Chick, 55 Tex. 241.
1208
CHAP. I.] ASSETS OF AN ESTATE. § 1220
ing rights against all persons retaining property of the deceased
under the fictitious claim of donees causa mortis, and it is his
duty to dispossess them.- But with regard to the donor's credi-
tors, the universal principle is, as in the case of gifts inter vivos,
that the transfer shall not be allowed to defeat the just claims of
creditors;^ and accordingly, upon an utter deficiency of assets
to pay the lawful claims of creditors, any gift causa mortis must
give way so far as may be requisite to discharge lawful demands.*
§ 1219a. Effect of Insolvency; Equitable Assets.
The effect of decreeing insolvency in a decedent's estate is merely
to determine the status of the estate and to bring the exclusive
adjustment of legal claims for the just benefit of creditors into
the probate court; it does not affect the right to assert in a court
of equity an equitable title to property whose legal title was in
the decedent during his lifetime.^ Nor does a probate decree of
insolvency apply to trust funds held by decedent at his death,
£0 as to cut off the cestui que trust.^
§ 1220. Assignment, Gift or Transfer by the Decedent, to be
avoided if Fraudulent as against his Creditors.
Any gift, assignment, conveyance, or transfer of property within
the statute 13 Eliz. c. 5, and analogous legislation, is void against
creditors ; and, consequently, it becomes the duty of a personal
representative to procure the property by instituting, on their be-
2. Egerton v. Egerton, 17 N. J. Eq. 2 Schoul. Pers. Prop. §§ 135-198. And
419. see Wms. Exrs. 770-783. A deposit of
3. 2 Bl. Com. 514; 2 Kent Com. personalty in one's life, which is
448; Dig. 39, 6, 17; 2 Schoul. Pers. purely ambulatory and creates no
Prop. § 193. valid trust by way of gift belongs to
4. Drury v. Smith, 1 P. Wms. 406; the executor or administrator as as-
Ward V. Turner, 2 Ves. Sen. 434; sets. Oilman v. McArdle, 12 Abb. N.
Michener v. Dale, 23 Penn. St. 59 ; Cas. 414.
Chase v. Redding. 13 Gray, 418: 5. Long v. King, 117 Ala. 423, 23
Borneman v. Sidlinger, 15 Me. 429, So. 534.
33 Am. Dec. 62S. The general topic of 6. Koch v. Feick, 86 A. 67, 81 N.
gifts causa mortis, is fully treated in ,T. Eq. 120.
1209
§ 1220
EXECUTORS A^-D ADMINISTRATOES.
[part III.
half, appropriate proeeediugSj considering the means of litigation
at his disposal and the proof obtainable.'' So, too, the personal
representative may and should resist the collection of a note or
demand against the estate, grounded upon a fraudulent transfer
hj the deceased.* Generally speaking, property which has been
assigned or conveyed by the deceased, after the manner of a gift,
confers a title upon the donee or grantee, subject to the lawful
demands of prior existing creditors of the estate. The executor or
administrator, representing these and other interests against the
express or implied wishes of the deceased himself, if need be, may
and ought to procure all assets suitable for discharging demands
of this character. But if any balance is left over, it goes, not to
the next of kin, but to the donee or grantee; for the re^'ocation
of any gift for the benefit of creditors of the decedent is only
pro tanto.^
7. Wms. Exrs. 1679, and note by
Perkins; Martin v. Root, 17 Mass.
222; Preston v. Cutter, 85 N. H. 85,
§ 1297 post. It has sometimes been
disputed whether the executor or ad-
ministrator of an insolvent donor can
feet aside the gift; but it is clear that
the creditors can pursue their own
remedies, in which case the personal
representative of the deceased is a
proper party, so that the property
when recovered may go in a course
of administration. 1 Am. Lead. Cas.
43; 2 Schoul. Pers. Prop. §§ 111-123;
Blake v. Blake, 53 Miss. 183.
8. Cross V. Brown, 51 N. H. 486;
Welsh V. Welsh, 105 Mass. 229. See,
also, 2 N. E. 464, 52 Am. Dec. 41;
Daniels v. Spear, 117 P. 737, 65
Wash. 121; Fourth Nat, Bank v.
Mead, 102 N. E. 69, 214 Mass. 549;
Oilman v. McArdle, 99 N. Y. 451.
9. McLean v. Weeks, 61 Me. 277;
Abbott V. Tenney, 18 N. H. 109;
Beade v. Livingston, 3 Johns. Ch.
121
481, 8 Am. Dec. 520; 2 Schoul. Pers.
Prop. §§ 111-123; Burtch v. Elliot,
3 Ind. 100. But the expenses of ad-
ministration should be defrayed out
of the fund before the donee can claim
a balance. McLean v. Weeks, supra;
Bassett v. McKenna, 52 Conn. 437.
An action by a representative, to re-
cover money alleged to have been ob-
tained under a lease assigned the de-
fendant by the decedent in fraud of
liis creditors, is cognizable at law.
Doe v. Clark, 42 Iowa, 123. Our local
practice, in other words, as to gifts
inter vivos follows the course so fre-
quent in the essentially distinct case
of a gift causa mortis, namely, to
permit the executor or administrator,
as quasi representative of the credi-
tors, to recover the property or its
value to tiie extent requisite. lb. As
to avoiding as fraudulent the assign-
ment of a life policy by the decedent,
see Spooner v. Hilbish, 92 Va. 333.
0
CHAP. I.] ASSETS OF AN ESTATE. § 1251
The personal representative's right and duty to have a fraud-
ulent transfer set aside, may extend to proceedings by hill in
equity to reach real estate thus fraudulently conveyed; so far,
at least, as the interests of creditors may require real property
to be reached for the satisfaction of debts and tlio fulfilment of
the duties of administration, without conflicting v^^ith the main
principle upon which voluntary conveyances are treated, as within
the statute prohibition above referred to; and subject, of course,
to the rule which exliausts the personal assets first.^ Questions
of this character properly concern the settlement of the estates of
those who die insolvent. As a general rule, whatever the de-
cedent has fully given away without expectation of repayment,
is not due the estate as assets.^
§ 1221. Equitable Assets as distinguished from Legal Assets.
The English law of administration has taken some pains to dis-
criminate between legal assets and equitable assets of an estate;
referring to the latter head, such assets as are liable only by
the help of a court of equity, and not recognized as assets at law.
The point of the distinction lies in this: that coui'ts of equity
disapprove those rules of priority among creditors which were
early established by the common-law tribunal, and ranked all debts
alike, whether founded in specialty or simple contract, this being
most consonant to natural justice.^ To stretch judicial power ar-
bitrarily, however, in order to further ends which it lies rather
within the province of legislation to accomplish, is incompatible
with American rules of procedure ; and American courts of equity
rarely, if ever, enforce such a distinction ; the old rules of priority
having, instead, been altered by suitable enactments in most parts
of the United States, or else rendered as tolerable as possible by
1. Wms. Exrs, 1679, 1680; 3 B. & 73 S. E. 656, 137 Ga. 427. And see
Ad. 363. Sears v. Hull, 145 S. W. 760, 147 Ky.
2. See Kelsey v. Kelley, 63 Vt. 41, 745; post. § 1297.
22 A. 597; Byrd v. Hall. 196 F. 732, 3. Wms. Exrs. 1680-1685.
117 C. C. A. 568; Perry v. Reynolds.
1211
§ 1221 EXECUTOKS A^'D ADMIXISTKATOES. [PAET III.
beiuir administered with uniformitj.* In England, moreover, the
chancery courts appear to have abated some of their former pre-
tentions in this respect, by conceding latterly, though not without
reluctance, that an equity of redemption in chattels, real or per-
sonal, constitutes assets at law in the hands of the executor or ad-
ministrator for whatever it is ^Aorth over and above the security;^
or in other words, that whatever devolves in title upon the executor
or administrator, by virtue of his office, shall be treated as legal
assets.^ But with regard to such property of the deceased as con-
sists of the proceeds of the sale of real estate, the English rule
appears to settle that such proceeds are equitable and not legal
assets; though there has been some question whether devises of
land to executors for sale, or for the payment of debts and legacies,
impress the proceeds with the character of equitable assets.^ It is
ruled, conformably to the main distinction, that, where assets are
partly legal and partly equitable, equity cannot take away the legal
preference on legal assets, and yet may postpone a creditor who
has been partly paid out of the legal assets, so as to make an
equal satisfaction out of the equitable assets for all the creditors.*
In the United States, and apparently in England, also, the better
rule is tliat a right of equity of redemption in property, real or
personal, should be treated as assets available, alike any other
legal assets of the estate f if, indeed, the distinction between legal
and equitable assets be tenable at all.
4. See § 1417 as to paynier.t of loaned by the representative under a
debts; Sperry's Estate, 1 Ashm. 347. power in the will secured by mort-
5. Wms. Exrs. 1682; Sharpe v. gage of real estate is in equity re-
Scarborough, 4 Ves. 541; Wison v. gardod as personal assets. Dunham
Fielding, 2 Vern. 763. Contra. Cox. v. Milhouser, 70 Ala. 596.
Creditors of, 3 P. Wms. 342; Hart- 8. Chapman v. Esgar, 1 Sm. & G.
■well V. Chitters, Ambl. 308. 575.
6. Story Eq. Jur. § 551; Wms. 9.' 4 Kent Com. 162; Cook v. Greg-
Exrs. 1682; Cook v. Gregson. 20 Jur. son. 20 Jur. 510, per Kindersley, V,
510. C. Such, after all, is the judicial in-
7. Clay V. Willis. 1 11. & C. 364; clination not to violate generiil rules
Bain v. Sadler, L. R. 12 Eq. 570; for the settlement of estates, (hat
Wms. Exrs. 1684. Contra, Girling v. later English chancery cases appear
Lee, 1 Vern. 63. A dulit for money compelled to draw the distinction be-
1212
CHAP. 1.]
ASSETS OF AN ESTATE.
§ 1222
§ 1222. Assets where Property is appointed under a Power.
Where a person has a general power of appointment, either by
deed or by will, and executes that power, the property appointed
is deemed in equity part of his assets, and rendered subject to
the demands of his creditors in preference to the claims of his
voluntary oppointees or legatees.^
tween legal and equitable assets into
a fine thread. Thus, Kindersley, V.
C, observes, in Shee v. French (3
Drew. 718), that the question
wliether assets are legal or equitable
depends on this: whether, if the case
were before a court of law. on an issue
of plene administravit, that court
would treat the property as assets;
for the principle on which a court of
law proceeds is to inquire w^hether
the property came to the hands of the
executor virtute officii; if it did, the
court of law regards it as assets ap-
plicable to the payment of the testa-
tor's debts, and then the court of
equity treats it as legal assets.
1. " The rule perhaps had its
origin," observes Gray, C. J., in a
Massachusetts case, " in a decree of
Lord Somers, affirmed by the House
of Lords, in a case in which the per-
son executing the power had in effect
reserved the power to himself in
granting away the estate. Thompson
V. Towne, Prec. Ch. 52; s. c. 2 Vern.
319. But Lord Hardwicke repeatedly
applied it to cases of the execution of
a general power of appointment by
will of property of which the donea
had never had any ownership or con-
trol during his life; and while recog-
nizing the logical difficulty that the
power, when executed, took effect as
an appointment, not of the testator's
own assets, but of the estate of the
donor of the power, said that the pre-
vious cases before Lord Talbot and
himself (of which very meagre and
imperfect reports have come down to
us) had established the doctrine, that
when there was a general power of
appointment, which it was absolutely
in the donee's pleasure to execute or
not, he might do it for any purpose
whatever, and might appoint the
money to be paid to his executors if
he pleased, and, if he executed it vol-
untarily and without consideration
for the benefit of third persons, the
money should be considered part of
his assets, and his creditors should
have the benefit of it." Clapp v. In-
graham, 126 Mass. 200, 202, citing
Townshend v. Windham, 2 Ves. Sen.
1; Caswell, Ex parte, 1 Atk. 559,
560; Pack v. Bathust, 3 Atk. 269.
"The doctrine," adds Gray, C. J.,
" has been upheld to the full fxt:^nt in
England ever since." lb., citing^ Flem-
ing v. Buchanan, 3 De G. M. & G.
976; 2 Sugd. Powers, 7th ed. 27. Al-
though the soundness of the reasons
on which the doctrine rests has since
been impugned arguendo by Gibson,
C. J., and doubted by Mr. Justice
Story (see Story Eq. Jur. § 176, and
note), it has been considered well set-
tled in the United States. Clapp v.
Ingraham, sttpra; 4 Kent Cora. 339,
340; Johnson v. Gushing, 15 N. H.
298, 41 Am. Dec. 694; CommonweaJth
1213
§ 1223 EXECUTORS AXD ADiilXISTRATOES. [PART III.
§ 1223. Chattels Real as Assets; Leases, etc.
Inasmucli as the personal but not the real estate of the decedent
vests as assets in his executor or administrator, a clear idea should
be retained of the peculiar discrimination which our common law
makes between these two grand classes of property. Mobility
and immobility appear to be the fundamental test in all systems
of jurisprudence; but at the common law there was the freehold
estate in lands, which might be eitlier one of inheritance or for
life, while to all inferior interests and movables proper was ap-
plied the term " chattel ;" so that personal property at our law
has been essentially property the residuum of the freehold, and
divided into chattels real and chattels personal.^ Chattels real
vest consequently in the executor or administrator of the lessee,
whether as a valuable beneficial and assignable interest, which
may be disposed of at a profit, or as involving rather a burden-
some obligation to be discharged out of the decedent's estate. Of
chattels real the only important one in modem times is the lease.*
The good-will of an established business and a leasehold interest
go often together as valuable assets.* So, too, the good- will of a
V. Duffield, 12 Penn. St. 277, 279-281. signee's life; but on his death a chat-
See, also, Wms. Exrs. 1686. tel real and assets in the hands of his
2. 1 Schoul. Pers. Prop. §§ 6, 7; 2 administrator. Mosher v. Youst, 33
Bl. Com. 385, 386; Wms. Exrs. 670- Barb. 277. An estate for another's
690. life, which at common law fell on the
3. Murdock v. Ratcliff, 7 Ohio, 119; grantee's death to the first person
Wms. Exrs. 674; 1 Schoul. Pers. who could get it, is affected by stat.
Prop. § 20; Lewis v. Ringo, 3 A. K. 29 Car. II. c. 3, § 12, which favored
Marsh. (Ky.) 247; Thornton v. Meh- treating it as assets of the grantee's
ring, 117 111. 55, 25 N. E. 958. Chat- estate. It may be disposed of by will,
tels personal, upon which the term however, under stat. 1 Vict. c. 26. §
" personal property " is more com- 3. See Wms. Exrs. 681. 682. See,
monly bestowed, have already been also, Rickard v. Dana, 52 A. 113, 74
considered. See, also, as to the Eng- Vt. 74 (lease with option to pur-
lish attendant terms of years, raort- chase) ; Ring's Estate, 109 N. W. 710,
gaged for family trust arrangements, 132 Iowa, 218; 134 F. 470; McCor-
1 Schoul. Pers. Prop. § 43. The as- mick v. Stephany, 57 N. J. Eq. 257,
signee of a l&ssee for life holds an es- 41 A. 840 (option).
tate pur auter vif, which, by our stat- 4. Wiley's Appeal, 8 W. & S. 244.
ute, is a freehold during the a»-
1214
CHAP. I.] ASSETS OF AN ESTATE. § 1224:
renewal of the lease should, if valuable, be included.^ As assets,
leases have, however, peculiar incidents.
Rent may issue out of lands and tenements, or it may be paid
in consideration of real and personal property blended, as where
a furnished bouse is let.^ If the administrator of a deceased
tenant takes possession of a leased estate and continues on under
the terms of the lease, the profits of the land, it is said, are first
liable for the payment of the rent, and only what remains can
constitute assets of the estate.^ This rule appears an equitable
one. But under the Xew York statutes it is held that where one
dies holding leases upon which arrears of rent are due, and there
were also certain sums due him for storage of goods on the leased
premises, assets exist to be applied among creditors without any
preference in favor of the lessor.^
§ 1224. Chattels which come by Remainder as Assets.
iChattels which never vested in possession in the testator may
nevertheless come to his executor by remainder as assets; as if a
5. Green v. Green, 2 Redf. (N. Y.) 7. Mickle v. Miles, 1 Grant (Pa.)
408. Where a lessee hired premises 320.
by parol agreement, a lease being 8. Harris v. Meyer, 3 Eedf. (N. Y.)
drawn up but not signed, and entered 450. See post, §§ 1374-1377, as to
before his death, and made valuable peculiar rights and liabilities con-
improvements, the lease is enforce- cerning leases, etc.
able in equity, and should therefore " The cases on the subject of a lease
be deemed an asset for the whole devolving on an executor, where the
term. lb. rent reserved exceeds the value of the
A lease for ninety-nine years is a premises, are involved in some diffi-
chattel real (in absence of statute culty. I think, however, upon the au-
changes), and constitutes, on the les- thorities, as well as on principle,
see's death, assets for administration, that, where the rent reserved exceeds
Faler v. McRae, 56 Misc. 227. See the value of the premises, an execu-
Johnson v. Stone, 102 N. E. 366, 215 tor, in the character of assignee, is
Mass. 219; Schmidt v. Stoss, 100 N". liable to the extent of such value;
E. 1119, 207 N. Y. 731. and, where the value exceeds the rent
6. Mickle v. Miles, 1 Grant (Pa.) reserved, to the extent of such rent."
320, 328, per Lowrie, J. See supra, Mr. Justice Maule in 6 C. B. 756;
§ 1216, as to rent. Bowes, Re, 37 Ch. D. 128.
1215
§ 1225 EXECUTOES AXD ADMi::sISTEATOKS. [PAKT III^
lease should run to A. for life, with remainder to his executor for
vears.^
§ 1225. Things on the Border-Line of Real and Personal; Rule
of Assets applied to Heirlooms.
Finally we come to things at the border-line which separates
real estate and personal or chattel property at the common law.
The three classes here noticeable are (1) heirlooms, (2) emble-
ments, and (3) fixtures.
Heirlooms are not favored in American law; and so far as
such things cannot be treated as strict fixtures, their title seems to
have been excepted from the ordinary rules of devolution upon
death, out of favor to the heir, in accordance with some local cus-
tom which gratified family pride. ■■• The armor and insignia of
an ancestor, family portraits, crown jewels, and the like, come
within the principle of this exception. According to Coke, articles
of less dignity, like the best bed, table, pot, pan, and cart, might
go in this manner; and out of regard to a sort of connection with
the freehold, if not annexation, which they bore, keys, title-deeds,
and other muniments of the inheritance, together with the chest
containing them, went also to the heir.^ To all this curious learn-
ing American courts pay little heed ; but whatever may be pro-
nounced heirlooms go with real estate to the heir, and the execu-
tor or administrator cannot treat them as assets more than tho
real estate itself. Indeed, it is held that though the owner might
have disposed during life of chattels which would otherwise des-
cend as heirlooms, he cannot devise or bequeath them b^^ his
will, but they shall vest in the heir on the instant of the donee's
death.^
9. Com. Dig. Assets C; Wms. Exrs. 2. lb.; Co. Lit. 18 b; Upton v. Lord
1858. See Gee v. Hasbrouck, 87 N. Ferrers, 5 Ves. 806; Harrington v.
W. 621, 128 Mich. 509. Price, 3 B. & A. 170; Allwood v. Hcy-
1. 1 Schonl, Pcrs. Prop. § 95; 2 Bl. wood. 11 W. R. 291.
Com. 427; Wms. Pers. Prop. 5th Eng. 3. Tipping v. Tipping, 1 P. Wms.
ed. 12. 7.30; 1 Schoul. Pcrs. Prop. § 99. Tlie
1216
CHAP. I.J ASSETS OF AN ESTATE. § 1226
§ 1226. Rule of Assets applied to Emblements.
Next, as to " emblements;" a word associated with chattels
vegetable and growing crops. Here the rule is, that when the
owner of real estate dies, trees and their fruit and produce, if
hanging on the trees at the time of his death, also hedges and
bushes, go to the heirs and not to the executor or administrator ;
the reason being that they are part of the real estate and not
chattels.^ But out of favor to agriculture, and to aid the inten-
tions of one who has bestowed labor upon a crop which by reason
of some unforeseen contingency is beyond his control, the un-
severed property is sometimes treated as though already severed ;
a rule which obtains with much force as between tenant and land-
lord, where the tenancy has suddenly determined by act of God or
ihe act of the law.'' If an owner sows his land, and then con-
veys it away, he passes the title to growing crops as well as
the soil, and his executors and administrators have no concern in
either.'' So, too, one's devise of land carries presumptively the
growing crops.^
Crops of the year not actually so-vvn or planted by the decedent
do not come within the benefit of the rule of emblements f nor,
us a rule, growing clover or grass, which is a natural product of
the soil renewed from year to year.^ But as to grain, corn, pota-
toes, or any other product of the soil which is raised annually
by labor and cultivation, and returns periodical profit only by
topic of heirlooms is discussed at 94; Fetrow v. Fetrow, 50 Penii. St.
length in 1 Schoul. Pers. Prop. §§ 95- 253. As to crops growing on a houso-
99. hold farm, see Budd v. Hiler, 27 N. J.
4. 1 Schoul. Pers. Prop. § 102; L. 43.
Swinb. pt. 7, § 10. pi. 8; Wms. Exrs. 8. Gee v. Young, 1 Hayw. (N. C.)
707; Rodwell v. Phillips, 9 M. & W. 17; Rodman v. Rodman, 54 Ind. 444.
501; Maples v. Milton, 31 Conn. 598. 9. Kain v. Fisher, 8 K Y. 597;
5. 1 Washb. Real Prop. 104 et seq.; Evans v. Inglehart, 6 Gill & J. 188;
1 Schoul. Pers. Prop. § 106. 1 Schoul. Pers. Prop. § 105. And this
6. 1 Schoul. Pers. Prop. § 101; 1 rule appears rigidly to apply even
Washb. Real Prop. 104; Foote v. Col- though the natural product be in-
vin, 3 Johns. 216, 3 Am. Dec. 478. creased by actual cultivation. lb.
7. Shofner v. Shofner, 5 Sneed, But see Wms. Exrs. 712.
77 1217
§ 1227 EXECIJTOES AND ADMINISTKATOES. [PAKT III.
periodical planting, the labor bestowed affords reason, on the
casualty of death happening, for application of the rule of emble-
ments ; hence, such growing crop of a decedent goes as personal
assets to his executor or administrator, and not with the title to
the land.^ With crops planted and grown after the death of the
owner, however, administration has nothing to do.^
Where one grants away trees growing on the soil, they go to
the grantee's executor or administrator whether felled or not; and
■where one grants land with express reservation of the trees, the
trees go to the grantor's executor or administrator; for under
these peculiar circumstances the grant itself makes a constructive
severance, so as to render the trees transmissible as personal prop-
erty.'
§ 1227. Rule of Assets applied to Fixtures,
Of these mixed things, the most important class at the present
day is that of " fixtures ;" the very word, now so common in legal
parlance, being of modern origin and variously defined, but, on
the whole, signifying chattels annexed in a manner to the ground,
concerning which the right to remove comes in controversy. The
object and purpose of tlie annexation must be considered in all
cases of fixtures; and the law is more or less liberal, according
as it appears that the chattel was affixed for purposes of trade,
for purposes of ornament, or for domestic purposes. In order
to constitute annexation within the rule of fixtures, the article in
1. Penhallow v. Dwight. 7 Mass. 34, gather the crop of the intestate, he is
5 Am. Dec. 21; Humphrey v. Morritt, not obliged to do so, and if he does
51 Ind. 197; Wadsworth v. Allcott, 6 not it is not assets; and if the widow
N. Y. 64; Tliornton v. Burch, 20 Ga. gathers it, it is hers as against the
791; Singleton v. Singleton, 5 Dana, administrator. Blair v. Murphree. 81
92; Wms. Exrs. 711; Ring's Estate, Ala. 454. If he gathers, he must ac-
109 N. W. 710, 132 Iowa, 216; Evans count strictly.
V. Boberts, 5 B. & C. 832; Gwin v. 2. Kidwell v. Kidwell, 84 Ind. 224.
ITicks, 1 Bay (S. C.) 503. Local 3. Hob. 173; 4 Co. 63b; Wms.
statutes are found on this subject. Exrs. 708. Contra, if tlie grantee of
Green v. Cutright, Wriglit (Ohio), trees should unite thereto the pur-
738; Thompson v. Tliompson. 6 Munf. chase of the land, and not cut the
514. While an administrator mar trees. 4 Co. C3 b.
1218
CHAP. I.] ASSETS OF AN ESTATE. § 1227
question must have been let into or united with the land or to
substances previously connected with it; for mere juxtaposition,
such as lajing a pile of lumber on the ground, leaves the lumber
mere personal property/ Chattels lying loose on the ground at
the death of the owner, vest, of course, in his executors and ad-
ministrators as personal assets ; while the land itself, and per-
manent erections thereon, go to the heir or devisee. But annexa-
tion is not a conclusive test; since there are things, such as doors,
blinds, and shutters, which pass with the soil or buildings, from
regard to their own nature and adaptation to the purpose for
which they have been used, though so slightly annexed as to be
easily removed f and on the other hand, heavy articles like mirrors,
pictures, and wardrobes, fastened into the wall, which, out of cor-
responding regard, are to be treated still as chattels like any loose
chattels within the building.^ Various considerations are to be
applied in detenning whether the right to take away, under the
law of fixtures, shall or shall not be granted in a particular case.
To classify, however, as in the leading cases on this somewhat
abstruse subject, there are two kinds of disputes which may con-
cern the representative of a deceased person : first, where contro-
versy arises between him and the heir or devisee; second, where
it is between him and the remainder man or reversioner. As to
disputes of the first kind, the cardinal rule is, that the right to
fixtures (presuming the person to have died who annexed the chat-
tels) shall be most strongly taken in favor of the heir or devisee
4. 1 Schoul. Pers. Prop. §§ 111-129; 4 Met. 314; 1 Schoul. Pers. Prop. §
Amos & Per. Fixtures, 2, 3; Elwes v. 113; 2 Smith Lead. Cas. 239, 251,
Maw, 3 East, 32; s. c, 2 Smith Lead. Hare & Wall, notes; Sheen v. Rickie,
Cas., Am. Notes, 228; VVms. Exrs. 5 M'. & W. 175. Manure taken from
728 et seq. Rails in stacks are per- the barnyard of a homestead and piled
sonal property, and the title vests in upon the land is part of the realty,
the personal representative of the de- and does not go to the personal repre-
ceased. Clark v. Burnside, 15 III. 62. sentative. Fay v. Muzzey, 13 Gray,
5. The same might be said of locks 53, 74 Am. Dec. 619; Plumer v. Plu-
and keys, which usually go with the mer, 30 N. H. 558. Cf. Aleyn, 32;
building. Wms. Exrs. 731.
6. Winslow V. Merchants' Ins. Co.,
1219
1227
EXECUTOKS AXD ADMIXISTEATOKS.
[part in.
as against the executor or administrator." The " incidents of a
kouse," so to speak, are presumed to pass with the inheritance ;
and of fixtures employed bj the deceased in trade, encouragement
to trade is not a doctrine to be invoked for the mere benefit of as-
sets and administration.^ Concerning ornamental fixtures, the
rule, though anciently strict in favor of the inheritance, appears
to have relaxed, latterly, so as to give, at least, hangings, pictures,
and mirrors fastened in the ordinary manner and easily detached,
as well as portable furnaces, stoves, and ornamental chimney-
pieces, to the personal representative, as among chattels personal
and assets.^ In some parts of the United States, as in New York,
the legislature gives, on behalf of the executor, a more equal pre-
sumption in such controversy ;^ and as the kindred to take, whether
by descent or distribution, are nearly identical in this country.
7. 1 Schoul. Pers. Prop. § 119;
Shep. Touch. 469, 470; Colgrave v.
Dias Santos, 2 B. & C. 76; Fay v.
Muzzey, 13 Gray, 53. Hop-poles in
use for growing hops at the time of
the owner's death pass with the real
estate. Bishop v. Bishop, 11 N. Y.
123, 62 Am. Dec. 68. The same favor,
it appears, should be extendi'd to a
devisee as to an heir; though the dis-
cussion arises usually with reference
to the latter. In the case of a devisee,
however, the true intention of the
will is an cl.'raent wliich might aflfect
the presumption under some circum-
stances. Wood V. Gaynon, 1 Ambl.
395; Birch v. Dawson, 2 Ad. & El.
37.
8. lb.; Fisher v. Dixon, 13 CI. &
Fin. 312; Amos & Fer. Fixtures, 154
et scq.
9. Squier v. Mayer, 2 Freom. 249;
Wras. Exrs. 732-739; Berk v. Rebow,
1 P. VVms. 94; 1 Schonl. Pors. Prop.
5§ 119, 125; Blothen v. Towle, ^0 Me.
310. Of. § 1226 (heirlooms). But a
heavy stove or furnace or a grat? so
set into the house as not to be readily
removed without disturbing brick-
work and masonry, cannot be taken
by the administrator as against the
heir. Tuttle v. Robinson, 33 N. H.
104; Rex V. St. Dunstan, 4 B. & C.
686.
1. 2 Kent Com. 345; 1 Schoul.
Pers. Prop. § 119; House v. House, 10
Paige, 157. Chandeliers firmly an-
nexed, gas-fixtures, and a private ap-
paratus for generating gas will pass
to the heir, it is held, as against tlie
executor or administrator. Lawrence
V. Kemp, 1 Duer, 363; Johnson v.
Wiseman, 4 Mete. 357; Hays v.
Doano, 11 N. J. Eq. 84, 96, per Wil-
liamson, Ch. But chandeliers, brack-
ets and other things which are readily
detachable, and sold elsewhere, are
certainly not part of the realty, nor
presumably sold or let with a house
under ail circumstances; alitcr, as it
seems, with the running gas and wa-
ter pipes, in controversies of the pres-
1220
CHAP. I.] ASSETS OF AN ESTATE. § 1227a
less dispute need arise than in England, where the inheritor of
land in a family has always been treated with peculiar favor in
various ways. Whenever such disputes exist, the usual rule applies,
that the status of the property at the owner's death must determine
its nature and the consequent devolution of title.^
As between the executor of a life tenant and the remainder-
man or reversioner, the common law appears or the soil
jather less, and the representative desiring to ta^v^ rather more;
for here are not antagonizing claims of title, as between realty
and personalty, but the landed interest of one under a will is
compared with that of another, the court desiring to carry out the
testator's intent. In this case, to do full justice to the ostate
<:<f a life tenant, erections for trade as well as domestic purposes
have been permissively disannexed on the life tenant's death, for
the benefit of his estate. The case, though not quite so strong as
between landlord and tenant (to use Lord Hardwicke's expres-
sion), is governed by the same reasons.' But where chattels re-
main on the premises, disannexed, at the death of one tenant for
life, the next tenant for life cannot prejudice or affect the rights
to vest at his death, by attaching them to the freehold.*
§ 1227a. Rule of Assets applied to Severance of Land Products,
etc.
Trees which are blown down to such an extent that they cannot
ent kind. See Vaughen v. Haldeman, Smith Lead. Cas. 245; 1 Schoul. Pers.
33 Penn. St. 522, 75 Am. Dec. 622; Prop. § 120; Wms. Exrs. 741-743.
Montague v. Dent, 10 Rich. 135, 67 4. D'Eyncourt v. Gregory, L. R. 3
Am. Dec. 572. Eq. 382: Norton v. Dashwood (1896),
2. Bishop V. Bishop, 11 N. Y. 123. 2 Ch. 497. Pews in church are by the
62 Am. Dec. 68, is a case where hop- common law real estate, and the title
poles stood in the ground for use at goes accordingly; but in some States
the testator's death, but were after- they are made personal property by
wards taken up for the purpose of statute. 1 Schoul. Pers. Prop. § 132;
picking the hops and heaped in the McNabb v. Pond, 4 Bradf. (N. \.) 7.
yard. As to fixtures in general, see 1
3. Lord Hardwicke, in Dudley v. Schoul. Pers. Prop. §§ 111-129; Amos
Warde. Ambl. 113. See, also. 1 H. Bl. & Ferard on Fixtures.
260, n,; Elwes v. Maw, 3 East, 54; 2
1221
§ 1228 EXECUTOKS A^'D ADMI]S"ISTBATOES. [PAET IH.
grow as trees, are pronounced assets for the executor, on the prin-
ciple of severance; while trees tliat would continue to grow, but
must be cut for the proper cultivation of the grounds, belong to
the life tenant under the will.'*
§ 1228. Rule as to Foreign Assets.
The fundamental principle upon whicli personal property, cor-
23oreal or incorporeal, including rights of action, whose situation
is in some different sovereign jurisdiction, may be regarded as
assets, we have already had occasion to discuss.^
The general rule is that simple contract debts, such as a policy
of insurance not under seal, are, for the purpose of founding ad-
ministration, assets where the debtor resides without regard to
the place where the voucher may be found. ^ But the State or
country which charters a corporation is its domicile in reference
to debts which it owes, because there only it can be reached for
the service of judicial process ; though iStates or countries where
a foreign corporation does business, have enlarged the facilities
of local administration in many respects by appropriate statute.^
Bills, notes, and incorporeal personalty on which money is pay-
able, are suitable local assets to found local administration upon,
where one dies domiciled elsew^here, if there be any way to realize
upon them.^
5. Swinburn v. Ainslie, 28 Ch. D. Manchester K., 63 N. H. 588, 3 A.
89. 618. See, further, as to locality of
6. Supra, § 175. personalty, §§ 1024, 1025 and cita-
7. Wyman v. Halstead, 109 U. S. tions.
654, 27 L. Ed. 1068. The domiciliary representative usii-
8. See Mr. Justice Blatchford in N. ally gathers in all personal assets
E. ilutual Life Ins. Co. v. Wood- procurable, beyond the local claims,
worth, 111 U. S. 138, 144, 28 L. Ed. whether within or without the juris-
374. diction, and is held liable accordingly.
9. Epping V. Robinson, 21 Fla. 36. 89 N. E. 1126, 177 N. Y. S. 584;
Stock of a corporation in another supra, § 1175.
State may be local assets. Luce v.
1222
CHAP. II.] INVENTORY OF THE ESTATE. § 1229
CHAPTER IL
INVENTORY OF THE ESTATE.
§ 1229. Inventory required formerly in England; Custom Fallen
into Disuse.
By an English statute, enacted during the reign of Henry VIII.,
every executor or administrator was required to file with the or-
dinaiy a sworn inventory of " all the goods, chattels, wares, mer-
chandises, as well movable as not movable," of the deceased.^
Statute 22 & 23 Car. II c. 10, § 1, made the return of an inven-
tory of the " goods, chattels, and credits of the deceased, come to
his possession," at or before a specified day, a condition of each
administration bond.^ Probably, however, from a much earlier
period, the practice of the English spiritual courts strenuously
prescribed this duty, with the countenance of temporal tribunals.^
It was a breach per se of the administration bond to neglect filing
an inventory by the time specified; and in some county jurisdic-
tions an executor had to exhibit his inventoiy before probate would
be granted him.*
Nevertheless, the custom of filing an inventory has fallen quite
into disuse in modem English practice. The bond given under
the Court of Probate Act is conditioned to make an inventory
when lawfully called on, and to exliibit the same whenever re-
quired by law to do so f in other words, unless the representative
is cited in, he incurs no official obligation in the matter; and to
such a conclusion the spiritual practice seems to have been forced
before this act was passed.^ But the English theory is still to
1. Stat. 21 Hen. VIII. c. 5. § 4. See conclusive, of waste, sliould the assets
Wms. Exrs. 974. for tlie full text of prove insufficient. Orr v. Kaines, 2
the statute requirement. Ves. Sen. 193; Swinb. pt. 6. §§ 6 9.
2. Wms. Exrs. 529, 974. 4. Wms. Exrs. 975; 1 Phillim. 240.
3. The effect of neglecting to file an 5. Wms. Exrs. 532, 974-976.
inventory exposed the executor in all 6. Wms. Exrs. 976 ; 1 Phillim. 240.
courts to an imputation, sometimes But in some cases the court might ex
1223
§ 1230 EXECUTORS AXD ADMIXISTEATOKS. [PAET III.
compel an executor or administrator to exhibit an inventory on
the petition of anv person in interest, or even of one who appears
to have an interest;' and the instance is very rare where such a
petition will be refused, if presented within a reasonable time.^
§ 1230. Inventory required in American Practice; whether In-
dispensable.
The inventory is a settled feature of probate practice in the
United States. And as the American probate theory, favoring
public registry in such matters, is, that the legal representative. —
imless a residuary legatee who elects to oblige himself simply to
pay all debts and legacies and run the risk of assets, — shall ren-
der accounts of his administration, his first duty, as relates to
the court, is, after obtaining his credentials, to prepare and file
an inventory of the assets of the deceased ; such inventory to serve
as the basis of his probate accounts. The bonds of executors and
iidministrators are accordingly conditioned, in all or most of the
leading States, to return an inventory to the probate court or
registry within a specified period from the date of qualification.
Thus, under the Massachusetts statute, the judge of probate issues
an order, usually on the day when the executor or administrator
qualified, and upon his verbal request, to three suitable disin-
terested persons ; these appraisers, having been sworn to the faith-
ful discharge of their trust, appraise the estate of the deceased
upon an inventory blank which acco'mpanies the order, filling up
schedules, and delivering the document, when completed, to the
executor or administrator, by whom it should be returned to the
officio require an inventory to h? 344; 1 Phillini. 240; Gale v. Luttrell,
lirought in, ami it is prudent for t!io 2 Add. 234.
administrator or executor to exhibit 8. Wms. Exrs. 979, 980. It has
it before finally settling tlie estat?. been refused where assets sufficient
1 Phillim. 240; 1 Hagg. 106. for the petitioner's purpose are ad-
7. A jjrobable or contingent interest mitted by the representative, or where
entitles one to petition for an inven- double remedies are being pursued for
tory; so, too, the claim, though di''- attaining this result. Wms. Exrs.
puted. of a croditor. Wms. Exrs. 976. 978; 2 Cas. temp. Ix;e, 101. 134. 3.'56.
and cases cited; 2 Cas. temp. Lee, 2.ji,
1224
CHAP. II.]
INVENTORY OF THE ESTATE.
§ 1230
probate office for record with his own oath that the list is just
and perfect.^ Similar legislation is to be found in Wisconsin and
various other States at the north-west;^ also in New York, where
(as under English statutes') two appraisers suffice, and the ap-
praisal is to be made in duplicate and upon previous notice given
to legatees and next of kin resident in the county, so that they may
attend when it is made, if they desire.^
Three months is usually the prescribed period within which an
executor or administrator should return his inventory to the court
or registry whence his appointment came. In some States only
one inventory is required, and for additional property coming to
his possession or knowledge, as well as income and accretions, the
executor or administrator is bound only to account f but the Xew
York statute provides for filing a supplemental inventory in such
a case.^ Filing a second inventory to correct errors of the first
is sometimes permitted f but not for mere formality.^ But where
9. Mass. Gen. Stats, c. 96, § 2;
Smith (Mass.) Prob. Pract. 103. The
verification appears to be based upon
the ecclesiastical practice. Gary Prob.
Pract. 121.
1. Gary Prob. Prac. § 318.
2. Wms. Exrs. 974.
3. Redfield's (N. Y.) Surr. Pract.
A 14. Clerks and persons employed in
«« probate office are excluded by local
statutes more or less specifically
worded, and such exclusion is founded
in sound reasons of policy. Apprais-
ers are allowed compensation; and
\arious abuses have sprung up where
the local probate office is permitted to
lompete with professional men and
the public for private fees and emol-
uments in connection with the settle-
ment of estates, of which they keep
the records. As to method of notice,
see 4 Dem. (N. Y.) 176. As to ap-
praisers' fees, cf. local codes; 145 N.
Y. 540, 40 N. E. 246. As to choice of
appraisers, see 33 So. 946, 82 Miss.
93; 70 A. 229.
The English statute 21 Hen. VIII.
c. 5, § 4, prefers interested to disin-
terested persons, i. e., creditors, lega-
tees, or next of kin. Wms. Exrs. 974.
But appraisment is not made in mod-
ern English practice pursuant to the
letter of the statute. Wms. Exrs. 981,
4. Hooker v. Bancroft, 4 Pick. 50.
5. Redfield's (N. Y.) Surr. Pract.
215; 4 Redf. (N. Y.) 489. See. also,
the Connecticut statute, Moore v.
Holmes, 32 Conn. 553 ; and as to the
Pennsylvania rule. Commonwealth v.
Bryan, 8 S. & R. 128.
6. Bradford's Admr., 1 Browne, 87.
7. An inventory may be acceptable,
though filed later than three months.
100 Cal. 158, 34 P. 667. But a new
1225
1230
EXECUTORS A^'D ADMIXISTEATOES.
[part III.
HO property has come t-o liis hands or knoAvledge the representative
may dispense with the formality and cost of an inventory.*
The failure to return an inventory does not necessarily render
the executor or administrator personally liable for the assets ; nor
does the omission of any particular debt from the inventory items
make him absolutely chargeable with it; but the question is essen-
tially one of culpable negligence or misconduct on his part, oc-
casioning a loss or positive detriment.^ Nevertheless, the failure
to file an inventory by the time specified, as American statutes
run, amounts technically to a breach of the condition of the bond,
which may or may not prove serious in its consequences ; but
rarely can, if upon citation the executor or administrator performs
Ids duty, or shows good reason why an inventory shpuld be de-
ferred or dispensed with.^ In some, but not all, of our States,
warrant should issue, before apprais-
ers act, if three months expire previ-
ously.
8. Walker v. Hall, 1 Pick. 20; 2
Dak. 189. If a verified account is filed
.showing no assets, the burden is on
those who assert otherwise to show
assets. 2 Dem. 129. So, too, it is
held, where there were no assets left
to exhibit to appraisers, but all the
assets had been justly used in paying
the funeral expenses and d* bts. Rob-
hins's Matter, 4 Redf. (N. Y.) 144;
overruled by Creamer v. Waller, 2
Dem. 263. See Littlefield v. Eaton, 74
Me. 516. A contestant of a will may
insist upon an inventory. 15 Phila.
588. One whose claim as a creditor
of the estate is disputed may never-
theless have the executor compelled to
file an inventory. 2 Dem. 351; 4 Dem.
275. An unverified list of assets is no
inventory. 3 Dem. 358. See Lowen-
thal's Estate, 132 N. Y. 994 (undis-
puted aflidavit of representative that
there are no assets).
12
Whether a provision in a will can
relieve of the duty of filing an inven-
tory, see 2 Dem. 331; 3 Dem. lOS.
An executrix need not file an inven-
tory of property held by herself as
life tenant under the will. The right
of a remainder man to demand an in-
ventory depends upon allegation of
u-aste. Brooks v. Brooks 12 S. C.
422.
9. Leeke v. Beanes, 2 Har. & J. 373 ;
Moses V. Moses, 50 Ga. 9, 30; Con-
nelly's Appeal, 1 Grant (Pa.), 366;
Stearn v. Mills, 4 B. & Ad. 657.
1. McKim V. Harwood, 129 M.iss.
75; Adams v. Adims, 22 Vt. 50;
Lewis v. Lusk, 35 Miss. 696, 72 Am.
Dec. 153; 83 W^is. 394, 53 N. W. 691.
Damages may be assessed for failure
to make and return an inventory.
Scott V. Governor, 1 Mo. 686. See Pot-
ter v. Titcomb, 1 Fairf. 53; Bourne v.
Stevenson, 58 Me. 499; 73 Conn. 555,
57 A. 279, 5Y A. 79 (N. J. Eq.). Such
neglect may support a charge of mal-
administration against tlie reprosen-
20
CHAP. II.] INVENTORY OF THE ESTATE. § 1232
there are express statute provisions for summoning the delinquent
representative to return his inventory, or else show cause why
attachment should not issue; also, upon reasonable cause appear-
ing, for granting him further time within which to make sucli
return.^
§ 1231. Dispensing with an Inventory after Lapse of Time.
Time alone constitutes no bar against the requirement of an in-
ventory, where the statute fails explicitly to sanction the omission.
But if a long period has elapsed, such as forty years, a presump-
tion might arise either that the estate had been fully settled or
that there were no assets available;^ and time, in connection with
other circumstances, may operate much, sooner to dispense with
filing an inventory.*
§ 1232. Qualified Representative not exempt from rendering an
Inventory.
It is not in probate practice the original executor or admin-
istrator alone, or an administrator with the will annexed, who is
bound to make and return an inventory. An administrator de
tative. Hart v. Ten Eyck. 2 Johns, urer seeking to collect inheritance
Ch. 62. For breach of bond he is lia- tax).
ble for such damages as may be equit- 3. Ritchie v. Eees, 1 Add. 144.
ably due to any one aggrieved. State 4. See Wms. Exrs. 979; Bowles v.
V. French, 60 Conn. 478, 23 A. 153; Harvey, 4 Hagg. 241; Scurrah v.
§ 1146. Scurrah, 2 Curt. 919. See, further,
2. Redf. (N. Y.) Surr. Pract. 215. post §§ 1533, 1534, as to dispensing
As in English practice, the applica- with an account. Calling for an ac-
tion for a summons to file an inven- count in connection with, or by way
tory may be made by any one inter- of substitution for, an inventory,
ested in the estate; e. g., an apparent brings up this issue more plainly. A
creditor. Forsyth v. Burr, 37 Barb. sworn declaration instead of an in-
540. The court may summon at its ventory, setting forth desperate debts,
own instance, though this is seldom may suffice often to discharge the rep-
done. Thompson v. Thompson, 1 resentative where no valuable assets
Bradf. 24. See, also, 80 N. Y. S. 220; ever came to his possession or knowl-
111 S. W. 848, 132 Mb. App. 44; 109 edge. See Higgins v. Higgins, 4 Hagg.
N. W. 45, 132 Iowa, 136 (state treas- 242.
1227
§ 1233 EXECUTOKS AND ADMINISTRATORS. [PAKT III.
bonis non should inventory siicli estate of the deceased remaining
Tinadministered as may have come to his possession or knowledge.^
So, too, the representatives of a deceased executor or adminis-
trator are compeliahle, at the discretion of the court, to bring in
an inventory, as well as a final account, on behalf of the delin-
quent testate or intestate.® Other instances are found in English
reports in which inventories have been officially required ;■ and,
as Williams obsen^es. the ecclesiastical court discouraged all hang-
ing back with respect to the production of an inventory when
called for, and generally condemned the contumacious in costs
besides.^ In American practice, the bonds of all executors, ad-
ministrators, probate guardians, and testamentary trustees, are
usually conditioned to return an inventoiw f and without an in-
ventory valuation as a basis, they cannot readily prepare their
accounts in due form.
§ 1233. What the Inventory should contain.
According to English practice, the inventory should contain a
full description and valuation of all the personal property to
which the executor or administrator became entitled by virtue of
his office; this document being in effect a list of the assets for
which he stands chargeable, taken at their just worth.^ "What these
assets are we showed in the preceding chapter; and chattels, real
anr] personal, animate and inanimate, corporeal and incorporeal,
answering to that description, are to be included. Such, too, is
the doctrine generally prevalent in the United States; but while
in some parts of this country only personal property of the de-
ceased should be inventoried, the legislatures of other Sta-tes in-
5. Wms. Exrs. 979. 8. Wms. Exrs. 980; 1 Phillini. 24;,
6. Th.; Ritchie v. Kees. 1 Add. 158; 243; 2 Pliillim. 364.
Gall V. T>xittre)l, 2 Add. 234. 9. See Smith (Mass.) Prob. Pract.
7. E. (J., from administrators dur- 101.
antp minoritatc and administrators 1. Wms. Exrs. 980. Personalty
pendente lite. Wms. Exrs. 980; 1 Cas. fraudulently conveyed by the deced-
temp. T.PO, 15; 2 Cas. temp. L'C, 131. ent need not be inventoried. Cnrdner
V. Gardner, 17 R. I. 751. Sec § 1234.
1228
CUAP. II.] INVEA^TORY OF THE ESTATE. § 12?jZ
sist that liis real estate shall also be appraised, two separate
schedules being made, and the schedule of personal property alone
serving as the basis of the executor's or administrator's accounts."
The latter practice appears the more convenient, as affording record
proof of all the assets, actual or potential, upon which creditors
and legatees may rely; and, under a will which confers the power
to manage and control the testator's real estate, or where, as some
local statutes provide, the representative has a general right of
possession of the real estate while the estate is being settled, there
are reasons especially urgent why real property should be sched-
uled.
An inventory should be specific in its enumeration of the effects
of the estate; not needlessly minute, of course, and yet so as to
separate large items of value, and set out by themselves such
special classes as chattels real, household furniture, cattle, stock
in trade, cash, and securities of the incorporeal (or intangible)
sort, such as notes and bonds, all of which fall under the denomina-
tion of personal property and assets.^ If property found among
the effects of the deceased, and coming to the possession of the rep-
resentative, is claimed by others under a title not yet established,
it seems prudent to include this item in the list, wath words or
a memorandum indicating doubt as to the representative's own
title.* Bonds and investment securities should be stated at their
current market value, or possibly, in some convenient instances
at par; provided, in the latter instance, that the representative
carefully regard the fair premium in dealing and disposing of
them, so that those interested shall have the benefit shared justly.^
Debts and incorporeal choses of a doubtful, desperate, or worth-
2. See supra, § 1198; Smith's 4. Waterhouse v. Bourke, 14 Ln.
(Maps.) Prob. Pract. 102; Gary Prob. Ann. 358; Gold's Case, Kirby {Conn.J
Pract. § 330. citint^ statutes of Min- 100.
nesota and Wisconsin. Cf. Henshaw 5. If set forth at par, the inventory
V. Blood, 1 Mass. 35. should so state the fact.
3. Vanmeter v. Jones, 3 N. J. Eq.
520.
1229
§ 1233 EXECUTORS AXD ADMINISTEATOKS. [PAET III.
less character should be so denominated. Eeal estate should be
specified by parcels.^
An inventory is, after all, but 'prima facie evidence of the true
value of assete, and prudence and good faith is the test of the rep-
resentative's responsibility in dealing therewith; so that whether
more happens to be actually realized, or less, or the title fails al-
together, the exercise of reasonable diligence and honesty on his
part is all that the law can exact from the executor or admin-
istrator. Such being the result, all discrepancies may be cor-
rected in a representative's accounts, and debit or credit given ac-
cordingly. Hence, too, the valuation in the inventory by one stan-
dard or another appears to be of less consequence than a con-
sistent valuation by the particular standards as therein plainly
exhibited ; for values, and especially those of various marketable
stocks and securities, may fluctuate from day to day, so as to
furnish no absolute criterion of accountability. Similar consid-
erations apply to accruing profits, and the interest and income of
personal property left by the deceased. Such accretions might well
6. See Adams v. Adams, 20 Vt. 50; N. Y. 31. See § 1447 post as to rights
Wms. Exrs. 981; Poirier v. Cypress of widow, etc. A separate and distinct
Co., 54 So. 292, 127 La. 936 (identity inventory of the property allowed the
of parcel of land) ; Winter v. Dibble, widow is required in some States,
95 N. E. 1093, 251 111. 200. Appraisal such as Wisconsin. Gary Prob. Pract.
at the market value, as nearly as cin § 321.
be asecrtained, whether above or be- A debt returned in the inventory
low par, appears to be the rule as to without comment will be presumed
marketable investment securities. collectted or collectible. Graham v.
Gary Prob. Pract. § 328. Exempt Davidson, 2 Dev. & B. Eq. 155; Hick-
articles belonging to widow and chil- man v. Kamp. 3 Bush. 205. Contra
dren, though not deemed assets, should where returned as douI)tful or desper-
be included and stated in the inven- ate. Finch v. Ragland, 2 Dev. Eq. 137.
tory without being appraised. N. Y. Even items of little value, or desper-
Stat. cited Redfield's Surr. Prac. 211. ate, ought in some way to be rocig-
And in Ne^v York the appraisers ap- nized in the inventory. 48 La. Ann.
pear to have powers as to setting 289. Wliat are not really assets for
apart for the widow, which in some administration may be omitt'd. Cf.
other States call for the intervention §§ 1238-1245. Sec 66 P. 607, 40 Or.
rather of the probate court. Redf. 138 (judgment debt).
Surr. Pract. 211; Sheldon v. Bliss, 8
1230
CHAP. II.] INVENTORY OF THE ESTATE. § 1234
be included up to the date of appraisal, though not later; or, per-
haps, might bo left out altogether, as is not infrequent; but by
whichever standard recokened, any inventory must be very far
from affording a perfect statement of profits, interest and income
as they come to the hands of the executor or administrator ; so
that at best the inventory figures represent only approximately
the gross available assets in many instances, and must be supple-
mented by the administration accounts.'
§ 1234. What the Inventory should contain; Subject continued.
Local statutes prescribe in terms, more or less specific, what
shall be included in the inventory. As to general property of
the deceased, the rule embraces all that has come to the " possession
or knowledge " of the executor or administrator ; and to this his
oath of verification usually corresponds in tenor. Hence notes
or chattels of any kind in the hands of other persons, and belong-
ing of right to the executor or administrator, must be inventoried,
as also debts, demands, and claims still uncollected; and if the
representative choose to leave such things in a different possession
still, by way of offset to the possessor's ovni demand upon the
estate, he must go through the form of discharging himself on his
accounts.^ It is not competent, as English courts hold, for the
court of probate to insist that an inventory shall include personal
7. See Willoughby v. McClure, 2 Supra, § 1208. Proceedings to compel
Wend. 609; Mass. (Jen. Stats, c. 98, § the correcting of an inventory so as
6. It is fair that the inventory should to include such a debt are sustained,
show or indicate, as to all interest- Mulcahy v. Mulcahy, 81 A. 242, 84
.bearing securities, the rate of interest, Conn. 659 (burden of proving such a
name of debtor, date from which un- debt is on the objector). And so. too,
paid interest has run, etc. See, also, as to property of the decedent in the
Weed V. Lermond, 33 Me. 492. An ac- representative's hands obtaisod dur-
count under oath which is based upon ing the decedent's lifetime. Kepple v.
the inventory is prima facie correct. Crabb, 152 111. App. 149.
Mulcahy v. Mulcahy, 81 A. 242, 84 8. See Wms. Exrs. 979, 980, Per-
Conn. 659. kins's note; Smith (Mass.) Prob.
A debt owing the estate from the Pract. 101-103; Gary Prob. Pract. §
executor or administrator himself 318.
fihould be included in the inventory.
1231
§ 1235 EXECUTORS AXD ADMIXISTRATOKS. [PAET III.
estate situated in a foreign country^ since tliis is out of its own
jurisdiction and cognizance;* and practically, indeed, the means
of appraising what is abroad are imperfect. But it is held by
various American tribunals, in construction of the local statute,
tbat personal assets belonging to a deceased resident of the State
must be included in the inventory of his general executor, even
where situated in another State.-^ Such requirement does not apply
to an ancillary appointee with such strictness, probably, inasmuch
as his authority is more strictly local.^
Assets of whose existence neither the executor or administrator,
nor the appraisers, are at the time aware, cannot of course be in-
ventoried ; and no blame is to be imputed to the representative
in consequence, if, gaining knowledge thereof afterwards, he
charges himself in his accounts with the property, and pursues the
usual line of duty as to procuring or realizing the same.^
§ 1235. Assets and Inventory in Special Instances; Co-owner-
ship, etc.
Should a stranger administer upon the estate of one of several
wards owning a eommon fund, he can and ought to make an actual
9. 2 Cas. temp. Lee, 551; Wms. live to inventory property which ha*
Exrs. 982. been fraudulently transferred by the
1. Butler's Inventory, 38 X. Y. 397. decedent, cf. Booth v. Patrick, 8
2. See supra, § 1181. It is held in Conn. 105, with Minor v. Mead, 3
Sherman v. Page, 28 N. Y. Supr. 59, Conn. 289; Bourne v. Stevenson, 58
that where the testator names an ex- ^le. 504; Andrews v. Tucker, 7 Pick,
ecutor to take cliarge of property 250. And see 17 R. I. 751. Agreeably
within, and another of proprty with- to the principle stated in the text, it
out, the State, such an executor is is perceived that the inventory in-
only bound to account for such prop- eludes, by express mention or infer-
erty as may be within the State in ence, all the assets, all that the repre-
which he is appointed. Muniments of sentative is V)ound to reali7.o and pro-
title and securities represmting in- cure for .administration purposes; and
corporeal rights abroad, and valuable that the claim of a title for those pur-
ser se in enforcing su?h rights, ouglit, poses is its basis, not a title already
in general, we presume, to be invcn- vested in tlie rcj)resentative and un-
toried, whatever comity might p'O- disputed. The doubtfulness of tho title
nounce the locus of the debt or right. is fitly matter for note by the apprais-
3. As to the duty of the reprcsenta- ers in setting the valuation.
1232
CHAP. II.] INVENTORY OF THE ESTATE. § 1236
division of the fund with the guardian of the sun-iving wards,
and file an inventory accordingly. But if the guardian procures
his own appointment as administrator on the deceased ward, he
oannot by assuming this double character evade the duty of sever-
ing the tenancy in common by other metliods equally distinctive
and unequivocal ; and of likewise filing an inventory which may
show the separate share belonging to the estate.'*
§ 1236. Effect of the Inventory; Power of the Local Probate
Court to alter, etc. ; Inventory as Evidence.
In K"ew York the appraisers' estimate of the value of articles
is not regarded as the exercise of an absolute discretion on their
part., but their opinion is subject to review by the probate court.^
Such, however, is the inconclusiveness of any inventory valuation
in probate law that the court of probate is seldom asked to inter-
vene in such a manner, and the extent, moreover, of such a juris-
diction, apart from statute sanction, may be a matter of serious
question.^ If, however, the personal representative and the ap-
praisers, or the appraisers among themselves, differ as to what
should in fact be included in the inventory, or if otherwise there
is such variance that the inventory cannot be returned to court
in due form as exhibiting their concurrence; or if the appraisers
are delinquent; the court, as it seems, may properly make orders
appropriate to the exigency, and perhaps a warrant might issue
to other appraisers, the previous one being revoked. For, inas-
much as, in American practice at least, the failure of the executor
or administrator to return a true and perfect inventory is taken
to be a direct breach of his official bond,^ he ought not to be made
4. Colvert v. Peebles, 71 N. C. 274. side v. Ovington, 3 Burr, 1922; Wms.
5. Applegate v. Cameron, 2 Bradf. Exrs. 983. But the highest ecclesias-
119; Redf. (N. Y.) Surr. Pract. 212. tical court in England has neverthe-
6. English temporal judges have de- less entertained objections to inven-
nied the authority of pcclesiastical tories. though not permitting wit-
courts to entertain objections to an nesses to falsify it. 2 Add. 331; Wms.
inventory after it has been exliibited. Exrs. 985.
Hinton v. Parker, 8 Mod. 168; Catch- 7. Bourne v. Stevenson, 58 Me. 499.
78 1233
§ 1236 EXECUTOKS AND ADJIIXISTEATOES. [PART III.
answerable for the disagTeement, caprice, or carlessness on the
part of the appraisers, despite his own protest and without his
own fault. Where, moreover, appraisers are specially empowered
to set apart property for the widow, it is held that their negligence,
fraud, or possible abuse of such authority may be corrected by
the probate court or surrogate; and likewise an irregularity, mis-
take, or improper valuation, though conscientiously made by them.^
A court of probate ought not, it would appear, to reject an in-
ventory or order it modified, because it contains property the title
to which is disputed; for to common-law tribunals belongs the
adjudication of the title, and the probate court cannot conclude
the question.^ But, granting that an inventory cannot be im-
peached, this only affects proceedings relating to the inventory
itself; and it may be shown on the accounting of tlie executor or
administrator that assets were omitted which were or ought to
have been accounted for, and that assets yielded, or should have
yielded, more than they were appraised at; so vice versa, on the
accounting, the inventory may be shown to have included what
ehould have been omitted or to have rated specified things for
more than they could fairly bring.^
An inventory duly returned to the probate court or registry, is,
according to modem authorities, prima facie proof of the amount
(of property (personal, or personal and real, as the case may be)
belonging to the estate within the State or country where jurisdic-
tion was taken ;^ and also of its worth by items at the time of
An inventory not cortifie:! bv the ex- 8. Applogate v. Cameron, 2 Bradf.
ecutor or administrator is not as to 119. Legatees or next of kin may not
him an inventory, and is not ground interfere with an appraisal; they
sufficient for charging him. Park- v. must wait for the accounting. Vogel
Rucker, 5 Leigh. 149. But see Carroll v. Arbogast, 4 Dem. 399.
V. Connet, 2 J. J. Marsh. 195; 100 9. Gold's Appeal, Kirby (Conn.)
Cal. .593. 3.5 P. 341. Local practice 100.
may determine such a point. An ad- 1. See Part VII, iioH. as to ac-
ministrator may show that he certi- counts: Montgomery v. Dunning. 2
fied to the inventory under an error of Bradf. (N. Y.) 220; Murphy's Estate,
fact. Martin v. Boler, 13 La. 369. Soe 70 P. 107. 30 Wash. 1.
1 Dem. (N. Y.) 306. 2. Wms. Exrs. 1966; Giles v. Dy-
1234
CHAP. II.] INVENTOEY OF THE ESTATE. § 1237
appraisal. But being only prima facie evidence, the executor or
administrator is simply chargeable so as to have the onus of dis-
proving its correctness f and in a controversy between himself and
the appraisers, he may show that the valuation is too high or too
low^ nor, certainly, are subsequent changes of value, or subsequent
additions to the assets, or gains or losses in realizing the assets, to
be disregarded, whatever the inventory itself may have shown.^
In short, the inventory, while prima facie evidence of the value
of the property, as well as of the property itself, which came to
the executor or administrator, as also of the solvency of those who
owe the estate, — rendering him prima facie liable accordingly, —
is not conclusive either for or against the executor or administra-
tor or his sureties, but is open to denial or explanation, and he
must render account for all assets.'' As a matter of judgment
record, an appraisement confirmed by the court is conclusive only
of the subject to which it relates.^
§ 1237. Advantages of Returning an Inventory.
The inventory is of advantage, both to the executor or admin-
istrator himself, and to creditors, legatees, heirs, and other per-
sons interested in the estate. It is the basis upon which the
son, 1 Stark. N. P. 32; Reed v. Gil- ker, 25 Ga. 76; McWillie v. Van Vac-
bert, 32 Me. 519; Morrill v. Foster, ter, 35 Miss. 428, 72 Am. Dec. 127.
33 N. H. 379. Nor does it estop the representative
3. lb.; Hoover v. Miller, 6 Jones L. from recovering it. Conover v. Con-
79; Cameron v. Cameron, 15 Wis. 1, over, 1 N. J. Eq. 403.
82 Am. Dec. 652. Concerning the eflfect of an inven-
4. Ames v. Downing, 1 Bradf. 321. tory, as an admission of assets, the
See Loeven's Estate, Myrick Prob. English courts have distinguished bs-
(Cal. ) 203; Cronshaw v. Cronshaw, tween the inventory exhibited before
41 A. 563, 21 N. J. 54; 79 P. 841, 146 probate (as required by some county
Cal. 139; Porter v. Long, 83 N. W. ecclesiastical tribunals) and the in-
601, 124 Mich. 584. ventory proper. See Wms. Exrs. 1968;
5. Willoughby v. McCluer, 2 Wend. Stearn v. Mills, 4 B. & Ad. 657.
608; Mass. Gen. Stats, c. 98, § 7. The 6. Nabb v. Nixon, 7 Nev. 163;
failure to inventory certain property Grant v. Reese, 94 N. C. 720; 66 Wis.
is not conclusive against those inter- 490, 29 N. W. 213.
ested in the estate. Walker v. Wal- 7. Seller's Estate, 81 Penn. St. 153.
1235
§ 1237 EXECUTORS AND ADMINISTRATORS. [PART III.
representative makes his accounts ; it shows the amount for which
he is chargeable, and limits presumptively his responsibility, ex-
cept for increments, income, and such assets not therein appraised,
through ignorance, inadvertence, or other cause, as may come after-
wards to his hands. On the other hand, the heirs and other parties
interested have, in the recorded inventory, the best evidence pos-
sible, imder the circumstances, of the assets, their condition and
value, as they came to the representative's possession and knowl-
edge at the outset of his administration, and such parties are sup-
plied with essential evidence, in case it becomes necessary to in-
stitute proceedings against him or oppose the allowance of his
accounts, because of negligence or misconduct while invested with
his responsible office.^ For the representative is bound to account
for assets named in the inventory, so a^ to show at all events good
faith and due diligence in attempting to realize.^
8. Smith Prob. Pract. 101, 102. be inventoried as assets. Nesmith, Re,
A claim against a former represen- 6 Dem. (N. Y. ) 333.
tative for maladministration should 9. See Sanderson, Re, 74 Cal. 199,
15 P. 753.
1236
PART IV.
GENERAL POWERS, DUTIES AND LIABILITIES OF EXECUTORS AND
ADMINISTRATORS AS TO PERSONAL ASSETS.
CHAPTER I.
representative's title and authority in general.
§ 1238. Title to Personal Property devolves upon Representative
by Relation from Decedent's Death ; Liability, etc.
We have observed that, in modem practice, acts performed be-
fore qualification in good faith, and for the benefit of the estate,
are generally cured by qualification, whether the representative
be executor or administrator; and that his authority once fully
conferred by the probate court, the representative's title relates
back substantially to the date of the decedent's death.^ We have
observed, also, that as to property left by the decedent, the gen-
eral rule is that title to personal property devolves thus imme-
diately upon the executor or administrator, while title to the real
property does not; and that property of the one kind constitutes
at common law assets in the representative's hands, while property
of the other kind does not, except under peculiar circumstances,
or when there is a deficiency of personal assets.^ These statements
1. Supra, §§ 1194, 1195. Where one Wiswell, 35 Minn. 371, 29 N. W. 166.
discharges a mortgage before his ap- And see McDearmon v. Maxfield, 38
pointment as executor or administra- Ark. 631; Lathrop v. Merrill, 92 N.
tor, the discharge becomes valid by his E. 1019, 207 Mass. 6. But the repre-
appointment. 30 Hun (N. Y. ) 269. sentative should not disturb acts ben-
And so with a fair sale of property, eficially done by others before his ap-
50 N. Y. Supr. 225. As to bringing an pointment, merely for the sake of as-
action, see Archdeacon v. Gas Co., 81 serting his authority. Cooper v. Hay-
N. E. 152, 76 Ohio St. 97. An admin- ward, 71 Minn. 374, 70 Am. St. Rep.
istrator's title cannot be affected to 330, 74 N. W. 152.
the prejudice of the estate by acts 2. Supra, § 1198.
prior to his appointment. Wiswell v.
1237
§ 1239 EXECUTORS AXD ADMIXISTKATOES. [PAET IV.
cover nearly the whole ground of the representative's title ; but to
better elucidate those fundamental doctrines, let us explore the
subject further in the course of the present chapter.
As with the title, so is the liability of the representative; and
he must account for assets previously received or under his con-
trol in any way ; pursuing with due prudence and good faith where
others have such assets.^ He may be considered bound by his own
promises made previous to his appointment.*
§ 1239. The Representative's Title and Authority during the Ad-
ministration excludes that of all Others in Interest.
The title of the executor or administrator, as representative, ex-
tends so completely to all personal property left by the decedent
as to exclude creditors, legatees, and all others interested in the
estate. They cannot follow such property specifically into the
hands of others, much less dispose of it; but the executor or ad-
ministrator is the only true representative thereof that the law
will regard.^ The legal and equitable title to all the personal
property of the deceased, including choses in action and incor-
poreal rights, vests in fact in the executor or administrator, as
against all others, during the suitable period for administration,
5.nd he holds this property as a trustee and proper representa-
tive of all parties interested therein.®
3. See Myers Re, 131 N. Y. 409, 30 States. Thus, under the California
N. E. 1135; §§ 1269-1271. system (as in Texas), real and per-
4. 78 P. 747, 27 Nev. 421, 103 Am. sonal estate follows one rule; it vests
St. Rep. 772, 65 L. R. A. 672. in the heir subject to the represcnta-
5. Wms. Exrs. 932; Hnynes v. For- tive's lion, derived from the deceased.
6haw, 11 Hare, 93; Nuf^ent v. GifTard, for the payment of debts, etc., and to
1 Atk. 483; Beattie v. Abercrnmbie, his right of present possession. Bccket
18 Ala. 9; Goodwin v. Jone^, 3 Mass. v. Selover, 7 Cal. 215, 68 Am. Dec.
514, 3 Am. D-ec. 173. And see Norton 237.
V. Lilley, 96 N. E. 351, 210 Mass. 200. All the personalty of the decedent,
6. Beecher v. Buckingham, 18 Conn, includinp; property covered by his bill
110; Neale v. ITagthorpe, 3 Bland of sale, but never delivered, passes to
(Md.) 551; Alston v. Cohen, 1 Woods, the possession and control of his ex-
487. To this rule statute fixceptions aro ocutor or administrator. Palmer v.
found in some parts of the Un'te' T^nlmer, 55 Mich. 293, 21 N. W. 352.
1238
CHAP. I.] EEPKESENTATIVE's TITLE AND AUTHORITY. § 1240
This pararaoimt title of the personal representative is recog-
nized in various instaaices. A lien cannot attach on the goods of
a principal before he parts with their possession ; and, accordingly,
if a principal die in possession of the goods, and they come after-
ward to the possession of his administrator, the title is changed,
and a factor, who may receive them from the administrator, can-
not be permitted to hold them for advances made to the deceased
in his lifetime, without the administrator's assent.'^ And so com-
pletely does title to the personal assets vest in the representative,
that they are not subject to seizure and sale under an execution
issued on a judgment rendered against the decedent after his
death.^ The representative's claim is of course superior to that
of heirs, distributees, or residuary legatees, so long as the estate
remains unsettled f and counsel nominated under the will to assist
him cannot control his discretion.^
§ 1240. Executor or Administrator has a right to dispose of Per-
sonal Assets.
It follows that the executor or administrator, and he alone, has
an absolute dominion and power of disposal, in law and equity,
over the goods, chattels, rights, and effects of the deceased; he
can dispose of them at pleasure, being, however, responsible for
the faitliful execution of his trust; and others in interest cannot
follow such property into the hands of the alienee.^ Only a statute,
or the will of the testator, can restrain the power of a personal
representative to thus alienate the personal property of his de-
deceased.^
7. Swilley v. Lyon, 18 Ala. 553. v. Mumford, 14 Kan. 9. See cs. 3, 4,
8. Snodgrass v. Cabines, 15 Ala. more fully as to sales, pledges, etc., of
160. personal property by the representa-
9. Bearss v. Montgomery, 46 Ind. tive.
644; Alson v. Cohen, 1 Woods, 487. 3. His title to personalty lasts until
1. Young V. Alexander, 16 Lea, 108. the administration is completed, or
2. Beecher v. Buckingham, 18 Conn. imtil he chooses or is forced to part
110; 44 Am. Dec. 580; Neale v. Hag- with it earlier. Shattuck v. Watson,
thorpe, 3 Bland (Md.) 551; Lappin 129 N. W. 196, 184 Mich. 167.
123**
f 1241 EXECUTORS AND ADMINISTRATORS. [pART IV.
§ 1241. The same Subject; Executors and Administrators dis-
tinguished in this Respect.
But here we must distinguish between executors and adminis-
trators. An administrator's office is conferred by the court ap-
pointment, and his authority is derived from statute and the gen-
eral probate law, not from any confidence reposed in him by the
•deceased; his powers and duties consequently are commensurate
with others of his class, and are defined by general rules.* But it
is quite different with the executor; for his authority, being con-
ferred by a will duly admitted to probate, is subject in a great
measure to the powers and restrictions which the testator may
(therein have prescribed. The will of the testator making special
appropriations of the several parts of his property, is a law to his
executors from which they ought not to swerve, unless authorized
by some proper tribunal,^ and save in accordance with the funda-
mental maxim, that the necessity of settling lawful debts and
charges against one's estate must override all testamentary dis-
positions. And where trusts are raised by the will, but no trustee
is appointed by the testator, the law makes the executor, or any
one who may be legally intrusted with the execution of the will,
virtually the trustee in many senses, and he may consequently re-
tain funds in his hands for the purposes of such trust, until the
probate court expressly appoints a trustee.®
4. An administrator in most parts the functions of an executor cease at
of the United States has all the the end of a year, while those of an
power over the personal property of administrator continue until the ad-
the deceased which are possessed by ministration is finished. Ferguson v.
an administrator at common law; Glaze, 12 La. Ann. 667.
and he must administer all the goods, 5. Voorhees v. Stoothoff, 11 N. J.
chattels, rights, and cre(lit,s which L. 145; Stallsworth v. Stallsworth, 5
are within the State; the local stat- Ala. 144; Wood v. Nelson, 9 B. Mon.
ute tending to enlarge rather than 600.
restrain this authority. See Goodwin 6. Saunderson v. Stearns, 6 Mass.
V. Jones, 3 Mass. 514. .17; Dorr v. Wainwright. 13 Pick.
In Louisiana the law is of civil 328; Groton v. Ruggles, 17 Me. 137.
origin and peculiar; it appears that See § 1248o.
1240
CHAP. I.] representative's TITLE AND AUTIIOKITY. § 1242
§ 1241a. The same Subject.
Yet to take our modem practice in the United States, it should
be said that while the executor's title to his decedent's personal
property comes, in a certain sense, from the will itself, he can
nevertheless exercise no efficient acts of ownership over such prop-
erty with due authority until the will itself has been probated and
letters testamentary are issued to him.'^
§ 1242. Title, etc., of Executor or Administrator is by way of
Trust.
The title of the representative is not absolute, but exists only
for special purposes connected with the settlement of the estate.*
Thus the title of an administrator vests by way of trust in order
to enable him to administer the property according to law, by pay-
ing the debts of the deceased, and the funeral and other necessary
charges, and making distribution on final settlement.^ An execu-
tor, again, has the property only under a trust to apply it for pay-
ment of the testator's debts, and such other purposes as one ought
to fulfil in pursuance of his office under the particular will.^ Nor
can a trust term devised to executors continue so as to retain the
legal estate in them a moment longer than is necessary to enable
them to perform the objects of the trust.^
As with his title, so in its ultimate consequences with his power
of disposition, an executor or administrator deals with the prop-
erty in the interests of the estate he represents. His cardinal duty
is to settle the estate according to law, or the last will of the de-
ceased, as the case may be, with due diligence, fidelity, and a rea-
sonable discretion.^ In fact, the interest which an executor or ad-
7. Lockwood v. U. S. Steel Co., 138 131 N. W. 882, 152 Iowa, 121 ("es-
N. Y. 725. But as to taking posses- tate of deceased") ; 93 N. E. 733, 248
eion of assets pending probate and 111. 232.
keeping in prudent custody, cf. 9. Hall v. Hall, 27 Miss. 458;
Dickinson v. Powers, 125 N. Y. S. Lewis v. Lyons, 13 111. 117.
949. 1. See Ashhurst. J., in 4 T. R. 645.
8. McClellan v. Garland, 187 F. 2. Smith v. Dunwoody, 19 Ga. 238.
915, 110 C. C. A. 49; Wolf v. Wolf, 3. The precise legal standard of re-
1241
§ 1243 EXECUTOES AXD ADMIXISTEATOKS. [PAKT IV.
ministrator lias in tlie property of the deceased is very different
from the interest one has in his own property; for, as the old
writers state the point, an executor or administrator has his estate
as such in auter droit merely, viz., as the minister or dispenser of
the goods of the dead. *
§ 1243. Identity of Assets should be preserved apart from the
Representative's Private Funds, so as to preserve the
Title Intact.
So long as the property of the estate is kept distinguishable speci-
fically from the mass of his own, the executor or administrator will
not by his bankruptcy or insolvency pass the title to his assignees ; ^
nor does bankruptcy of itself affect his representative character,
though it might afford good ground for seeking his removal from
the trust.^ Kor can goods and chattels which may be identified as
belonging to the decedent's estate be taken in execution for the debt
of the executor or administrator.'^ Nor upon the death of the per-
sonal representative will such property held in another's right de-
volve in title upon his own representative, or pass under the pro-
visions of his will.^
So, if an executor or administrator make transfer of all his
goods, or release all his demands and rights of action, the presumed
Eponsibilitv is considered in c. 3, post. 5. Wms. Exrs. 637, 638; 11 Mod.
And see Morrison's Estate, 67 N. E. 138; Farr v. Newman, 4 T. R. 648.
567, 68 Ohio, 80, 352 (jurisdiction 6. Wms. Exrs. 538; § 1154, supra.
over him). Where a lease is made with proviso
4. 9 Co. 88 b; 2 Inst. 236; Wms. for forfeiture and re-entry if the les-
Exrs. 636. The usual consequences as see "or his executors, administrators,
to property held in auter droit at- or assigns " shall become bankrupt,
tach; thus, at common law, the goods the bankruptcy of the executor or ad-
of the deceased were not forfeited by ministrator will operate accordingly,
attainder of the executor or adminis- Doe v. David, 1 Cr. M. & R. 405.
trator, nor applicable to debts wliich 7. Farr v. Newman, 4 T. R. 621;
the representative owed to the crown. Wms. Exrs. 640.
1 Hale, P. C. 251; Wentw. OfT. Ex. 8. Wms. Exrs. 639, 644; 2 Ph)wd.
194, 14th ed.; Wms. Exrs. 636; Lath- 525.
rop V. Morrill, 92 N. E. 1019, 207
Mass. 6.
1242
CHAP. I.] representative's TITLE AND AUTHORITY. § 1244
intention, and consequently the effect, is that the transfer or re-
lease shall not operate upon goods, demands, or rights of action
which he holds in his fiduciary capacity.^ Marriage, too, even
under the old law of coverture, did not vest in the husband a per-
sonal title to goods and chattels which belonged to his wife in auter
droit}
But if the representative mingle the goods, rights, and effects of
the intestate with his own, in such a manner that they cannot be
distinguished, the effect must necessarily be to subject the whole
to a devolution of title in favor of his assignee in bankruptcy, exe-
cution creditor, or personal representative, as the case may be.
There is quite commonly a partial mingling of the trust funds
with one's own; as in case of the loose cash, specie, or bank bills
found about a decedent, which a representative will for temporary
convenience mix with his own money.^ In the course of adminis-
tration, the executor or administrator almost necessarily pays out
sums for expenses, taking property of the estate by way of recom-
pense, and by contract incidentally causing a transfer of title to
himself. And it is a well-established rule that if the representa-
tive pays out of his own moneys debts to the value of the personal
assets in hand, he may apply the assets to his own use towards sat-
isfaction of his moneys so expended ; and by such election the
assets become absolutely his own property.^ Where trust and in-
dividual funds are mingled individually the estate becomes a cred-
itor with other creditors for its just balance; though to place the
estate in this precarious attitude or to speculate with such funds
is a breach of official duty, with remedy afforded on his official
bond.*
§ 1244. No Title is taken by Representative to Property held by-
Decedent in Another's Right; Corporation, etc.
The personal representative takes no available title to personal
9. 1 Show. 153; 2 Ld. Raym. 1307. 3. Livingston v. Newkirk, 3 Johu.
1. Co. Lit. 351 a; Schoul. Dom. Rel. Ch. 312, 318, per Chancellor Kent.
§ 86. 4. See c. 3, post, as to management,
2. See Went. Off. Ex. c. 7. p. 196. etc.
14th ed.; Wms. Exrs. 646.
1243
§ 1244 EXECUTORS AND ADMIXISTKATORS. [PAKT IV.
chattels of which the deceased held possession in another's right,
and kept so that their identity may be traced. Thus, the bare fact
that one died in possession of property, as administrator on an-
other's estate, will not, it is held, enable his personal representa-
tive to maintain trover, -where the right to the goods in question
has devolved upon the administrator de bonis non of the original
intestate owner.^ So, too, a third person coming into possession
of a thing bailed among the dead man's effects, cannot, though he
be a coroner, resist the bailor's demand by setting up the title of
the deceased bailee's personal representatives.® Nothing but the
bailee's possible lien for reimbursement, or jus tertii can obstruct
the recovery of the property in such cases.^ \
If, therefore, the representative takes possession of personal
property which was in possession of his decedent at the time of
his decease, but to which another has title, his exercise of dominion
is at his own peril ; and if he sells the property as his decedent's,
he is individually liable in trover to the true owner for its value.^
But the mere possession of property by a decedent at the time of
his death gives to his legal representative the immediate right to
its possession, as against third parties having no better right, and
he may bring trover accordingly.®
The property of a corporation in possession or custody of a cor-
5. Elliott V. Kemp. 7 M. & W. 30(). public moneys in his hands pass to
6.' Smiley v. Allen, 13 Allen, 365. his administrator, but for the towii-
7. Schoul. Bailm. § 61. ship. It is the administrator's duty
8. Yeldell v. Shinholster, 15 G:i. to deliver them up, if they can be
189; Newsum v. Newsum, 1 Leigh, identified, to the successor of the
86; 19 Am. Dec. 739. But where s'- trustee. Rowley v. Fair, 10-1 Ind.
curities which came into executor's 189, 3 N. E. 860.
hands as assets of their testatrix's An executor of the estate of a d>'-
estate, proved to belong in fact to her ceased guardian, into whose hands the
husband's estate, after tliey had bei-n ward's money comes, holds it, as did
appropriat<'d by the executors in the the guardian, in trust for the ward;
proper discharge of their duties, with- such a fund is not general assets of
out notice, they were protected in the testator's estate. Bloxham v.
efjuity. Mulford v. Mulford, 40 N. J. Crane, 19 Fla. 163. See further 174
Eq. 163; cf. 39 Hun (N. Y.) 348. 111. 96, 50 N. E. 1052.
Where a township trustee dies, the 9. C'ullen v. O'llara, 4 Mich. 132.
1244
cuAP. 1.] eepresektative's title and authority. § 1246
porate officer at his death fallows the rule we have just stated:
such officer's legal representatives do not succeed to the possession
and control.^ And if a representative cannot deal with the real
estate of the deceased^ still less can he meddle with lands held by
decedent merely in a trust capacity.^
§ 1245. Representative does not succeed to Decedent's Trusts,
but should close the Accounts.
Nor, again, does the representative succeed, by virtue of his
office, to any trust exercised by the decedent during his life; .but
his duty is to render a final account closing up the trust, as respects
the deceased, and to see that the estate of the deceased is properly
reimbursed for all charges and expenditures properly incurred,
and relieved of all further responsibility. Should there remain
any surplus or further duties to be discharged under the tmst, he
should transfer the fund to a proper successor in the trust, and
leave him to perform all further functions relative thereto.^ Hence
the administrator of an assignee in trust for creditors is not bound
in continuance of the trust to superintend the trust property, nor
is it strictly proper for him to do so.*
Where the decedent had mingled other funds with his own the
representative may enumerate and fix the true balance.^
§ 1246. How one ceases to hold Assets as Representative, so as
to hold in his Individual Character; Election, etc.
The doctrine of merger sometimes operates in the case of an ex-
ecutor or administrator who, ceasing to hold in that character be-
1. Belton. Re, 47 La. Ann. 1614. quired to deliver over the trust prop-
Stockholders should see that corpor- erty of the original testator's estate
ate oflBcers succeed to such trust. lb. except to the court or a newly ap-
As to partnership property, see §§ pointed representative. 5 Dem. 305.
1325, 1326, 1379. Cf. § 1248a.
2. Sullivan v. Lattimer, 35 S. C. 4. Bowman v. Raineteaux, 1 Hoffm.
422. 14 S. E. 933; §§ 1212-1215; 150. And see Sears v. Hull, 145 S.
§§ 1509-1517. . W. 760, 147 Ky. 745 (trust concern-
3. See Little v. Walton. 13 Penn. ing land).
St. 164. Under the New York code 5. Edelmeyer Re, 142 N. Y. S. 726.
an executor's executor cannot be re-
1245
§ 1247 EXECUTORS AA'D ADillXISTKATOKS. [PAET IV.
comes holder of assets in his own or some other right.^ But the
possession of the property of a deceased person, as executor or ad-
ministrator merely, cannot invest the possession with rights inde-
pendent of and disconnected witli the trust estate.' And to deter-
mine, in general, when one ceases to hold property belonging to
the estate, as such fiduciary, and holds it in his individual or other
inconsistent character, all the circumstances of the case must be
regarded.^
Election, as to his character or its change, by the person who
has different characters to sustain, becomes an essential fact in any
such connection. One who is administrator of two estates, may
elect, it is held, to which of the two certain propert}^ belongs ; but
the act manifesting such election on his part must be definite, clear,
and certain, to estop him afterwards from asserting title.*
§ 1247. Devolution of Title where the Personal Representative
is also Guardian of Decedent's Children, or Trustee un-
der the Will.
To proceed with this line of inquiry. Administrators are not
guardians as such of the decedent's minor children, and cannot
incur a fiduciary liability on such children's account ; ^ and the
same holds true of executors, save so far as the testator's will may
have invested them with the practical functions of a testamentary
guardian ; for guardianship is a separate tnist and should not be
•blended with that of administration.^ Nor is it within the line of
the ordinary duty and authority of an executor or administrator
to control property of widow and children, or to apply ordinary
assets in his hands for maintenance and education.^ There may bo
6. Wms. Exr3. 641-643; Prest. Stallswortli v Stallswortli, 5 Ala. 144.
Conv. 310, 311. 2. Schoul. Dom. RpI. § 324.
7. Gamble v. Gamble. 11 Aln. 966, 3. Wripht v. Wright. 64 Al;u 83;
975; Weeks v. Gibbs, 9 Mass. 76. Davis v. Davis. 63 Ala. 293. Nor can
8. Wms. Exrs. 643. the executor or administrator b^' f-ued
9. Mcflane v. Spcncc, 11 Ala. 172; as such for maintenance of the minor
6 Ala. 894. children of the deceased. Kent v.
1. Menifee v. Ball. 7 Ark. 520; Stiles, 2 N. J. L. 368. And aa to the
1246
CHAP. I.] KEPRESENTATIVe's TITLE AND AUTHORITY. § 1247
circumstances, to be sure, under which an administrator is spec-
ially appointed a guardian besides.
Thus, the same person may be constituted executor under the
parent's will, or an administrator, who is also guardian of the
minor children ; hence the question, whether he holds a fund in
one or the other capacity.^ The presumption arises, where per-
sonal estate of the decedent is to be transferred by way of legacy
or distribution in favor of such minor children, that one continues
executor or administrator ; for to perform the functions of admin-
istration is first in order, and some distinct act of transfer is pre-
liminary to fixing the liability of guardian. Passing the final ac-
counts of administration properly, this transfer of responsibility
becomes manifest enough ; ^ but where accounts are not rendered
by the fiduciary, circumstances, and often slight ones, after a long
lapse of time, may conclude the question. And the better opinion
appears to be, that where a sole representative is at the same time
guardian, the law will adjudge his ward's proportion of the estate
to be in his hands as guardian after the full expiration of time
fixed for the settlement of the estate.® On legal principle, one
ought not to be sued both as executor ot administrator and as guar-
widow's necessaries, see Sieckman v. Tunnell, 4 Harring. 424; Stillman v,
Allen, 3 E. D. Smith (N. Y.) 561. Young, 16 111. 318; Scott's Case, 35
See § 1447, as to allowances to widow, Vt. 297. But see Conkey v. Dickin-
children, etc. See also as to a minor son, 13 Met. 51.
income beneficiary who dies, Routt 6. Watkins v. State, 4 Gill & J.
V. Newman, 159 111. App. 456. 220; Karr v. Karr, 6 Dana, 3; Crosby
4. Schoul. Dom. Rel. § 324; Wren v. Crosby, 1 S. C. N. s. 337. Wilson v.
V. Garden, 1 How. (Miss.) 365. John- Wilson, 17 Ohio St. 150, 91 Am. Dec.
son V. Fuquay, 1 Dana, 514. The ad- 125; Wood, Re, 71 Mo. 623; Weaver
ministratrix of a mortgagor riiceived v. Tliornton, 63 Ga. 655 ; Carrol v.
additional advances from the mort- Bosley, 6 Yerg. 220, 27 Am. Dec. 460;
gagee on security of the land; this Townsend v. Tallant, 33 Cal. 45, 91
security did not bind her ward, the Am. Dec. 817. But the rule may be
infant son, who was not shown to otherwise with co-executors or co-ad-
have received any benefit from the ministrators. Watkins v. State, 4
advances. Percival v. Gale, 40 N. J. Gill & J. 220; Coleman v. Smith, 14
Eq. 440. S. C. 511. And see Schoul. Dom. ReL
5. Schoul. Dom. Rel. § 324: Alston § 324.
V. Munford, 1 Brock, 266; Burton v.
1247
§ 1248 EXECUTOES AND ADMINISTEATOKS. [PAET IV.
ilian, nor should botli sets of sureties be held responsible for tlio
fund ; but in doubtful cases of this kind, where the principal's de-
linquency has occasioned the doubt, the modern inclination is to
Jet the ward sue both sets of sureties, leaving them to adjust their
equities among themselves.^
§ 1248. Devolution of Title where Executor is also Trustee.
(Similar considerations apply to the case of an executor who has
likewise been constituted trustee under the will ; though here, per-
haps, the regular qualihcation with procurement of letters which
fixes the character of the latter fiduciary is more likely to be post-
poned to the final accounting and settlement of the estate than in
the case of a guardianship. One should not be made liable as
trustee for funds which came to his hands as executor; but after
the lapse of a considerable period the presumption may fairly be
that the estate has been fully administered by the executor, and
accordingly that the funds are held by him in the new character.*
But until something has been done whereby the executor's status
is changed, so that he becomes a trustee, — such, for instance, as a
payment over or allotment or credit of the trust fund, and a new
account opened in the trustee capacity, — he may be removed as an
executor for misconduct, and compelled to pass the assets over to
his successor.^ After so alloting, crediting, or paying over the trust]
fund, however, and still more so if he qualifies as trustee and
charges himself with the fund in his new character of trustee, ho
and his sureties are liable accordingly.^
The intent to create a trust under a will may be gathered from
the scope of the instrument aside from technical words; and where,
consequently, the duties imposed are active so as to render the pos-
session of the estate convenient and reasonably necessary, the ex-
ecutors will be deemed trustees for the performance of their duties
7. Harris v. Harrison, 78 N. C. 9. Hood, Re, 104 N. Y. 103, 10 N.
202; Perry v. Carmichael, 95 111. E. 35.
519; Merket v. Smitli, 33 Kan. 66. 5 1. Croekor v. Dillon. 1.'53 Mass. 91;
V. 394. Prior v. Talbot. 10 Cush. 1; 161 Mass.
8. Jenniing.9 v. Davis, 5 Dana, 127. 188, 36 N. E. 795.
1248
CHAP. I.] KEPKESENTATIVe's TITLE AND AUTHORITT. § 1249
to tlie same exLeut as though declared to be so by the most explicit
language.^
§ 1248a, Executor sometimes acts as Trustee.
In case there is some money fund with income payable for cer-
tain purposes while the capital is to be temporarily retained, and
no trustee is named under the will, the executor is sometimes al-
lowed to hold the fund, and administer so simple a trust without
,any other express appointment.^ But no executor is justified in
retaining assets in his own hands regardless of a proper trustee.*
§ 1249. Devolution of Title where Representative is also Legatee
or Distributee, etc.
An executor who is also a legatee may, by assenting to his own
legacy, vest the bequest personally in himself; and so may an ad-
ministrator who is also a distributee appropriate his own share by
acts and conduct manifesting such assent. The acquisition of an,
individual title to particular assets, in pursuance of such an inten-
tion, may be evinced by writings, duly executed with the other
legatees or distributees ; though such formality is not necessary, if
the actual appropriation be otherwise manifested by the circum-
stances.^
An executor who is residuary devisee and legatee, and gives bond
for the payment of debts and legacies, becomes absolute owner of
the real and personal estate, subject to that fiduciary obligation,
and may sell or otherwise dispose of it so as to give a correspond-
ing title.®
2. Ward v. Ward. 105 N. Y. 68, 11 4. See 189 Penn. St. 150, 42 A. 5.
N. E. 373, and cases cited; Scott v. 5. Elliott v. Kemp, 7 M. & W. 313;
West, 63 Wis. 529. And cf. § 1036. legacies, post. Part V., c. 3; Wms.
3. See White v. Massachusetts In- Exrs. 649.
stitute, 171 Mass. 84, 50 N. E. 512; 6. Clarke v. Tufts, 5 Pick. 337.
17 Pick. 182, 183, 28 Am. Dec. 288; The fact that the administrator and
Marjarum v. Orange Co., 37 Fla. 1S5, the heir are the same person does not
19 So. 837; Groton v. Ruggles, 17 make it less the administrator's duty
Me. 137. to plead limitations in bar to a suit
79 1249
§ 1251 EXECUTORS AXD ADMINISTKATOKS. [PAET IV.
§ 1250. Executor should administer Estate undisposed of under
the Will where there is a Partial Intestacy.
It is the right and duty of the executor to administer upon es-
tate undevised or undisposed of under the will, where there is a
partial intestacy, as well as to execute the will itself; and this he
may do ex officio without procuring letters of administration for
that purpose,^ being in such a sense considered trustee for the next
of kin.
§ 1251. Right and Duty of discharging Contract Liabilities, etc.,
of Deceased.
To the personal representative belongs the control of the legal
assets ; also the right, together with the duty, of collecting all claims
and discharging all liabilities of the decedent. As a general rule,
the personal representative may, in his discretion, perform, or re-
scind or modify with the consent of the other party, any contract
made personally by the deceased ; this, however, conformably to
the law of contracts, and for the reasonable interest of the estate.*
He may, as the law at the present day stands, compromise a law-
suit, buy the peace of the estate he represents, and extinguish
doubtful claims against it, provided he act discreetly and in good
faith.^ For the representative takes the place of the decedent as
to all contracts on which the latter was bound at his death, and is
for a debt due the estate, when an- See as to the effect of appointing an
other creditor may be injured by his administrator in such cases, Patten's
failure to do so. Smith v. Pattic, 81 Appeal, 31 Penn. St. 465.
Va. 654. See § 1138. 8. Gray v. Hawkins, 8 Ohio St.
7. Hays v. Jackson, 6 Mass. 149; 449, 72 Am. Dec. 600; Dougherty v.
152 Mass. 24; Wilson v. Wilson, 3 Stephenson, 20 Ponn. St. 210; Lnugh-
Binn. 557; Landers v. Stone, 45 Ind. lin v. Lorenz, 48 Penn. St. 275, 85
404; Parris v. Cobb, 5 Rich. Eq. 450; Am. Dec. 592; Davis v. Lane, 11 N.
Venable v. Mitchell, 29 Ga. 560; Dean H. 512.
V. Biggers, 27 Ga. 73. Whether this 9. Meeker v. Vandcrvecr, 15 N. J.
rule applies to an administrator with L. 392, per Hornblower, C. J.; 38 So.
the will annexed, see § 1407, post. 916, 143 Ala. 234; 66 P. 979. 1,'^5
The local statute is sometimes explicit Cal. 36 (statute); 63 A. 159, 78 Vt.
as to the rule stated in the text. 399 (statute).
Venable v. Mitchell, supra.
1250
CHAP. l.J KEPRESENTATIVE's TITLE AND AUTHORITY. § 1252
expected to discharge them in the manner provided by law, or ac-
cording to the means in his hands for properly liquidating all of
the decedent's obligations.^ And yet the executor or administrator
has no inherent power to bind the estate or those interested in it,
by special agreement with a creditor, to keep open indefinitely the
adjustment of his demand ; ^ nor to impose onerous charges upon
the estate ; ^ nor to make a specific transfer of assets at discretion,
so as to create an unlawful preference among creditors,'' or de-
fraud others interested in the estate of their just rights.^ He must
appropriate the assets honestly and discreetly to the purposes and
in the manner prescribed by law for the administration, settlement,
and distribution of estates of the dead.®
§ 1252. Avoidance, etc., of Contracts of the Deceased Illegally
made, etc.
The representative may avoid or dispute a contract, made by
his testator or intestate, as having been illegal, corrupt, and con-
trary to good morals or public policy, or as entered into when the
decedent was of unsound mind.^ In general he may set up such
pleas in defence as were open to his decedent ; and out of regard to
the interests he represents, he may even take advantages and set
up defences from which the decedent by his own acts might have
been precluded.^ Where, however, an executor or administrator
1. Woods V. Ridley, 27 Miss. 119. erty fraudulently transferred by the
2. Collamore v. Wilder, 19 Kan. 16. decedent. An oral contract made witli
3. Gayle's Succession, 27 La. Ann. the decedent to hold the custody of
547. certain assets after his death, subject
4. Grouldsmith v. Coleman, 57 Ga. to some contingency, such as the ar-
425. rival of A. from abroad, cannot, it
5. Brown v. Evans, 15 Kan. 88. would appear, be set up to the detri-
6. Cf. § 245. His acknowledgment ment of an executor's or administra-
of a decedent's debt is considered in tor's right to demand possession upoti
Eeavan, Re, (1912) 1 Ch. 196. his qualification. Ross v. Harden, 44
7. Eubanks v. Dobbs, 4 Ark. 173 •; N. Y. Super. 26. As to a transfer
Sanford, J., in Ross v. Harden, 44 N. upon usury, see 98 Ga. 139, 26 S. E.
Y. Super. 23. 487.
8. See § 1220 as to recovering prop-
1251
§ 1253 EXECUTORS AND ADMINISTRATORS. [pART IV.
who might disavow his intestate's act on good ground, ratifies and
receives the benefit of it, he cannot afterwards disavow it.®
"While a personal representative cannot, as a rule, impeach as
fraudulent a transaction entered into by the decedent in his life-
time, this rule is, out of regard for creditors especially, as already
seen, liable to exceptions.^
§ 1253, Contracts Personal to the Deceased, etc., distinguished
from those requiring Performance after his Death.
There may be contracts of the deceased which were designed to
extend beyond his lifetime, and whose breach or fulfillment will
involve the estate in damages; contracts, too, whose effect must b©
to encumber lands devised or the residuary fund." All con-
tracts of the decedent, however, are to be construed with reference
to their subject-matter; and hence, a contract to perform certain
duties growing out of an existing personal relation, or requiring
the exercise of a personal skill and taste, ceases to be binding when
death terminates that relation, and the representative cannot be
compelled to continue the performance.^
Subject to the exceptions just noticed, the death of one of two
contracting parties does not necessarily terminate the contract, and
his estate may be held liable in damages for any breach committed
after as well as before his death. •* And if a contract with a deceased
party is of an executory nature, and his personal representative
can fairly and sufficiently execute all that the deceased could have
done, he may do so, and enforce the contract.^ How all this shall
1)0 done becomes a matt,er for the exercise of fidelity and due busi-
ness discretion on the representative's part, aided, if need be, by
9. Riloy V. Albany Savings Bank, Exrs. 1725; Smith v. Wilmington
TiG Hun, 513. Coal Co., 8.3 111. 498; MeGill v. Mc-
1. See § 1220. Cill, 2 Met. (Ky.) 258. And seo c.
2. Sep Pringic v. McPhorson, 2 5, post, as to tlie rcspon-sibility of an
Desau. 524. cxocutor or administrator; § l.'i20.
3. Plnnd V. Umstcad. 2.3 Ponii. St. 4. Smith v. Wilmington Coal Co.,
:'.]<;■ 1 I'ar. Contr. fith (>d. 131 : Sihoni 83 111. 498. See 40 Mich. 226.
V. Kirkiiian. 1 M. & W. 418; Wms. 5. lb.; c. 5, post; § 1320.
1252
CHAP. I.] KEPKESENTATIVe's TITLE AXD AUTIIOKITY. § 1255
the advice or authority of the court or of those interested in the
estate and its surplus. Thus the executor or administrator of a
inauufactu'rer or artisan may well have materials worked up into
^oods fit for merchandise. The representative of a mechanic may
finish up the jobs on which he was engaged ; all this, supposing that
what was left by the deceased may properly be finished by others,
and at a reasonable hope of profit to the estate, which might other-
wise be liable in damages as for breach of contract.^
§ 1254. Personal Liability of the Representative upon the De-
/ cedent's Debts or Contracts.
At common law, if an executor or administrator undertakes to
perform the contract of the decedent, it is upon his own personal
responsibility, so that if losses are sustained he must bear them,
while if profits are realized they become assets in his hands for the
benefit of the estate.^ Equity and modem probate courts regard
the question of honesty and due discretion on his part in passing
Tipon the representative's accounts afterwards. But this is only so
far as relates to charging him with reference to the assets in his
hands; and his peTSonal liability may transcend the limit of the
means at his command where he contracts without a careful reser-
vation in that respect. For, though a bare promise by the executor
or administrator binds only the assets, the true doctrine is that he
may make himself personally liable by his written promise,
founded upon a sufiicient consideration.^
§ 1255. The same Subject ; how such Liability is incurred ; Stat-
ute of Frauds; Sufficient Consideration, etc.
Let us dwell briefly upon this point of a written contract by the
representative founded in sufficient consideration. In both Eng-
6. Marshall v. Broadhurst, 1 Cr. & 8. Wma. Exrs. 1776, and Perkins's
Jerv. 405; Garrett v. Noble, 6 Sim. note; Davis v. French, 20 Me. 21, 37
504; Wms. Exrs. 1794. Am. Dec. 36; Ellis v. Merriman, 5 B.
7. Smith V. Wilmington Coal Co., Mon. 296.
83 Til. 498; Mowry v. Adams, 14 Mass.
327.
1253
§ 1255
EXECTJTOES AXD ADMINISTKATORS.
[PAET IV.
land and the United States the executoi-'s or administrator's prom-
ise to pay a debt or to answer for damages of his decedent will not,
it is held, render him personally liable unless there was a sufficient
consideration to support the promise; for a bare promise charges
him, not out of his own estate, but only in a representative capacity
and to the extent of the assets in his hands, just as though he had
made no promise.^ A bare promise, there being no assets at all,
is, therefore, nudum pactum; and so is any promise made, by one
having no actual or potential representative character, to pay a
<Jead person's debts.^ Under the Statute of Frauds, such collateral
promises to bind one individually should be not simply oral but
made in writing ; ^ and, moreover, on general principle, there
should either be a seal to import a consideration or else an
actual good consideration for the promise. A verbal promise,
therefore, of the representative to pay his decedent's debt may be
void as without consideration or void under the Statute of Frauds
as not reduced to writins;.^
9. Wms. Exrs. 1776; Reech v. Ken-
negal, 1 Ves. Sen. 126; Nelson v.
Serle, 4 M. & W. 795. But see Rid-
out V. Bristow, 1 Cr. & J. as to the
promise by a widow. Also Temple-
ton V. Bascom, 33 Vt. 132, as to the
promise by sole distributee.
1. Tomlinson v. Gill, Ambl. 330.
2. 29 Car. II. c. 3, whose provisions
are enacted in all or most American
States, declares that no action shall
be brought to charge any executor or
administrator upon any special
promise to answer damages out of his
own estate, or to charge tl)e defendant
upon any special promise to answer
for tlie debt, default, or miscarriage
of another person, etc., unless the
agreement upon which such action
shall ibe brought, or some memoran-
dum or note thereof shall be in writ-
ing and signed by the party to be
charged therewith, or some other per-
son thereunto by him lawfully au-
thorized. The word " agreement "
here used has in England been held
to mean that the consideration of the
promise as well as the promise shall
be expressed in writing, or readily
gathered from it. Wms. Exrs. 1784;
Wain V. Warlters, 5 East, 10. But
while in some of the American cases
the English rule of construction is
applied to corresponding local enact-
ments, others construe the language
differently, and the modern tendency
appears to be against requiring the
consideration as well as the promiso
to be so plainly expressed. Wms.
Exrs. 1784. note by Perkins; 1 Chitty
C'ontr. 11th Am. cd. 92.
3. Sidle V. Anderson, 45 Penn. St.
464; Wms. Exrs. 1776; Walker v.
Patterson, 36 Me. 273; Winthrop ▼.
1254
CHAP. I.] KEPRESENTATIVe's TITLE AND AUTHOKITY. § 1256
Apart from any statute requirement that the consideration itself,
as well as the rest of the agreement, should be expressed in writing
(a point concerning which English and American authorities do
not quite harmonize), a sufficient consideration for such promise
arises where the creditor forbears to sue the executor or adminis-
trator; and forbearance to sue is in various instances held to be a
good consideration, and not within the statute, even though there
were no assets at the time of the promise/ So, too, having assets
is a good consideration, according to various modem authorities,
for the executor's or administrator's promise to pay a debt or claim
which the decedent owed; this being, perhaps, a sort of equitable
enlargement of the old rule on this subject, out of regard to the
superior knowledge which every representative should possess as
to the means at his disposal for paying demands upon the estate;
so that, having assets and promising in writing, the representative
becomes personally bound.^
§ 1256. The Representative's own Creation of a Debt binds Him-
self and not the Estate.
And here we should observe that an executor or administrator
has no power in such capacity to create a debt against the deceased.
He may clearly have intended to do so ; but the effect of such an
engagement is, instead, to bind himself individually on the assumed
faith that the assets he controls will, subject to the rules of admin-
istration w^hich he is bound to observe, furnish ample indemnity
to himself for incurring the risk. Ordinarily, debts contracted by
the personal representative or contracts originating with himself
Jarvis, 8 La. Ans. 434; Hester v. was needless, semble the representa-
Wesson, 6 Ala. 415. tive's personal promise fails of such
4. 1 Roll. Abr. 15, 24; Wms. Exrs. consideration. McElwee v. Story, 1
1778-1781; Hawes v. Smith, 2 Lev. Rich. 9.
122; Bradley v. Heath, 3 Sim. 543; 5. Wms. Exrs. 1783; Cowp. 234,
Mosely V. Taylor, 4 Dana, 542. And 289; Reech v. Kennegal, 1 Ves. Sen.
see Templeton v. Bascom, 33 Vt. 132. 126; Sleighter v. Harrington, 2
But where there could plainly be no Murph. 332; Thompson v. Maugh, 3
suit brought, so that the forbearance Towa, 342.
1255
§ 1256
EXECUTORS AND ADMINISTEATOES.
[part IV.
are obligatory only as personal obligations, and cannot, primarily,
bind the estate committed to him or charge specifically the corpus
of the assets; these assets being primarily bound rather for the
debts which the deceased himself contracted during his lifetime.*
The executor or administrator may contract, doubtless, on prin-
ciple, for all necessary matters relating to the estate which he rep-
resents ; but the immediate and practical result is that, a sufficiency
of assets being presumed as an element in the undertaking, he con-
tracts as upon his personal responsibility to keep good that suffi-
ciency. And, notwithstanding the intent is to benefit the estate,
every contract made upon a new and independent consideration,
moving between the promisee and personal representative, is the
i:!ersonal contract of the latter, binding himself and not the estate
represented.'
Xor again, is the estate to be held liable for a tort committed by
6. Ferry v. Laible, 27 N. J. Eq.
146; Clopton v. Gliolson, 53 Miss.
466; McFarlin v. Stinson, 56 Ga. 393;
Taylor v. Mygatt, 26 Conn. 184; Aus-
tin V. Munro, 47 N. Y. 360; Moody
V. Shaw, 85 Ind. 88; 119 Cal. 492, 51
P. 695; 79 N. W. 390, 108 Iowa, 611;
42 S. E. 1035, 116 Ga. 663.
7. This doctrine applies to the d'^bt
incurred by the representative in em-
ploying counsel to advise and assist
him in the discharge of his duty. De-
vane V. Royal, 7 Jones (N. C.) L.
426; § 1544, post; Bowman v. Tall-
man. 2 Robert. 385; McGloin v. Van-
dfrlip, 27 Tex. 386; McMahon v. Al-
len. 4 E. D. Smith (N". Y.) 519;
P.riggs V. Brcen, 123 Cal. 657, 56 P.
663, 886; Thomas v. Moore, 53 Ohio
St. 200, 39 N. E. 803; 61 A. 556, 78
Yt. 28. Or where he purchases goods
foi the benefit of the estate. Hard-
ing V. Evans, 3 Port. 221; Lovcll v.
Field, 5 Vt. 218. Or where he bor-
rows money to pay the debt« of the
]2;
estate. ^19 Cal. 492, 51 P. 695. Or
where he contracts for a headstone
or a monument. 167 Mass. 577. 46
N. E. 119. An executor or adminis-
trator has no power to bargain with
an attorney to give him a legal in-
terest in the estate as compensation
for his services so as thereby to bind
the estate. 48 Tex. 491; 57 Cal. 238;
Austin V. Munro, 47 N. Y. 360;
§ 1257, post. His own allowance
from the court, legacy, share, or
claim is all that he can thus dispose
of under any circumstances. But as
to compensation, etc., allowable out
of the estate, see post. Part VII, c. 2.
See Andrews v. Piatt, 58 A. 458, 77
Conn. 63; 81 N. Y. S. 315; 108 Iowa,
651; Bailey v. Merchants' Ins. Co.,
86 A. 328. 110 Me. 348; Rosenthal v.
Schwartz, 101 N. E. 1070, 214 Mass.
371 (sale through a broker) : 139 N.
Y. S. 181 (guaranty) ; McFarland v.
Howell, 143 N. W. 860.
>G
OHAP. I.] representative's TITLE AND AUTHORITY. § 1256
the executor or administrator ; and wliether suit be brought as for
u conversion or in damages as for breach of contract, the estate can-
not be made to respond.^
Indeed, the rule is that executors and administrators cannot, by
virtue of their general powers as such, make any contract which at
law will bind the estate and authorize a judgTiient de bonis deced-
entis. But on contracts made by them for necessary matters relat-
ing to the estate, they are personally liable, and must see to it that
they are reimbursed out of the assets.® The addition of the word
^^ executor " or " administrator " in such a contract is insufficient
to relieve the representative of this personal liability ; ^ for if it
be understood that the other party must rely upon the assets and
not the representative, and must take the risk of their adequacy
upon himself, the mutual expression should be clearly to that
effect ; and even thus no lien would arise on the creditor's behalf,
but the covenant or engagement of the executor or administrator,
limited to the extent of assets in his hands, would bind him person-
ally to that extent.^
8. Sterrett v. Barker. 119 Cal. 492,
51 P. 695.
9. Pinkney v. Singleton, 2 Hill,
343; Miller v. Williamson, 5 Md.
219; Sims v. Stilwell, 4 Miss. 178;
Jones V. Jenkins, 2 McCord, 494; Mc-
Eldry v. McKenzie, 2 Port. 33, 27
Am. Dec. 643 ; Underwood v. Mille-
gan, 8 Ark. 254.
1. Hopkins v. Morgan, 7 T. B. Mon.
1 ; Beaty v. Gingles, 8 Jones L. 302 ;
Litchfield v. Flint, 104 N. Y. 543, 11
N. E. 58.
2. Nicholas v. Jones, 3 A. K.
Marsh. 385; Allen v. Graffins. 8
Watts, 397. A note made by an ad-
ministrator, as such, by which he
promises to pay, etc., for value re-
ceived by the intestate and his heirs,
is void for want of consideration.
Ten Eyck v. Vanderpool, 8 Johns. 120.
And see 37 Miss. 526. Georgia act
of 1866 places contracts by the repre-
sentative for labor and service for the
benefit of the estate on the same foot-
ing as contracts made by authority of
law. 74 Ga. 486.
The representative cannot by his
executory contract made upon a new
and independent consideration bind
the estate directly, though contract-
ing for the benefit of the estate. Le
Baron v. Barker, 127 N. Y. S. 979.
And see Smith v. Peyrot, 94 N. E.
662, 201 N. Y. 210 (contract for em-
ploying on a commission). But as to
suit by a creditor in an exceptional
case, see 138 N. Y. S. 424, 136 N.
Y. S. 573.
1257
§ 1257 EXECUTORS AND ADMINISTRATORS. [pART IV.
§ 1256a. Representative Cannot Contract with Himself.
The representative cannot contract with himself, as president of
a company or otherwise, nor can he give a power of attorney in
such a case.^
§ 1257. Lien on the Assets is for Representative rather than for
the Person dealing with him; Estate how far Answer-
able.
Persons, therefore, who deal with the executor or administrator
acting independently in such capacity, can acquire no lien upon or
right to proceed immediately against the trust estate in his hands.
The executor or administrator himself, like other trustees, appears
to have a charge or lien in his favor for proper expenses and
charges fairly and reasonably incurred in the prosecution of his
trust ; but such privilege does not extend to others employed by him
or to whom he, as executor or administrator, has incurred an indi-
vidual liability to pay.* This rule, though sometimes working
hai'shly, is founded in sound policy, and better ensures a proper
appropriation of the estate which the decedent left behind him. It
enables the broad maxim to be applied, that for false and fraudu-
lent representations by the executor or administrator, and upon
promises which he had no right to make, the property of the de-
cedent cannot be held liable, and that a creditor's collusion with
such an object in view cannot be permitted to operate to his own
advantage. Even though the representative contracted honestly
as such, the estate is not bound by what he was not lawfully au-
thorized to stipulate, but he alone is bound, however he may have
described himself.^
But the estate of the deceased ought to be made responsible for
3. Bonsel, Re, 124 N. Y. S. 728. Ala. 438, 38 Am. Rep. 15; Woods v.
4. Wins. Exrs. 1792; Kirkman v. Ridley, 27 Miss. 119, 149; Harrrll v.
Boothe, 11 Bcav. 273; Cornor v. Witherspoon. 3 McC<ird, 486; Austin
Shew, 3 M. & W. 350; FitzhuRli v. v. Munro, 47 N. Y. 360. See note in
Fitzhugh, 11 Gratt. 300, 62 Am. Dec. preceding section.
653; Montgomery v. Armstrong, 5 J. 5. Brown v. Farnham, 55 Minn. 27,
J. Marsh, 175; Steele v. Steele, 64 56 N. W. 352.
1258
ciJAP. I.] kepeesentative's title axd authokity. § 1258
promises and engagements made by the representative, which he
liad the leg^l right to make, or where in law it was his duty with-
out a promise to do just what he had promised to do.^ Whatever
the methods for accomplishing this, there are usually found some
practical means thus available; as, for instance, in the case of
funeral charges, and, in general, as to creditors of the estate so far
as the assets, properly administered upon equitable principles, may
suffice for their genuine purpose of satisfying all just claims upon
the estate. Claims are settled after probate rules established for
general convenience, to be noted hereafter ; ^ and according as the
contract arose with the deceased or with the representative himself.
The representative cannot create a lien on the assets for any debt
due during his decedent's lifetime.^
§ 1258. The same Subject; Negotiable Notes, etc., running from
or to the Executor or Administrator ; Other Instances.
The foregoing principles apply to negotiable instruments which
the representative executes. Thus, the signature "A. B., execu-
tor," or ''A. B., administrator," to such paper cannot bind the de-
cedent's estate directly, even though specifying that estate by
name ; but A. B. will be held personally liable.^ It has been held
that an individual liability is not thus incurred unless the repre-
sentative has assets, or forbearance was the consideration ; ^ and
yet. giving one's own obligation expressly payable at a future day
should be regarded as an admission, perhaps conclusive, of assets.^
6. Brown v. Evans, 15 Kan. 88. his decedent. Cornthwaite v. Nat.
7. See c. 5, post, as to remedies, Bank, 57 Ind. 268. And see Banking
and the peculiar rule, e. g., as to Co. v. Morehead, 122 N. C. 318; 62
funeral expenses. Minn. 459; 54 Am. St. Rep. 653; 58
8. Ford V. Russell, 1 Freem. Ch. 42; Fed. 681.
Ga. Dee. Part II. 7; James's Appeal, 1. Bank of Troy v. Topping, 9
89 Penn. St. 54. Wend. 273. In s. c. 13 Wend. 567, it
9. 3 Iowa, 142; Yolv. 11; Wms. is admitted that executing such note
Exrs. 1780; Christian v. Morris. 50 is prima facie evidence of assets.
Ala. 585; East Tenn. Co. v. Gaskell, 2. Thompson v. Maugh, 3 Iowa,
2 Lea, 742. And see Sieckman v. Al- 343; Childs v. Monins, 2 Br. & B.
len, 3 E. D. Smith (N. Y.) 561. This 460. The words "value received"
rule applies though the new promis- might be important in this connec-
sory note be given in renewal of a tion. See 1 Cr. & J. 231. Or promis-
matured promissory note executed oy
1259
§ 1258 EXECUTORS AND ADMINISTKATOES. [PAilT IV.
Where a bill is indorsed to certain persons as executors, and they
indorse it over, they become personally liable.^ As the current of
American decisions runs, an executor or administrator, signing or
indorsing a note as such, does not escape a personal liability
thereon unless he expressly confines his stipulation to payment out
of the estate ; ^ nor is parol evidence competent to establish such a
reser^-ation, though the note be signed officially.^ A note payable
to " B. administrator (or executor) of E.," is the actual property
of B. and not of E.'s estate.^
Within the principles we have discussed, it may be asserted that,
while a bond or covenant given by the representative as such,
whereby he undertakes to assume whatever may be his decedent's
debts, binds him much as an " agent," so called, who has no prin-
cipal,^ a bond given by him which is expressed to pay out of the
assets the balance due in settlement, will not bind him beyond the
assets received.^ And where he gives his personal notes simply in
extension or renewal of those upon which his decedent was origin-
ally responsible, the natural import of the transaction is not an ex-
tinguishment of the liability of the estate to the creditors' disad-
vantage; nor certainly, so as to deny to the representative himself
the means of securing himself from the estate.^ Giving his own
note or obligation for a debt of the decedent will not in any case
exempt the estate from ultimate liability for the debt.^ And the
principle holds good generally that parties who contract may pro-
vide expressly in their written agreement that an implication
which the law would otherwise raise shall not apply.^
ing to pay with interest. 2 Br. & B. 8. Allen v. Graffins, 8 Watts, 397.
460. And see 58 Ind. 58.
3. Buller, J., in King v. Thorn, 1 T. 9. Peter v. Beverly, 10 Pet. 532 ,
R. 489. See Snead v. Coleman, 7 9 L. Ed. 522; 1 How. 134, 11 L. Ed.
Gratt. 300, 56 Am. Dec. 112. 75; 122 N. C. 318, 30 S. E. 33.
4. Studebaker M. Co. v. Montgom- 1. Douglas v. Eraser, 2 McCord
ery, 74 Mo. 101. Oh. 105; Maraman v. Trunnell. 3
5. McGrath V. Barnes, 13 S. C. 328, Met. (Ky.) 146. 77 Am. Deo. 167;
86 Am. Rep. 687. Dunne v. Deery. 40 Towa. 251.
6. SafTord v. Banks, 69 Ga. 289. 2. Thus in a note signed as " exe-
7. Patterson v. Craig, 57 Tenn. 291. outor," which expressly stipulates
12G0
CHAP. I.] KEPKESEA^TATIVE's TITLE AND AUTHORITY. § 1259
On the other hand, the recognition by the executor or adminis-
trator of a claim against the estate, arising suosequent to the de-
cedent's death and upon his own contract, will give it no additional
validity ; for it is not the estate that shall answer directly for it to
the creditor, but the representative himself.^
Supposing some statute of limitations to have debarred the cred-
itor from prosecuting his claim against the estate; * a promise by
the representative to pay the claim, if made in writing, whether
in the form of a negotiable note officially signed or otherwise, may
bind him personally upon the theory of a sufficient consideration
founded in the possession of assets.^
§ 1259. Lien on the Assets, how far existing for the Representa-
tive's own Immunity.
The individual obligation which the representative necessarily
incurs by assuming to fulfil, even in the name of his office, engage-
ments of the decedent, serves as a caution against his assuming too
much, or undertaking more on behalf of the estate he represents
than the assets at his command fairly warrant. When, however,
an executor or administrator pays a debt or discharges a contract
which constitutes in reality a just charge against the estate of the
testator or intestate, out of his private funds, he will be entitled
to an allowance for the same in his accounts ; and administration
under probate and equity direction supplies a sort of lien upon the
assets for his reimbursement.^
This lien upon the assets, however, if such we may term it, does
not secure the representative for liabilities or expenses incurred
"as executor but not personally," the Dec. 431; Davis v. French, 20 Me. 21,
executor is not personally bound. 37 Am. Dec. 36; Lyon v. Hays. 30
Banking Co. v. Morehead, 115 N. C. Ala. 430; Woods v. Ridley, 27 Miss.
413, 20 S. E. 526; 52 N. E. 1067. 119, 149.
See Browne v. Fairhall, 100 N. E. 556, 4. On this point, see post, c. 5.
213 Mass. 290, note of executor given 5. Gates v. Lilly, 84 N. C. 643; Mc-
for the price of property purchased by Grath v. Barnes, 13 S. C. 328; 36
his decedent). Am. Rep. 687. And see Bacon v.
3. May v. May, 7 Fla. 207, 68 Am. Thorp, 27 Conn. 251; § 1255.
1261
§ 1260 EXECUTOES AXD ADMIXISTKATOKS. [pAET IV.
outside the proper scope of liis official duty. Thus, if he chooses
to warrant title to the purchaser in selling assets, the risk which
he assumes thereby is his own.^ And the disallowance in his ac-
counts of expenses incurred and losses sustained through culpable
negligence or bad faith puts a practical limit to his reimbursement
out of the assets.^
§ 1260. This Rule of Lien applied in settling Account of a Rep-
resentative Deceased, Removed, etc.
So, too, where an executor or administrator pays debts of the
decedent out of his own funds, and dies or is removed before he has
received assets sufficient to reimburse him, he or his own. represen-
tative should be allowed to stand in the place of the creditor whose
demand has been extinguished, and to assert such demand against
the successor in his late trust. ^ Circumstances may exist where it
is not wrong in the original representative, although it may not
be a positive duty, to make advances for the benefit of the estate
which he administers, and where, by his death or removal from
office, he may be unexpectedly deprived of the power to reimburse
himself. Wherever advances have been made in good faith, and
for the benefit of the estate, they in some form become a charge
upon the estate in the hands of his successor in the trust, whose
duty it is to pay them as much as if they had occurred in the course
of his own administration.^ The safer and the usual course, how-
ever, is for an executor or administrator to advance nothing and
6. See Woods v. Ridley, 27 Miss, supra, it was held that there was no
119, 149. action at common law available
7. .See c. 4, post, as to transfer of against the administrator dc bonis
assets; Stoudonmoior v. Williamson, non on bclialf of the orij^inal ropre-
29 Ala. 558; Lockwood v. Gilson, 12 sentative, although the amount due
Ohio St. 526. had been ascertained on presentation
8. See cs. 4, 5, post ; also post, Part of the latter's accounts. But pro-
VII., concerning his accounts. ceedings in the probate court were al-
9. Smith V. Haskins, 7 J. J. Marsh. lowed under statute provisions re-
502; Munroe v. Holmes. 9 Allon, 244. lating to a suit on an administrator's
1. Hoar, .1., in Miinrop v. Tl'ilmos. bond.
13 Allen, 109. In Munroe v. Ilolnits,
1262
CHAP. I.] KEPEESENTATIVE's TITLE AND AUTHORITY. § 1262
incur no expenditure or charge beyond the value of chattels in
hand, or assets as actually realized; thus relying simply upon his
lien to reimburse himself, or else his contemporaneous appropria-
tion of chattels instead, by way of election ; in which case the final
settlement of his accounts involves a mere transfer of the just bal-
ance or residue to the successors, and avoids the disadvantage of an
active pursuance of remedies against the latter.^
If at the time of the original executor's or administrator's de-
cease or removal there should remain personal assets in his hands,
enough may be retained to satisfy the balance found due on an ac-
counting of his administration. Otherwise, personal assets coming
to the hands of the representative de bonis non are justly applica-
ble to settling this balance; and, if no personal assets, real estate
of the deceased may equitably be reached ; the difficulty is only the
practical one as to the best mode of thus enforcing the charge
against the estate when the first representative's lien is wanting.^
§ 1261. Assets recovered by Representative on his own Contract
enure to the Estate.
Where an executor or administrator recovers in his own name
upon a contract made with him personally after the death of the
decedent, respecting the estate or for money received by the de-
fendant for the use of the estate after such death, he is answerable
in his fiduciary capacity for the amount recovered, as for assets.*
§ 1262. The Estate should not derive Unconscientious Advan-
tage, etc.
While, as we shall see, a decedent's estate is not to be rendered
2. The power of the probate court cuted to one in his capacity of exe-
extends only to the assets of the es- cutor and administrator, and which
tate, and the court cannot make an remained uncollected and undisposed
allowance other than that which is of during his lifetime, see Maraman
properly chargeable against the ea- v. Trunncll, 3 Met. (Ky.) 148, 77
tate. Clement v. Hawkins. 16 Miss. Am. Dec. 167.
339. See 83 P. 384, 147 Cal. 725. 4. Mowry v. Adams, 14 Mass. 327;
3. See Hoar, J., in Munroe v. Smith v. Wilmington Coal CJo., 83 III.
Holmes, 13 Allen, 109. And as to 498.
appropriating notes which were exe-
1263
§ 1264 EXECUTORS AND ADMINISTRATOKS. [PAKT IV.
responsible in damages for torts and frauds committed by the rep-
resentative, and while, moreover, in a sale of assets the rule is
caveat emptor^ it would appear that an estate ought not to derive
any unjust or unconscientious advantage from the representative's
misconduct.^ One should not claim a right in behalf of the estate
he represents, founded upon the fraud of the decedent ; ® nor be
heard to assert for his justification that his own fraud or his viola-
tion of law redounded to the benefit of the estate.''
§ 1263. Whether Admissions, etc., by Representatives bind the
Estate.
Executors or administrators by their admissions bind the estate.'
But such admissions or declarations by a representative are only
oompetent evidence as to his own acts after he became clothed with
the trust, and do not bind the estate in so far as they refer to what
the decedent told him during his life,^ or were made after decedent
died and before he himself was appointed and qualified.^ It is not
a representative's duty to volunteer disclosures to the injury of the
estate; ^ but he may bind the estate by consenting to a just daim.^
§ 1264. Representative's Power over Assets whether controlled
by Probate or Equity Courts.
It is held that the executor's or administrator's power of dispos-
ing of assets is not controlled or suspended by the mere filing of a
bill of equity on the part of a creditor for the administration of
6. Able V. Chandler, 12 Tex. 88, 62 9. Godbee v. Sapp, 53 Ga. 283.
Am. Dec. 518; Cock v. Carson. 38 Tox. 1. Gibson v. Lowndes, 28 S. C. 285.
284. 2. As, e. (}., disclosures which might
6. Armstrong v. Stovall, 26 Miss. render successful a lawsuit ponding
275. against the testator at the time of his
7. Crump v. Williams, 56 Ga. 590. death, and against his representative
8. Sample v. Liscomb. 18 Ga. 687. by revivor. Maddox v. Apperson, 14
And thoy may release witnesses from Lea, 596.
liability to the estate. Neal v. La- 3. Sheldon v. Warner, 59 Nfich.
mar, 18 Ga. 746. 444, 26 N. W. 667.
1264
CHAP. I.] EEPRESENTATIVe's TITLE AND AUTHORITY. § 1264
the estate; for it is said such power continues until there has been
a decree in the suit.^ Bills for administration of assets are not
common in American practice; but the representative proceeds
upon qualification to perform his duties according to the terms ex-
pressed in his probate credentials, and subject to the conditions of
his probate bond, which serves as security to all interested in the
estate, being filed in the probate registry. Creditors who are ag-
grieved can have ready recourse to the common-law tribunals ; be-
sides which, various local statutes provide the means of authenti-
cating and filing their claims at the probate office.^ Where an ex-
ecutor or administrator has taken possession of personal property
as part of the estate of his decedent, a probate court has no in-
herent jurisdiction to compel him to deliver it to the oAvner thereof,
upon a summary application of the owner ; ® nor in general can
such tribunals interfere with the regular course of justice before
the common-law tribunals. Nor will a court of equity interfere
usually with an executor or administrator as respects the due ad-
ministration of assets in his hands, unless there is reason to fear
some probable injury to the rights and interests of the com-
plainant.^
But an executor, trustee, or other fiduciary cannot have an au-
thority conferred upon him, not in some measure subject to the
control and supervision of the probate and chancery tribunals, as
in compelling accounts and passing upon their allowance; and
should a testator have directed otherwise, that direction must be
disregarded.^ A purely arbitrary discretion, independent of the
judicial rules which govern the settlement of estates, is not to bo
exercised by an executor, nor is any testator presumed to have in-
tended conferring it.'
4. Neeves v. Burrage, 14 Q. B. 504; 7. Ashburn v. Ashburn. 16 Ga. 213.
Wms. Exrs. 942. 8. Holcomb v. Holcomb, 11 N. J.
5. See Part V.. post, as to the pay- Eq. 281. See as to directing for a
mont, etc.. of claims. contest concerning a gift causa mor-
6. Marston v. Paulding. 10 Paige, tis, Wadsworth v. Chick, 55 Tex. 241.
40; Crawford v. Elliott, 1 Bailey, 9. Hull v. Hull, 24 N. Y. 647.
206.
80 1265
1266
EXECUTOKS A'S'D ADMIXISTRATOES.
[PAET IV.
§ 1265. Interpleader, etc., for Instructions,, etc., by tht Personal
Representative.
Executors and trustees, by bill in the nature of a bill of inter-
pleader, may take the advice of a court of chancery upon questions
connected with the discharge of their duties. But the interposition,
of the court in such case is discretionary, and will not be exercised
except in matters of importance involving one's ovm course of ac-
tion.-^ An administrator cannot resort to equity as a matter of
course, to obtain its aid and instruction in the settlement of his in-
testate's estate, but only where there are special circumstances in-
volved in such settlement which justify so unusual a proceeding.^
And, in general, no executor or administrator should ask for in-
structions upon a point as to which, considering the actual condi-
tion of the estate, he is not, and probably never will be, embarrassed
in the performance of his duties.^
§ 1266. Representative not a proper Party to Suits for annulling
a Marriage.
Tbe executor or administrator is not the proper representative
1. Crosby v. Mason, 32 Conn. 482
Parker v. Parker, 119 Mass. 478; An
nin V. Vandoren, 14 N. J. Eq. 135
fioodhue V. Clark, 37 N. H. 525
Houston V. Howie, 84 N. C. 349
Woodruff V. Cook, 47 Barb. 304
Shewmake v. Johnson, 57 Ga. 75. In
England the stat. 22 & 23 Vict. § 30,
expressly confers the right upon exe-
cutors or administrators to apply by
petition to a court of chancery for
opinion, advice, and direction re-
specting the management or adminis-
tration of the property. Wms. Exrs.
1909.
2. Pitkin v. Pitkin, 7 Conn. 315;
McNeill V. McNeill, 36 Ala. 109, 76
Am. Pec. 320; Beers v. Strohecker,
21 Ga. 442. Executors and other
fiduciaries should not seek the con-
struction of a will or instructions as
to future remote contingencies dis-
connected with a continuing duty on
their part. Minot v. Taylor, 129
Mass. 160; 65 A. 739 (N. J. Ch.
1907); Powell v. Deming, 22 Hun,
235.
3. Rexford v. Wells, 13 W. Va. 812.
And see further, Putnam v. Colla-
more, 109 Mass. 509. There are cir-
cumstances of embarrassment under
which an administrator de bonis non
or an administrator with will an-
nexed may properly ask for instruc-
tions as to his course. Sellers v. Sel-
lers, 35 Ala. 235. Some local stat-
utes, too. are found, particularly in
aid of getting instructions from the
probate court aiter a somewhat in-
formal and inexpensive procedure.
1266
CHAP. I.] KEPKESENTATIVe's TITLE AND AUTHOPvITY. § 1267
of the deceased person to annul his marriage. Statutes which sanc-
tion such proceedings leave it rather to children or relatives to
take that momentous responsibility.^
§ 1266a. Trust Provision by Decedent in Anticipation of Death.
An intestate person may, in anticipation of death, make a rea-
sonable conveyance and transfer of all his property in trust, so as
to accomplish his own posthumous scheme of settling his estate.^
§ 1267. Vesting of Possession; Chattels Real, etc., as distin-
guished from Chattels Personal.
A distinction is drawn in the books between chattels personal
and chattels real, as to the vesting of possession in the representa-
tive. The property of personal chattels draws to it the possession,
and hence, as to all such property of the deceased, wherever situ-
ated, the representative acquires possessory title at once.^ But as
to chattels real, leases, and other chattel interests in things immov-
able, including tenancies at will or from year to year, of these the
representative, though potentially owner, is not deemed to be in
possession before entry.^ The reversion of a term, however, which
the testator granted for part of the term, is held to be in the ex-
ecutoo-, immediately upon the death of the testator ; ^ and it would
seem that the rule of law which makes the title of administrator
as to personal chattels relate back to the death of the intestate, so
as to enable him to recover for mesne injuries or their conversion,
applies likewise to chattels real, only that he must first enter.'
4. Pengree v. Goodrich, 41 Vt. 47; ance was ordered among members of
Schoul. Hus. & Wife, § 13. the decedent's family, in which the
5. See Ober v. Breuster, 129 N. W. widow and next of kin acquiesced.
776, 113 Minn. 388, where the ad- 6. Wentw. OflF. Ex. 228, 14th ed.;
ministrator was refused permission to Wms. Exrs. 635; Doe v. Porter, 3 T.
bring an action for setting sucli a R. 13; Taylor Landl. & Ten. § 434.
trust deed aside, inasmuch as 7. lb. And see supra, § 1223.
ample provision was therein made for 8. Trattle v. King, T. Jones, 170.
the payment of all debts against the 9. Barnett v. Guilford, 11 Ex. 20,
estate and a distribution of the bal- 32.
1267
§ 1268a EXECUTOfiS and administratoes. [pakt iv.
This requirement of entry appears to be raised, therefore, for his
benefit, so as not to force him to assume the liabilities of tenant.^
§ 1268. Whether the Representative may act by Attorney.
In many transactions the legal representative manages the estate
with the aid of some attorney of his choice, and it may often be
advantageous to him to employ professional counsel. But the rule
is, that one delegated to a trust cannot delegate that trust to an-
other; so that ultimately the official discretion and responsibility
become his own.^ A power of disposition given under a will to
executors, which is a personal trust, cannot, therefore, as a rule,
be executed in the name of an attorney.^ Nor can the representa-
tive, by a power of attorney which no will has authorized, transfer
the entire management of the estate which he represents so as to
bind creditors and interested parties.*
§ 1268a. No property in the Body of the Intestate,
An executor or administrator has, as a rule, no official interest
in or control over the body of his decedent ; and apart from some
enabling statute he cannot maintain an action for injury or muti-
lation to the corpse, though he might sue for corresponding injury
to the garments which the decedent wore when he perished."
1. As to surrendering or assigning cute deeds or contracts on terms sat-
a lease of decedent, see Johnson v. isfactory to himself, but he cannot
Stone, 10 J N. E. 366, 215 Mass. 219 give the actual discretion to such a
(covenant for lessor's assent) ; post, person so as to absolve himself. New-
§ 1376. ton v. Bronson, 13 N. Y. 587, 67 Am.
2. Supra. § 1109; Driver v. Riddle, Dec. 89; Terrell v. McCown, 91 Tex.
8 Port. (Ala.) 343; Bird v. .Jones, 5 231, 43 S. W. 2.
I.a. Ann. 645; 96 N. W. 1067. 134 4. Neal v. Patten, 47 Ga. 73. S;!e
Jlich. 645; 89 P. 377, 49 Ore. 127. § 1321, as to employing agents, ote.
3. 9 Co. 75 b; Wms. Exrs. 943, 951, 5. Griffith v. Charlotte R., 23 S. C.
and Perkins's note; Williams v. Mat 25, 55 Am. Rep. 1. Cf. §§ 1211,
tocks, 3 Vt. 189; Bergor T. DufT, 4 1283. We here consider the " right of
Jolins. Ch. 368. Thu.s an executor property " and not rights as concern
Di;iy employ a oerson to formally ixc a burial.
12 G8
CHAP. I.] KEPEESENTATIVe's TITLE AND AUTHOUITY. § 12G8b
§ 1268b. Transactions harried by Lapse of Time.
Lapse of time, such as bars out remedies, may limit the repre-
sentative's obligation to answer for or inquire into the transactions
of his decedent.®
6. Alliott V. Smith (1895) 2 Ch.
Ill (twentj years 'before the person
died).
1269
§ 1269 EXECUTORS AXD ADMIXISTKATOES. [PAKT IV.
CHAPTEE 11.
COLLECTION OF THE ASSETS.
§ 1269. General Duty of Executor or Administrator to collect the
Effects, etc.
It is incumbent upon every executor or administrator, upon the
completion of his appointment, to take prudent measures, first of
all, for bringing all the personal property of the deceased for which
he may be legally answerable into his actual control and possession.
And there is no function of his office which calls for such energy,
promptness, and discretion in its discharge as this. Collection
precedes in natural order the settlement of debts and charges, and
is the primary essential of prudent administration. Whoever may
have been the custodian of all or particular goods and chattels of
the deceased, the duly qualified legal representative should cause
him to attorn or surrender possession, in order that the estate may
derive the full benefit of the assets to which it is entitled. Cor-
poreal things, and the corporeal muniments of title, the personal
representative should seek to procure. And as to debts and in-
corporeal rights, evinced or not evinced by instruments in writing,
the duty of collection on behalf of the estate applies in a correspond-
ent sense ; though here the duty of reducing to possession naturally
imports the collecting on demand, by suit or otherwise, whatever
may be due, and realizing the value of the thing after the method
especially appropriate to its nature. No creditor, and not even
the devisee, heir, or surviving spouse, is entitled to the possession of
personal property left by the decedent, which constitutes lawful
assets, as against the claim of the duly qualified executor or admin-
istrator.^
It is the duty and right, therefore, of the executor or admin-
istrator, as soon as he shall have lawfully taken upon himself the
execution of his office, to collect and possess himself of all the
1. See Page v. Tucker, 54 Cal. 121.
1270
CHAP. II.] COLLECTION OF THE ASSETS. § 1270
assets, so that he may be enabled to meet the payment of the debts
against the estate as they shall be presented. Not being permitted
to delay collecting the assets until he can first ascertain the
amount of the debts, the whole of the assets, for aught he can
know, may he wanted for paying them; and hence it becomes his
duty to collect with all reasonable diligence ; and the law supplies
him with the means adequate for that end.^ The personal property
vests in the representative for paying debts immediately, and
legacies or distributive shares more remotely; and, in a word for
administration according to the requirements of law, under,
it may be, the provisions of the decedent's last will. His duty
to collect with reasonable care and diligence is quite independent
of any demand or request from creditors or distributees of the
estate made upon him.^
§ 1270. Statute Methods for discovering Assets in aid of the
Representative's Pursuit.
Some of our American legislatures have provided a convenient
and inexpensive means of aiding the representative in his pursuit
of assets, in the nature of a summary process in the probate court
for citing in any suspected party and examining him upon oath
before the tribunal which issued the letters. Thus, a Massachu-
setts statute provides that upon complaint against any person sus-
pected of having fraudulently received, concealed, embezzled, or
conveyed away any money, goods, effects or other estate, real or
personal, of the deceased, the court may cite such suspected person
to appear and be examined upon oath touching the matter of the
complaint. If the person so cited refuses to appear and submit to
examination, or to answer the questions lawfully propounded to
him, the court may commit him to jail, there to remain in close
2. See Eisenbis€ v. Eisenbise, 4 ute includes enforcement of obliga-
Watts, 134, 136. And see § 1238. tions due the estate, etc).
See Ekblad v. Hanson, 117 P. 1028, 3. Harrington v. Keteltas, 92 N. Y.
85 Kans. 541 ("collect" under stat- 40; Grant v. Reese, 94 N. C. 720.
1271
§ 1270 EXECUTOES AND ADMIXISTKATOES. [pART IV.
custody until he submits. The interrogatories and answers shall
be in writing, signed bj the party examined, and filed in court.'*
The remedies thus afforded may enable an executor or admin-
istrator to push inquiries, advantageous as a preliminary to insti-
tuting proceedings civil or criminal, before the usual tribunals,
besides vindicating his own zeal in seeking out the property and
in deterring chance custodians inclined to evil doing. And so
favored is this summary inquisition, in connection with the settle-
ment of estates, that parties interested may themselves invoke it
against the executor or administrator, where his own conduct lays
him open to a corresponding suspicion.^ It is to be obsei-ved,
however, that the statute authority usually extends only to the
propounding of lawful interrogatories, and compelling the person
cited to answer them ; the suspected person is not to be deprived
of the assistance of counsel in making his answers f nor can the
process itself avail beyond procuring a disclosure of facts to serve
as the basis of proceedings elsewhere, unless, as might well be
anticipated, the person, if liable and in actual possession, chooses
to surrender without further resistance.^ The New York statute,
however, besides aiming at this compulsory production of evidence,
nndertakes that the procedure shall, where the evidence justifies
it, result further in a decree requiring the cited person to deliver
possession summarily to the complainant, or else to furnish secur-
ity to abide by the decision of the proper tribunal, and pay all
damages in case the suit be determined against him.®
4. Mass. Pub. Stats, c. 133; Ar- constitutionally pressed, see 105 Cal.
Tiold V. Sabin, 4 Cush. 46; Milner v. 600.
Leishman, 12 Met. 320. Similar stat- 5. See language of statuti\ supra.
tit's are found in other New England 6. Martin v. Clapp, 99 Mass. 470.
States. With reference to Issuing a 7. Lapse of time is not readily re-
search warrant under New York stat- garded as interposing a bar to such
ute, see Public Administrator v. examination. 'VDee v. McCrate, 7
Ward, 3 Bradf, 244. The surrogate Greenl. 467.
may cite on reasonable grounds. 2 8. Rodf. (N. Y. ) Surr. Prac. c. 17,
Dem. 296, 396. Sec also Missouri § 3. The procedure under this New
statute. Eans v. Eans, 79 Mo. 53. As York statute assumes that the peti-
to how far such proceedings may bo tioner for a citation shows reasonable
1272
CHAP. II.] COLLECTION OF THE ASSETS. § 1272
§ 1271. Special Statute Proceedings against Intermeddlers with
the Assets, etc.
In some States, under the statute, an executor or administrator
may file a bill in chancery against one who intermeddles with or
embezzles goods of the estate, instead of proceeding at law.^ And
the common-law remedy against a defendant as executor de son
tort, which often rendered one liable for large debts where only a
trivial amount of property had come into his possession, is also
found superseded in some States by legislative acts, which provide
that an action may be brought for the benefit of the estate to recover
double the amount or value of the property which may have been
alienated or embezzled by any unauthorized person before the
grant of letters testamentary or of administration ; only, however,
on proof of wrong motive in the defendant.^
§ 1272. Power of Executor or Administrator to enter Premises,
force Locks, etc., in Pursuit of Assets.
The old writters define with excessive caution the limitations
under which the personal representative may enter premises, force
locks, and the like, in the pursuit of assets for which he is answer-
able. Within a convenient time after the testator's death, or the
grant of administration, as they admit, the executor or adminis-
trator has a right to enter the house descended to the heir, in order
grounds for the inquiry. The statute 1. Roys v. Roys, 13 Vt. 543. The
lias been pronounced uncor. 'tutional common-law right of suing in tres-
in the supreme court (not the highest pass or trover is not otherwise re-
tribunal of the State) . Beebe's Mat- strained by this statute. lb. See
ter, 20 Hun, 462. Local legislation also 41 A. 1003, 21 R. I. 55; Schrafft
may differ in such details. See 77 v. Wolters, 48 A. 782, 61 N. J. Eq.
S. W. 552, 178 Mo. 248; 50 N. W. 467; 115 N. W. 142, 134 Wis. 532
1086, 90 Mich. 1; 116 N. W. 317, 138 (discovery and restoration sought);
Iowa, 513. Manser's Estate, 118 P. 1024, 60 Ore.
9. Thorn v. Tyler, 3 Blackf. (Ind.) 240 (no jurisdiction to determine
504; Hensley v. Dennis, 1 Ind. 471. title); 131 N. Y. S. 203. See Long
See Falor v. Doubet, 164 111. App. v. Long, 80 A. 699, 848, 175 Mo. 130;
433 (no alternative remedy in chan- 124 P. 405, 87 Kan. 307.
eery).
1273
§ 1272 EXECUTORS AKD ADMINISTEATOES. [PAET IV.
to remove the goods of tlie deceased; provided, as they add, he do
so without violence — as if the door be open, or at least the key
be in the door. He has also a right, they observe, to take deeds
and other writings, relative to the personal estate, out of a chest in
the house if it be unlocked or the key be in it.^ But, they add,
although the door of entrance into the hall and parlor be open,
he cannot justify forcing the door of any chamber to take the goods
contained in it ; but is empowered to take those only which are in
such rooms as are unlocked, or in the door of which he shall find
the key.^ Nor, they say, has he a right to break open even a chest.*
These are ancient authorities, relating chiefly, if not altogether,
to controversies with the heir who occupies the dwelling-house of
the decedent; and modern adjudication upon these and collateral
points appears to be wanting. Yet the case of one's proceeding
upon premises occupied by the deceased, to take an inventory, to
procure possession of the goods and effects, or even, as preliminary
to all probate authority, to search for a will, is of constantly
familiar occurrence. Such acts are often highly prudent, and in-
deed essential to be performed. The good judgment and delicate
discretion of all the parties concerned, each being desirous to
manifest his honest intent, furnish the best and probably the
usually accepted assurance that all is lawfully and properly done ;
and to expect that a missing key, a forgotten combination,^ an
unruly lock, shall needs baffle a search which can only be advan-
tageous when thorough, and that all concerned must be driven on
slight obstruction into the courts, instead of the nearest locksmith's,
seems absurd. It may well be presumed in these days that a
deceased person of fortune has left some of his property, if not a
will disposing of it all, in some place where those who survive him
cannot lay hands as readily upon it as he might have done when
2. Went. Off. Ex. 81, 202, 14tli cd.; 5. For combination locks are a
Toller, 255. modern contrivance suggesting novel
3. lb. nictlinds as to a prudent search of tlie
4. lb. These authorities mav be receptacle,
found cited, Wnis. E.xrs. 926.
1274
CHAP. II.] COLLECTIOX OF THE ASSETS. § 1272
alive; and while his own lock imported exclusion to all the world
while he was owner, it does not, we apprehend, on his death import
exclusion as against those on whom the title may have devolved in
consequence, nor so as to prevent due discernment of the facts
relating to that devolution of title. Indeed, for this exigency the
controlling principle appears to be, as in bailments and trusts
generally, that reasonable diligence and prudence should be pur-
sued by all concerned for the welfare of the estate, according to
the circumstances, and genuine good faith under all circumstances.
It is submitted, therefore, that as to the right of entering prem-
ises, forcing locks, and the like, the case of executor or administrator
after qualification differs not fundamentally from that of bailee,
custodian, unqualified representative, or suitable family repre-
sentative; but that (1) the purpose should be a suitable one, —
as to make an inventory or preliminary schedule, or to search for
a will, or to thwart irresponsible parties in actual possession, or
to take a lawful custody whether temporary or permanent; and
that (2) this purpose should be executed with honesty and reason-
able prudence. The application of the rule differs, however, as
the proceeding on behalf of the estate proves to be resisted or not
by others in interest and in possession of the premises or locked
receptacle. Where there is no such resistance, it would appear
that, subject to this rule of prudence and good faith, locks afford
no decisive obstacle to the prosecution of one's duty in the prem-
ises, nor necessarily require a court to interpose its formal sanc-
tion ; for while a custodian may usually leave locked premises and
locked chests as they are, for a time and pending judicial delays,
it would under some circumstances be highly perilous to do so.
Where, however, others in interest and actual possession, and not
mere intruders, resist a representative's proceedings, and the lock
is not, so to speak, a casual obstruction left by the deceased, but
their own as against him, doubtless the representative, qualified
or unqualified, the bailee, or family representative, should pro-
ceed with far greater reserve; though to desist and resort to the
courts does not even thus necessarily follow. Something depends,
1275
§ 1273 EXECUTORS AND ADMINISTRATOKS. [pART IT.
moreover, upon one's situation witli reference to his decedent's
chattels; as being already invested witli a bailment custody, for
instance, or as pursuing the search upon neutral or perhaps hostile
premises. Thus, it is decided that no one in possession of a
locked box belonging to the estate has any right to compel the
qualified representative to give him a schedule of its contents or
to impose other unreasonable preliminaries to its surrender; and
it seems that locked or unlocked the box should be handed over.®
The passages from our earlier writers have a strict reference,
therefore, only to the executor or administrator who comes in col-
lision with that especial favorite of the old common law, the in-
heritor of the land. The representative, in other words, cannot
force his way rudely against the heir's wishes, to take goods and
chattels from the lands which have descended to the latter, break-
ing locks as he goes; though unquestionably the representative
must take such things or recover them by process or without it.^
In any event, the executor or administrator must not unreasonably
defer the duty of seeking possession.
§ 1273. Duty to pursue or collect depends upon Means at Rep-
resentative's Disposal.
The duty of an executor or administrator to pursue and recover
chattels depends in a great measure upon the means at his com-
mand for doing so; and the same may be said with reference
to collecting dues to the estate. Whether slender assets shall be
6. See Cobbett v. Glutton, 2 C. & A statute may define or extend tha
P. 471. power of the representative in such
7. See Rough v. Womer. 43 N. W. respects; but such legislation is to
573, 76 Mich. 383 and cases cited. be interpreted according to circum-
And see Duffy v. >'^Hale, 85 A. 36, stances. To forcibly enter upon
35 R. I. 16 (policy of courts). premises in possession of the heir ami
If the representative be remiss in forcibly take possession of assets,
removing the goods within a reason- witliout process and against the heir's
able time, the heir, it is held. tnay_ wishes, is perilous; and all tho more
distrain them as damage feasant so if the representative had no ri^rlili
Plowd. 280. 281 ; Cro. Jac. 204 ; W<nt. to such property. Rough v. Womer,
OfT. Ex. 202; Wms. Kxrt<. 027. . fiupra.
1276
CHAr. II.] COLLECTIOX OF THE ASSETS. § 1274:
used in litigation for procuring personal property adversely held,
or in realizing doubtful claims, the rule of prudence must decide ;
but it is certain that the representative of an estate is not bound
to litigate or to undertake the enforcement of doubtful rights on
il>elialf of the estate out of his own means ; and if kindred, legatees^
or others interested in prosecuting the right, think the eifort worth,
making, they should at least indemnify the representative against
the cost.^
§ 1274. Duty to pursue or collect depends also upon Separate or
Desperate Character of the Claims.
The duty to pursue or collect depends largely, too, upon the
sperate or desperate character of the claim itself; as to whether,
for instance, the title of the deceased to such a corporeal thing
or muniment can be clearly established against the adverse pos-
sessor or the reverse; or again, whether such a debt or claim,
is probably collectible or not, considering the debtor's own sol-
vency. A representative is not chargeable for assets, without
reference to the fact whether they were good, doubtful or des-
perate at the time when he assumed the trust, nor in any case,
aside from the question of delinquency or culpable neglect on his
part in realizing their value or procuring them according to the
means at his disposal.® No executor or administrator is bound
to sue a worthless debt, but ordinary care and diligence is the true
criterion of his duty.^ In many instances a layman may be jus-
tified by taking professional advice as to whether to expend in
litigation, or how far.^
8. Griswold v. Chandler, 5 N. H. 147. A claim which is already ont-
492; Andrews v. Tucker, 7 Pick. 250; lawed need not be prosecuted. Pat-
Sanborn v. Goodhue, 8 Post. 48; Hep- terson v. Wadsworth, 89 N". C. 407.
burn V. Hepburn, 2 Bradf. (N. Y. ) That a debt might have been collected
74; Smith v. Goethe, 82 P. 384, 147 is not conclusive against the repre-
Cal. 725: Harris v. Orr, 33 S. Fi. 257, sentative. Anderson v. Piercy, 20 W.
46 W. Va. 281. 76 Am. St. Rep. 815. Va. 282. But he ought to give some
9. Cook V. Cook, 29 Md. 538; good excuse. 88 N. C. 416. See §
Pool's Succession, 14 La. Ann. 677. 1308.
1. See Smith v. Collamer, 2 Dem. 2. See § 1544.
§ 1276 EXECUTOES A2s^D ADMINISTRATORS. [PAET IV.
§ 1275. Duty to pursue or collect depends also upon Representa-
tive's means of Knowledge.
The diitj to pursue or collect depends also upon the means of
knowledge possessed bj the representative. Thus, an executor or
administrator cannot be charged with a right of action in his de-
cedent, when knowledge of the right was never brought home to
himself; nor does he become chargeable, except with reference
to the claim and the condition of the estate, when such knowledge
reached him.^
§ 1276. Legatees, Creditors, etc., have no Right to hold against
Representative.
Such is the personal representative's authority over the assets
that until he has bj his acts and conduct made a virtual transfer
of title to a legatee or other party in interest, such interest can-
not be set up against him. Where, therefore, the residuary legatee
or next of kin is suifered to remain in possession of personal prop-
erty of the deceased, pending a final settlement of the estate, he
is presumably a mere bailee of the property for the personal rep-
resentative, and is liable to be called upon to surrender it, as the
course of administration may require.* And a payment made by
a debtor of the estate to any one, even to the residuary legatee
or next of kin, is a mispayment, and from such person the repre-
sentative may recover it.^ A creditor's claim against the estate
is preferred to that of kindred or legatees ; and yet not even a
creditor has the right to take possession of assets for the purpose
of either securing or paying himself the debt due to him; nor
can he, after having obtained possession, withhold it from the
representative unless the possession was obtained for that purpose
by an agreement with the deceased during his lifetime ; for other-
wise, the just order for payment of debts would be defeated.*^
3. Sarah v. Gardner, 24 Ala. 719; 6. lb. Cf. 61 S. W. 182; 160 Mo.
Liikton V. Jenney, 13 Pet. 381. 10 L. 372, 83 Am. St. Rep. 479. And see
Ed. 210; 33 So. 946, 82 Miss. 93. Ormsboo v. Piper, 82 N. W. 36, 123
4. Carlisle V. Burley, 3 Grecnl. 250. Mich. 265 (widow); 87 N. W. 621,
5. Eisenbise v. Eisenbise, 4 Watts, 128 Mich. 509.
134.
1278
CHAP. II.] COLLECTION OF THE ASSETS. § ]5?77
§ 1277. Suing to recover Assets; Actions founded in Contract,
Duty, etc., survive.
To come now to the representative's suit for recovering assets.
Prom very early times the rule has been, that personal aotions>
which are founded upon any contract, debt, covenant, or the obli-
gation to perform a legal duty, survive the person entitled in his
lifetime to sue, so that the right of action passes, upon the credi-
tor's death, to his executor or administrator.'^ Hence, at our com-
mon law, the personal representative has the right of action to
recover all debts due to the deceased, whether debts of record, as
judgments or recognizances, or debts due on bonds and other con-
tracts under seal, or debts due on simple contracts and simple
promises, oral or written, which are not under seal.^ Some excep-
tions to this rule which appear to have once prevailed were re-
moved by the operation of statutes passed before or during the
reign of Edward III., and long anterior to the establishment of
the English colonies in America.^
It is said that the executor or administrator so completely repre-
sents the deceased in all such rights of action that he may enforce
the obligation, notwithstanding the contract be written out and
makes no reference to him. Thus, if money be expressly payable
to B., the right to recover payment survives by implication to B.'s
representative ; and though the writing should not only omit all
reference to executors and administrators, but promise payment
specifically to " B. or his assigns," B.'s executor or administrator
may sue upon it; for a creditor is not presumed to have assented
lliat a debt owing him shall be lost to his estate if he dies before
receiving payment.^
7. 1 Saund. 216 a; stat. 31 Edw. 9. See as to action of a'^onunt,
III., c. 11; Wms. Exrs. 786; Lee v. stats. 1 Edw. I., stat. U c. ;{ : 25
Chase, 58 Ma 432. Edw. III., e. 5; 31 Edw. III., c. 11;
8. Allen v. Anderson, 5 Hare. 163; Wms. Exrs. 786. A bond or covenant
Wms. Exrs. 786; Wentw. Off. Ex. to indemnify survives to the repre-
159, 14th ed.; Carr v. Roberts, 5 B. sentative. Carr v. Roberts, 5 B. &
& Ad. 78; Owen v. State, 25 Ind. 107; Ad. 78.
Bailey v. Orms.by, 3 Mo. 580. 1. Hob. 9; Wentw. Off. Ex. 215,
1279
§ 1279 EXECUTORS AXD ADMII^ISTEATORS. [pART IV,
§ 1278. Survival of Actions founded in Contract; Exceptions to
Rule.
To tlie rule that every personal action founded upon a contract
obligation shall survive to the personal representative, exceptions
exist, deducible from the reason of the contract relation itself.
Thus, where purelv personal considerations are the foundation of
the contract, as in the usual case of principal and agent, or master
and servant, the death of either party puts an end at once to the
relation and its incident obligations.^
And wherever the contract right is by plain intendment coter-
minous with the decedent's life, or dependent upon some condi-
tion which necessarily fails by reason of his death, the representa-
tive can take no succeeding advantage under the contract, but at
the utmost only such advantage as may have accrued to the de-
cedent during his lifetime, and was not actually enjoyed by him.'
Life insurance contracts, too, may from their very nature be so
framed that the money shall, upon the death of the person in-
sured, enure directly to the benefit of particular survivors, and not
his general estate; while, notwithstanding, the representative
might be pro forma a nominal party to the suit on the beneficiary's
behalf to recover the money.*
§ 1279. Actions founded in an Injury to Person or Property died
with the Person at Common Law; Later Variations of
this Rule.
But as to actions founded, not in contract, but in some injury
done either to the person or the property of another, and for which
14th ed.; Wms. Exrs. 789; Prec. Ch. 2. Willes. J., in Farrow v. Wilson,
173. And 8ce as to expressions L. R. 4 C. P. 745.
"heirs," "next of kin," etc., 11 Vin. 3. Hob. 9, 10; Prcc. Ch. 173; Wms.
Abr. 133, pi. 27; Wms. Exrs. 787; Exrs. 789.
Carr v. Roberts. 5 B. &; Ad. 78; § 4. f^npra. § 1211; Lee v. Chase, 58
1277, supra; § 1299, post. A suit to Mo. 432. An action to recover an an-
collect personal assets is to be dis- nuity survives. Smith v. Smith, 15
tinguished from one to sell realty Lea, 93. Also a ripht of action for
which descends. 15 Lea, 194. l^einji removed from office without a
hearing. 4 McArth. 141.
1280
CHAP, n.] COLLECTIOiS' OF THE ASSETS. § 1279
c>nly damages are legally recoverable, hy way of recompense, the
earlier doctrine of the common law has been that the action dies
with the person for the want of litigants ; dies, that is to say, with
the person who committed or the person who suffered the wrong.^
Hence, the executor or administrator of the injured party could
not bring an action in former times for false imprisonment, as-
sault or battery, or other physical injury suffered by his decedent.^'
!Nor could he sue for torts affecting the feelings or reputation of
his decedent, such as seduction, libel, slander, deceit, or malicious
prosecution.'' So, too, all right to recover for injuries done to the
freehold — nay, perhaps, to the personal estate also^ — was excluded
by the death of the owner.^
Statutes, however, in the reign of Edward III., changed con-
siderably a rule often quite disadvantageous to estates of the dead,
in its practical operation, by opening a wider door to executors
and administrators who sought to recover damages for wrongs
suffered during life by those whose estates they represented.
Trespasses committed in carrying away personal property of the
5. Wms. Exrs. 790; 1 Saund. 216, The form, rather than the sub-
217, notes. stance, of this distinction between ac-
6. lb. ; Smith v. Sherman, 4 Cush. tions founded in contract and actions
408; Harker v. Clark, 57 Cal. 245; founded in a wrong, appears to have
Anderson v. Arnold, 79 Ky. 370. been insisted upon in the earlier au-
7. Long V. Hitchcock, 3 Ohio, 274
Walters v. Nettleton, 5 Cush. 544
Nettleton v. Dinehart, 5 Cush. 543
thorities. Thus it was said, that in
cases where the declaration imputes
a tort done either to the person or
Deming v. Taylor, 1 Day, 285; Wms. property of another, and the plea
Exrs. 793; McClure v. Miller, 3 must be "not guilty," the rule was
Hawks. 133; Miller v. Umberhower, actio personalis moritur cum persona.
10 S. & R. 31; Sawyer V. Concord R., Hence, the doubt formerly enter-
58 N. H. 517. Action for criminal tained whether assumpsit would lie
conversation does not survive. Clark for or against an executor; because
V. McClellan, 9 Penn. St. 128. Nor yie action was in form trespass on
an action for expenses incurred by ^^g e^se, and therefore supposed a
the testator or intestate in defending ^rong. Wms. Exrs. 789; Plowd. 180;
against a groundless suit. Deming v. q^^ j.^^ 394. g Ld. Raym. 974.
Taylor, 1 Day, 285.
8. Wms. Exrs. 793; 1 Saund. 216
217, notes.
81 1281
§ 1280 EXECIJTORS AXD ADMINISTRATORS. [pART IV.
decedent during his lifetime, whereby the assets which reached
the executor's hands became necessarily impaired in value, first at-
tracted the attention of the English Parliament; and statute 4
Edw. III. c. 7 placing the executor, as to all such trespassers, upon
the same footing which his testator would have occupied had he
still remained alive, the next step was to accord similar benefits
to the estates of such as might die intestate.® By an equitable
construction of these statutes, an injury done to the personal estate
of the decedent during his lifetime became distinguished from that
sufi^ered by his person, so that in effect an executor or administra-
tor might have the same action for an injury done to the personal
estate of the deceased during his lifetime, whereby it had become
less beneficial to the representative than it shoud have been, as
the deceased himself might have had if living, whatever the form
of action.^
§ 1280. The same Subject.
Where, therefore, the personal representative can show that dam-
age has accrued to the personal estate of the deceased, through
breach of the defendant's express or implied promise, the later
lule is that he may sue at common law to recover damages, even
though the action itself sound in tort. As where a professional
attorney is sued for his negligence in investigating a title upon
which some transfer of property depended.^ Or wlicrc one con-
tracting for safe carriage receives an injury which results in
a loss of his baggage;' notwithstanding an action against the car-
9. 1 Saund. 217; Cro. Eliz. 384; tion against a shcrifl' fur tlio (l(>faiilt
fitats. 4 Edw. III.; 15 Edw. III., c. 5 ; of liimself or his deputy to the loss
Wm.s. Exrs. 790. of the right sued upon or its propor
1. Trespass or trover may, aocord- security. 2 Ld. Raym. 973; Paine v.
ingly, l)e brought by the executor or I'lnier, 7 Mass. 317; 4 Mod. 403; 12
administrator. Cro. Eliz. 377; Man- Mod. 72; Wms. Exrs. 791.
well V. Briggs, 17 Vt. 176; Potter v. 2. Knights v. Qunrh>s, 4 Moore,
Van Vranken, 36 N. Y. 619. Debt on .'-.32.
n judgment against an executor sug- 3. Alton v. Midland R., 19 C. B. n.
g( sting a devastavit. 1 Salk. 314, Ac- s. 242.
1282
CHAP. II.]
COLLECTION OF THE ASSETS.
§ 1280
rier for the graver personal injury might have died with the suf-
ferer. As these statutes, nevertheless, made no change in the
earlier law, so far as the survival of actions for injury done to
the freehold was excluded, some fine distinctions have been made
bv the courts in applying this later rule ; distinctions founded in
the essential differences between real and personal property.*
But the decisions are somewhat confusing on this point; and
it must not be supposed that the mere form of action shall con-
clude the question of survival of the right to sue; for it is the gist,
rather, and substance of the action that must determine. The prin-
ciple of the common-law distinction is still that the executor or
administrator shall enforce contract rights of action as collector
or custodian of the decedent's personal estate, and not pursue
wrongs for which the decedent might have sought a personal re-
dress in damages f a distinction not easily maintained, however,
4. See preceding section. Thus, b}'
the equity of statute 4 Edw. III., c.
7, the executor or administrator of a
lessee might maintain an ejectment
suit founded on transmission by death
of a title to chattels real. Wms.
Exrs. 793; Doe v. Porter, 3 T. R. 13.
But actions for obstructing rights, di-
verting a water-course, and the like,
did not survive to the representative.
1 Saund. 217 a; Wms. Exrs. 793. Nor
could the representative maintain
trespass quare clansum fregit nor an
action merely for cutting down trees,
or growing corn, etc., or for other
waste committed on the freehold dur-
ing the lifetime of the decedent.
Wms. Exrs. 793; Williams v. Bree-
don, 1 B. & P. 329; Wentw. Off. Ex.
183, 14th ed. And yet for corn and
wood of the decedent cut and carried
away during his life it would appear
that the executor might bring his ac-
tion; for severance converts property
from real to personal, and what was
carried away and capable of beipg
carried became movable and assets.
Williams v. Breedon, 1 B. & P. 330.
So where grass is mowed and carried
off as hay, trespass is maintainable.
Wms. Exrs. 794; Wentw. Ofi'. Ex.
167; Halleck v. Mixer, 16 Cal. 574.
Whether injury to growing crops
might be sued for, on the doctrine of
a constructive severance and emble-
ments, is sometimes considered. Wms.
Exrs. 793; 70 Me. 219. See, further,
post, § 1285.
5. Chamberlain v. Williamson, 2 M.
& S. 408; Smith v. Sherman, 4 Cush.
408; Kelley v. Riley, 106 Mass. 341,
8 Am. Rep. 336; Hovey v. Page, 55
Me. 142; Harrison v. Mpseley, 31 Tex.
608. But cf. Shuler v. M'illsaps, 71
N. C. 297, contra, where the death
was that of the defendant instead.
Upon the subject, of breach of promise
to marry, see, generally, Schoul. Hus.
1283
§ 1280 ESECUTOES AXD ADMIXISTEATOES. [PAET IV.
as one perceives when lie reflects tliat our modern incorporeal per-
sonal property, with its claims and demands of various kinds, has
expanded in sense far beyond the ancient theory of a simple chose
in action or debt, which needed only to be reduced into the rep-
resentative's possession or collected. Pursuing that distinction,
judicial policy pronounces finally against the survival of an action
for breach of promise to marry to the plaintiff's representative,
unless, perhaps, as rarely happens, the foundation of damage al-
leged is the lass of plaintiff's personal property in consequence ;
and, indeed, there are very sound reasons why such a cause of
action should not be permitted to survdve at all. And so with re-
spect to actions against physicians for malpractice,® or against
an attorney through whose unskilful management his client was
incarcerated.^ For though the form of action may be contract, the
damage, substantially, laid in such cases, and for which recovery
is sought, is in reality mental or physical suffering inflicted upon
the person of the decedent through the defendant's negligence
or misconduct. And, notwithstanding the general rule, the same
considerations do not always appear to have moved the court where
the plaintiff' sufferer dies first, as where one sundves the de-
fendant and seeks to hold the defendant's estate liable for his own
redress.^ Yet the law as to survival of actions is usually defined
as the same whether plaintiff or defendant dies, and reciprocal in
fact in its operation.^
& Wife, §§ 40-51. And see Fenlay Tower, 14 Gray, 183; Newsom v. Jack-
V. Chirney, 20 Q. B. D. 494; § 1370, son, 29 Geo. 61; Coker v. Crozier, 5
post. Ala. 369; Henshaw v. Miller, 17 How.
6. Wms. Exrs. 801; Long v. Morri- (U. S.) 212, 15 L. Ed. 222; Grim v.
son, 14 Ind. 595. Carr, 51 St. 533; Wms. Exrs. 793,
7. Wms. Exrs. 801. Cf. Knights v. note by Perkins.
Quarles, supra. And see language of 9. As to suing for injury to the
Tx)rd Ellenborough in Chamberlain v. corpse of decedent, see Griffith v.
WilliamHon, supra. Charlotte R., 23 S. C. 25. As tn con-
8. Actions of deceit, as in the sale tingont liability of a stockholder un-
or exchange of property, do not at der statute, see 87 Fed. 113.
common law survive. Cutting v.
1284
CHAP. II.] COLLECTION OF THE ASSETS. § 1282
§ 1281. The same Subject; Replevin, Detinue, etc., by the Rep-
resentative.
If goods or chattels of the decedent, taken away during his
lifetime, continue in specie in the hands of the wrong-doer after
his death, replevin and detinue will lie for the representative
to recover, back the specific things.^ And for the conversion of
such goods or chattels an action lies by the executor or administra-
tor as representative of the deceased to recover their value.^ In
general, goods or chattels taken away, which continue as such in
the hands of the wrong-doer, can be recovered by the representa-
tive; or, if sold, an action for money had and received will lie to
recover their value.^
§ 1282. The same Subject; Modern Statutes affecting the Rule.
Modern local statutes, however, are frequently explicit as to
the right of action by or against the personal representative,
founded in a tort; and the right of action is thus extended often
in terms more or less specific. The obvious tendency of our later
legislation is to remove the old barriers which obstructed the sur-
vival of actions, so as to give an aggrieved person's estate the
benefit of pecuniary compensation.*
Actions of replevin, actions for goods taken and carried away
or converted by the defendant to his own use, and actions against
sheriffs for malfeasance or nonfeasance by themselves or their
deputies, are among the causes specifically enumerated in Ameri-
1. Wms. Exrs. 787; 1 Saund. 217 now provided that all actions which
n.; Jenney v. Jenney, 14 Mass. 232; would have survived, if commenced
Reist v. Heilbrenner, 11 S. & R. 131; by or against the original party in his
Elrod V. Alexander, 4 Heisk. 342. lifetime, may be commenced and
2. Wms. Exrs. 787; Jenney v. Jen- prosecuted by and against his execu-
ney, supra; Willard v. Hammond, 1 tors and administrators. Mass. Pub.
Fost. 382; Eubanks v. Dobbs, 4 Ark. Stats, c. 166, § 1. An action against
173; Manwell v. Briggs, 17 Vt. 176; an apothecary for negligently selling
Charlt. (Ga.) 261. a deadly poison as a harmless medi-
3. Potter V. Van Vranke.n, 36 N. Y. cine will consequently survive. Nor-
€19. ton V. Sewall, 106 Mass. 145, 8 Am.
4. Thus, in Massachusetts, it is Pep. 298.
1285
§ 1282 EXECUTORS AXD ADMIXISTEATORS. [pAKT lY.
can local statutes ;° causes, some of them, fairly privileged in tliis
respect, irrespective of such legislation. In various States, actions
for libel, or slander, are now found thus to survive;*' also actions
for seduction -^ actions for deceit f and actions for malpractice hv
a physician, apothecary, or attorney.^
So, too, is a modem legislative disposition strongly manifested
to enlarge and confirm the representative's remedies for such torts
as may have been committed plainly against the person of the de-
cedent. Thus, a Massachusetts statute provides that the follovnng
(among other causes specified) shall survive in addition to the
actions which survived by the common law: actions of tort for
.issault, battery, imprisonment, or other damage to the person.^
The sweeping language of kindred enactments in some other States
oonfer a survival of actions ex delicto, still more comprehensive.^
And under the operation of appropriate practice acts, the executor
or administrator of any person who might have sued in his own
name, during his life, for personal injuries sustained by reason of
the negligence of some town in keeping its highways, or through
the culpable carelessness of some railway or other common car-
rier, may sue as representative where his decedent died, having
a cause of action.^
5. Smith V. Sherman, 4 Cush. 408; Nettleton v. Dineliart, 5 Cush. 543;
Norton v. Sewall, supra. Conly v. Conly, 121 Mass. 550.
6. Nutting V. Goodridge, 46 Me. 2. Shafer v. Grimes, 23 Iowa, 550.
82. See also Adams v. Williams, 57 Miss.
7. Shafer v. Grimes, 23 Iowa, 550. 38. Actions for malicious arrest and
8. Haight v. Hoyt, 19 N. Y. 464. imprisonment survive. Huggins v.
9. Long V. Morrison, 14 Ind. 595, Tole, 1 Busli. 192; Whitcomb v. Cook,
77 Am. Dec. 72; Miller v. Wilson, 24 38 Vt. 477.
Penn. St. 114. 3. Wms. Exrs. 792, note by Per-
1. Ma^s. Pub. Stats, c. 1G5, § 1. kins; Hooper v. Gorham, 45 Me. 209:
The words "damage to the person" Demond v. Boston, 7 Gray, 544. Seo
in this statute do not include tort-s .ns to survival of suit for penalty uii-
not directly affecting the person, but der a manufacturing act. where the
only the feelings or reputation, such plaintiff dies after judgment, Blake
as breach of promise, slmder, or ma- v. Griswold, 104 N. Y. 613, 11 N. E.
lieious prosecution. Norton v. Se- 137. A cause of iiction for conspiracv
•wall, 106 Mass. 143, 8 Am. Rep. 298; to cheat and defraud or for deceit
1286
CHAP. II.] COLLECTION OF THE ASSETS. § 1283
It may, perhaps, be generally laid down, as to actions of this
character, that the legal representative is not entitled to recover,
except upon such a state of facts as wonld have entitled the de-
ceased himself to recover, had the latter been living.*
§ 1283. The Subject continued; Action for Damages in causing
Death.
A remarkable instance in v^hich the rule of survival of actions
has been enlarged by local statute, relates to instantaneous death*
At the common law an action could not be brought by one's execu-
tor or administrator to recover damages for causing the decedent's
death; for the daath of a human being afforded no ground of an
action ex delicto, even when caused by another's wrongful act or
neglect.^ In view, chiefly, perhaps, of the great damages to which
travellers in great numbers have become exposed in these modem
days of coach, railway, and steamboat or electric transportation,
the peculiar trust they are compelled to repose in those who under-
take to carry them, and the sound policy of holding transporting
companies to the exercise of a reasonable care and diligence in
managing their perilous business, statutes, both English and Amer-
ican, have been enacted during the nineteenth century, providing
in substance that damages may be recovered, not only for personal
Burvives. Brackett v. Griswold, 103 *477. Nor for malicious prosecution.
N. Y. 425, 9 N. E. 438; Baker v. 41 Ark. 295.
Crandall, 78 Mo. 584, 47 Am. Rep. 4. See Pound v. Pound, 64 Minn.
126. And see 51 N. W. 75, 84 Iowa, 428, 67 N. W. 200, 111 Ala. 529, 22
66 (owner of cattle injured). Where So. 362.
pending one's action for personal in- 5. Wms. Exrs. 797, citing preamble
juries caused by negligence, the plain- of stat. 9 & 10 Vict. c. 93; Carey v,
tiff dies from some other cause, the Berkshire E,., 1 Cush. 475, 48 Am.
right of action survives. Chicago R. Dec. 616; Wyatt v. Williams, 43 N.
V. O'Connor, 119 111. 586, 9 N. E. 263. H. 102. If one lives from three to
A right of action in the federal court five minutes after being injured by
to recover a penalty given by a fed- negligence, the cause of action vrill
eral statute does not survive. Sch- survive. Kellow v. Central Iowa R.,
reiber v. Sharpless, 110 U. S. 76. Nor 68 Iowa, 470, 56 Am. Rep. 858, 23
does an action for enticing away one's N. W. 740, 27 N. W. 466.
servant. Huff v. Watkins, 20 S. C
1287
§ 1283 £XECUTOKS AND ADMIXISTEATORS. [pART IV.
injuries, but for causing one's death wrongfully and carelessly.
Many of these S'tatutes are explicitly directed against railway and
other passenger carriers ; but inasmuch as modem invention tends
in various other instances to place individuals in great numbers
within the power of private corporations and persons who under-
take to perform a service or conduct a pursuit — to say nothing
of killing by assault and premeditated violence, such as the crim-
inal codes of all ages more especially provide for, — the humane
and prudent legislation of the nineteenth century takes often in
England and the United States a more general scope.
Of this latter character is the English statute 9 and 10 Vict. c.
93, which enacts that whensoever the death of a person shall be
caused by a wrongful act, neglect or default, such as would,. if
death had not ensued, have entitled the party injured to maintain
an action and recover damages, then, and in every such case, the
person who would have been liable if death had not ensued, shall
be liable to an action for damages, notwithstanding the death of
the person injured.® Corresponding enactments are to be found
in most parts of the United States, extending to corporations as
well as individuals, causing such damage or death.'' Actions, under
statutes of this character, are sometimes to be brought in the
name of the 'State, and as though by instituting a sort of criminal
prosecution against a corporation ; and even where the action is
brought as a mere civil action in the name of the executor or ad-
ministrator, the benefits are made to redound, as far as possible,
to surviving spouse, children, or parent, immediately, rather than
for the purpose of supplying assets for the decedent's general
estate.*
6. Stat. 9 &, 10 Vict. c. 93, cited practitioner will l)e guided by the
Wras. Exrs. 796. statutes of liis own State, and local
7. Richardson v. N. Y. Central R., decisions in construction of thr- same.
98 Mass. 85; Whitford v. Panama R., The riglit of a representative to sue
2.3 N. Y. 465; Glass v. Howe II, 2 I^a. under modern statutes, such as we
CO. liave denoted in this and the preeed-
8. Stat. 9 & 10 Vict. c. 93; Wms. ing section, does not necessarily de-
E-xrs. 797, and note by Perkins. The pcnd upon the question whether the
1288
CHAP. II.] COLLECTION OF THE ASSETS. § 1284
The broad underlying principle of all such legislation is to
render persons liable in damages for inflicting an injury wan-
tonly or negligently, whether the innocent sufferer by such tort
dies before recovering recompense or not, and whether death en-
sues instantaneously or later. If the local statute gives the dam-
ages for a wrongful death to widow and heirs it is no part of the
estate in the representative's hands as assets.^
§ 1284. The same Subject; Actions founded on Wrongs done to
Real Estate, etc.
Actions founded on wrongs done to the freehold during the
decedent's life did not, as we have remarked, survive at the com-
mon law.^ Hence, the personal representative could not maintain
trespass, q. c. f., nor sue for merely cutting down trees or for com-
mitting waste on the decedent's real estate during his lifetime.*
Nor could he sue for diverting a water-course, obstructing lights,
and the like.^ But this left injuries to a decedent's real property,
committed during his life-time, wholly unredressed. Hence, the
English statute 3 & 4 Wm. IV. c. 42, § 2, reciting this palpable
injustice, enacts that executors and administrators may, within a
year after a decedent's death, bring actions for any injury to
his real estate committed within six months before his death.*
deceased left a wife or family, but Iowa (title to fund taken in trust
upon the common-law right of the in- by the representative for the benefit
jured person to sue if he were living, of widow and children).
See Quin v. Moore, 15 N. Y. 432. The 1. Supra, § 1279.
cause of action where death was 2. Williams v. Breedon, 1 B. & P.
caused by another's wrong, abates 329; supra, §§ 1024, 1279.
upon the death of the wrong-doer. 3. Wms. Exrs. 793; 1 Saund. 217,
Hegerich v. Keddie, 99 N. Y. 258, 52 note; Kennerly v. Wilson, 1 Md. 102.
Am. Rep. 25, 1 N. E. 787; Boor v. A representative cannot bring an ac-
Lowrey, 103 Ind. 468, 53 Am. R. p. tion on the ease for overflowing the
519; § 1370, post. lands of the decedent during the lat-
9. Though under various local stat- ter's lifetime. McLaughlin v. Dorsey,
utes the suit is brought pro forma by 1 Har. & M. 224; Chalk v. McAlily,
the representative. See supra, § 10 Rich. 92.
1211; 132 P. 121, 23 Idaho, 642. Cf. 4. Wms. Exrs. 795, 796.
Flynn v. Chicago R., 141 N. W. 40-'
1289
§ 1285 EXECUTOKS AND ADMINISTKATOES. [PAKT IV.
And legislation in various parts of the United States upholds, in
more ample terms, tlie survival of actions to the personal repre-
sentative, for damage done to real as well as personal estate.^
Such damages when recovered by the personal representative
appear to belong fitly to the personal estate of the decedent;^ the
right of action and money compensation being, in essence, personal
and not real property.
§ 1285. Actions upon Covenants Real, etc.; Whether Represen-
tative may sue.
But the right of action on behalf of a decedent's real estate
has been denied to the personal representative in various instances,
on the principle that, the land having descended to the heirs or
vested in devisees, the right of action vests more appropriately in
them. Where a covenant is purely collateral and does not run.
with land, but its benefit, if unbroken, would pass to the rep-
resentative as personal estate, it would appear to follow the usual
rule of contracts as to sur^avorship ; that is to say, the right of
action for its breach passes, upon the death of the party, to his
executor or administrator, and constitutes personal assets.^ And
hence, it is held that for breach of a covenant not to fell or lop
off certain trees expressly excepted out of a lease of lands, the
lease having been granted by the decedent during his life, and
the breach occuring before his death, the lessee may be sued by
the personal representative.^ So, too, that the executor of a tenant
5. Mass. Pub. Stats, c. 165, § 1; 6. So provided in stat. 3 & 4 Wm.
Howcott V. Warren, 7 Ired. L. 20. An IV. c. 42; Wms. Exrs. 796.
action of tort for damages caused by 7. Supra, § 1279.
one's mill-dam may thus survive. 8. Raymond v. Fitch, 2 Cr. M. &
Brown v. Dean, 123 Mass. 254. T5wt IL 588. Unless the executor had the
not an action at law for fraudulent power to sue, observes Williams, all
representation inducing one to part remedy was lost, for tho tre"s b;'ing
with real estate. Legate v. Moulton, thus excepted from the demise, tlio
11.') Mass. 552. See, however, Cheney heir or devisee of the land, on which
V. Gleason, 125 Mass. 166, as to the the trees grew, could not su ■ for .a
equity rule. And cf. local statute. breach of covenant, whether incurred
1290
CHAP, II.] COLLECTION OF THE ASSETS. § 1285
far life may sue for the breach of a covenant to repair, incurred by
his lessee during the testator's lifetime.^ For, unless the case be
such that the heir or devisee alone could have sued, the personal
representative is the proper person to bring the action, if a suit
be maintainable at all.
But where the covenant runs with the freehold, the right to
6ue will pass to the heirs of the covenantee or his assigns, and
ithus in many instances to the exclusion of the executor or admin-
istrator ; as where breach is made of the covenant of warranty con-
tained in a conveyance.^ And it is observable that a covenant
running with the land may thus go to the heir, notwithstanding
the covenant does not mention the heir, but specifies inaccurately
the covenantee and his executor or administrator." According to the
earlier authorities, if a covenant rimning with the land was broken
during the lifetime of the testator or intestate, the executor or
administrator might sue upon it, — doubtless on the theory that
damages for such breach ought to be regarded as part of the de-
cedent's personal estate devolving upon him.^ This rule still
applies where the ultimate damage was sustained in the lifetime
of the ancestor; as where, for instance, he is actually evicted from
the land through the failure of the warranted title, or by some
before or after the death of the cov- for non-performance of a sealed agree-
enantee. Wms. Exrs. 807. ment to convey land is to be brought
9. Ricketts v. Weaver, 12 M. & W. by the personal representative and
718. And it is not needful that the not by the heir of the cotenantee.
executor in such a suit aver damage Watson v. Blaine, 12 S. & R. 131; 14
to his testator's personal estat'*. Am. Dec. 669. As to unlawful entry
Leases or chattels real, we are to and detainer, see 21 W. Va. 440.
observe, constitute personal property. Consult local statute. As to severed
being estates less than a freehold. property, such as hay, corn or fruit,
1. Touchst. 175; Wms. Exrs. 801. these are personal property, and as to
2. Lougher v. Williams, 2 Lev. 92. growing crops, implements and fix-
3. Lucy V. Levington, 2 Lev. 26; tures, see supra, §§ 1225-1227.
Com. Dig. Covenant B, 1; Wms. Exrs. An action to quiet title in, or to
801; Clark v. Swift, 3 Met. 390; 4 recover possession of a water right
Kent Com. 472 ; Burnham v. Lasselle, cannot be maintained by the personal
35 Ind. 425. An action for damages representative. 25 Colo. 360.
1291
§ 1286 EXECUTORS ajstd admixisteatoes. [paet IV.
breach of a covenant for quiet enjoyment.^ But the later English
decisions so far qualify the older rule on this point as to hold that
damage not ultimately sustained during the decedent's lifetime,
upon a covenant which runs with the land, is not to be sued upon
by the executor or administrator; and that even though a formal
breach of such a covenant may have occurred before the ancestor
died, yet if the ultimate and substantial damage w^as not until
after the ancestor's death, the real representative, and not the per-
sonal representative, becomes the proper plaintiff.^
Where a reversion is for years, the executor or administrator
is the proper party to sue on a covenant made with the lessor,
•whether it runs with the land or not.^
§ 1286. The same Subject; Breach of Covenant in Deed or Lease.
Executors and administrators may sue, therefore, upon breaches
of covenant under a deed relating to the realty which have oc-
curred during the life of the decedent, so as to impair his personal
estate ]' also upon covenants in an underlease carved out of a mere
leasehold estate.^ Whether breaches occur in a lease before or
after the lessor's death, the term of the lease continuing, the right
of action is in the executor or administrator; and this applies
to the covenant for payment of rent.^
4. Wms. Exrs. 801; Grist v. Holmes, 5 Halst. 20; Mitchell v. War-
Hodges, 3 Dev. L. 198. ner, 5 €onn. 497; Garfield v. Wil-
5. Wms. Exrs. 803, 804; Kingdom liams, 2 Vt. 327; Wilde, J., in Clari-:
V. Nottle, 1 M. & S. 355; King v. v. Swift, 3 Met. 390.
Jones. 5 Taunt. 418; 4 M. & S. 188. 6. Wms. Exrs. 808. Executor of
Weighty authorities in the United tenant for years comes expressly
States are against the decision of within the stat. 32 Hen. VIII. c. 34.
Kingdom v. Nottle, supra, and in sup- lb.
port of the doctrine that the breach 7. Knights v. Quarles, 4 ]\looro,
of a covenant against incumbrancrs is .532; Taylor Landl. & Ton. 459.
broken immediately l)y any subsisting 8. lb.
incumbrance; and, consequently, that 9. Taylor Landl. & Ten. § 459. See
the grantor or his jK'rsonal represen- § 1353, as to a representative's power
tafive may sue upon it. 4 Kent Om. to deal with leases. An action of
472; Hamilton v. Wilson, 4 Johns, ciectment abates on the deatli of the
72, 4 Am. Dec. 253; Chapman v. defendant. Farrall v. Shea, 66 Wis.
]202
CHAP. II.] COLLECTION OF THE ASSETS. § 128S
§ 1287. Action for disturbing Possession; Pew^ Lease, etc.
A pew being treated in some States as personal proper ty^ the
executor or administrator exercises the usual rights as to dispos-
ing of it or rendering it otherwise profitable to the estate. Be-
fore distribution of the estate he may occupy it himself or let
it, for the benefit of the estate ; and if strangers interfere with its
use or with his obtaining rent for it from others in his repre-
sentative character he may declare for an injury since the death
of his testate or intestate.^ Even where the law prevails that pew-
holders have an estate in the nature of a right of occupancy
subject to the superior rights of the society owning the fee of the
church, the same doctrine appears tenable, the heirs acquiescing,
unless it is shown that the property has been distributed to the
heirs, or at all events gone into their possession and control.^
So may the representative as such maintain quare impedit for
a disturbance in his own time, or ejectment upon an ouster after
'his testator's or intestate's death,^ where the latter had a lease
for years or from year to year.
§ 1288. In General, Personal Representative sues for Assets of
the Estate.
In general, a suit in law or equity to recover the personal assets
of an estate, must be brought by the personal representative.^ An
561, 29 Mo. 634. But after the death Johnson v. Pierce, 12 Ark. 599;
of a plaintiff, the suit may be revived Brunk v. Means. 11 B. Mon. 214;
in the name of the personal represen- Snow v. Snow, 49 Me. 159; Sears v.
tative, and rents and profits re- Carrier, 4 Allen, 339; Cheely v. Wells,
covered by way of damages. Roberts 33 Mo. 106; Howell v. Howell, 37
V. Nelson, 86 Mo. 21. Mich. 124; Woodin v. Bagley, 13
1. Perrin v. Granger, 33 Vt. 101; Wend. 453; Clason v. Lawrence, 3
1 Schoul. Pers. Prop. 158. Edw. 48; Pauley v. Pauley, 7 Watts,
2. lb. 159; Linsenbigler v. Gourley, 56 Pa.
3. Doe V. Porter, 3 T. R. 13; Cro. St. 166, 94 Am. Dec. 51; Middleton
Eliz. 207; 4 Co. 95 a; Wms. Exrs. v. Robinson, 1 Bay (S. C.) 58, 1 Am.
i878. Dec. 596; Davis v. Rhame, 1 M'c'^ord
4. Pope V. Boyd, 22 Ark. 535; Ch. 191; Baxter v. Buck, 10 Vt. 548;
Hellen v. Wideman, 10 Ala. 846; Webster v. Tibbits, 19 Wis. 438.
1293
§ 1289 EXECUTOKS A>'D ADJIINISTRATOKS. [pART IV.
order from the probate court or ordinary is not usually needed
for a representative to bring such a suit, unless perhaps it be
against the heirs.**
§ 1289. Suits, whether to be brought by Representative in his
own Name or as Representative.
As a general rule, the executor or administrator cannot sue
in his individual name for demands due in his decedent's life-
time to the estate which he represents, but must sue in his repre-
sentative character;^ while upon demands created since his de-
cedent's death the reverse holds true.^
But to this doctrine are apparent exceptions. Thus, an execu-
tor or administrator may sue m his own name, without declaring
his representative character, on a note given to him for the pur-
chase-money of goods sold by him belonging to the estate of the
decedent.'^ Or upon any negotiable note or other instrument which
he holds, whose tenor makes it payable to bearer;^ for possession
of such an instrument is sufficient prima facie evidence of title
to the holder. Or on a promissory note payable to himself indi-
vidually, which he has taken in settlement or compromise of a
debt or demand due the estate.^ And an executor or administrator
may in his own name sue to recover the price of personal property
sold by him at public or private sale.^ So has he been allowed
to bring an action of replevin for property of the deceased in his
own name.^ It may often be more convenient for the representa-
tive to sue individually in such instances, and he is not debarred
from so doing.
5. Jordan v. Pollock, 14 Ga. 145; Gilmore, 5 Ga. 56; Gunn v. Hodge,
Reid V. Butt, 25 Ga. 28. 32 Miss. 319; Catlin v. Underhill, 4
6. Tappan v. Tappan. 10 Fost. 50; McLean, 337.
Patchen v. Wilson, 4 Hill (N. Y.) 9. Lyon v. Marsluill, 11 Barb. 241;
57; Rogers v. Gooch, 87 N. ('. 442. Brooks v. Floyd, 2 McCord, 364; Hol-
7. Kline v. Gathart, 2 Penn. 491; combe v. Beach, 112 Mass. 450.
2 Harr. 164. See Appendix, post. 1. McGehee v. Slater, 50 Ala. 431.
8. EVans v. Gordon, 8 Port. (Ala.) 2. Laycock v. Olcson, 60 Til. 30.
346; Goodman v. Walker, 30 Ala. 3. Branch v. Branch, 6 Fla. 314.
482, 68 Am. Dec. 134; Oglenby v
1294
CIlAi'. II.] COLLECTIOK OF THE ASSETS. §, 1291
§ 1290. The same Subject; General Principle as to suing in Rep-
resentative's Individual or Official Name.
The common-law distinction, as laid down in some well-consid-
ered American cases, is this: Where the right of action accrued
to the testator or intestate in his lifetime, or to the executor or
administrator after the death of the testator or intestate, either
upon a contract express or implied, made with the testator or in-
testate, or for an injury done to the property of the testator or
intestate during his lifetime, the executor or administrator should
sue in his representative character. But where the right of action
accrues to the executor or administrator upon a contract made by
or with him as such, since the death of the testator or intestate, or
for an injury done to, or a conversion of, the property of the
testator or intestate in the hands or possession of the executor or
administrator after the death of the testator or intestate, the action
may and ought to be brought in the proper name of the executor
or administrator, but not as such,* This distinction does not ab-
solutely apply, however, as we have just seen, to suits upon nego-
tiable instruments, nor is it uniformly observed in the practice
of our States in other instances. And we should conclude that
the representative's right to sue, whether officially or in his own
name, is to a great extent optional on his part, or else detennined
by the tenor of the instrument sued upon.^
Where the executor or administrator sues on a non-negotiable
contract made with his testator or intestate, he must, under such
a rule, sue necessarily in his representative character, although the
time for payment or performance had not arrived when the testa-
tor or intestate died.^
§ 1291. This Principle applied in suing for Torts affecting the
Property.
WTiere goods and chattels which belonged to the decedent at the
4. Stewart v. Richey, 2 Harr. 164; Briggs, 17 Vt. 176; Carlisle v. Bur-
Kline V. Gathart, 2 Penn. 491. And ley, 3 Greenl. 250.
spe Thornton v. Smiley, 1 111.. 13; 5. See 61 S. E. 959. 80 S. C. 432.
Patchen v. Wilson. 4 Hill, 57; Carter 6. Bronson, J., in Patchen v. Wil-
V. Estes, 11 Rich. 363 ; Manwoll v '^on, 4 Hill, 57.
1295
§ 1291 EXECUTORS ATs'D ADMIXISTRATOES. [PAET IV.
time of his deatli are afterwards tortiouslj taken or wrongfully
converted, the personal representative may sue in his own name
without calling himself executor or administrator; for the prop-
erty vested in him on the death of his testator or intestate, and
hence the wrong may be considered as done to himself.^ And
such is the special property of the executor or administrator in
the decedent's goods and chattels, as a title he may assert or not,
that according to the better opinion the personal representative
has the option, when he sues in damages for the tort thus com-
mitted, either to sue in his own representative capacity and de-
clare as executor or administrator, or to bring the action in his
own name and in his individual character.^ Not only may trover
or trespass be maintained, and other actions of tort upon this prin-
ciple, but likewise replevin.^
An action may be brought by the personal representative in
his own name, accordingly, notwithstanding the tort was com-
mitted after the death of the testate or intestate, and before letters
were issued or a probate granted ;^ and, we may add, whether the
representative was ever actually possessed of the goods or not.^
In suing thus, in an action of trover, the executor or admin-
istrator may, if he bring the action in his own representative
name, either allege that his testator or intestate was possessed
of the goods, and the defendant, after his death, converted them,
or that he himself was possessed as such executor or administra-
tor, and the defendant converted them.?
7. Patchen v. Wilson, 4 TTill, 57, ing away the goods of the decedent.
58; Carlisle v. Burley, 3 Greenl. 250; Snider v. Croy, 2 Johns. 227.
Sinis V. Boynton, 23 Ala. 353, 58 Am. 1. Wms. Exrs. 87fi; Bollard v. Spen-
Dec. 296; Skelheimer v. Chapman. 32 cor, 7 T. R. 358; Hollis v. Smith, 10
Ala. 676; Ga^e v. Johnson, 20 Miss. East, 294; Ham v. Henderson. 50 Cal.
437. 369; Wms. Exrs. 630. 637, 877.
8. Bollard v. Spencer, 7 T. Tl. 358; 2. Hollis v. Smith, 10 East, 294;
Hollis V. Smith, 10 East, 295; Ham Valentine v. Jackson, 9 Wend. 302.
V. Henderson, 50 Cal. 367. Buller, J., in Cockerill v. Kyiiaston.
9. Branch v. Branch, 6 Fla. 314. 4 T. R. 281, is overruled on this point.
Tliere may be trespa.H.s for wasting Wms. Exrs. 876.
end destroying as well as for carry- 3. Wms. Exrs. 877. Tlie perwonnl
' representative, cither as such or in
1296
CHAr. 11.]
COLLECTION OF THE ASSETS.
§ 1292
§ 1292. Suits on Contracts made with the Representative.
Upon a contract expressed or implied, made with tlie executor
or administrator as such, after the death of his testator or intestate,
the action may be brought by the representative in his own name;*
though the opinion best sanctioned by English and American au-
thorities is, that he may elect to sue either in his individual or
iiis representative capacity.^ As upon a contract made with ref-
erence to the sale or disposition of particular assets, or to recover
the price thereof.® Or for money lent by him as executor or ad-
nainistrator.'^ And in various cases where assumpsit is maintain-
able for recovering money paid by the representative to the use of
the defendant.^
It is observable that contracts made by a representative bind him
individually; and yet that of such contracts, some may be within
the clear scope of one's official authority and some without it; and
hence, perhaps, is a source of confusion in drawing the line. Were
the contract clearly without the scope of his representative ca-
pacity, he would probably be compelled to sue upon it as an indi-
vidual, if he could sue at all.
On all causes of action, therefore, accruing after the decedent's
his own name, may sue the sheriff for
the escape of one in execution on a
judgment recovered by him in his rep-
sentative capacity. Bonafous v. Wal-
ker, 2 T. R. 126; Crawford v. Whit-
tal, Dougl. 4, note.
4. Stewart v. Richey, 6 Harr. 164.
and other cases, supra, § 1290. Other-
wise where the contract was made
with the testator or intestate himself.
lb.
5. Wms. Exrs. 878, and Perkins's
note.
6. Evans v. Gordon, 8 Port. 346;
Oglesby v. Gilmore, 5 Ga. 58; Lay-
cock V, Oleson, 60 111. 30; Gunn v.
Hodge, 32 Miss. 319; Gr.odman v.
"Walker. 30 Ala. 482, 68 Am. Dec.
134; Catlin v. Underbill, 4 McLean,
337; Patterson v. Patterson, 59 N. Y.
574, 17 Am. Rep. 384; Haskell v.
Bowen, 44 Vt. 579; Eagle v. Fox, 28
Barb. 473; Peebles v. Overton, 2
Murph. 384; Mosman v. Bender, 80
Mo. 579.
7. 3 B. & Aid. 365; Gallant v.
Bouteflower, 3 Dougl. 34.
8. 3 B. & Aid. 365; Ck)well v.
Watts, 6 East, 405; Ord v. Fenwick,
3 East, 103; Wms. Exrs. 879. And
see 132 N. Y. S. 1033 (executrix
carrying on decedent's business) ;
Norton v. Lilley, 96 N. E. 351, 210
Mass. 214 (suing for misfeasance, an
attorney) who was employed in set-
tling the estate).
82
1297
§ 1293 EXECUTOES AND ADMINISTRATORS. [PART IV.
death and included within the scope of his official powers, the
preferable rule is that an executor or administrator may sue, either
in his own individual or his representative capacity, at his option f
and it is well established by the later cases that this option may be
exercised by the personal representative wherever money recov-
ered upon the contract made with him will be assets,^ though some of
the older cases appear to have insisted strenuously that he must
sue as an individual.^
§ 1293. Suit by Representative on Promissory Note or Other
Negotiable Instrument.
With respect to negotiable instruments, there are various de-
cisions, pointing to the conclusion that if a bill be indorsed to
A. B. as executor, he may declare accordingly in suing the ac-
ceptor;^ and that an executor or administrator may sue as such on
a promissory note given to him in that capacity after the death
of his testate or intestate.* Also, that upon an instrument pay-
able to the deceased by name or his order, and coming to the
hands of his executor or administrator, the latter may sue In
his representative character.^
Upon a bill, note, or other negotiable instrument, which by
suitable indorsement, or according to its original tenor, becomes
payable to the bearer, the executor or administrator who holds it,
may, undoubtedly, like any " bearer," sue in his own name.^ And
9. Mowry v. Adams, 14 Mass. 327; 3. King v. Thorn, 1 T. R. 487; 10
Merritt v Seaman, 6 Barb. 330; Bing. 55.
Knox V. Bigelow, 15 Wis. 415; Law- 4. Partridge v. Court, 5 Price. 412;
son V. Lawson, 10 Gratt. 230, 80 Am. s. c, 7 Price, 591; Wms. Exrs. 880.
Dec. 702. 5. Murray v. E. I. Co., 5 B. & Aid.
1. Wms. Exrs. 881, and cases cited; 204. And see Baxter v. Buck, 10 Vt.
Abbott V. Parfit. L. R. 6 Q. B. 346; 548; Litchfield v. Flint. 104 N. Y.
Heath V. Chilton, 12 M'. &. W. 637; 543, 11 N. K. 58.
Cowell V. Watts, 6 Ea.st, 410; Boling- 6. Ilolcombc v. Beach. 112 Mass.
broke v. Kerr, L. R. 1 Ex. 222; Bogs 450; Lyon v. Marshall. 11 Barb. 241;
V. Bard, 3 Rawle, 102. Brooks v. Floyd, 2 MeCnrd, 364; San-
2. 10 Mod. 315; 3 B. & P. 11 ; Wm'<. ford v. McCroody, 28 Wis. 103; Rit-
Exrs. 881. tenhouse v. Annerinan, G4 Mo. 107.
1298
CHAP. II.] COLLECTION OF THE ASSETS. § 1204
he may sue in his own name on a promissory note payable to
himself individually, which he takes upon a transaction made with
himself in the course of settling the estate, and in general on a
note given him in the course of his own dealings with the estate.^
If payable to him individually or as bearer, his suit in his own
name follows the familiar rule applied to negotiable instruments.
And even if specifically payable to A. B., described as executor or
administrator, he will not be required to prove his fiduciary char-
acter, for the words descriptive of such character in the instrument
may here be regarded as immaterial.^
Our conclusion, therefore, is that where the personal repre-
sentative receives a negotiable instrument whose avails when col-
lected will be assets belonging to the estate, he may prosecute not
only in his own right, but (though it be given to him after the
decedent's death) at his option in his representative character in-
stead.*
§ 1294. General Conclusion as to Suing upon Contracts in the
Individual or Representative Character.
The principle of those ojder cases which insisted upon one's
individual suit, appears to have been that the executor or admin-
istrator, by the contract made with himself, changed the nature
of the debt originally due to his testate or intestate; and it was
thought that if this were done the representative ought to sue for
the new debt in his own name, and not in his representative char-
acter.^ It would seem still, according to English authority, that if
the executor or administrator plainly changes the nature of the
7. Laycock v. Oleson, 60 111. 30; intestate. Baxter v. Buck. 10 Vt.
Evans v. Gordon, 8 Port. 348, and 548. See § 1408, for applieation of
other cases cited supra, § 1292. this principle to administration de
8. Laycock v. Oleson, 60 111. 30. bonis non; Barron v. Vandvert, 13
9. An administrator in his rcpre- Ala. 232; Catherwood v. Chabaud, 1
senfcative capacity may sue as bearer B. & C. 150.
on a note payable to tlie intestate or 1. Wms. Exrs. 881; 10 Mod. 315;
bearer, although such note was not Helm v. Van Vleet, 1 Blackf. 342.
delivered until after the death of the
1299
§ 1295 EXECUTORS A:srD ADMINISTEATOES. [pAET IV.
debt, as bv takiug a bond from a simple contract debtor, tlioiigli
the bond be given to him as executor or administrator, the creation,
of a new personal obligation of a higher nature precludes his
suit in the representative capacity upon such an instrument." But
"wc may question the reasonableness of the exception, and prefer
to extend the modern doctrine of a representative's option to such
a case; for courts should lean against a judicial construction which
tends to deprive a plaintiff of just remedies, by leaving him in a
perilous dilemma as to the fonns he should pursue.
§ 1295. Prosecution of Suits in Equity by the Personal Repre-
sentative.
The executor or administrator of a deceased party may, in re-
spect of the transmission of the interest to him, be admitted as his
representative in a suit in equity. Formerly a bill of revivor was
necessary; but modem chancery practice, aided by the legislation
of later times, favors a continuance of the suit by a mere order
to revive, the representative appearing or being summoned to
prosecute or defend.^
All equitable interests of the deceased, in the nature of assets,
are justly enforceable in a court of equity by the executor or ad-
ministrator suing in his representative capacity. Thus, a bill
in equity will lie by an executor or administrator against the
general agent of his testate or intestate for a discovery and an
account of the latter's transactions with his principal ;* or for
discovery of the personal estate of the deceased f (though, in this
respect, local statutes in the United States prefer an inexpensive
2. Wms. Exrs. 882; Price v. Moul- Pub. Stats, c. 165, § 19; Egremont v.
ton, 10 C. B. 561; Partridge v. Court, Thompson, L. R. 4 Ch. 448. Sec tlie
5 Price, 419. statutes of the respective States for
On this general subject, the prac- the modern chancery practice in rela-
titioner should consult his local code, tion to reviving suits in equity.
3. Wms. Exrs. 890; Daniell Pract. 4. Simmons v. Simmons, 33 Gratt.
785; 15 & 16 Vict. c. 86, § 52; Cbenny 451.
V. Gleason, 125 Mass. 166; Mas'^. 5. 1 Vern. 106.
1300
CHAP. II.] COLLECTION OF THE ASSETS. § 1296
summary proceeding in the probate court against persons suspected
of concealing or embezzling the property^) ; or to compel a legatee
to refund a legacy on good reason, such as a deficiency of assets ; "^
or, similarly, for reimbursement of sums paid to creditors beyond
personal assets;^ or to restrain a receiver of letters from the de-
cedent from publishing them f or to procure title to specific assets
which stand through some fraud or mistake in another's name, so
that he cannot assert his rights at law.^
§ 1296. Proceedings to obtain Possession of Specific Negotiable
Instruments, etc., belonging to the Estate.
Where notes or other negotiable instruments against various par-
ries, which belonged to the decedent, and were formerly held by
him, have come into the hands of a third party under an indorse-
ment and delivery fraudulently obtained, the representative has
the right to sue for their value at law, as for a tort. But he may,
instead, proceed to obtain the specific instruments; and where
replevin does not furnish an adequate remedy, he may bring a
bill in equity to compel the delivery of the specific instruments
to himself, and to restrain the holder from prosecuting suits at
law upon such instruments, or parting with their possession ; join-
ing as parties to the bill those indebted upon the instruments. He
should elect, however, whether to proceed thus for the specific
chattels incorporeal, or to sue for their value.^
6. Stipra, § 1270. Mass. 166. See, further, Rice v. Rice,
7. Doe V. Guy, 3 East, 123. 107 Mich. 241, as to assignment of a
8. Williams v. Williams, 2 Dcv. Ch. mortgage under an implied reserva-
69, 22 Am. Dec. 729. tion of interest. No relief is afforded
9. Tliompson v. Stanhope, Ambl. in equity on the ground of mistake,
737; Queensbury v. Shebbeare, 2 where the representative was cul-
Eclen, 329. And see 2 Story Eq Jur. pable. Stewart v. Stewart, 31 Ala.
§ 946 et seq.; Wms. Exrs. 1901. As 207.
to prosecuting a bill in equity to re- 1. Burrus v. Roulhac, 2 Bush, 39.
cover land or its specific avails, still 2. Sears v. Currier, 4 Allen, 339.
held by a party to a fraud upon the And see Morton v. Preston, 18 Mich,
decedent, see Cheney v. Gleason, 125 60, 100 Dec. 146.
1301
§ 1297 EXECUTOES AND ADMINISTEATOKS. [PAKT IV..
§ 1297. Pursuit of Assets where Decedent fraudulently Trans-
ferred.
The representative's duty in pursuing assets extends to all assets
of the decedent which are applicable to the payment of debts.^
Not only may he in some instances set up fraud to defeat the
decedent's own act, but he may institute proceedings for setting
aside a fraudulent transfer made by the decedent; and if he ne-
glects doing so, to the injury of creditors and others concerned in
such, assets, he renders himself liable as for other malfeasance or
non-feasance in the performance of his trust, and under like limi-
tations.*
The executor or administrator may consequently maintain an
action at law, or a suit in equity, for the purpose of setting aside
a transfer or conveyance of personal property made by his de-
cedent for the purpose of defrauding his creditors, notwithstand-
ing the decedent himself would have been barred.^ For a personal
representative is not estopped by the acts and conduct of his testa-
tor or intestate under all circumstances ; but is boimd to settle the
estate as justice and the interests of all concerned, in their turn,
may demand. And in bringing such proceedings he should use
due diligence.®
3. Welsh V. Welsh, 105 Mass. 239. Gibbens v. Peeler, 8 Pick. 254; Jud-
4. f^vpra, § 1220; Wms. Exrs. 1679, son v. Connolly, 4 La. Ann. 169; Mor-
and note by Perkins; Cross v. Brown, ris v. Morris, 5 Mich. 171; Brown v.
51 N. H. 488; Lee v. Chase, 58 Me. Finley, 18 Mo. 375; McKnight v.
436; Danzey v. Smith, 4 Tex. 411. Morgan, 2 Barb. 171; 55 Ohio St.
But the representative should usually 294, 45 N. E. 316.
bring proceedings specially to recover 6. Andrew v. Hindernian, 71 Wis.
property fraudulently transferred by 148, 36 N. W. 624. See, further, 90
the decedent. He cannot, it is said, S. W. 848, 77 Ark. 60; 88 N. W, 452,
avoid a contract made by the deced- 115 Iowa, 238, 91 Am. St. Rep. 165;
ont on the ground that it was made' Wriglit v. Holmes. 62 A. 507, 100 Me.
in fraud of creditors. See Pringle v. 508, 3 L. R. A. (N. S.) 769; Lynch
McPherson, 2 Desau. 524. But cf. v. Murray. 83 A. 746, 86 Vt. 1; Dan-
cases cited above. iels v. Spear, 117 P. 737, 65 Wash.
6. Martin v. Root, 17 Ma^ss. 222; 121.
1302
CHAP. II.] COLLECTIOiN OF THE ASSETS. § 120 'J
§ 1298. Representative's Power to Compromise or Arbitrate.
As incidental to the power to sue and collect, the executor or
administrator ought to have a right to arbitrate or compromise
any demand of the decedent which he represents, provided he act
within the range of a reasonable discretion as to the true interests
of the estate.^ Nevertheless, as will hereafter appear, the re-
sponsibility is a perilous one, according to numerous authorities,
unless reduced by express statute.^ Of course he cannot give away
so as to deprive beneficiaries, nor make a collusive and fraudulent
settlement.^
§ 1299. Effect of Contract or Covenant to the Decedent, which
did not name his Executors, Administrators, etc.
A contract or covenant which confers a valuable right or cause
of action, is well expressed to be for the benefit of " A^, his execu-
tors or administrators," or with some similar expression, for its
intent then is plainly not limited to a recovery by A. in person.
But, on the other hand, a limitation of the benefit to A. in person,
and that its enjoyment shall depend upon the precarious tenure
of his life, is not to be presumed ; though every contract or cove-
nant should be interpreted according to its plain or natural sense
as being founded in personal considerations or the reverse. Hence,
where a cause of action accrued in the lifetime of the decedent on
a contract or covenant made to him without naming " executors
or administrators," such cause of action, generally speaking, will
pass nevertheless to the personal representative for the benefit of
the estate.-^ And even though, because of the terms of such con-
tract or covenant, as, for instance, in requiring performance at a
•future date, the cause of action did not actually accrue or become
7. The right to arbitrate exists in- Scully v. Scully, 94 N. E. 195, 201
dependently of statute, and an award N. Y. 61.
need not follow the statute mode. 9. Flynn v. Chicago R., 141 N. W.
Wamsley v. Wamsley, 26 W. Va. 45. 401 (Iowa) ; 159 S. W. 962, 155 Ky.
8. See Wms. Exrs. 1799-1801; c. 5, 415.
pout, §§ 1386, 1387; Slusher v. Wei- 1. Wms. Exrs. 789, 884; supra^
ler, 151 S. W. 684, 151 Ky. 203; §§ 1277, 1278.
1303
§ 1300 EXECUTOKS AND ADMIXISTKATOES. [PART IV.
enforceable until after the decedent died, the executor or admin-
istrator is not precluded from enforcing it at the proper time.'
§ 1300. The same Subject; Effect where the Expression "As-
signs," " Next of Kin," " Heirs," etc., is used.
The effect is the same usually where the expression '' A. or his
assigns " is used exclusively or in connection with a reference to
executors or administrators. For where the scope of such a con-
tract favors such intendment, as it usually does, the executor or
administrator is assignee in law and entitled. Hence, if money
be payable to " A. or his assigns," the executor or administrator
may generally recover upon the promise.^ So, too, where the agree-
ment was to pay money or deliver goods to "A. or his assigns "
by a certain day ; or to grant a lease to "A, and his assigns " before
Christmas. And this, notwithstanding the intervening death of
A. ; inasmuch as his legal assignee is not by such circumstance pre-
cluded from enforcing the right, unless it was plainly personal to
A. and conditioned upon his life.^
But it is different where, on the other hand, by '' assigns " was
evidently meant an assignee in fact.^ And, generally, where A.
has, in exercise of his right of dominion, assigned and transferred
the cause of action during his life to some third person, the title
has been so diverted as not to be transmissible legally to his ex-
ecutor or administrator.
So truly, indeed, is one's executor or administrator his most ap-
propriate representative or assignee in law ypon his death, in obli-
gations not actually assigned by the decedent, nor plainly intended
2. Wms. Exrs. 884; § 1304. pofit, as 5. As whore the condition of a bond
to rights accruing aftor decedent's was to pay a certain sum to such
(Ifath; Plowd. 286; 2 P. Wms. 467. person as the obligee should by his
Thus, where money is expressly " pay- last will in writing appoint it to be
able to B.," his executor or admiiiis- paid; and tlie obligee died making no
trator may sue for it. Tb. .sucli aj){)ointment by his will. For
3. Wms. Exrs. 789; Went. OfT. Ex. liere the intent evidently was to pay
215; Hob. 9; 1 Leon. 318. to an apjxtintee, not to an executor.
4. Plowd. 288; Wms. Exrs. 884, Ilob. 9; Wms. Exrs. 886.
885; Went. OfT. Ex. 14th ed. 215.
1304
CHAP. II.] COLLECTION OF THE ASSETS. § 1301
to cease or devolve in title differently, that the word " heirs " or
" next of kin," introduced into the language of an agreement, vpill
not confer upon such parties the right to pervert assets to their own
use, nor to supersede or participate in the lawful functions of the
personal representative whom the law clothes with authority to
settle and wind up the estate.®
§ 1301. Right of Representative to distrain or sue for Rent in
Arrears.
Where a lessee for years underlets the land and dies, his personal
representative may distrain at common law for the arrears of rent
which became due in the lifetime of the deceased ; because these ar-
rears were never severed from the reversion, but the executor or ad-
ministrator has the reversion and the rent annexed thereto, in the
same plight as deceased himself had it.''^ And statute 32 Hen. VIII.
c. 37, extended this remedy to the executors and administrators of
persons seized of various other interests in land short of an inherit-
ance, such as an interest for one's own life or for another's life; *
and, moreover, to the executors and administrators of tenants in
fee.^ Hence the personal representative became permitted gener-
ally to distrain for arrears of rent due the decedent in his lifetime.^
But distress for rent is a remedy now abolished in various parts
of the United States. And doubtless, for arrears of rent, which,
consistently with the doctrine of apportionment, belongs to the es-
tate of a decedent, as assets, his personal representative may sue,
as a living landlord might have done.^
6. 11 Vin. Abr. 133, pi. 27; Wms. extends the right to distrain to a de-
Exrs. 787; Carr v. Roberts, 5 B. & raise for any term or at will. Wms.
Ad. 78; supra, § 1277. Exrs. 931. And see stat. 4 Geo. TI.
7. 1 Roll. Abr. 672; Latch. 211; c. 28; Taylor Landl. & Ten. § 560.
Wms. Exrs. 927. 1. As to apportionment of rent, sea
8. Co, Lit. 162 a; Wms. Exrs. 923- supra, § 1216. And see Wright v.
931; 1 Ld. Raym. 172; 1 Frceni. Williams, 5 Cow. 501.
392. 2. As to ejectment, etc., see §§
9. lb. Stat. 3 & 4 Wm. IV. c. 42, 1509-1512, post.
1305
§ 1304 EXECUTORS AICD ADMINISTEATOKS. [pAKT IV.
§ 1302. Rights of Personal Representative upon Conditions made
with the Deceased.
In general, a condition stipulated with tlie deceased may enure
to the benefit of the estate through the personal representative.
Thus, to quote the old books, where cattle, plate, or other chattels
were granted by the testator upon condition that if A. did not pay
such a sum of money, or do some other act as the testator appointed,
etc., and this condition is not performed after the testator's death,
now is the chattel come back to the executor, and he may maintain
an action respecting it.^
On the other hand, a representative may be charged with chattels
which he failed to turn over to the estate in accordance with his
own contract made with his decedent in the latter's lifetime.*
§ 1303. Right accruing to Personal Representative by Chattel
Remainder, etc.
A right to sue, which never existed in the testator or intestate,
may likewise accrue to the executor or administrator by chattel re-
mainder. As where (to cite the old books again) a lease is made
TO B. for life, the remainder to his executors for years ; or where a
lease for years is bequeathed by will to A. Although B. never had
the term in it, nor the right to sue while he lived, yet the term shall
devolve on his executors, who may maintain an action in respect
of it.5
§ 1304. Right accruing to Personal Representative in his Time
and after the Decedent's Death.
Besides the instances just noticed, of rights accruing by condi-
tion, remainder, etc., to the executor or administrator, there are
others analogous where the deceased himself could not have sued,
because of the peculiar tenor of the contract or covenant in ques-
tion and the date of his death, and yet the right of action would ac-
3. Went. Off. Ex. 14th od. 181; 6. Went. Off. Ex. ]4tli ed. 181,
Wms. Exrs. 886. 189; Co. Lit. 54 b; Wms. Exrs. 897,
4. More's E.state, 121 Cal. 609. 885.
1300
<:irAP. ir.] collection of the assets. § 1305
erne to the representative in bis time. That the right of action did
not accrue to the testator or intestate himself, is not fatal to the
right of his representative ; but the right itself being valuable, the
representative may avail himself of it at the proper time.
Thus, as the old books state, if A. covenants with B. to make him
R lease of certain land by such a day, and B. dies before the day,
and before any lease made, if A. refuse to grant the lease, when the
day arrives, to the executor of B., the executor shall have an action
as such on the covenant. And where the father, in an early case
cited by the English court of chancery, possessed of a term for
years and renewable every seven years, assigned this lease in trust
for himself for life, remainder in trust for the son, his executors,
administrators, and assigns ; and the father covenanted to renew
the lease every seven years as long as he should live; and the son
<lied and the seven years passed, upon which the executors of the
son brought a bill to compel the father to renew the lease at his own
expense; the decree was made accordingly.® So upon a covenant to
grant a lease to A. before Christmas ; or upon a contract to deliver
a horse to A. on a given day ; ^ or upon an agreement to stand to
the award of certain persons, whose award was to pay unto A. by
a certain day ; notwithstanding A. dies before the time appointed,
the promise confers a valuable right upon which A.'s executor or
administrator may recover as assets for the benefit of the estate
and compel performance.^
§ 1305. Rights of Personal Representative as to Pledge, Collat-
eral Security, etc.
It was formerly said that where no time was limited for the re-
6. Husband v. Pollard, cited 2 P. the effect of the word " assigns," see
Wms. 467. supra, § 1300.
7. 1 Leon. 316; Plowd. 288; 8. The representative may sue as
Wcntw. Off. Ex. 215; Wms. Exrs. "owner" within the statute, for the
884, 885. There is no necessity for negligent killing or injuring of live
naming "A. his executors or adminis- stock of the estate by a railway. 84
trators," etc., in such contract or Iowa, 664.
covenant. See supra, § 1299. As to
1307
§ 1305 EXECUTOES ATv^D ADMIXISTEATOES. [pAKT IV.
demption of a pledge, the pledgor had his whole lifetime to redeem
unless quickened bv a notice in pais, or through the intervention
of a court of equity.^ But our modern rule of limitations regards
a barrier of years rather than the uncertain duration of one human
life; and hence lapse of time, irrespective of life or death, affords
the true test; subject to which restriction, the right to redeem will
pass to the personal representative of the deceased pledgor/ The
death of the pledgee does not impair the pledgor's right to redeem,
for tender may be made to the executor or administrator of a de-
ceased pledgee.^
If a time be limited for payment of a debt and the redemption
of the pledge or collateral security given, and the pledgor die be-
fore the appointed time, his executor or administrator may redeem
in his stead at the day and place agreed upon.^
A pledge of property belonging to the estate, though it were to
secure the person who provided the funeral, cannot avail against
the decedent's personal representative when made by intermcddlers
in the assets and without authority from him ; but should the rep-
resentative have sanctioned or participated in the pledge, he cannot
feo repudiate the transaction afterwards as to be absolved of liabil-
ity.* The personal representative's pledge of assets for his private
debt is, of course, a misappropriation, and such assets may in gen-
eral be recovered without repaying the loan.^ An executor's or ad-
9. 2 Kent Com. 582; Story Bailm. to have prevailed where the represen-
§§ 345-348, 362; 1 Bulst. 29; Bac. tative redeemed with his own funds,.
Abr. Bailment, B. Wms. Exrs. 16G1; Wentw. Oil'. Ex,
1. Schoul. Bailm. § 250; Cortolyou ISfi, 1S7.
V. Lansing, 2 Cain, 200; Perry v. 4. Jones v. Logan, 50 Ala. 493, If
Oaig, 3 Mo. 516; Jones v. Thurmond, not at the time qualified for the of-
5 Tex. 318. fice, he is nevertlieless estopped, it
2. Schoul. Bailm. § ?'50; Story would appear, by his own wrong,
Bailm. §§ 345-348. tliough not to the injury of the estate;
3. Bac, Abr, Bailment, B; Wentw. but proof of his presence and passiv&
OfT. Ex. 181; Wms. Exrs, 886. In assent does not, it is held, sufiiciently
equity the value of the property, be- charge him. lb. See. further, § 1349,
yond the money paid for it, shall be- foi^t.
long to the estate; though in law a 5. State v. Berning. 74 Mo. 87. As
somewhat different doctiine app ars to the righta of a bona fide pledgee in
1308
CHAP. II.] COLLECTIOX OF THE ASSETS. § 1307
ministrator's duty to redeem a pledge follows the rule of prudence ;
for if the estate he represents is to be worse by such redemption,
the preferable course seems to be, to let the secured creditor avail
himself of the pledge and stand on the usual footing of creditors
for his balance.^
§ 1306. Collection of Debts with Security; changing or renew-
ing the Security,
Debts with mortgage or other security may be collected on ma-
turity and the security discharged ; or, if the debtor prove delin-
quent, the security may be enforced for the benefit of the estate.
So, too, if the representative act fairly and with becoming pru-
dence, the security may be renewed or changed while the debt re-
mains outstanding ; but to give up good security and leave the claim
insufficiently secured, is an act of imprudence, and may charge the
representative personally.' Loans upon security are often treated
as permanent investments, and accordingly are sold and transferred
instead of being called in.^
§ 1307. Gathering the Crop or Emblements.
Since growing crops on the land of the decedent are assets, the
personal representative has a right to enter and take them, for he
is accountable therefor. This right of entry and possession cannot
be divested by any legal strategem so as to deprive one's executor
or administratxDr of his right to gather the crop ; and if interrupted
in the reasonable exercise of his right by any third person, he may
oppose him by force, or, if forcibly molested, may have the offender
indicted.'
such cases, see Schoul. Bailm. § 219; 27 S. E. 648, 50 S. C. 169; Gardner's
c. 4, post. Estate, 49 A. 346, 199 Penn. 524.
6. See payment of claims. § 1430; 8. See next chapter as to invest-
Ripley v. Sampson, 10 Pick. 373. And ments, etc.
see Eidenmuller's Estate, Myrick 9. State v. Hogan, 2 Brcv. 347. See
(Cal.) 87. as to procuring an order from the
7. See Baldwin v. Hatchett, 56 Ala. probate court to sell or cultivate a
561; Mosman v. Bender, 80 Mo. 579; crop, McCormick v. McOormick, 40
1309
1308
EXECUTORS AXD ADiilXISTEATORS.
[part IV.
§ 1308. Want of Diligence or Good Faith in collecting Assets.
If the executor or administrator fails to use due care and dili-
gence in collecting and procuring assets, considering the means at
Ms disposal, lie will be held liable for their full value. As where
he receives notes not shown to be desperate, and makes no effort to
collect them.^ Good faith, too, should always characterize the rep-
resentative's dealings with the assets, in order to absolve him from
a strict personal liability for their value.-
Hence, an executor or administrator who has been guilty of
gross negligence or wilful default in failing to collect a debt due
the estate will be personally charged with the debt, and sometimes
with interest besides.^ But he is absolved, on the other hand,
whenever he can show that his conduct was such as a prudent man,
in the management of his own business, would have displayed, and
that he had made proper exertion to collect, and had acted in good
faith.''
Miss. 700. And see McDaniel v.
Johns, 8 Jones L. 414; § 1226, supra;
Alexander v. Herring, 55 So. 380, 99
Miss. 427 (statute).
1. Lowson V. Ck)peland, 2 Bro. C.
C. 156; aack v. Holland, 19 Beav.
271 ; Gates v. Whetstone, 8 S. C. 244,
23 Am. Rep. 284; Hall's Estate, 70
Vt. 458, 41 A. 508. See next chap-
ter as to the measure of a represen-
tative's liability; and as to whether
"slight diligence" or "ordinary dili-
gence " should be the standard. The
English doctrine inclines to the for-
mer test, and the American to the
latter. Sanderson v. Sanderson. 20
Fla. 292. Especially is the represen-
tative liable, when other circum-
Btances indicate a disposition biased
to the person of the debtor. 88 N". C.
416. Where the executor or adminis-
trator had good opportunity to suo
and attach property of the debtor, it
dnos not pxcusn liim that the debtor
was largely indebted to others. Mun-
den V. Bailey, 70 Ala. 53. And due
diligence must be used by an ancil-
lary administrator as to his collect-
ing, though there be another ap-
pointed in the place of domicile. 88
Ind. 110.
2. Whitney v. Peddicord, 63 111.
249. See next chapter.
3. Tebbs v. Carpenter, 1 Madd.
290; Wms. Exrs. 1806; vSchultz v.
Pulver, 3 Paige, 182; Brazoale v.
Brazeale, 9 Ala. 491; Brandon v.
Judah, 7 Ind. 545; Scarborough v.
Watkins, 9 B. Mon. 540, 50 Am. Dec.
528; Smith v. Hurd, 8 Sm. & M. 682;
Holcomb V. Holeomb, 11 N. J. Eq.
281: Charlton's Estnte. 35 Penn. St.
473; Sontliall v. Tnylor. 14 Gratt.
269; Oglrsby v. Howard. 43 Ala. 144;
19 Fla. 300.
4. Bryant v. Russell, 23 Pick. 546;
Moore v. Boauchamp. 4 B. Mon. 71;
Glover v. Glover. 1 McMull. Cli. 153;
1310
CHAP. II.]
COLLECTION OF THE ASSETS.
§ 1310
§ 1309. Collection of interest-bearing Debts ; Usury, etc.
Interest-bearing debts due the estate are to be collected, upon tbo
usual observance of diligence and good faith, with interest as well
as principal.^
§ 1310. What may be taken in Payment; Private Arrangements
with Debtor, etc.
Debts to be settled beneficially are usually to be paid in money
or its equivalent. But it is held no breach of trust for the personal
representative to receive as money that which, by the law of the
land, is declared to be lawful currency and a legal tender in pay-
ment of debts ; nor, thus receiving, is it obligatory upon him to ac-
count in coin for such assets.^
Bowen v. Montgomery, 49 Ala. 353;
Neff's Appeal, 57 Penn. St. 91; Gray
V. Lynch, 8 Gill, 403. The rule of
the text applies with its qualification
where the representative forbears su-
ing, takes security, etc., and the deb-
tor absconds or proves insolvent. See
Holmes v. Bridgman, 37 Vt. 28; Kel-
ler's Appeal, 8 Penn. St. 288, 49 Am.
Dec. 516. Or subjects the estate to
the liability of surety or endorser,
when there was a principal debtor to
pursue. Tuggle v. Gilbert, 1 Duv.
340; Chambers' Appeal, 11 Penn. St.
436; Utley v. Rawlins, 2 Dev. & B.
Eq. 438; Keller's Appeal, 8 "Penn. St.
288, 49 Am. Dec. 516. It is not cul-
pable negligence to omit suing a deb-
tor who is without means. 7 Gratt.
136, 160. A delay to press claims on
an administrator's part, because a
will is discovered whose production
for probate is expected, is indulg-
ently treated. Hartsfield v. Allen, 7
Jones L. 439. Undue delay causing
a loss to the estate is inexcusable.
Wilson V. Lineburger, 88 N. C. 416;
Anderson v. Piercy, 20 W. Va. 282.
A claim reduced by judgment may
nevertheless prove desperate. 61
Miss. 641.
Whether there should be some
proof of collection or negligence in or-
der to charge the executor or admin-
istrator, see 18 S. C. 1; 56 Vt. 254,
48 Am. Rep. 770.
5. § 1308. To charge the represen-
tative with receiving usurious inter-
est in fulfilment of the decedent's con-
tract with the debtor, it should be
shown that he accepted the money
with knowledge of the usury. Ossi-
pee V. Gafney, 56 N. H. 352.
6. Jackson v. Chase, 98 Mass. 286.
There are various cases, in the re-
ports of our Southern States, some-
what in conflict, which consider this
principle in connection with Confeder-
ate money issued during the conflict
of 1861. See Glenn v. Glenn, 41 Ala.
571; Copeland v. McCue, 5 W. Va.
264; Lagarde, Succession of, 20 La.
Ann. 148; Shaw v. Coble, 63 N. C.
377; Hendry v. Cline, 29 Ark. 414.
Fraudulently to permit the discharge
of a debt in such depreciated currency
1311
§ 1310 ESECUTOKS AIN^D ADMINISTEATOES. [PAKT IV.
Land should not be taken in payment of debts, if its proceeds
may be had instead; for a personal representative is not legally
capable of dealing with such property and transferring title in a
satisfactory manner.^ But receiving personal property of the deb-
tor or its avails or the proceeds of his real estate, in satisfaction
of the debt, or taking security, real or personal, for a future set-
tlement, may be not only prudent but highly advantageous in the
interests of an estate ; and the representative who deals thus with a
failing debtor, in the exercise of ordinary care and diligence, will
not be chargeable for such of the indebtedness as he fails eventually
to realize.^ To accept, however, in satisfaction of a manifestly
good and collectible claim, the assignment or transfer of property
comparatively worthless, betrays culpable negligence if not positive
dishonesty.^
A personal representative who is himself indebted to a debtor
of the estate, may, if he chooses, accept a discharge of his own debt
towards the payment due him in his fiduciary capacity; but, by so
doing, he makes himself answerable to the estate for the whole
debt so settled.^ If he receives a note or other security in his indi-
vidual right for a debt due the estate, he is liable over to the estate,
but the transaction as between himself and the debtor remains
valid.'
cannot be upheld. William? v. Skin- ceeds in paymont of debts apply in
ker, S5 Gratt. 507. But ho)ia fide favor of representatives. Frith v.
and prudent dealing should excuse Lawrence, 1 Paige, 434. And see 20
one. Hutchinson v. Owen, 59 Ala. W. Va. 282; 51 A. 44, 94 Md. 358.
326. Contra, see Opie v. Castleman, In general only the representative
32 Fed. 511. appointed can sue to recover assets of
7. Wier v. Tate, 4 Trcd. V.q. 204. tlie estate, and if he is careless or dis-
He is chargeable with the price al- honest in this respect he may ba
lowed by him for the lands unless called to account. But see Hillman
those entitled to the estate elect to v. Young, 129 P. 124, 64 Oreg. 73 (dis-
take it. lb. See Part VT., posf. tributoe). The representative may
8. Neflf's Appeal, 57 Penn. St. 01. execute a release, though he may
9. Bass V. Chambliss, 9 La. Ann. make liiniself liable for a drrofitavit.
376; Parham v. Stith, 56 Miss. 465; Caldwell v. McViekar, 12 Ark. 746.
Scott v. Atchison, 36 Tex. 76. Tlie 1. Alvord v. Marsh, 12 Alb n. 603
rules concerning application of pr 2. Biscoe v. Moore, 12 Ark. 77 ^
1312
CHAP. II.] COLLECTIOX OF THE ASSETS. § 1311
§ 1311. Liability where Property is taken or Money collected
by Mistake as Assets.
Where property is taken or money received by the representative,
through mistake, as assets, he must restore or refund to the party
rightfully entitled. Applying the same knowingly in course of ad-
ministration does not excuse him.^
§ 1311a. Effect of Payment, etc.
A bona fide payment, even to one appointed under voidable let-
ters which cannot be attacked collaterally, will discharge a debtor.*
Ross V. Cowdon, 7 W. & S. 376. The Johnson v. Brown, 25 Tex. 120. Se»
practice of selling claims against an 121 Cal. 609, 54 P. 97.
estate to bo used as offsets against 3. McCustian v. Ramey, 33 Ark.
debts due the estate is discounten- 141.
aneed by statute in some States. 4. 88 N. C. 384, 492; supra, § 1160
83 1313
§ 1313 EXECUTOKS AND ADMINISTRATORS. [pART IV.
CHAPTER III.
OARS, CUSTODY, AND MANAGEMENT OF THE ASSETS.
§ 1312. Care, Custody, and Management of Assets an Important
Function.
The care, custody, and management of the personal property or
personal assets belonging to the estate is an important function of
administration. The funds having been gathered in for the pur-
pose of making disbursements in due order to creditors, legatees,
and those entitled to the surplus, — which disbursements must be
made upon careful deliberation in order to be made safely, — it
may happen that a very large fortune is left in the keeping of the
personal representative for a considerable period of time, much of
it to be placed on deposit or kept in securities capable of being
quickly converted into cash. To manage such a fund prudently
may involve the collection of accruing dividends, interest, and in-
come, and perhaps, in instances of necessary delay, an investment
or re-investment of funds, and the putting of money or other per-
sonal property to such temporary use as may bring in a profit.
Funds of the deceased left invested as he placed them require a
like prudent supervision. A will, too, may direct investments to
be made.
§ 1313. Executor or Administrator how far regarded as a Bailee
in Respect of Responsibility; Honesty, etc.
There is a certain standard of responsibility by which the per-
sonal representative's liability in this connection should be meas-
ured. Courts have defined that standard in many instances as in
essence the responsibility of a bailee; of a gratuitous bailee or of a
bailee for recompense, as the case may be. Such a test is certainly
a convenient one ; and especially where applied to what is strictly
the care and custody of assets already in the corporeal possession
of the executor or administrator. But this fundamental doctrine
1314
CHAP. III.] MANAGEMENT OF THE ASSETS. § 1314:
of administration responsibility extends to the manner of procur-
ing and collecting the assets, of managi^ig the available funds, of
making sales, of paying out, of distributing and winding up, and,
in a word, of appropriating the decedent's estate to the just pur-
poses of administration. The underlying principle, therefore, like
that applicable to all trustees, is not, perhaps, coincident with the
law of bailments as commonly expounded, but rather, transcend-
ing the limits of that law, advances what we may call the bailment
standard of accountability to the domains of another relation, dis-
tinct, though in most respects analogous, namely, the fiduciary
one.^
Under all circumstances the fiduciary, like any bailee, must pur-
sue his discretion honestly and in good faith.^
§ 1314. As to Care and Custody; Responsibility of Executor or
Administrator like that of the Bailee.
As for the simple care and custody of the personal property re-
duced to his corporeal possession and control, whether it be of
things literally corporeal or of securities which represent incor-
poreal money rights, the executor or administrator is certainly
bound like a bailee in point of responsibility, according to the cur-
rent of modem opinion. Thus, if personal property belonging to
the estate be destroyed or captured by a public enemy, or perish,
or deteriorate from some internal defect, or through the operation
of natural causes, or in general, because of inevitable accident, the
executor or administrator who has honestly exercised ordinary
care and diligence in averting or lessening the mischief, escapes
personal liability for the loss. He is himself no insurer against
accidents,^ though average prudence as to certain kinds of property
might perhaps have required him to keep the property insured
1. See Schoul. Bailments, §§ 1-5. cised. Smith v. Thompson (1S9S), 1
2. Even though the will should Ch. 71.
give on« .power to invest, etc., as the 3. See Schoul. Bailm. §§ 13-15;
representative " shall think fit," this Croft v. Lyndsey, 2 Frecm. 1.
imports a discretion honestly exer-
1315
§ 1315 EXECUTOES AND ADMINISTRATORS. [pAET IV.
against loss by fire/ But he should use due care, as otherwise his
carelessness renders him liable for loss.^
§ 1315, The same Subject; Whether this ResponsibiHty is that
of a Gratuitous Bailee or a Bailee with Recompense.
But a limitation of bailment liability, like that we have just
stated, applies equally in favor of bailees with and bailees without
recompense. Yet bailment responsibility differs by the well-known
rule, according as the bailment responsibility in question was for
the bailor's sole benefit, or for bailor's and bailee's mutual benefit;
in the former case " slight " is the usual test as to the care and
diligence requisite, while in the latter there must have been at least
" ordinary " care and diligence exercised. In other words, a bailee
serving with recompense is bound legally to the use of a greater
measure of care and diligence than a bailee who serves wholly
without recompense.®
Now the time-honored fundamental English principle is, as we
shall show hereafter, that an executor or administrator shall be re-
imbursed for his outlays, but shall have no remuneration for his
own time, trouble, and responsibility in settling the estate;
whereas, in most of the United States compensation is regularly
allowed him.^ A corresponding difference of precedents may there-
fore be expected in defining the essential standard of bailment or
fiduciary liability with relation to such officials. Indeed, the rule
as set forth in the English courts, both of law and equity, is that
the personal representative shall not be chargeable for a loss of
4. Semble, according to earlier commonly insured at this day, as also
cases, that the personal representa- are buildings and improvements u{ion
tive is not bound to insure or con- real estate.
tinue insurance on the decedent's 5. Tarver v. Torrance, 81 Ga. 261
property. Bailey v. Gould, 4 Y. & C. (loss by pickpockets) , 12 Am. Rep.
i;21. But prevailing usage among 311, 6 S- E. 177. And see 57 A. 694,
j)rudent business men in any ago 76 Oonn. 654, 100 Am. St. Rep. 1017;
f-'iould largely aflFcct such issues 96 N. W. 1067, 134 Mich. 645.
And, however, it may be as to insur- 6. Sclioul. Bailm. §§ 13 15.
anci- of household effects, a stack of 7. Post, Part VII., as to accounts;
goods in a store or warehouse is very Wms. Exrs. 1852.
13 10
CHAP. III.] MANAGEMENT OF THE ASSETS. § 1315
assets which have come into his possession, unless wilful default
be shown ; ^ though the preferable legal statement would be that
an executor or administrator stands in the condition of a gratui-
tous bailee, so that '^ slight diligence " on his part is needful, but
no more.^ Good faith, moreover, or common honesty, is always
demanded of a bailee or fiduciary. It is true that Lord Ellen-
borough once laid it down that the bailment theory did not apply
in common-law courts, but that an executor might there be held
liable for the loss of his testator's assets when they had once come
into his hands ; and yet, supposing the courts of common law to be
iit variance on this point, the rule of equity must at the present
day prevail.^
On the other hand, in the courts of most or all of the United
States, inasmuch as the executor or administrator is entitled to
compensation for his service, we apprehend that the rule of liabil-
ity must be stated more strongly, and so as to bind the representa-
tive to a measure of care and diligence corresponding to that of
bailees for hire; in other words, so as to require besides good faith.
on his part, that degree of care and diligence which men ordinarily
prudent bestow in the management of their own affairs.^ And
such in truth is the prevalent common-law and equity rule in this
country, and the doctrine most consonant to sound reason. Pro-
vided, therefore, the persenal representative be brought within the
protection of such a rule, having also acted bona fide, he will not
be held liable for money of the estate stolen by burglars from his
safe,^ or lost through the insolvency of the bank where he has de-
8. Job V. Job, L. R. 6 Ch. D. 562, Peddicord, 63 111. 249; Twitty v.
per Jessel, M. R. Houser, 7 S. C. 153; Bosic's Estate,
9. See Wms. Exrs. 1807; Goodfel- 2 Ashm. 437. As to an administra-
low V. Burchett, 2 Vern. 299; Jones tor's want of ordinary care and dili-
V. Lewis, 2 Ves. Sen. 240. gence in getting in a crop, see Cooper
1. Job V. Job, supra J per Jessel, M. v. Williams, 109 Ind. 270, 9 N. E.
E. 917; § 1226.
2. Mikell v. Mikell, 5 Rich. Eq. 3. Stevens v. Gage, 55 N. H. 175,
220; Rubottora v. Morrow, 24 Ind. 20 Am. Rep. 91. Had such represen-
202, 87 Am. Dec. 324; Whitney v. tative kept a large sum of money be-
1317
§ 1316 EXECTTTOES AND ADMINISTRATORS. [pART IV.
posited it.* A court of prcbate acts upon equitable principles in
settling the accounts of executors and administrators, and may
properly allow him for losses thus excusably incurred in the course
of his care and custody of the assets.''
§ 1315a. Policy of Courts to Sustain Acts done in Good Faith,
etc.
It is the general policy of our courts to sustain, if possible, even
irregular acts of an executor or administrator where performance
in good faith, not detrimental to the estate, and intended for its
benefit.^
§ 1316. Liability of Personal Representative in the General Man-
agement of Estate.
This liability of a personal representative for all consequences
resulting from the failure of due '' care and diligence or good
faith, while perfoniiing his trust, is traceable in various other con-
nections elsewhere dwelt upon in this volume. As in procuring the
assets, taking possession of the personalty, and realizing upon notes
and other causes of action ; ^ or in getting a fraudulent transfer by
longing to the estate in the unlocked favoritism) ; Cowie v. Strohmeyer,
drawer of his desk, or deposited it 136 N. W. 956, 150 Wis. 401.
■with a bank known to be crippled in 6. Duffy v. McHale, 85 A. 36, 35
resources, he would probably have R. I. 16.
been compelled to bear the loss. 7. /. e., as the writer presumes,
4. Twitty V. Houser, 7 S. C. 153. " slight" according to the English
The dejKJsit should have been in trust. rule, and " ordinary " according to
53 Ala. 169. the American; the question of a right-
5. Upson V. Badeau, 3 Bradf. Sur. ful compensation furnishing the basis
13. See, further, 83 N. E. 1006, 170 of a legal distinction. Supra, § 1315.
Ind. 252, 127 Am. St. Rep. 363; Har- 8. Supra, §§ 1308, 1310; McCall v,
ris V. Orr, 46 W. Va. 281, 33 S. E. Peachy, 3 Munf. (Va.) 288; Con-
257, 76 Am. St. Rep. 815; Bush's Es- nelly's Appeal, 1 Grant, 386; Gates
tate, 131 N. W. 602. 89 Neb. 334; v. Whetstone, 8 S. C. 244. 28 Am.
May V. Walter, 149 S. W. 1014, 149 Rep. 284; Stark v. Hunton. 3 N. J.
Ky. 749; 49 Pa. Super. 203 (no Eq. 300; Neil's Appeal, 57 Penn. St.
91.
1318
CHAP. III.] MANAGEMENT OF THE ASSETS. § 1317
his decedent set aside; ^ or in selling, or in transferring the assets
absolutely or by way of security ; ^ or in compromising claims
whether against or in favor of the estate, adjusting controversies,
prosecuting or defending suits, and submitting interests committed
to his discretion to arbitration ; ^ or in winding up the estate ; ^ and,
in general, upon his accounting with the probate court for the due
performance of his official duties.* So, too, as concerns the conduct
of a successor with reference to investigating the acts and conduct
of his predecessor,^ or in one's placing the assets in other hands
and employing an agent.^ For this bailment doctrine, being
founded in sound common sense, permits of a wide range of an-
alogous application ; nor indeed, has it been disregarded by the
legislature in framing local statutes which affect the settlement
of the estates of the dead, nor by courts of probate and equity,
whose duty it is to take jurisdiction of all such settlements.
§ 1317. Management of the Estate; Collection of Income, etc.;
Responsibility of the Representative.
In general, the executor or administrator is required to be
faithful, honest, and duly diligent, as to the management of assets
9. Danzey V. Smith, 4 Tex. 411; Mc- belonging to the estate and lost by
Lendon v. Woodward, 25 Ga. 252. his negligence, although it never
1. See next chapter; Dugan v. Hoi- came into his possession; for diligence
lins, 11 Md. 41; Griswold v. Chand- in pursuing assets not in his posses-
ler, 5 N. H. 492. sion is required. Tuttle v. Robinson,
2. Woods V. Elliott, 49 Miss. 168; 33 N. H. 104; Choate's Will, 131 N.
Hoke V. Hoke, 12 W. Va. 427. W. 169, 165 Mich. 420. Not, how-
3. Cooper v. Cooper, 77 Va. 198. ever, certainly, as to assets of whose
4. Post, Part VII., as to accounts; existence he was excusably ignorant.
Kee V. Kee, 2 Gratt. 116. Jones v. Ward, 10 Yerg. 160.
5. See c. 5, post; Cock v. Carson, 38 Though an illegal bailment by the
Tex. 284. Or even, as concerns a prln- executor or administrator cannot al-
cipal representative, with reference to ways be avoided by him, yet he may
getting an ancillary appointment in recover back the property after the
order to collect assets abroad. Wil- bailment has expired. English v. Mc-
liams V. Williams, 79 N. C. 417, 28 Nair. 34 Ala. 40.
Am. Refp. 333. 6. Davis v. Chapman, 83 Va. 67, 5
The representative is chargeable Am. St. Rep. 251, 15 E. 472.
with the value of personal property
1319
§ 1317a EXECUTORS AND ADMINISTKA.TOKS. [PAET IV.
in liis hands or subject to his control. If he retains fnnJs of the
estate to meet the exigencies of his office, and so as to discharge
statute allowances, debts or legacies, as they become payable, and
ultimately for a distribution of the surplus or payment of the resi-
due to the person or persons lawfully entitled thereto, it is incum--
bent on him to collect dividends, interest, or income upon invested
funds, not lying idle, with the same measure of care, diligence, pru-
dence, and good faith as applies to collecting and reducing to pos-
session the principal of the assets.'^ And as for choosing between
keeping funds invested or suffering them to lie idle, the same pru-
dent and faithful regard for the duties of his office should afford
tiie criterion.^
In the general management of the estate, our leading maxim
fetill applies that honesty, reasonable ^ care and proper diligence
are expected from the personal representative, and ought ever to
be brought to the fulfilment of the trust; but that wherever these
qualities have been exercised, the representative will not be held
personally responsible for losses which ordinary prudence could
not foresee and avoid, nor charged with that which he never did nor
could thus have realized.^
§ 1317a. As between Investing Cash or Using it for Payments,
Deposits, etc.
All other things equal, there can be no better use for ready cash
or funds on hand than in settling current demands upon the estate.
And if the executor or administrator, instead of doing this, places
7. Dortch V. Dortch, 71 N. C. 224; consequence with an executor or ad-
Hay V. Doughty, 4 Blackf. 115. Usury ministrator.
received by the decedent or by the 9. /. e., " ordinary," according to
representative himself upon the de- the American standard, and " slight,"
cedent's property must be accounted according to the English. Supra, §
for. Proctor V. Terrill, 8 B. Mon 4.51. 1315.
8. Hence, his office being primarily 1. Voorhccs v. StootliofT. 6 Halst.
to gather in, disburse, and distribute 145; Williams v. Maitland, 1 Ired.
with reasonable expedition, tiie keep- Eq. 92; Webb v. Bellinger. 2 Desau.
ing funds outstanding and productive 482; Calhoun's Estate, 5 Watts, 185.
becomes a matter of only socondaiy
1320
CHAP. III.] MANAGEMENT OF THE ASSETS. § 1317a
the cash on deposit at interest for time loans, or otherwise invests
the fund, he runs a risk of culpable loss. Especially is this true,
where he borrows or advances from some other source to meet these
current demands,^ But a bank deposit suitably distinguished may
.prove advantageous for drawing checks against it for current pay-
ments ; and, since claims are not always payable at once in pru-
dent adm.iiiistration, or especial delay may be occasioned, money
not wanted for immediate payments may well be deposited in some
bank of good standing at a fair interest or otherwise.^ But whero
the representative needlessly retains money of the estate in his
hands beyond the time limited by law for settling, he may be held
culpably liable if he loses it.*
Trust companies are chartered in various States at the present day
as legal depositaries, and in a legal depositary (though one is not
usually obliged to employ such a concern) an executor may deposit
his trust fund instead of in the common deposit banks, with little
peril of his discretion. Any savings bank or other depositary may
be designated by local statute as a legal one for such purposes.^ A
moderate interest may often be thus realized on a deposit as exec-
utor or administrator. But the representative must not deposit in
his individual name if he wishes to escape personal liability for
2. Guthrie v. Wheeler, 51 Ck>nn. erly in hand was stolen without his
207. Executor held liable for deposit- fault as bailee. 84 Ala. 489.
ing a large amount in a savings bank 5. A probate court is now often em-
which afterwards failed, while pay- powered to order the deposit of funds
ing debts with his own money. And with a trust company. 1 Dem. (N.
as to hoarding money instead of pay- Y.) 302. See Officer v. Officer, 94 N.
ing it out, see Rogers v, Tullos, 51 W. 947, 98 Am. St. Rep. 365; 75 N.
Miss. 685; § 1322. W. 1112, 73 Minn. 244. And cf, local
3. Guthrie v. Wheeler, supra. Pend- statute.
ing a contest as to the validity of the 6. See Williams v. Williams, 55
will, for instance. lb. And see Jaco- Wis. 300, 42 Am. Rep. 708, and nu-
bus V. Jacobus, 37 K J. Eq. 17; merous cases cited. Some cases crr-
Woodley v. HoUey, 111 N. C. 380, 16 tainly protect one's representative
S. E. 419. character where the form of account
4. Black V. Hurlbut, 73 Wis. 126, enables the identity of the trust de-
40 N. W. 673. Aliter, if money prop- posit to be traced and distinguished.
1321
§ 1318 EXECUTOES Ai^D ADMI]SriSTEATOKS. [pART IV.
§ 1318. Paying Assessments; Discharging Liens, etc., upon Per-
sonal Assets.
Taxes upon tlie personal estate of a deceased person should be
duly discharged according to law bv the personal representative;
not, however, without similar qualifications ; for if the assets
prove insufficient for discharging claims having a legal preference,
the taxes he pays become eventually a disbursement from his
private means. Where shares of stock owned by the decedent are
of market value, it may be incumbent upon the executor or admin-
istrator, in the exercise of becoming prudence, to pay assessments-
thereon and redeem them for the benefit of the estate, such assess-
ments constituting a lien on the shares.^ But if the shares are
worthless, and will probably continue to be so after assessments are
paid, he is not justified in paying out the assets for that purpose,
nor in redeeming the stock.^
The personal representative deals with liens as he finds them
when his own title vests ; and such liens he cannot disregard. But,
as already intimated, he cannot in his representative capacity
create a lien on the assets for a debt due during the decedent's life-
time so as to impair the rights of other creditors.® Nor can he bind
an insolvent estate by his agreement in such a manner as to take
assets out of the legal course of distribution provided for by that
contingency.'^
r.ut here the power of individual con- 7. Ripley v. Sampson, 10 Pick. 373;
trol was taken agiiinst tlie adminis- Tuttle v. Robinson, 33 N. H. 104.
trator; he deposited in his own indi- 8. Ripley v. Sampson, 10 Pick. 373.
vidual name in a bank, funds of And see Stow's Estate. Myrick (Cal. )
the estate, and on tlie bank's failure 97.
he was held liable. And this though 9. Ford v. Russell, 1 Frcem. Ch.
he had no other funds in that bank, 42; Ga. Dec. Part. II. 7; supra, §
and informed the officers, when he do- 1256. See 71 P. 344, 138 Cal. 334
posited, that the fund was held by (chattel mortgage) ; 72 P. 860, 07
him in trust. And see § 1329; Sum- Kan. 83. As to excluding a right of
mors V. Reynolds, 95 N. C. 404; Chan- stoppage by a seller, see 110 S. W.
oellor V. Chancellor, 58 So. 423. 177 594. 86 Ark. 186.
Ala. 44. 1. James's Appeal, 88 Penn. St. 55.
1322
CIIAr. III.] MANAGEMENT OF THE ASSETS. § 1321
§ 1319. Personal Representative's Vote upon Stock.
The assent of the personal representative, as stockholder, to cor-
porate acts requiring the stockholders' aasent, may be valid, though
the stock does not stand in his name, and his assent is given in a
personal capacity.^
§ 1320. Putting Assets into a Salable Condition, etc. ; Repairing,
etc.
The representative who finds a raw commodity on hand, — to-
bacco, for instance, — may lawfully put it into a salable condition,
provided he acts prudently and honestly, within the usual rule ; ^
and the same may be said of repairing damaged goods, or finishing
up his decedent's jobs, or procuring materials for the completion
of contracts which was obligatory upon the estate, especially if
remunerative.* But the trust moneys should not be misappro-
priated by the representative upon any pretext of repairing or pro-
tecting assets ; nor so as to make good a loss which was occasioned
by his own breach of trust ; nor so as carelessly to waste the estate
in needless and unremunerative expenditures.^
§ 1321. Responsibility of Personal Representative for Acts of
his own Agent, Attorney, etc.
It is true that persons interested in an estate are not bound to
pursue assets into the hands of the representative's attorney, bufc
may hold the representative directly responsible for what the at-
torney obtained.^ But, consistently with the probate and equity
view of the executor's or administrator's functions, the question
2. Pike County v. Rowland, 94 116 P. 47, 159 Cal. 755 (completing
Penn. St. 238. an unfinished building).
3. Whitley v. Alexander, 73 N. C. 6. Green v. Hanberry, 2 Brock. 403.
444; § 1253. A hired bailee responds in general for
4. See Oram's Estate, 9 Phila. 358. the negligent and unskillful work of
5. See Lacey v. Davis, 4 Redf. (N. his own sub-agents or servants just
Y. ) 402; 31 Ohio Cir. 370 (making as though his own want of ordinary
needful repairs to keep assets in good diligence, not theirs, caused the dam-
condition). See Hincheon's Estate, age. Schoul. Bailm. III.
1323
1321
EXECUTORS AND ADMIXISTEATOES.
[PAKT IV.
remains essentially one of good faith and reasonable diligence on
his part. Where, therefore, acting honestly and with ordinary dis-
cretion and care, the executor or administrator entrusts claims due
the estate to an attorney, he is not chargeable personally with the
loss, should the attorney collect the money, apply it to his own use,
and become insolvent.' But it is culpable negligence, within this
rule, to employ a professional novice or one evidently unskilful to
manage a transaction of great magnitude and difficulty when the
estate could have paid for a competent person.^ Upon the same
general principle, the personal representative is not responsible for
a debt, lost by mistake in pursuing remedies, where he acts in
good faith and under the advice of competent counsel.^ j^or for
the misconduct of an auctioneer, not impnidently employed by
him, who sells assets and appropriates the proceeds ; ^ the represen-
tative not being remiss in taking steps for Igeal redress. But if
the executor or administrator trusts assets in a careless manner, or
to those he had no right or need to employ, he is liable to the estate
for the ill consequences.^
7. Rayner v. Pearsall, 3 Johns. Ch.
578; Christy v. McBride, 1 Scam.
(111.) 75. For the analogous rule of
bailments, see Schoul. Bailm. § 19.
The scope of the sub-agent's author-
ity is material. As to thefts, etc.,
outside such scope, the question is,
whether the bailee used ordinary dili-
gence in the choice and continuous
employment of such person. lb. And
Bee as to burden of proof in such a
case, Brier, Re, 2S Ch. D. 238.
8. Wakeman v. Ilazlcton, 3 Barb.
Ch. 148. And see Marshall v. Moore,
2 B. Mon. 69.
9. King V. Morrison, 1 Pen. & \V.
(Penn.) 188; 4 Johns. Ch. 619.
Hcmhle, if the attorney or counsel was
grossly at fault, Icfrally liable in dam-
ages, and pecuniarily responsible, the
representative, in the exercise of rea-
sonable diligence, should attempt, on
belialf of the estate, to pursue him.
The bailee may sue his sub-bailee for
negligent performance, causing his
damage. IMcGill v. Monette, 37 Ala.
49. And see Calhoun's Estate, 6
Watts, 185; Telford v. Barry, 1 Iowa,
591, 63 Am. Dec. 466; Bacon v. Ba-
con, 5 Ves. 335; Clough v. Bond, 3 M.
& Cr. 497.
1. Edmond v. Peake. 7 Beav. 239.
2. 1 Anstr. 107; Ghost v. Waller,
9 Beav. 497; Matthews v. Brise, 6
Beav. 239; McCloskey v. Gleason, 56
Vt. 264, 48 Am. Rep. 770. Wliere
f.ome near relative or personal favor-
ite is permitted to manage the estate,
and make bad investments, the ex-
ecutor or administrator must respond
for the loss. Earle v. Earle, 93 N. Y.
104.
1324
CTIAP. III.] MANAGEMENT OF THE ASSETS. § 1322
This appears decidedly the better view of the case as between
the personal representative and those ho may employ in the course
of administration ; though the old authorities sometimes laid down
the rule at common law more harshly. It has been said in times
past that an executor or administrator becomes responsible if his
agent embezzles the funds of the estate.^ But even prudent men
cannot hope to manage property without errors of judginent, or
the remissness of others outside his control, entailing occasional
loss ; and there is neither justice nor sound policy in holding the
representative to the exceptional liability of an innkeeper or com-
mon carrier, especially where his service is without remuneration ;
he stands rather as any prudent owner of the personal property
might himself, were he still alive and managing his own affairs, so
far as blame is concerned.
§ 1322. Duty as to investing Assets or placing the Funds on In-
terest.
If, in pursuance of his trust, considerable sums of money must
necessarily lie idle for some time, — as where, in particular, search-
ing out the persons entitled to the surplus is perceived to involve
much delay, — the personal representative is not only permitted,
but encouraged, according to the usual rule, to permit quick assets
which are productive to stand for a time uncollected, where not
needed for the paj-ment of claims.
3. 6 Mod. 93; Toller Exrs. 4S6; 1 appointing another to receive, who
Dane Abr. 590, art. 16 ; Doyle v. will not repay, is a devastamt." Wms.
Blake, 2 Sch. & Lef. 243; Wms. Exrs. Exrs. 1817.
1816, 1820. And see Lord Cottenham Stat. 22 & 23 Vict. c. 35, § 28, con-
in Clough V. Bond, 3 My. & Cr. 496. firms the general rule indicated by the
The case in 6 Mod. 93, however, raised English equity decisions; so that, for
merely a question of costs. " Gener- defaults of another employed by him,
ally speaking," as the old rule has the personal representative shall only
been stated, " if an executor appoints be charged for his own " wilful de-
another to receive the money of his fault." Wms. Exrs. 1828. This
testator, and he receives it, it is the changes the old law, of course, if the
same thing as if the executor himself law in truth were as stated above in
had actually received it, and will be this note. See, further, Lyon v. Lyon,,
assets in his hands: and, consequently. 1 Tenn. Ch. 225.
1325
§ 1322 EXECUTORS AXD ADMIXISTRATOEfi. [PAET IV.
In most American States, too, the executor or administrator is,
bj direct or indirect intendment of the law, allowed to put the
money where it may draw interest, and even to invest funds in
interest-bearing securities.* But the rule of ordinary prudence
and diligence, as well as good faith, is still exacted under such
circumstances ; and this, moreover, with special consideration, both
to the legislative policy of the State or country, as concerns in-
vestments by an executor or administrator, and the time and mode
of settling the estate. For, unlike testamentary trustees, the
primary duty of an executor or administrator is to settle or wind
up an estate ; and accordingly to reduce the assets to cash or readily
convertible personalty, and to pay over or transfer it to others
in pursuance of the peculiar trust reposed in him. When the
executor or administrator has money of the estate in his hands,
and there are no reasons why he should retain it, and he has full
opportunity to pay it out to the persons entitled, he has no right
to retain it longer than the responsibilities of his trust make it
prudent and necessary, on any pretext that he has loaned it out
for the sake of interest
Any savings or accumulations out of the estate, together with
interest, dividends, and income, become assets in the hands of the
personal representative, to be divided and paid over in the same
manner as the principal fund.®
Under the statutes of some States, funds collected by a fiduciary
are required to be deposited with particular banks or after a par-
ticular manner.^ Such legislative directions should be strictly
heeded. And the executor or administrator who, in connection
with the deposits, enters into other transactions with the banker
which deviate from the prescribed line of his duty, renders him-
4. Moore v. Fclkel, 7 Fla. 44; 7. Livermore v. Wortman, 25 Hun,
Dortch V. Dortch, 71 N. C. 224. 341; Pasquier's Succossion, 11 La.
5. Wood V. Myrick, 17 Minn. 408; Ann. 279; Rood v. Crocker, 12 La.
Uortch V. Dortch, 71 N. C. 224. Ann. 445; Shipley, Ex parte, 4 Md.
6. Wingate v. Pool, 25 111. 118; § 493.
, 1317a.
132G
CHAP. III.] MANAGEMENT OF THE ASSETS. § 1323
self personally liable.^ But, in general, the rule of probate and
equity is, that where the deposit of funds belonging to the estate
was made and kept from necessity, or conformably to common
and reasonable usage, and without wilful default, the personal
representative shall not be chargeable with a loss.' We asume,
of course, that the trust fund was kept as distinct from his own
bank account, and that the bailment standard of care and dili-
gence was consistently maintained, as well as good faith on his
part.^
§ 1323. Investments, how to be made, etc.; Rule of Liability.
The doctrine of diligence and good faith may be followed into
the subject of an executor's or administrator's investments. If
such an official is to invest funds at all he should have a reasonable
time in which to do so.^ As to the precautions to be taken and
the extent to which the representative may lend with reference
to the value of property for investment, where he loans upon
the security of real estate mortgages, there are numerous de-
cisions f and usually only what are called first-class mortgages,
or mortgages whose security is of value considerably larger than
the amount of the loan, should be selected.
In English practice, a trustee or executor, after a decree to
account, is not permitted to lay out money on mortgage or other
security, without tlie leave of the court.^ And while the Amer-
8. Wras. Exrs. 1818; Darke v. Mar- 35, § 31, cited Wins. Exrs. 1828, which
tyn, 1 Beav. 525 ; Challen v. Shippam, confirms as the true criterion of lia-
4 Hare, 555. bility, the executor's or administra-
9. Churchill v. Hobson, 1 P. Wms. tor's own " wilful default." But as
243 ; Castle v. Warland, 32 Beav. 660 ; to the American rule, see supra,
Johnson v. Newton, 11 Hare, 160; § 1315.
Wms. Exrs. 1818; Norwood v. Har- 2. See 78 Va. 665.
ness, 98 Ind. 134, 49 Am. Rep. 739; 3. Brown v. Litton, 1 P. Wms. 141;
Bertrand's Succession, 54 So. 127, Stickney v. Sewell, 1 M. & Cr. 8;
127 La. 857; 73 Minn. 244; § 1317a. Ingle v. Partridge, 34 Beav. 411; Bo-
See Welch's Estate, 110 Cal. 605, 42 gart v. Van Velsor, 4 Edw. Ch. 718;
P. 1089. Wms. Exrs. 1808.
1. See English stat. 22 & 23 Vict. c. 4. Wms. Exrs. 1809.
§ 1324 EXECUTOKS AXD ADMINISTRATORS. [pART IV.
ican rule generally leaves more to the personal representative's
own discretion, it r-ertainlj discourages long loans upon securities
not easily convertible, of moneys which may be required for the
immediate purrposes of administration; booking rather to tem-
porary loans and investments, and to the temporary continuance
of safe securities originally received by him as assets of the estate.
But should a mortgage security, prudently and properly taken,
turn out bad, the fiduciary's good faith and observance of reason-
able care and diligence shall shield him.^ In English practice,
such securities are highly favored for trust investments of a per-
manent character.^
An investment of personal assets in real estate, being technically
a. conversion, is not proper on the representative's part. But
where it becomes necessary to save the estate from loss, " it is
right and even obligatory for the executor or administrator to pur-
chase or lake possession of land on the foreclosure of a mortgage
belonging to the estate, and hcdd the title for the benefit of the
estate. In such case the land may be treated as personal prop-
erty;^ and if taken without breach of trust by the representative,
-the land may be turned over in lieu of the fund on a settlement
of the estate.^
§ 1324. The Subject continued.
Where, as in some American States, no particular restrictions
are imposed by law upon the fiduciary, as to the kinds of securities
in which the trust funds shall be placed, or the mode of makinoj
investments; the general rule of liability still applies which wo
liave Iwen discussing, viz. : that the fiduciary shall act with honor
and shall exercise a sound and reasonable discretion, like men
5. Brown v. Litton, 1 P. Wms. 141. part of tho United Kingdom. Wma.
Cf. Norbury v. Norlniry, 4 Madd. 191; Exrs. 1811.
Wilson V. Staats, 33 N. J. Eq. .'524. 7. Valentine v. lioldon, 20 Tlun. 537.
6. See WmH. Exrs. 1810. Stat. 22 & 8. T'errine v. Vrceland, 33 N. J. Eq.
23 Vift. c. 35, § 32, sanctions trust 102, 596: Richardson v. McT.emore, (lO
inveatnaents in real securities in any Miss. 315; ]3rigliam v. Morgan, 69 N.
E. 418, 185 Mass. 27. See Part VT.
1328
CHAP. III.] MANAGEMENT OF THE ASSETS. § 132-i
of ordinarj pnidcnce in conducting sucli affairs.^ Investment in
public (if not real) securities, is the usual English requirement
as to trust funds;' and the personal representative should, in that
country, invest his unemplojcd money in government loans of
the description authorized by the court of chancery.^ And al-
though a fair and reasonable discretion as to investing upon private
personal security appears in some earlier instances to have been
approved, the present rule of the English courts of equity clearly
establishes that an executor who lends upon the bond, promissory-
note, or other personal security of a private party, commits a
breach of trust, and shall be personally answerable for the fund.^
But these doctrines have not been adopted in Massachusetts ;*
nor generally in the United States; and even were our national
public securities available in this country, as they seldom have
been in the English sense, State securities of the particular juris-
diction might not be thought much less desirable. The subject is,
to a large extent, controlled in this country by local statutes which
vary considerably in the range of selection permitted to the fidu-
ciary. But the policy so strongly inculcated in British jurispru-
dence, of using accumulated wealth, transmitted from the dead
to the living, to strengthen the hands of government, by causing
9. Kinmonth v. Brigham, 5 Allen, vestment other descriptions of British
277, by Hoar, J.; Harvard College v. securities are sometimes sanctioned.
Amory, 9 Pick. 446. 6 Beav. 239. And see stats. 22 & 23
1. Howe v. Lord Dartmouth, 7 Ves. Vict. c. 35, § 32 ; 23 & 24 Vict. c.
137 a. For the modern rule as to in- 38, § 12, under whose operation the
vestment of a fund so bequeathed that choice of investment is extended to a
the income shall be paid to a particu- choice not only of real securities in
lar class for life, and then the prin- any part of the United Kingdom, but
cipal to others, see Part V., legacies, also of national bank stock and East
post; Sargent v. Sargent, 103 Mass. India stock.
297; Brown v. Gellatly, L. R. 2 Ch. 3. Cf. Webster v. Spencer, 3 B. &
751; Wms. Exrs. 1391, and Perkins' Aid. 360, with Gil. Eq. 10: 1 Eden,
note. 149 n.; Walker v. Symonds, 3 Swanst.
2. That is to say, the tliree per 63; Bacon v. Clark, 3 M. & Cr. 294;
cent, consols. Holland v. Hughes, 16 Wms. Exrs. 1809.
Ves. 114; Wms. Exrs. 1810. 1811. 4. Lovell v. Minot, 20 Pick. 119, 32
Though for a purely temporary in- Am. Dec. 206.
84 1329
1324:
EXECUTOnS AXD ADMIXISTKATOES.
[PAET IV.
its investment in the national soil or jurisdiction and the public
debt, finds less favor in America. Here individual fortunes, so
far as thev remain undispersed and are left to accumulate, aid
rather in stimulating private enterprises, near and remote, and
in reclaiming the wilderness, and peopling and developing new
States; while the nation itself makes no general directions for in-
vestment and cannot interfere.^
5. Concerning investments in " Con-
federate securities " during the South-
ern conflict of 1S61, various decisions
are found. The main question is not
easily separable from perplexing is-
sues of lawful or unlawful govern-
ment; but in general the valid act of
a State legislature authorizing invest-
ments to be made in specified secur-
ities should shield the personal repre-
sentative who, in good faith and not
carelessly, invests accordingly. See
Trotter v. Trotter, 40 Miss. 704;
Manning v. Manning, 12 Rich. Eq.
410; Leake v. Leake, 75 Va. 792. But
in some States such investments must
doubtless have been utterly illegal.
Copeland v. McCue, 5 W. Va. 264;
Sharpe v. Rockwood, 78 Va. 24. State
securities have not in all instances
been a judicious investment for trust
moneys. Perry v. Smout, 23 Gratt.
241. See 17 Wall. 570, 21 L. Ed. 657.
Investments made by an executor
voluntarily, wliich on application of
the legatees the court would have com-
pelled him to make, will be protected.
IJodley V. ilcKenney, 9 Sm. & M. 339.
Wlien personal property is given for
life generally, and the trust of invest-
ing appears to have been confided to
the executor rather than a trustee,
an investment should be made so as to
secure interest or income to the life
legatee. Evans v. Inglehart, 0 Gill
& J. 71; legacies, post; Jones v.
13
Stites, 19 N. J. Eq. 324; Chishoim v.
Lee, 53 Ga. 611; Calkins v. Calkins,
1 Redf. 337. And see, as to perish-
able property. Woods v. Sullivan, 1
Swan, 507. In some States the per-
sonal representative is bound to invest
moneys left in his hands, after set-
tling his accounts, within a specified
period, usually six months. Frey v.
Frey, 14 N. J. L. 71. Investments
left by the decedent in a particular
kind of security might, if prudent, be
fairly re-invested in the same or a
similar security. Brown v. Campbell,
Hopk. 233; Hogan v. DePeyster, 20
Barb. 100.
Trust investments in corporate or
individual bonds and notes are quite
generally sanctioned in the several
States; but the classes of permissible
securities are often clearly specified
by local statute; and investment in
the unsecured bond or note of an in-
dividual is not usually allowable as
prudent. Lacy v. Stamper, 27 Gratt.
42. Municipal bonds and bank stock
cannot in some States be talcen with-
out the court's permission. Tucker
v. Tucker, 33 N. J. Eq. 235. See,
further, 2 Redf, (N. Y.) 333, 349,
421, 405; 35 N. J. Eq. 134, 467. A3
to loans on personal security, see §
1329; Lefever v. Ilasbrouck, 2 Dem.
567. Money of the estate cannot be
used by the representative to protect
stock wliicli lie had no right to pur-
30
CHAP. III.] MANAGEMENT OF THE ASSETS. § 1325
§ 1325. Liability for placing or leaving Assets in Trade, Specula-
tion, etc.
An administrator is not justified in placing or leaving assets in
trade, for this is a hazardous use to permit of trust moneys; be-
sides which, trading lies outside the proper scope of administra-
tion functions. Under circumstances not clearly imprudent, how-
ever, an executor may pursue an authority which was plainly con-
ferred upon him by the will in this respect; though less as an
executor, perhaps, than as one specially honored or burdened by
his testator^s personal confidence. Chancery protects the execu-
tor who can show his testator's express sanction, but scarcely be-
yond this, and chiefly so as to keep the hazardous investment imder
its prudent direction. To employ trust funds in trade on the repre-
sentative's own responsibility has always been treated as essentially
a breach of trust; and the courts have resisted much pressure to
relax the rule. And the executor or administrator so employing
funds of the estate has the disadvantage of incurring all the risks
while he must account for all the profits.^ Chancery keeps here a
sedulous direction.'
For the loss of assets placed or left by him in trade, the rep-
resentative may, therefore, be charged, as for his imprudence.^
chase, nor in subscribing for addi- 429; Biirwell v. Mandeville, 2 How.
tional stock under a privilege. Lacey 560, 11 L. Ed. 378; Pitkin v. Pitkin,
V. Davis, 4 Redf. 402. Prudence 7 Conn. 307, 18 Am. Dec. Ill;
seems to require that depreciated cur- Thompson v. Brown, 4 Johns. Ch.
rency should be used in paying debts 619; Lucht v. Behrens, 28 Ohio St.
owed, as well as in receiving payment 231. 22 Am. Rep. 378; Stedman v.
of debts due the estate. It may be Fiedler, 20 N. Y. 437.
deposited, but should not be hoarded. 7. Whitman's Estate, 45 A. 673,
Rogers v. Tullos, 51 Miss. 685. 195 Penn. 144. But chancery cannot
In Missouri an executor or admin- authorize an administrator to carry
istrator who lends or invests funds of on business with the funds of the
the estate without an order from the estate. Alexander v. Herring, 55 So.
probate court, does so at his own 360, 99 Miss. 427. But as to winding
risk. Garesche v. Priest, 78 Mo. 12G. up decedent's business cf. 115 P. 717,
6. Wms. Exrs. 1792, 1793; Barker 50 Colo. 409.
V. Barker, 1 T. R. 295; Garland, Ex 8. Thompson v. Brown, 4 Johns.
parte, 10 Ves. 129; Perry Trusts, § Cli. 619, and other cases, supra.
1331
§ 1325a EXECUTOES AXD administrators. [part IV.
And if lie carries on the business with surviving partners of the
deceased, he mav incur an individual liability for the partnership
debts.^ But if the trade prove advantageous, the parties inter-
ested in the estate are not debarred from claiming the profits of
the investment as theirs.^ Debts incurred bj the representative
in the prosecution of the unauthorized trade with personalty can-
not be charged against the general assets, real and personal, not-
withstanding an honest intention on the fiduciary's part to benefit
the family of the decedent by carrying it on.^
§ 1325a. Closing out Decedent's Business or Speculations.
But as to withdrawing assets from a partnership, or closing out
a business in which the decedent was engaged, a wider discretion
must occasionally be conceded to the personal representative; for
this 'Juty must be performed with a prudent regard to time, oppor-
tunity, and other circumstances. An administrator is not neces-
sarily wanting in due care, so as to be responsible personally, if
he suffer the surviving partner to remain in possession of, and
sell out, the joint stock in the usual course of trade ;' and to thus
9. Alsop V. Mather, 8 Conn. 584. Merritt, 60 Mo. 150. See Matthew's
21 Am. Dec. 703; Muntz v. Brown, 11 Appeal, 57 A. 654; 76 Conn. 654, 100
La. Ann. 472; Stedman v. Fielder, Am. St. Rep. 1017; 71 N. E. 543, 186
20 N. Y. 437. As to permitting a Mass. 259; Mettler v. Warner, 94 N.
representative to enter bona fide into E. 522, 249 111. 341 (collusive sale to
the concern to which the decedent be- a new firm set aside) ; Swaine v.
longed, employing his own capital, Hemphill, 131 N. W. 68, 165 Mich,
and taking no undue advantage out 561; Gilligan v. Daly, 80 A. 994, 79
of the assets, see Simpson v. Cliap- N. J. Ch. 36; Speer's Estate, 84 A.
man, 5 De G. M. & G. 154. Where a 787, 236 Penn. 404 (careless super-
surviving partner is also executor of vision of agent employed to sell out
the estate of his deceased copartner, business).
and he collects partnership assets Heirs or residuary beneficiaries who
which are not needed to pay partner- wish to carry' on the decedent's busi-
ship debts, he will be presumed to ness should get the estate closed and
liold such assets as executor. Caskie then take over the business as indi-
V. Harrison, 76 Va. 85. viduals. Marks's Estate, 133 P. 777,
1. Rohinett's Appeal. 36 Penn. St. 06 Greg. 340.
174. 3. Tliom])son v. Brown, 4 .Tohns. Cli.
2. Lucht v. Bchrcns, 23 Ohio St. 619. See also Merritt v. Merritt, 60
231, 13 Am. Rep. 233; Merritt v. Mo. 150.
CHAP. III.] MANAGEMENT OF THE ASSETS. § 1326
sell out a decedent's stock in trade may be for the higliest in-
terests of the estate, provided due care be exercised in the choice
of agents. And where it appears, on finally closing the partner-
ship affairs, that the firm is insolvent, the fact that it must also
have been insolvent at the decedent's death, and that the estate
has actually profited by the representative's delay in withdrawing
the decedent's interest from the firm, may exonerate the repre-
sentative.*
These principles apply to speculative investments of all kinds,
with the assets. The personal representative incurs all the risks
and is entitled to none of the profits resulting from any such trans-
actions committed by him in breach of trust. But if assets came
to him thus invested by the decedent, it is a question of prudence
when and how he shall withdraw the fund ; and though he is not
justified in continuing the speculation, and involving the estate
more deeply, a reasonable breadth of honest discretion should be
allowed him, as to closing the transaction.^
Good discretion may often require some latitude in closing out
a decedent's business. Thus in the case of a school teacher who
died during the school year, and left contracts outstanding with
teachers and others, having also received some of the tuition fees
in advance, an executor who in good faith carried out the existing
arrangements for some months, and then sold out the good-will for
a fair sum, had his accounts approved and ratified by the court.®
§ 1326. Carrying on a Trade with Assets ; Liability, etc.
The liability of a deceased copartner, as well as his interest iu
the profits of the concern, may, by the copartnership contract, be
continued beyond his death.^ Without such stipulation, however,
4. Stern's Appeal, 95 Penn. St. 504. 5. See Perry Trusts, § 454; Tomp-
Here it was shown that none of the kins v. Tompkins, 18 S. C. 1.
individual assets of the estate had 6. Oilman v. Wilber, 1 Dem. (N.
been adventured or lost in the busi- Y.) 547.
ness. And see next chapter as to 7. But not so as to contravene the
selling out the interest in a firm. rule against perpetuities. 88 Me.
131; Schoul. Wills, § 31.
1333
§ 1326 EXECUTOES AXD ADMINISTRATORS. [PART IV.
death would dissolve the firm, even where the copartnership was
expressed to be for a term of vears.^ With such a contract the
effect must be naturally to bind the estate of the deceased partner,
in the hands of his executors or administrators, without compelling
such representatives to become partners personally.^ Where there
are no valid provisions by will or contract for further continuing
a partnership, either the surviving partner or partners, or else the
legal representative, should see that the business is duly wound up
and adjusted.^
The active assent and participation of the representatives in
the business appear, however, to subject them to the usual in-
dividual responsibilities of representatives who make contracts
after the decedent's death with reference to the estate ; the im-
mediate effect being, like that of carrying on a trade, that they
have a lien on assets for their indemnity if they had power to
embark the estate in trade, but otherwise no lien.- Where, there-
fore, the business of the decedent is carried on by executors under
a will, or in any case, by representatives duly empowered,^ and
the case is not merely one of leaving passively the decedent's part-
nership interest in a concern, unadjusted with the survivor, the
representatives incur a personal liability for the debts thereby
contracted. They are not absolved from accounting for the prop-
8. Scholefiold v. Eichelberojer, 7 Pet. by surviving partner) ; Gilligan v.
594, 8 L. Ed. 793, per Mr. Justice Daly, 80 A. 294, 79 N. J. Ch. 36;
Johnson. 125 N. Y. S. 949.
9. Downs V. Collins, 0 Haro, 418. 2. Laughlin v. Loronz, 48 Penn. St.
1. Hamlin V. Mansfield, S8 Mp. 131, 275, 86 Am. Dec. 592; Lucht v.
33 A. 788. As to representative of Belirens, 23 Ohio St. 231, 13 Am.
the last surviving partner, see 153 111. Rep. 233; Gratz v. Bayard, 11 S. &
54, 46 Am. St. Rep. 867, 28 L. R. A. R. 41.
129, 38 N. E. 937. And see Meyer, Re, 3. As in Laughlin v. Lorenz, supra,
74 N. E. 1120, 181 N. Y. 562; 83 S. where a new firm composed of the
W. 6, 98 Tex. 252; 111 P. 204, 27 personal representatives of the de-
Okl. 261; 150 111. App. 442; Malon- cedent and the surviving partner was
ey's Estate, 82 A. 958, 233 Penn. 614; creaked. And see Frey v. Eisenhardt,
Archer, Re, 137 N. Y. S. 770; Hor- 116 Mich. 160, 74 N. W. 501, where
dern v. Hordern, (1910) App. 465 the interested parties assented,
(purchase of deceased partner's share
1334
CHAP. III.] MANAGEMENT OF THE ASSETS. § 1326
ertj. But they have a right in equity to indemnify themselves
for the payment of such debts out of the property lawfully em-
barked in the trade.^ Out of this right springs an equitable right
of the trade creditors to resort to such fund for payment, if their
remedy against the representative be unavailing.^ And where a.
new firm is rightfully created, into which the personal representa-
tives of the old firm enter, the creditors of the new firm are clothed
with the equities of that firm against the estate of the decedent
arising out of the payment by the new firm of the debts of the old.^
Where, on the contrary, the executor or administrator carries
on a trade without any authority to do so, and the business proves
disastrous, this will not of right involve the decedent's estate for
the debts ; but such assets as may be shown to have been wasted
in the trade, those interested in the estate have the right to claim.
The difficulties are practical ones, arising out of the representa-
tive's own insolvency, and the difficulty of tracing assets into the
business.'' Acts of the representative ultra vires, moreover, or in
excess of his express power to trade, do not give those dealing with
him an equity against the trade assets, as the latest authorities
indicate.^ A will may direct one's executors to carry on trade
after his death, either with his general assets or by designating a
specific fund to be served from the general bulk of his estate for
that purpose ; the latter intention is to be preferred, as hazarding
only a portion of the assets ; and in no case is the creation of a
trade, and more especially of a partnership liability, to be inferred
without clear provisions of the will, and unambiguous acts by the
representative in pursuance of the powers conferred upon him.*
4. Laible v. Ferry, 32 N. J. Eq. 791 ; bind the estate to debts of the con-
Labouchere v. Tupper, 11 Moore, P. cern. 84 Fed. 420.
C. 198. 7, See Garland, Ex parte, 10 Ves.
5. lb. The fee simple of land may 110; Wms. Exrs. 1793. And see
thus become involved. Laible v. Liicht v. Behrens, 23 Ohio St. 231, 13
Ferry, supra. Am. Rep. 233.
6. Laughlin v. Lorenz, 48 Penn. St. 8. Pillgrem v. Pillgrem, 45 L. T.
275, 86 Am. Dec. 592; Paul v. Wilson, 183.
81 A. 835, 79 N. J. Eq. 204. Heirs 9. Stamvood v. Owen, 14 Gray, 105;
carrying on a business as such do not 104 Mass. 583; Wms. Exrs. 1793;.
1335
1326a
EXECUTOES AND ADMirs'ISTRATORS.
[part IV.
"While a testator may specifically limit the specific part of the
assets which shall be used by the representative in carrying on his
trade, it would appear from the principles announced above, that
the representative himself necessarily risks his whole fortune if
he actively embarks in it/ ^^Tiere, however, the probate court, in
the due exercise of its jurisdiction, authorizes an executor or ad-
ministrator to advance or borrow money to preserve a partnership
business in which the estate is interested, such decree is a protec-
tion to the representative and those dealing with him ; ' and it is
held, furthermore, that where the representative carries on the
decedent's business with the asset of the creditors, he is entitled to
be indemnified.'
§ 1326a. The Same Subject.
In any partnership we are still to observe that, in general, upon
the death of one partner, his associate or copartner cannot contract
Kirkman v. Booth, 11 Beav. 273;
Jones V. Walker, 103 U. S. Supr.
444, 26 L. Ed. 404. A will author-
ized the executors to continue the
testator's brewery business as long
as they should think best. It was
held that the expenses of the busi-
ness, losses from bad debts, expendi-
tures for ordinary repairs on the real
estate used in the business, and the
cost of necessary personal property
were charfreable to the income, and
this, altliough the will made no men-
tion of specific items. Jones, Re, 103
X. Y. 621. Where executors are em-
powered to carry on a business as
long as it shall prove advantageous,
the idea is favored that when tlie body
of tlie estate fails to yield a suflicient
income, after making all current de-
<luftions, tlie business shall be dis-
continued, lb. Only tliat part of
tlie property which the testator liad
used in his business is prima facie in
be risked therein. Wilson v. Fridcn-
13:
burg, 21 Fla. 386. See 127 N. Y. S.
884. A residue to be continued in
business will not be presumed to
mean a residue before debts and tes-
tamentary expenses are paid. 5 Dem.
516.
1. Garland, Ex parte, 10 Ves. 110;
Cutbush V. Cutbush, 1 Beav. 184;
Wms. Exrs. 1793; Laible v. Ferry, 32
N. J. Eq. 791.
An executor may carry on a trade
as executor, but he is not the less
personally liable for all the debts
which he may contract in the trade.
Per Turner, Lord Justice, in Leeds
Banking Co., Re, L. R. 1 Ch. 231, 242.
2. Mustin's Estate, 188 Penn. St.
544, 41 A. 618: § 1332.
3. Dowse v. Gorton, (1891) A. C.
190; (1894) 2 Ch. 600. Statutes
may be found on this topic for local
application. 86 S. W. 28 (Tex. Civ.
App.) 252; 58 P. 521, 36 Ore. 8;
115 P. 717, 50 Colo. 149. And see
§§ 1332, 1333, post.
16
CHAP. III.] MANAGEMENT OF THE ASSETS. § 1327
new debts upon the credit of the firm. Assuming, however, that
this general rule may be varied by an express agreement, it is still
to depend upon the particular terms of such agreement how far
the estate of the deceased partner may be thus bound by the sur-
viving partner ; whether this estate shall be generally liable for all
the debts, or only to the extent of the property embraced or left in
the partnership to be employed by the survivor. The presumption
must be unquestionably so as to shelter the estate of the decedent
as far as possible ; and hence, where capital has to be left in the
concern after one's death and the representative takes no active
part in the business, but merely complies with the terms of part-
nership, it is assumed that nothing more than the property left in
the business is thus risked, and that neither the decedent's general
estate nor the representative himself incurs additional liability.^
§ 1326b. The same Subject; Trade Debts, etc.
* The general rule is, moreover, that where the executor or ad-
ministrator, instead of closing out his decedent's business, con-
tinues it, even where the will authorized him to do so, the trade
debts will reach only trade assets ; or in other such property as was
actually employed in the business or resulted from doing the
business.^
§ 1327. Sale, Investment, etc., of Perishable Assets; Cattle, etc.
Perishable assets, and such as naturally depreciate on his hands,
the representative should seasonably dispose of, depositing, more-
over, or investing the proceeds, or appropriating them in some
other suitable mode. It often happens that a person beneficially
interested will take such assets at their just valuation.*'
With regard to cattle or live stock it is the representative's duty
to take proper care of them until they can be advantageously sold,
4. Stewart v. Robinson, 115 N. Y. Cli. 36 (remedy of beneficiaries);
328. Hale v. Herring, 94 N. E. 396, 208
5. Frey v. Eisenhardt, 116 Mich. Mass. 319; Oxiey, Re, (1914) 1 Ch.
160, 170, 74 N. W. 501; Laible v. 604 (no indemnity).
Ferry, 32 N. J. Eq. 791. And see 6. Woods v. Sullivan, 1 Swan, 507;
Gilligan v. Daly, 80 A. 994, 79 N. J. Morton v. Smith, 1 Desau. 128.
1337
§ 1328 ESECUTOKS AXD ADMIISriSTEATOES. [PAKT IV.
and provided he deals with such assets priidentlv and in a business-
like manner, his expenses incurred in regard to the animals should
be allowed.''
§ 1328. Rule as to calling in Money already out on Loan or In-
vestment.
Where general law, or the testator's will, sanctions only invest-
ments of a particular description, the executor or administrator
cannot safelv disregard its implication, that fimds otherwise in-
vested shall be promptly called in. In pursuing such a duty he
should observe prudence and good faith, as in other instances ; but
negligence in point of time as to stocks and securities of speculating
and fluctuating value is culpable, especially if pajTnents to be made
on behalf of the estate render the necessity urgent for realizing in
cash promptly. Unless it appears highly probable that by delay
a better price will be realized, the safer course for the fiduciary is
to sell disfavored assets at an early stage of his administration,
unless all the parties in interest or the court of probate or chancery
expressly sanction delay.^
Nevertheless, reasonable diligence and good faith are regarded
in determining the representative's liability in such cases. That
the delay resulted on the whole advantageously for the estate may
perhaps be suiScient exoneration. Nor can it be said that there
is any fixed period at which loss by depreciation becomes charge-
able absolutely to the representative himself ; for it depends on the
particular nature of the property, and the particular circum-
stances.' In England, where the range of trust investments is seen
7. Fernandez, Re, 119 Cal. 580, 51 Cottonliam, is not liable upon a proper
P. 851. This is not like carrying on investment in an authorized fund for
a trade. lb. the fluctuations of that fund, but he
8. Powell V. Evans, 5 Vcs. 839; is for the fluctuations of any un-
Peate v. Crane, 3 Dick. 499; Bullock authorized fund. Clough v. Bond,
V. Wheatley, 1 Coll. 130; Brazen v. 3 My. & Cr. 496.
Clark, 5 Pick. 96; Boyd v. Boyd, 3 9. Buxton v. Buxton, 1 M. & Cr. 80;
Gratt. 113; Wms. E.xrs. 1806, 1815; McRae v. McRae, 3 Bradf. Sur. (N.
Moyle V. Movie, 2 Buss. & My. 710. Y.) 199.
The representative, observes Lord
1338
CHAP. III.] MANAGEMENT OF THE ASSETS. § 1329
to be quite limited, a different application of the rule may be ex-
pected than in many ports of the United States. But consistently
even with the English rule, leasehold property, or money invested
upon good real estate mortgage security, need not be converted into
three per cent, consols. Nor, in general, is it the duty of an execu-
tor or administrator to call in assets well and productively invested,
where no undue risk is apparent, and the cash assets, together with
collections and the proceeds of less desirable investments, will
suffice for all the immediate purposes of administration.^ It is
the less secure investments and debts which demand one's keener
vigilance.
§ 1329. Rule as to making Unauthorized Loans or Investments.
According to the strict rule of common law, if an executor or
administrator lent assets without authority, this was a conversion
for which he became personally liable.^ This is perhaps too harsh
a statement to suit the modern practice, for by the probate and
equity precedents it is enough if he act with honesty and due dis-
cretion as concerns what may be called authorized classes of loans.
But where one loans or invests money belonging to the estate in a
mode adverse to the directions of the law, even though honestly
intending to benefit the estate, he becomes personally liable for
loss should the security prove defective.^ He is certainly liable if
1. Wms. Exrs. 1817; 7 Ves. 150; 109; State v. Johnson, 7 Blackf. 529.
Robinson v. Robinson, 1 De G. M. & 3. As, e. g., in States where loans
G. 247. As to calling in " Confederate on the personal security of Individ-
securities " in the Southern States, uals are not permitted. Moore v.
see Tompkins v, Tompkins, 18 S. C. 1. Hamilton, 4 Fla. 112; 27 Gratt. 42;
In New Jersey the statute protects a 20 La. Ann. 143 ; Probate Judge v.
representative who in good faith does Mathes, 60 N. H 433. But cf. 18 S. C.
not disturb the decedent's investment 544. And so in England. Wms. Exrs.
in bank stock, though the bank should 1809; Bacon v. Clark, 3 M. &. Cr. 294.
fail. 42 N. J. Eq. 559, 9 A. 217. The Or where one loans on a second-class
general rule of prudence and honesty mortgage, and beyond two-thirds of
applies as to calling in mortgage se- the value of the mortgaged premises,
curities, where such investments are Bogart v. Van Velsor, 4 Edw. Ch.
authorized. Chapman Re, (1896) 2 718; Wilson v. Staats, 33 N. J. Eq.
Ch. 763. 524.
2. Tomkies v. Reynolds, 17 Ala.
1339
1330
E5ECUT0KS AND ADMINISTEATOES.
[part IV.
he mixes the trust fund with his o^vn property in such a way that
its trust identity is lost ; ^ or if he appropriates the fund to his
o^vn use, or, as one might say, loans* it to himself, or invests it in
his own property, or deposits it as his private funds,^ for this would
involve a breach of faith. Even where he invests in duly author-
ized securities, carelessness or bad faith evinced in the conduct of
the transaction will still render him chareeable."
§ 1330. Representative's Acts are for Benefit of those interested
in Estate; Good Faith, etc., required.
Good faith, as in bailments and trusts, continues an element
throughout, in the personal representative's dealings with the
assets. All the acts of an executor or administrator are by intend-
ment for the benefit of the estate ; and he shall make no personal
gain or loss, except as the compensation allowable on his accounts,
for the reward of diligence, fidelity, and good management, may
be thereby affected.^ Nor will he be allowed to speculate with the
4. See Kirkman v. Benham, 28 Ala.
501 ; Henderson v. Henderson, 58 Ala.
582; § 1317 o.
5. Ackerman v. Emott, 4 Barb.
626; Commonwealth v. McAllister, 28
Penn. St. 480; 53 Ala. 169; 75 Va.
792; Williams v. Williams, 55 Wis.
300.
6. Cason v. Cason, 31 Miss. 578. As
if a rf3al estate mortn:age investment
should be made without liaving rea-
sonable assurance that the title is
good. Bogart v. Van Velsor, 4 Edw.
Ch. 718. See §§ 1323, 1324.
Investments or individual loans
witliout security at all or upon poor
security are not permissible. 39 N.
J. Eq. 247; 19 Fla. 300. But an to
settling prudently with a failing
debtor sec Torrence v. Davidson, 92
K. C. 437, 53 Am. Rep. 419; Dabney's
Appeal, 14 Atl. 158, 120 Penn. St.
344. Stock in a trading company ia
not usually (if common stock) suit-
able for a fiduciary investment.
Reed v. Reed, 68 A. 849, 80 Conn. 401.
As to keeping up a life insurance
policy, by way of collateral security
in an exceptional case, see Overman
V. Lanier, 73 S. E. 192, 159 N. C.
437 (representative protected).
7. See post, Part VII, c. 2, as to
accounts; Wms. Exrs. 1842, 1967, and
notes; Cook v. Collinghridge, Jacob,
607; PafT v. Kinney, 1 Bradf. 1.
Where the executor of a chattel
mortgagee bouglit in the equity of
redemption in liis own name, and for
his own benefit, lie was licld to be
a trustee for tiie benefit of tlie tes-
tator's estate. Fosbrook v. Balguy. 1
My. & K. 226. If an executor lends
money of tlic estate in his individual
capacity, and takes a bond and mort-
1340
CHAP. III.] MANAGEMENT OF THE ASSETS. § 1331
funds for his own profit or at the risk of the estate.^ Xor to acquire
interests in or bargain for benefits from the property he controls ;
nor in general to take for his own benefit a position in which his
interests must conflict with his dutj.^ IsTevertheless, in various
modern instances, a purchase of fiduciary assets and interests, by
the representative, is upheld as not absolutely illegal and void,
though justifying a close scrutiny into the bona fides of the trans-
action.^
Moreover, the fiduciary character of the executor or adminis-
trator extends to all the parties interested with respect to their
several rights and priorities. He cannot defraud creditors for the
sake of those entitled to the surplus; nor sacrifice one legatee for
the benefit of the others.
§ 1331. Assets should be kept distinct from Representative's
own Property.
Courts of equity require executors and administrators to preserve
the property of the deceased distinct from their own, in order that
it may be known and readily traced ; and if they do this, the courts
will protect and assist them to the extent of their power.^ Prop-
erty kept thus distinct cannot be subjected to claims upon the
representative in his private capacity.^ But where, on the other
gage payable to himself indhidually 1. § 1358, post.
and dies, his personal representative 2. Hagthorp v. Hook, 1 Gill. & J.
only can enforce the securities. 270. And see Calvert v. Marlow, 6
Caulkins v. Bolton, 98 N. Y. 511. Ala. 337; Robinett's Appeal, 36 Penn.
8. Callaghan v. Hill, 1 S. & R. 241; St. 174; Newton v. Poole, 12 Leigh,
Kellar v. Beelor, 5 T. B. Mon. 573; 112,
post, as to accounts. To lend to him- 3. Branch Bank v. Wade, 13 Ala.
self or use for private profit is a 427. A bank deposit kept by A as
breach of trust. 4 Barb. 626; 28 administrator cannot be applied by
Penn. St. 480, 53 Ala. 169; 75 Va. the bank to a check drawn in his
792; Williams v. Williams, 53 Wis. individual name, 58 Ohio St. 207, 65
300, 42 Am. Rep. 708, 13 N. W. 274; Am. St. Rep. 748, 50 N. E. 723. His
127 N. Y. S. 888. own representative and not an ad-
9. Sheldon v. Rice, 30 Mich. 296, 18 ministrator de bonis non is entitled
Am. Rep. 136; Landis v. Saxton, 89 to such a fund on his death. 153
Mo. 375; next chapter. Penn. St. 345, 25 A. 1119.
1341
§ 1332 EXECUTORS AND ADMINISTEATORS. [PAET IV.
hand, the executor or administrator commingles funds of the estate
with his oAvn, so that the separate identity of the trust fund cannot
be traced, he is held accountable, at the option of the beneficiaries,
as though for a conversion,* and interest is sometimes compounded
on the fund by way of a penalty or in lieu of the estimated profits.^
The representative should not mingle what he holds in different
capacities ; such for instance as executor and guardian.*
§ 1332. Liability qualified when Acts are performed under Ad-
vice and Assent of the Parties in Interest.
We may presume that the personal representative can never be
strictly justified in deviating from the line of bailment or fiduciary
duty. But, in case of doubt as to his proj)er course, he may pro-
tect himself by prudently pursuing in advance one of two courses :
(1) he may procure the advice and assent of all the parties in
interest; or (2) he may take the direction of the court. On the
first point it is laid down in the courts, that the personal repre-
sentative who in a particular transaction acts in good faith, under
the direction of all the parties who are interested in the estate, is
to be protected, when he renders his accounts, from a claim on
their part that he has not administered strictly according to law,
in respect to such transaction. He may prosecute or defend suits,
compromise claims upon the estate, or deal with the estate in a
particular way, not usual or strictly legal, as by continuing the
property in business; and those parties in interest, by whose re-
quest or assent it has been done, will not be permitted to impute it
as maladministration.'' But parties in interest who give no such
asset or autliority can, of course, call his conduct to accoimt.*
4, Henderson v. Henderson, 58 Ala. W. 602, 89 Neb. 334: Howe v. Winn,
582. But see Kirby v. State, 51 Md. 150 S. W. 842, 150 Ky. 667 (deposit
383; 51 Md. 352. in one's own bank).
5. Gilbert's Appeal. 7S Penn. St. 6. Hedrick v. Tuckwiller, 20 W. Va.
206; Nettles v. MeCown. 5 S. C. 43; 489.
McKenzie v. Anderson, 2 Woods, 357; 7. See Colt, J., in Poole v. Mun-
S5 P. 149, 149 Cal. 167; 85 N. W. 617, day, 103 Mass. 174, where property
113 Iowa, 351; Bush's Estate, 131 N. was thus continued in business. In
1342
CHAP. III.] MANAGEMENT OF THE ASSETS. § 1333
§ 1333. Liability qualified where Acts are performed under Di-
rection of the Court,
The personal representative may take the direction of the court.
Enabling acts of this character, to be found in our codes, permit
the executor or administrator to consult the probate or county
court in many instances, and take its direction after an inexpen-
sive and summary course, notwithstanding he might have acted
without its direction. Thus he may ask permission to make a
certain sale or pledge of personal property, to invest after a
certain manner, to change an investment, to compromise or sub-
mit to arbitration a specified claim, or to perform some contract
of his decedent. But in most if not all of such cases, as is shown
elsewhere, the executor or administrator may perform without an
order of court upon the usual risks of a fiduciary, and the statute
is not imperative in requiring him to seek judicial direction in
advance.^
Courts of prohate are in various States empowered to authorize
the money belonging to an estate in process of settlement, or bal-
ances or special fund which require to be set aside unusually long,
to be deposited in certain designated banks or institutions; or to
be temporarily invested in approved securities.^ But such courts
have no inherent authority to control the representative as to how
or where the latter shall keep the assets.^
Perry v. Wooten, 5 Humph. 524, in- 9. Smith v. Wilmington Coal Co.,
diligence of a debtor was sanctioned 83 111. 498; Richardson v. Knight, 69
by the parties interested. So, too. Me. 285. But see contra, Garesche
Watkins v. Stewart, 78 Va. Ill; 99 v. Priest, 78 Mo. 126.
Tenn. 462, 42 S. W. 199. And see 1. Mass. Pub. Stats, c. 156, § 32.
j)Ost, Part VII., as to accounting; 13 2. Welch's Estate, 110 Cal. 605, 42
Phila. 195. P. 1089. Chancery itself has but a
8. See Orr v. Orr, 34 S. C. 275, 13 limited inherent power to direct or
S. E. 467; Swaine v. Hemphill. 131 control the administration of the
N. W. 68, 165 Mich. 561 (continuing estates of decedents. See Alexander
decedent's business). Cf. 80 A. 994, v. Herring, 55 So. 360, 99 Miss. 427.
79 N. J. Ch. 36 (infants incapable of
assent) .
1343
§ 1335 EXECUTOES AND ADMIXISTRATOES. [PAET IV-
§ 1334. Rule where Control is taken by Court out of Representa-
tive's Hands.
In this latter connection we may add, that where the control
of assets is taken out of the power of the personal representative,
by the act of the law, orders of the court of probate or chancery,
or other paramount authority, his strict fiduciary relation toward
it so far ceases, together with his personal liability for its care
and management.^ The English chancery court, after a decree to
account, does not permit an executor or administrator to invest
without its leave or without its order/ And, in some of the United
'States, similar safeguards are to be found for various instances ;
the probate court making orders as to loans and investments, to
the intent that no exercise of his own private judgment shall re-
lieve the representative from individual liability.^ Even while
pursuing the orders of a court, the representative may incur a
personal liability if he disregard the judicial directions.® By pay-
ing over the funds to the judge of probate, on the latter's order, the
personal representative becomes discharged from all further liabil-
ity, under such legislation,^ and local statutes are found which in-
vest the probate court with special authority in matters of admin-
istration.
§ 1335. Directions of a Will as to Investment, etc., may be rea-
sonably followed; Specific Legacy, etc.
Directions of the testator's will as to the deposit or invest-
3. Hall's Appeal, 40 Penn. St. 409. the lawful directions of a will. Hind-
4. Wms. Exrs. 1809: 2 Meriv. 494. man v. State, 61 Md. 471; § 1335.
5. Bacon v. Howard, 20 Md. 191; 6. See next c. as to sales under
Lockhart v. Public Administrator, 4 judicial direction; McDonald Re. 4
Bradf. (N. Y. 21; Fowle v. Thomp- Redf. 321. But in sudden and great
son, 5 Rich. Eq. 491; Doogan v. El- emergencies, the representative's pru-
liott, 43 Iowa, 342. And see 87 Md. dent disregard of such requirements
284, 39 A. 745. The general powers will be leniently treated. Morton v.
of a surrogate embrace the power to Smith, 1 Desau. 128.
disapprove investments made by an 7. Kven though the judge's order be
executor. Jones v. Hooper, 2 Dem. verbally expressed. Doogan v. Elliott,,
(N. Y.) 14. The court should not 43 Iowa, 342. And see 87 Md. 2S4.
make any ord<'r which conflicts with
1344
CHAP. III.] MANAGEMENT OF THE ASSETS. § 1335
ment of particular funds are not to be disregarded.^ Thus, even
the cautious rules of English chancery justify an executor in lay-
ing out a fund in real or personal securities at discretion, or loaning
to private individuals, wherever the testator so directed, provided
a fair, honest, and prudent judgment be exercised in doing so.*
Oral instructions of the decedent, however, cannot justify a diver-
sion of trust funds.^ And even as to wills, the doctrine applies
not without restrictions. For not only may an executor incur
liability by persistently carrying out testamentary directions of
this sort, plainly inapplicable to existing circumstances, — as if for
instance, the will directed an investment in the stock of a par-
ticular corporation, which has since become embarrassed ;^ but
it is fairly established at length in the courts, notwithstanding some
hostile criticism, that a testator's directions as to investment apply
with the truer force against legatees, their interest being founded
in his gift, and not as against creditors, whose just demands must
be met irrespective of a testator's intentions.^ And hence, a credi-
tor may not be concluded by losses incurred through a fiduciary's
loan or investment, such as the will sanctions, but not the rule of
the courts and legislature, while a legatee would be concluded.*
A will may, however, control the direction of the executor or
administrator in other ways ; as by requiring him to invest, where
8. Wms. Exrs. 1809; Forbes V. Ross, of the will as to investment, con-
2 Cox, 116; Gilbert v. Welsh, 75 Ind. version, etc., is excused. Stretch v.
557; Smyth v. Burns, 25 Miss. 422; McCampbell, 1 Tenn. Ch. 41.
Hogan V. De Peyster, 20 Barb. 100; 3. Wms. Exrs. 1809, 1836
McCall V. Peachy, 3 Munf. 288. Churchill v. Hobson, 1 P. Wms. 242
9. Wms. Exrs. 1809. And see Nel- Doyle v. Blake, 2 Sch. & Lef. 239
son V. Hall, 5 Jones Eq. 32 ; Smyth v. Lewin Trusts, 5th Eng. ed. 222 ; Mc-
Burns, 25 Miss. 422. Nair's Appeal, 4 Rawle, 148. Cf. upon
1. Malone v. Kelley, 54 Ala. 532. this distinction between legatees and
2. If the testator's directions can- creditors, 1 Eden, 148; Sadler v.
not be followed because no such se- Hobbs, 2 Bro. C. C. 117. As to dis-
curities as he directs are offered, the pensing with leave of court, see 88
representative may prudently deposit Ind. 1.
on interest in a savings bank. Lan- 4. Doyle v. Blake, supra; McNair's
sing v. Lansing, 45 Barb. 182. Rea- Appeal, 4 Rawle, 148.
sonable delay in following the order
85 1345
§ 1336 EXECUTORS AND ADMINISTKATOKS. [PAKT IV.
otherwise the fund might have been left idle; or to place money
in securities to which he would otherwise not have been confined.^
To invest less securely than the testator directs, renders the rep-
resentative liable personally.'' The court may authorize a sale or
change of investment, agreeably to one's will.^
A specific legacy should usually remain invested in the specific
security or cliose set apart and designated for that purpose by the
will'
§ 1336. Summary of Doctrine as to Management and Invest-
ment; Deviations, when permitted.
The general management and investment of the assets is seen
to be affected by statute, or by judicial and perhaps testamentary
directions, whose tendency is to restrain the executor or admin-
istrator to a particular course of action. Thus the general bail-
ment doctrine of prudent discretion and good faith becomes affected
by requirements that the investment shall be made in specified
classes of securities, or that the moneys collected shall be placed
with certain depositaries. For such cases the rule is fairly stated
thus by Lord Cottenham : " Although a personal representative,
5. Shepherd v. Mouls, 4 Hare, 503. vestments, etc., may control other
6. Xyce's Estate, 5 W. & S. 254, 40 clauses directing a particular invest-
Am. Dec. 498; McKensie v. Anderson, ment, under appropriate circum-
2 Woods, 357. If a will directs in- stances. See Stephens v. Milnor, 24
vestments to be in a suitable manner N. J. Eq. 358; Pleasant's Appeal, 77
at the executor's discretion, this does Penn. St. 356. Where executors are
not give discretionary power to in- directed by the will to loan, etc., on
vest in unsecured notes. 5 Dom. 209. interest for a stipulated time, they
A power to sell does not authorize may presumably, at discretion, loan
the exchange of bank stock for bonds. for less than the full time, and re-
Columbus Ins. Co. V. Humpliries, G4 loan from time to time, or change the
Miss. 258, 1 So. 232; 39 N. J. Eq. 249. security, as they may deem prudent.
7. See 95 Ga. 707, 22 S. E. 533. Miller v. Proctor, 20 Ohio St. 442. In
8. See this rule stated with its lim- executing the trust, there must be no
itations in Ward v. Kitchen, 30 N. negligent or dishonest performance of
J. Kq. 31. Also the construction of the directions contained in tlie will.
a direction to invest " in productive Styles v. Guy, 1 Mac. & G. 422; Wms.
funds upon good securities." etc. lb. Exrs. 1806; Bacon v. Clark, 3 My. &
Power under a will to change in- ("r. 294.
134G
CHAP. 111.] IMANAGEMENT OF THE ASSETS. § 1337
acting strictly within the line of his duty, and exorcising reason-
able care and diligence, will not be responsible for the failure or
depreciation of the fund in which any part of the estate may be
invested, or for the insolvency or misconduct of any person who
may have possessed it; yet, if that line of duty be not strictly
pursued, and any part of the property be invested by such per-
sonal representative in funds or upon securities not authorized, or
be put within the control of persons who ought not to be intrusted
with it, and a loss be thereby eventually sustained, such personal
representative will be liable to make it good, however unexpected
the result, however little likely to arise from the course adopted,
and however free such conduct may have been from any improper
motive."^ This is a principle not unfamiliar to the law of bail-
ments, which holds a bailee strictly liable who deviates from the
terms of his bailment.^
Yet a deviation from the strict terms of a bailment by reason
of necessity is admitted to excuse a bailee, — perhaps because every
rule finds. its exception; and as Lord Cottenham fui-ther observes,
necessity, which includes the regular course of business in admin-
istering the property, will in equity exonerate the personal repre-
sentative.^
§ 1337. Management, Investment, etc., by Executor or Adminis-
trator similar to that by Guardian, Trustee, etc.
The principles discussed in this chapter bear a close analogy to
those which the courts apply to guardians and testamentai-y trus-
tees,^ as well as to what the law usually denominates bailees;* with,
however, essential differences in the character of the office as al-
xeady pointed out.
9. Clough V. Bond, 3 M. & Cr. 496. 3. See e. g.. Hill Trustees, 368-384,
1. See Schoul. Bailm. §§ 17, 18. and Wharton's notes; Perry Trusts,
2. Clough V. Bond, supra; Wms. §§ 452-464; Schoul. Dom. Eel.
Exrs. 1820. And see Morton v. §§ 352-354.
Smith, 1 Desau. 128. 4. Supra, § 1315.
1347
^ 1338 EXECUTOES A:N'D ADMIXISTKATORS. [part IV.
§ 1338. Election to charge Representative or to accept the In-
vestment.
Where the executor or administrator, or other fiduciary, loans
the trust money without authority of law, or makes other un-
authorized use of it, the rule is that the cestui que trust, or bene-
ficiary, may elect either to charge him with the fund thus used, op
instead, to accept the investment.^ When the executor or admin-
istrator is charged with and accounts for the fund so used, it be-
comes his individual property, and he acquires the full rights of
a beneficial owner.^ A similar right of election avails, where th9
fiduciary was bound to invest in a certain manner, and did not,
so as to charge him with the amount which might have been
realized had the specific investment been properly made.^
5. Clouffh V. Bond, 5 My. & Cr. Mouls, 4 Hare, 503; Darling v. Ham-
496; Waring v. Lewis, 53 Ala. 615; mer, 5 C. E. Green, 220. But aliter,
McClear's Will, 132 N. W. 539, 147 it appears, if no fund was specified;
Wis. 60. for suc« a rule becomes impracticable.
6. Warren v. Lewis, 53 Ala. 615. 1 De G. M. & G. 247; Wms. Exrs.
7. Wms. Exrs. 1815; Shepherd v. 1815.
1348
CHAP. IV.] kepkesentative's power to sell, etc. § 1330
CHAPTER IV.
THE REPRESENTATIVE'S POWER TO SELL^ TRANSFER, AND PURCHASE.
§ 1339. Representative's Power to dispose of Assets.
For the sake of an efficient administration of the estate which
he represents, the absolute control of the personal property of the
decedent, for purposes of his trust, is veste.i by law in the executor
or administrator, and he has the legal power to dispose of any and
all of such property at discretion. This rule, as we have seen,
prevails where no statute opposes restraints ; and while it is the
representative's duty to use reasonable diligence in converting
assets into cash, for the general purposes of his trust, the law
pemiits him, within certain limits, to exercise a reasonable dis-
cretion as to the time when he shall make a transfer of assets,
and the manner in which his right of disposition shall be exer-
cised.^ Sound judgment and honesty on the representative's part
may be presumed by the buyer in such a case; and provided he
purchase bona fide for a fair consideration, and without fraudu-
lent collusion, his title to personal assets of the decedent, derived
through the lawful executor or administrator, must prevail against
the world.^
But while a purchaser's title may remain good, justification on
accounting is needful, on the part of the executor or administrator
himself.
1. Supra, § 1322; Wms. Exrs. 932; tor or administrator in many in-
Nugent V. Giffard, 1 Atk. 463; Whale stances must sell in order to perform
V. Booth, 4 T. R. 625. He must ex- his duty in paying debts, etc.; and
eroisc due diligence as well as good no one would deal with an executor
faith, in making a, sale of assets. 108 or administrator if liable afterwards
X. C. 69. Statute restraints of a local to be called to account. Whale v.
character must be locally observed. Booth, 4 T. R. 625, per Lord Mana-
74 Cal. 536, 5 Am. St. Rep. 466, 16 field. And see Wms. Exrs. 934, 935;
P. 321; 105 ill. 32 (as to credit Scott v. Tyler, 2 Dick, 725; Leitch v.
sales) ; § 1346, post. Wells, 48 N. Y. 585.
2. The principle is, tliat the execu-
1349
§ 1341 EXECUTORS AXD ADMIXISTKATOES. [pAET IV.
§ 1340. Sale or Transfer can only be made while the Represen-
tative holds office.
A sale or transfer made by an executor or administrator while
in office is not rendered the less valid as respects third parties bv
the later revocation of his authority, or his resignation or removal ;
and as for its justification in the settlement of his accounts, the
cardinal rule of good faith and due prudence still applies.^ But
a sale, made after the title which devolved upon him at the death
of his testator or intestate has become divested by his removal or
otherwise, cannot be good, for he has not a title to confer.*
§ 1341. Whether Assets should be sold at Public or Private
Sale.
The general rule is that the representative's sale of his deced-
ent's personal property may be either at private or public sale,
provided the sale be reasonably prudent and honest.^ But an auc-
tion or public sale best vindicates the representative's good con-
duct, where the amount actually realized falls short of the ap-
praised value, and, on the whole, is the safer; and in some States,
indeed, the representative must, unless protected by judicial di-
rections, sell at public sale, or no title will pass to the purchaser.^
Where the representative sells fairly at public sale, he is only
responsible for what the property brought ; where he sells at prj-^atei
sale, the full value appears the test, rather than the price obtained ;
but in either case, if the sale be fair and honest, the purchaser, ac-
cording to the usual rule, takes a good title.''
3. Benson v. Rice, 2 Xott. & M. Bank, 57 Ind. 198. See Butler v.
577: Price v. Nesbit, 1 Hill (S. C.) Butler, 10 R. I. 501. The Illinois
Ch. 445. And see Soye v. McCallister, statute requires the administrator,
18 Tex. 80, 67 Am. Dec. 689. whenever he sells on credit, to take
4. Whorton v. Moraprne, 62 Ala. 201. security, and if loss results from his
5. Mead v. Byinffton, 10 Vt. 116; failure to do so, he must bear it.
Tyrrell v. Morris. 1 Dev. & B. Va]. Bowon v. Shay, 105 Til. 132.
559; 99 Tenn. 462. 7. Lothrop v. Wiphtman, 41 Bonn.
6. Bo^'an v. Camp, 30 Ala. 276; St. 297. 302; 71 Tlun (N. Y.), 32.
McArthur v. Currie, 32 Ala. 75, 70 See 130 N. Y. S. 191 (cardinal rule
Am. Dec. 529; Gaines v. De la Croix. applied).
6 Wall. 719: Weyer v. Second Nat.
1350
CHAP. IV.] representative's power to sell, etc. § 1343
§ 1341a. Employment of an Agent to Sell, etc.
The representative may employ an agent or auctioneer to sell for
him.^ But agency has its properly defined scope, and an agent to
merely collect is not one's agent to sell.® Careless supervision of
his agent renders the representative liable.^
§ 1342. Sale of Goods bequeathed for Life with Remainder over.
A residue of goods which are given for life with a remainder
over, ought to be sold by the executor, if the trust is confided to
him ; and the interest or money on the invested proceeds of the sale
should be paid to the legatee for life, the principal being kept for
the remainder man.^
§ 1343. Power of Representative to dispose of Chattels specifi-
cally bequeathed.
The power of the executor to transfer on good occasion, and dis-
pose of a chattel specifically bequeathed, though sometimes ques-
tioned, appears on the whole to be well established, as following
the general rule of personal assets.^ But cautious administration
appears to require, in order to clear the representative himself and
a purchaser who happens to be aware of such bequest, that the
specific legatee should concur in the transfer;* for, undoubtedly,
the executor's assent to the legacy, so as to divest his title in favor
of a specific legatee, is readily presumed wherever the estate is
ample to meet demands upon it; and unless the general personal
assets fail, the executor commits a breach of duty in disposing
of property bequeathed specifically instead of giving it to the
legatee.^
8. Lewis V. Reed, 11 Ind. 239 ; Dick- 178. See Sarle v. Court of Probate,
Bon, Re, 6 La. Ann. 754. 7 R. I. 270; § 1479 post.
9. Kennedy v. Chapin, 67 Md. 454, 3. 2 Vern. 444; Ewer v. Corbet, 2
10 A. 243. And see Smith v. Peyrot, P. Wras. 149 ; Langley v. Lord Oxford,
94 N. E. 662, 201 N. Y. 210. Ambl. 17; Wms. Exrs. 934.
1. Skeer's Estate, 84 A. 787, 236 4. Wms. Exrs. 934, and note, citing
Penn. 404 (power of attorney to close 2 Siigd. Vendors, 56, 9th ed.
business). 5. See post, Pt. V. cs. 3, 4, as to
2. Jones v. Simmons, 7 Ired. Eq. legacies. One who purchases a chat-
1351
^ 1345 EXECCTOES A2>D ADMIXISTKATOES. [PAET IV.
§ 1344. Sales of Perishable Assets, etc.
Sales of personal property of a decedent's estate, when liable
to waste, or when of a perishable nature, may be expressly author-
ized by the court, as some statutes provided ; such provisions, how-
ever, having a fitter relation to special administrators, collectors,
and the like, than to the general administrator or executor, whose
ample discretion to sell for the preservation and benefit of the
estate cannot be doubted.®
§ 1345. Representative's Sale of his Decedent's Business.
An executor or administrator has authority to dispose of the
business of his decedent, including the stock in trade and good
will ; he may also sell out the stock on hand separately, in the
exercise of a just discretion; but he should be heedful how he in-
curs personal risks by undertaking, without authority, to carry
on the trade himself.'' So, too, the representative of a deceased
partner may dispose absolutely of his decedent's interest in the
assets of a firm to the sunnving partner, or to any other person
under the same qualifications; and he may accept cash or other
personal property in payment, if the bargain be a fair one.* Cir-
cumstances may arise under which the representative's sale, made
to the surviving partner simply in order to transfer to him the
legal title to be used for settling the business, may prove valueless
to the estate ; as where the whole firm property is needed to satisfy
the firm debts.^ And one must take care that he does not transcend
some local statute which forbids private sales without specific au-
thority.^
tel specifically bequeathed, knowiii}]; 7. Supra, § 1325.
that it was thus bequeathed, and tliat 8. Roy v. Vilas, 18 Wis. IfiO; ITol-
tliere are no debts, will take his title laday v. Land Co.. 57 Fed. 774. And
subject to the bequest. Garnet v. see as to carrying? on a partnership
Macon, 6 Call. 308. tradp. §§ 1325, 1326. 1379.
6. Public Administrator v. P.urdcll, 9. Mcrritt v. Dickoy, 38 Mich. 41.
4 Bradf. 252; Redf. (N. Y.) Surr. 1. Tell Furniture Co. v. Stllos, 60
Tract. 175; Harris v. Parker, 41 ^liss. 849. Sale of a business incum-
Ala. 604. And see supra, § 1327. But l)cr(>d by a mortgage should require a
local statutes should be consulted. i)urchaser to assume the mortgage.
I o - o
ciiAr. IV.] kepkesentative's power to sell, etc. § 134G
A personal representative who trades actively with his decedent's
business stock, renders himself a trader, on the one hand, to those
with whom he deals ; while, on the other, he continues accountable
ito the estate for the value of the stock thus perverted, and its
profits.^ But merely to sell out the stock in hand, without in-
creasing what the decedent left, does not constitute the representa-
tive a trader ; for it is a question of intention to carry on the trade,
which must be inferred from circumstances.^ Where an executor,
in carrying on a trade under a power contained in the will, abuses
his authority, by taking out a new lease of the premises in his
own name, and then borrows money on the security of the lease,
the equity of the testator's estate to the renewed lease will take
precedence of the lender's equity to such security.*
§ 1346. Sales and Transfers of Personal Assets under Probate
Direction.
Local legislation in the United States aids, sometimes, the repre-
sentative's inherent power over the personal assets. Thus, a Massa-
chusetts statute provides that a probate court, after the return of
the inventory, may order a part or the whole of the personal estate
of the deceased to be sold by public auction or private sale as may
be deemed most for the interest of all concerned ; application for
such an order may be made by the representative or by any person
interested in the estate ; and the representative shall account for
the property so sold at the price for which it sells.^ This act does
Gilligan v. Daly, 80 \. 994, 79 N. J. attached the moment the new lease
Eq. 36. As to transferring decedent's was granted, and the lender's equity
business to a corporation under ex- not until the loan was made; and of
«cutor's management, see 85 A. 65, two parties with equal sureties, qui
236 Penn. 630. prior est tempore, potior est jure.
2. See supra, § 1326 ; Wood's Es- Nor can it in such a case be said that
tate, 1 Ashm. 314; Leeds Banking Co., the lender was a purchaser without
Re, L. R. 1 Ch. 231; Evans Re, 34 Ch. notice, for had he inquired he would
D. 597. have been placed on his guard.
3. Wms. Exrs. 1794. 5. Mass. Pub. Stats. (1882) c. 133,
4. Pillgrem v. Pillgrem, 45 L. T. § 3.
183. For the equity of the estate
1353
1346
EXECUTOES AXD ADMIXISTEATOKS.
[part
IV.
not restrain executors and administrators in tlieir general anthority
to alienate the personal assets, except, perhaps, in affording in-
terested parties an opportunity to apply for an order directing the
manner of sale; but its main object appears rather to protect the
representative, where delicate management is needful for settling
the estate properly. So, too, the ISTew York statute provides for a
formal sale, public or private, of personal property so far as may
be needful, under judicial direction, if the executor discovers that
debts and legacies cannot otherwise be paid and satisfied.^ Stat-
utes of a similar character mav be found in other States ; ^ the
6. 2 N. Y. Eev. Stats. 87, § 25;
Eedfield's (N. Y.) Surrogate Pract.
236.
7. Gary's Prob. Pract. § 334; Wise.
Stats. § 3837; Gen. Stat. Minn. c. 54,
§ 4. See also Joslin v. Caughlin, 26
Miss. 134. In some States a sale of
stock cannot be made without li-
cense of the probate court unless the
representative assumes the whole in-
ventory of the estate at its appraised
value. French v. Currier, 47 N. H. 88.
Or it ia held that the representative
must not sell witliout order of court
for less than the appraised value of
the property. Munteith v. Ralm, 14
Wis. 210. And see State v. Dickson,
111 S. W. 213 Mo. 66; Crenshaw v.
Ware, 146 S. W. 426, 148 Ky. 196.
But in general, if stock belonging
to the estate, be sold in good faith and
with ordinary prudence, the repre-
sentative is justified, even though he
sold at a depreciation, and the stock
afterwards rose much higlier. Green,
He, 37 N. J. Eq. 254.
The power of the probate court to
order a sale of personal property is
conferred by a statute, and qunnd hoc,
the probate court is a tribunal of
npecial jurisdiction, and must pursue
the statute requisites. Hall v. Cliap-
13
man, 35 Ala. 553. Sale cannot be
ordered at the instance of a personal
representative, unless the title which
devolved upon such representative re-
mains in him. Whorton v. Moragne,
62 Ala. 201. As to the object of such
sale, as set forth by petition, see
Ikelheimer v. Chapman, 32 Ala. 676.
The executor or administrator need
not wait for a judgment to be had
against him for a debt justly due, in
order to make valid the title of a
purchaser of property sold in satis-
faction of the debt. Smith v. Pollard,
4 B. Mon. 67.
Peculiar delays attending the set-
tlement of the estate such as might
arise, for instance, where the riglits
of those claiming to be legatees or
distributees were in litigation, might
justify the probate court in ordering
a sale of personal property on the
representative's applioation. Craw-
ford v. Blackburn, 19 Md. 40. As to
notice of the intended sale, see ITal-
leck V. Moss, 17 Cal. 339; Butler v.
Butler, 10 R. I. 501. As to postpone-
ment of the sale, see Lamb v. Lamb,
Spears (S. C.) Oh. 289, 40 Am. Dec.
618.
Tlie purchaser should see tliat tlio
representative makes his sale accord-
54
ciiAP. IV.] kepresentative's power to sell, etc. § 134G
general right of the representative to alienate personal assets not
being essentially altered thereby.
Some local statutes provide further that, for the purpose of
closing the settlement of the estate, a probate court may, upon,
petition of the executor or administrator, and notice to the inter-
ested parties, license a sale and assignment of any outstanding
debts and claims which cannot be collected without inconvenient
delay ; ^ and any suit for the recovery of a debt or claim thus sold
and assigned shall be brought in the name of the purchaser, and
the executor or administrator shall not be liable for costs.*
Personal property of the deceased, notwithstanding such stat-
utes, is commonly sold by executors or administrators, at their
own discretion, without any order of court; and, if the repre-
sentative acts in good faith and sound discretion, the interests of
no person concerned can be injuriously affected.^ The subsequent
approval of the court, moreover, appears practically equivalent to
a previous order. The executor or administrator, however, makes
a sale at his own risk, where such an order or license is not pre-
viously obtained ; and the advantage of procuring one is apparent,
where it is probable that the property cannot be sold for its ap-
ing to the statute or judicial order. further, Libby v. Christy, 1 Redf. (N.
Fambro v. Gautt, 13 Ala. 305. Mere Y.) 465.
irregularities in pursuing an order of The purchaser at the representa-
sale are sometimes cured by the tive's sale should on discovery of
court's confirmation of the sale. irregularities elect promptly whether
Jacob's Appeal, 23 Penn. St. 477. to repudiate the transaction or not,
Some statute formalities may be and act consistently with his election,
merely directory and not imperative. Joslin v. Caughlin, 30 Miss. 502.
Martin v. McConnell, 29 Ga. 204. 8. Mass. Pub. Stats, c. 133, § 4. A
Where the sale was invalid by reason similar authority is exercised by the
of irregularity, another sale may be probate court in Louisiana practice,
made without getting a new order to Pool's Succession, 14 La. Ann. 677.
sell from the probate court. Robbins 9. Mass. Pub. Stats, c. 133, § 5.
V. Wolcott, 27 Conn. 234. A sale 1. Harth v. Heddlestone, 2 Bay (S.
made under a void judicial order, C. ) 321, 141 N. W. 401 (Iowa);
and dependent on a judicial order for Mead v. Byington, 10 Vt. 116; Sher-
its validity, is absolutely void. Beene man v. Willett, 42 N. Y. 146; Smith
V. CoUenberger, 38 Ala. 6-47: Michel's (Mass.) Prob. Pract. 110.
Succession, 20 La. Ann. 233. See
1355
§ 1347
EXECUTORS AXD ADMIXISTRATOES.
[part IV.
praised value and the administration mav be greatly affected by
the amount realized ; for, complying with the terms of his order,
the executor's or administrator's responsibility is limited to duly
accounting for the proceeds of such a sale.^
The purchaser at a sale ordered by the probate court acquires
a good title, unless chargeable with notice that the order was im-
properly procured, by misrepresentation to the court or otherwise ;
consequently the transfer of his own bona fide title will be good.^
§ 1347. Authority to sell or transfer or buy as affected by Ex-
pressions in the Will.
An executor's authority to sell and transfer personal property
may be confirmed or enlarged by a power of sale clause contained
in his testator's will ;* such clauses relating usually, however, in
expression, to the testator's real estate or to his property generally ;
and so, doubtless, directions contained in a will may qualify or
2. Smith Prob. Pract. 110: Redf.
(X. Y.) Surr. Pract. 237; Williams v.
Ely, 13 Wis. 1; Munteith v. Rahn,
14 Wis. 210.
3. Pulliam v. Byrd, 2 Strobh, Eq.
134; Knight v. Yarborough, 4 Rand.
566. The sale by an executor or ad-
ministrator under a judicial order
carries the legal title, and will be
presumed to have been in good faith,
unless the contrary is shown. Price
V. Nesbit, 1 Hill (S. C.) Ch. 445.
See Gulick v. Griswold, 160 N. Y. 399
(authorizing "with A's consent").
Sales under a license from the pro-
bate court (for paying debts, etc.)
relate usually to real estate, and a
local statute prescribes the details to
l)e followed. See Part VI. c. 2, post.
Tnit in general it may be said, with
regard to all sales made by an ex-
ecutor or administrator under ju-
dicial authority, that the court must
have jurisdiction, in order to pass a
131
good title to the purchaser. Power v.
Shingler, 72 S. E. 1094, 137 Ga. 157.
The purchaser is affected by previous
notice that the title is infirm. Hig-
bee v. Billick, 148 S. W. 879, 244 Mo.
411. And a purchaser takes no
greater title than that held by the
decedent. Stephens v. Boyd, 138 N.
W. 389, — Iowa — .
But an executor or administrator
is shielded who pursues judicial di-
rections in good faith and reasonably.
Cowie V. Strohmeyer, 136 N. W. 95(>,
150 Wis. 401 (erroneous judicial
order).
In some States the legislation is
strict in requiring the court's license
for selling personal property of the
estate. See Whitehouse v. Mason,
78 S. E, 938, 140 Ga. 148.
4. Smyth v. Taylor, 21 111. 296;
Dugan v. Ilollins, 11 Md. 41; Dur-
liam's Estate, 49 Cal. 491.
Q
CHAP. IV.] representative's power to sell, etc. § 1.348
restrain the executor's general power to transfer the assets.^ Upon
?^ testator's general direction to sell and distribute, the executor
is the proper person to sell, unless some one else is pointed out
by the will.^ Where a testator shows by his will that he intends
to intrust his personal representative with the power of disposal,
and of receiving and applying the proceeds, the purchaser or the
transferee, for security, is not bound to see to the application of
the money raised.^ A power of sale, out and out, and having an
object beyond the raising of a particular charge, does not, how-
ever, authorize a transfer by way of pledge or mortgage.^ Yet such
power may be given, and may even extend to purchases on credit
for the estate.® Powers under a will should be construed accord-
ing to their true intendment.^
§ 1348. Consulting Parties in Interest, as to the Time, Manner,
etc., of Sale.
The judgment of residuary legatees or distributees may be of
importance in aiding the representative's discretion as to the time,
place, and manner of sale. He is not bound to act upon the
judgment of one or all of such parties; but to ascertain and act
upon the wishes of the majority of beneficiaries in interest may
5. Evans v. Evans, 1 Dosau. 515. S. 1122; Owen v. Riddle, 79 A. 886, 81
Whether the executor may not sell or N. J. 546 (power to contract for a
pledge personal assets for the pay- sale).
ment of debts notwithstanding the In Smith v. Peyrot, 94 N. E. 662,
will has provided a particular fund, 201 N. Y. 210, it was held on the
see Tyrrell v. Morris, 1 Dev. & B. facts that a necessity for the exercise
Eq. 559. of a power to mortgage did not exist.
6. McCollum V. McCollum, 33 Ala. But the adequacy of a power of sale
711. conferred by one's will upon the ex-
7. Stronghill v. Anstey, 1 De G. ecutor, though discretionary, cannot
M. & G. 635 ; Green, Re, 37 N. J. 254. be questioned where that discretion
8. lb. has been exercised and the sale com- '
9. Willis V. Sharpe, 113 N. W. 586, pleted. Personeni v. Goodale, 92 N.
(as to continuing the decedent's busi- E. 754, 199 N. Y. 323. Such a tes-
ness). And see §§ 1325, 1326. tamcntary power may be conferred,
1. See 88 Ind. 1; Dewein v. Hooss, either as mandatory or at discretion..
139 S. W. 195, 237 Mo. 23; 130 N. Y.
1357
§ 1350 EXECUTOKS AJS^D ADMINISTKATOKS. [PAET IV.
often be convenient where the fiduciary's own responsibility is a
delicate one.^
Thus, a sale which the representative makes, with the written
assent of all legatees or distributees of the estate, is in effect their
sale as well as his, and, if made in good faith, ought to bind
strongly.^
§ 1349. Representative may pledge or mortgage Assets instead
of selling.
The general right of disposition and transfer as to assets in-
volves the right to transfer in pledge or mortgage as well as by
sale. If an executor or administrator may advance funds of his
own to pay the debts of the estate, so might it be judicious to raise
money for discharging the immediate demands of the administra-
tion by pledging or mortgaging assets, and avert the necessity of
an immediate sale of chattels at a sacrifice, or to anticipate the re-
ceipt of income or other assets likely to be realized later. In fact,
the great weight of authority, English and American, is to the
effect that, unless positively restrained by statute or the particular
will, the representative of the deceased may mortgage or pledge
the personal assets, or part of them, as well as alienate; the gen-
eral presumption being that one does so, as he well might, in the
course of a prudent administration.* And if the will confers ample
powers, all the more surely is his discretion to be respected.^
§ 1350. Bona Fide Purchaser, Pledgee, etc., not bound to see to
Application of what he pays or advances.
As a general principle, it is not incumbent on either a pur-
2. See Marsden v. Kent, 25 W. R. turers' Bank, 71 Me. 448, 36 Am. Rep.
522; § 1332. 338; Smith v. Ayer, 101 U. S. Supr.
3. Geyer v. Snyder, 140 N. Y. 394, 320, 25 L. Ed. 955; TTemmy v. Haw-
35 N. E. 784. kins, 102 Wis. 56; Wood's Appeal, 92
4. Scott V. Tyler, 2 Dick. 712; Penn. St. 379, 37 Am. Rep. 694;
^^'ms. Exrs. 934; TTill v. Simpson, 7 Goodwin v. American Bank, 48 Conn.
Vos. 152; Vano V. Rigdon, L. R. 5 Ch. 550. But see Ford v. RuascU, 1
G63; McLeod v. Drummond, 17 Ves. Froom. (Miss.) Ch. 42.
164; Shaw V. Spencer, 100 Mass. 392, 5. 8oc § 1347.
97 Am. Dec. 107; Carter v. Mannf.-c
1358
■CHAP. IV.] EEI^IESENTATIVE's POWEU to SELL; ETC. § 1350
chaser or a transferee of assets upon security, to see that the
money he pays or advances is properly applied, although he knew
he was dealing with an executor or administrator; and this simply
because the executor or administrator may be presumed to exer-
cise properly his large discretion to dispose of personalty belong-
ing to the estate.'' Hence, the equities of a bona fide transferee,
without due notice of a fraud upon the estate, are respected ;
though this does not by intendment enlarge the legal powers of
the representative, nor give a colorable sanction to misconduct on
his part.
Nor with reference to the office of executor or administrator does
the same rule of caution apply as in the case of a trustee; since
the latter takes property rather for custody and management for
Lis cestuis que trusty but the former for administration and a sort
of dispersion of the assets. Hence, it might be perilous to buy
trust funds or loan money on their pledge, where notice of a trust
accompanied the transaction, while a sale or pledge of personal
assets by the representative would stand because he is presumed
to have the right to transfer.'^
The more conservative expression of some cases, however, isi
that the legal representative can dispose of the personal assets of
the decedent for all purposes connected with the discharge of his
duties as representative; and that even where the transfer upon
security is made for other purposes of which the pledgee or mort-
gagee has no notice or knowledge, but takes the property for the
6. Supra, § 1347; Hill v. Simpson, have created artificial distinctions
7 Ves. 152; Field v. SchieflFelin, 7 concerning the hazard of the trans-
Johns. Ch. 150, 11 Am. Dec. 441; feree, in this respect. Stronghill v.
Scott V. Taylor, 2 Dick. 725; McLeod Anstey, 1 De G. M. & G. 635 (Am.
V. Drummond, 17 Ves. 154; Shaw v. ed.) and note by Perkins. So as to a
Spencer, 100 Mass. 392, 97 Am. Dec. sale under judicial license. See §
107; Jones v. Clark, 25 Gratt. 642; 1346.
Andrews v. Sparhawk, 13 Pick. 393; 7. Duncan v. Jaudon, 15 Wall. 165;
Cadbury v. Duval, 10 Penn. St. 265; Shaw v. Spencer, 100 Mass. 382;
Gardner v. Gardner, 3 Mason 178, 219, Bayard v. Farmers' Bank, 52 Penn.
per Mr. Justice Story. But English St. 232; Perry Trusts, § 225.
equity courts appear sometimes to
1359
§ 1352 EXECUTORS AND ADMINISTEATOES. [PART IV.
ostensible purpose in good faith, parting with his own accordingly,
the transaction will be sustained;^ a statement which certainly is
not too strong. For the transferee of personal property from an
executor or administrator, whether by way of purchase or security,
is not bound to see to the application of the proceeds received from,
him, but may assume that they will be properly applied;^ at the
same time that notice on his part of an intended misapplication
by the representative, should put him on his guard. ^
§ 1351. Letters Testamentary or of Administration are Creden-
tials of Authority to transfer, etc.
Letters of administration or letters testamentary are commonly
regarded as sufficient evidence of authority to transfer stock or
registered bonds, or assign and collect bank deposits and other in-
corporeal personalty ; because all such transfers, assignments, or
collections are within the line of an executor's or administrator's
duty.^ Not so plainly, however, with a trustee's letters.^
§ 1352. Good Faith and Caution requisite from Purchaser,
Pledgee, etc., in dealing with Personal Representative.
As to sale or transfer upon security, however, limitations are
imposed, not upon the legal representative alone, whose misman-
agement of his trust may be visited upon him and his bondsmen
apart, but likewise upon the purchaser, pledgee, or mortgagee,
who has dealt with him, and whose interest consists in having the
transaction upheld. As to these third parties the law exacts, on
their part, perfect good faith in the transaction, and freedom from
all improper collusion for pen-crting the assets. Wherever, there-
fore, the purchaser, pledgee, mortgagee, or o^tlior transferee, takes
assets and accepts their transfer, for wliat one may reasonably
8. Smith V. Aver, 101 U. S. Supr. 2. Bayard v. Fanners' Bank, 52
.320, 329, 25 L. Ed. 955, per Mr. Jus- Pcnn. St. 232.
tice Field. 3. Duncan v. Jaudon, and oilier
9. Smith V. Ayer, ib. cases, supra; § 1351.
1. Gottherg v. U. S. Bank. 131 N.
Y. 595, 30 N. E. 41 ; § 1352.
1360
CHAP. IV.] KEPEESENTATIVe's POWER TO SELL, ETC.
1352
euppose is outside the scope of the representative authority, he is
bound to look into that authority or he will act at his peril."* And
any person receiving from an executor or administrator the assets
of his testator or intestate knov^^ing that such disposition of them
is in violation of his duty, is to be adjudged as conniving with
such representative, and is responsible for the property thus re-
eeived, whether he be one kind of transferee or another ; and the
assets may be followed and recovered for the benefit of the estate.^
^NTotice of the misapplication involves the transferee as a partici-
pator in the fraud ; and there are numerous authorities to support
the doctrine that where one has reasonable grounds for believing
that the executor or administrator intends to misapply such assets
or their proceeds, or is in the very transaction converting them to
private uses, such party can take no advantage from the transac-
tion, and the title he has acquired cannot be upheld.®
4. Smith V. Ayer, 101 U. S. Supr.
327, 25 L. Ed. 955; Gottberg v. U. S.
Bank, 131 N. Y. 595, 30 N. E. 41.
5. Smith V. Aycr, ib.
6. McLeod v. Drummond, 17 Ves.
153; Collinson v. Lister, 7 De G. M.
& G. 633; Hutchins v. State Bank,
12 Met. 423; Mr. Justice Field in
Smith V. Aver, 101 U. S. Supr. 328;
Field V. Schioffclin. 7 Johns. Ch. 150,
11 Am. Dec. 441, per Chancellor
Kent; Miller v. Williamson, 5 Md,
219; Yerger v. Jones, 16 How. 30, 14
L. Ed. 832; Lowry v. Commercial
Bank, Taney C. C. 310; Graff v.
Castleman, 5 Rand. 195.
A sale or pledge, therefore, of as-
sets, which is known to be for the pay-
ment or security of the executor's or
administrator's own private debt is
invalid; for the act speaks for itself
to the purchaser or pledgee as a
breach of duty. Carter v. Manufac-
turers' Bank, 71 Me. 448, 36 Am. Rep.
338 ; Scott V. Searles, 15 Miss. 498, 45
Am. Dec. 317; Smartt v. Watter-
house, 6 Humph. 158; 39 Hun, 394.
It appears to have been laid down in
some of the earlier cases that the ex-
ecutor's sale of assets in satisfaction
of his own private debt is not neces-
sarily invalid, although the pur-
chaser knew that the goods sold were
the goods of the testator. Farr v.
Newman, 4 T. R. 642. But even in
the common-law courts the qualifica-
tions asserted were such as almost to
neutralize the doctrine. See Wms.
Exrs. 937. In equity, however, it has
since become clearly established that
to make sale of the assets or pledge
them as security for the representa-
tive's private debt is per se notice of
misapplication, and involves the pur-
chasing or pledge creditor in the
fraud. Wms. Exrs. 937, and Per-
kins's note. And such is now the
general English and American rule on
this subject. Ib. And though the
representative might give his own
86
1361
1353
EXECUTORS A^'D ADMIJ7ISTEATOES.
[part IV.
§ 1353. Disposal of Chattels Real; assigning and underletting
Leases.
The executor or administrator may, by virtue of his office, and
as representative of the deceased entitled to chattels real, assign
and dispose absolutely of the leases and terms for years, whose
title thus devolves upon him; subject, of course, to the usual
note as a voucher for money obtained
for a legitimate purpose connected
with a bona fide administration, and
pledge assets to secure it; yet if he
gave it for some private debt of his
own, created before or during his
trust, but independently of it, and
due the pledgee, the pledge transac-
tion could not stand. See Virgin, J.,
in Carter v. Manufacturers' Bank, 71
Me. 448, 36 Am. Rep. 338. A sale
which allows the purchaser to credit
the price in liquidation of the repre-
sentative's private debt has been
considered, if not avoided, as
'[ea.ving the purchaser still respon-
sible to the estate for the pur-
chase-money. Chandler v. Schoon-
over, 14 Ind. 324. A purchase of the
testator's effects at a nominal price,
or at a fraudulent undervalue, in col-
lusion with the representative, ren-
ders the purchaser liable for the full
value; or, at the option of those in-
terested, the transfer may be set
aside. Rice v. Gordon, 11 Boav. 265;
Wms. Exrs. 936; 8acia v. Bertlioud,
11 Barb. 1.5. And where parties
dealt with an executor, who was ob-
viously exercising his power to dis-
pose of the perRonal assets to raise
money, not immediately for the set-
tlement of the estate, but for tlie busi-
ness of a commercial firm, it was
lately held that tliey were l)0und to
looi< into liis authority under tlie will
before purchasing such assets or loan-
13
ing money on their pledge; and that
not having done so, their title failed,
the transaction being impeached on
behalf of the estate as fraudulent.
Smith V. Ayer, 101 U. S. Supr. 320,
95 L. Ed. 955. And see Salmon v.
Clagett, 3 Bland, 125; Le Baron v.
Long Island Bank, 53 How. (X. Y.)
Pr. 286.
Where, too, the representative
mortgages personal property of the
deceased for purposes which the mort-
gagee, under the circumstances, is
notified are a fraud upon the estate,
the mortgage may be avoided on be-
half of those interested in the estate
and aggrieved thereby. Salmon v.
Clagett, 3 Bland, 125: Colt v. Les-
nier, 9 Cow. 320; Wilson v. Doster,
7 Ired. Eq. 231; Parker v. Gilliam.
10 Yerg. 394. In a word, " those wlio
receive trust property from a trustee
in breach of his trust become them-
selves trustees if they have notice of
the trust." " This general doctrine,"
observes Chapman, J., in Trull v.
Trull, 13 Allen, 407, "has been ap-
plied to a great variety of cases."
But where a bank in good faith
lent money to an executor upon his
individual note, secured by a pledge
of stocks belonging to the estate, and
upon bis statement tliat the loan was
for the purposes of the estate, the
j)ledgo has been held valid, so tliat tlie
stock could not be recovered without
refunding the loan. Carter v. Manu-
02
CHAP. IV.] KErrtESE:!«JTATIVE's POWEK TO SELL, ETC. § 1353
restrictions imposed upon his power to alienate.^ This power to
assign or underlet is, however, frequently restrained or excluded
in modern times by the original terms of a lease, so that the
lessor's consent is made a prerequisite ; in which case it becomes a
question of construction whether an express restraint upon aliena-
tion or underletting shall take effect against executors or adminis-
trators, or be held binding only upon the lessee personally. If the
executors or administrators, as well as the lessee, are named in
the proviso or covenant, they cannot assign, underlet, or dispose of
the term without the lessor's permission; though it appears other-
wise, where such representatives are not mentioned in the
covenant.^
The executor or administrator, in whom leaseholds become
facturers' Bank, 71 Me. 448, 36 Am.
Rep. 338. Knowledge of the repre-
sentative's fraud in procuring the
loan is not to be inferred from his
desire to renew and continue the loan
for nearly four years. Goodwin v.
American Bank, 48 Conn. 550. And
where an executor pledged stock to
his broker as collateral security for
his own debt, and the broker pledged
the certificates to a third, who ad-
vanced money on them, supposing the
broker to be the owner, the transfers
showing on their face that the title
came from the executor, the pledgee's
title was likewise upheld with defer-
ence to mercantile usage. Wood's
Appeal, 92 Penn. St. 379, 37 Am. Rep.
694. By commercial usage, the court
here observed, a certificate of stock
accompanied by an irrevocable power
of attorney, either filled up or in
blank, is in the hands of a third per-
son presumptive evidence of owner-
ship in the owner; and where the
party in whose hands the certificate
is found is a holder for value, with-
out notice of any intervening equity,
his title cannot be impeached. Wood's
Appeal, ib., citing authorities. For
whatever the pledgor's own breach of
trust, or an agent's abuse of author-
ity, one who confers upon another by
a written transfer all the indicia of
ownership of property is estopped to
assert title as against a third person,
acquiring it bona fide for value; and
the principle, reluctantly perhaps to
he admitted in the settlement of a
dead person's estate, applies undoubt-
edly against a living owner.
Purchaser's title under sale not af-
fected by discovery and probate of a
later will. Ellis v. Davis, 109 U. S.
485, 27 L. Ed. 1006; 27 Ch. D. 220.
7. Bac. Abr. Leases, I. 7; Wms.
Exrs. 939; Taylor Landl. & Ten. §
133. See Drohan v. Drohan, 1 B. &
B. 185 ; Keating v. Keating, 1 Lloyd
& G. 133.
8. Wms. Exrs. 940-943, and cases
cited: Roe v. Harrison, 2 T. R. 425;
Lloyd V. Crispe, 25 Taunt. 259. And
see supra, § 1223.
13G3
§ 1354 EXECUTOKS AXD ADMIXISTRATOES. [PAET IV.
vested, should ordinarily sell and assign and let the assignee take
the risks as to the value of his purchase. In some cases an under-
lease from the representative himself will be supported, though
this is an exceptional mode of dealing with such assets.^ The
proceeds of an absolute disposition of the lease, or the rents ac-
cruing from an underlease, or any other beneficial enjoyment of
the premises, become assets of the estate in the personal repre-
sentative's hands.^
§ 1354. Restraints upon the Power to dispose of Assets as con-
cerns the Representative himself.
To speak of limitations upon the representative's power to
alienate and transfer the personal assets, more particularly as they
t<ifect the official responsibility of the representative himself and
the liability of the sureties on his bond, the rule is that he must
not sell, pledge, or otherwise transfer personal property belong-
ing to the estate, except it be in the exercise of good faith and
reasonable prudence,^ for the benefit of the estate and without
perversion of the assets to other purposes. Though wrongful or
imprudent transfer may pass a good title to the transferee, it
1. Bac. Abr. Leases, I. 7; Wms. enants, in order to raise money for
Exrs. 939. repairing the property, see Ricketts
But it is held to be ultra vires, v. Lewis, 20 Ch. D. 745. And see
and a breach of trust for an executor post, Part VII. as to dealings with
or administrator to grant an under- real estate.
lease of leaseholds of his testator or A grant of letters obtained by sup-
intestate, witli an option of purchase pressing a will is not at this day
to be exercised by the sub-lessee at treated as void ab initio. See supra,
some future time at a fixed price. § 1160. Hence a sale of leaseholds by
Oceanic Steam Nav. Co. v. Suther- such an administrator to a bona fide
berry, 29 W. R. 113. purchaser before revocation of the let-
2. Bac. Abr. Leases, I. 7; Wins. t.Ts, is upheld. Boxall v. Boxall, 27
Exrs. 939; 2 W. BI. 692; Bank v. C!i. D. 220, distinguishing 2 Leo. 182.
Dudley, 2 Pet. 492, 7 L. Ed. 496, 3. "Ordinary prudence," according
Taylor Landl. & Ten. § 133. to tlie American rule; less than tliis.
That an administrator has no perhaps, by the English standard,
power to mortgage leaseholds, under See supra, § 1315.
Iciisi's not containing repairing cov-
1364
CHAP. IV.] kepresentative's power to sell, etc. § 1355
cannot exonerate the representative wlio has made it from direct
responsibility, as, in our practice, an officer subject to removal,
whose bond may be prosecuted for the benefit of those suffering
in interest through his maladministration.'* In some States it is
laid down that an administrator can sell only to pay debts and
make distribution;^ and yet in connection with the investment and
reinvestment of funds not needed for immediate disbursement,
the discretion of a representative seems rightfully a broader one ;
and whether he be executor or administrator, the true criterion
appears to be rather whether he exercised reasonable prudence
and good faith imder all the circumstances, in making the transfer.®
§ 1355. Representative's Liability for Negligence, Fraud, etc., in
the sale of Assets.
Delays attending the sale of particular assets may not, there-
fore, be inexcusable, though loss or depreciation in value should
result ; provided the representative's course appears to have been
honorable in intent and not unreasonable.^ But the executor or
administrator is bound to exercise due and reasonable care and
diligence, as well as good faith, in disposing of assets, as to the
time, manner, and terms of the sale; more especially where he
acts upon his own responsibility, without consulting either the
■court or the parties in interest.^ For the consequences of his own
fraud, in connection with a transfer, he is unquestionably answer-
able, on the usual principles, to the innocent parties injured
thereby.' The time and method chosen by the representative for
4. Overfield v. Bullitt, 1 Mo. 749. 8. Griswold v. Cliandler, 5 N. H.
5. Baines v. McGee, 9 Miss. 208. 492; Orcutt v. Orms, 3 Paige, 459.
6. M<:'a<i v. Byington, 10 Vt. 116; 9. Skiine v. Simmons, 11 Ga. 401
Sherman v. Willett, 42 N. Y. 143; 13 Heath v. Allin, 1 A. K. Marsh. 442
Allen, 407. Harrington v. Brown, 5 Pick. 519
. 7. Dugan v. Hollins, 11 Md. 41; Miles v. Wheeler, 43 HI. 123; Woods
McRea v. McRea, 3 Bradf. (N. Y.) v. North, 6 Humph. 309, 44 Am. Dec.
199; Mead v. Byington, 10 Vt. 116, 312.
48 A. 15; Stewart v. Stewart. 31 Ala.
207.
1365
§ 1356 ESECUTOES AXD ADMIXISTRATOKS. [PAKT IV.
making a sale and disposing of assets should be reasonable under
all the circumstances.^ And if he act under judicial directions,
he must comply with them.^ Where the property is of a fluctuating
and uncetrtain character, like speculative stocks and securities
which might rise or fall, postponing their disposition to the period
when it becomes strictly necessary to realize such assets in order
to settle the estate, is not to be imputed as culpable default, pro-
vided that under the circumstances reasonable prudence and good
faith were displayed.^
If the representative fails in his duty in these or other respects,
he may be held to accoimt for the property on the basis of the
inventory value, or perhaps the actual loss to the estate;* but if he
•does his whole duty with fidelity and reasonable care, he cannot
be charged with a loss or depreciation of the assets. A failure to
sell and dispose of personal assets does not necessarily impute
carelessness to the executor or administrator, but the circumstances
should be considered.^
§ 1356. The same Subject ; Obtaining Payment or taking Secur-
ity for the Purchase-Money.
As to carelessness or bad faith in procuring payment or taking
or enforcing security for the purchase-money, the same doctrine
applies. Thus, where the representative sells personal property
by order of court, with credit to be given on specified security
for the purchase-money, but allows the purchaser to carry away the
property without giving such security, and the security cannot
afterwards be obtained, this is culpable negligence on his part,
1. Griswold V. Chandler, 5 N. H. 5. McRae v. McR.ie, 3 Bradf. (N.
492; Marsdcn v. Kent, 25 W. R. 522; Y.) 199. Shippinj? goods in good
11 Md. 41; Mead v. Byington, 10 Vt. faith, to be sold abroad instead of in
116; Stewart v. Stewart, 1.3 Ala. 207. the home market, dooa not necessarily
2. McDonald Re, 4 Redf. (N. Y.) charge the representative with tho
321. loss ensuing, liis course not being ijn-
3. Marsden v. Kent, 25 W. R. 522. prudent in itself, though resulting un-
4. flriswold v. Chandler, 5 N. II. fortunately. Bryan v. Mulligan, 2
492; Pinckard v. Woods. 8 CJratt. 140. Hill (S. C.)- Ch. 261.
13GG
ciiAr. IV.] eepkesentative's power to sell, etc. § 1357
and he must answer to the estate for the Icss.^ For in making
a sale under judicial directions, he cannot safely disregard the
tenns prescribed. Indeed, a sale of assets made on credit, and
without taking security of any sort from the purchaser, can rarely
be considered a j)rudcnt transaction on the part of a fiduciary, so as
to exempt him from the risk of subsequent loss.'^ And in pursuing
the security taken, or attempting to recover property transferred,
one may be culpably negligent, or the reverse.^ Security taken
in connection with a transfer of the assets, by the representative,,
enures properly to the benefit of the estate.^
On the other hand, where the representative takes security or
a note for the purchase-money, and a loss occurs not attributable
to his fault, he is only chargeable with the amount actually col-
lected and realized.^ If a sale be made on credit, it is not improper
to receive the money before the expiration of the credit.^
§ 1357. Collusive or Fraudulent Disposition of Assets by the
Representative.
Where an executor or administrator collusively sells personal
property of his decedent at an undervalue, when he might have
obtained a higher price, or so as to lose the price altogether, it
is a devastavit, and he shall answer for the real value.^ Or if,
6. Hasbrouck v. Hasbroiick, 27 N. Stukes v. Collins, Desau. 207; Chand-
Y. 182; Vreeland v. Vreeland. 13 N. ler v. Schoonover, 14 Ind. 324; 56 S.
J. L. 512; Massey v. Cureton, 1 E. 504, 61 W. Va. 287; Dillabaugh's
Cheves, 181; Betts v. Blackwell, 2 Estate, 4 Watts, 177 English v. Horn,
Stew. & P. 373; Davis v. Marcum, 4 102 Ga. 770, 29 S. E. 972.
Jones Eq. 189; Peay v. Fleming, 2 8. Johnston's Estate, 9 W. & S. 107.
Hill Ch. 97; Southall v. Taylor, 14 And see § 1323.
Gratt. 269. But incidental delays or 9. See Pullam v. Winston, 5 Leigh,
omissions in connection with security 324; Napier v. Wightman, Spears, Ch.
are not necessarily culpable. Gwynn 357.
V. Dorsey, 4 Gill & J. 453. 1. Stewart v. Stewart, 31 Ala. 207.
On failure of compliance with the 2. Gwynn v. Dorsey, 4 Gill X, J.
terms of sale, the representative may 453. See 57 Cal. 407.
sue the purchaser at once. Peebles v. 3. Skrine v. Simmons, 11 Ga. 401;
Overton, 2 Murph. 384. Heath v. Allin, 1 A. K. Marsh. 442.
7. Orcutt V. Orms, 3 Paige, 459;
1367
§ 1358 EXECUTORS AXD ADMINISTEATORS. [PAKT IV.
from improper motives, he procures an advantageous sale to be
set aside for technical reasons gainst the purchaser's will and pro-
cure resale at a loss, he must make good the loss/ And. not-
withstanding the form of a judicial or a public sale was pursued,
this will not debar a court of equity from examining into the whole
transaction, and considering whether there was a collusive sale to
defraud the estate of a just price."
Where there is any collusive and fraudulent dealing with the
personal assets of an estate, or a misappropriation, not only a
creditor, but a legatee, whether general or specific, or a distributee,
is entitled to follow the assets in equity.^ But all such rights
must be enforced within a reasonable time, considering the oppor-
tunity afforded for ascertaining the true character of the trans-
action, or else the right will be barred bv their presumed ac-
quiescence.^ And, in American probate practice, where bonds are
given by the fiduciary, such are the facilities for removing un-
faithful executors and administrators and appointing their legal
successors, that adequate remedies at law for recovering assets
improperly transferred may frequently be found without asking
a court of equity to interpose.^
§ 1358. Purchase by a Representative at his Own Sale, etc.
The earlier and more conservative rule is, that an executor or
administrator cannot be allowed to purchase from himself any
part of the assets, even though making a conduit of the title
through some third person ; but he shall be considered in such
4. Mountcastle v. Mills, 11 Heisk. rinian, 2 Atk. 41; McLcod v. Dnim-
207. mond, 14 Ves. 353; 17 Ves. 152; Flan-
5. Skrine v. Simmons, 11 Ga. 401; ders v. Flanders, 23 Ga. 249. 68 Am.
Hoath V. Allin, 1 A. K. Marsh. 442. Dec. 523.
As to the fraudulent pledge or mort- 8. See Mawborter v. Arni.strong, 16
gngn of assets, see supra, § 1352. Ohio, 1&8; Hart v. Ilart, 39 Miss. 221.
6. Hill V. Simpson, 7 Ves. 152; Wil- 77 Am. Dec. 668; Smith v. Moore, 199
son V. Moore, 1 My. & K. 337; Flan- F. 689, 118 C. C. A. 127; 159 S. W.
ders V. Flanders, 23 Ga. 249, 68 Am. 962. 155 Ky. 415 (collusive settlement
Dec. 523. of a claim).
7. Wms. Exrs. 938; Elliott v. Mcr-
i;3G8
CHAP. IV.] eepresentative's power to sell, etc. § 1358
transactions a tnjstee for the persons interested in the estate, and
sliall account for the utmost extent of advantage made by him of
the subject so purchased.^ And hence, a sale by the representa-
tive to himself of personalty belonging to the estate, has been
treated as fraudulent per se and void, even though made at public
auction at a fair price, a third person being the nominal bidder
to whom the immediate transfer is made.^ But the preponderance
of American decisions tends rather to the conclusion that a pur-
chase of assets by the executor or administrator, or his taking and
accounting for the same at their appraised value, may often be
really advantageous to the estate, and that such advantage is, after
all, the main thing to be considered. They hold that, at all events,
a purchase by the representative is not absolutely void, but voidable
only by persons interested in the estate at their option;^ nor even
by these if they have directly sanctioned or acquiesced in the trans-
action,^ or if, from their laches and delay, acquiescense on their
part may legally be fairly inferred to the quieting of title.* The
sale will be treated as essentially valid until avoided ;^ and, while
any party interested may apply to have the sale set aside, not-
withstanding the acquiescence of the others, it is not for a stranger
to exercise any option in the matter.^
9. Hall V. Hallett, 1 Oox, 134; Wat- Mich. 296; Monroe's Estate, 142 N.
son V. Toone, 6 Madd. 153; Wras. Y. 484, 37 N. E. 517.
Exrs. 938; 113 N. C. 270. 3. Williams v. Marshall, 4 Gill. &
1. lb.; Miles v. Wheeler, 43 111. J. 376; Lj-on v. Lyon, 8 Ircd. 201
123; Ely v. Horine, 5 Dana, 398; 4. Todd v. Moore, 1 Leigh. 457;
Sheldon v. Rice, 30 Mich. 296, 18 Am. Flanders v. Flanders, 23 Ga. 249, 68
Rep. 136. Am. Dec. 523. And see Miller v. Bin-
2. Harrington v. Brown, 5 Pick. ion, 33 Ga. 33.
519; Mercer v. Newson, 23 Ga. 151; 5. lb.; Dunlap v. Mitchell, 10 Ohio,
Anderson v. Fox, 2 Hen. & M. 245; 117; Wras. Exrs. 938, note by Per-
McLane v. Spence, 6 Ala. 894; Blount kins; 59 Mass. 1«5, 34 N. E. 181.
V. Davis, 2 Dev. 19; Mead v. Bying- 6. Litchfield v. Cudworth, 15 Pick,
ton, 10 Vt. 116; Ives v. Ashley, 97 24; Jackson v. Vandalfsen, 5 Johns.
Mass. 198; Gilbert's Appeal, 78 Penn. 43; Wms. Exrs. 938, Perkins's not«;
St. 266; Moses v. Moses, 50 Ga. 9; Lothrop v. Wightman, 41 Penn. St.
Staples V. Staples, 24 Gratt. 225; 57 297.
Fed, 873. And see Sheldon v. Rice, 30
1369
§ 1358a EXECUTOES and ADMIXISTEATOKS. [pAET IV.
The representative, moreover, who has advanced his own funds
to pay debts of the decedent, is allowed to retain any specific ac-
ticle at a fair valuation, and his purchase at the sale may be
treated as evidence of his election accordingly.''
§ 1358a. The same Subject.
A purchase by the representative at his own sale must, how-
ever, in order to stand assault, be in the interest of the estate. If it
appear that he purchased the property at less than its value, has
never accounted for the proceeds, and is insolvent, chancery will
set the sale aside, not only as against him, but as against pur-
chasers under him with notice.* Where an executor or adminis-
trator purchases at his own sale, he may be held accountable for
all the profits of the transaction ; and if the total profit be uncer-
tain, he is chargeable with the largest amount presumable.^ And
if he purchase personalty of the deceased, though at public auc-
tion, at a less price than the appraised value in the inventory, he
may be held to account for the difference ;^ though the true valua-
tion of the property should be considered.^ In general, if the sale
be not avoided, the representative is chargeable, together with the
sureties, on his bond, for, at least, the full and true price at
which he purchased f but Avhere the transaction is assailed by a
party in interest, for the actual value of the property as nearly
as may be.* While such transactions may not be positively illegal,
7. Ely V. Horine, 5 Dana, 398. See L. 201; McKey v. Young, 4 Hen. &
1 Desau. 150. M. 430.
The mere fact that, long after an 9. Braekenridge v. Holland, 2
administrator's .'^ale the administru- Blackf. 377.
tor purchased the property from tlic 1. Griswold v. Chandler, 5 N. H.
purchaser at such sale, is not suffi- 492.
cient proof that the fiduciary was sub- 2. Dudley v. Sanborn, 159 Mass.
stantially a purchaser at liis own sale 185, 34 N. E. 181.
through the medium of another. Pain- 3. Raines v. Eaines, 51 Ala. 237;
tcr V. Henderson, 7 Penn. St. 48. Moffat v. Loughridgc, 51 Miss. 211.
8. Sheldon v. Woodbridge, 2 Root 4. See Gilbert's App;'al, 78 Penn.
(Conn.) 473; McCartney v. Calhoun, St. 266.
17 Ala. 301; Lyon v. Lyon, 8 Ired.
1370
CHAP. IV.] eepeesentative's povvek to sell, etc. § 1359
thej justify and require a close scrutiny into the good faith and
fairness of the transaction; being liable to gross abuses, like the
purchase of an attorney from his client or a guardian from his
late ward.^
It is held that where the representative himself purchases at
his sale of the decedent's estate, and uses the assets of the estate
in making such purchase, those interested may elect to consider
the appropriation a conversion, or may treat him as a purchaser
in trust for their benefit.^ Courts incline to favor the representa-
tive's correction of an inadvertent purchase by himself at his sale
of the assets ;^ but the representative who made the sale is not
the proper person to avoid the transaction to the detriment of an-
other's interest thereby acquired.^
In fine, according to the better authorities, a purchase by the
executor or administrator at his own sale, either directly or indi-
rectly, will, though not absolutely void, be set aside, upon the
timely application of any party interested in the estate; and this
rule is of general application to sales of trust property.^ At the
same time, the election of the interested parties may confirm the
sale.^
§ 1359. Re-opening the Representative's Voidable Transfer, etc. ;
Relief as against Third Parties.
Generally speaking, if an executor or administrator sells, mort-
5. Moses V. Moses, 50 G-a. 9. Buy- 9. Bennett, Ex parte, 10 Ves. 381;
ing in legacies is culpable in a repre- Davone v. Fanning, 2 Johns. CTi. 253;
sentative. Goodwin v. Goodwin, 48 Booiaem v. Wells, 19 N. J. Eq. 87;
Ind. 584. But cf. 74 S. E. 275, 137 Ga. Lytle v. Beveridge, 58 N. Y. 593.
658. Local statutes proliibiting such pur-
6. Julian v. Reynolds, 8 Ala. 680. chases are found. 84 Mo. 561. See,
And see, as to assignment of stock be- also, MeClear's Will, 132 N. W. 539,
longing to the estate, to the represen- 147 Wis. 60; Mettler v. Wnrner, 94
tative personally, Whitley v. Alexan- N. E. 522, 249 111. 341; 127 N. Y. S.
dcr, 73 N. C. 444. 1006.
7. Cannon v. Jenkins, 1 Dev. Eq. As to an ancillary representative's
422. sale, see Clark v. Blaekiugton, 110
8. And see Part VI., c. 2, post, as Mass. 369; supra, § 1181.
to sales of the decedent's real estate 1. Cases supra, § 1358.
and the representative's purchase.
1371
§ 13G0 ESECTJTOES AND ADMIXISTEATOES. [PAET IV.
gages, or pledges any of the personal property of his decedent's
estate in payment of or as security for his individual debt, or
otherwise, in perversion of his trust, every person who receives
any part of this property, as a participator in the representative's
breach of trust, is responsible; and the assets wrongfully trans-
ferred or disposed of may be reached by creditors, legatees, and
distributees or heirs. The relief afforded for the fraud and dam-
age appears to be an equitable one at their election ; no adequate
or complete remedy existing at law, or none, at all events, where
the representative and his sureties are worthless.^
§ 1360. Personal Representative cannot avoid his own Voidable
Transfer, etc.
The representative cannot avoid his own sale, mortgage or
pledge, though guilty of a breach of trust in making it. It may
be needful and proper to remove him from the trust and appoint
another; but such a removal is not for the purpose of reaching
the assets themselves, but preparatory rather to holding the de-
linquent representative to account, and suing him and his bonds-
men for maladministration. If the unfaithful representative
dies or is removed in fact, and a representative de bonis non is
appointed, the rule is that the latter cannot avoid the wrongful
transfer of his predecessor, except where there are local statutes
in force authorizing a representative de bonis non to do what
otherwise creditors, legatees, or distributees could alone have done.*
But wherever the representative may correct his own mistake
or wrong he should do so and pursue the third parties for the bene-
fit of the estate.*
2. M'cLeod v. Drunimond. 17 Vos. White, 3 Littell, 180. And see supra,
153; 4 Brown, C. C. 127. 130; Bean § 1297.
V, Smith, 2 Mason, 271; Monell v. 3. Stronach v. Stronach, 20 Wise.
Monell, 5 Johns. Ch. 297, 9 Am. Dec. 129, 133, and cases cited; Hagthorp
298; Riddle v. Mandcville. 5 Cranch. v. Neale, 7 G. & J. 13; Herron v.
322; Field v. Schie(Tclin, 7 Johns. Ch. Marshall, 5 Humph. 443. See c. 6,
150, 11 Am. Dec. 441; Dodsfin v. post.
Simpson, 2 Rand. 2U4; Tliomiis v. 4. Ziinmfrman v. Kinkle, 108 N. Y.
CHAP. IV.] eepeesentative's power to sell, etc. § 13G1
§ 1361. Whether the Representative warrants Title when he
sells.
"Where au executor or administrator sells or transfers personal
property of the decedent, there is an implied representation to the
purchaser that he is the legal representative of the estate, and has
general authority to make such sale or transfer; and, should it
prove the reverse, the purchaser or transferee may, it ia lield,
be relieved from the contract in equity.^ Jurisdiction in the prem-
ises, regular procedure by virtue of his office, is what an execu-
tor or administrator warrants by implication. But, in sales or
transfers by executors or administrators, there is no implied war-
ranty of the title ; and the purchaser or transferee acquires only
the decedent's rights in the property, subject to his incumbrances;
so that, in the absence of fraud or an express warranty on the rep-
resentative's part, and an eviction, the buyer or transferee cannot
hold him personally answerable nor the estate.^ Indeed, the pur-
chaser from an executor or administrator takes the risk of the
worthlessness of the decedent's title; and he must pay the price,
as it is held, even though that title should utterly fail, no deceit
having been practised upon him.^ "Where, however, the purchase-
money remains in the representative's hands still undistributed,
it is equitable and just, as other cases affirm, that the representa-
tive should refund to the purchaser in such a case.* And fraudu-
282. 18 N. E. 407; Redington Co. v. But see White's Succession, 9 La.
Putnam, 82 A. 715, 76 N. H. 336 Ann. 232. A fairer rule would be,
(over-payment). that, if in such a case the sale has not
5. Crisman v. Beasley, 1 Sm. & M. been completed by payment of the
Ch. 561 ; Woods v. North, 6 Humph. money, the purchaser need not
309. In case of a sale under a void pay; but at all events, he cannot
judicial order, the purchaser is not ihold an innocent representative per-
bound to pay the purchase-money and sonally liable should the title fail;
complete his title. Beene v. Collen- though the loss might here fall prop-
berger, 38 Ala. 647; Michel's Succes- erly upon the estate. The indemnity
sion, 20 La. Ann. 233. of the representative is what the law
6. Mockbee v. Gardner, 2 Har. & G. chieily insists upon in such instances.
176. 8. Mockbee v. Gardner, 2 Har. &
Stanbrough v. Evans. 2 La Ann. 474. G. 176.
7. Cagar v. Frisby, 36 Miss. 178:
1373
§ 13G1 ESECUTOES AK"D ADMIXISTRATOES. [pART IV.
lent representations made bj tlie representative at the sale may be
relied npon bj the purchaser who was misled, so as to avoid the
sale, or in abatement of the price agreed upon.' In respect of war-
ranty, therefore, executors, administrators, and other trustees con-
stitute exceptions to the familiar rule that there exists in every
sale of personal property an implied warranty of title.^
But even here, if fraud taints the transaction, or if there has
been an express warranty and eviction, the representative makes
himself personally liable to the purchaser for the consequences.^
It becomes a question, therefore, whether an express warranty
which the representative makes, outside the usual scope of his of-
ficial authority, binds the estate and not himself alone. Some
courts have considered that the representative is competent to war-
rant either the title or the soundness of personal property of the
deceased which he offers to sell, so that if the transaction, as be-
tween the purchaser and himself, be fair and hona fide, the war-
ranty will obligate the estate; or, in other words, that the power
to warrant, on his part, is incidental to the general right to sell,
pledge, or mortgage.^ But local statutes may, upon a fair con-
struction, be found to regulate this whole matter.* An estate ought
not to profit im justly where prevention may be seasonable.^ Yet
9. Able V. Chandler, 12 Tex. 88. 2. Moekbee v. Gardner, 2 Har. &
1. See 3 Schoul. Pars. Prop. § 320 G. 176; Sumner v. Williams, 8 Mass.
et seq. as to warranty in sales; Chap- 162, 75 Am. Dec. 83; Buckels v. Cun-
man v. Speller, 14 Q. B. 621; Blood ningham, 14 Miss. 358; Able v.
V. French, 9 Gray, 197; Brigham v. Chandler, 12 Tex. 88, 62 Am. Doc.
:Maxley, 15 111. 295; Bartholo- 518; Nowell v. Clapp, 97 Wis. 104, 72
mew V. Warner, 32 Conn. 98, 85 Am. N. W. 366.
Dec. 251. The reason for this exemp- 3. Craddock v. Stewart, 6 Ala. 77,
tion from pensonal responsibility is 80. An administrator may warrant
tlorived from the nature of the office the soundness of personalty before he
lield by the representative or trustee. sells. Boltwood v. Miller, 112 Mich.
See Archer, J., in Moekbee v. Card 657, 71 N. W. 506, and cases cited.
nor, 2 Har. & G. 177. 4. lb. As to mortgages where one
The representative is not responsi- sells with warranty, see 3 Mason,
ble for misrepresentations by others 285; 2 Whart. 420.
which he did authorize. Newell v. 6. Williamson v. Walktr. 24 Qa.
Clapp, 97 Wis. 104. 257; Crayton v. Muiiger, 9 Tex. 235.
1374
CHAP. IV.] representative's POWER TO SELL, ETC. § 13G2
it would appear the better opinion that a personal representative
cannot positively bind his decedent's estate, when he transcends
the usual limits of his authority, and warrants the decedent's title
absolutely or the soundness of the thing he offers.^ This latter
rule, though sometimes operating harshly, is found, after all, the
most convenient for facilitating a prompt and equitable settlement
of the estate; and each purchaser, being put on his own guard in
such transactions, should inquire into the title for himself, or offer
a less price in consideration of the risk he runs.^
§ 1362. Sales of Negotiable Instruments by the Representative.
An executor or administrator has a right, which is inherent in
the office, to sell or otherwise transfer promissory notes, bills of
exchange, or other negotiable instruments belonging to the de-
cedent's estate, as well as corporeal chattels, and under correspond-
ing qualifications.* For his authority to dispose of perosnal prop-
erty extends to the disposition of incorporeal kinds and their muni-
ments of title, excepting, perhaps, for those common-law barriers
against assignment, which, in modern practice, have been well-nigh
swept away.^ And the purchaser of such instruments in good faith
will acquire a good title, even though purchasing at a discount,
unless he is chargeable with collusive advantage or knowledge of a
6. Ramsey v. Blalock, 34 Ga. 376; 6 Ired. Eq. 74; Rand v. Hubbard, 4
Lynch v. Baxter, 4 Tex. 431. Met. 258; Cleveland v. Harrison. 15
7. If the representative seeks, by Wis. 670. And see Nelson v. Stollen-
giving express warranty, to make a werck, 60 Ala. 140.
better sale for the estate, he may w^ell 9. See 1 Schoul. Pers. Prop. §§ 71-
secure himself by getting distributees 86, as to the old distinction between
or others in interest to obligate them- corporeal and incorporeal, or choses
selves personally in return ; or they in possession and choses in action,
may themselves undertake to make with the common-law rule of assign-
express warranty to the purchaser. ment.
The representative sometimes sells As to instruments assignable in
■with authority from a sole legatee or blank or quasi negotiable under com-
distributee. See Kelso v. Vance, 58 mercial usage, see Woods's Appeal, 93
Tenn. 334. Penn. St. 379, 37 Am. Rep. 694; Ows-
8. Rawlinson v. Stone, 3 Wils. 1; ley v. Central Trust Co., 198 F. 413
Wms. Exrs. 943; Gray v. Armiptead, (assignment of a claim).
1375
§ 1362 E5ECUT0ES AXD ADMI^^ISTKATORS. [PAUT IV„
fraudulent perversion or the representative's part.^ Skould the
representative dispose improperly of such assets and the rights
thereunder, he may he rendered liahle on his hond ; yet this will not
affect the title of an indorsee, assignee, or other transferee who
takes the instrument in good faith and for value."
But, following the rule elsewhere noticed, the transfer of a note
due to the estate hy the representative in paymnt of his own deht,.
or as security for it, gives to the transferee with notice no right of
recovery.* On the other hand, if a halance be justly due to the rep-
retentative on the settlement of his accounts, to the amount of the
negotiable instrument, it is no fraud in him to sell and appropriate
such instrument to the papnent of his claim.*
The representative may, by unrestricted indorsement or the other
usual means, guarantee payment of the instrument he transfers ;
but by doing so he binds himself personally, and not the estate ; ^
and consequently the form of assigning or indoreing should, as
a rule, be so prudently expressed that no recourse can be had either
against him or the estate he administers upon.^
As the representative may sell and dispose of a note or other
negotiable instrument belonging to the estate, so may he dispose
of it with pledge or mortgage security accompanying it, and assign
1. Gray v. Armistead, 6 Ired. Eq. 4. Ward v. Turner, 7 Ircd. Eq. 73.
74. See Munteith v. Rahn, 14 Wis. And see Rogers v. Zook, 86 Ind. 237.
210; § 1357. 5. Robinson v. Lane, 22 Miss. 161;
2. Hough V. Bailey, 32 Conn. 288; supra, § 1258. Generally speaking,
Wilson V. Doster, 7 Ired. Eq. 231; there is no difference between an in-
Walker v. Craig, 18 111. 116; Speel- dorsement of a note by the deceased
man v. Culbertson, 15 Ind. 441. Under and one by his personal representa-
the codes of some States, the rule is tive. Watkins v. Maule, 2 Jac. & W.
otherwise. Burbank v. Payne, 17 La. 243; Wms. Exrs. 943. For a case of
Ann. 15, 87 Am. Dec. 513. incomplete indorsement and delivery
3. Lutham v. Moore, 6 Jones Eq. of a note belonging to an estate, see
167; Scranton v. Farmers' Bank. 24 Bromage v. Lloyd, 1 Ex. 32. And s:>e
N. Y. 424; Scott V. Searles, 15 Miss. 37 Miss. 526.
498, 45 Am. Dec. 317; Smnrtt v. Wa- 6. Ely v. Williams, 13 Wis. 1;
terhouse, 6 Humph. 158; Williamson Grafton Bank v. Wing, 52 N. E. 1067,
V. Morton, 2 Md. Ch. 94; supra, § 172 Mass. 513, 70 --Km. St. Rep. 303,.
1352. 43 L. R. A. 831; 17 Kan. 81.
137G
CHAP. IV.] EEPRESENTATIVe's POWER TO SELL, ETC. § 13G3
and transfer accordingly.^ Even a mortgage secured upon real es-
tate passes with the principal indebtedness as personal property, if
Tinforeclosed, and may be assigned by the representative.^
An executor or administrator may, under proper circumstances,
sell a negotiable instrument or other incorporeal chose at a price
below the nominal amount, as he certainly may for a price above
it ; ^ for the pursuance of official duty with integrity and reasonable
prudence is here, as in sales of things corporeal, the standard by
which his transactions should be tested.
§ 1363. Representative's Authority to purchase.
The power of an executor or administrator to purchase follows
the general doctrine of his authority to sell, invest, and re-invest.^
An unauthorized purchase is voidable at the election of those in in-
terest. Under the circumstances presented in some particular
transaction, it may be matter of inquiry whether the purchase made
by a representative was on his individual account or for the use of
the estate; and here, not only formal instruments of title, but also
the means of payment used, and the advantageous or disadvan-
tageous character of the transaction may be taken into considera-
tion.^ If the representative misapplies funds of the estate in a pur-
chase, fraudulently or unreasonably, he may be held accountable
on his bond for the misapplication ; and where the seller was cogni-
zant of his breach of trust, those interested in the estate and in-
jured thereby may bring a bill in equity to compel the seller to re-
fund the purchase-money and place them m statu qiio.^
1. Ely V. Williams, 13 Wis. 1. See consideration accruing to the estate,
127 Mass. 174. to release one of the makers of a
8. Cleveland v. Harrison, 15 Wis. promissory note executed to him in
670; Jelke v. Golsmith, 52 Ohio bt. his fiduciary capacity, from liability
499, 49 Am. St. Rep. 730, 40 N. E. for the balance. Latta v. :\liller, 109
167 ; Miller v. Henderson, 10 N". J. Ind. 302, 10 N. E. 100.
Eq. 320; supra, § 1214. 1. See supra, § 1322, as to invest-
9. Wheeler v. Wheeler, 9 Cow. 34; ments, and as to sales, § 1358.
Gray v. Armistead, 6 Ired. Eq. 74. 2. Colvin v. Owens, 22 Ala. 782;
And see 55 Miss. 278; 57 Ga. 232. Harper v. Archer, 28 Miss. 212.
An executor or administrator has 3. Trull v. Trull, 13 Allen. 407;
power, in good faith and for a just supra, § 1352. See Cousins, Re, 30
87 loTT
§ 136-i EXECUTORS AND ADMINISTRATORS. [pART IV.
§ 1363a, The same Subject.
As in other cases, so upon his own contract of purchase, the per-
sonal representative binds himself individually to those with whom
he deals, whether the estate may reimburse him or not.*
§ 1364, No Authority to give away Assets,
The executor or administrator has no inherent right to give away
assets of the estate, even though he should deem them worthless.^
But to give assets in payment of some claim, or as an offset to what
may be due the representative himself on a settlement, is a differ-
ent matter; and, furthermore, a will sometimes confers a discre-
tionary authority by way of bestowing tokens from the decedent.
Ch, D. 203, where an option to pur- Willis v. Sharpe, 113 N. Y. 586, 4 L.
chase was held personal to a testator, R. A. 593, 21 N. E. 705.
and not such as his executors could 4. 3 Port, 221; Lovell v. Field, 5
exercise after his death. As to power Vt. 218; 118 N. C. 440, 24 S. E. 774.
given under the will to purchase, see 5. Radovich's Est;ite, 74 Cal. 536,
5 Am. St. Rep. 436, 18 P .321.
1378
CHAP, v.] LIABILITY OF EXECUTOR OR ADMINISTRATOR. § 130G
CHAPTER V.
LIABILITY OF AN EXECUTOR OR ADMINISTRATOR.
§ 1365. Liability in Respect of Acts of Deceased or his Own
Acts.
The liability of an executor or administrator may accrue (1)
in respect of the acts of the deceased; or (2) in respect of his own
acts. These two subjects will be considered separately.
§ 1366. Liability in Respect of Acts of deceased; Survival of
Actions against Decedent founded in Contract.
First, as to liability in respect of the acts of the deceased. We
have elsewhere considered what actions survive in favor of the es-
tate, where the decedent was plaintiff.^ A corresponding principle
applies as to the survival of actions brought against the decedent
during his lifetime. Accordingly, it has long been settled in our
law. that causes of action which are founded in any contract, duty,
or obligation of the decedent, and upon which the decedent himself
might have been sued during his lifetime, will survive so as to con-
tinue enforceable against his estate.^ Consequently, the executor
or administrator is legally answerable, so far as the assets in his
hands may enable him to respond, for debts of every description
which were owing by the deceased, whether debts of record, such
a^ judgments or recognizances; debts due on special contract, as
for rent in arrears, or on bonds, covenants, and other sealed con-
tracts ; or debts by simple contract, such as bills and notes, and
promises expressed orally or in writing.^ And usually the defences
to a suit open to his decedent are open to him also.*
1. Supra, § 1277. 3. Bac. Abr. Executors, P. 1; Wms.
2. Wms. Exrs. 1721; iSaund. 216a; Exrs. 1721; Noy, 43; Dyer, 34b;
Atkins V. Kinnan, 20 Wend. 241, Smith v. Chapman, 93 U. S. Supr.
32 Am. Dec. 534. But void contracts 41, 23 L. Ed. 795; Harrison v. Vree-
of the decedent should be disregarded. land, 38 N. J. L. 366.
62 Mich. 349, 4 Am. St. Rep. 867, 28 4. As coverture, for instance. 103
N. W. 822. N. C. 218, 13 S. E. 2. Or limitations.
1379
§ 1366 EXECUTORS AXD ADMIXISTEATOES. [pART IV.
It is said in this connection that there is no difference between
a promise to pav a debt certain, and a promise to do a collateral
act, which is uncertain, resting only in damages, such as a promise
by the decedent to give such a fortune with his daughter, or to
deliver up such a bond ; for wherever in this latter class of cases the
decedent himself was liable to an action, his representative shall
be liable also." Even where the cause of action sounds in damages,
as for loss of one's money or one's chattels through the negligence
of the deceased, the latter being an attomey-at-law, or a common
carrier, and the damages being laid as for breach of his contract,
the action will survive against the representative.^
This survival of actions, founded in the decedent's contract lia-
bility, does not require any express reference in the contract itself
to the contingency of death, nor in so many words to one's execu-
tors or administrators; for the contract, if not personal in its na-
ture, implies of itself that death shall not cut off the survivor's
remedies.^ And executors or administrators, being but officials
commissioned to wind up the decedent's estate, that estate as of
course goes first towards discharging all lawful claims and demands
against the deceased which may be outstanding at his death.^
§ 1366a. The same Subject; Sales and Bargains of the Decedent.
In case of an incomplete delivery under the sale or bargain of
the decedent, his representative ought to complete the delivery and
carry out the contract.' Liability or nonliability in such matters
should, as to the decedent, follow the usual rules.^
§ 1389. See Swindell v. Bulkeley, 18 7. Bradbury v. Morgan, 1 H. & C.
Q. B. D. 250. 249; 2 Mod. 268; Bac. Abr, Exrs. P.
5. Bac. Abr. Executors, P. 2; Cro. 1; Wms. Exr.^. 1724; 3 Bulstr. 30;
.J;.c. 404, 417, 571, 662; Wms. Exrs. Williams v. Burrell 1 C. B. 402. See
1722. Swindell v. Bulkeley, 18 Q. B. D. 250
6. Knights v. Quarles, 2 B. & B. (limitations).
102; Cowp. 375; Alton v. Midland R., 8. See Part V., as to the payment
19 C. B. X. 8. 242; Wms. Exrs. 799, of debts, etc., against an estate.
1722; Wilson v. Tucker, 3 Stark. N. 9. Parker v. Barlow, 93 Ga. 700, 21
P. 154. Cf. Miller v. Wilson, 24 Penn. S. E. 213.
St. 114; Long v. Morrison, 14 Ind. 1. Sec 140 Penn. St. 83, 23 A. 322.
695, 77 Am. Dec. 72.
1380
€IIAP. v.] LIABILITY OF EXECUTOR OR ADMINISTRATOR. § 1367
§ 1367. The same Subject ; Exception as to Personal Con'- racts of
the deceased.
But a distinction is here to be taken in favor of contracts of a
personal nature, or such as are essentially limited in scope by one's
lifetime, and other obligations. A contract to deliver one thousand
•cartridges may be fulfilled, or a note for one thousand dollars paid
off, by one's assignees or personal representatives, notwithstanding
his own death, provided assets suffice for sustaining the liability;
and such contracts are generally made upon some consideration of
reciprocal advantage, which the death of either party should not
ipso facto annul ; designating, furthermore, some date hereafter at
which the obligation shall mature, regardles of every such contin-
gency. There are no such personal considerations involved in a con-
tract of this sort that an assignee might not discharge, as well as
the original contractor. -Such an obligation., profitable or unprofit-
able, and as for fulfilment or damages, the survivor enforces against
the decedent's estate, nor does death cancel it. But where the con-
tract was personal to the testator or intestate himself; as, for in-
stance, to instruct an apprentice, to employ a particular servant;
being an author, to compose a certain book, or, as an experienced
architect, to plan a building; or, as a soldier, to serve in the army,
or, in general, for hiring ; the case is different. Here, it may be as-
sumed, that unless the contract expressly provides differently (as
in some instances it may), death necessarily severs the relation and
puts an end to the legal obligation which has, without fault of the
contractor become impossible of performance. In such instances
the estate of the decedent is relieved of all further liability under
the contract ; ^ though, for any breach of such a contract committed
2. Cro. Eliz. 533 ; Siboni v. Kirk- supra, § 1278. A contract to support
man, 1 M. & W. 423 ; Robinson v. a parent is personal, and does not
Davison, L. R. 6 Ex. 269; Smith v. bind the representative. Siler v.
Wilmington Coal Co., 83 111. 498; Gray, 86 N. C. 566. There may be
Wentworth v. Cock, 10 Ad. & E. 45; various contracts of a personal na-
Wms. Exrs. 1725; Bland v. Umstead, ture brought under this rule, and vice
23 Penn. St. 316. For the same dis- versa, the courts making it matter of
tinctions as to rights of decedent, see judicial interpretation. Thus, a cov-
1381
§ 1367 EXECUTORS ANT) ADMITs^ISTEATOES. [PART lY.
during the decedent's lifetime, the executor or administrator must
of course respond out of the assets, as in other cases. Act of God
preventing or terminating the performance of a personal contract,
is held to excuse it; and even sickness or disability may justify its
breach during one's life.^
The personal nature of a contract applies with similar force as
between those who have occupied the relation of master and ser-
vant, or principal and agent. One's clerk or agent is discharged,
presumably, by the employer's death ; and where the employment
was by a firm, the death of one of the partners, while dissolving the
firm, dissolves likewise the relation with the person employed, even
though a stated term of employment had not yet run out.* The au-
thority of an agent is commonly revoked by the death of his prin-
cipal; and consequently the agent cannot usually sue the executor
or administrator for services performed after the principal's death,
though this were upon a contract made for a fixed period with the
decedent himself; for, upon notice of death, he should cease per-
formance or else get a new personal authority elsewhere." The rule
of apportionment, custom, statute, or express contract, all seek to
mitigate, however, the harsh consequence of such a doctrine.® And,
conversely, the death of the agent, servant, or person hired or em-
ployed, operates similarly against the principal, master, or em-
ployer, where the law is left to operate naturally.^
But where the contract between the parties was expressed in
enant by B. not to exercise a cortain anty, Bradbury v. Morgan, 1 H. & C.
business, but to solicit business regu- 249; Wms. Exrs. 1770. And as to
larly for A., upon a certain consider- suit for contribution by a co-guaran-
atlon, does not bind B.'s widow as tor, see Hard v. Mingle, 12« N. Y. S.
such. Coke v. Colcroft, 2 W. Bl. 856. 51.
Die line of distinction sometimes runs 3. Schoul. Dom. Rel. § 474.
very closely. Cf. VVentwortti v. Ox-k, 4. Tasker v. Shepherd, 6 H. & N.
10 Ad. & E. 45, with Dickenson v. 575.
Callahan, 19 Penn. St. 227, where the 5. Campanari v. Woodbum, 15 C.
cr)ntrary interpretation was given. B. 400; Exrs. 1727.
And cf. as to the representative's lia- 6. Schoul. Dom. Rel. § 47.3.
Mlity for advances made after the de- 7. lb. See Powell v. Craham, 7
cedent's death on a continuing guar- Taunt. 580.
1382
CHAP, v.] LIABILITY OF EXECUTOE OR ADMINISTRATOR. § 1368
writing, the language, scope, and intendment of the instrument
must be considered in instances like the foregoing. Thus, if one
covenants personally in a lease, his death may he held to discharge
his estate and his personal representatives from all obligation fur-
ther than performing the covenant during his own life. But, as
leases under seal commonly run, this would be quite exceptional ;
and covenants usually bind one's executors, and administrators,
and assigns, during the full period, in express terms.^ Whether or
not a contract is strictly personal depends upon the intention of
the parties as gathered from their acts or writings ; * and presump-
tion favors the binding of one's estate.-^
§ 1368. The same Subject; Distinction between Gifts and Con-
tracts.
So, too, an obligation enforceable after one's death against his
estate, must have been founded in a legal contract consideration.
Gifts to take effect after death stand upon the footing of legacies
or gifts causa mortis, and if valid at all, must be referred to the
peculiar rules which apply thereto.^ As a court of equity will not
inter vivos compel any one to complete his gift, neither will it
compel one's executor or administrator to complete it on his death.
Hence, an act of pure bounty, not fully performed by the decedent
during his lifetime, cannot be specifically enforced against the es-
tate or its representative.^ And hence, too, althougli a promise by
8. Touchst. 178, 482; § 1375, post; 2. See Part V. as to legacies;
Wms. Exrs. 1726; Williams v. Bur- supra, § 1219.
rell, 1 C. B. 402. So a covena,nt to 3. Hooper v. Goodwin, 1 Swanst.
maintain an apprentice is held to con- 485; Callaghan v. Callaghan, 8 CI. &
tinue in force after the master's Fin. 374; Dillon v. Coppin, 4 My. &
death, while a covenant to instruct Cr. 637. And see Shurtleff v. Fran-
liim does not. Wms. Exrs. 1765; 1 cis, 118 Mass. 154; Stone v. Gerrisli,
Salk. 66. 1 Allen, 175; Schoul. Dom. Rel. 3d
9. Smith V. Preston, 170 111. 179, ed. § 274; Wms. Exrs. 1768, and Per-
48 N. E. 688; Oliver v. Rumford kins's note. A promise that one's
Works, 109 U. S. 81, 27 L. Ed. 862. representative shall pay A £20, in
1. Chamberlain v. Dunlop, 126 N. consideration that A. remains in his
Y. 45. 52, 22 Am. St. Rep. 807, 26 N. service till his death, is enforceable
E. 966. within the rule of the text. Powell
1383
§ 13G0 EXECUTOKS AND ADMIXISTRATOES. [PAKT IV.
the decedent of recompense for sen-ices rendered may be sued
upon, even supposing the promised recompense to have been bj
waj of a legacy which the decedent did not in fact leave to the
plaintiff, no mere expectation of a legacy, gift or gratuity, can
furnish ground for bringing a suit against the estate. ISTor can the
representative be sued upon any mere writing, though under seal,
which purports to make a volimtary gift after one's decease, out of
his estate; for this would contravene the policy of our statutes of
wills.* In other words any contract unexecuted must have a suffi-
cient legal consideration in order that one may sue upon it.'
§ 1369. The same Subject; Form of Action sometimes Material
in this Connection; Law or Equity.
The form of action appears sometimes material in connection
with suits against the representative touching the obligation of the
decedent. But modern practice, both in England and the United
States, generally abolishes a distinction formerly taken as to
^' wager of law," so that the action of debt o-n simple contract is
maintainable, as well whether the contract was made by the de-
cedent or by his personal representative.^ To revive an action
against executor or administrator the requirements of the local
statute must be followed.'
Specific performance in equity will rarely lie on the unexecuted
V. Graham, 7 Taunt. 580. Cf. Oro. Cowp. 375, by Lord Mansfield. And
Eliz. 382; Wins. Exrs. 1728. See also eee Thompson v. French, 10 Yerg.
Bell V. Hewitt, 24 Ind. 280. And see 452.
as to promise of a legacy, § 1432. 7. Segars v. Segars, 76 Me. 96.
4. Baxter v. Gray, 3 M. & G. 771; See Mississippi code cited 62 Miss.
Le Sage v. Coussmaker, 1 Esp. 188; 19, as to reviving a suit by sci. fa.
Nield V. Smith, 14 Ves. 491. for a general final judgment. New
5. As to gifts generally, see 2 York code permits a continuance and
Schoul. Pers. Prop. §§ 54-125. revival of an action which legally sur-
6. Wms. Exrs. 1930, 1931; 9 Co. vives even though Iwtli plaintiiT and
87 b; Riddell v. Sutton, 5 Bing. 206; defendant die. Holsman v. St. John,
fitat. 3 & 4 Wm. IV. c. 42. Otlier ac- 90 N. Y. 461. The question of aasets
lions were substituted at common law or no assets cannot be raised where a
in the stead of those which did not represi/ntativo asks to be made the
survive under the rule of the text, party defendant. 91 N. 0. 495.
1384
CHAP, v.] LIABILITY OF EXECUTOR OR ADMINISTRATOR. § 1370
contracts of a decedent relating to personalty, since the remedv at
law for damages is usually adequate and certain.^
§ 1370. Survival of Actions against Deceased founded in Tort;
not permitted at Common Law.
Where, on the other hand, the cause of action against the de-
cedent was founded in tort, and not contract, it was the common-
law rule tliat the right of action to recover damages died with the
j)erson who committed the wrong. Consequently, wherever an in-
jury had been done to the person or property of another for which
damages only could be recovered, as for one's wilful misconduct
or negligence, the death of the wrong-doer before judgment pre-
cluded legal redress. Thus, one's executor or administrator could
not be sued for false imprisonment, assault and battery, slander,
libel, malicious prosecution, or any other personal injury inflicted
by the decedent, whether mental or physical.^ Nor for trespass,
trover, or deceit ; nor for causing damage by a nuisance, diverting
a water-course, or obstructing lights.'^
The right of action for default and embezzlement, in trusts pub-
lic or private, died upon the same principle with the offender.^ So,
if the executor or administrator himself committed waste and died,
it was treated as a personal tort which died with his own person,
saving his estate harmless ; ^ though equity prescribed a different
rule ; * while, upon one's official bond, moreover, suit might perhaps
lie as upon a contract liability.^
8. Beekman v. Cottrcll, 51 N. J. Eq. deceitful misrepresentation inducing
337, 31 A. 29. a purchase, and a claim to rescind
9. Wms. Exrs. 1728; 1 Saund. 216 the purchase, see Duncan Re, (1899)
a; Waters v. Nettletnn. 5 Cush. 544; 1 Cli. 387. See supra, §§ 1279-1283,
More V. Bennett, 65 Barb. 338; 87 N. for corresponding will, where the de-
€. 351. cedent was the party wronged.
1. Perry v. Wilson. 7 Mass. 395; 2. Franklin v. Low, 1 Johns. 396.
Hawkins v. Glass, 1 Bibb, 346; Nichol- 3. 3 Leon. 241; 1 Ventr. 292; Wms.
eon V. Elton, 13 S. & R. 415; Jarvis Exrs. 1729.
V. Rogers, 15 Mass. 398; Wms. Exrs. 4. Price v. Morgan, 2 Chanc. Gas.
1728. 217; Wms. Exrs. 1739. Equity
As between a claim of damages for charges trustees and their represen-
1385
§ 13V1 EXECUTORS a:st> admi:^isteatoes. [part IV.
Liability on a penal statute or under a subpoena dies with tlie
person at common law.^ Also, the liability of a marshal, sheriff,
or jailor, for permitting an escape, or for other malfeasance or
neglect of himself or his deputies.^ Also liability to prosecution
for violating some municipal ordinance.^
But if judgment had been recovered against the person com-
mitting the wrong, during his life, the judgment debt would have
bound the estate; for as to the foundation of that judgment,
whether in a cause of action which survives or not, there is no es-
sential difference; the judgTaent itself creating a new and distinct
obligation of the contract kind.^
§ 1371. The same Subject; whether Replevin can be maintained
against the Representative.
In replevin, if the plaintiff died, the cause of action appears to
have survived at the common law ; but, if the defendant died, the
right of action against him died also; so that, although the per-
sonal representatives of a party from whom goods or chattels had
been tortiously taken in his lifetime might bring replevin, no such
tatives with the consequences of a v. Chirney, 20 Q. B. D. 494; Shuler v.
breach of trust. lb. Millsaps, 71 N. C. 297; Chase v. Fitz^
5. Supra, § 1386. 132 Mass. 359. Divorce suits abate
6. Wms. Exrs. 1728; Wentw. Off. by a defendant's death. McCurley v.
Ex. 255, 14th ed.; Schreiber v. McCurley, 60 Md. 185, 45 Am. Rep.
Sharpless, 110 U. S. 76, 28 L. Ed. 65. 717. Also an action against a trustee
7. Ld. Raym. 973; Hambly v. Trott, or an officer of a corporation to re-
1 Cowp. 375; Wms. Exrs. 1729; Mar- cover a statute penalty. Stokes v.
tin V. Bradley, 1 Caines, 124; People Stickney, 96 N. Y. 333; Brackett v.
V. Gibbs, 9 Wend. 29. See Lynn v. Grisvvold, 103 N. Y. 425; McCurley v.
Sisk, 9 B. Monr. 135. McCurley, 60 Md. 185, 45 Am. Rep.
8. Carrollton v. Rhombcrg, 78 Mo. 717. Also an action for enticing away
547; Diverspy v. Smith, 103 111. 378, a servant. Huff v. Watkins, 20 S. C.
42 Am. Rep. 14. Malpractice suits do 477. Also action against a bank of-
not survive the defendant. Jenkins ficer for negligent mismanagement.
V. French, 58 N. H. 532; Boor v. Ix)W- 23 Blatch. 457. The death of a luna-
rey, 103 Tnd. 462, 53 Am. Rep. 519, tic abates a suit against him. 80
3 N. E. 51. Nor an action for breach /a. 873. See 136 N. Y. S. 573.
of promise of marriage except for 9. Wms. Exrs. 1740; Dyer, 322 a;
special damage to prdperly. Finlny supra, § 1366.
138G
■CHAP, v.] LIABILITY OF EXECUTOE OR ADMIXISTKATOE. § 1372
action could be maintained against the personal representatives o£
one who, in his lifetime, had tortiouslj possessed himself of goods,
unless the property came into the possession of the personal repre-
sentatives, and they refused to restore it.^
§ 1372. The same Subject; whether other Remedies might be
applied because of the Tort.
While actions declaring as for a tort committed by the defendant
were thus defeated or abated by such party's death, other remedies
against his estate might sometimes avail for the injured person's
redress, provided the fomi of declaration were different. As, per-
haps, in bringing detinue to recover chattels in specie;^ or where
the form of action was ex contractu; ^ and, generally, if the wrong-
ful act might be laid to the executor or administrator himself, or
else, waiving the tort, an action might be brought as upon an im-
plied contract, or for money had and received.'' As in various other
instances, the common law, while insisting upon a legal maxim
which, rigidly applied, might work injustice, favored artifice and
the dexterous application of forms for correcting the worst mis-
chief; so that its courts might render a righteous judgment while
maintaining the severe aspect.
1. In replevin, the plaintiff's ground Jones v. Littlefield, 3 Yerg. 133, to
of action is his property, either gen- the effect that detinue cannot revive
eral or special, and a tortious viola- as for an act committed by the de-
tion of his right of property by the cedent himself.
defendant. Parsons, C. J., in Mellen 3. See supra, § 1366.
V. Baldwin, 4 Mass. 481; Lahey v. 4. As in assumpsit. 1 Cowp. 375;
Brady, 1 Daly, 443; Potter v. Vin CoUen v. Wright, 7 El. & Bl. 647. Or
Vranken, 36 I^. Y. 619, 627, per action for use and occupation. lb.
Davies, C. J. Wms. Exrs. 1730, ap- And see, as to money for which a
pears to state this point differently, sheriff was liable to account, Perkin-
See Western Newspaper Union Re, 27 son v. Gilford, Cro. Car. 539; Wms.
Okl. 261, 111 P. 204 (replevin under Exrs. 1730, 1731; United States v.
chattel mortgage upheld). Daniels, 6 How. (U. S.) 11, 12 L. Ed.
2. Wms. Exrs. 1730; Le Mason v. 323. In general, as to waiving the
Dixon, W. Jones, 173; 3 Dev. L. 303; tort and all special damages, and
1 Leigh, 86. Detinue, unlike replevin, suing as for the proceeds, etc., see 1
is for detaining unlawfully rather Chitty PI. (16th Am. ed.) 112, Per-
than tortiously acquiring. But see kins's note.
1387
§ 1373 EXECUTORS AXD ADMIiS'ISTKATOES. [pAKT IV.
§ 1373. Modern Statutes enlarge the Survival of Actions against
Decedent.
As, however, with actions on behalf of a decedent's estate,^ so
where the decedent was defendant, modem legislation, both in Eng-
land and the United States, favors an enlargement of the causes
where survival shall be allowed ; and often, too, bv the same enact-
ment. Thus, under the English stat. 3 & 4 Wm. IV. c. 42, an ac-
tion of trespass is maintainable against the executor or administra-
tor of any person deceased, for an injury to property, real or per-
sonal, committed \\athin six months before his death ; provided the
action be brought not later than six months after the representative
shall have taken administration.^ And in many American States
the survival of actions for torts of a decedent is still more widely
extended, so as not only to embrace causes grounded in an injury
to one's person or character, but to permit of replevin and various
other forms of action without particular limitation as to the time
when the offence was committed.' But, whether directly or by im-
plication, such statutes appear to conform to the general policy
which accords to executors and administrators, not themselves in
default, a special and brief period of limitations, in order that they
5. Supra, § 1282. c. 166. xVs to the form of judgment
6. Wms. Exrs. 1734; Powell v. in repkvin, see ib. All actions which
E.ees, 7 Ad. & El. 426. would have survived if commenced bv
7. Deceit, malpractice, etc., arc thus or against the original party in hi3
in some States made a good cause of lifetime may be commenced and prosf-
axjtion notwithstanding the oflfender's cuted by and against his executors
death. See the special causes (em- and administrators. Mass. Pub.
bracing bodily injuries) enTimcrated Stats, c. 166, § 1; 8 Jones, 60. Ac-
Jn Mass. Pub. Stats, c. 165, § 1; Net- tion for infringement of a p;itent sxir-
tleton V. Dinehart. 5 Cush. 54.3. And vives. Attcrbury v.- Gill, 2 Flip. 239;
pee, also, Shafer v. Grimes, 23 Iowa, 28 Fed. R. 460. Actions for ilkgd
550; 1 Chitty PI. 58, note; supra, § arrest or false imprisonment do not
1282; Ilaight v. Hoyt, 19 N. Y. 464. include actions for malicious prosecu-
The reader is referred to the statutes tion. Clark v. Carroll. 59 Md. ISO.
of the respective States on this sub- But a cause of action for conspiracy
ject. to cheat and defraud may survive ;'4
Damages actually sustaine<l, and afTecting property rights. Brack.^tt
not exemplary or vindictive damngf-s v. Griswold, 103 N. Y. 425, 9 N. E.
may be recovered. Ma.s«. Pub. Stats. 438.
1388
CHAP, v.] LIABILITY OF EXECUTOR OR ADMINISTRATOR. § 137 i
may settle up the estate expeditiously and upon a full knowledge
of the claims for which officially they shall be held answerable.^ A
cause of action for injury to property rights may thus stand on a
good footing, while that for injury to the person dies with tlie
wrong-doer.
§ 1374. Survival of Actions for Rent or Damage to Real Estate.
Rent due from a decedent may be recovered, whether the remedy
be by action for use and occupation, or, perhaps (in case of a writ-
ten lease), as under the stipulations of a sealed contract.^ But re-
covery in ejectment raised technical difficulties, which have now
become of little practical consequence.^ At the common law, an
action of trespass for mesne profits while one was wrongfully in
possession could not be brought against his executor or administra-
tor ; ^ though a bill in equity for an account of mesne profits was
under special circumstances sustained.^
Waste, moreover, did not lie against the representative at the
common law; this being a tort which died with the person who
committed it. Yet, upon the decedent's tort, as for instance in.
cutting down trees or digging coal, there might accrue the less re-
munerative right of action against the representative, as for money
received by selling it.* Or a bill in equity might lie for account.^
So, if a man committed equitable waste and died, as where a tenant
for life abused his power by cutting down ornamental trees, equity
8. See Part V., c. 1, as to payment Wms. Exrs. 1731; Harker v. Whit-
of debts. aker, 5 Watts, 474.
9. Turner v. Cameron's Co., 6 Ex. 3. lb.; Caton v. Coles, L. R. 1 Eq.
932; Wms. Exrs. 1731. 581.
1. Wms. Exrs. 1731; Pultney v. 4. 2 Saund. 252; Cow-p. 376; Wms.
Warren, 6 Ves. 86; Birch v. Wright, Exrs. 1732; Powell v. Pees, 7 Ad. &
1 T. P. 378; Jones v. Carter, 15 M. El. 426; Moore v. Townshend, 33 N.
& W. 718. An action of ejectment J. 284; 36 Am. Pep. 542. The found-
abates at common law on the de>ath ation of this action appears to be the
of the sole defendant. Farrall v. benefit the personal estate of the de-
Shea, 66 Wis. 561, 29 N. W. 634. See cedent has derived in consequence cf
Part VI. the waste. lb. ; Taylor Landl. & Ten.
2. Pulteney v. Warren, 6 Ves. 86; § 689.
1389
§ 1375 EXECUTORS AND ADMIN ISTEATORS. [PAET IV.
asserted jurisdiction to make Ms personal representatives account-
able for the produce thereof.^
The executors and administrators of a tenant for years, however,
are punishable for waste committed by themselves while in posses-
sion of the land, as other persons are.'
§ 1375. Liability of Representative on Covenants of his Dece-
dent; Covenants under Lease, etc.
Wherever the decedent was bound by a covenant whose perform-
ance was not personal to himself and terminable by his death, his
exemitor or administrator shall also be bound by it, even though
not named in the deed. And whether the covenant was broken
during the life of the decedent or after, so long as it was a continu-
ing and express covenant, and the appropriate rule of limitations
leaves the estate still unsettled in the representative's hands, the
latter is answerable in damages for its breach.^ For the benefits
of a covenant and its burdens are transmitted to the representative
together ; not, however, where it is clear that the covenant applied
only to the covenantor personally and was limited to his own life-
time.^ Upon all the covenants by the decedent broken during his
lifetime, even though they were personal to the decedent in liabil-
ity, the personal representative is, of course, answerable for the
breach out of the assets.^
5. 1 P. Wms. 406. Thus, damages for breach of a covcn-
6. Lansdowne v. Lansdowne, 1 ant for quiet enjoyment under a lease
Madd. 116; Wms. Exra. 1732, 1733. accruing both before and after the
7. Taylor Landl. & Ten. § 689. For death of the covenantor may be re-
statute changes on this point, see Tay- covered in one action against his per-
lor Landl. &, Ten. § 689. And see post, sonal representative. 11 Pick. 421.
§ 1382. Th« rule is stated differently as to
8. 3 Mod. 326; Wells v. Betts. 10 mere covenants in law, not express.
East, 316; Hovey v. Newton, 11 Pick. Wms. Exrs. 1752.
421; Hutchings v. Bank, 91 Va. 68, 9. Coffin v. Talman, 8 N. Y. 4-65;
20 S. E. 950; Brownfield v. Holland, Taylor Landl. & Ten. § 460. As, e.g.,
114 P. 890, 63 Wiush. 86 (liabli» for a covenant to repair. lb.
rent under a lease) ; Wms. Exrs. 1. Wentw, Off. Ex. 251; Wms.
1750; Taylor Landl. & Ten. § 609. Exrs. 1750.
i;jt)u
CHAP, v.] LIABILITY OF EXECUTOR OR ADMIXISTRATOR. § 1375
Although a covenant in a lease should be of a nature to run with
the land, so as to make the assignee thereof liable for any breach
committed after its assignment, and although the lessor has ac-
cepted the assignee as his tenant, yet a concurrent liability on the
covenant may, nevertheless, continue, so as to charge the original
lessee and his executor or administrator.^ And hence, the personal
representative who sells the lease may well require of the purchaser
a covenant for indemnity against the payment of rent and perform-
ance of covenants ; though, independently thereof, he will have his
remedies over against his assignee to that intent.^
If in possession of premises under a covenant, the executor or
administrator may be sued in covenant as assignee, for he is as-
signee in law of the interest of the covenantor/ But, for a breach
committed in the time of the decedent, the judgment must be out
of his assets, and the representative should be sued in that charac-
ter,^ Leases pass to one's executor or administrator as chattels
real or personal assets, with all incidental benefits and burdens;
and the rule is general, that an assignment of the lease will not, of
itself, affect the liability of the lessee or his personal representa-
tive to the lessor upon the covenants therein contained ; * though
an assignment or surrender, with the lessor's consent, and duly ac-
cepted by him, may practically terminate the original lessee's re-
sponsibility as by mutual consent.^
2. Wms. Exrs. 1750; Taylor Landl. Smith, 13 Mass. 405; Taylor Landl.
& Ten. § 669; Greenleaf v. Allen, 127 & Ten. § 669; 16 Hun, 177.
Mass. 248. Aliter, where the decedent 5. lb.
himself was assignee of an original 6. Dvvight v. Mudge, 12 Gray, 23.
lessee; for here all future liability 7. Deane v. Caldwell, 127 Mass.
may be discharged if the representa- 242. See as to assigning a lease, etc.,
tive assigns over, though to a pauper. supra, § 1353. The lessor's executor,
Rowley v. Adams, 4 My. & Cr. 534. under a lease, still in force, whicli
3. Wilkins v. Fry, 1 Meriv. 265; covenants to rebuild in case of fire,
Moule V. Garrett, L. R. 5 Ex. 132; is bound to rebuild, if the premises
Wms. Exrs. 1752. are burned after the lessor's death.
4. 1 Ld. Raym. 453; Montague v. Chamberlain v. Dunlop, 126 N. Y. 45,
22 Am. St. Rep. 807, 26 N. E. 966.
1391
§ 1376 EXECUTORS AXD ADMIXISTEATOKS. [PART IV.
§ 1376. Liability of the Personal Representative for Rent.
The personal representative's liability for rent follows, so far as
may be, the foregoing doctrines. For a promise under seal to pay
rent constitutes a covenant, and justifies for its breach an action of
covenant; * though there may be a tenancy without a lease, and of
a more precarious nature. Assignment of a lease by the lessee dur-
ing his life, or by his personal representative after his death, can-
not of itself avail to clear the estate of responsibility for rent;
though an assignment or underlease, not contrary to express re-
strictions of the original lease, may replenish the assets in this
respect.® But a surrender of the lease by the executor or adminis-
trator being absolutely accepted by the lessor, without any reser-
vation of a right to sue the representative, or to prove against the
decedent's estate in case of any possible loss occasioned by letting
the premises at a reduced rent, the lease terminates, and all liabil-
ity upon the covenants thereof, and no further rent need be paid.^
As respects a liability for rent more generally, the executor or
administrator is chargeable with rent in arrear at the time of his
decedent's death.^ The action of debt lay at common law for the
rent of lands demised, whether for life or for years or at will ; the
right to sue being founded either on the contract implied from
privity of estate oo* on the express contract of demise. But the
right of action on the contract thus implied is transferred with the
estate; whereas the lessee under an express contract cannot dis-
charge himself from liability by his own act.^ Hence, as long as
the lease continues, and as far as he has assets, an executor is held
8. Damages for breaclies of a cov- 1. Randall v. Rich, 11 Mass. 494;
enant to pay rent, before and aftor Dean v. Caldwell, 127 Mass. 242.
the death of the lessee, may be re- 2. Shepherd Touch. 178, 483; Tay-
covered in one action again.st his per- lor Landl. & Ten. § 459.
Bonal representative. Greonleaf v. Al- 3. Ilowland v. Coffin, 12 Pick. 105.
Icn, 127 Mass. 248. Drbt against the representative,
9. Taylor Landl. & Ten. §§ 402- whether to be brought as for debet and
413; Smith, ib. 115119; 1 Schoul. drtinet or for dctinct only, see Tay-
Pers. Prop. § 35 ; 3 Mod. 325; .tuprn, lor Landl. & Ten. § 626.
S 1353; 114 P. 890, 63 Wash. 86.
1392
CHAP, v.] LIABILITY OF EXECUTOR OR ADMINISTRATOR. § 1376
liable, in debt as well as covenant, for accruing rent, and an assign-
ment of the term by himself or his decedent affords, of itself, no
immunity.* If, however, after such assignment of the lease, the
lessor has accepted rent from the assignee, and recognizes the latter
as his own tenant, debt no longer lies against the lessee, or his ex-
ecutor or administrator, as to rent subsequently accruing; thougli
on an express stipulation for the payment of rent during the con-
tinuance of the lease, an action of covenant may, as we have seen,
be brought.^
Executors and administrators, though considered assigTiees in
law of a term demised, may waive or incur an individual liability
by their own acts. Thus, if the executor of a tenant from year to
year omits to terminate the tenancy, and continues to occupy the
premises from year to year, he becomes liable personally, as well
as in his representative capacity, for the rent accruing during his
occupancy.^ Executors and administrators may not, however, be
so charged with equal facility ; for, it appears, that while an ex-
ecutor will be considered assignee of a term demised to his testator
from the date of probate and qualification, an administrator only
assumes such liabilities when he takes possession of the demised
premises, or by other positive acts evinces his intention to become
assignee in effect.^ But the personal representative cannot be
4. 3 Mod. 325; Wms. Exrs. 1753, For, if the representative continues
1759; 2 Saund. 181; I Lev. 127; to occupy, and the landlord abstains
Hutchings v. Bank, 91 Va. 68. As to from giving notice to quit, an im-
the representative's liability for a plied promise, to abide by the original
ground rent, cf. Van Rensselaer t. terms is inferable. Wms. Exrs. 1761.
Plainer, 2 Johns. Cas. 17; Quain's 7. Pugsloy v. Aikin. 11 N. Y. 494;
Appeal, 22 Penn. St. 510. If the lease Inches v. Dickinson, 2 Allen, 71 , 79
be assigned, the landlord, under such Am. Dec. 765. Even an unqualified
circumstances, may sue the lessee or person may by his entry incur the re-
assignee, or both jointly, at his op- sponsibility of an executor de son
tion. Taylor Landl. & Ten. § 620. tort. Williams v. Heales, L. R. 9 C.
5. Taylor Landl. & Ten. § 620; P. 177; supra, Pt. II., c. 5. See Tin-
Wms. Exrs. 1752; Pitcher v. Tovey, dal, C. J., in Wolla^ton v. Hakewill,
4 Mod. 71. 3 M. & G. 297, as to the argu-
6. Wollaston v. Hakowill, 3 M. & ment that the executor, by being
G. 297; Taylor Landl. & Ten. § 459. charged generally as assignee, be-
88 1393
1377
EXECUTORS AXD ADMIXISTEATORS.
[part IV.
charged personally as assignee, where he waives or surrenders the
term. And this he should do in prudence, if the tenancy is un-
profitable or threatens to involve him beyond the assets at his dis-
posal. For, although an executor or administrator may be liable
to respond to the covenants of a lease from the assets, he may at
any time discharge himself from individual liability, by himself
assigning over, if -the landlord will not accept his surrender of the
premises; since like ever\' other assignee, he is only liable person-
ally for breaches of covenant happening during his own time, and
not for those of his predecessors in enjoyment of the estate.^ But,
if he underlets, the occupation of the under-tenant is his occupa-
tion, and he becomes personally liable as assignee of the lease.^
§ 1377. Liability of Representative on Covenants concerning
Real Estate, etc.
It is laid do\\Ti that if the purchaser of real estate dies without
comes thereby liable dc bonis prop-
riis. And see Green v. Listowell, 2
Ir. Law Rep. 384; Kearsley v. Oxley,
2 H. & C. 896.
8. Remnant v. Bremridge, 8 Taunt.
191; Wms. Exrs. 1758; 1 Kay & J.
575. Assignment over, even to a
pauper, will discharge^ him as assig-
nee; and in some cases, if the land-
lord will not accept a surrender of
the lease, it is the representative's
duty to thus prudently rid himself of
the responsibility. I B. & P. 21; 4
My. & Cr. 1534. Cf. Johnson v. Stone,
102 N. E. 366, 215 Mass. 219.
9. Bull V. Sibbs, 8 T. R. 327; Car-
ter V. Hammett, 18 Barb. 608; Tay-
lor Landl. & Ten. § 461. Tlie estate
of the lessee remains liable for rent
in due course of administration if the
landlord refuses to enter. Martin v.
Black, 9 Paige, 641; Copcland v.
Stephens, 1 B. & A. 593. As to declar-
ing against executor or administrator
as the as.signee, see Taylor Landl. &
Ten. § 461; Wms. Exrs. 1756. After
entry the representative is charged
for a breach either in his representa-
tive character or as assignee. lb.
Tlie representative's personal liability
for rent shall not exceed tlio value
of the demised premises; though it is
otherwise witli respect of suing him
as assignee on a covenant to repair.
1 Bing. N. C. 89; Taylor Landl. &
Ten. § 461; Sleake v. Newman, 12 C.
B. n. s. 116. The rules and forms of
pleading in such actions wore quite
technical anJ formal. Modern stat-
ute provisions are found relating to
this subject. Dobson v. Samuel. 1 Dr.
& Sm. 575; stat. 23 & 23 Vict. c. 35,
§ 27.
Specific performance on a covon.ant
for renewal has been enforced against
an executor who has entered and ad-
mitted assets. Stepliens v. Hothara,
1 Kay & J. 571. But see Philips v.
Everard, 5 Sim. 102.
1394
CHAP, v.] LIABILITY OF EXECUTOR OK ADMINISTRATOE. § 1378
having paid down the purchase-raonej, his heir-at-law or devisee
will be entitled to have the estate paid for bj the executoir or admin-
istrator, provided the personal assets suffice.^ And should the per-
sonal assets prove insufficient in such cases, so that the purchase
cannot be carried out, the heir or devisee, as it appears, has an
equity to require what personal assets may be obtained to be laid
out in land for his benefit ; ^ not, however, we apprehend, to the
injury of creditors of the decedent, but only so far as to establish
him, where he was rightfully entitled to stand, with respect to the
representative himself and the character of the decedent's prop-
erty. If the purchase contract, on the other hand, was not, or
should not have been completed, no equity attaches for the purpose
of effecting a conversion of the property.^ The rights, as between
a personal representative and the heir of a deceased vendor, should
be correspondingly treated.*
§ 1378. Liability of Representative on Joint or Several, etc., Con-
tracts of Decedent.
At common law, where there is a joint obligation or contract on
one part, and one of the joint contractors or obligors dies, death
puts an end to his liability, leaving the survivor or survivors thereto
alone suable.^ But, on the other hand, where the contract or obli-
gation was several, or joint and several, the personal representative
of a deceased contractor or obligor may be sued at law in a separate
1. Wms. Exrs. 1762; 1 Sugd. V. & Mod. 315; Godson v. Good, 6 Taunt.
P. 180; Whittaker v. Whittaker, 4 594; 1 Chitty PI. (16th Am. ed.) 5S.
Bro. C. C. 31; Broome v. Monck, 10 On the death of one of two joint
Ves. 597. obligees the right of action survives
2. lb. as to the other, Hedderly v. Downs,
3. Broome v. Monck, 10 Ves. 597; 31 Minn. 183, 17 N. W. 274; 78 Ala.
Curre v. Bowj'er, 5 Beav. 6. The 162. The survivor of two or more
court cannot speculate upon what the parties, plaintiff or defendant, has
deceased party would or would not general consideration. Moses v.
have done. lb. Wooster, 115 U. S. 285, 29 L. Ed. 391.
4. Wms. Exrs. 1763; 1 Sugd. V. & See Lee v. Blodget, 102 N. E. 617,
P. 180. 214 Mass. 374.
5. Wms. Exrs. 1741; 1 Sid. 238; 4
1395
§ 1379 EXECUTOES AND ADMINISTKATORS. [PAKT IV.
action; not, however, jointly with the sui-vivor, because the latter
is liable, as an individual, but the former only so far as he may
have assets ; ® nor jointly with the representative of another de-
ceased obligor or contractor, because each representative is an-
swerable for assets of his own decedent estate, neither more nor
less, according as they may suffice.'^ The doctrine of survivorship,
■with its unequal rights and liabilities, is in modern times treated
with disfavor; and local statutes are found whose scope is to make
representatives liable to suit, on the assumption that the contract
or obligation must have been not strictly a joint one, but joint and
several, by intendment.^ Equity affords relief correspondingly,
and asserts that contracts joint in form may, nevertheless, in a cor-
rect interpretation of what the parties intended be taken to be joint
and several,^ though not so as to do violence to a mutual intention
plainly inconsistent with that presumption.^
§ 1379. Liability of Representative of Deceased Partner.
A partnership contract being joint in law, the rule of our pre-
ceding section applies to the case of a partnership debt ; subject,
however, to like statute qualifications,^ and similar remedies in
equity. Thus it is well settled that partners may be sued in equity
on the assumption that the partnership debt is both joint and sev-
eral ; conformably to which theory the creditor may not only reach
assets of a deceased partner in his representative's hands, should the
surviving partner fail to satisfy his claim, in full, but, as the later
decisions hold, may pursue the assets of a deceased partner, as mat-
ter of preference, leaving the latter's representatives and the sur-
viving partner to adjust their respective equities together.^
6. May v. Woodward, 1 Froom. 248; Bromley, 1 Atk. 90. And soe Tliorpe
1 Chitty PI. 58. v. Jat-kson, 2 Y. & Coll. 533.
7. Grymes v. Pendleton, 4 ('.ill. 130. 1. Sumner v. Powell, 2 Meriv. 30;
8. See Rice Appellant. 7 All.^n. Rawstone v. Parr, 3 Russ. 424.
115; 124 Maes. 219; Wm.s. Exrs. 1740. 2. Sampson v. Shaw. 101 Ma.s.s.
Perkins's note; Maaten v. Blarkwell. 145.
15 N. Y. Supr. 313. 3. Liverpool Bank v. Walker, 4 De
9. Wms. Exrs. 1746; Primrose v. G. & J. 24; Vulliamy v. Noble, 3
1390
CHAP, v.] LIABILITY OF EXECUTOR OR ADMINISTRATOR. § 13S0
§ 1380. Liability of Representative of Deceased Stockholder.
The personal liability of stockholders is usually defined speci-
fically by the general or special act under which the corporation
was created or does business. A personal liability beyond the value
of one's own shares is not usually incurred, however, after the capi-
tal stock has been paid in; and whether the personal representa-
tive of a deceased shareholder should suffer stock to be lost to the
estate, rather than pay assessments thereon, or assume corporate
debts, is mainly a question of due care and good faith.'' But, as to
enforcing a personal liability on the part of the decedent, the doc-
trine of the English equity courts is, that the executor or adminis-
trator of a deceased shareholder succeeds presumably to the full
liability, as well as to the rights of the latter, such as there may be;
and even that for liabilities incurred in respect of the shares since
the death of the shareholder, the representative must respond out
of the assets.^ The American doctrine, so far as developed, pur-
sues apparently the same doctrine, to at least the extent that execu-
tors and administrators of deceased shareholders become liable
prima facie in their representative capacity, as for other debts of
the deceased.®
Meriv. 619; 4 My. & Cr. 109; De- a bill in equity against the executor
vaynes v. Noble, 2 Russ. & My. 495; can only receive their proportion.
Wilkinson v. Henderson, 1 My. & R. Bradley v. Brigham, 144 Mass. 181,
582. See upon this subject more fully, 10 N. E. 793. A surviving partner
Collyer Partn. §§ 576-580; Story has no such claim against the esta^te
Partn. § 362 ; 1 Story Eq. Jur. § 676 ; as can be proved or barred until the
Wms. Exrs. 1743, 1744, and cases partnership is wound up. Blakcly v.
cited. The adjustment or winding- Smock. 96 Wis. 611, 71 N. W. 1052.
up of partnership affairs belongs to 4. Supra, § 1318.
equity courts. As to winding up a 5. Baird's Case, L. R. 5 Ch. 725,
trade with the surviving partner, see and cases cited. The charter or suet
supra, §§ 1325, 1326. If assets of a of incorporation must be examined to
partnership in possession of one of the see whether the liability is less or
partners at his death are sold by hs greater.
executor or administrator for less 6. Grew v. Breed, 10 Met. 679,
than their value, and the amount re- contra, Ripley v. Sampson, 10 Pick,
ceived is accounted for as assets of 371; New England Bank v. Stockhold-
the estate, the surviving partners on ers, 6 R. I. 154 , 75 Am. Dec. 688.
1397
§ 1381 EXECUTORS A^^D ADMINISTEATOES. [PAET IV.
Hence, assets of the estate of tlie deceased shareholder may be
reached in equity in order to enforce contribution among share-
holders for losses sustained by the company ; and this after a pro-
cedure analogous to that which obtains in adjusting partnership
profits and losses.^ But, even where stockholders are made liable
by the incorporating act or other local legislation beyond the value
of their respective shares, for debts of the corporation, it is not
unfrequently provided that the execution shall issue against the
corporation, and be returned unsatisfied before shareholders can
be thus held jointly and severally liable for the debts ; ^ and cor-
porate debts are usually to be enforced directly against the cor-
poration, whose capital stock, represented by the certificates of
shares, and invested in the corporate business, is the proper and
primary fund from which all such liabilities should be made good.
§ 1381. Exoneration of Personal Property specifically be-
queathed.
Where, by the terms of a will, chattels are specifically be-
queathed, such as a diamond ring, a silver cup, or a stock of wines,
it is to be presumed that the intention was to bequeath them by
an unencumbered title ; and hence, if at the testator's death tlie
ring or cup be found pawned, or the wines prove to be on storage
or in some government warehouse liable to customs duties, the ex-
ecutor should redeem or exonerate the thing at the expense of the
estate, and deliver it, free of charge, to the legatee.^
7. Oases supra; Bulmer's Case, 33 Leeds Banking Co., Re, L. R. 1 Ch.
Bpav. 435. 231. Turner, L. J., put the ca.se as
8. Cutright v. Stanford, 81 111. 240. .similar to that of an executor's carry-
And see Thompson on Stockholders, ing on a trade with assets. But the
§§ 250-254. rules as to permitting a trust invest-
Tt is held in England that the per- ment in stock are not the same in
fKmal representative who accepts new England as in most of the United
shares of a corporation should bo put St4it<'s.
on the books in his individual and 9. Knight v. Davis, 3 My. & K.
not his representative character, and r>'>S; Stewart v. I>enton, 4 Dougl. 219.
be held personally liable in respect of So, too, we may .suppose, if tlie thing
tliem. speicifically bequeathed had been-
1398
CHAP, v.] LIABILITY OF EXECUTOR OR ADMINISTRATOR. § 13S2
But the just iuteut of the testator, as manifested hy the will,
should prevail in all such cases where this presumption is over-
come. Nor is the thing specifically bequeathed, unless the will so
prescribes, to be put, at the cost of the estate, in better condition
than the testator left it; but the legatee must take it for better or
worse, just as the testator might have handed it over on his death.
Stock specifically bequeathed is bequeathed as with a clear title;
but so as to relieve the estate, nevertheless, from the whole burden
of further assessments, as well as to deprive it of the benefit of sub-
sequent dividends.^ For, the rule is, that the bequest is taken by
the legatee with all the incidental advantages and disadvantages of
dominion, unless the will should, as it may, speak differently.^ If
the thing had ceased to exist at the testator's death, or if no title
could, under the circumstances, devolve upon his personal repre-
sentative, the bequest would prove of no avail, for the estate would
not be bound to supply an equivalent.^ All this is presumed to be
in accordance with what a testator may have intended by his spec-
ific bequest, and conforms to general doctrines applicable to title
derived under a will.
§ 1382. Liability of Personal Representative in Respect of his
Own Acts; Negligence or Bad Faith, Torts, etc.
Second. To dwell now more especially upon the liability which
a personal representative incurs in respect of his own acts while
administering the estate. The course of investigation in former
chapters has shown us that every executor or administrator is
bound to observe not only good faith, but a certain degree of care
placed on storage by the decedent or by the general estate of the t?stator.
left to be mended. Pearce Re, (1909) 1 Ch. D. 819. See
1. Armstrong v. Burnet, 20 Beav. further, Broadwood Re, (1911) 1 Ch.
424; Day v. Day, 1 Dr. & Sm. 261; D. 277.
Addams v. Ferick. 26 Beav. 384. 2. Wms. Exrs. 1764, commenting
The expense of keeping up a spe- upon Marshall v. Holloway, 5 Sim.
cific legacy before its delivery over, 196, where a leasehold interest was
upon assent following the testator's specifically bequeathed; Hickling v.
death (e. g., an animal), should bo Boyer, 3 Mac. & G. 635.
borne by the specific legatee and not 3. See § 1461, as to specific legacies.
1399
§ 1383 EXECUTOKS AXD ADMIXISTEATOKS. [PART IV.
and diligence, properly estimated according to the circumstance of
serving with or without compensation, and fixed at '' ordinary " in
the one instance and " slight " in the other. For losses occasioned
bv his gross negligence or wilful default he is, therefore, personally
liable; and usually, too, in the United States .(siiice here the per-
sonal representative is, as a fiduciary, entitled to compensation),
for all ill consequences suffered by the estate through his failure
to bestow ordinary care and diligence.* For losses occasioned
through his bad faith the representative is always personally liable.^
Furthermore, an executor or administrator is bound to perform his
whole duty according as the law or a testator's will may have di-
rected ; and he cannot, after accepting the trust, avoid any of the
responsibilities which properly attach to the office.®
In general it may be said that for any mere personal tort com-
mitted by an executor or administrator his representative capacity
does not shield, but he is liable personally to those aggrieved.''
§ 1383. Common-Law Doctrine as to Devastavit or Waste.
This standard of liability is that adopted by courts of equity and
probate in concurrence with the common sense of mankind. Buu
the common law appears to have pursued a somewhat different
theory in dealing with such matters ; an odd and, indeed, an illib-
eral one.^ In equity and probate practice, at the present day, the
executor or administrator becomes bound to account for his pro-
ceedings under his trust, and allowance or disallowance of terms
and transactions is made upon the just maxims of responsibility
which we have stated.^ But the common law long reco'gnized di-
rect remedies against the personal representative, founded upon
the suggestion of devastavit on his part.^
4. Supra, §§ 13131315. Cliase. Ill P. 90, 158 Cal. 352; 125
5. lb. N. Y. S. 695.
6. Booth V. Bootli, 1 Beav. 125; 8. fiupra, § 1315.
.Tacob, 198; Williams v. Nixon, 2 9. See Part VII., as to accounts,
Beav. 472. ftc.
7. § 1385. And see Porter v. Long, 1. Wms. Exrs. 1985; appendix,
«3 N. W. 601, 124 Mich. 584; 77 N. post.
Y. S. 1100; 75 Minn. 138; Grubb v.
1400
CHAP, v.] LIABILITY OF EXECUTOR OK ADMIXISTKATOK. § 1384
A violation of duty, by the executor or administrator, such as
renders liim personally responsible for mischievous consequences,
the law styles a devastavit; that is, a wasting of the assets; or, to
take the definition of the courts, a mismanagement of the estate
and effects of the deceased, in squandering and misapplying the
assets contrary to the duty imposed on him. For a devastavit, the
executor or administrator, it is said, must answer out of his own
means, so far as he had or might have had assets of the deceased.^
§ 1384. The Essential Principle of Devastavit is of General Ap-
plication.
The essential principle at the basis of this rule of devastavit
operates, doubtless, whenever and wherever the personal represen-
tative should personally respond for his official conduct; and
whether the maladministration be wanton, wilful, and fraudulent
on his part, or founded in inexcusable carelessness, and whether
the misconduct be active or passive, so long as those interested in
the assets suffer thereby.^ How wide the scope of this doctrine, we
have already seen, while investigating the general rights and pow-
ers of the personal representative. We shall see its further appli-
cation hereafter, when we come to consider the payment of debts
and claims against the estate, the satisfaction of legacies, and the
transfer or distribution of the final residue ; when we observe the
performance of his official duties under peculiar aspects, as where
2. Bac. Abr. Exors. L. 1; VVms. numerous instances have already be?n
Exrs. 1796. And see § 1373. mentioned; and Williams specifies
3. Executors and administrators particularly, paying too much for the
may be guilty of a devastavit, not funeral, paying debts out of order to
only by a direct abuse by them, as the prejudice of those of higher ranlc,
by spending or consuming, or convert- and assenting to the payment of a leg-
ing to their own use the efTects of the acy when there is not a fund suffici-
deceased, but also by such acts of ent for creditors. Wms. Exrs. 1797.
negligence and wrong administration Where the personal representative
as will disappoint the claimants on wastes property, the remedy is to en-
the assets. Bac. Abr. Exors. L. force his legal responsibility. Per-
Among examples of the former kind, soneni v. Groodale, 92 N. E. 754, 199
a collusive sale or pledge of the as- N. Y. 323.
Bcts may be cited. Of the latter kind,
1401
§ 1385 EXECUTOES AXD ADMIJs^ISTEATOES. [PAET IV.
the estate is insolvent, or when it becomes needful and proper for
ihim to take the charge of his decedent's real estate or sell it; with
reference to the duty of accounting, as well as obeying the man-
dates of a court; and, in short, throughout the entire administra-
tion of the estate, and so long as he pursues the official trust reposed
in him. And what is thus obsen^able of a sole original executor or
administrator invested with plenary authority, will be found to
hold true, mutatis mutandis, in the qualified trusts to be hereafter
specially considered, as where the appointment is not original and
complete, or where two or more serve together in the office. For
we here apply a broad principle which pervades the whole law of
bailments and trusts, and underlies the performance of duty by
officers public or private.
Official responsibility, in a word, involves, in any station of life,
the performance of one's duty: first, honestly and uprightly, and
next, with the exercise of a reasonable degree of care and diligence
according to circumstances, the nature of the trust imposed, and
the limitations of authority prescribed by law.*
§ 1385. Representative not to be sued in such Capacity for his
own Wrongful Act; Qualifications of the Rule.
An executor or administrator cannot be sued in his representa-
tive character, for his own wrongful act committed, so as to inflict
personal injury upon another, while administering the estate. For,
if liable at all, the act is outride the scope of his official authority,
and he must be sued and held responsible as an individual.^ But,
4. It has been observed by equity against an abuse of their trust,
courts that two principles influence Powell v. Evans, 5 Ves. 843; Tebbs v.
their course, with respect to the per- Carpenter, 1 Madd. 298; Raphael v.
sonal liability of executors and ad- Boehm, 13 Ves. 410. As to imputa-
ministrators for their oflicial conduct: tion of waste from one's neglect to
(1) That in order not to d' ter per- file an inventory, see Orr v. Kaines,
sons from undertaking these oflices, 2 Ves. Sen. 193. And as to account-
the court is extremely liberal in mak- ing, see Part VII., post.
ing every possible allowance, and cau- 5. Boston Packing Co. v. Stevens,
tious not to hold executors or admin- 12 Fed. Rop. 279; Thompson v.
istrators liable upon slight grounds. White, 45 Me. 445; Parker v. Barlow,
(2) That care must be taken to guard 93 Ga. 700, 21 S. E. 213.
1402
CHAP, v.] LIABILITY OF EXECUTOK OK ADMINISTEATOK. § 13SG
in some instances, where the gist of the offence consists in a con-
tinuing wrongful detention of the plaintiff's goods, the wrong hav-
ing really originated with the decedent, a suit may be brought, if
the plaintiff so elect, against the executor or administrator in his
representative capacity.^ Statute directions on such points seem
desirable; for the old common law is not explicit enough, and its
theory, that the right of action dies with the offender, has been dis-
carded to a great extent by modern legislatures.^
§ 1386. Instances of Devastavit considered; Effect of an Arbi-
tration or Compromise of Demands.
Only a few special instances of liability for devastavit or waste,
at the common law, need here be specially considered ; for the gen-
eral doctrine is sufficiently applied under appropriate heads in
other chapters.
At common law, the arbitration, compromise, or release of a
debt or claim due the estate, was regarded as a waste on the part
6. Trover will lie against the rep-
resentative personally, for a conver-
sion by him, though the property
came to him with the estate of his de-
cedent. Walter v. Miller, 1 Harr.
(Del.) 7. And see Denny v. Booker,
2 Bibb, 427; Thompson v. White, 45
Me. 445; Clapp v. Walters, 2 Tex.
130; supra, § 1372. In some in-
stances an action for money had and
received may be more appropriate.
See Farrelly v. Ladd, 10 Allen, 127.
For the misapplied balance of a fund
entrusted to him by a debtor of the
estate, for discharging the debt thus
owing, the personal reprosentitive is
liable, not in his official, but in his in-
dividual, character; and for such bal-
ance the debtor may sue as for money
received by the defendant to the plain-
tiff's use. Cronan v. Cutting, 99
Mass. 334.
1403
Trover lies, under the statutes of
some States, against an executor or
administrator in such capacity, for a
conversion, as, e.g., of bonds and
mortgages, by his testate or intestate.
Terhune v. Bray, 16 N. J. L. 54. And
it is proper to treat such things as
personal property, whatever may ha-ve
been the earlier rule. Cf. Chaplin v.
Burett, 12 Rich. 384. And see Put-
nam, J., in Cravath v. Plympton, 13
Mass. 454.
An estate is not liable for the rep-
resentative's own tort, where pecun-
iary advantage enures therefrom.
Carr v. Tate. 107 Ga. 237.
7. See supra, § 1373. The represen.
tative is not bound to prolong litiga-
tion by appeal or otherwise, provided
he acts with becoming prudence. 104
N. C. 458.
§ 1387 EXECUTOKS AND ADMINISTKATOES. [PART IV.
of tlie personal representative, if it resulted in loss to the estate.
Concerning arbitration, the point appears to have been stated in
the old books quite sternly j ^ as to compromise, however, later qual-
ifications were admitted, applying in good reason to either act,
which the court of chancer}- saw fit to insist upon, and which, as to
either compromise or arbitration, are now usually insistC'd upon.
The executor or administrator who compromised a debt, so as to
receive less than its full amount, was still held answerable for the
whole ; and yet, if he could show, in exculpation, that he acted
therein for the benefit of the estate, he stood excused.^ The uni-
versal test for modern times should be, whether, in compromising
or submitting to arbitration, the representative acted with fidelity
and due prudence ; ^ but not to leave the doctrine uncertain on this
point, modem express legislation, both in England and the United
States, enlarges greatly the powers of executors and administrators
to compound and refer claims and demands to arbitration at their
own discretion, clothing probate tribunals in numerous instances
with express jurisdiction to authorize such acts on their part, and
thereby afford the representative a more adequate immunity.
§ 1387. Compromise or Arbitration of Claims; Modern Statutes.
As a fair, speedy, and inexpensive means, therefore, of adjust-
ing doubtful claims against an estate and relieving the legal repre-
sentative from undue responsibility, our modem legislation per-
mits of compromise and arbitration ; one or other of which courses
is frequently preferred on both sides to an uncertain lawsuit. Thus
8. If the executor submits a debt borough v. Lcggott, 14 Tex. 677; Ncl-
<lue to the testator to arbitration, iUid son v. Cornvvell, 11 Gratt. 724.
the arbitratorw award him less than 9. Wms. Exrs. 1800; Blue v. Mar-
his due; this, being his own voluntary shall, 3 P. Wms. 381; Pennington v.
act, shall bind him, and he .shall Healey, 1 Cr. & My. 402.
answer for the full value as assets. 1. See Coffin v. Cottle, 4 Pick. 454;
Wentw. Off. Ex. 304, 14th ed.; 3 Chadbourn v. Chadbourn, 9 Allen,
Leon. 53; Bac. Abr. Exors. L. j 1 Ld. 173; Eaton v. Cole, 1 Fairf. 137;
Rsiym. 363, by Tlolt, C. J. And see Kendall v. Bates, 35 Me. 357.
Eeitzell v. Miller, 25 111. 67; Yar-
1404
CHAP, v.] LIABILITY OF EXECUTOR OR ADMIXISTRATOR. § 1387
the English statute 23 and 24 Viet. c. 145, authorizes executors to
compound and refer to arbitration, " without being responsible for
any loss to be occasioned thereby." ^ And by legislative enact-
ments in most of the United States, differing somewhat in detail,
executors and administrators are empowered to adjust by arbitra-
tion and compromise, any demands in favor of or against the es-
tates represented by them, under previous authority of the probate
court.^ This statute authority in some States, however, does not
embrace claims against the estate, but only those in its favor, or
vice versa; nor is the statutory right to arbitrate treated always on
the precise footing as that of compromising claims.* And, again,
as under the English statute above cited, the right conferred by the
legislature does not appear always to contemplate the direct inter-
vention of the probate court.^
2. 23 & 24 Vict. c. 145, §§ 30, 34;
Wms. Exrs. 1801.
3. Mass. Gen. Stats, c. 101, § 10
Woodin V. Bayley, 13 Wend. 453
Tracy v. Suydam, 30 Barb. 110
Peter's Appeal, 38 Penn. St. 239
Scully V. Scully, 94 N. E. 195, 201
N. Y. 61 (settlement only to be set
aside for bad faith or fraud ) .
4. Reitzell v. Miller, 25 111. 67.
5. Kendall v. Bates, 35 Me. 357;
Childs V. Updyke, 9 Ohio St. 333. Ar-
bitration is not in Texas a proper
mode to establish a rejected claim.
Yarborough v. Leggett, 14 Tex. 677.
But as to the general reference of dis-
allowed claims, see McDaniels v. Mc-
Daniels, 40 Vt. 340. See also Ponce
V. Wiley, 62 Ga. 118; 30 Kan. 118,
1 P. 36; U. S. Digest, Ist Series, Exe-
cutors and Administrators, 2057-2080.
The practitioner should consult the
local code on this subject, and local
decisions construing its provisions.
Under the New York code a claim for
a tort — e.g., the conversion of per-
sonal property — is thus referable.
Brockett v. Bush, 18 Abb. Pr. 337.
But only claims which accrued or
would have accrued during life. 17
Abb. N. Y. Pr. 374; cf. McDaniels v.
McDaniels, 40 Vt. 340. So, too, 19
R. I. 499, 34 A. 1112. And see the
Maryland statute which does not
apply to claims binding the executor
or administrator personally. Browne
V. Preston, 38 Md. 373.
Such statutes, being for a conven-
ient and expeditious settlement of the
estate, do not sanction a composition
deed giving a long term of payment.
Loper, Matter of, 2 Redf. (N. Y.)
545.
The effect of all such legislation is
mainly to sanction a course of pro-
ceeding on the part of an executor or
administrator, formerly open to him,
though at a greater personal peril.
§ 1386; Wms. Exrs. 1799, 1800, and
cases cited; 1 Ld. Raym. 369, by
Holt," C. J.; Wiles v. Gresham, 5 De
G. M. & G. 770; Blue v. INIarshall, 3
1405
§ 13ST
EXECUTORS AiS^D ADMINISTEATOES.
[PAET IV.
This riglit of arbitration or compromise is extended by local
legislation to other instances, and for sundry express purposes.
Thus, in Massachusetts, and various other States, arbitrators may
be appointed to determine the validity of a claim against an in-
solvent's estate ; ^ or, in case of dispute, the executor's or adminis-
trator's personal claim upon the deceased.^ And it is also some-
times provided expressly that the supreme court may authorize ex-
ecutors or administrators to adjust, by arbitration or compromise,
controversies arising between different claimants to the estates in
their hands ; and further provision is made for compromising suits
which involve the validity of a will.^
P. Wms. 381; Nelson v. Cornwell, 11
Gratt. 724 ; Boyd v. Oglesby. 23 Gratt.
674; Davenport v. Congregational So-
ciety, 33 Wis. 387; 19 Mont. 95, 47
P. 650; Alexander v. Kelso, 59 Tenn.
311. A statute which expressly ex-
tends the power to submit claims
against the estate to arbitration may
yet leave claims to be adjusted as at
common law. Wood v. Tunnicliff, 74
N. Y. 38; Geiger v. Kaigler, 9 S. C.
401; 96 P. 1095 (Ore.). As to bind-
ing the representative personally by
the award, see Wood v. TunnicliflF,
supra. By procuring previous au-
tliority from the probate court, how-
ever, as some of these statutes now
provide, and by pursuing its terms,
the good faith of the executor or ad-
ministrator is sufficient warrant that
lh(> arbitration or compromise will
stand; and to relieve him from pi-r-
8onal liability for ensuing conse-
quences is, we may assume, the gen-
<^ral purpose of all such legislation,
even where such permission from tlie
probate court is not contemplated.
Wyman's Appeal, 13 N. H. IS. 20,
j)er Parker, C. J.; Ohadbourn v.
Chadbourn, 9 Allen, 173; Chouteau v.
Suydam, 21 N. Y. 179. Cf. 87 P. 74.
Debt lies on a decree confirming the
award. Noyes v. Phillips, 57 Vt. 229.
If a party in interest means to at-
tack a particular compromise obtained
under probate sanction, as for fraud,
he should bring a bill in equity or
proceed specially. Henry County v.
Taylor, 36 Iowa, 259. See, e.g., lan-
guage of stat. 23 & 24 Vict. c. 145, §
30, cited supra. As to compromising
claims for causing wrongful death
under local statute, see Laubscher v.
Fay, 197 F. 897; Slusher v. Weller,
151 S. W. 684, 151 Ky. 203; § 1283
supra.
The general right of an executor
or administrator to arbitrate or com-
promise appears deducible from the
right or duty of prosecuting or de-
fending suits which involve the inter-
ests of the estate he represents. And
see § 1298 supra.
6. Gilmore v. Hubbard, 12 Cush.
220; Green v. Creighton, 7 Sm. & M.
197.
7. Mass. Public Stats, c. 136, § 6.
8. Mass. Pub. Stats, c. 142, §§ 13-
16. Contingent liabilitio.s of an es-
tate, e.ff. upon tlie indorsement or
140C
CHAP, v.] LIABILITY OF EXECUTOE OE ADillNISTEATOR. § LTSS
§ 1388. Release of Debt, Renewals, etc., by the Executor or Ad-
ministrator.
English authorities establish that at the old law, if the legal rep-
resentative releases a debt due the decedent, or delivers up or can-
cels a bond in which the deceased was named obligee, or takes a
new obligation expressed to himself personally, or settles a suit
upon consideration, he shall be, prima facie at least, chargeable as
for a devastavit, for the full consideration, on the theory that unless
he can produce such consideration in full, he must have wasted it
to the disadvantage of the estate.® Ordinarily, a representative is
not called upon to forgive or release a debt or claim to which he
knows the estate was entitled, without receiving some considera-
tion ; and if he does so gratuitously and to the detriment of the
estate, he is liable as for devastavit, even though he acted with hon-
est purpose.^
But modern statutes lessen the liability for releases given upon
sundry considerations of convenience to the estate, in various pre-
scribed insftances, on the analogy of a compromise. Thus, in some
States, probate courts or the supreme court may now authorize ex-
ecutors or administrators to release and discharge, upon such terms
and conditions as may appear proper, any vested, contingent or
possible right or interest belonging to the persons or estates repre-
sented by them, in property real or personal, whenever it appears
for the benefit of such persons or estates.^
guaranty of the deceased — may be the original contract. Landry v.
reasonably compromised so as to faci- Delas, 25 La. Ann. 181.
litate settlement and a final distribu- 2. Mass. Gen. Stat. c. 101. § 11.
tion of the estate. 115 Mich. 556, 78 See supra, § 1306, as to renewals, etc.
N. W. 977. In sanctioning arrangements be-
9. Wms. Exrs. 1799, 1800; Cro. tween parties disputing a will, chan-
Eliz. 43; 1 Ld. Raym. 368; 1 Freem. eery semble does not intend to bind
442. infants or other parties not sui juris.
1. People V. Pleas. 2 Johns. Cas. Norman v. Strains, 29 W. R. 744.
376. It is held that the representa- A release may involve a devastavit,
tive exceeds his proper functions when and yet not be null and void. See
he enters into an agreement with the Davenport v. Congregational Society,
debtors of an estate to extend the 33 Wis. 387.
time of payment beyond that fixed by
1407
§ 1389 ESECUTOKS AXD ADMIXISTEATOES. [PAET IV.
§ 1389. Disregarding the Bar of Limitations ; General and Special
Statutes of Limitations.
To proceed with instances of devastavit. The rule has been laid
down in England and the United States, that it is not devastavit
in the personal representative to pay a just debt, although that
debt be barred bj limitations, and that he is not bound to plead the
statute when sued by a creditor. This, however, was first promnl-
gated as the equity view;^ for courts of common law appear to
have once inclined to hold to the contrary f while chancery left it
rather to the personal representative to satisfy, at his own discre-
tion, the conscience of his decedent. The English courts of equity
will neither compel the personal representative, when sued by a
creditor, to plead the statute bar in favor of the residuary legatee
or distributee, nor suffer such party to set it up by virtue of his
right to the surplus, unless proceedings with reference to the estate
are in such form that he is essentially a party to the suit, and can
take this advantage without interference.^ In the United States
the general rule is that of the English chancery ; and the executor
or administrator is permitted to satisfy the barred debt, and need
not, where acting in good faith, plead the statute of limitations.^
3. Norton v. Frecker, 1 Atk. 526; kor, 4 Kay & J. 166; Lewis v. Rum-
Stahlschmidt v. Lett, 1 Sm. & G. 415; ney, L. R. 4 Eq. 451.
Wms. Exrs. 1803 ; Trimble v. Mar- 5. Shewen v. Vandenhorst, 1 Russ.
ehall, 66 Iowa, 233. Notwithstanding & My. 347; 2 Russ. & My. 75; Wms.
the personal estate is insufficient for Exrs. 1804; Briggs v. Wilson, 5 De
the debt, and the effect will be to G. M. & G. 12.
throw the burden upon the real es- 6. Fairfax v. Fairfax, 2 Cranch, 25 ;
tate, the representative is not oblig-"d Wood Limitations, § 188; Scott v.
to plead the statute. Lewis v. Rum- Hancock, 13 Mass. 162; Hodgdon v.
ney, L. R. 4 Eq. 451. In this last- White, 11 N. H. 208; Thayer v. Hol-
mentioned case. Lord Romilly, M. R., lis, 3 M^t. 389; Ritter's Appeal, 23
expressed his regret that the statute Penn. St. 95; Pollard v. Sears, 28
did not destroy the debt instead of Ala. 484, 65 Am. Dec. 364; Miller v.
taking away the remedy for it, and Dorsey, 9 Md. 317; Payne v. Pusey,
thus leaving questions of discretion 8 Bush, 564; W/Uter v. Radcliffe, 3
BO perplexing to arise. Desau. 577; Batson v. Murrell, 10
4. See McCulloch v. Dawes, 9 Dow. Tlumph. 301; 51 Am. Dec. 707. 130 N.
& Ry. 43, disapproved in Hill v. Wal- W. 817, 151 Iowa, 146. He is bound.
1408
CHAP, v.] LIABILITY OF ESECUTOK OK ADMINISTRATOR. § 1389
Local codes to a certain extent, however, regulate this subject;
and the rule in some States appears to be that the personal rep-
resentative can onlj exercise his discretion where the statute of
limitations operates after his appointment, or perhaps since the de-
cedent's death ; and that debts, barred while the decedent was alive,
he cannot assume arbitrarily the power to pay.^
In fact, distributees or residuary legatees are immediately in-
terested in controversies of this kind. Chancery holds that the
representative may not pay a debt, regardless of the bar of limita-
tions, after a competent court has declared that debt to be out-
lawed.^ And under the old chancery practice of England, after
the court had made an administrative decree, showing the true
situation of the claim, any such interested party as a residuary
legatee or distributee might take advantage of that decree and
thus for himself set up the statute.^ Under modem practice that
rule still applies somewhat simplified ; for equity recognizes thati
the plea of limitations, especially for a claim stale when the dece-
dent died, concerns other parties interested in the estate, who
to plead the statute where, otherwise, debts due from the estate; and where
real estate must be sold to pay the this method is pursued, the heir or a
debt. 90 Ala. 147. Cf. L. R. 4 Eq. devisee, residuary legatee, or other
451. person in interest, is so brought into
7. See Patterson v. Cobb, 4 Fla. the suit that the statute may be in-
481; Rector v. Conway, 20 Ark. 79. terposed by him. Wood Limitations,
But the English rule is to the contr- § 188; Partridge v. Mitchell, 3 Edw.
ary, recognizing no such distinction. Ch. 180; Warren v. Poff, 4 Bradf.
Hill V. Walker, 4 K. & G. 1G6. A 260. And see Woody ard v. Polsley,
testator may expressly direct his exe- 14 W. Va. 211, McKinlay v. Gaddy,
cutor to disregard the statute of limi- 26 S. C. 573, 2 S. E. 497; 33 W. Va.
tations. Campbell v. Shoatwell, 51 478, 10 S. E. 810.
Tex. 27. The representative may with pro-
Among other proceedings in equity priety pay a debt due to himself from
which constitute an exception to the the estate upon which the statute has
rule that the executor or administra- run. Payne v. Pusey, 8 Bush, 564.
tor alone shall exercise the option of Cf. § 1439.
pleading the statute, is that of bring- 8. Midgley v. Midgley, (1893) 3
ing a bill to charge the real estate of Ch. 282.
the deceased with the payment of 9. See Briggs v. Wilson, supra.
89 1409
§ 1390 EXECUTOKS AND ADMIK-ISTKATORS. [PAKT IV.
ought not to be concluded bj the mere discretion of a represen-
tative.^
In England and some parts of the United States, it is held that
p.n acknowledgment of the decedent's debt by the personal repre-
sentative will take the case out the statute.^ But the rule most
consistent with the policy of American legislation is, that an
acknowledgment by the representative does not remove the statute
bar after it has once operated on the debt, although it may suffice
to suspend its operation if made before the bar is complete.^ In
any event, there should be not only a new promise by the executor
or administrator in order to charge the estate, but a promise made
by him in his representative capacity ;* though equity corrects the
common-law tendency to exclude such acknowledgments, by ad-
mitting that as a good acknowledgment on the representative's part
Avhich would have been good if made by the original debtor.^
§ 1390, General and Special Statutes of Limitations; the Sub-
ject continued.
While, however, the general statute of limitations may be dis-
regarded, it is held waste not to plead the special bar which our
modern local legislation sets to demands generally against the es-
tates of deceased persons.^ In most of our States, indeed, express
provision is now made that claims against an estate shall be pre-
1. Wenham\Be, (1892) 3 Ch. 59. cf. Scholey v. Walton, 12 M. & W.
2. Briggs V. Wilson, 5 De G. M. & 514; Shrove v. Joyce, 36 N. J. L. 44;
G. 12; Browning v. Paris, 5 M. & 13 Am. Rep. 417.
W. 120; Scmmes v. Magruder, 10 Md. 4. Scholey v. Walton, 12 M. & W.
242; Northcut v. Wilkins, 12 B. Mon. 510; Atkina v. Tredgold, 2 B. & C. 28.
408; Brewster v. Brewster, 52 N. H. 5. Cf. Briggs v. Wilson, 5 De G. M.
52; Shreve v. Joyce, 36 N. J. L. 44. & G. 12; Tullock v. Dunn, Ry. & Moo.
13 Am. Rep. 417; Wood Limitations, 416. And see Cleveland v. Harrison,
§ 190. 15 Wis. 670 (sale by representative).
3. Wood Limitations, § 190, and 6. Tliompson v. Brown, 16 Ma.sa.
cases cited; Forney v. Benedict, 5 172; Heath v. Wells, 5 Pick. 140; 16
Pcnn. St. 225; Foster v. Starkry. 12 Am. Dec. 383; Langham v. Baker, 5
Ciish. 324; McLaren v. McMartin, 39 Baxt. 701: Littloficld v. Eaton, 74
N. Y. 38. A8 to acknowledgment by Me. 516; Part V., c. 1.
only one of two or more executors,
1410
CHAP, v.] LIABILITY OF EXECUTOE OK ADMIIS'ISTRATOK.
1300
sented "within a certain time after tlie death of the de'btor or the
appointment of his executor or administrator, or be forever barred ;
and the reason of such legislation being sound, and the language
of the enactment explicit, the personal representative is bound
to comply with the requirement.^ Creditors themselves are thus
put upon the alert; and their own want of vigilance cannot pro-
tect their claims against the statute barrier, where they have re-
lied upon the representative, and forborne to sue at his request;^
7. lb. And see Wood Limitations,
§ 188, and numerous cases cited ; pay-
ment of debts, Part V., post; Ticknor
V. Harris, 14 N. H. 272, 40 Am Dec.
1S6; Harter v. Taggart, 14 Ohio St.
122.
8. lb. And see Langham v. Baker,
5 Baxt. 701. Unless the statute gives
the court power to excuse delay, rea-
sons why the creditor neglected to
present his demand in due time can-
not be considered. Sanford v. Wicks,
3 Ala. 369. It is held, as to various
statutes of this character, that
strictly equitable claims, as mort-
gages, are not included. Bradley v.
Norris, 3 Vt. 369; McMurrey v. Hop-
per, 43 Penn. St. 468; Fisher v. Moss-
man, 11 Ohio St. 42; Allen v. Moer,
16 Iowa, 307. Xor claims for the re-
covery of specific property. Andrews
V. Huckabee, 30 Ala. 143. Or to com-
pel the application of trust property
to the payment of the debt which it
■was held in trust to secure. Stark v.
Hunton. 3 N. J. Eq. 300; Pope v.
Boyd, 22 Ark. 535. Nor claims ori-
ginating after the period named.
Griswold v. Bigelow, 6 Conn. 258.
Nor claims in the orphans' court.
Yingling v. Hesson, 16 Md. 112. Nor
so as to debar the creditor from mak-
ing a set-off when sued. Lay v. Me-
chanics' Bank, 61 Mo. 72. But cf.
Watkins v. Parker, 134 S. W. 1187,
97 Ark. 492 (statute). And see Neil
v. Cunningham, 2 Port. 271; Wood
Limitations, § 189, and cases cited.
Such statutes properly reckon the
period from the date of the repre-
sentative's appointment; for the run-
ning of such a period between the
decedent's death and the qualification
of his executor or administrator
would work injustice to the creditor.
33 Ark. 141.
The recovery of a claim against the
estate of a deceased person, which
originates after, or from its nature
cannot be ascertained within the time
limited by the court for the exhibi-
tion of claims, is not barred by its
non-exhibition within that time.
Griswold v. Bigelow, 6 Conn. 258;
Hawley v. Botsford, 27 Conn. 80;
Chambers v. Smith, 23 Mo. 174. And
where such claim has been duly ex-
hibited to the representative, and its
payment refused, the natural and
proper remedy { in the absence of ex-
plicit legislative provision) is to bring
an action at law against the repre-
sentative. Bacon v. Thorp, 27 Conn.
251. As to the representative's in-
dividual liability in such cases, see
Oates V. Lilly, 84 N. C. 643 ; McGrath
V. Barnes, 13 S. C. 328, 36 Am. Rep.
687. See also §§ 1418, 1419.
1411
§ 1390 EXECUTOKS AXD ADMINISTEATORS. [PAET IV.
though, wliere tlie estate itself is ample and solvent, so that other
creditors suiTer no disadvantage, arrangement speeiallj made for
forbearance or delay in tlie interest of the estate may be sustained
for a special creditor's benefit.^
How far an executor or administrator is at liberty to revive
debts or claims against the estate he represents, which are already
barred, is not clearly determined. In most cases, the circum-
stances of his doing so is to be attributed, apparently, to the con-
scientious exercise of that option which we have seen is now so
generally conceded to him.^ But if he goes beyond the line of
legislative and judicial sanction, and pays an outlawed debt cor-
ruptly or in violation of the duty he owed as personal representa-
tive of the estate, he may become liable personally as for
devastavit.^ Equity will, under special circumstances of hardship,
though not usually, furnish relief to a party whose claims against
an estate cannot be enforced at law, by reason of his failure to
comply with the requirement of a statute limiting the time of
presenting and suing on the same;^ nor are express reservations
of this character absent from such local legislation.
9. Knight v. Cunningham, 160 Mass. the deceased as administrator is
580, 36 N. E. 466. barred by the statute of non-claim.
1. Supra, same section. 39 Ark. 577. Also an information in
2. Where, for instance, he pays a equity by the attorney-general. 142
debt in violation of the special stat- Mass. 248, 7 N. E. 51. And being
ute barrier imposed upon executors barred against the executor a right of
and administrators. See supra, same action is barred against the devisee,
section. If one sets up the bar of Fowler v. True, 76 Me. 43. No ex-
limitations, he must make and sus- ception as to persons under disability
tain such defence with due diligence can be made if the statute does not
and good faith. Teague v. Corbitt, make it. Morgan v. Hamlet, 113 U.
57 Ala. 52!). S. 449 ; 76 Me. 196. Secured claims
3. McCormack v. Cook, 11 Iowa, are meant as well as unsecured. 62
267; Stromo v. Bissel, 20 Iowa, 68; Tex. 375. But cf. 98 Ind. 499. No-
Clifton V. Haig, 4 Desau. 330. tice by the executor or administrator
An administrator cannot be held of his appointment is in many States
liable for not j)aying a judgment more a i)r(;-requisit(; to the running of this
than seven years old wliicli has not special statute. And by some codes
been revived. Groves v. Williams, 68 the representative must be notified
Ga. 598. A claim for money licld by licfore he can be sued. 76 Me. 17.
1412
CHAr. v.] LIABILITY OF EXECUTOR OR ADMINISTRATOR. § 1390a
§ 1390a. The same Subject.
Whenever the general statute of limitations has begun to run
against a debt or claim due the estate before the death of the
decedent, although upon the very day of his death, such statute
bar will operate, notwithstanding the personal representative sues
for it within a reasonable time afterwards.* In several States,
however, this hardship is corrected by express enactment.^ Where,
too, the statute has begun to run upon the decedent's debt or claim
during his life, it is not suspended by his death, although no repre-
sentative has been appointed.^ This hardship, once more, some
State legislatures have removed.'' As for a debt or claim, however,
against which the statute had not commenced to run nor the cause
of action to accrue during the creditor's or claimant's life, it will
not begin to run against his estate until the executor's or admin-
istrator's appointment and qualification ; and this upon the prin-
ciple that there was no person capable of suing for it.^ This, once
more, is a rule subject to the manifest direction of the legislature
upon a construction of local statutes. An acknowledgment or par-
tial payment made to the executor or administrator by a debtor
to the estate will take the debt out of the statute of limitations.*
Equity will not relieve the creditor 23.3; Clark v. Hardman, 2 Leigh. 347;
wlio had necrligcntly failed to prose- Andrews v. Hartford R., 34 Conn. .57 ;
cute his. claim within the limited Sherman v. Western R., 24 Iowa. 515;
statute period. Ryan v. Lyon, 99 N. Wood Limitations, § 194, where this
E. 169, 212 Mass. 416. doctrine is discussed with reference to
4. Penny v. Brice, 18 C. B. N. S. 393, statute actions by the executor or ad-
5. Wood Limitations, §§ 193, 196. ministrator for causing the death of
6. Davis V. Garr, 6 N. Y. 124, 55 his testate or intestate. See Dawbarn
Am. Dec. 387; Burnett v. Brian, 6 v. Fleischmann, 130 N. Y. S. 397
N. J. L. 377; Hall v. Deatly, 7 Bush, (limitation started by representative's
687; Baker v. Brown, 18 111. 91; dispute of clanm).
Jackson v. Hitt, 12 Vt. 285; Wood 9. Martin v. Williams, 17 Johns.
Limitations, § 194. 330; Jones v. Moore, 5 Binn. 573, 6
7. Wood Limitations, § 196, and Am. Dec. 428. And see Townsend v.
appendix. A certain period is usually Ingersoll, 12 Abb. Pr. (N. Y.) N. S.
allowed the representative after his 354. A creditor recovering judgment
appointment to bring suit, by local Avithin the two years period limited
enactments. by statute, the execution on the judg-
8. Burdick v. Garrick, L. R. 5 Ch. mcnt not being satisfied, cannot sue
1413
§ 1390b EXECUTORS AiSTD ADMIKISTKATOES. [PAET IV.
The rule of equity appears to be tbe same as that of law, as to
tbe running of the statute bar against claims due the estate; but
the executor or administrator cannot, by deferring probate, take
personal advantage of a debt owing from himself to the estate he
represents ; and in various cases of fraud or mistake, equity makes
an exception to the general rule, that where time has begun to run
in the decedent's lifetime it shall not be suspended between the
date of his death and the date when the representative qualifies/
It still remains a subject for judicial decision as to how far an
executor or administrator becomes liable personally as for a dev-
astavit, if he allows time to nin in favor of a debtor and against
the estate he represents; but it would appear that, for culpable
neglect or bad faith on his part producing this result, he may be
held personally liable.^
§ 1390b. The same Subject.
It may be questioned whether an executor or administrator will
be permitted to allege his own wrong so as to have time run in
his favor. But the statute of limitations does not begin to run in
his favor as against a claim for damages occasioned by his negli-
gence in collecting what was due the estate, from the time his let-
ters issue but at best only from the time of loss.^ Under some
of our codes the acknowledgment by the executor or administrator
of a debt against the estate and the ranking of it by the probate
court suspends prescription ; this being the preliminary which dis-
penses with suit by a claimant.* And the statute which bars all
claims which are not sued against the estate within a certain period
refers naturally to claims against the deceased and not to those
arising upon some contract with his representative after his death.^
upon the judgment after tlie two 2. 12 Mod. 573; Wood Limitations,
years expire. 134 Mass. 115. •§ 1!)7.
1. Wood Limitations, § 199; 3. Harrington v. Keteltas, 92 N. Y.
Brooksbank v. Smith, 2 Y. & C. o8; 40.
Ingle V. Richards, 28 Beav. 366; Bar- 4. Johnson v. Waters, 111 U. S.
fiold V. King, 29 Ga. 288; Stromo v. 640, 28 L. Ed. 647.
Bisscl, 20 Iowa 68. 5. Cohurn v. Harris, 58 Md. 87.
1414
CHAP, v.] LIABILITY OF EXECUTOR OK ADMIXISTEATOE. § 1392
A representative wlio promises to pay regardless of the statute may
bind himself, but he does not bind the estate, nor the sureties on
his bond.^
This policy, however, of barring out claims which are tardily
presented and enforced is not so much to exclude them as to
allow the estate to be expeditiously settled and distributed; and
hence new assets or a new surplus to distribute might change the
face of the situation.^
§ 1391. Opportunity to ascertain whether the Estate is Insol-
vent.
An executor or administrator is usually allowed a reasonable
time for ascertaining whether the estate can meet its obligations.
Hence we find local statutes forbidding suits to be brought against
the representative within a specified time (as for instance a year)
unless it be for some demand that would not be affected by the
insolvency of the estate; or after the estate has been represented
insolvent.^
§ 1392. Instances of Devastavit continued; disregarding the
Statute of Frauds.
While the bar of limitations may thus be disregarded in the case
of demands once binding, an executor or administrator exercises
no such option as to debts or claims which never had a binding
force, since the law invests him with no authority on the dece-
dent's behalf to dispense favors or perform obligations simply
moral. Hence, he cannot pay a debt that accrued under a con-
tract that is invalid because within the statute of frauds ; and, if
•he does so, he is chargeable with devastavit; though the promise
may be said to create a personal liability on his part.^
6. Jufl<:re of Probate v. Ellis, 63 N. 8. See Studley v. Willis, 134 Mass.
H. 366; Robinson v. Hodge, 117 Mass. 155; 116 Mass. 435.
224. 9. Baker v. Fuller, 69 Me. 152;
7. The local state and local prac- Rownen, Ke, 29 Ch. D. 358 (the rep-
tice should be consulted on all such resentative's own claim).
points.
1415
§ 1395 EXECUTORS AXD ADMIXISTEATOES. [PAET IV.
§ 1393. Devastavit when excused by Concurrence, Acquiescence,
etc., of those injured thereby.
Tlie concurrence or acquiescence of all those injuriously affected
bj the devastavit of an executor or administrator will, agreeably
to general maxims, release the latter party from further respon-
sibility for the injurious act or transaction; and so, doubtless, their
release or acquittance as for satisfaction and indemnity rendered,
by a mutual private arrangement. But a court of equity or pro-
bate is at liberty to inquire into all the circumstances which in-
duced such action on tlieir part, and ascertain whether their con-
duct really amounts to such sanction, ratification, or acquittance
iis ought justly to relieve the representative from further liability.-^
§ 1394. Complicity of third Persons in the Devastavit renders
them liable.
"\^^lenever an executor or administrator violates his trust, and
.another person takes advantage of the devastavit, knowing that the
personal representative is not proceeding according to the require-
ments of the law, or the terms of the will under which he was ap-
pointed, such complicity will authorize those interested in the
estate to hold such third party liable.^
§ 1395. Liability of Executor or Administrator on his own Con-
tracts.
The liability of an executor or administrator, in respect of his
own contracts touching the estate, may be gathered in a measure
1. Burrows y. Walls, 5 De G. M. & erate with the administrator in re-
G. 233; Wms. Exrs. 1836; 2o Beav. sistinff illegal claims against the
177, 236. More laches in abstaining estate, they arc entitled to all the
from calling upon the representative benefits; and if tlie administrator
to realize for the purpose of paying wastes the assets thus retained by him
his debt, whereby the representative pending the litigation, they may sue
lias not been misled, will not deprive his bond for his misconduct. Me-
a creditor of his right to sue the rep- Mahon v. Paris, 87 Ga. 660, 13 S. E.
resentative for devastavit. Bircli, ,')72.
Re, 27 Ch. D. 622. 2. Rogers v. Fort, 19 Ga. 04. And
Where heirs or distributees co-op- see supra, as to sales, § 1359.
141G
CHAP, v.] LIABILITY OF EXECUTOR OR ADMINISTRATOR. § 1395
from our previous discussion of his rights." The former inclina-
tion appears to have been to charge the executor or administrator
strictly as an individual, and not in his representative capacity,
■where the promise was alleged to have been made by him after
the death of the person whose estate he represented. In general,
where the claim or demand wholly accrued in his own time, the
representative was to be held personally liable alone.'' And some
decisions still countenance the doctrine that no action at law will
lie against an executor or administrator, as such, except upon
some claim which originated against the testator or intestate during
his lifetime, notwithstanding the contract sued upon was made by
him for the benefit of the estate.^
But, according to the weight of modern authorities, the executor
or administrator is liable upon such promise, in his representative,
as well as his personal capacity, where the claim or demand accrues
in his own time,® provided that which constituted the consideration
of the promise, or the cause of action, arose in the lifetime of the
■decedent.'' Where assets are deficient, a reliance upon the indi-
vidual liability of a wealthy representative may be advantageous
for the creditor ; but the reverse is sometimes the actual situation,
and hence the advantage of giving the plaintiff on option.^^ In
modern practice, however, the sufficiency of a probate bond, with
principal and sureties, may be of great consequence.
English precedents establish that, in various instances, the rep-
resentative may be sued as such, on a promise made by him in
the representative character, so tliat a declaration founded on such
a promise will charge him no further than though the promise
had been made to the decedent himself. As, perhaps, upon the
executor's promise to pay an award made after his testator's death
3. Supra, §§ 1256, 1290, 1292. 5. See Valengin v. Duffy, 14 Pet.
4. Wms, Exrs. 1771; Cro. Eliz. 91; 282, 10 L. Ed. 457, per Taney, C. J.
Hawkes v. Saunders, Cowp. 289; 6. lb.
Jennings v. Newman, 4 T. R. 348; 7. Thomas, J., in Luscomb v. Bal-
Cocke V. Trotter, 10 Yerg. 213; Ad- lard, 5 Gray, 403, 66 Am. Dec. 374.
ams V. Adams, 16 Vt. 228; Beaty v. 7a. Ashby v. Ashby, 7 B. & C. 449.
■Gingles, 8 Jones L. 302.
1417
§ 1396 EXECUTOKS AND ADMINISTKATOES. [pART IV»
upon an arbitration previously entered into by tbe testator him-
self.^ Or in instances where the plaintiff avers simply a liability
of the defendant as executor, or as administrator / though excep-
tions like these raise nice distinctions in pleading not always clear
to the logical mind, nor wholly satisfactory to the common-law
judges who feel compelled to recognize them/ These distinctions
appear to have originated in a judicial effort to shield the per-
sonal representative from individual loss, where the plaintiff's
cause of action originated, essentially during the decedent's life,
and upon the decedent's own promise, not that of the representa-
tive ; the latter having done scarcely more on his part than to recog-
nize the claim as still binding. And, consequently the plaintiff'
was remitted to the assets, the court treating the representative's
own engagement as presupposing an adjustment on such a basis.^
§ 1396. Representative how sued upon his Express Promise, Col-
lateral Undertaking, etc.
If an executor or administrator promises in writing, that, in
consideration of having assets, he will pay a particular debt of
his decedent, or otherwise brings himself witliin the rule of a per-
sonal collateral undertaking for his decedent's obligation,^ he may
8. Dowse V. Coxe, 3 Bing. 20: re- for property lawfully received by the
versed, however, on appeal, though on executor and administrator, and held
a different ground. 6 B. & C. 255. as assets, he is liable to any party
9. Secar v. Atkinson, 1 H. Bl. 102; having a good title, either in his rep-
Ashby V. Ashby, 7 B. & C. 444 ; Wms. resentative character, or personally de
Exrs. 1773. hmiis propriis, at such party's elec-
1. See Rose v. Bowler, 1 H. Bl. 108; tion. De Valengin v. Duffy, 14 Pet.
7 Taunt. 586; also Lord Tenterden 282, 10 L. Ed. 457. The remarks of
and Littledale, .J., in Ashby v. Ashby, Taney, C. J., in this case, seem to
7 B. & C. 449, 452; Wms. Exrs. 1771- favor considerable latitude as to al-
1776, where tliese cases are collated. lowing a plaintiff to sue the repre-
And see Scott v. Key, 9 La. Ann. 213. sentative, at election, either in his
In Chouteau v. Suydara, 21 N. Y. 179, individual or representative capacity,
the subject matter of the contract was though the demand should wholly ac-
in fact a contract liability of the tea- erne after the decedent's death. And
tator incurred during his life. And see supra. § 1382.
see Pugslc}' V. Aiken, 1 T^ern. 404. 3. Supra, § 1255.
2. So is it lield in this efnintry that
1418
CHAP, v.] LIABILITY OF EXECUTOR Oil ADMINISTUATOE. § 139T
be sued on tliis promise in his inJividiuil capacity, and the judg-
ment against him will be de bonis propriis^ The plaintiff should
in such case aver assets, or a forbearance to sue, or some other
consideration. And, in general, where the nature of the debt is
such as renders it binding upon the representative as an individual,
whether because he contracted it or because he has assumed the
liability which originated against the decedent, the judgment will
be against him de bonis propriis, although he promised nominally
in the official capacity.^
§ 1396a. The same Subject.
Whether or not the executor or administrator is liable in his in-
dividual capacity depends upon whether or not the liability may
be fastened upon the property of the decedent. For the liability of
the representative in his fiduciary capacity is limited to the assets
of his decedent's estate.® With respect to matters in which the
executor or administrator could not expressly bind the estate of
his decedent no implied promise in law can be raised against the
estate because of the representative's own action with respect to
those matters.^
§ 1397. Representative liable as an Individual, where Cause of
Action wholly accrued after his Decedent's Death, on
Transactions with Him, etc.
In causes of action wholly accruing after his decedent's death,
4. lb.; Wras. Exrs. 1783; Cro. Eliz. not have been suable on his promise,
91; Taliaferro v. Robb, 2 Call. 258. tl.c re[)reseiitatives may be suable on
But as to the necessity of averring as- theirs. Rusling v. Rusling, 47 N. J.
sets, cf. Wms. Exrs. 1776; 7 Taunt. L. 1.
580; 3 Bing. 20. If there vpere no 6. Per CMrmw in Campbell v. Amer-
assets, the promise of the representa- lean Bonding Co., 55 So. 306, 172 Ala.
tive is nudum pactum. Supra, § 1255. 458.
5. Wms. Exrs. 1783; Corner v. 7. lb. And see Decillis v. Marcelli,
Shew, 3 M. & W. 350; supra, § 1256; 136 N. Y. S. 573; Beavan Re, (1913)
Johnston v. Union Bank, 37 Miss. 2 Ch. 595 (guarantor of a debt owed
526; Wood v. Tunnicliff, 74 N. Y. by decedent).
38. Even though the decedent might
1419
§ 1397 EXECUTOES AXD ADMIXISTKATOKS. [PAET IV.
the personal representative is in general liable individually.^ And
wlierever an action is brought against an executor or administra-
tor, on promises said to have been made by him after his dece-
dent's death, he is chargeable in his own right and not as repre-
sentative.^ In general, an action for goods sold and delivered to
one as representative, or for work done, or services rendered, at
his request, in the settlement of the estate, should be brought
against the defendant personally, and not in his representative
character,-^ Wherever, in fact, the action is brought against the
executor or administrator on his own contracts and engagements,
though, made for the benefit of the estate, this rule holds true ; and
his promise " as executor," or " as administrator," will not alter
its application.^ For, having no power to bind the estate specifi-
cally by his engagements, the representative binds himself ; there
can, therefore, be no judgment out of the decedent's goods, and
the action must be brought declaring against him in his right.^
The judgTQent is rendered de bonis ijropriis, and he must respond
accordingly.*
But for one to maintain such suit against the representative
individually, the latter should have been an actual party to the
contract or transaction. For, it is said, an executor or adminis-
trator is not liable, either personally or in his representative char-
acter, for services beneficial to the estato performed without his
8. De Valengin v. Duffy, 14 Pot. 2. Boaty v. Ginples, 8 Jones L. 302 ;
282, 10 L. Ed. 457; Kerchner v. Mc- Hopkins v. Morgan, 7 T. B. Men. 1.
Rae, 80 N. C. 219. And see §1382. And see Bossert v. Striker, 126 N. Y.
9. Wms. Exrs. 1771; Cro. Eliz. 91; S. 720.
Ckiwp. 289; Jennings v. Newman. 4 3. J5arry v. Rush, 1 T. R. 691; Sum-
T. R. 348; Clarke v. Alexander, 71 Ga. ner v. Williams, 8 Mass. 199, 5 Am.
500. Dec. 83; Davis v. French, 20 Me. 21,
1. Corner v. Shew, 3 M. & W. 350; 37 Am. Dec. 36, per Shepley, J.;
Austin V, Munro, 47 N. Y. 360; Davis supra, § 1256.
V. French, 20 Me. 21; Myer v. Cole, 4. Seip v. Drach, 14 Penn. St. 352;
12 Johns. 349; Matthews v. Mat- Powell v. Graham, 7 Taunt. 585;
thews, 56 Ala. 292; supra. § 1256; Corner v. Shew, 3 M. & W. 350; Wms.
Lovell V. Field, 5 Vt. 218; Harding v. Exrs. 1783. See §§ 1290-1294.
Evans, 3 Port. 221; Baker v. Moor,
63 Me. 443.
1420
CHAP, v.] LIABILITY OF EXECUTOR OR ADMINISTRATOR. § 1398
assent, after the decedent's death and before his own appointment,
under contract with the special administrator or with one who
declined the trust of executor.^ Even where real estate is right-
fully managed by the executor, under exception to the general
rule,® such person has been held personally answerable to third
persons for injuries sustained.^
§ 1398. Exceptional Instance of suing for Funeral Expenses, etc.
An action, however, may be maintained in various States against
an executor or administrator, as such, for the funeral expenses
of the deceased; charging him thus in his representative char-
acter so that judgment may be rendered de boni^ decedentis.^ But
the case stands on its peculiar ground of exception f claims of this
character taking the priority of most general debts originating with
the decedent himself, and being sui generis, nor depending wholly
upon strict contracts with a representative. The modern English
doctrine on this point is, that if the executor or administrator
gives orders for the funeral, or ratifies or adopts the acts of an-
other party who has given orders, he makes himself liable per-
sonally and not in his representative capacity; and such, too, ia
the rule of various States.-^
5. Luscomb v. Ballard, 5 Gray, 403, Samuel v. Thomas, 51 Wis. 549, 8 N.
66 Am. Dec. 374. And see Matthews W. 361.
V. Matthews, 56 Ala. 392; Ross v. 9. Thomas, J., in Luscomb v. Bal-
Harden, 44 N. Y. Super. 26; Tucker lard, 5 Gray, 405, 66 Am. Dec. 374;
V. Whaley, 11 E. I. 543. Studley v. Willis, 134 Mass. 435; 139
As to suing an executor who is also Mass. 304, 52 Am. Rep. 708, 31 N. E.
residuary legatee, and who has given 720; Fogg v. Holbrook, 88 Me. 169,
bond to pay debts and legacies, see 33 L. R. A. 660, 33 A. 792.
140 Mass. 66, 2 N. E. 780; 144 Mass, 1. Corner v. Shew, 3 M. & W. 350;
238, 10 N. E, 818. 8 Ad. & El. 349 n.; Wms. Exrs. 1788,
6. See § 1213. 1791; Ferrin v. Myrick, 41 N. Y. 315.
7. Belvin v. French, 84 Va. 81, 3 As to supplying a tombstone, see 25
S. E. 891. Hun, 4. As to necessaries for the
8. Hapgood V. Houghton, 10 Pick. funeral which some one else ordered,
154; Seip v. Drach, 14 Penn. St. 352
Rappelyea v. Russell, 1 Daly, 214
Campfield v. Ely, 13 N. J. L. 150
see 13 Daly, (N. Y.) 347. And see
§ 1421, post, as to funeral expenses.
Qu. whether valuable services ren-
1421
§ 1398b
EXECUTORS A'^D ADMINISTKATORS.
[PAKT IV.
§ 1398a. Liability of Executor or Administrator on Negotiable
Instruments.
An executor or administrator wlio makes, indorses, or accepts
negotiable paper, is personally liable thereon, although he adds
to his signature the name of his office. Nor does the mere men-
tion of his decedent's estate in the instrument, deprive it neces-
sarily of its negotiable character ; but to have that effect there must
be some direction, express or implied, to pay from that fund, and
not otherwise.^
In undertaking to bind the estate by a note, and failing for
want of authority, the representative binds himself personally,^
§ 1398b. Action against Executor or Administrator for Waste.
Inasmuch as the probate court now has exclusive jurisdiction,
dered in taking care of the eflFects, etc.,
after the decedent's death, and before
any representative was appointed,
might not be brought within the rea-
son of this same exception in meritor-
ious instances. This service, like that
of burial, may be performed out of
kindness or necessity, as it were, and
without a previous contract, as by a
custodian who must search out the
kindred. See supra, § 1193; Luacomb
V. Ballard, 5 Gray, 403, 66 Am. Dec.
374.
When the law as to remedies proves
so uncertain as to leave one in fun-
damental doubt as to whether one
shall sue or be sued in the individual
or representative capacity, in a par-
ticular instance, the legislature should
intervene and make a more flexible
rule. Among numerous cases which
might be adduced in proof of tlie gen-
uine uncertainty which lias prevailed
in the law, because one must disting-
uish clearly between contracts of the
decedent and contracts of the deced-
ent's representative, Austin v. Mun-
ro, 47 N. Y. 360, is worthy of study,
with the distinctions announced in
the opinion of the court. In Snead
V. Coleman, 7 Gratt. 300, 56 Am. Dec.
112, a State court appears to have
continued in a quandary as to whether
the suit should have been brought
against representatives officially or as
individuals. It seems highly desir-
able that such litigation should be al-
lowed to go at option or in the alter-
native; that a joinder of a cause
founded upon the contract of an in-
testate with one founded upon the
contract of the representative should
be allowed, or that the action itself
should be capable of conversion from
one form to another, final judgment
being rendered according to the facts
and as justice might require. See
Appendix, post.
2. Schmittler v. Simon, 101 N. Y.
737, 5 N. E. 452, and cashes cited;
Iliggins v. Driggs, 21 Fla. 103; Perry
V. Cunningham, 40 Ark. 185.
3. McCalley v. Wilburn, 77 Ala. 549,
\nd see § 1258.
1422
-CHAP, v.] LIABILITY OF EXECUTOR OR ADMINISTRATOR. § 1398c
subject to appeal, of the estates of decedents, and their final set-
tlement and distribution, including the adjustment of the accounts
of the personal representative, the old common-law action of negli-
gence, as brought by residuary legatees or distributees against the
former representative for wasting assets is not to be favored.*
Notwithstanding such representative has rendered his final ac-
count and resigned, he may still be cited into the probate court,
as various codes provide.^ Creditors' bills, too, for an accounting
are thus dispensed with.®
§ 1398-c. Liability in Trover for Conversion, etc.
The representative may sometimes make himself liable in trover
for conversion. But he cannot be charged as for conversion with
the proceeds of a bond and mortgage not yet payable by their
terms, nor for a merely erroneous assertion of ownership as to
assets rightfully in his possession.'^ And it is held that his par-
ticipation in a conversion of funds of the estate does not preclude
him from suing to recover them.*
4. Appendix post; Graffam v. Ray, ceedings may afford suitable relief.
91 Me. 235. 175 Mass. 199.
5. lb. 7. Niles Re, 126 N. Y. S. 1066.
6. See §§ 1189, 1520. Injunction is 8. Scully v. Scully, 94 N. E. 195,
aot favored where simple probate pro- 201 N. Y. 61.
1423
§ 1400 ZXECUTOKS AND ADMIXISTEATOK.'^-. [PAET IV.
CHAPTER VI.
CO-ADMIXISTRATIOX AXD QUALIFIED ADMIXISTRATION.
§ 1399. Doctrines of foregoing Chapters apply to Qualified
Trusts.
The doctrines discussed in our previous chapters, concerning
the powers, duties, and liabilities of the personal representative,
apply, mutatis mutandis, to all executors and administrators. But,
as we have already observed in an earlier part of this treatise,^ ad-
ministration is not always original and general, but qualified in
various instances, as the circumstances of appointment may re-
quire. General doctrines require, moreover, a special adaptation
to suit the case, where two or more are appointed to the same trust.
Co-administration and qualified administration, therefore, consid-
ered with reference to the peculiar powers and responsibilities
which attach to such appointees, will claim our attention for the
present chapter.
§ 1400. Rights, Duties, and Liabilities of Co- Executors ; their
Title and Authority.
And, first, as to the rights, duties, and liabilities of co-executors
and co-administrators. Co-executors, unless the will under which
they act directs otherwise, are to be treated in law as one and the
same individual ; and consequently whatever each one does is taken
to be the act of both or all, their authority being joint and entire.^
Hence, too, if one of them dies, the fiduciary- interest, being joint
1. Sep supra, Part TI., c. 4. Allison, 83 N. E. 1006, 170 Ind. 252,
2. WmR. Exrs. 911. 940; 3 Bao. 127 Am. St. Rep. 363; Crotliers v.
Abr. tit. Executors, D; Wontw. Off. Crothers, 88 A. 114, 121 Md. 114;
Ex. 206, 14th ed.; Riffby, Ex parte, Oilman v. Ilealy, 55 Me. 120. As to
19 Ves. 462; Edmonds v. Crenshaw, the limitations which a will may
14 Pet. 166, 10 L. Ed. 402; Stewart have imposed in this respect, see
V. Conner, 9 Ala. 803; Wilkerson v. supra, § lOJl.
Wootten, 28 Ga. 568; Aldering v.
1424
CHAP. VI.] CO-ADMIXISTRATION, ETC. § 1400
and entire, will vest in the survivor; this even, to cite the earlier
writers, without any new grant of letters.^ And this survivorship
carries such sweeping consequences that, as equity precedents
establish, if all the residue of the testator's effects, after the pay-
ment of debts and legacies, were left to Ms co-executors, and one
of them should happen to die before the joint interest in the resi-
due was severed, his share would survive to the decedent's co-
executor to the exclusion of his own personal representative;^ a
result most inequitable, and not to be admitted if, by statute pro-
vision or a fair construction of the particular will, so absolute a
survivorship may be ruled out.^
As incidental to their joint and entire title, it is held at com-
mon law that if one of two executors grants or releases his in-
terest in the estate to the other, notliing shall pass, because each
was possessed of the whole before f and, furthermore, that they
cannot sue in right of the deceased upon a contract made by a
defendant jointly with one of the co-executors, since this would
ibe like permitting a man to sue himself.^ But, while a party
bound in a contract with others, whereby he becomes both obligor
or obligee, cannot maintain on such contract an action at law ;
or, in other words, cannot sue himself at law, if the contract be
joint ;^ he may if it be joint and several. On this distinction it
has been held that a note executed by one of two executors, in
3. Cas. temp. Talb. 127; Wms. Exrs. to all the executors, one may assent
911. But upon this point see supra, sufficiently to his own proportion.
§ 1040. Where a co-executor named 1 Roll. Abr. 618 ; Wms. Exrs. 948 ;
in the will renounces probate, the Cole v. Miles, 10 Hare, 179.
others who qualify exercise all the The agreement of one executor to
authority and incur all the responsi- waive compensation cannot prejudice
bilities incidental to the office. the rights of his co-executors. 14
Supra, § 1051. Phila. 290.
4. Wms. Exrs. 913; 2 Bro. C. C. 6. Godolph. pt. 2, c. 16, § 1; Wms.
220; 3 Bro. C. C. 455; Knight v. Exrs. 911.
Gould, 2 My. & K. 295. 7. Godolph. pt. 12, § 2 ; Wms. Exrs.
5. If one of several legatees be an 913; 2 Chitt. 339. !
executor, his single assent to his own 8. MofTat v. Van Millingen, 2 B. &
legacy will vest the title in him; or, P. 124.
if the subject be entire, and be given
90 1425
§ 1400
EXECUTOES AXD ADMIXISTR-ITOKS.
[tart IV.
favor of himself and his co-executors, may be enforced by the two
in an action against the indorsers.^
Of two or more executors under a will, moreover, each is en-
titled to receive any part of the assets, and to collect any debts.^
An assignment or release, valid under the general rules of ad-
ministration, is valid when given by any one of them.^ It is
held that one executor may release or assign a mortgage of real
or personal property belonging to the estate without the signa-
1ure or assent of hjs co-executors.^ Or enter into an amicable ac-
tion, and submit to an arbitration.* Or compromise as any other
executor or administrator may do.'' Or assign or indorse over a
promissory note made payable to the testator.^ Or settle an ac-
count with a debtor, provided he does so honestly and with the
usual measure of pnidence.^ Or grant or surrender a lease or
term.* Or sell and dispose of assets on behalf of all.* Or assent
suflEiciently to a legacy.^ Or make due acknowledgment that a
debt is due.^ Or discharge a security taken for the payment
of a debt due the estate, on a satisfaction made to hini.^ In short,
9. Faulkner v. Faulkner, 73 Mo.
327. A note given by an executor in
favor of himself and his co-executor,
for money of the estate used by him-
self, is not void for want of consid-
eration, lb.
1. Edmonds v. Crenshaw, 14 Pet.
166, 10 L. Ed. 402; Stewart v. Con-
ner, 9 Ala. 803".
2. As to release, see Wms. Exrs.
946 ; 2 Ves. Sen. 267 ; Shaw v. Berry,
35 Me. 279, 58 Am. Dec. 702; Stuy-
vesant v. ITall, 2 harb. 151 ; Devling
v. Little, 26 Ponn. St. 502; Hoke v.
Fleming, 10 I red. L. 263. But sev-
eral releases by joint executors do
not bar their legal joint claim against
the debtor. Pearce v. Savage, 51 Me.
410.
3. Woir V. Moslicr, 19 Wis. 311;
Son V. Miner, 37 i5arb. 406; Oeorge
V. Baker, 3 Allen, 326. And see
Bogert V. Hertell. 4 Hill, 492.
4. Lank v. Kinder, 4 Harring. 457.
5. Weir v. Mosher> 19 Wis. 311;
Wms. Exrs. 946 and Perkins's note.
6. Dwight v. Newell, 15 111. 333;
Bogert V. Hertell, 4 Hill, 492 ; Wheeler
V. Wheeler, 9 Cow. 34.
7. Smith V. Everett, 27 Beav. 446.
8. Simpson v. Gutteridge, 1 Madd.
616. And see 11 M. & W. 773, com-
menting upon Turner v. Hardey, 9
M. & W. 770.
9. Cro. Eliz. 478; Murrell v. Cox,
2 Vern. 570. But cf. Sneesby v.
Thome, 7 De G. M. & G. 399.
1. Wentw. Off. Ex. 413; Wms. Exrs.
948.
2. (1897) 2 Ch. 181.
3. People V. Keyser, 28 N. Y. 226,
84 Am. Dec. 388.
142G
CHAP. VI.]
CO-ADMINISTRATION, ETC.
§ 1401
as regards personal assets, any one of two or more co-execntors
may do whatever l)otb or all could have done, and under like
qnalitications; * and the act of one within the scope of his duties
hinds the others."
While, however, one executor may thus transfer tl e legal title
to property, and even make a delivery not in all respects effectual
as to title, which shall, nevertheless, give the transferee every legal
advantage, a court of equity declines, wherever its assistance is
invoked, to enforce or confirm an imjust transaction of this char-
acter;^ and, perhaps, on the suggestion of fraud, collusion, and
unfair dealing, will set aside or disallow the transaction, at the
instance of the co-executor.'^ For the acts of any co-executor, com-
mited outside the scope of an honest and sufficiently prudent ad-
ministration, are not to be sustained in courts of equity or pro-
hate.
§ 1401. The same Subject.
In the settlement of an estate by co-executors, the exclusive cus-
4. Bodley v. McKinney, 9 Sm. & M.
339; Barry v. Lambert, 98 N. Y. 300,
50 Am. Rep. 677.
5. Executors receiving salaries
under a testator's will and co-execu-
tors not thus provided for, stand on
the same footing as to powers and
authority. Nester v. Nester, 124 N.
Y. S. 974.
As to the wrongful and surrepti-
tious pledge of personal chattels by
a co-executor or co-trustee without
the knowledge of the other, see Atten-
borough V. Solomon, H. L. (1913)
App. 76; aff. (1912) 1 Ch. 451 (in-
effective ) .
6. Lepard v. Vernon, 2 Ves. & B.
51; Sneesby v. Thome, 7 De G. M. &
G. 399.
7. Wms. Exrs. 948, note; Touchst.
484; Le Baron v. Long Island Bank,
53 How. (N. Y.) Pr. 286. As to aid-
ing in equity a deed made by one
co-executor, but authorized and ap-
proved by the others, as merely an
imperfect execution of the power
given by the will, see Giddings v.
Butler, 47 Tex. 535.
One executor has no power or
authority to sign the name of his co-
executor by virtue of his office, nor
can such a power be delegated to him.
127 N. Y. S. 934. The right of one
co-executor to act for another is con-
fined to acts of a ministerial nature
and does not extend to solemn acts
which involve their joint judgment,
lb.
8. Chew's Estate, 2 Pars. Sel. (Pa.)
153; Wood v. Brown, 34 N. Y. 337;
Hall V. Carter, 8 Ga. 388.
1427
§ 1401 EXECFTOES AXD ADMINISTRATORS. [pART IV.
todj and control of the assets vests in no one of their number. Each
executor has a right of possession to the personal property, and a
right of access to the papers.^ The act of one, in possessing himself
of assets, is the act of all, so as to entitle them to a joint interest
in possession, and a joint right of action if thej are afterwards
taken away.^ But there may be a contract between joint executors
concerning the funds of the estate and management, and this upon
perfectly valid consideration as between themselves.^ And, in
order to act with becoming prudence it is well that the funds should
be kept so that both or all the executors shall exercise control or
supervision thereof together. Where such is the case, any person
dealing with them is bound upon notice to recogTiize their joint
title.^
It is held, moreover, that one of two executors cannot assign or
indorse over a negotiable note made to them both, as executors,
for a debt due to their testator.^ And the modern course of au-
thority does not pennit a co-executor to bind the others personally
by his new promise to pay in future even a debt of the estate; and
such a promise, or an admission of indebtedness, cannot he received
in evidence against his co-executors ; and the same holds true where
the promise is expressed by an instrument signed by one of the ex-
ecutors alone.* As to whether the new promise of one executor can
9. Nation v. Tozer, 1 Cr. M. & R. when there is ca joint administration.
174, per Parke, B. 3. Smith v. Whiting, 9 Mass. 334.
1. Berry v. Tait, 1 Hill (S. C.) 4; 4. Tullock v. Dunn, Ry. & Moo.
Faulkner v. Faulkner, 73 Mo. 327. 41G: Scholey v. Walton, 12 M. & W.
2. Tims, if they open a joint ac- 509; Forsyth v. Ganson, 5 Wend. 558,
count with a banker, both must unite 21 Am. Dec. 241; Elwood v. Diefen-
in a receipt or check in order to dis- dorf, 5 Barb. 398. One of several
charge him. De Haven v. Williams, executors has no power to charge the
80 Penn. St. 480, 21 Am. Rep. 107. estate or his co-executor by indorsing
And see 50 La. Ann. 382, 23 So. 373, a note in the name of tlie estate, even
69 Am. St. Rep. 436. though it be given in renewal of one
Where valuable assets, such as indorsed by the testator in his life-
notes, bonds or stock, are kept in a time. Bailey v. SpofTord, 21 N. Y.
safe deposit box, it may bo prudent to Supr. 8G. See supra, § 1293. Cf.
Lave a lock which requires the use (1897) 2 Ch. 181.
of joint keys for opening the safe,
1428
CHAP. VI.] CO-ADMINISTEATION, ETC. § 1102
bind the estate, however, the decisions a^e found discordant in ju-
risdictions where a positive rule fixed by the legislature is want-
ing.'
All the executors who have qualified ought to join in executing
a testamentary power of sale or purchase.*'
§ 1402. Co-Executors; their Liability, etc.
Good faith and the usual measure of prudence applicable to fidu-
ciaries should characterize the conduct and dealings of co-executors.
In administering the assets, each co-executor is at this day often
lield responsible for the safety of the fund, so as not to be utterly
excused from losses incurred by the carelessness or misconduct of
his fellow.^ A dishonest, unauthorized, or imprudent sale, trans-
fer, or investment is no more to be sanctioned where the executor-
ship is joint than where it is sole.^ And, inasmuch as each execu-
tor has an independent right to control and transfer the assets, one
is bound not to be heedless as to his co-executor's conduct, but
rater, as in requiring a joint deposit or transfer, or a joint invest-
ment of funds, to impose a check upon the other's authority. For,
if an executor, by any act or default on his part, places the estate
and its management in the exclusive power of his co-executor, he
5. Shreve v. Joyce, 36 N. J. L. 44, provides that the promise shall be in
13 Am. Rep. 417, where it is held writing, and shall only affect the exec-
that it can. And see Emerson v. utor making it.
Thompson, 16 Mass. 431 ; Cayuga Co. As to co-executors carrying on un-
Bank v. Bennett, 5 Hill, 236. But the der the will a partnership business,
promise of one will not avail against see 54 N. J. Eq. 127, 33 A. 194.
the estate in some States. Peck v. 6. Wilson v. Mason, 158 111. 304,
Bottsford, 7 Conn. 172, 18 Am. Dec. 42 N. E. 134, 49 Am. St. Rep. 162; 56
92; Reynolds v. Hamilton, 7 Watts, S. E. 865, 144 N. C. 192.
420. The promise or acknowledge- The local code should be consulted
ment growing out of the decedent's in all of the above instances,
original contract, the difficulty is 7. De Haven v. Williams, 80 Penn.
fundamental. The English view is St. 480, 21 Am. Rep. 107.
not clearly expressed. Sclioley v. 8. Le Baron v. Long Island Bank,
Walton, supra. But the subject is 53 How. (N. Y.) Pr. 286; Lacey v.
now controlled in that country by Davis, 4 Redf. (N. Y. ) 402; Case v.
Stat. 9 Geo. IV. c. 14, § 1, which Abell, 1 Paige, 393.
1429
§ 1402 E5ECUT0ES AST) ADMIXISTEATORS. [pAET IV.
takes the perils of tlie latter's maladministration upon himself,
unless lie exercised what American (thougli not English) courts
would call ordinary prudence.^
Thus, if an executor delivers or assigns securities to his co-
executor in order to enable the latter to receive the money alone,^
or draws or indorses in his favor a bill or note to a similar end,^
or leaves him free to negotiate a transfer to make a sale at his sole
discretion, or gives him a power of attorney on his own behalf,
thereby deputing that control and supervision which the office made
it incumbent upon a co-executor to exercise, he cannot wholly es-
cape legal liability for the ill consequences.^ Nor is he exempt
from a personal liability, if he unreasonably neglects enforcing the
payment of a debt which his co-executor owed the estate, and was
legally bound to pay.* But, if he can show that his own conduct
was within the usual rule of prudence and good faith, under all the
circumstances, and that he did not contribute to the loss, upon such
a standard of liability, he is excused ; for the cardinal doctrine is
that co-executors are liable each for his own acts and conduct, and
not for the acts or conduct of his co-executors.^
9. See supra, § 1315. and insolvent co-executor. Knight v.
1. Candler v. Tillett, 22 Beav. 236. Haynie, 74 Ala. 542.
2. 2 Bro. Ch. 114; Hovey v. Blake- 5. Cro. Eliz. 318; Wentw. Off. Ex.
man, 4 Ves. 608. 306; Wms. Exrs. 1820, and note by
3. Clough V. Dixon, 3 M. & C. 497; Perkins; Williams v. Nixon, 2 Beav.
Dix V. Burford, 19 Beav. 412; Ed- 472; Peter v. Beverly, 10 Pet. 532, 9
monds v. Crenshaw, 14 Pet. 166, 10 L. Ed. 522; Perry Trusts, § 421;
L. Ed. 402; Sparliawk v. Buell, 9 Vt. Douglas v. Satterlee, 11 John. 16;
41; Wood V. Brown, 34 N. Y. 337; Fcnnimore v. Fennimore, 2 Green Ch.
Heath v. Allin, 1 A. K. Marsh. 442; 292; Ames v. Armstrong, 106 Mass.
Head v. Bridges, 67 Ga. 227. 18; Moore v. Tandy, 3 Bibb, 97; Wil-
4. Styles v. Guy, 1 Mac. & G. 422; liains v. Maitland, 1 Ired. Eq. 92;
Candler v. Tillett, 22 Beav. 257; Kerr v. Water, 19 Ga. 136; Call v.
Carter v. Cutting, 5 Munf. 223. An Ewing, 1 Blackf. 301. Putting as-
executor who allows his co-executor sets into sole control of one executor
to gain undue advantage over other may be justified in course of business,
creditors, is liable. McCormick v. (1S94) 1 Ch. 470.
Wright, 79 Va. 524. So is one who At common law the acts of each
collects assets sufficient to pay a debt, executor within the scope of liis au-
and then pays them over to his sick
1430
CHAP. VI.]
CO-ADMINISTRiVTION^ ETC.
1402
The rule as thus announced may appear somowliat different from
that applied in equity to cotrustees, whose functions, for the most
part, as depending upon the express terms of the will or deed which
created their authority, require that all should join in a particular
thority, are, as concerns administra-
tion, the acts of all, with this qualifi-
cation: that at common law each was
responsible only for such assets as
came to liis own hands. Under
ordinary circumstances, one of two or
more executors was not to be held
accountable for waste or other mis-
conduct on his associate's part; and
his misplaced confidence in the lat-
ter's integrity and capacity was not
allowed to operate to his own prej-
udice. Ames, J., in Ames v. Arm-
strong, 106 Mass. 18. But the devel-
opment of this doctrine in courts of
equity appears to have established the
rule of the present day upon a some-
what different footing, as the text
indicates; the question coming to be
regarded, in view of the great extent
to which any one of them could prac-
tically control and dispose of assets,
rather as involving the element of
contributory negligence or fraud, on
the part of the executor who claims
immunity. And the view taken by
courts of probate and equity, in pass-
ing upon the accounts of executor-
ship, becomes more and more the
material one in such cases. Even at
common law, as it is admitted, when-
ever any part of the estate, by any
act or agreement of one executor,
passes or is intrusted to the custody
of a co-executor, they are thereby
rendered jointly responsible; for the
inference arises that one, notwith-
standing his power and opportunity
to make the joint possession secure,
has chosen to yield control to the
other. Ames, J., in Ames v. Arm-
strong, supra. The whole subject
seems to have been spun by the
courts into a very fine web, reaching
from point to point, but coming round
again to the starting-place.
The mere circumstance tliat assets
came to the hands of one's co-execu-
tor, does not, it is lield, render him
also liable. U. S. Dig. 1st series,
Exrs. & Admrs. 1711; Wms. Exrs.
1821. But it is said to be different
where an executor hands them over
to his co-executor, and the latter
misapplies them. Dick. 356; Mac-
plierson v. Macpherson, 1 Macq. H. of
L. 243 ; Sparhawk v. Buell, 9 Vt. 41 ;
Edmonds v. Crensliaw, 14 Pet. 166,
10 L. Ed. 402. Passiveness, in not
obstructing the co-executor who gets
control of the assets, has been con-
sidered as involving no liability. 11
Ves. 335; Candler v. Tillett, 22 Beav.
257. But the exceptions engrafted
upon this statement have much im-
paired its efficacy. 1 Mac. & G. 433
n.; Wms. Exrs. 1822, 1827. To stand
by and see the co-executor commit a
breach of duty renders one clearly
liable. lb. "The rule," adds Wil-
liams, " may, perhaps, be stated to
be, that where, by any act done by
one executor, any part of the repre-
sentative estate comes to the hands
of his co-executor, the former will be
answerable for tlie latter, in the same
manner as he would have been for a
stranger whom he had instrusted to
receive it." Wms. Exrs. 1822, refer-
ring to Cox's note to 1 P. Wms. 241;
1431
1402
EXECUTORS AND ADMI^'ISTKATORS.
[part IV.
act. Consequently, while co-trustees may not be liable for money
which they did not receive, although they all joined in the receipt,
co-executors have usually been held liable in such a case ; for the act
is an unmeaning one and unnecessary, unless they intend thereby
to render themselves jointly answerable for the money.® ITotwith-
standing the numerous refinements of equity courts upon this rule
(which Lord Eldon deplored), the only substantial exception ap-
also 2 Bro. C. C. 117; Booth v. Booth,
1 Beav. 125; Styles v. Guy, 1 Mac. &
G. 422. Failing to withdraw money
from a banker, who happens to turn
out insolvent, does not necessarily
charge a co-executor, nor indeed a
sole executor; and so with changing
investments, originally justifiable,
but wliicli eventually prove unfor-
tunate; or confiding in some agent or
a co-executor who abuses the con-
fidence placed in him. Wms. Exrs.
1825, 1826; supra, §§ 1321, 1323;
Chambers v. Minchin, 7 Ves. 193;
Worth V. McAden, 1 Dev. & Bat. Eq.
199; Adair v. Brimmer, 74 N. Y.
539. But to intrust large sums and
large authority to one notoriously
insolvent or irresponsible is a very
different matter. The question re-
verts, in short, to the customary issue
of good faith and prudence, consid-
ering all tlie circumstances, as in the
case of a sole executor or adminis-
trator. And this issue becomes
crucial, in a case where one executor
actively manages, wliile the other is
passive, as the law permits. See
Cocks v. Haviland, 124 N. Y. 426,
26 N. E. 976.
The understanding of all concerned
may have snmetliing to do with re-
ducing liability. Where one who
qualified as co-executor gave tlie
beneficiaries distinctly to understand
that he should not act, and all parties
believed in the solvency and probity
of the other executor who received
all the assets, managed the estate
alone and prepared the accounts, he
was held not personally liable. Eng-
lish V. Newell, 42 N. J. Eq. 76, 6 A.
405. But where a co-executor with
the testator's widow yielded to her
wish to permit her son to manage
the estate, and the son managed
badly, the co-executor was held liable
as such to other parties in interest;
and here he had joined in executing
papers when requested. Earle v.
Earle. 93 N. Y. 104. Where a lawyer
is co-executor with an unprofessional
person, the peculiar confidence nat-
urally reposed in one by reason of
his superior knowledge is a shield to
the other party. 4 Dem. (N. Y.)
528.
Wliere one undertakes the sole man-
agement against tlie other's wishes
there should be on the latter's part
a clear dissent. Cheever v. Ellis, 108
X. W. 390, 144 Mich. 477, 11 L. R.
A. (N. S.) 296; Adams Re, 59 N. E.
1118, 166 N. Y. 623; Irvine's Estate,
53 A. 502, 203 Penn. 692. See 79
Va. 524; 69 N. E. 418, 185 Mass. 27.
6. Perry Trusts, § 421; 2 Eq. Cas.
Abr. 456; Leigh v. Barry, 3 Atk. 584;
Monell V. Monell, 5 John. Ch. 283;
Jones's Appeal. 8 W. & S. 143 ; Clarke
V. Jenkins, 3 Uith. Eq. 318.
1432
CHAr. VI.] CO-ADMINISTR.\.TION, ETC. § 1402
pears to be that the mere joining in the receipt shall not have the
conclusive effect of charging bothj
The reconciling principle appears to be that a co-executor who
joins in a receipt is bound by the consequences to the usual extent
of requiring prudence and good faith ; but that the act of so join-
ing, though prima facie importing that the money came to the
hands of both, is not conclusive evidence, but may be explained so
as possibly to exonerate him. Where the act itself is such that, as
under a trust, all the executors must join in it, the liability is
placed rather on the footing of co-trusteeship; or, perhaps, it should
be said that a court treats it as not imprudent for one to rely upon
the assurance that no transfer or misappropriation can be made
without his concurrence in the act. Thus would it be, for instance,
where a power was vested in both under the will ; ^ or where stock
cannot be transferred except by the signatures of all ; ^ or where
both must join in a petition; ^ or where the indorsement or assign-
ment of some specific instrument requires the joint assent; orwhere
the fund is deposited so as to remain subject to their joint check.^
Even thus, culpable carelessness in permitting the proceeds of the
sale, or transfer, or assignment, to be paid to one, or the joint check
collected by himself alone, would charge the co-executor who con-
7. Westley v. Clark, 1 Eden, 357; tors or trustees, unless a different in-
Doyle V. Blake, 2 Sch. & Lef . 242 ; tention is expressed in, or can be
Chambers v. Minchin, 7 Ves. 198. The properly inferred from, the will which
course of" the English precedents on confers the power, cannot be legally
this subject is traced in Wms. Exrs. and properly executed, unless all the
1834, 1835. And see Monell v. Monell, co-executors or co-trustees to whom
5 John. Ch. 283 ; Lord Eldon's re- such power is delegated join in its
marks in Walker v. Symons, 3 execution. See Hart v. Rust, 46 Tex.
Swanst. 64. 556; Adair v. Brimmer, 74 N. Y. 539.
8. Smith V. Moore, 6 Dana, 417; 9. Cliambers v. Minchin, 7 Ves.
Bank of Port Gibson v. Baugh, 9 Sm. 197; Hovey v. Blakeman, 4 Ves. 608.
6 M. 290; Kling v. Hummer, 2 Pa. And see stat. 8 & 9 Vict. c. 91, cited
349; Carroll v. Stewart, 4 Rich. 200; Wms. Exrs. 948, 1825.
County V. Day, 57 S. E. 359, 128 Ga. 1. 40 N. J. Eq. 173.
156; 56 S. E. 865, 144 N. C. 192, 10 2. De Haven v. Williams, 80 Penn.
L. R. A. (N. S.) 867. It is a well- St. 480, 21 Am. Rep. 107. See Child
established principle that power con- v. Thorley, L. R. 16 Ch. D. 151. A
ferred by will on two or more execu- New York statute authorizes the
1433
§ 1402a EXECUTORS A>rD ADMINISTE-ITORS. [PAET IV.
fided too imprudently in liis associate.^ For funds he suffers to
be left unreasonably long in bis co-executor's bands, or loans to
bim, tbe executor is responsible if tbey are misapplied, tbougb as
far as tbey are duly applied in tbe course of administration be is
indemnified.* One executor bas no rigbt to rely upon tbe repre-
sentations of bis associate, but is bound to use due diligence in as-
certaining for bimself wbether tbose representations are true.^
And one may become privy to a misapplication of funds by bis co-
executor, so as to become liable, wben be tacitly suffers it to be
done witbout making a remonstrance ; ^ for tbe act of one executor
may be considered as adopted by bis co-executor, wben tbe latter's
conduct virtually amounts to an assent, bowever reluctantly givenJ
As a rule eacb of two or more co-executors bas full power of admin-
istration;* and eacb is prima facie liable for tbe entire amount
sbown to be due on tbeir joint account.^
§ 1402a, The same Subject.
In sbort, an executor wbo, by his culpable negligence or fraud,
suffers his co-executor to waste tbe estate, participates in tbe breach
of trust so as to render himself liable to the beneficiaries; ^ and
surrogate to require money to be de- Y.) ISO; Brown's Accounting, 15 Abb.
posited to joint credit. 5 Dem. 414. Pr. N. S. 457.
3. Croft V. Williams, 23 Hun (N. 7. Nelson v. Carrington, 4 Munf.
Y.) 102. A loan by co-executors to 332, 6 Am. Dec. 519.
one of thera is a breach of trust, ren- 8. A debtor of the estate who makes
dering all liable. Stickney v. Sewell, payment bona fide to one of several
1 My. & Cr. 8; Wms. Exrs. 1809. executors wlio squanders the money
4. Scurfield v. Howes, 3 Bro. Ch. so received, cannot be held to further
91 ; 11 Ves. 252 ; Croft v. Williams, 23 liability ; for each executor had
Hun (X. Y.) 102; Lincoln v. Wriglit, power to make collections. Stont v.
4 Beav. 427; Perry Trusts, § 423; Union Savings Bank, 13 R. I. 25.
Hays V. Hays, 3 Tenn. Ch. 88. Giving up the voucher of liability to
5. Chambers V. Minchin, 7 Ves. 197; the debtor discharges him the more
Shipbrook v. Ilinchenbrook, 11 Ves. dearly. Hyatt v. ]Mcr>urney, 18 S.
254; Perry Trusts, § 423; Clark v. C. 199.
Clark, 8 Paige, 152, 35 Am. Dec. 076. 9. Cassel's Estate, ISO Penn. St.
See Atcheson v. Robertson, 3 Rich. 252, 36 A. 744.
Eq. 132, 55 Am. Dec. 634. 1. Holcombe v. Holcombe, 13 N. J.
6. Whitney v. Phoenix, 4 Redf. (N. Eq. 413; Ilcngst's Appeal, 24 Penn.
1434
CHAP. VI.]
CO-ADMINISTRATION^ ETC.
1402a
each case of this kind must depend largely upon its own peculiar
circumstances, taking into account the apparent knowledge and ac-
quiescence of one executor in the acts and transactions of the other,
and the power and control which the former may have deliberately
permitted the latter to exercise.^ And for wrongful knowledge and
connivance at his co-executor's misconduct he is more strongly an-
swerable than for simple carelessness with honest intent.^
St. 413; McDowall v. McDowall, 1
Bailey Eq. 324; Adair v. Brimmer, 74
N. Y. 539; Anderson v. Earle, 9 S. C.
460; 98 Ga. 310, 24 S. E. 437.
2. Blake v. Pegram, 109 Mass. 541;
Fonte V. Horton, 36 Miss. 350 ; Clarke
V. Blount, 2 Dev. Eq. 51. Permitting
one executor to have securities for a
sale, on his promise to pay the pro-
ceeds into the joint account, which
promise he failed to keep, is not
necessarily such culpable negligence
as charges the other co-executors who
thus confided, especially if that co-
executor was under bonds or gave
good security. Adair v. Brimmer, 74
N. Y. 539. But where excessive pay-
ments are made or moneys drawn by
one executor, with the consent or
acquiescence of the others, out of a
fund which has been collected and has
come into their joint possession and
control, they all become liable to make
the excess good to beneficiaries whose
rights under the will are at any stage
impaired thereby. So, too, where an
executor, by his negligence, suffers
his co-executor to receive and waste
the estate, when he might by proper
care have prevented it, he is liable
to the beneficiaries for the waste. lb.
Where money which sliould liave been
invested was permitted to accumulate
and was used and lost in the business
of the executor who received the
money, the co-executor was held lia-
143
ble ; but not for the other executor's
act in pledging securities of the es-
tate for his own benefit. Wilmerding
V. McKesson, 103 N. Y. 329, 8 N. E.
665.
An executor cannot be charged in
his probate accounts with money that
never came to his hands but to the
hands of his co-executor; but his lia-
bility, if any, for negligence is en-
forceable in equity only. Duncan v.
Dawson, 40 N. J. Eq. 535. The pos-
sible loss he may have occasioned the
estate is an important element in such
liability. 50 N. J. Eq. 8. And where
co-executors filed a joint account ad-
mitting a cash balance, which was in
fact in the sole charge of A., and B.
died four years after; and six years
after B.'s death A. absconded, having
been of good repute; and three years
later an attempt was made to charge
B.'s estate; the court refused such re-
lief. Young's Appeal, 99 Penn. St.
74. Where two executors send mer-
chandise {e. g. cotton) abroad to be
sold, either may draw for the pro-
ceeds of sale; and if one draws and
misappropriates, the latter unless at
fault is not liable. Tompkins v.
Tompkins, 18 S. C. 1.
3. Wilmerding v. McKesson, 103 N.
Y. 329, 8 N. E. 665. Good faith may
keep him from being charged com-
pound interest.
§ 1403 EXECUTORS AND ADMINISTRATORS. [PART IV.
But one of several executors has no inherent authority to bor-
rO'W money without the assent of the others; nor is such assent to
be assumed from the fact that the loan procured was for the benefit
of the estate.* It is held that one cannot alone create a pecuniary
liability by his purchase.^ And that where one knows of a superior
debt, and conceals the fact from his co-executor, the latter shall
not be considered guilty of a devastavit, by paying the inferior
debt.^ For the proceeds of a claim, known to one only of the co-
executors, and collected by him, or for other assets coming to his
secret possession, he alone ought prima facie to be held accountable.
In general, therefore, where an executor performs acts outside the
usual scope of authority incidental to administration, thereby ren-
dering himself and not the estate immediately liable, it can usually
impute no blame to his co-executor, who was ignorant thereof, that
the latter took no prceaution to save the estate from loss ; and hence,
such co-executor is not to be held responsible, unless, at all events,
he was culpably careless in procuring knowledge of the transaction,
oi- in acting upon such knowledge after he had gained it. For his
own fraud alone, or his own negligence, whether as a contributory
or otherwise, should each executor be held chargeable.'
§ 1403. Co-Executors; Actions by and against.
All executors should join in bringing actions on behalf of the
estate,^ and correspondingly should be sued together.^ But if one
4. Bryan v. Stewart, 83 N. Y. 270. several and not joint. Girod v. Par-
5. Scrupf^s V. Driver, 13 Ala. 274. goud, 11 La. Ann. 329. But co-
6. Hawkins v. Day, Ambl. 162. executors are not authorized to divide
7. Directions in a will, wliich vest the management of the estate between
a peculiar confidence and control of thmselves, so that each shall take sole
assets in one of the executors, may charge of a certain part. Berming-
be set up by the co-executor as re- ham v. Wilcox, 120 Cal. 467, 52 P.
lieving him specially of an abuse by 822. Cf. as to surcharge, Mueller's
the other which was without his own Estate, 190 Penn. St. 601, 42 A. 1021.
participation. Vanpelt v. Veglite. 14 8. Wms. Exrs. 956, 1867, and Per-
N. J. L. 107. Where the testamentary kins's note; 1 Chitty PI. 16tl) Am.
functir)ns are divided by the will, and erl. 21, 23: Bodle v. Hulse, 5 Wend,
each confines himself to his allotted :J13. Advantage should be taken of
functions, the liability appears to be nonjoinder, however, by a plea in
1436
CHAP. VI.]
CO-ADMINISTKATION^ ETC.
1403
executor contracts alone on his own accoimt, it would appear that
he must sue alone on such contract, notwithstanding the proceeds
recovered will be assets.^ And upon a sale of assets made by him-
self alone, he doubtless may sue for the price, not naming himself
executor ; ^ so, if goods be taken out of the possession of one, he
may sue alone to recover them.^
As a rule, co-executors cannot sue one another nor be sued at
law, by one another.'* Eut here, as elsewhere, we speak of co-execu-
tors in the modern sense, that they have all accepted and quali-
fied themselves for the trust.^ In equity, contrary to the rule of
law, one executor may sue another; and courts of equity will en-
abatement. 1 Saund. 291; 1 Chitty
PI. 16th Am. ed. 23; Packer v. Will-
son, 15 Wend. 343; Wms. Exrs. 1868.
The common law appears to have in-
sisted that even those neglecting or
renouncing probate should join in
the action. 1 Salk. 3; 9 Co. 37 a;
Creswick v. Woodhead, 4 M. & Gr.
811. But this formality is inconsist-
ent with equity practice, and, indeed,
with our whole modern theory of
probate, which insists that only ex-
ecutors who qualify and receive the
probate credentials shall be required
or entitled to sue. Davies v. Wil-
liams, 1 Sim. 8 ; Thompson v. Gra-
ham, 1 Paige, 384; Rinehart v. Rine-
hart, 15 N. J. Eq. 44 ; Herron v. Hoflf-
ner, 3 Rawle, 393; Alston v. Alston,
3 Ired. 447. Modern practice acts are
to the same purport. Moore v. Wil-
lett, 2 Hilt. 522. And in England,
under the later probate act, the rule
has been altered so as to harmonize
with this theory. Wms. Exrs. 286;
Act 20 & 21 Vict. c. 77, § 79. Co-
executors, when sued, may plead dif-
ferently. Wms. Exrs. 1942; 1 Stra.
20; 1 Roll. Abr. 929; Geddis v. Ir-
vine, 5 Penn. St. 308. Where one of
two co-executors presents his account
the other may contest it. 4 Dem. 364.
The release of one co-executor from
liability does not discharge the other,
especially if the latter be the real
party to blame. 74 Cal. 199.
9. See 127 N. Y. S. 934; Mallory
V. Hot Springs Co., 141 N. Y. S. 961
(testator wrongfully killed).
1. Heath v. Chilton, 12 M. & W.
632.
2. Brassington v. Ault, 2 Bing. 177;
Wentw. Off. Ex. 224; Wms. Exrs.
911; Aiken v. Bridgman, 37 Vt. 249;
Laycock v. Oleson, 60 111. 30.
3. Wms. Exrs. 1689. See s-upra,
§ 1281.
4. Wentw. OflF. Ex. 75; Wms. Exrs.
957; Pardoe Re, (1906) 1 Ch. 265.
5. Thus, a creditor of the deceased
who is made an executor by the will,
and accepts the office, cannot sue his
co-executor on the demand. Saun-
ders V. Saunders, 2 Litt. 314; Martin
V. Martin, 13 Mo. 36. But if he re-
nounced the trust in effect, he can;
for he is then no executor. Dor-
chester V. Webb, W. Jones, 345; Wms.
Exrs. 957, and Perkins's note; Hunter
V. Hunter, 19 Barb. 631.
1437
§ 140-i EXECUTORS AND ADMIXISTRATOKS. [pAET IV.
tertain siicli proceedings for tlie purpose of making a delinquent
executor liable to his co-executor, to force an account, to complete
the foreclosure of a mortgage, and otherwise where justice requires
it, and there is no adequate redress at law.^ In some States it is
now held that an executor may sue his co-executor on the latter's
express promise ; '' and in other special instances.^ Equity may bo
invoked to relieve one executor from the fraudulent misconduct of
his co-executor, and to enjoin maladministration from being com-
mitted.^
§ 1404. Rights, Duties, and Liabilities of Co-Administrators.
In respect of rights, duties, and liabilities, co-administrators
stand upon the same footing as co-executors ; with, of course, the
difference that their functions, being defined by general and posi-
tive law, are scarcely capable of special variation. Co-administra-
tors are to be regarded in the light of an individual person. Their
interest is joint and entire; the acts of one in respect of adminis-
tration are taken to be the acts of all ; ^ and as to liability for one
6. Peake v. Ledger, 8 Hare, 313; Elmendorf v. Lansing, 4 Johns. Cli.
Case's Appeal, 35 Conn. 117; Wms. 562; Slieelian v. Kennelly, 32 Ga. 145.
Exrs. 1911, and Perkins's note; A desirable course, in modern pro-
Storms V. Qiiackenbush, 34 N. J. Eq. bate practice, where a co-executor
201; McGregor v. McGregor, 35 N. Y. misbehaves or becomes unsuitable for
218; 35 N. J. Eq. 374; 4 N. J. L. the trust, is to procure his removal
189; 56 N. J. Eq. 102, 38 A. 297. But or resignation. See supra, § 1154;
not where tlie party who comes into Hesson v. Hesson, 14 Md. 8.
equity has a bad standing. Bowen 1. One of two joint administrators
V. Richardson, 133 Mass. 293; King may realize a right of action which
V. Shackleford, 13 Ala. 435. belonged to the decedent. Bryan v.
7. Phillips v. Phillips, 1 Stow. Tliompson, 7 J. J. Marsh. 587; Gage
(Ala.) 71. V. .Tohnson, 1 McCord, 492; Murray
8. Where one of the co-executors v. Blatchford, 1 Wend. 583. And see
gives the debtor a direction in viola- Rick v. Gilson, 1 Penn. St. 54. But
tinn of his duty, and refuses to join a note being made payable to the co-
in a suit for the debt, the other administrator, one alone cannot assign
<?xocutor may sue for the debt, and it. Saunders v. Blain, 6 J. J. Marsh,
join his co-executor as defendant. 446. And as to part payment to one
Strcver v. Feltman, 1 'Ihonip. & C. of several administrators, see Gull-
(N. Y.) 277. edge v. Berry. 31 Miss. 346. See,
9. Nason v. Smalley, 8 Vt. 118; furtlier. La Forge v. La Tourctte,
14;J8
cnAP. VI.]
CO-ADMINISTRATION^ ETC.
1405
another's acts, the doctrine corresponds to that of co-executorship.^
An agreement between co-administrators that one of them alone
shall manage the estate is pronounced void as against public policy.^
Joint administration is a trust never to be forced upon persons un-
willing to serve together.*
§ 1405, Survivorship among Co-Executors or Co-Administrators.
The authority of an executor, as we have observ'ed, is not de-
tennined by the death of his co-executor, but survives to him.^ And
so, too, is it with co-administrators.^ Where, however, the will
gives a power (as for selling lands) to several executors, and one
of them dies, it has been a question whether the survivor or sur-
vivors can exercise that power ; but judicial inclination must be to
decide in the affirmative,^ wherever the terms of the will admit of
a favorable construction.* A power to sell which arises from im-
114 N. Y. S. 146, App. 92 N. E. 1089,
198 N. Y. 591 (partition).
2. Johnson v. Corbett, 11 Paige,
265 ; Jeroms v. Jeroms, 18 Barb. 24.
Lord Hardwicke once attempted a dis-
tinction as between co-executors and
co-administrators, the latter being
appointed solely by the ordinary.
Hudson V. Hudson, 1 Atk. 460. But
the dictum was afterwards disap-
proved. Jacomb v. Harwood, 2 Ves.
Sen. 268; Smith v. Everett, 27 Beav.
445; Wms. Exrs. 950. But see Gor-
don V. Finlay, 3 Hawks, 239.
3. Wilson V. Lineberger, 94 N. C.
641, 55 Am. Rep. 628.
4. Brubaker's Appeal, 98 Penn. St.
21.
5. Flanders v. Clarke, 3 Atk. 509;
Anderson v. Stockdale, 62 Tex. 54;
supra, § 1400. An executor ap-
pointed by the surviving executor in
the place of the deceased, under a pro-
vision in the will, is also clothed with
the trust estate in the place of his
predecessor. Mulford v. Mulford, 42
N. J. Eq. 68.
6. Cas. temp. Talb. 127; Wms.
Exrs. 911, 951. It is thus, in general,
where one of the representatives is
removed or allowed to resign the
trust. See supra, § 1041; Shelton v.
Homer, 5 Met. 462.
7. Wms. Exrs. 954-956; Co. Litt.
113 a, and Hargrave's note; 1 Sugd.
Pow. 144, 6th ed.; Brassey v. Chal-
mers, 16 Beav. 231; s. c, 4 De G. M.
& G. 528.
8. 1 Sugd. Pow. 141; Wms. Exrs.
7th ed. 954; Gould v. Mathers, 104
Mass. 283. Where the number of co-
executors is lessened by one renounc-
ing probate a similar question of
testamentary construction may arise.
Granville v. McNeile, 7 Hare, 156. If
the power is conferred upon co-
executors in their official capacity and
not by name as individuals, the dis-
qualification of one leaves the power
in the otlier. 54 N. J. Eq. 108.
1439
§ 1405
EXECUTOES AXD ADMIXISTEATORS.
[rAET IV.
plication, instead of being expressed, is held to sundve, as among
co-executors, in the same manner.^ Even where the power itself
is extinguished, equity will interpose to avert mischievous conse-
quences, by compelling the person having the legal estate to exe-
cute it.^
The personal representative of a deceased co-executor cannot,
according to the old rule of common law, be sued by his survivor
in the trust, for a debt due to their testator,^ nor in respect to a
breach of trust. But our modem practice acts relax this doctrine
to a considerable extent.^ In equity, moreover, the surviving ex-
ecutor, if himself innocent of participation in the wrong, may file
a bill to have set aside a transaction committed in breach of trust,
by his associate, during his lifetime ; * nor, as it is held, does the
fact of his having taken out administration upon the estate of the
executor who misconducted in the trust, disqualify him from main-
taining his suit.^ Redress is granted by equity in other instances,
on behalf of the surviving executor or executors.®
9. Wms. Exrs. 655, 955; Forbes v.
Peacock, 11 M. & W. 630; 4 Kent
Com. 325-327; Treadwell v. Cordis, 5
Gray, 341; Peter v. Beverly, 10 Pet.
533, 9 L. Ed. 522; Wms. Exrs. 955,
and Perkins's note.
1. Sugd. Pow. 144; Wms. Exrs.
956. For co-executors to execute a
power in favor of one of the co-
executors named, who has renounced
or resigned, appears upon some con-
troversy to be legal. Mackintosh v.
Barber, 1 Bing. 50. But equity may
well refuse countenance to an execu-
tion of this kind, as being contrary
to good policy and a testator's pre-
sumed intention. Shelton v. Homer,
5 Met. 467; Wms. Exrs. 953. And see
Danaher v. Hildebrand, 131 N. Y. S.
127; Illinois Steel Co. v. Konkel, 131
N. W. 843, 146 Wis. 556.
Moving from the State and ceasing
to participate actively does not va-
cate the office nor end one's duties as
to joint acts requisite. 57 S. E. 359^
128 Ga. 156; 56 S. E. 865, 144 N. C.
192, 10 L. R. A. (N. S.) 867.
2. Wentw. Off. Ex. 75; Wms. Exrs.
957.
3. When an executor or adminis-
trator dies, resigns, or is removed,
the survivor, as rightfully entitled to
assets, may sue him or his estate at
law; at least if it be upon a promis-
sory note or instrument executed by
the late associate. Hendricks v.
Thornton, 45 Ala. 299.
4. See, as to setting aside a mort-
gage of assets, made by tlie deceased
executor in breach of trust, Miles v.
Durnford, 2 De G. M. & G. 641. And
see Turner v. Wilkins, 56 Ala. 173.
5. Miles V. Durnford, supra.
6. Ab for enforcing a decree against
the late co-executor, see Ciiew's Ap-
peal, 2 Grant (Pa.) 294.
1440
CHAP. VI.] CO-ADMINISTRATION^ ETC. § 140G
So, too, is a bill in equity maintainable by the personal repre-
sentative of one executor or administrator against the surviving
executor or administrator, for account and settlement of affairs
arising out of the joint administration.'^
§ 1406. Liability of Co-Executors and Co-Administrators on
Bonds; Joint or Several Bonds.
Where co-executors or co-administrators qualify by giving bond
to the judge of probate, as they are usually in modern practice com-
pelled to do before letters can issue to them,^ the fomi of the bond
executed may. affect very seriously their liability, and that of their
sureties, to persons interested in the estate. Co-executors or co-
administrators, who give a joint and several bond, render them-
selves jointly and severally liable as principals for waste committed
by either, tbough without fault upon the part of both, and for the
proper administration of all assets which come to their possession
and knowledge,^ This liability covers all breaches of the bond and
devastavit^ occurring while the joint relation continues.-^
'Chancery will enforce where it may, a just contribution as he-
tween the joint executors in all such cases.^ And such joint parties
7. HuflF V. Thrash, 75 Va. 546. And exclusive possession, and that no as-
eee Fitzsimmons v. Cassell, 98 111. sets came into his own hands. State v.
332. An administrator cannot main- Hyman, 72 N. C. 22. Where two or
tain a suit in equity to compel his more persons are appointed and quali-
co-administrator to account for and fied as executors, and one is guilty of
pay over to him certain claims al- devastavit, after which his co-execu-
leged to be due from the defendant as tors resign, and he executes a new
debtor to the estate. Whiting v. bond, such co-executors are primarily
Whiting, 64 Md. 157, 20 A. 1030. For liable for such devastavit. Bostick v.
counter-claims would here arise, and Elliott, 3 Head. 507. As to the rule
the suit is an obstruction to a proper where the remaining executor resigns,
settlement. and one of his sureties is appointed
8. Supra, § 1145. administrator de bonis non with the
9. Brazer v. Clark, 5 Pick. 96; will annexed, and sufficient indem-
Hughlett V. Hughlett, 5 Humph. 453 ; nity is given against the former de-
Newton V. Newton, 53 N. H. 537 vastavit, see ib.
Marsh v. Harrington, 18 Vt. 150; 1. Towne v. Ammidown, 20 Pick.
Pearson v. Darrington, 32 Ala. 227. 535; Brazer v. Clark, 5 Pick. 96.
Nor can one allege that the other took 2. Marsh v. Harrington, 18 Vt. 150;
91 1441
§ 1407
EXECUTOKS AXD ADMIXISTKATOES.
[part IV.
are responsible each for the acts of the other before the sureties on.
their joint bond."
ISTeither co-executors nor co-administrators, we maj add, are
compelled to give a joint bond ; they may give either separate or
joint bonds at their discretion, as the statutes of various States ex-
pressly permit ; and the effect of giving a separate bond is to leave
each co-executor or co-administrator simply liable for his own de-
fault or misconduct, under the qualifications set forth in the pre-
ceding sections.*
§ 1407. Rights, Duties and Liabilities of Administrator with the
Will annexed.
Secondly, as to the rights, duties, and liabilities of an adminis-
trator with the will annexed. From what has been elsewhere said,^
it may be gathered that such rights and duties of an executor as
result from the nature of his office must devolve upon an admin-
Conner V. Mcllvaine, 4 Del. Ch. 30.
And see Garnett v. Macon, 6 Call. 308 ;
Muller V. Muller, 79 A. 429, 76 N. J.
Eq. 158; 125 N. Y. S. 305.
Notwithstanding any ulterior lia-
bility which one co-executor or co-ad-
ministrator may have incurred by rea-
son of having executed a joint bond,
the fact being that he has not inten-
tionally or otherwise contributed to a
devastavit by his co-executor or co-
administrator, since deceased, equity
will take cognizance of his suit
against the personal representatives
of his deceased associate, founded on
the latter's devastavit, and malccr
such decree as may be appropriat(>.
Turner v. VVilkins, 56 Ala. 173. But
it is held that the representatives of
one joint executor are not in any
form responsible for maladministra-
tion of the survivor hajpponing after
the decease of the former, notwitii-
standing a joint and several bond
with sureties was given. Brazer v.
Clark, 5 Pick. 96. And if the sur-
vivor neglects to pay over the amount
due to a legatee, in consequence of
which the sureties pay it, the sure-
ties cannot enforce indemnity or con-
tribution against the personal repre-
sentatives, heirs, or devisees of the
deceased executor. Towne v. Ammi-
down, 20 Pick. 535.
3. Jamison v. Lillard, 12 Lea, 620.
When two or more execute a joint
bond, they stand in the relation of
principal and surety; each as prin-
cipal quoad his own acts, and as
surety quoad the transactions of
others. 76 Va. 85.
4. Ma.ss. Pub. Stats, c. 143, § 3.
One co-executor being removed and
the other surviving in the trust, the
latter may sue the former's bond. 124
N. Y. 1.
5. Supra, §§ 1122, 1123.
1442
CHAP, VI.] CO-ADMINISTRATION_, ETC. § 1407
istrator witli the will annexed ; not, however, an authority neces-
sarily connected with some personal trust and confidence reposed
in his own designated executor by the testator.^ A special commis-
sion or trust power, conferred by the will upon one executor, does
3iot, in fact, vest in such administrator unless by implication from
the language of the will. Thus, a discretionary power to sell lands
given to one's executor will not vest in the administrator with the
will annexed, whether the executor expressly named died, re-
nounced, or failed, from some reason, to qualify,^ or no executor
■was named at all.^ So, w^here property is bequeathed to one's ex-
ecutors, to be held in trust for specified objects, an administrator
with the will annexed cannot as such fulfil the trusteeship.^ Nor
has an administrator with the will annexed any right to receive a
fund given in personal trust under the will for the support of the
testator's widow.^ Nor to carry on the testator's business under a
testamentary power, where that power appears to have been be-
stowed upon personal confidence.^ Where, however, a devise is
made in trust to the executor named, this need not preclude an ad-
ministrator with the will annexed from selling the land, under an
6. Farwell v. Jacobs, 4 Mass. 634; St. 503; Evans v. Blackiston, 66 Mo.
Bain v. Matteson, 54 N. Y. 663; 437. And if the language of the will
Syme v. Broughton, 86 N. C. 153; 57 shows a disposition on the testator's
N. E. 1117, 161 N. Y. 634. part to permit whomsoever should
7. Nicoll V. Scott, 99 111. 529; execute the will to execute the powjr,
Lucas V. Doe, 4 Ala. 679 ; Brown v. the administrator with the will an-
Hobson, 3 A. K. Marsh. 380, 13 Am. nexed may execute it. Jones v. Jones,
Dec. 187; McDonald v. King, 1 N. J. 2 Dev. Eq. 387. And see 7 Heisk.
L. 432; Conklin v. Egerton, 21 Wend. 315; 32 Cal. 436; 131 S. W. 185, 140
430; 25 ib. 224; Belcher v. Belcher, Ky. 433 (statute giving power); 136
11 R. I. 223; Knight v. Loomis, 30 N. Y. S. 990; Frtickelton v. Masters,
Me. 204; Vardeman v. Ross, 36 Tex. 94 N. E. 124, 249 111. 30; Murdock
111. V. Murdock, 53 So. 694, 97 Miss. 890;
8. Hall V. Irwin, 2 Gilm. 176. There Power v. Grogan, 81 A. 416, 232 Penn.
are looaJ statutes, however, which 387.
change this rule more or less speci- 9. Brush v. Young, 28 N. J. L. 237.
fically. Hester v. Hester, 2 Ired. Eq. 1. Warfield v. Brand, 13 Bush. 77.
330; Brown v. Armistead, 6 Rand. 2. Rubottom v. Morrow, 24 Ind.
594; Keefer v. Schwartz, 47 Penn. 302, 87 Am. Dec. 324.
1443
I 1408 EXECUTOES AXD ADMIXISTEATORS. [PAKT IV.
order of court, for payment of tlie testator's debts, should a suitable
emergency arise ; for this is in pursuance simply of administrative
fimctions annexed to the office, and not to the person.' And so
where land is devised at all events and the power to sell is confided
to the executor by virtue of his office.* For where a power to sell
is thus confided officially to one's executor, an administrator with
the will annexed may exercise it; but a purely personal trust and
confidence reposed in the executor, actually named, cannot be exer-
cised by his legal substitute.
Unlike the executor, moreover, an administrator with the will
annexed has no authority, as it is held in some States, to administer
upon any portion of the estate of the testator not disposed of by
the will.^
§ 1408. Rights, Duties, and Liabilities of an Administrator de
Bonis non.
Thirdly, as to the rights, duties, and liabilities of an administra-
tor de bonis non.^ Whether administration de bonis non is taken
upon a testate or intestate estate, there is, in respect of powers and
responsibility, no essential difference of principle ; only that, in the
3. Dunning v. Ocean Nat. Bank, 61 An administrator with the will an-
N. Y. 497, 19 Am. Rep. 293. nexed is subject to the provisions of
4. Cohea v. Johnson, 69 Miss. 46, law applicable to other administra-
13 So. 40. And see § 1413, post. tors, except so far as the distribution
5. Harper v. Smith, 9 Ga. 461; of the estate is directed by the will.
Syme v. Broughton, 86 N. C. 153. Brown, Ex parte, 2 Brad. (N. Y.) 22.
And see Owens v. Cowan, 7 B. Mon. As to the liability of such administra-
152; Montgomery v. Millikin, Sm. & tor and his sureties upon the bond
M. 151; Moody v. Vandyke, 4 Binn. given, see Murphy v. Carter, 23 Gratt.
31, 5 Am. Dec. 385; Drayton v. 477; Strother v. Hull, lb. 652. For
Grimke, 1 Bailey Eq. 392; Perry v. the liability of co-administrators
Gill, 2 Humph. 218. But this rule is with the will annexed, see § 1402;
held inconsistent with the policy of Adams v. Glcavos, 10 Lea, 367. 44
the Now York legislation as to such Am. Dec. 469.
administrators. Sullivan v. Fosdick, 6. See supra, § 1128. as to the ap-
17 N. Y. Supr. 173; 72 Am. Dec. 442. pointment of such admini.^tratora.
See May v. Brewster, 73 N. E. 547,
187 Mass. 524.
1444
CHAP. VI.] CO-ADMINISTEATION^ ETC. § 1408
former instance, the administration of the estate becomes completed
hy one whose scope of authority is that of administrator with the
will annexed, and, in the latter, by a simple administrator. The
grant of administration de bonis non confere upon the person so
appointed a legal title to all the goods, chattels, rights, and credits
of the deceased, which were left unadministered by his predeces-
sor;'' and this clearly includes all chattels and chattel rights of
the decedent not already disposed of or converted into money by a
predecessor, whether of the corporeal or incorporeal (or tangible
and intangible) kind.
All the personal estate which has not already been administered,
Init remains capable of identification, belongs to the administrator
de bonis non specifically. :Such property he may recover ; and so,
too, funds deposited by his predecessor in the name of the estate.'
But where the former representative has mingled it with his own
property, a conversion — or what is called " administration " — takes
place, so that only the value thereof can be recovered, and the ad-
ministrator de bonis non becomes a creditor, with no preference, so
to speak, but secured by his predecessor's oflScial bond.' An action
7. Wms. Exrs. 915, 961; Wentw. sue letters de bonis non while a final
Off. Ex. 462; 1 Salk. 306; Shackel- settlement remains in full force is
ford V. Kunyan, 7 Humph. 141; Kelly void and may be revoked by the court
V. Kelly, 9 Ala. 908, 44 Am. Dec. of its own motion. 103 Ind. 223;
469; Paschall v. Davis, 3 Ga. 256; swpro, § 1153. But where such letters
American Board's Appeal, 27 Conn. are collaterally attacked on the
344; Gregory v. Harrison, 4 Fla. 56; ground that there was no vacancy, the
Gilbert v. Hardwick, 11 Ga. 599; fact that there was no vacancy
Newhall v. Tumey, 14 111. 338; Shaw- should be affirmatively sho^vn.. 70
Iian v. Loffer, 24 Iowa, 217; Carroll Ala. 140.
V. Connet, 2 J. J. Marsh. 195; Alex- 8. Stair v. York Nat. Bank, 55
ander v. Stewart, 8 Gill & J. 228; Penn. St. 364, 93 Am. Dec. 759. And
Harney v. Dutcher, 15 Mo. 89; Morse so, too, apparently, with investment
V. Clayton, 13 Sm. & M. 373; 55 Am. securities taken for the estate by his
Dec. 131; McMahon v. Allen. 4 E. predecessor. King v. Green, 2 St^^w.
D. Smith, 519; Potts v. Smith. 3 133. But Saffran v. Kennedy, 7 J. J.
Eawle, 361, 24 Am. Dec. 359; Bell Marsh. 188, is contra.
V. Speight, 11 Humph. 451; Merriam 9. Beall v. New Mexico, 16 Wall.
V. Hemmenway, 26 Vt. 565. To is- 535, 21 L. Ed. 292; Wms. Exrs. 916,
1445
§ 1408 EXECUTOES AXD ADMIXISTRATOES. [PAET IV.
will not lie at common law against the predecessor for the recovery
of assets converted by him ; nor, as it is held, has the administrator
de bonis non any right to call for an account of any part of the
estate sold, converted, or wasted by his predecessor, since it is not
" unadminist^red." ^ Hence, the stricter practice is for the dis-
tributees or creditors to the original decedent, or others in interest,
and not the administrator de bonis non of the estate, to seek an ac-
count and to prosecute the representatives of a deceased predeces-
sor in the trust, in respect to his maladministration.^ This old rule
applied literally, however, where the former executor or adminis-
trator had died in the office ; and modem statutes, not imfrequently
permit of a different rule for other cases, such as removal or resig-
nation of one's predecessor ; ^ and even, as consistency requires, so
that the administrator de bonis non himself may compel an account-
ing and delivery of assets as against the personal representatives
of a deceased predecessor.*
The unadministered property vests in the administrator de bonis
non for completing the proper settlement of the estate. A balance
due from the predecessor, whether rendered voluntarily by the pre-
decessor himself, or by his representative in case of his death, or
obtained by a suit on the predecessor's probate bond, belongs by
and Perkins's note; 34 Ark. 144; 7 411; Stronach v. Stronach, 20 Wis.
Mo. 469; Hodge v. Hodge, 90 Me. 505, 129.
60 Am. St. Rep. 285; 153 PeniL St. 3. Marsh v. People, 15 111. 284.
345, 25 A. 1119. 4. Walton v. Walton, 4 Abb. (N.
1. Cheatham v. Burfoot, 9 Leigh, Y.) App. 512; Knight v. Lai?seter, 16
580; Smith v. Carrere. 1 Rich. Eq. Ga. 151; Tracy v. Card. 2 Ohio St.
123; Stubblefield v. McRaven, 5 Sm. 431; Palmer v. Pollock, 26 Minn. 433,
& M. 130, 43 Am. Dec. 502; Oldham 4 X. W. 1113; Carter v. Trueman, 7
V. Collins, 4 J. J. Marsh. 49. Penn. St. 320. Where the agent of a
2. Beall v. New Mexico, supra; former administrator collects a debt
Rowan v. Kirkpatrick, 14 111. 8; due the estate, it is in this sense an
Stose V. Peopl.", 25 111. 600, and cases administered asset; and the adminis-
cited; Wms. Exrs. 539, 915. and Per- trator dc bonis non cannot sue thi>
kins's notes; Jolmson v. Hogan. 37 agent to recover it. Wilson v. Ar-
Tex. 77; Young v. Kimball, 8 Blackf. rick, 112 U. S. 83. Both at common
167; TTiomas v. Stanley, 4 Snecd, law and under the act of Congress of
1446
CHAI',
VI.]
CO-AD:\riNISTRATIOX, ETC.
§ 140S
right to the successor as assets, and should be paid into his hands.*
He is preferred to a creditor of his predecessor in reaching a fund
which is properly assets.® And it is held that the administrator
de bonis non should inventory at their just valuation, and account
for all chattels belonging to the decedent's estate which his prede-
cessor has not properly sold or disposed of, and which still exist,
pursuing them or their value ; and such chattels, being a part of tho
estate which the predecessor has received, and not applied in any
manner according to his official duty, he may be charged with their
local force in the District of Colum-
bia an administrator de bonis non ha^^
title only to the goods and personal
property whi3h remain in specie and
have not been administered. And
this too where the former administra-
tor was removed instead of dying in
office. United States v. Walker, 109
U. S. 258, 27 L. Ed. 927. Nor can
such successor sue upon the prede-
cessor's bond to recover such moneys.
lb. In some States the rule is the
reverse. Balch v. Hooper, 32 Minn.
158.
In Wms. Exrs. 539, it is said that
if the original administrator were
dead, and administration de bonis non
had been obtained, it was held that
such administrator might sue the
executors of the deceased administra-
tor at law on the admiaistration bond
in the name of the ordinary. But this
is denied by Mr. Justice Bradley in
Beal V. New Mexico, 16 Wall. 540,
21 L. Ed. 292, who states the rule of
the English ecclesiastical courts as
instead, in effect, thnt the liability is
to the creditors, legatees, and dis-
tributees directly, and not to the ad-
ministrator de' bonis non. And he
explains Hall's Goods (1 Hagg. 139),
relied upon to support the text in
Wms. Exrs. 539, supra, as justifying
no more than the right of the admin-
istrator de bonis non to pursue spe-
cific assets of the estate, and, if these
are refused, instituting a suit on tha
bond for them. But this, he adds, is
perfectly consistent with the doctrine
" that for delinquencies and devasta-
vits he cannot sue his predecessor or
his predecessor's representatives,
either directly or on their adminis-
tration bond." 16 Wall. 541. But
gu. whether English ecclesiastical
courts ever dealt with bonds of a pre-
decessor who had been removed or re-
signed. See supra, § 1157. W'e may
conclude that, a;s to delinquencies of
a deceased predecessor, the rule pre-
vails, as stated by Mr. Justice Brad-
ley, where the law has not been
changed by statute. Cases cited in
this section, supra; Wms. Exrs. 539,
and Perkins's note. And see Gray v.
Harris, 43 Miss. 421, as to the form
of a decree of a balance found against
the predecessor on final settlement.
5. Wiggin V. Swett, 6 Met. 197, 39
Am. Dec. 716; Palmer v. Pollock, 26
Minn. 433, 4 N. W. 1113; 24 Neb.
712, 40 N. W. 137.
6. Marvel v. Babbitt, 143 Mass.
226, 9 N. E. 506.
1447
1409
EXECUTORS A^'D ADMINISTEATORS.
[part IV.
value in an action on his official bond.' He cannot be allowed ta
use his trust as a cloak to his predecessor's obligations.^
§ 1409. The same Subject.
The administrator derives title as to the unadministered assets,
not from the former executor or administrator, but from the de-
ceased.^ And the occasion which calls for his appointment forces
him often into antagonism with his predecessor or his predecessor's
representatives, to rescue the estate from maladministration and
pursue the remedies available for his predecessor's breach of trust.
He may get back personalty of the estate, or its proceeds, wrong-
fully delivered by the former executor or administrator, and still
held as a fund capable of identification.^ He may, by proceedings
in equity, recover chattels fraudulently and collusively transferred
7. Fay v. Muzzev, 15 Gray, 53. 56,
77 Am. Dec. 350. And see Burnley
V. Duke, 2 Rob. (Va.) 102. A bal-
ance justly due from the predecessor
may be recovered, though used im-
properly in paying out debts and ex-
penses. Miller v. Alexander, 1 Hill
Ch. (S. C.) 499. If a deceased rep-
resentative has disposed of all the
property of his decedent, no proceed-
ings can be had to charge it without
appointing an administrator de bonis
non. Piatt v. St. Cl;iir, 5 Ohio, 556.
vSee also, supra, § 1128, a^ to grant-
ing such administration for the pro-
tection of distributees, etc.
8. An administrator was removed
■who owed the estate $12,000; the sole
.surety on his bond for $10,000 was
appointed administrator de bonis von;
and it was held that the latter must
charge himself with the $10,000 as as-
sets. 21 Neb. 233, 31 N. W. 739.
See supra, § 120S.
9. Catherwood v. Cliabaud, 1 B. &
C. 154; Weeks v. Love, 19 Ala. 25;
Bell V. Speight, 11 Humph. 451;
American Board's Appeal, 27 Conn.
344; Bliss V. Seaman, 165 111. 422,
46 N. E. 279; supra, § 1128; Wms.
Exrs. 981. Each administrator de
bonis nOn derives his title from the
deceased. Weeks v. Love, supra.
1. Stevens v. Goodell, 3 Met. 34;
Fay V. :Muzzey, 13 Gray, 53, 74 Am.
Dec. 619.
In Slaymakcr v. Farmers' Bank, 103
Penn. St. 616 (1883), the rights of
the administrator de bonis non
under the provisions of the Pennsyl-
vania statute are discu-^sed at length.
Admitting that all assets of the es-
tate in the hands of a third person
at the death of the former adminis-
trator or executor, may be taken, if
distinguishable, by the administrator
dc bonis non, the collection of debts
due, or the disposition, change, or
alteration of such assets will protict
them from such administrator's
claims as unadministered gocds; nnd
if the goods are changed or altered.
1448
CHAP. VI.]
CO-ADMINISTRATION^ ETC.
1400
by the predecessor.^ He may demand an account in equity against
his predecessor and his sureties.^ He may demand and sue for
assets of the decedent's estate in the hands of a former executor or
administrator, or his representative/ or in possession of some third
party.^ He may recover personal property wrongfully pledged or
and remain no longer in specie, or_
have been disposed of, the administra-
tor de bonis non cannot claim tliem;
and so of the debts, unless they be
such as grow out of contracts to
■which the testator or intestate was a
party, for otherwise they cannot be
said to be debts due and owing to the
decedent (3 Rawle, 361). Hence,
upon the death of the representative
before the settlement of his account,
liis executor or administrator may re-
«over from a bank the balance stand-
ing to the credit of a deposit account,
■which he had opened there in his- rep-
resentative capacity; nor is the bank
justified in paying it over to an ad-
ministrator de bonis non of the de-
cedent for whose estate he had opened
this account. Slaymaker v. Farmers'
Bank, ib. For, in American practice,
at least, such a fund is liktly to be re-
duced by disbursements, expenses, and
compensation for services on behalf
of the representative who opened it;
and his successor is only entitled to
the balance after proper deductions.
See also Foster v. Bailey, 157 Mass.
160, 31 N. E. 771. Before the rep-
resentative of a deceased executor or
administrator can be compelltd to
turn over to the new administrator
de bonis non, he ought have an oppor-
tunity to settle the accoiints of the
deceased and ascertain whether the
estate owes the latter. Ib.
Local codes define to some extent
the rights and liabilities of an ad-
ministrator de bonis non.
2. Wms. Exrs. 918, 935; Cubbidge
v. Boatwright, 1 Russ. Oh. Cas. 549;
Forniquet v. Forstall, 34 Miss. 37;
Cochran v. Thompson, 18 Tex. 652.
He may likewise maintain a bill in
equity, where tlie estate is insolvent,
to have a fraudulent sale of real es-
tate by his predecessor set aside, and
the deed cancelled. Forniquet v. For-
stall, supra; Todd v. Willis, 66 TtX.
704, 1 S. W. 803. But cf. Thompson
v. Buckner, 2 Hill Ch. (S. C.) 499.
The South Carolina rule appears to
be difl'erent. Steele v. Atkinson, 14
S. C. 154, 37 Am. Rep. 728. And it
is there held that a fraudulent collu-
sion to misapply assets may be as-
sailed by creditors and distributees,
but not by the successor in the trust.
Ib.
A purchaser not privy to the fraud
cannot be thus denuded of his title.
Before enforcing a claim against the
estate of the former executor or ad-
ministrator the latter's accountability
should be determined in probate
court. 67 Vt. 485, 32 A. 473.
3. Whitaker v. Whitaker, 12 Lea,
393. See § 1408.
4. Stair v. York Nat. Bank. 55
Penn. St. 364, 93 Am. Dec. 759.
5. Langford v. Mahoney, 4 Dru. &
War. 81; Wms. Exrs. 916.
1449
§ 1409
EXECFTOKS AXD ADMIXISTEATORS.
[PAET IV»
mortgaged, subject to the usual equities.^ He is not estopped by
the illegal acts of his predecessor.'' And he may sue the latter, al-
though there are no creditors, and the object of his administration
is to protect the rights of heirs and legatees or distributees.^ In
general, he may institute proceedings, in law or equity, as justice
may require, for personal assets which remain unadministered; ^
6. Hendrick v. Gidney, 114 X. C.
543, 19 S. E. 598.
7. Bell V. Speight, 11 Humph. 451.
8. Scott V. Crews, 72 Mo. 261. The
next of kin should not sue the repre-
sentative of the predecessor: but the
administrator de bonis non should.
Ham V. Kornegay, 85 X. C. 119. See
§ 1408.
9. Wms. Exrs. 916, and Perkins's
note. The husband of a sole dis-
tributee of the intestate cannot resist
a rL'covery by such administrator ou
the ground that he has paid all the
debts and taken possession of the per-
sonal property. Spencer v. Rutledge,
11 Ala. 590. Xor can the sole dis-
tributee. And see Elliott v. Kemp, 7
M. & W. 306.
If an administrator, after his re-
moval from the ofTice. collects money
recovered by him as administrator, hi-
may be sued in assumpsit by the ad-
ministrator de bonis non, as for
money liad and received to the latter's
use. Salter v. Cain, 7 Ala. 478.
Money collected by the former repre-
sentative's attorney on a demand
placed in his hands is not assets to
be claimed directly by the new repre-
Bcntative, but should be accounted for
by tlie former representative. Sloan
V. Johnson, 14 Sm. & M. 47. Assump-
sit does not lie against an adminis-
trator de bonis non, in his represen-
tative character, to recover money
received by him from his predecessor,
arising from the sale of property be-
longing to the estate which was ex-
empt from sale. Godbold v. Roberts,
20 Ala. 354. An original judgment,
not recovered by the predecessor ia
his representative character, the ad-
ministrator de bonis non cannot sue
upon nor treat as assets. Alxander
V. Raney, 8 Ark. 324. As to recover-
ing a debt which was due from the
original representative to the origi-
nal decedent, see Kelsey v. Smith. 2
Miss. 68. At common law an admin-
istrator de bonis non could not have
a sci)-c facias upon a judgment ob-
tained by the original executor or
administrator. Stat. 17 Car. II. c. 8,
§ 2, removes this disability in mod -rn
English practice; Wms. Exrs. 898,
920; and it does not generally obtain
in the United States.
The administrator de bonis non
should not institute proceedings
against widow and heirs of a de-
ceased predecessor, but against the
predecessor's persfinal representative.
Finn v. Hempstead, 24 Ark. 111. As
for proceedings to compel his prede-
cessor to return an inventory, see
Gaskins v. Hamraett, 32 Miss. 103.
An administrator de bonis non who
.sues on his pre<lecc9Sor's bond must
allege the facts authorizing him to
1450
CHAP. VI.] CO-ADMINISTRATION^ ETC. § 1409a
but the lien claim of his predecessor ought not to be disregarded.^
And statutes are found which enable him to procure aid in his
search from the probate court.^
§ 1409a. The same Subject.
An administrator de bonis non has the power, and is subject to
the responsibilities, of an original representative, with respect to
the estate left unadministered by his predecessor. He may sue on
promises made to a predecessor in his representative capacity.'
The final settling up of the estate devolves upon him ; and if the
predecessor be dead, the latter's representative should do nothing
more than close his dealings, and deliver over such assets as may
still be undisposed of, and the balance remaining on a just account-
ing, to the administrator de bonis non^ It is the duty, moreover,
of an administrator de bonis non to assume the defence of an action
brought against his predecessor on a contract of the deceased.^ He
may bring a writ of error on a judgment against his predecessor.^
He may institute chancery proceedings for foreclosure of a mort-
gage given to the deceased.^ For he is successor to all the legal
do so. Waterman v. Dockray, 78 Me. 4. Ferebee v. Baxter, 12 Ired. 84;
139, 3 A. 49. And see Slagle v. Ray v. Doughty, 4 Blackf. 115; Steen
Entrekin, 44 Ohio St. 637; 10 N. E. v. Steen, 25 Miss. 513. As to the
675. As to his proceeding against equity rule requiring the representa-
former bondsmen, see 123 Cal. 437; tive of a deceased executor to pay
66 P. 49. legacies out of funds in his hands, see
1. Perrin v. Judge, 49 Mich. 342; Tucker v. Green, 5 N. J. Eq. 380;
13 N. W. 767. Moore v. Smith, 5 N. J. Eq. 649;
2. Residuary legatees under a will Goodyear v. Bloodgood, 1 Barb. Ch.
cannot hold the administrator de 617; Saunders v. Gatlin, 1 Dev. &
bonis non to account for the waste or B. Eq. 86.
wrongful conversion of the estate by 5. National Bank v. Stanton, IIG
the former executor. Bliss v. Sea- Mass. 438.
man, 165 111. 422; United States v. 6. Dale v. Roosevelt, 8 Cow. 333.
Waller, 109 U. S. 258. And see Graves v. Flowers, 51 Ala.
3. Catherwood v. Chabaud, 1 B. & 402, 23 Am. Rep. 555.
C. 150; Wms. Exrs. 961; Shackelford 7. So, where the mortgagor was the
V. Runyan, 7 Humph. 141; Stair v. predecessor. Miller v. Donaldson. 17
York Nat. Bank, 55 Penn. St. 364; Ohio, 264. And see Brooks v. Smy-
93 Am. Dec. 759. ser, 48 Penn. St. 86. Cf. 47 A. 573.
1451
§ 1410 EXECUTOES A^^D ADMIXISTEATOES. [PAET IV-
rights and duties wliicli vested in bis predecessor as representative
of the estate, so far as may be, for procuring assets of tbe estate as
a result.^
Upon tbe deatb of a plaintiff suing as executor or administrator,
a revivor should be in tbe name of tbe administrator de bonis non
and not of tbe plaintiff's ovna. personal representative.^ And, in
general an action brought to recover assets bj a general executor
or administrator, who afterwards dies, resigns, or is removed, m'ay
be revived in tbe name of his successor.^ Where a representative
dies before settling the estate, tbe administrator de bonis non is the
proper party plaintiff or defendant in an action which would other-
wise be brought by or against the predecessor.'
§ 1410. The same Subject; Relation of Administrator de bonis
non to his Predecessor's Contracts, etc.
An administrator de bonis non cannot bring suit, as it is held,
for the price of goods of his decedent sold by a predecessor in
office; ^ since this constitutes rather a claim upon such predecessor
in connection with striking tbe balance upon bis probate accounts.
For loss or injury, moreover, arising out of an agreement made by
his predecessor in the line of duty, the remedy, if any, is against the
predecessor or bis representatives.* But, if tbe holder and in pos-
session, an administrator de bonis non may sue in his own name,
as such, on a note given to his predecessor as administrator or ex-
See Abemathie v. Rich, 99 N. E. 883, 2. North Carolina University v.
256 111. 166 (purchase for himself at Hughes, 90 N. C. 537. See also, as to
foreclosure). As to accounting in reviving suits in equity brought by a
another jurisdiction, see Sydnor v. predecessor, 7 Dana, 345, 32 Am. Dec.
Graves, 86 A. 341, 119 Md, 321. 96; 2 Vern. 237; 2 De G. M. & G. 1.
8. McGuinness v. Whalen, 17 R. I. 3. Calder v. Pyfer, 2 Cranch, C. C.
619. The distributee of the estate 430; Slaughter v. Froman, 5 T. B.
has not this right. 104 X. C. 180, Mon. 19, 17 Am. Dec. 33. And see
10 S. E. 183. Alexander v. Kaney, 8 Ark. 324; 46
9. Brasfield v. Cardwell, 7 Lea, 252. Ark. 453. But see same section, post.
1. Russell V. Erwin, 41 Ala. 292; 4. Hagthorp v. Neale, 7 Gill & J.
State V. Murray, 8 Ark. 199. 13, 26 Am. Dec. 594.
1452
CHAP. VI.] C0-ADMINISTRATI0?7^ ETC. § 1410'
ecutor.^ And where, in connection with a contract made on behalf
of the estate, the predecessor takes properly a bond for security,
the administrator de bonis noii may sue for a breach of the bond."
In assumpsit brought by the administrator de bonis non, the prom-
ise may be alleged as having been made to the former executor or
administrator.^ We have just seen that he may re-open the fraudu-
lent transactions of his predecessor and get back assets which were
transferred in breach of the trust.^
But the administrator de bonis non cannot re-open the transac-
tions which his predecesor has completed in fulfillment of his jusn
authority. While he does not represent his predecessor in the same
sense as his predecessor represented the decedent, he is bound by
his predecessor's acts so far as they were legal and valid and per-
formed in good faith ; while, according to the sounder reason, he is
bound no further.® He cannot disturb the title of a purchaser ac-
quired under an agreement with his predecessor in office, which the
latter was competent to make ; and, while in many respects there
is no privity between the original representative and an adminis-
trator de bonis non, the acts and admissions of the former within
the sphere of his proper functions are obligatory upon the latter
and upon the estate,^ And, upon the ground of privity, the suc-
cessor may be compelled to fulfil his predecessor's agreement for a
reasonable and bona fide sale of chattels ; ^ as, likewise, he may sue
5. Barron V. Vandvert, 13 Ala. 232 ; 87; Cochran v. Thompson, 18 Tex.
Burrus v. Boulbac, 2 Bush, 39; supra, 652; 0'Nea.ll v. Abney, 2 Bailey, 317;
§ 1293. Cf. Brooks v. Mastin, 69 Mo. Martin v. Ellerbe, 70 Ala. 326.
58. 1. Duncan v. Watson, 28 Miss. 187;
6. See Matthews v. Meek, 23 Ohio Rice (S. C.) Ch. 40, 33 Am. Dec. 74.
St. 272, where the question arose in Tlie estate comes to the administrator
connection with executing the trusts de bonis non subject to a sort of lien
under a will. in favor of the predecessor to this
7. Hirst V. Smith, 7 T. R. 1&2; extent, and operative for his indcm-
Wms. Exrs. 917; Sullivan v. Holker, nity accordingly. Supra, § 1260.
15 Mass. 374. And see Teague v. Dendy, 2 McCord
8. Supra, § 1409. Ch. 207, 16 Am. Dec. 643.
9. Forniquet v. Forstall, 34 Miss. 2. Hirst v. Smith, 7 T. R. 183.
1453
§ 1410 EXECUTOES AXD ADMIXISTRATOBS. [tAET IV.
in respect of promises and contracts made to his predecessor as a
representative, where the proceeds will be assets.^
Upon the general principles of equity, it is held that an admin-
istrator de bonis non will not be permitted to repudiate a just con-
tract of his predecessor without compensating the party injured
for all loss induced by the contract.* And following the usual rule
of administration, such administrator cannot himself contract a
debt so as to bind directly his decedent's estate.^
How far, too, the administrator de bonis non may pursue assets
not specifically identified as belonging to the estate, is still a matter
of question, except in States whose legislation has defined liberally
the powers of an administrator de bonis non. Under his commis-
sion, such an official was rather circumscribed according to the
earlier precedents. And while equity exercises a broad authority
in modem times for tracing out trust funds, and, notwithstanding
the want of ear-marks, devoting them to the practical purposes of
the trust to which they fairly belonged, a suit instituted at common
law pursues a narrower line. 'Not only the conversion of funds by
the predecessor may obstruct his successor, but the strict legal doc-
trine appears to be, that whenever the property in any of the assets
of the deceased has been so changed as to vest in the predecessor, in
his individual capacity, the legal title thereto will devolve upon his
own executor or administrator at his death, and not upon the ad-
ministrator de bonis non; ^ or, supposing the predecessor to have
resigned or been removed, he continues the legal owner until equity
interposes to decree the title difi"erently. It is not just to maintain
individual ownership by the personal representative in all cases,
3. Moseley v. Rendell, L. R. 6 Q. 3 Kob. 298; Wma. Exrs. 918; Harney
r>. 338; commenting upon Boling- v. Dutoher, 15 Mo. 89, 55 Am. Dec.
broke v. Kerr, L. R. 1 Ex. 222. 131, and cases cited; Nicolay v. Fritz-
4. Cock V. Carson, 38 Tex. 284; chie,. 40 Mo. 69. That equity inclines
supra, § 1360. differently, see 2 Frcem. 139; Skeff-
5. McBeth v. Smith, 1 Const. (S. ington v. Budd, 3 Y. & Coll. 1; 9 CI.
C.) 676. & Fin. 220, opinions by Lords Cotten-
6. Drue v. Baylie, 1 Freem. 462; liam and others.
1454
CHAP. VI.] CO-ADMINISTRATION^ "ETC. § 1411
nor, especially, to allow deposits and securities standing in tlie
name of the trust, or easily identified as so belonging, to be put to
paying his individual creditors ; and any sucli conclusion our mod-
ern courts of probate and equity, and the legislature besides, will
be found to oppose/ Much of the legal inconsistency to which mod-
ern probate law is exposed arises, doubtless, from the doctrine of
modern development which charges the personal representative in-
dividually and immediately with his own contract on behalf of the
estate, instead of the estate itself; the rigid consequence proving
sometimes beneficial to the estate and sometimes disastrous. For
wherever the administrator de bonis non seeks to recover at law,
as assets of the estate, a debt founded upon a legal and individual
privity between the debtor and his predecessor, he is obstructed in
his common-law remedies.*
§ 1411. Suit on Negotiable Instrument as concerns Administra-
tion de Bonis non.
A note payable to A. B., executor (or administrator) of C. D.,
is said to be payable to A. B. personally, the words " executor,"
7. See Stair v. York Nat. Bank, 55 holder, or else surrendering it for
Penn. St. 364, 93 Am. Dec. 759; cancellation. And it was further
King V. Green, 2 Stew. 133; Stevens held that where a transaction was
V. Goodell, 3 Met. 343. And see § the same as if his predecessor had.
1330; 98 N. Y. 511. been paid in full what was due the
8. In Brooks v. Mastin, 69 Mo. 58, estate, and had re-deposited with the
an administrator de bonis non under- defendant part of the money, the de-
took to sue upon a debt originally fendant would be l^ally liable to the
owing the decedent, for which the de- predecessor, and the predecessor lia-
fendant had delivered his own prom- ble over to the plaintiff, but that
issory note in favor of the predeces- there would be no liability as between
sors "as administrators;" but he the defendant and the plaintiff,
could not produce the note. It was An administrator de bonis non may
held that the plaintiff could not re- sue his predecessor's bond for assets
cover on the note without showing in the hands of the predecessor not
that it had come into his possession; accounted for. Summary probate pro-
nor on the original consideration, ceedings, etc., defined. State v. Mor-
without either showing that the note rison, 148 S. W. 907, 244 Mo. 193.
had not been paid to the lawful
1455
§ 1411 EXECUTOES AKD ADMi::^ISTPuATORS. [PAET IV.
etc., being merely descriptive. On the death of A. B., therefore,
the suit is properly revived in the name of his own personal repre-
sentative ; at all events, if he holds possession, and if there be no
averment of assets.^ But this ride should not interfere with the
right of an administrator de bonis non to receive possession of the
unadministered assets of the estate he represents ; and, accord-
ingly, such administrator is held capable of suing, as such, upon
notes or other evidences of debt payable in terms to his predecessor
in the administration, as executor or administrator, provided he
make proper averment as to the facts, and produce or account for
the instniment/ Where, by general indorsement and delivery, or
otherwise, the note became assets payable to bearer, the adminis-
trator de bonis non is permitted to sue as holder.^ "Where, however,
the note belonging to the estate was taken in the individual name
of the former executor or administrator, or, for other cause, the ad-
ministrator de bonis non cannot produce the instrument as bearer
and aver title, an action at law apparently cannot be maintained ;
for the legal title vests rather in his predecessor's personal repre-
sentative, on his death. Yet here, on the ground that the adminis-
trator de bonis non is entitled to the equitable control of the debt
and its collection, he may rightfully prosecute his suit in equity.^
It is held that an administrator de sue, the representative of the original
honis non is not entitled to the pos- executor or administrator may not
session of a note given to the former sue. By Lord Tenterden, in Cather-
representative as such. Miller v. Al- wood v. Chabaud, supra; Wms. Exrs.
exander, 1 Hill Ch. (S. C.) 25. 920.
9. Cravens v. Logan, 7 Ark. 103; 2. Cathenvood v. Chabaud, 1 B. &
Cook v. Holmes, 29 Mo. 61 ; 77 Am. C. 150. Here the suit was permitted
Dec. 548; Roy v. Squier, 48 A. 2.33, to be brouglit by such administrator
61 N. J. Eq. 182; Arrington v. Hair, in his representative capacity. Tliat
19 Ala. 243. See supra, § 1293, as the bearer may sue in his own name,
to an original representative's right by virtue of rightful possession, we
to sue upon such an instrument. have already stated in the text. And
1. Catherwood v. Chabaud, 1 B. & see Saflford v. Banks, 69 Ga. 389.
O. 150; Barron v. Vandvert, 13 .Ma. 3. Burrus v. Roulhac, 2 Bush, 39.
232. It does not follow that bocauso Cf. Brooks v. Mastin, 69 Mo. 58.
the administrator de bonis non may
1456
CHAP. VI.] CO-ADMIXISXr^VTIOX, ETC. § 1413
§ 1412. Administrator de Bonis non bound to observe Good Faith
and Prudence, like Other Administrators.
The administrator de bonis non is 'bound to observe good faitb,
and to conform to the usual standard of diligence and care, as re-
gards collecting, procuring, and distributing the assets not already
administered ; but he is no more an insurer of tlie estate than a
general representative.* If he faithfully performs his own trust
he cannot be made to suffer loss by reason of any predecessor's de-
fault; nor is he chargeable for property which, notwithstanding
such faithful performance, fails to come into his hands." The re-
vival of a judgment rendered against the former representative
may be made to reach assets in the hands of the successor ; but
it cannot be made the foundation of a suit against the latter and
his sureties as for the successor's waste.®
§ 1413. Administrator de Bonis non with Will annexed.
Powers and duties vested in the executor, as such, and not per-
sonally, generally devolve upon an administrator de bonis non with
the will annexed,^ as well as upon an administrator with the will
annexed.^
If the predecessor resigns or is removed from office before the
final settlement of the estate, and an administrator de bonis non
4. Supra, § 1315; Wilkinson v. In some States, under the local
Hunter, 37 Ala. 268; Eubank v. code, an administrator de bonis non
Clark, 78 Ala. 73. must advertise and hold himself lia-
5. Smithers v. Hooper, 23 Md. 273; ble for the presentment of claims
Reyburn v. Ruggles, 23 Mo. 339; somewhat as an original administra-
Weeks v. Love, 19 Ala. 25. A decree tor. But, subject to such provisions,
directing property, in the hands of if the debts have all been paid, the
an administrator de bonis non, to be administrator should be held to an
taken to satisfy a defalcation of a expeditious distribution and winding
preceding administrator, is erroneous. up of the estate. See Alexander v.
Anderson v. Miller, 6 J. J. Marsh. Stewart, 8 Gill & J. 226; Cover v.
568. Cover, 16 Md. 1.
6. RuflF V. Smith, 31 Miss. 59; 7. Blake v. Dexter, 12 Cush. 559.
Bliss v. Seaman, 165 111. 422, 46 N. 8. See § 1407.
E 279; United States v. Walker, 109
V. S. 258.
92 1457
14:14:
EXECUTOKS AXD ADMIXISTR-ITORS.
[PAKT IV.
with the will annexed is aj^pointed in his place, the latter becomes,
immediately upon receiving his credentials, the sole representative
of the estate of the deceased, and is entitled to all the assets then
in the hands of the former, belonging to the estate; and this, not-
withstanding the time of paying moneys to the persons ultimately
entitled to receive them has not vet arrived.^ But he does not suc-
ceed to powers and duties which lie outside the ordinary scope of
an executor's functions, or such as are discretionary, unless the tes-
tor has clearly granted commensurate authority.^
§ 1414. Rights, Duties, and Liabilities of Temporary and Special
Administrators, etc.
FourtJdy, as to temporary and special administrators, what has
•ilready been said in connection with their appointment may suffi-
ciently indicate the scope of powers and liabilities pertaining to
these several classes of trusts.^ The general executor or adminis-
trator, when qualified, succeeds to the rights of a special adminis-
9. Pinney v. Barnes, 17 Conn. 420.
1. An administrator de bonis non
with the will annexed is under the
same presumed disability as an ad-
ministrator with the will annexed, as
concerns the execution of a personal
trust. Supra, § 1407; Kniglit v.
Loorais, 30 Me. 204; Ross v. Barclay,
18 Penn. St. 179; Warfield v. Brand,
1.3 Bush, 77; Vardeman v. Ross, 36
Tex. Ill; supra, § 1128; Rubottom v.
Morrow, 24 Ind. 202, 87 Am. Dec.
1^324; Ingle v. Jones, 9 Wallace,
486, 19 L. Ed. 621. That an
administrator de bonis non with
will annexed has no concern with
property to whose use a legatoe
for life or next of kin is al-
refuly specifically entitled, if entithd
under the will, see Place, Re, 1 Kedf.
Sur. 276; Brownlee v. Lockwood, 20
N. J. ]']q. 23'J. And so, conversely,
a direction to executors as executors,
and not upon a personal confidence,
may be executed by such fiduciary.
King V. Talbert, 36 Miss. 367; 01-
wine's Appeal, 4 W. & S. 492. And
see Mathews v. Meek, 23 Ohio St.
272; Triggs v. Daniel, 2 Bibb, 301;
Newsom v. Newsom, 3 Ired. Eq. 411.
Ecjuity must sanction the power in
case of doubt. 63 Md. 542. See Mo-
Shane's Will, 132 N. Y. S. 470.
Where the will confers a power of
sale of property upon any one legally
qualified to administer tlie estate, thi.s
administrator may exercise it. Rol-
lins V. Rice, 59 N. H. 493; Cohea v.
Johnson, 69 Miss. 46; 185 Penn. St.
279. 39 A. 956. And see § 1407. Cf.
Frisl)y v. Withers. 61 Tex. 134. And
see Williams v. Williams. 136 N. Y.
S. 990; Powell V. Foster, 71 Vt. 160.
2. Hupra, §§ 1132-1135.
1458
CHAP. VI.]
co-administratio:n^, etc.
1415
trator; ^ and, if the latter duly account and turn over the assets or
their proceeds to him, having conducted himself with reasonable
discretion and honesty, the courts do not appear inclined to permit
third parties, and those who dealt with such temporary official, to
take advantage of acts committed by him in excess of his authority.*
Local statutes largely define such rights, duties, and liabilities.^
§ 1415. Validity of Qualified Representative's Acts does not de-
pend upon his Own Designation of the Ofiice.
We may add, that, in general, the validity of a personal repre-
sentative's acts depends on whether they were within the scope of
hi& authority as granted ; not on whether he designated himself by
one title or another.** And this is a principle available for absolv-
3. Cowles V. Hayes, 71 N. C. 231;
Powell V. Foster, 71 Vt. 160, 44 A.
98.
4. See Von Schmidt v. Bourn, 50
Cal. 616; supra, § 1190. A special
administrator under the New York
code may receive permission to pay a
debt if the surrogate is satisfied of
the propriety. 3 Dem. 285. But not
those of one side in the litigation
which gave rise to his appointment.
2 Dem. 264. He may maintain a bill
in equity to redeem from a mortgage
where the decedent's right to redeem
might be barred before a general ad-
ministrator could be qualified. Lib-
ley V. Cobb, 76 Me. 781. But he can-
not mortgage real estate of the de-
cedent. Duryea v. Mackey, 151 N. Y.
204, 45 N. E. 458. Nor can he make
even a partial distribution. 106 Cal.
427, 39 P. 805.
Missouri statute as to such admin-
istrators not unconstitutional. Ro
Bards v. Lamb. 127 U. S. 802; § 1135.
5. See American Surety Co. v. Gas-
kill, 82 A. 218, 85 Vt. 358 (termina-
tion of functions) ; Rabbett v. Con-
nolly, 133 N. W. 1060, 153 Iowa, 607.
See Swan Re, 143 N. Y. S. 910 (can-
not pay a claim even thougli a com-
mon-law court orders liim) ; Chatta-
nooga R. V. Morrison, 79 S. E. 903,
140 G-a. 769 (may enjoin for seizure
of land, but cannot collect damages).
6. Thus, it does not affect the case
that one who was only a curator or
special administrator, styled himself
as a general administrator. Morgan
V. Locke, 28 La. Ann. 806.
Where a public administrator re-
ceives letters of administration on the
estate of one who left relatives in the
country, he acts not as public admin-
istrator, but as general administra-
tor. 2 Dem. (N. Y.) 650. A public
administrator cannot take charge of
an estate on the allegation of fraudu-
lent conversion by a foreign adminis-
trator; but it is the creditors and dis-
tributees who should proceed. Mc-
Cabe V. Lewis, 76 Mo. 296. As to
suing a predecessor, see State v. King,
76 Mo. 510.
1459
§ 1416 EXECUTORS A^'D ADMIXISTKATOKS. [PAKT IV,
ing sureties on the representative's official bond, where the latter
takes a fund to which he was not legally entitled in his qualified
official character,"
§ 1416. Negligence, etc., by Various Representatives in Succes-
sion.
A bill in equity, which includes several successive administra-
tors, is not multifarious, in a suit to settle an estate.^ There may
be culpable negligence or misconduct as to assets, so as to charge
various representatives in succession.^
7. Warfield v. Brand, 13 Bush, 77. administrator of a surety upon his
8. Johnson v. Molsbee, 5 Lea, 445. predecessor's bond may be reached
9. For the rule of determining their by the suit of the administrator de
respective liabilities in such cases, see bonis non. State v. Porter, 9 Ind.
Lacy T. Stamper, 27 Gratt. 42. The 343.
1460
PART V.
PAYMENT AND DISTRIBUTION.
CHAPTER I.
DEBTS AND CLAIMS UPON THE ESTATE.
§ 1417. Executor or Administrator is bound to pay Debts,
Claims, etc.
So far as assets may have readied his hands in due course, every
executor or administrator is bound to administer the estate accord-
ing to law, by paying the debts, claims, and charges upon it, in
legal order of preference, before making any distribution. This duty
is enjoined upon him by law, by his oath and bond, and by a sound
public policy, which treats a decedent's estate as a fimd, subject to
all lawful debts and demands, and to all reasonable charges in-
curred by reason of his death. Legatees and distributees, as a rule,
are postponed to all such claimants; their satisfaction being out
of the surplus, if any, which remains ; which surplus, rather than
the gross assets, represents the true fortune left by the deceased
person ; though, as we shall see, priorities exist even as among lega-
tees.^ At the same time, it is the bounden duty of every representa-
tive to protect his decedent's estate against all unjust or excessive
claims presented.^
Although this winding up of a deceased person's affairs corre-
sponds considerably to the striking of a balance, such as one might
have made with his creditors, were he alive, there are essential
points of difference : thus, statutes place special limitations to the
presentation of claims against the estate of a deceased person ;
1. McNair'3 Appeal, 4 Rawle, 148; 7 La. Ann. 232; Hamlin v. Mansfield,
Mcintosh V. Humbleton, 35 Ga. 95; 88 Me. 131; 33 A. 788.
89 Am. Dec. 276; Dean v. Portis, 11 2. 175 111. App. 246; § 1431 post.
Ala. 104; Union Bank v. McDonougli,
1461
§ 141S EXECUTORS AXD ADMIXISTEATORS. [PAET V...
charges, siicli as those of funeral and administration, and widow's
allowances, are here regarded, in additioii to what were strictly
debts owing by the deceased ; assets are marshalled, moreover, and
preferences, sometimes, accorded among debts and charges upon
the decedent's estate, after a method peculiar to administration.
All these points of difference will appear in the course of the pres-
ent chapter.
But the paramount authority of a statute which establishes an
equality among seasonable creditors of the same degree must be re-
spected. ^0 testator can so discriminate of choice among his
creditors as to change the legal rules of priority among them in the
settlement of his estate ; he cannot postpone the debt of higher rank
to that of a lower, nor create a preference among debts of equal
degTee.^ Xor has the probate court any inherent authority to vary
the legal rules of priority.* So, too, the usual consequences of
delay and laches on the creditor's part, in omitting timely present-
ment and prosecution of his demand, cannot be averted by general
directions in a will, or the order of a probate court ; ^ though local
codes afford equitable relief to the tardy creditor under proper cir-
cumstances,* and, saving the priority of seasonable creditors, even
a testator might put his own creditor on the footing of a specific
legatee by apt language in his will.'^
§ 1418. Notice of Appointment; Presentation of Claims; Stat-
utes of Special Limitations.
Statutes in various American States now provide that executors
3. Turner v. Cox, 8 Moore, P. C. 5. Collamore v. Wilder, 9 Kan. 67;
288; Moore v. Ryers, 65 N. C. 240; .57 Iowa, 353, 10 N. W. 677; 72 Ind.
Mason v. Man, 3 Desau. 16; People 120.
V. Phelps, 78 III. 147. Of course, a G. See Baldwin v. Dougherty, 39
decedent cannot by will relieve his Iowa, 50; Burroughs v. MeLain, 37
estate from liability for his debts. Iowa, 189; Miller v. Harrison, 34 N.
Planter's Association v. Harris, 131 J. Eq. 374; Winegar v. Newland, 44
S. W. 949, 95 Ark. 222. Mich. 307, 6 N. W. 841; Greaves Re,
4. Tompkins v. Weeks, 26 Cal. 50; 18 Ch. D. 551.
.Tenkins v. Jenkins, 63 Ind. 120; 7. The general rule appears to bo
Thompson v. Taylor, 71 N. Y. 217. that only claims tliat might have
1402
CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE.
§ 1418
and administrators shall presently give public notice of their ap-
pointment, by advertisement or otherwise, within a fixed time.^
The main object of such legislation is to facilitate the speedy settle-
ment of each deceased person's estate, by raising a special legal
barrier to claims and limiting the opportunity of creditors to share
in its assets which have been discovei-ed and brought together ; for
where the public notice has been duly given, the executor or admin-
istrator, as such statutes declare explicitly, cannot be held to an-
swer to the suit of any creditor of the deceased after a specified
brief period, save so far as new assets may afterward have come to
hand.^ In this manner claimants are compelled, regardless of the
usual rules of limitation, to present their claims upon the estate
within six months, one year, or two or more years, according as the
local act may have prescribed, or else be barred.^
been recovered from the decedent
himself can be recovered from the es-
tate. 68 Vt. 507; 29 A. 810.
8. Supra, §§ 1389-1391.
9. For the computation of time in
such cases, see tlie language of the
local statute. Wooden v. Cowles, 11
Conn. 292; Henderson v. IMey, 1 Sm.
& M. 9. In Massachusetts, public
notice is to be given within three
months from the appointment, and
the barrier is thus raised in two
years. Affidavit of notice is to be
filed in the probate registry, as the
Massachusetts statute provides; but
the fact of due notice may be proved
by oral evidence as well. Henry v.
Estey, 13 Gray, 336. The statute
provides for giving the notice after-
wards, on order of the court, where
by accident or mistake the executor
or administrator failed to do so in
regular course; in whicli case the
limitation runs from tlie time of such
order. Mass. Gen. Stats, c. 97, §§ 3,
4. See also Hawkins v. Ridenliour,
13 Mo. 125; Dolbeer v. Casey, 19
Barb. 149; Lee v. Patrick, 9 Ired. L.
135. In different States the period
of limitations will be found to vary.
The form of such notices is usu;.lly
fixed by statute and standing rules
of the probate court; the fact of one's
appointment being stated, with a de-
mand upon all persons indebted to
make payment, and all persons having
claims to present them. Gilbert v.
Little, 2 Ohio St. 156. The precise
time within which claims should bo
presented need not be explicitly
stated. lb.; May v. Vann, 15 Fla.
553.
See Marshall v. Plow Co., 54 So.
948, 99 Miss. 284; 132 N. Y. S. 99
(purpose of the notice).
1. Hawkins v. Ridenhour, 13 Mo.
125; 6 Gill, 430; Mass. Gen. Stats.
697, §§ 1, 2; 9 Ired. L. 135; 44 Conn.
450. In some States the statute re-
quirement is pronounced directory
merely. Hooper v. Bryant, 3 Yerg. 1.
Special administrators, with func-
1463
§ 1418
EXECUTOES AXD ADMINISTRATORS.
[part V.
Statutes of tlii« character may expressly or by inference require
the presentation of demands against the estate within the prescribed
period. This special barrier operates, notwithstanding an admin-
istrator's absence from the State; " and also as against non-resident
as well as resident claimants,^ for the policy is to benefit the estate
under local jurisdiction. So, too, it is held that an administrator's
promise to pay such barred claim will not make the claim binding
upon the decedent's estate, nor take it out of the statute.* Nor can.
the claimant who has inexcusably neglected to pursue his claim
upon the estate, so as to avoid the barrier, sue legatees, heirs, or kin-
dred in respect of the property they may have derived through the
decedent.^ In certain States the exhibition of a claim, properly au-
thenticated, to the executor or administrator, or a demand upon
tions limited to collections, etc., are
not liable to actions, and hence need
not give notice. Erwin v. Branch
Bank, 14 Ala. 307. But provision is
in some States made that an admin-
istrator de bonis non shall be liable
for two years after qualifying, unless
the creditor's action was barred be-
fore the previous administration ter-
minated Mass. Gen. Stats, c. 97, §§
12, 14.
Provision is often made for the case
of a creditor of the deceased, whose
right of action does not accrue within
the two years, where the executor or
administrator gives statute notice.
Mass. Gen. Stats, c. 97, § 8; Bacon
V. Pomeroy, 104 Mass. 577; 25 Minn.
22. So for infants in some codes:
or the court may extend for " good
cause." Except for such saving pro-
visions, an executor or administrator
who has given his notice becomes ab-
solved from liability as such at the
expiration of the statute period. 6
Cush. 235; 13 Gray, 559. As to a
creditor's bill in equity for relief in
such cases, see 2 Allen, 445^
That there are no claims against a
decedent's estate cannot be judicially
determined before the expiration of
the statute period locally allowed for
filing claims. 107 Iowa, 384, 77 N.
W. 883.
2. 6 Ark. 14; 37 Tex. 34; Lowe v.
Jones. 15 Ala. 545.
3. Edwin v. Turner, 6 Ark. 14; 101
Wis. 494, 77 N. W. 883.
4. Branch Bank v. Hawkins, 12 Ala.
755; 25 Miss. 501. Supra, §§ 1389,
1390.
5. Cincinnati R. v. Heaston, 43
Ind. 177; 1 Bailey Ch. 437; 12 Iowa,
52. Local statutes provide for ad-
mitting later claims which had been
deferred with good excuse. Mass.
Gen. Stats, c. 97; 22 Cal. 95. Ex-
cuses are recognized in some other in-
stances. North v. Walker, 66 Mo.
453; Senat v. Findley, 51 Iowa. 20,
50 N. W. 575. And see Sampson v.
Sampson, 63 Me. 328.
1464
€nAP. I.] DEBTS AND CLAIMS UPON THE ESTATE.
1419
liim, arrests the statute of non-claim ; ^ or, the local code contem-
plating a presentment of all claims in the probate court for classi-
fication and allowance, a creditor can only be paid out of assets
subsequently discovered, unless he duly files his claim against
original assets within the period fixed by the statute/ But, gener-
ally, the same statute barrier applies as to the time for present-
ing or suing upon a demand against a decedent's estate.^ And a
testator by creating an express trust in his will for his creditors
may take their claims out of the operation of the statute.^
§ 1419. The same Subject.
The claims and demands, whose suit or presentation within the
statute period are thus contemplated, appear in general to be, all
claims that could be asserted against the estate in a court of law
or equity, existing at the time of the death of the deceased, or com-
6. 2 Humph. 565; 33 Ala. 258; 7
ria. 301; 29 Ark. 238. The time of
subsequent presentment to the pro-
bate court for classification is not
necessarily limited. lb. An actual
presentation of the claim is not al-
ways necessary; for, if within the
prescribed time the administrator or
executor has notice or knowledge of
it, this may be shown to charge him.
Ellis V. Carlisle, 8 Sm. & M. 552;
Little V. Little, 36 N. H. 224; 2 Ind.
174; 10 Tex. 197; 9 How. (N. Y.)
Pr. 350. But see 58 Ala. 25. Notice
to an administrator of the present-
ment of a demand at the county court
may suflSce. 24 Mo. 527. See also
Hammett v. Starkweather, 47 Conn.
439. In New York, a claim duly pre-
sented to the representative and not
objected to nor proposed to be re-
ferred, becomes a liquidated and un-
disputed claim, and on application to
the surrogate to direct payment he
only inquires whether there are
proper assets to be applied. Lambert
V. Craft, 98 N. Y. 342. A note not
yet due may be proved against the es-
tate of an indorsee who waived pre-
sentment and notice. 122 HI. 396; 3
Am. St. Rep. 496, 13 N. E. 651; 140
N. Y. S. 842. As to sufficient present-
ment where the representative cannot
be found, see 130 P. 372, 72 Wash.
403.
7. Russell V. Hubbard, 59 HI. 335;
42 Ind. 485; 58 Tenn. 170.
8. Cornes v. Wilkin, 21 N. Y. 428;
6 Cush. 235. Opportunity to re-open
the period is sometimes afforded by
statute. 32 Vt. 176.
Statutes of this character may be
considered, not as general statutes of
limitations, but rather as special
regulations of probate law which im-
pose the loss of the claim if the party
fails to proceed duly witliin the time
prescribed. Standifer v. Hubbard, 39
Tex. 417. But cf. 1 Ired. Eq. 92.
9. Abbay v. Hill, 64 Miss. 340.
14G5
§ 1419 EXECUTORS AXD ADMIXISTEATOES. [PAET V,
ing iuto existence at anj time after his death, and before the ex-
piration of the statute period, including chaims running to cer-
tain maturity, although not yet payable/ The statute barrier has
been maintained strenuously against common-law actions brought
against the legal representative, which were founded in inchoate
and contingent claims, such as donnant warranties and the like,
but have not been brought, and could not have been, within tho
statute period.^ Under a bill of equity or legislative proviso, such
cases of hardship are sometimes, however, overcome.^ And it is
held that these inchoate and contingent claims may be enforced
against the heir or distributee, where the claimant is too late to
make the executor or administrator liable.^ One who seeks to en-
force a trust against specific property must seek relief in a court
of equity, and can hardly be called a creditor within the meaning
of the probate law ; ^ nor can one who in order to establish a
claim, must institute in equity a discovery and accounting.® But
a debt or note which is secured, as, for instance, by mortgage,
ought, in order to be enforced apart from such security, to be thus
sued upon or presented/
1. Walker v. Byers, 14 Ark. 246; 5. Gunter v. Janes, 9 Cal. 643;
67 Cal. 637, 8 P. 497. Vandever v. Freeman, 20 Tex. 333,
2. As in Holden v. Fletcher, 6 70 Am. Dec. 391.
Cush. 235. And see Bemis v. Bemis, 6. O'Toole v. Hurley, 73 N. W. 805 ,
13 Gray, 559; 104 Iowa, 264, 73 N. 115 Mich. 517.
W. 596; Pico v. De la Guerra, 18 Cal. 7. Willis v. Farley, 24 Cal. 490.
422. An infant's claim is within the See 67 Cal. 178, 7 P. 477. A claim
statute barrier, or those of others un- against the estate of a deceased part-
der legal disability. Williams v. nor is included under the statute.
Conrad, 11 Humph. 412. Fillyan v. Laverty, 3 Fla. 72. See,
3. Garfield v. Bemis, 2 Allen, 445. further, 97 N. W. 808, 70 Neb. 613;
4. Walker v. Byers, 14 Ark. 246; 55 A. 364, 75 Vt. 264; 117 Mich. 602,
Mann v. Everts, 64 Wis. 372, 25 N. 76 N. W. 97 (oven though inventory
W. 209. See Selover v. Coe, 63 N". be not fil.d) ; 121 P. 100, 70 Wash
Y. 438. The Massachusetts statute 498; 137 N. Y. S. 978; 116 P. 47. 159
provides expressly for suit against Cal. 155 (court cannot relieve from
heirs and next of kin, or devisees and consequences of claimant's neglect) ;
legatees, witliin one year after thu 130 P. 372, 72 Wnsli. 403 (nor can
cause of antion accrues. Mass. Gen. the representative).
Stats, c. 97. Under some stiitutcs a cnditor
1466
ciiAr.
I-]
DEBTS AND CLAIIMS UPON THE ESTATE.
§ 1419
But such statutes appear confined usually to demands which ac-
crue against the deceased person, so as not to apply to any demands
arising by contract, express or implied, with the executor or admin-
istrator himself. For claims of the latter sort, a personal represen-
tative has notice and opportunity to provide, so as to save himself
harmless ; and these are affected by common rules of limitations,^
and of recoupment or set-off.®
whose right of action will not accrue
within the period limited for settling
the estate, should petition to the pro-
bate court, setting forth a statement
of his claim; and the court, if it ap-
pears that the claim is justly due
from the estate, will order the execu-
tor or administrator to retain assets
sufficient; or a person interested in
the estate may give bond, with sure-
ties, to the creditor, for due payment
of the claim. Mass. Gen. Stats, c. 97;
128 Mass. 528. See Brewster v. Ken-
drick, 17 Iowa, 479; Greene v. Dyer,
32 Me. 460; Empire Life Ins. Co. v.
Mason, 78 S. E. 935, 140 Ga. 141.
As to purely contingent claims, see
101 N. E. 1050, 258 111. 584; 114 P.
310, 49 CJolo. 593. As to rights of
action " accruing " after the death of
the testate or intestate, presentment
may be made before they actually ma-
ture. 49 Conn. 251. A claim based
on a deceased surety's obligation in a
guardian's bond need not be pre-
sented. 60 Miss. 987. A claim which
will certainly be due when A. dies is
not a " contingent " claim. 78 Ala.
130.
A claim which the executor or ad-
ministrator objects to ought to be
properly proved. 63 Miss. 31; 38 La.
Ann. 947; 67 How. Pr. 346. What a
" succinct statement " of the claim
must show. See 102 Ind. 521; 104 ib.
327. Filing of a claim against the
11G7
deceased constitutes a sufTicicnt de-
mand. 104 Ind. 327. One may lose
his right as some codes run, if he
files but fails to prove. 67 Iowa, 458.
A claim against one's estate which
might have been made against the
person while he lived, and yet was not,
should be viewed with suspicion. 159
Penn. St. 590.
8. Brown v. Porter, 7 Humph. 373;
Perry v. Field, 40 Ark. 175. See
Ames V. Jackson, 115 Mass. 508; also
Boltwood V. Miller, 112 Mich. 657, 71
N. W. 506.
These non-claims statutes, together
with the local decisions construing
them, are very numerous. The prac-
titioner is little interested, however,
except in knowing the practice of hia
own State. For an English statute
somewhat corresponding, see Act 22
and 23 Vict. c. 35; 24 W. R. 371.
While the representative may ordi-
narily relieve a debt not barred in his
decedent's lifetime from the general
statute of limitations, as contrasted
with this special one, yet in a bill to
marshal assets he cannot relieve some
and hold others barred. 72 Ga. 495;
supra, §§ 1389-1391. He cannot waive
the bar of non-claim. Ib. ; 77 Ala.
553; supra, § 1389; 131 N.. Y. S. 1041;
Schwarz v. Harris, 206 F. 936.
9. 112 Mich. 657, 71 N. W. See,
further, § 1390a.
§ 1420 EXECUTORS AXD ADMINISTRATORS. [PART V^
§ 1420. Presentation of Claims; Statute Methods considered.
Claims upon an estate must be exhibited for allowance as the-
local statute directs. In many States tliev sliould be presented first
to the executor or administrator; whose settlement of the same in
due season will obviate all further proceedings on the claimant's
part ; while his refusal or neglect to settle will throw the claimant
back upon the usual remedies at law ; the probate tribunal passing,
not upon individual claims, but only upon the administration ac-
count, with its various items; nor in advance of a payment, but
after payment has been made.'
But, in some parts of the United -States, the probate court exer-
cises a direct supeiwision in the establishment of individual claims
upon a decedent's estate, to a greater or less degree.^ As some local
statutes prescribe, the claimant must first present his claim for al-
lowance to the representative, upon whose refusal application may
be made to the probate court, with notice to him. In various other
States, the practice is for the probate court to allow each separate
claim before it is paid.^ A probate court does not commonly order
allowance, however, in any such sense as to prevent the legal repre^
sentative from contesting the claim ; * nor, in general, so as to im-
pair the validity of the creditor's claim, or his right of action else-
where." One object of requiring presentment to the probate court
1. O'Donnell v. Hermann, 42 Iowa, There may be commissioners pass
60; 39 N. J. Eq. 501. Statutes re- upon the claims as some local statutes
quire sometimes notice or a demand provide. § 1434 post. And see 119
upon the executor or administrator Ala. 235 (bringing a suit).
before suing. 4 Bush, 405; Busb. (N. 4. Magee v. Vedder, 6 Barb. 352;
C. ) L. 127. Swenson v. Walker, 3 Tex. 93 ; Propst
2. Hudson v. Breeding, 7 Ark. 445; v. Meadows, 13 111. 157; Scroogs v.
6 Ark. 437. Tutt, 20 Kan. 271.
3. Thayer v. Clark, 48 Barb. 243; 5. Branch Bank v. Rhew, 37 Miss.
Danzey v. Swinney, 7 Tex. 617; 23 110; Stanford v. Stanford, 42 Ind.
Cal. 362; Dixon v. Buell, 21 111. 203. 485; Rosenthal v. Magee, 41 111. 371.
A court of equity will not assume But non-presentment may afford the
jurisdiction of a claim in general un- estate a defence to an action brought
til tlie claimant sliall have exhibited against it to recover the demand,
it and liad it allowed in the county Wliitmore v. San Francisco Union, 50
court. Blancluird v. Williamson, 70 Cal. 145.
111. G47. In States where claims are duly
1408
CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE.
1420
is the due clasgification and record of the admitted demands upon
the estate.® The general policy indicated is, that neither the ad-
ministrator nor the probate court shall have power to settle a claim
not authenticated, presented, allowed, and approved, according to
the statute. The representative may object to any such claim, and
oppose its admission.'^ But a claim admitted by the executor or
administrator, and thus allowed and classified by the probate court,
has, in many States, the dignity and effect of a judgment.^
filed in court, it is usual for the
statute to require that they be authen-
ticated by the affidavit of the creditor
before they can be allowed against
the estate. The admission of an ad-
ministrator that the claim is just, or
an order for its payment by the pro-
bate court, is a sufficient establish-
ment in Indiana. 3 Ind. 504. What-
ever is a good defence against a suit
on a claim is equally good against its
allowance by the probate court. 24
Miss. 173; 2 Greene (Iowa) 208. A
claim against an estate has no ju-
dicial standing in the probate court
until it has been allowed and ap-
proved; and until it has been re-
jected, either by the administrator or
the probate jivdge, it has no judicial
standing in any other court. 7 Tex.
617. Statute directions as to verifi-
cation should be followed.
6. Small sums may be paid by the
executor or administrator, under
some statutes, without a previous al-
lowance by the court; but such re-
quirements cannot be evaded by split-
ting a single and entire demand into
demands of the excepted amount.
Clawson v. McCune, 20 Kan. 337. See
2 Greene (Iowa) 595.
7. 4 Redf. 490. The verbal state-
ments of an executor or administra-
tor that the claim is all right and
will be paid as soon as he has money,
will not excuse the creditor from a
formal presentment of the claim. 40
N. J. Eq. 59; 67 Iowa, 458, 25 N. W.
704. Of. Van Ness v. Kenyon, 101
N. E. 881, 208 N. Y. 228 (executor's
offer to arbitrate). In Louisiana the
representative is estopped from con-
testing a claim which he has placed
on the list for settlement, unless he
can show error on his part caused by
the other party's fraud. 35 La. Ann.
858. A claim duly allowed by an ad-
ministrator need not be allowed by a
successor again. 39 Ohio St. 112.
Probate courts may upon general
statute notice make needful orders
for settlement and distribution with-
out the actual intervention of all par-
ties interested. And the remedy of a
party aggrieved by its classification
of claims for payment is by appeal ;
not by original suit elsewhere. 61
Tex. 213.
Claims are thus ranged in various
classes agreeably to the local code.
Allowance of a claim is not conclu-
sive of its validity, under many codes.
Where one is administrator of both
the creditor and debtor estate, no
formal presentment and allowance is
needful. 39 Ohio St. 112. Nor need
claims already of record, such as a
mortgage, nor claims for public taxes,
be formally presented, under some
codes.
1469
§ 1420
EXECUTORS AXD ADMINISTRATOKS,
[PAKT V.
This filing of claims is uot an uncommon incident of bankruptcy
and insolvencv practice; but, with reference to the estate of a de-
cedent which proves insolvent, ' a statutory course is marked out
by our several codes. And even in States where an ordinary ex-
ecutor can pay no claims that have not been judicially approved
and must defend the estate, and require proof; an executor who
has given bond as residuary legatee can settle claims at his discre-
tion and no one can question his acts in this respect but his sureties
when his course has brought them into trouble.^ "Where upon ap-
peal from a probate court a claim is allowed and the representative
has sufficient assets, he should pay the same as though it had been
originally allowed by the probate court/
8. Tate v. Norton. 94 U. S. Supr.
746, 24 L. Ed. 222; Carter v. Engles,
35 Ark. 205.
Claims of non-resident creditors
may be admitted with those of resi-
dent creditors under a rule of comity,
and with like restrictions. Findley
V. Gidney, 75 N. C. 395; Miner v.
Austin, 45 Iowa, 221; Howard v.
Leavell, 10 Bush. 481.
In New York a decree of the surro-
gate court establishing the indebted-
ness of an estate appears to be bind-
ing upon the legal representative, and
conclusive, both as to the indebted-
ness and the obligation of the repre-
sentative to make payment as decreed.
Thayer v. Clark, 48 Barb. 243. As to
the effect of an unliquidated and
undisputed claim, see Lambert v.
Craft, 98 N. Y. 342. The evidence to
sustain a claim need not appear of
record; and a probate decree ascer-
taining and allowing a claim, and
ordering the executor or administra-
tor to pay it, is not a technical
" judgment " without authority, but
a mere ascertainment of its validity
and amount, which remains to be
satisfied according to law. Little v,
Sinnett, 7 Iowa, 324. And see Ma-
graw V. McGlynn, 26 Cal. 420. But
cf. 144 Mo. 258, 46 S. W. 135, where
an allowance by court has the force
of a judgment.
9. Durffee v. Abbott, 50 Mich. 278,
15 N. W. 454: Wheeler v. Hatheway,
58 Mich. 77, 24 N. W. 780.
1. Berkey v. Judd, 31 Minn. 271,
17 N. W. 618.
See, further, 83 N. E. 194, 231 111.
492; 151 S. W. 497, 167 Mo. App.
365 (insufficient filing in court) :
Dewey v. Noyes, 84 A. 935, 76 N. H.
493 (sufficient presentment to execu-
tor's attorney) ; 49 Colo. 593, 114 P.
310 (action pending at decedent's
death does not dispense with pre-
sentment) ; 79 A. 177, 84 Conn. 202
(sufficient presentment) ; 134 S. W.
1193, 97 Ark. 54<fi; 132 N. Y. S. 99;
Smith V. Wilson. 81 A. 851, 79 N.
J. Eq. 310 (exoneration of mortgage).
As to taxes assessed, and wlietlier
the court is to " allow " such claims,
see 157 S. W. 589, 250 Mo. f.8G.
1470
CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE. § 1421
§ 1420a. The same Subject.
The probate court in the allowance of claims, is not usually gov-
erned by the technical rules of the common law, but may allow on
equitable grounds.^ Nor is the party who presents a written claim
strictly confined to the particular grounds stated.^ And the same
may be said of presentation and notice to the representative himself,
substance rather than form being essential in such procedure.* A
claim against the estate may be good and sufficient though the
amount due be uncertain.^ And demands subsisting at the time of
the decedent's death should, if possible, be presented under statute,
whether matured or not.^
A probate court should discourage vexatious litigation involving
a decedent's estate and protect the estate from unnecessary costs
and expense attending the assertion and settlement of claims.'
§ 1421. Funeral Charges and their Priority.
Funeral charges are not, to speak accurately, debts due from the
deceased, but charges which the law, out of decency, imposes upon
the estate ; and so far as these are reasonable in amount, they take
legal priority of all such debts, as, likewise, do the administration
charges.* A decent burial should comport with the condition of the
deceased and the amount of his fortune. Justice to creditors, as
well as to one's surviving family, demands, however, that there
shall be no extravagant outlay to their loss.^ If due regard to the
character and social or public standing of the deceased requires a
2. Hoblit V. Sandmeyer, 166 111. See 136 S. W. 681, 233 Mo. 607.
App. 431. 7. Petry v. Petry, 134 S. W. 922,
3. 164 111. App. 98. 142 Ky. 564. See, further, 69 S. E.
4. But tlie nature as well as amount 482, 135 Ga. 324 (demand liquidated
of the claim should be stated. Hur- in decedent's lifetime).
ley V. Farnsworth, 78 A. 291, 107 8. To these, local American statutes
Me. 306. See Potter v. Harvey, 82 add expenses of last illness, as among
A. 812, 34 R. I. 71. preferred claims. See post, § 1423.
5. Elizalde v. Murphy, 126 P. 978, 9. 2 Bl. Com. 508 ; Wms. Exrs. 968 ;
163 Cal. 686 (deceased surety on a Parker v. Lewis, 2 Dev. L, 21; Flint-
bond), ham's Appeal, 11 S. & E. 16.
6. 134 S. W. 1187, 97 Ark. 492.
1471
§ 1421 EXECUTORS A^'D ADMIXISTRATORS. [PAUT V..
more costlv funeral, public or private liberality should defray tlio
additional cost.
The standard of reasonable burial expenses is established by
local and contemporary usage ; for religious and humane sentiment
carries the cost far beyond what mere sanitary rules might pre-
scribe, and that sentiment should not be outraged. In strictness,.
obser\'ed Lord Holt in an early case, no funeral expenses are allow-
able in an insolvent estate, except for the coffin, ringing the bell,
and the fees of the clerk and bearers ; pall and ornaments are not
included.^ This statement, though inappropriate to our times, sug-
gests that the line be drawn so as to include what is necessary in
the sense of giving a Christian burial, excluding the ornamental
accompaniments and provision for mourners and strangers which,
they might make for themselves. Thus, at the present day, the un-
dertaker's-and grave-digger's necessary services should be allowed
in addition to those pertaining to the religious exercises ; also the^
cost of a plain coffin or casket, the conveyance of the remains to the
grave, and the grave itself; all these being essential to giving the^
remains a decent funeral. On the other hand, mutes, weepers, pall-
bearers, in needless array; carriages for mourners, and especially
carriages for casual strangers; floral decorations, refreshments,
hired musical performances; and the processional accompaniments
of a funeral, — all these, though appropriate, often, to the burial of
those who are presumed to have left good estates, are inappropriate
to the poor, the lowly, and those whose creditors must virtually
pay or contribute to the cost. Public demonstrations which increase
the outlay, the attendance of societies to which the deceased be-
longed, military and civic escorts, and the like, are always properly
borne by such bodies or by the public thus gratified, rather than im-
posed as a charge upon a private estate which cannot readily bear
the burden.^
1. Shelley's Case, 1 Salk. 296. Ecc. L. 348, 8th cd. As to a suit of
Biirnwcll su^f,'0Rt9 that the expenses clothes to lay out the deceased in, see
of the slirf)ud and dip}?ing the prave 2 Tenn. Ch. 3G9.
ought to have been added. 4 Burn. 2. Hewett v. Bronson, 5 Daly, 1;
1472
CHAP. T.] DEBTS AND CLAIMS UPON THE ESTATE. § 1421
The religious jDersuasion of the deceased, or, perhaps, of his
immediate family, may be fairly considered in determining the
character and items of cost in the funeral; thus, Jewish, Christian,
and Pagan usages differ on these points, likewise Catholic and
Protestant, nor do all Protestant sects agree among themselves.
National habits, and those of one's birthplace, besides, deserve con-
sideration, whatever be the last domicile.^ The presumption is that
the deceased has desired to be buried in accordance with the usages
and customs, civil and religious, of the society to which he belonged,
and so as to retain its respect.* But the last express wishes of the
deceased may w^ell be complied with, in directing the style and
character of the luneral, provided these wishes be not extravagant
or unreasonable, and no injustice be done to creditors and others in
interest ; ^ and the sanction, too, of one's immediate family is au
element of some importance in arrangements so delicate, which
necessarily depend more upon the presumed than the actual condi-
tion of one's estate.^
Keeping these elements of distinction in view, the standard of
allowance for funeral expenses may be often regulated most con-
veniently by fixing a sum total. Thus, the English practice, prior to
Lord Hardwicke's day, was to allow at law only 40s, then 5 pounds,
and afterwards 10 pounds, for the funeral of a deceased insolvent; ^
but English cases, by no means modem, justify the allowance of
20 pounds in such cases.^ There are American decisions bearing}
ShaeflFer v. ShaeflFer, 54 Md. 679, 39 Exrs. 971. But a vicious usage can-
Am. Rep. 406. If public or benev- not be set up. ShaeflFer v. ShaeflFer,
olcnt societies defray part of the cost, 54 Md. 679.
only the excess can be charged to the 5. See Stag v. Punter, 3 Atk. 119;
estate. 11 Phila. 135. Cost of a Donald v. McWhorter, 44 Miss. 102.
commandery parade disallowed in 124 6. Statutes sometimes define locally
N. Y. 388, 26 N. E. 554. on such points. 64 N. E. 90, 158 Ind.
3, See 106 N. Y. S. 1135 (expenses 64.
of "wake" allowed; 124 N. Y. S. 7. Bull. N. P. 143; Stag v. Punter,
26 (a wife's funeral expense). 3 Atk. 119.
4. Hewett v. Bronson, 5 Daly, 1. 8. Bayley, J., in Hancock v. Pod-
See, as to the funeral obsequies of a more, 1 B. & Ad. 260; Yardley v.
Hindoo testator, 1 Knapp, 245; Wms. Arnold, 1 C. & M. 434.
93 1473
§ 1421 EXECUTOKS AXD ad:mixistr.vtors. [part v.
upon this point.^ The standard varies essentially, however, with
the age and locality; as between city and country or polished and
simple communities; and, in general, according to the testator's
station in life; all this aiding, doubtless, in fixing a scale of prices
which, even in such simple items as the cost of a coffin, may vary
greatly. Though one should prove to have died insolvent, his so-
cial condition and apparent means might yet have justified a fun-
eral in accordance with his expectations and those of his kindred ;
especially, if the personal representative had not reason at the time
for suspecting the estate insolvent^ Special circumstances, too,
may justify an expenditure unusually great in one or more particu-
lars ; as if one's local fame should forbid a funeral strictly private y
or if one should die far from home or far from his proper burial-
place ; ^ though, even here, the limited means at the fair disposal
of the executor or administrator should not be transcended in care-
less disregard of legal claimants, but public or private benefactions
should make up the rest.*
Items not, perhaps, strictly within the rule of funeral charges,
have been allowed from an estate, out of regard to particular cir-
cumstances or ,a decedent's last directions. Thus a moderate allow-
ance is sometimes made in the executor's or administrator's ac-
counts for the mourning apparel of the widow and children ; ^ or
oven for " mourning rings " distributed among near relatives ; ^
though, in the case of an insolvent estate, especially where tlie
9. Where the estate is insolvent, thirty miles distant from the place
not more than $200 should be allowed of his death. See also Hancock v.
for a funeral. 28 La. Ann. 149. No Podmore, 1 B. & Ad. 260.
more than $300 under any such cir- 4. Such expenses are not limitod hy
cumstances. 3 MacArthur, 537. one's will in amount, where the fun-
1. 3 Atk. 119; Wms. Exrs. 969, eral is duly contracted for in ig-
970. norance of such tostanu-ntary re-
2. Tree. Ch. 261. atriction. 92 Cal. 203.
3. In Stag V. Punter, 3 Atk. 119, 5. 2 Cas. temp. I^e, 508; Wood's
Lord Hardwicke allowed £60 for the Estate, 1 Ashm. 314; Holbert's Sue-
funeral expenses of a testator, dying cession, 3 La. Ann. 436.
apyiarontly with a good furtune, who 6. Paice v. Arclibishop of Canter-
had directed his burial at a place bury, 14 Vcs. 364.
1474
CHAP. I.] DEBTS AXD CLAIMS UPON THE ESTATE.
§ 1421
insolvent was a person of no distinction, such charges seem Iiardly
proper.^ And, over carriages used for the immediate family of
the deceased, and other incidental charges of trivial amount, vexa-
tious dispute is undesirable; * for, if one dies without leaving the
means of paying his creditors, those naturally dependent upon him
must needs suffer, too. Foolish and extravagant funerals ordered
by those not immediately concerned in the estate are not to bind
the representative and the immediate family of the deceased.
Claims founded in the expenses incurred by relatives of the de-
ceased in attending the funeral, their services and time, are not to
be favored in settling a decedent's estate ; for these are presumably
offices of respect and tenderness, gratuitously rendered, and neither
purchased nor solicited.^ But it may be otherwise where services
valuable to the estate are rendered, upon the same occasion, and
7. Johnson v. Baker, 2 C. & P. 207;
Flintham's Estate, 11 S. & R. 16.
8. Save so far as one surviving
spouse may be legally bound to bury
the other (see Schoul. Hus. & Wife,
§§ 412, 437) ; a claim might some-
times be set up in connection with
providing for a funeral at a private
house, sufficient to furnish a consid-
eration for troublesome special items,
of small consequence, which creditors
sometimes incline to dispute.
The common law rule makes it the
husband's duty to defray the expense
of burying his deceased wife in a
suitable manner, and he ought not to
charge her estate with the cost.
Staples's Appeal, 52 Conn. 425. So
is it with a minor child; and where
an insolvent and his wife and young
child while travelling in a distant
State were all killed by the same
accident, the expenses of sending
home and burying all three were al-
lowed as a preferred claim against
the estate of the insolvent. Sullivan
V. Horner, 41 N. J. Eq. 299, 7 A. 411 ;
147
Schoul. Dom. Rel. § 199. Under an
Ohio statute a married woman's es-
tate may be charged and such ex-
penses, even though a husband leav-
ing property should survive her. Mc-
Clellan v. Filson, 44 Ohio St. 184, 58
Am. Rep. 814, 5 N. E. 861. The same
effect has been given in chancery
where the wife has separate property.
M'Myn, Re, 33 Ch. D. 575. See, fur-
ther, 53 N. J. Eq. 341, 31 A. 210, 48
S. E. 124, 120 Ga. 606; Walton v.
Hall, 66 Vt. 455, 29 A. 803 (as to
widow) ; Bauman v. Ambruster, 55
So. 760, 129 La. 191.
Under the New York code the per-
sonal representative becomes liable for
funeral charges (reasonable, but not
not unreasonable in extent) on an
implied j)romise. Wingersky's Estate,
134 N. Y. S. 877; Aloran's Estate, 134
N. Y. S. (96S (incurred by a
stranger ) . The surrogate may allow
an undertaker's proper charge. 134
N. Y. S. 874.
9. Lund v. Lund, 41 N. H. 355.
§ 1422 EXECUTORS AXD ADMIXISTRATORS. [PAKT V.
especially bv one not otlierwise bound in honor or rclationsliip to
attend ; or where the attendance was at the express request of the
dying person; and these, according to the special circumstances,
may be classed among funeral, last illness, or administration
charges. Thus, extraordinary cases may arise where the expense
of summoning kindred from a distance, or of accompanying the
remains to or from some distant point, or of procuring some need-
ful or desired attendance, as for opening the will or examining pa-
pers, may properly be allowed in the accounts of an executor or
administrator/
In general, allowances for a funeral depend much upon whether
the estate was insolvent or not, and whether items in the account
presented are objected to or not by parties interested. For those
entitled to the surplus of an ample estate may all agree to bear the
cost of a most extravagant funeral.
§ 1422. Funeral Charges; Place of Final Interment, Gravestone,
etc.
Funeral charges, in the literal sense, are always to be incurred
in haste, usually without the means of ascertaining the true state
of the decedent's fortune or who may rightfully share it, and often
at the discretion of a surviving spouse, or of some near relative or
friend, without sanction from an undisclosed or at least unaccred-
ited legal representative.- But the first funeral charges are not
necessarily the last; and those last, the representative should fix
1. Jennison v. Ilapgood, 10 Pick. ratified by tlie executor or adminis
77; Mann v. Lawrence, 3 Bradf. Sur. trator subsequently appointed, is im
424; Wall's A.ppeal, 38 Penn. St. 464; plied by law from the peculiar ne
03 A. 143, 78 Vt. 414. Dinner and cessities of the situation. Fogg v,
horse feed, provided for those attend- Holbrook, 88 Me. 169; 87 Me. 324
ing a funeral, are lield improper items And, in general, see Loftis v. Loftis
for allowance. Shaeffer v. Shaeffer, 94 Tenn. 232, 28 S. W. 1091; Joy v
54 Md. 679, 39 Am. Rep. 406. Fesler. 67 N. H. 237. 29 A. 448; Dud
2. See §§ 1193, 1398, supra. The ley v. Sanborn. 159 Mass. 185. 34 N
liability of an estate for reasonable E. 181; Waters v. Register, 56 S. E.
and proper funeral and burial ex- 849, 76 S. C. 132.
penses, altliough neither ordered nor
147G
-CHAr. I.] DEBTS AND CLAIMS UPON THE ESTATE. § 1422
iipou with deliberation. Circumstances may justify a temporary
interment, pending the final settlement of the estate and the decis-
ion as to last resting place for the decedent.
The purchase of a burial lot or tomb, when, as often happens, the
•deceased owned none at his death, may thus become a matter for
delicate adjustment between one's legal representative and mem-
bei*s of his immediate family; the last having usually the right of
selection, and claiming from the estate, in return, what, according
to the decedent's condition and circumstances, would be a fair re-
muneration for his own place of final interment, and as to them-
selves holding the title to the lot or tomb, with the remaining burial
rights therein, as statute or the cemetery rules may determine.^
As to any estate, and an insolvent's estate in particular, there is no
legal reason why the executor or administrator should pay in full
for the land or a tomb in which others than the decedent are to have
burial rights ; while it is certain that for his own last resting-place
or burial right, a decedent's estate ought to be charged. Provisions
relating to the place of burial are frequently made, however, in
one's last will ; ^ and directions may thus be given by the general
ovmer as to the use and care of the lot his remains are to occupy.
The expense of fencing, preserving, and improving a lot, where
others are interred, is not justly chargeable otherwise upon the es-
tate of a particular occupant ; while public cemeteries are usually
inclosed at the cost of the company or the public.^ The choice of
a burial-place is regulated, to some extent, by the means and condi-
3. Providing a suitable place of and $6,000 was held not an unreason-
burial may, even to the extent of a able amount to expend for the monu-
burial lot, devolve upon the surviving ment. Cannon v. Apperson, 14 Lea,
spouse or family, so far as may be 553. See as to burial place, 132 P.
reasonable or just. Pettengill v. Ab- 1183, 89 Kan. 388.
bott, 167 Mass. 307, 45 N. E. 748. 5. Tuttle v. Robinson, 33 N. H. 104;
4. See C!ool v. Higgings, 23 N. J. Barclay's Estate, 11 Phila. 123.
Eq. 308; Luckey, Re, 4 Redf. 265. A Statutes regulate this subject to some
testator who directed by his will that extent. lb. $351 is not unreasonable
a suitable monument should be for a burial lot, where the estate
erected over his grave, left a large amounted to $13,000. 4Redf. (N. Y.)
fortune, in great part to charities: 265. See 3 Redf. 8.
1477
§ 1422 EXECUTOES AND ADMIXISTEATOES. [tAET V.
tion of the deceased, and the wishes of the immediate family. As
to its care, improvement, and preservation, moreover, sole owner-
ship may involve present liabilities whose recompense is to be
found in the sale of other burial rights later; nor does the title
necessarily vest in the executor or administrator, but rather in a
surviving spouse or heirs. Disinterment or reburial is justified in
a variety of suitable instances.®
A gravestone or monument is an item of cost allowable to a rea-
sonable amount in the settlement of the estate.'' Some sort of
marker, to identify and protect the remains, seems highly proper
in all cases ; but, beyond this, the choice takes so wide a range,
from the needful to the highly ornamental, that the discretion of
the court has often been invoked. The general rule of funeral
charges here applies, tliat no precise sum can be fixed, but the
standard must vary with local price and usage, the station in life
of the' deceased, and the extent of his fortune. Even as against
creditors, the expense of a modest gravestone has been allowed ;
though it is admitted that an estate can be settled in avoidance of
such outlay ; while it would appear that in some 'States no grave-
6. See 3 Dem. (N. Y.) 524; Wat- iate family, in this country, may
kins V. Romine, 106 Ind. 378, 7 N. E. affect the consideration of burial
193. The needless removal of an in- methods, in individual cases to be
testate's remains, against the wishes hereafter discussed, as well as the
of tlie immediate family is not to be question of expense,
favored. 106 Ind. 378. But removal 7. Local codes sometimes sanction
of one's remains from abroad, in case expressly the erection of suitable
of an ample estate, and in accordance monuments at the reasonable expense
with the last wishes of deceased, or of the estate; and this includes a
of his immediate family, is proper, power of doing what is needful to
Parry's Estate, 188 Penn. St. 38, 41 keep the monument in proper con-
A. 384, 68 Am. St. Rep. 850, 49 L. R. dition during the time of the admin-
A. 444. See Hinchcon's Estate, 116 istration. Durkin v. Langley, 167
P. 47, 159 Cal. 755 (removal of other Mass. 577, 46 N. E. 119. But, aside
remains to lot). Statutes some- from this, executors have been allowed
times compel a local reinterment for to make necessary repairs upon a
public reasons. tomb or monument although a pro-
Tbe ancient custom of cremation vision for such repairs, which turns
recently revived and sometimes sane- out insufficient, was made in the will,
tioncd by the decedent and his immed- Bell v. Briggs, 63 N. II. 592.
1478
CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE.
1422
stone can be cliarged to an insolvent estate against tlie consent of
creditors.^ As to statues and monuments of costly design, the ex-
ecutor or administrator ought either to have, besides an ample es-
tate, the explicit directions of the deceased as his warrant, or the
consent of the heirs, or the previous approbation of the probate
court ; and his safer and more natural course is, in general, to let
the family and those interested in the surplus, or nearest to the
deceased, fix upon something appropriate in structure, design, and
inscription ; binding the estate, on his part, only for a reasonable
proportion of the cost, if the cost be large, and requiring them to
stand responsible for any excess.^ Where the cost of a monmuent
8. See Brackett v. Tillotson, 4 N.
H. 208. Such a rule ought not, we
think, to be inflexible; but to vary
somewhat with circumstances, nor in
any case to exclude the cost of a
simple marker. Tombstones, in the
proportion of about $30 to an estate
of $3,000, have been allowed in var-
ious American cases. Lund v. Lund,
41 N. H. 355; Jennison v. Hapgood,
10 Pick. 77; Fairman's Appeal, 30
Conn. 205 ; Springsteen v. Samson, 32
N. Y. 714; Webb's Estate, 165 Penn.
St. 330, 30 A. 827, 44 Am. Eep. 666.
In an estate of $11,096, the executor's
allowance for a monument (the resi-
duary legatee opposing) was cut from
$1,455 to half that sum. 4 Redf. (N.
Y.) 95. An administrator may, on
his own contract, render the estate
liable for suitable gravestones, and
especially if the estate be not insolv-
ent. Ferrin v. Myrick, 41 N. Y. 315;
Porter's Estate, 77 Penn. St. 43. And
see Mass. Pub. Stats, c. 144, § 6.
An expensive monument, however, is
hardly to be erected at the sole dis-
cretion of a personal representative.
Butler, J., lays the rule down quite
cautiously on this point in Fairman's
Appeal, 30 Conn. 205. And Lund v.
Lund, 41 N. H. 355, disapproves of
the erection of expensive monuments
without the previous assent of the
heirs, etc. Special circumstances
ought to justify a liberal expenditure
of this kind; as where there is a fair
balance, but only distant relatives
who are so scattered and numerous,
that distribution will hardly justify
the cost, and the only relative who
can be easily consulted approves the
plan.
In general, the cost of erecting a
headstone at the grave may be al-
lowed to the representative as " fun-
eral expenses," but only to the extent
of providing for a decent burial, ac-
cording to the amount of the estate.
Owens V. Bloomer, 21 N. Y. Supr.
296. Nor can a widow of the deceased
bind the representative or the estate
for a monument erected on her own
responsibility and order. Foley v.
Bushway, 71 111. 386.
9. Where one leaves a good estate,
and no children or near kindred, the
cost of a handsome monument which
the widow desired may be allowed;
but pictures of the deceased, and
1479
1422
EXECUTORS AXD ADMINISTRATORS.
[part V.
is to be defrayed Idv friends of the deceased or the public, a simihir
mutual consultation and understanding is proper. Monuments and
other personal memorials for the
gratification of the living, are not
properly chargeable to the estate of
the dead. McGlinsey's Appeal, 14 S.
K. 64: Pistorius's Appeal. 53 Mich.
350, 19 N. W. 31. A delicate regard
for all tliose whose pecuniary inter-
ests are likely to be diminished by
the funeral charges should influence
the legal representative: but, at the
same time, if the estate be solvent,
he need not permit penurious and un-
feeling kindred to rob the deceased of
the last decent tributes to his mem-
ory. Funeral charges are, by legal
intendment, enough for decency and
no more; but, by the agreement of
those interested, and contributions by
them or others, outside of the estate,
or (if the estate be ample) under a
testator's express directions, the strict
legal limit may be far exceeded, and
expenses incurred, by way of memorial
to the deceased, which have no im-
mediate connection at all with fun-
eral or burial. In Bainbridge's
Appeal, 97 Penn. St. 482, the court
refused to control the discretion of an
executor in using the entire residue
of the estate, after paying certain
legacies, in erecting a monument;
such being tlie testator's direction in
his will.
The better opinion is that, the duty
thus fairly performed for the benefit
of the deceased, the expenses con-
stitute a charge upon his estate so
far as they were reasonable and
necessary; and that the law implies
a promise on tlip jjart of the executor
or administrator to pay tliem, so far
as the assets suflice for tiiis and the
other first preferred charges, includ-
ing his own ; not, however, to the
extent of compelling him to defray
them from his private means, where
he has disclaimed personal liability
and pleads the want of assets. Wms.
Exrs. 1788; Tugwell v. Heyman, 3
Camp. 298; Hapgood v. Houghton, 10
Pick. 154; Patterson v. Patterson, 59
N. Y. 574, 17 Am. St. Rep. 384, and
eases cited. See supra, § 1398. And
as to set-oflf, see 86 N. C. 158. One
who, in the absence or neglect of the
legal representative, incurs, from the
necessity of the case, and pays such
expenses, may avail himself of tliis
implied promise for his own reim-
bursement; and if the expenditure
conforms to his reasonable observa-
tion of the decedent's property, and
with the decedent's apparent condi-
tion in life, payment in full is proper,
consistently with the other first pre-
ferred claims, even though the estate
should turn out insolvent. Patterson
V. Patterson, supra; Rooney, Re, 3
Redf. (N. Y.) 15. If the expense be
not unreasonable the consent of the
next relative is not needful. Lutz v.
Gates. 62 Iowa, 513, 17 N. W. 747.
Especially if the widow desired it.
Pistorius's Appeal, 53 Mich. 350, 19
X. W. 31.
As to a debtor of the deceased who
furnislied an unsuitable coffin and
then tried to have its cost deducted
from the debt, see 92 N. C. 471.
But for what is not apparently
reasonable or necessary, as against
the estate, and especially in charges
like tliat of a monument, which may
be postponed until tlie a|)p()iiilment
1480
CHAP.
!•]
DEBTS AND CLAI^MS UPOX THE ESTATE.
§ 1421
memorials of tlie deceased, which have no connection with funeral
<3harges or the place of final inteniient, cannot, of course, be made
a burden upon the estate to the detriment of unwilling parties in
interest. But with or without the consent of these, the probate
•court may conclude how much should be expended.^
§ 1423. Other Preferred Claims; Administration Charges; Debts
of Last Sickness.
Administration charges rank with those of the funeral in taking
fl general precedence of creditors' demands. "Wliat administration
charges should thus be allowed, we shall best consider in a later
connection.^
Statutes in various States rank the necessary expenses of a de-
cedent's last sickness under preferred claims;^ though the rule is
of modern creation, nor does it to this day obtain in England.'* A
physician's services, proper medicines, the attendance of a nurse,
may be thus claimed ; and probably, if the last illness occurred in
of a legal representative, after the
condition of the estate was known,
the widow, relative, or stranger can-
not bind the estate or its representa-
tive upon any such in;plied promise.
Foley V. Bushway, 71 111. 386; Sam-
uel V. Thomas, 51 Wis. 549. Rather
does the expenditure bind the person
who took the responsibility of con-
tracting for it. Foley v. Bushway, 71
111. 386. That the administrator
knew the work was being done, and
did not object, is insufficient here to
charge him. lb. And see Lerch v.
Emmett, 44 Ind. 331. And one, like
a rich relative or friend, who incurs
funeral or burial charges upon his
own express undertaking to bear the
cost, cannot charge the estate after-
wards. See Coleby v. Coleby, 12 Jur.
N. S. 476.
Before the executor or adminis-
1481
trator can be sued on a demand for
funeral charges, it is held that he
should be notified, within a reason-
able time, of the amount due, with
proper items. Ward v. Jones, Busb.
L. 127; Gregory v. Hooker, 1 Hawks.
394. A physician's charge for a post
mortem examination, made on a cor-
oner's inquest, is not a proper claim
against the estate. Smith v. Mc-
Laughlin, 77 111. 596. Nor is a
charge for medical services rendered
to the family of the testate or in-
testate after his decease. Johnston
V. Morrow, 28 N. J. Eq. 327.
1. Crapo V. Armstrong, 61 Iowa,
697; 17 N. W. 41.
2. See post, Part VII.
3. Mass. Gen. Stats, c. 99, § 1;
Wilson V. Shearer. 9 Met. 507,
4. Wms. E.. . 968, 988.
§ 1424 EXECUTORS AXD ADMINISTRATORS. [pART V.
a stranger's house, a reasonable recompense for the use of prem-
ises, and injury done to beds and bedding, and under various spec-
ial circumstances, perhaps, food and personal services ; always,
however, rating such expenditures according to the place, charac-
ter, and extent of the last illness, and ranking all together. No
precise rule can be laid down as to the duration of one's last illness,
nor for the d^ree of attention paid; this must vary with the na-
ture of the disease and the situation of the patient.'' Unlike admin-
istration and funeral expenses, these are not charges growing out
of one's death, but rather debts due from the deceased for services
rendered him during his life ; " yet a similar necessity may cause
them to be rendered independently of one's consent, and a similar
policy favors their priority.^
§ 1424. These Preferred Claims rank together; Settlement in
Full or Ratably.
All charges and claims, whether pertaining to funeral or last
illness, which are of the same legal degree of preference, are to bo
paid out on the same footing; and so, may assume, in advance,
as to administration charges. And where the assets are not suffi-
cient to pay all these preferred claims in full, they must with little
formality be divided ratably ; ^ for the policy of our law does not
5. Percival v. McVoy, Dudley (S. See 134 N. Y. S. 974 (sistor-in-law's
C.) 337; Huse v. Brown, 8 Greenl. services in last illness); State Bank
167; Flitner v. Hanley, 18 Me. 270; v. Ross, 133 P. 538, 90 Kan. 423 (note
Elliott's Succession, 31 La. Ann. 31. of decedent to pay medical bill) ; Mer-
6. United States v. Eggleston, 4 rill v. Comstock, 143 N. W. 313, 154
Sawyer (U. S. Cir.) 199. Wis. 434.
7. We siiall see, hereafter, that the 8. See Bennett v. Ives, 30 Conn. 329.
statute allowance to a widow and But these preferred claims appear by
young children, in various States, may some codes to rank in consecutive
also take precedence of general debts order. Plart v. Jewett, 11 Iowa, 276.
due from the deceased person's estate. And statutes require their timely
C. 2, post. Under tlie Georgia code presentation. See Elliott's Succos-
the support of family for a year has sion, 31 La. Ann. 31. Funeral e.\-
precedence over tlie physician's bill. peuses and those of last illness rank
73 Ga. 741. As to a physician's stat- as a preferred claim; and the allow-
ute priority, see 50 La. Ann. 152, 840. ance of both as one item, if to the
1482
CHAP. I.] DEBTS AND CLAi:\rS UPON THE ESTATE. § 1426
favor declaring an estate insolvent merely for tlie sake of distrib-
uting assets among such claimants.^
§ 1425. General Payment of Debts ; Rule of Priority.
We now come to the general payment of debts and demands
against an estate. Where the assets are ample for the adjustment
of all claims in full, there can be little occasion for closely observ-
ing rules of legal priority ; this priority denoting, not the time for
payment, but the dignity of the claim. When, however, a deficiency
occurs, and the estate is a slender one, the executor or adminis-
trator should regard such rules carefully; for, if he pays an in-
ferior claimant in full, and leaves not enough afterwards to settle
all the superior claims which may in due time be presented, he
cannot plead a want of assets, but must respond out of his own
estate ; ^ and so pro rata as to other claims of equal dignity, for all
such should be paid proportionally alike.
Generally speaking, when the estate of a deceased person proves
insolvent or insufficient to meet all the demands presented, it shall,
after discliarging preferred claims, be applied to the payment of.
his debts in an order of classification prescribed by the local state-
ute. If there is not enough to pay the debts of any class, the cred-
itors of that class shall be paid pro rata; and no payment shall
be made to creditors of any class until all those of the preceding
class or classes, of whose claims the executor or administrator has
due notice, are fully paid.^
§ 1426. Rules of priority ; English Classes enumerated.
Under the English law, as formerly stated: (1) debts due the
same claimant, is not invalid. Booth 9. See post, § 1446.
V. Radford, 57 Mich. 357, 24 N. W. 1. 2 Bl. Com. 411; Wms. Exrs. 9S9.
102; McClellan v. Filson, 44 Ohio St. 2. Mass. Gen. Stats, c. 99; Wms.
184, 58 Am. Rep. 814, 5 N. E. 861. Exrs. 992: Moore v. Ryers, 65 N. C.
Funeral expenses are preferred to 240. Joint debts must be paid pari
judgments unless the statute is ex- passu with separate debts. Pearce v.
plicit. 41 N. J. Eq. 244, 3 A. 709. Cf. Cooke, 13 R. I. 184.
14 Phila. 569.
1483
§ 1426 EXECUTOES AXD ADM1J>*ISTRAT0ES. [pAET V.
crov/D, Lj record or specialty, occupy tlie first class, tliese taking
precedence of all dues to a private subject.^ (2) Xext come mis-
cellaneous debts to whicli particular statutes accord a certain pre-
cedence.* (3) To these succeed debts of record: among ^Ybicb judg-
ments or decrees rendered against the deceased are preferred both
to recognizances, or penal obligations of record, and the now obso-
lete secui'ities by statute, which were likewise a sort of bond by
record." (4) Debts by specialty follow, as on bonds, covenants,
and other instruments sealed and delivered ; under which head, by
construction, a debt for rent is included.*' (5) Last in order come
simple contract debts, or such as are founded in parol or writing,
not under seaL'
This enumeration carries the classification to an extreme limit.
And to pass over the demands of the second class, which are of a
purely arbitrary and exceptional kind, those of the third, fourth,
and fifth classes, must needs provoke much controversy. Thus, as
to the third class, judgments rendered against the decedent,
whether prior in point of time or not, are preferred to recognizances
and' statutes of that class, and of course to all debts by specialty or
simple contract; but the judgment must have been rendered in a
court of record ; ^ and the rank is accorded only to domestic and
not to foreign judgments.^ In English practice, a judgment which,
is entered against the decedent after his decease happening between
3. Wms. Exrs. 991-993; 2 Inst. 32; utes, it might be inferred that not
Cro. Eliz. 793; 3 Bac. Abr. tit. Exors. even crown debts shall take preced-
L. 2; (1897) 1 Ch. 673, Probate cnce. 6 Ves. 99.
duties are by statute placed on the 5. Wms. Exrs. 997-1009, and cases
footing of debts due to the crown. cited; 2 Bl. Com. 341.
Act 55 Geo. III. c. 184; Wms. Exrs. 6. 9 Co. 88 b; Wms. Exrs. 1010-
993. 1024.
4. Wms. Exrs. 994, 995; 6 Ves. 98, 7. Bac. Abr. tit. Exors. L. 2; Wms.
441, 804. Moneys owing the parish Exrs. 1025, 1026; 2 Bl. Com. 511.
by a deceased functionary, the regi- 8. As to what courts are courts of
mental dues of a deceased ofTicer or record, see Wms. Exrs. 997, 998; Holt
soldier, and claims of a " friendly v. Murray, 1 Sim. 485.
Hociety " on its deceased manager, are 9. 2 Vorn. 540: Walker v. Witter,
among tliose thus ranked. lb. From Dougl. 1 ; Harris v. Saunders, 4 ]>.
the language of some of these stat- & C. 411.
1484
CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE. § 142 G'
verdict and judgment, shall take priority like a judgment entered
during his lifetime ; for it is the judgment which was confessed by
the deceased, or obtained by compulsion against him, to which tho
law assigns superiority.^ But, as respects a judgment rendered
later, and in fact standing of record against the executor or admin-
istrator himself, no such priority applies ; for, as between the rep-
resentative and the creditor, the judgment must be satisfied by the
representaHve out of his own property, if the estate proves insuffi-
cient; while, as concerns the estate itself, the creditor stands su-
perior only to others whose claims were of equal degree with that
sued upon, by reason of his inferior diligence in prosecuting it.^
In-order to maintain their priority in the administration of tho'
estate, judgments against the deceased must, in modern practice,
be docketed ; ^ while, as among themselves, neither the cause of ac-
tion nor the order of docketing can give one judgment precedence
of another.'* A decree in equity obtained against the deceased, is
equivalent to a judgment at law, in respect of priority in the ad-
ministration ; but not if the decree did not conclusively ascertain a
sum actually due, but required an account, or related to some col-
lateral matter, such as foreclosing a mortgage.^ As for a recog-
nizance or security by statute, which, though an obligation or bond
of record, is postponed to judgments of record and decrees, there
must be a record or enrollment in order to place it above specialty
debts; independently of which foraiality, it should rank among,
them.*^
1. 5 Co. 28 b; Wms. Exrs. 998, judgment creditors, he who first sues
1740; Burnet v. Holden, 1 Mod. 6; out execution must be preferred, and
Colesbeck v. Peck, 2 Ld. Raym. 1280. the executor may elect to whom he
2. Wms. Exrs. 999, 1000; Ashley v. shall pay first. Wms. Exrs. 1004.
Pocock, 3 Atk. 308. 5. Prec. Ch. 79; Searle v. Lane, 2
3. See various statutes enumerated Vern. 89; 3 P. Wms. 401 n.; Wilson
in Wms. Exrs. 998-1003 ; Kemp v. v. Lady Dunsany, 18 Beav. 299 ; Wms.
Waddingham, L. R. 1 Q. B. 355; Stat. Exrs. 1005.
23 & 24 Vict. c. 38 ; Fuller v. Redman, 6. Bothomly v. Fairfax, 1 P. Wms.
26 Beav. 600. 334; Bac. Abr. Execution; Wms.
4. Wms. Exrs. 1004, 1740; Wentw. Exrs. 1006-1010.
Off. Ex. 269, 14th ed. But of several When two are bound jointly and
1485
§ 1427
EXECUTOES AXD ADMINISTRATORS.
[part V.
§ 1427. The same Subject.
As between specialty and simple contract debt5, under the fore-
going classification, it is not the mere recital in a deed, hut the obli-
gation operating by force of undertakings in an instrument under
seal which entitles the specialty debt to priority.^ And where one
who was bound with the deceased, as surety or co-obligor, pays the
bond, his claim upon the estate is held to be only that of a simple
contract creditor, inasmuch as the specialty itself has been paid
off ; ^ a legal refinement not commended by American courts, dis-
carded by a late English statute, and admitted to have no force
where the original bond still subsists,^ A demand founded in a
broken covenant, is a specialty debt, whether it be for damages
merely, or some specific sum ; ^ and brea-ches of trust may be simi-
larly regarded when committed by violation of the terms of the
sealed instrument,^ though not necessarily when conveyance was
made by deed to a trustee without covenant on his part.^ Debts by
severally, and upon the death of one
the other becomes his executor, the
latter may discharge the bond out of
the estate of the former; and it has
not been uncommon in England, when
one man is surety for another, for the
surety to be constituted executor of
the principal, that his indemnity may
be the better secured. Rogers v. Dan-
vers, 1 Freem. 128. But if the de-
ceased was bound by a purely joint
obligation, the survivor alone would
continue liable. Rogers v. Danvers, 1
Freem. 128; Richardson v. Horton, 6
Beav. 185. Equity does not favor
such construction, but rather that a
joint and several bond was intended.
7. Ivens v. Elwes, 3 Drew. 25 ; Wms.
Exrs. 1012; Lacara v. Mertins, 1 Ves.
Sen. 313; Robinson's Executor's Case,
6 De G. M. & G. 572.
8. Copis V. Middleton, 1 Turn. & 477.
R. 224; Priestman v. Tindal. 24 Beav.
244.
14.SG
9. 19 & 20 Vict. c. 97, § 5; Wms.
Exrs. 1013, 1014; Ware, Ex parte, 5
Rich. Eq. 473; Drake v. Coltraine,
Busb. L. 300; Howell v. Reams, 73
N. C. 391; Hodgson v. Shaw, 3 M.
& K. 183. The sum due on an ad-
ministration bond is not a specialty
debt due to the administrator de bonis
non. Parker v. Young, 6 Beav. 261.
1. Plumer v. Marchant, 3 Burr.
1380; Broome v. Monck, 10 Ves. 620;
Powdrell v. Jones, 2 Sm. & G. 305;
Wms. Exrs. 1017.
2. Gas. temp. Talb. 109; Benson v.
Benson, 1 P. Wms. 130; Turner v.
Wardle, 7 Sim. 80.
3. As a rule, it would appcxir tliat
breach of trust can constitute no
specialty debt, where the trustee has
not executed the deed. Wms. Exrs.
1020; Richardson v. Jenkins, 1 Drew.
CnAr, I.] DEBTS AND CLAIMS UPON THE ESTATE. § 1428
mortgage rank also with specialty debts, where there is a bond or
covenant for the payment of money ; otherwise, they constitute only
a simple contract debt with security/ Debts by specialty, due at
some future day, take priority of debts by simple contract, since
provision should be made for them; but obligations of indemnity
or other contingent debts by specialty, w^hich may never become
payable at all, cannot thus obstruct debts actually due of an in-
ferior rank; ^ though where the contingency happens by breach of
the condition, the security will stand like other specialty debts as
to assets then existing.^ Finally, simple contract debts embrace all-
which are founded in parol and written engagements not under
seal, including sums due on bills and promissory notes, and tran-
sactions by word of mouth. '^
Such was the dissatisfaction in later times upon these preferen-
tial distinctions between the specialty and simple contract debts of
deceased persons, that Parliament interfered, some years ago, with
an act abolishing all such priorities.^
§ 1428. Rules of Priority ; American Classes enumerated.
The American rules of priority among claimants, like those re-
lating to the insolvent estates of deceased persons, are fixed by local
statutes by no means uniform. But, in most parts of the United
States, the disposition has been to reduce the classification of a de-
ceased person's debts to the simplest system possible; thereby avoid-
4. 3 Lev. 57; Cro. Eliz. 315. judgment creditors, however, is still
5. See Wms. Exrs. 1022-1025; At- recognized. Smith v. Morgan, L. R.
kinson v. Grey, 1 Sm. & G. 577; 5 C. P. D. 337. See Shirreff v. Hast-
Collins V. Crouch, 13 Q. B. 542. ings, 25 W. R. 842, as to debts under
6. Cox V. Joseph, 5 T. R. 307; Wms. a lease. For the right of retainer
Exrs. 1024; Musson v. May, 3 Ves. under this act, see §§ 1439; 31 Cli. D.
& B. 194. 440. And in Hankey Re, (1899) 1
7. Wms. Exrs. 1025, 1026. Ch. 541, the act is distinctly con-
8. See Stat. 32 & 33 Vict. c. 46, strued as not permitting simple con-
which places specialty and simple tract creditors to be paid in full to
contract creditors on an equal footing the prejudice of specialty creditors,
as to the estates of all persons dying where the estate proves insolvent,
on and after January 1, 1870: Wms. See as to preferential payments, Sam-
Exrs. preface, 1011. The priority of son Re. (1906) 2 Ch. 584.
1487
§ 142S
EXECrTOES AND ADMIXISTRATOES.
[PAET V.
ing the close discrimination just noticed. Indeed, we may ascribe
in part the later English statute 32 & 33 Viet. c. 46, to the force of
American example; for the general tendency in the United States
has long been to rank specialty and simple contract debts (with,
perhaps, judgment debts besides) upon one and the same equal
footing.^ Xor do claims for rent appear to have been greatly re-
garded in this country as entitled to a preferred rank, because of
the incident of land tenure alone.^ Taxes only have the decided
preference accorded in the several States ; these claiming the usual
favor of public dues ; and debts entitled to a preference, under the
laws of the United States, taking precedence of State taxes.^
Special preferences are seldom favored in our probate legislation.
9. 2 Kent Com. 418, 419; cases
cited post.
1. Cooper V. Felter, 6 Lans. 485. As
to rent due for a pew, see Johnson v.
Corbett, 11 Paige, 265. But cf. 159
111. 311, 42 N. E. 844.
2. Under our federal constitution,
the United States has the right to
establish uniform laws on the sub-
ject of bankruptcies; a right which
is now regularly exercised. More-
over, the laws of the United States
control all State laws as concerns the
federal priority. United States v.
Duncan, 4 McLean, 607; Beaston v.
Farmers' Bank, 12 Pet. 102. In prac-
tice. Congress requires that debts due
from the deceased to the United States
shall first be satisfied, where the
estate is insufhcient to pay all debts
due from the deceased. This priority
of the United States extends of right
only to net proceeds, after the neces-
sary charge's of administration, etc.,
have been paid ; it is a priority as
among creditors. United States v.
Egglcston, 4 Sawyer, 199. It includes
the indebtedness of an indorser.
United States v. Fisher, 2 Cr. 358.
The estate of a deceased surety, on a
bond given to the United States,
settling with the United States, shall
be subrogated to its rights as con-
cerns the estate of the deceased prin-
cipal. U. S. Rev. Stats. § 3468.
As to State and local requirements,
taxes on real estate, paid for the con-
venience of heirs, are sometimes al-
lowable in accounts, but not taxes
assessed after partition, at all events.
77 Va. 820. When an administrator
does not need the lands of his in-
testate for the paj^ment of debts, it
is not his duty to pay the taxes
thereon. Reading v. Wier, 29 Kan.
429. Taxes on the land, water-rates,
etc., charged before tlie owner's de-
cease, may be properly paid by tlie
administrator, but not usually those
accruing afterwards. 13 Phila. 262,
289 ; 3 Dem. 369 ; 88 Ga. 364, 14 S. E.
596. A personal tax is a proper debt
for payment from a decedent's estate.
Jefferson's Estate, 35 Minn. 296, 28
N. W. 256; 139 Mo. 582, 39 S. W.
809; 73 Cal. 545, 15 P. 121. Taxes
against the decedent sliould be paid
at once after the funeral expenses.
1488
CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE.
5 1428
The American rule ^ appears to be to consider the rights of credi-
itors as fixed at the debtor's death, according to their due rank;
regardless of claims proved and pre-
sented. 63 Md. 465. Municipal
taxes paid in good faith and fairly,
though afterwards declared uncon-
stitutional or irregular, should be
allowed. 39 N. J. Eq. 258; 20 Fla.
292. Unpaid county taxes are in
some codes inferior to taxes due the
State, to widow's allowances, etc. 69
Ga. 326. And see 97 Iowa, 420, 66
N. VV. 744. As to alimony claim,
see 122 Cal. 462, 55 P. 249. In all
such cases cf. the local code carefully.
Debts " due to the public " have
sometimes a priority accorded by
statute, though not over liens gen-
eral or special. Baxter v. Baxter, 23
S. C. 114. See 138 N. Y. S. 952.
3. The local classification of debts
differs with State legislation. Prior-
ity of payment among debts becomes,
therefore, in our several States, a
matter of local construction as con-
cerns local and independent statutes
relating to this subject. See Hart v.
Jewett, 11 Iowa, 276; Titterington v.
Hooker, 58 Mo. 593; Pugh v. Russell,
27 Gratt. 789; 62 Minn. 135.
Debts preferred as " due to the pub-
lic " do not include debts due to a
State bank. Bank v. Gibbs, 3 McCord,
377 : Fields v. Wheatley, 1 Sneed. 351 ;
Central Bank v. Little, 11 Ga. 346.
Taxes or public dues are in various
States accorded a priority so great
that they may be sued upon specially,
though the estate be pronounced in-
solvent. Bulfinch V. Benner, 64 Me.
404. And see Bowers v. Williams, 34
Miss. 324; 2 Vt. 294. But the taxes
thus payable are those primarily
which the decedent was owing at his
death. Later taxes follow the rule of
the statute imposing them ; but a rep-
resentative should not pay an assess-
ment upon land whicli the heir or
devisee should discharge; nor encum-
ber personal assets with charges that
do not properly fall upon them, nor
the whole personal estate with taxes
which concern specific chattels. See
Lucy V. Lucy, 55 N. H. 9; Deraisraes
V. Deraismes, 72 N. Y. 154. Taxes
duly imposed by the State upon assets
require no presentment for allowance.
119 Mo. 661. As to special claim for
back taxes, see 152 Ind. 186. Death
after date of one's annual liability
for assessment fixes the claim against
the estate. Jaffrey v. Smith, 80 A.
504, 76 N. H. 168.
In various States, the English clas-
sification has been more closely fol-
lowed, under statutes now or for-
merly in force, though the general
policy is that indicated in the text.
Hence are found numerous Ameri-
can decisions as to priority, some of
which may here be stated for com-
parison with the English decisions
cited under that head.
I. Judgments. — Judgment creditors
(except for those as under the New
York statute, whose judgments have
been docketed against the deceased
before his death), retain in general
in this country, the rank that would
belong to their several causes of ac-
tion before judgment. Lidderdale v.
Robinson, 2 Brock. 159. And by the
common law one judgment was not
entitled to preference over another if
both were docketed at the debtor's
death, unless a judgment creditor ob-
94
1489
1428
EXECrTOKS AXD ADMIXISTRATOKS.
[part V.
SO that no one shall, by superior diligence or by preferential deal-
ings with the execntor or administrator, or by pushing his suit to
tained a prefereuce by proceedings
subsequent to such death. Ainslie v.
Radcliff, 7 Paige, 439. In marshal-
ling assets, a dormant judgment is
held to rank with bonds and other
obligations in some States. Williams
V. Price, 21 Ga. 507; State v. John-
son, 7 Ired. L. 231. And see Carnes
V. Crandall, 4 Iowa, 151. The priority
of judgments over specialty and sim-
ple contrax?t debts was formerly
recognized in Kentucky. Place v.
Oldliam. 10 B. Mon. 400. As to the
statute preference of " judgments,
mortgages, and executions," see Bom-
gaux V. Bevan, Dudley (Ga.) 110;
Commissioners v. Greenwood, 1
Desau. 450. A State may prefer its
own judgments to those of other
States. Harness v. Green, 29 Mo.
316; Jones v. Boulware, 39 Tex. 367.
Cf. Gainey v. Sexton, 29 Mo. 449;
Brown v. Public Administrator, 2
Bradf. (N. Y.) 103. Judgment by a
justice of the peace is of superior
dignity to a bond or note; but, not
being matter of record, actual notice
should be given to the legal repre-
sentative. State V. Johnson, 7 Irod.
L. 231. Judgment entered after the
defendant's death, upon verdict ren-
dered during his life, takes full
priority. Miller v. Jones, 2 Rich.
393. The judgment passes to one
subrogated to the rights of the orig-
inal creditor, with all its original
pri\ileges and infirmities. Partee v.
Mathews, 53 Miss. 140. As to stat-
utes taking away this preference
and their efTect, see Deichraan's Ap-
peal, 2 Whart. 395; Place v. Oldbam,
10 B. Mon. 400; Wortliley v. Ham-
mond. 13 Bush, 510. Concerning a
judgment upon a tort which dies with
the person, see Hammond v. Hoffman,
2 Redf. (N. Y.) 92. And as to judg-
ments recovered after a fraudulent
assignment of property by the debtor,
see Le Prince v. Guillemot, 1 Rich.
187. See also Davis v. Smith, 5 Ga.
274; Coates v. Muse, 1 Brock. 557;
Coltraine v. Spurgin, 9 Ired. L. 52;
Eddins v. Graddy, 28 Ark. 500.
Generally, in the United States,
where a judgment is not a lien on tlic
defendant's land at the time of his
deatli, the creditor can only collect
his debt in the due course of admin-
istration, and his judgment has no
preference or priority over any other
creditors holding ordinary demands.
Clingman v. Hopkie, 78 111. 152;
Keith V. Parks, 31 Ark. 664. Judg-
ment liens on real estate are settled
in the order of their priority. Kerr
V. Wimer, 40 ]Mo. 544. But under
the New York code it is otherwise.
Supra, p. 1489; Ainslie v. Radcliflfe, 7
Paige, 439. A judgment recovered
against the executor of an executor
wlio liad died pending a suit against
him to cover misappropriated moneys
is not to be preferred above the
claims of creditors generally. Fox's
Estate, 92 N. Y. 93. Docketed judg-
ments in North Carolina take cflFect
as liens according to their priority of
date at the decedent's deatli. 87 N.
C. 428. But a judgment against the
representative does not determine the
rank of the claim. 23 S. C. 373.
See 119 P. 74, 85 Kan. 720.
II. Specialty Debts. — In some Amer-
ican codes, certain specialties — c. g.
1400
CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE.
§ 14:28
judgment, get an advantage over the others.'' jSTor are distinctions
favored between legal and equitable creditors, or legal and equit-
able assets for satisfvina- their claims.^
mortgages — have been accorded a
prior rank with judgments. Moore v.
Dortie, 2 Ga. Dec. 84. A specialty
debt due a citizen is to be preferred,
in certain States, to a simple con-
tract debt owing the State. Com-
monwealth V. Logan, 1 Bibb, 529. And
see Commissioners v. Greenwood, 1
Desau. 450. Agreement not under a
seal to execute a bond does not rank
as a specialty debt. Johnson v. Slaw-
son, 1 Bailey Ch. 463. And see Smith
V. Smith, 2 Hill (S. C.) Ch. 112.
III. Simple Contract Debts. — These,
in some American codes, are post-
poned to specialty debts. Webster v.
Hammond, 3 Har. & M. (Md.) 131.
But not generally, as we have stated.
See Heath v. Belk, 12 S. C. 582. Some
codes charge the estate of a deceased
person, so as to make the wages due
servants and operatives a preferred
claim. Everett v. Avery, 19 Mo. 136;
Martin's Appeal, 35 Penn. St. 395;
Gaines v. Del Campo, 30 La. Ann. 245.
See, also 56 Kan. 281, 54 Am. St. Rep.
590, 31 L. R. A. 538, 43 P. 236. It
would appear, by the better author-
ty, that the common law accords no
such preference. See Wms. Exrs.
1025, commenting upon 2 Bl. Com.
511, and 1 Roll. Abr. 927. And see
Davis V. Davis, 49 Vt. 464. The claim
upon an estate which grows out of a
defective title, but is founded in no
covenant or undertaking under seal,
stands only as a simple contract debt.
Laws v. Thompson, 4 Jones L. 104.
" Liquidated demands '" are sometimes
distinguished in our codes from "■ un-
liquidated," as to mode of proof or
140
otherwise. McNulty v. Pruden, 62
Ga. 135.
4. Bosler v. Exchange Bank, 4
Penn. St. 32, 45 Am. Dec. 665; Mc-
Clintock's Appeal, 29 Penn. St. 360;
Allison v. Davidson, 1 Dev. & B. Eq.
4G; Boyce v. Escoffie, 2 La. Ann. 872;
Lidderdale v. Robinson, 2 Brock.
159. And see statutes noticed, post,
which give the representative time
to examine into the condition of the
estate before creditors can sue him.
5. Sperry's Estate, 1 Ashm. 347.
But cf. Jones v. McCleod, 61 Ga. G02.
An administrator, having assets in
his hands, who fails to pay off a
judgment rendered against liim as ad-
ministrator, becomes personally liable.
Jeeter v. Durham, 6 J. J. Marsh. 228.
Penalties incurred by the deceased,
under a contract made bj' him while
living, must be paid. Atkins v. Kin-
nan, 20 Wend. 241, 32 Am. Dec. 534.
Or obligations as a surety. Berg v.
Radcliff, ,6 Johns. Ch. 302. Under
Connecticut statute the indorsee of
a promissory note is creditor of the
estate; not the indorser. Meriden
Steam Co. v. Guy, 40 Conn. 163. As
to allowing an indorsement as a con-
tingent claim, see Curley v. Hand, 53
Vt. 524.
The claim against one's estate for
a balance due as fiduciary of an es-
tate, such as an administrator,
trustee, guardian or attorney, is, in
some States, treated as of special
dignity. Johnson v. Brady, 24 Ga.
131; Curie v. Curie, 9 B. Mon. 309:
Smith V. Blackv.-ell, 31 Graft. 291;
Watson V. Watson, 1 Ga. 2C6; Smith
1
§ 1429
EXECUTORS A^'D ADMINISTRATORS.
[part V.
§ 1429. Claims grounded in a Tort; Damages, etc.; Contingent
Claims; How ranked.
As torts died with the pei-sjii at common law, claims of tliis
cliaracter were not in earlier times considered in connection with
the settlement of estates. But suits growing out of a tort, w4iich
do not thus abate in modem practice, of which there are numerous
instances, may pass sometimes to judgment ; ® though statutes are
found which expressly declare the rank such claims shall occupy.''
Breaches of trust, unless committed in breach of some sealed in-
strument, are regarded as simple contract debts ; * though, as we
have seen, a broken bond or covenant seiwes as the foimdation of a
specialty debt,^
V. Ellington, 14 Ga. 379; Caruthers
V. Corbin, 38 Ga. 75; Wilson v.
Kirby, 88 111. 566. But, by the usual
rule, breach of trust, unless founded
in a specific specialty, constitutes
only a simple contract debt. Carow
V. Mowatt, 2 Edw. (N. Y.) 57; supra,
§ 1427; Rolair v. Darby, 1 McCord
(S. C.) Ch. 472. See, further, Mul-
doon V. Crawford, 14 Bush. 125; Van
Duzer, Matter of, 51 How. (N. Y.)
Pr. 410.
Whether the creditor of a firm
should pursue the surviving partner,
before enforcing his claim against the
estate of the partner deceased, see
Dubois' Case, 3 Abb. (N. Y.) Pr.
177. But individual creditors can in-
sist on the full payment of their
debts, from the decedent's estate, be-
fore tlio allowance of partnership
debts from the individual assets.
People V. Lott, 36 111. 447; Higgins
V. Rector, 47 Tex. 361. The balance
due to the surviving partner on
adjustment of accounts is a proper
claim. Babcock v. Lillis, 4 Bradf. (N.
Y.) 218.
The power of the probate court to
re-classify and change its order, in
States where such classification de-
volves upon the court, is sometimes
denied. Corsitt v. Biscoe, 12 Ark.
95. It cannot be changed, after the
assets have been exhausted, in con-
forming to the first decree; but, if
erroneous, the classification should
be appealed from when made. Nel-
son v. Russell, 15 Mo. 356. Or mo-
tion may be made by the aggrieved
creditor for a correction nunc pro
tunc, but not by injunction against
the representative. Jillett v. Union
Nat. Bank, 56 Mo. 304.
6. See supra, §§ 1282, 1427; Smith
v. Sherman, 4 Cush. 408.
7. See 3 & 4 Wm. IV. c. 42. in
Wms. E.xrs. 1026; Hammond v. Hoff-
man, 2 Redf. (N. Y.) 92; 102 S. W.
884, 31 Ky. Law. 537.
8. 2 Atk. 119; Bailey v. Ekins, 2
Dick. 632; Wms. Exrs. 1018.
9. Supra, § 1427; Cas. teini). Talb.
109. All such claims should be pre-
sented according to the u.sual rules.
Ilalleck's E.state, 49 Cal. 111. Stat-
utes sometimes give these claims a
preference. Supra, § 1428, n.
1492
CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE. § 1430
Oontingent claims, or such as are not absolute or certain, aro
found specially provided for in local codes for the presentment and
settlement of claims against a decedent's estate.^
§ 1430. Mortgage Debts; Rights of Creditors having Security.
A mortgage debt, notwithstanding a real estate security, is pay-
able out of the personal assets of the deceased on the usual princi-
ples.^ A personal covenant in a mortgage will bind the mortga-
gor's personal estate after his death." In case the deceased mort-
gagor was not seized of the mortgaged property at the time of his
death, the mortgagee has his choice, either to rely upon such prop-
erty, or resort to the decedent's estate for payment.^ But, where
the personal estate of a deceased debtor is distributed among his
creditors, it is held that a creditor, who has security upon another
fund which is primarily liable, should be compelled to exhaust his
remedy against that fund, and come in against the personal estate
for the deficiency only.^ And an administrator or executor has no
1. 72 Minn. 232, 75 N. W. 220. But to pay the mortgage debt, the sur-
a subsisting demand which had ma- rogate or probate judge may direct
tured and was capable of enforcement the executor or administrator to re-
while decedent was alive is not con- serve enough from th€ assets to meet
tingent. 52 Neb. 532, 72 N. W. 848; the deficiency, in the same proportion
Sargent v. Kimball, 37 Vt. 321. See as for other debts of the same degree.
158 Mass. 418, 33 N. E. 928; § 1419 Williams v. Eaton, 3 Redf. (N. Y.)
supra; 138 S. W. 986, 99 Ark. 523. 503.
2. Howel v. Price, 1 P. Wms. 291; 5. Thus, where land was sold sub-
Sutherland V. Harrison, 86 111. 363; ject to a mortgage, which the pur-
Mahoney v. Stewart, 123 N. C. 106, chaser covenanted to pay or assume,
31 S. E. 384. But as to exonerating the purchase-money being lessened in
the real estate by the personal, see amount accordingly, the mortgaged
post, Part VI. c. 1. premises should be treated as the pri-
3. Dennis v. Sharer, 56 Mich. 224, mary fund for payment of that debt.
22 N. W. 879; 61 Ohio St. 146, 55 N. Halsey v. Reed, 9 Paige. 446. Where
E. 408. the executor or administrator sells
4. Rogers v. State, 6 Ind. 31. See property incumbered by a mortgage,
Whitmore v. S.sn Francisco Sav. the claim of the mortgagee must be
Union, 50 Cal. 145. Where real es- satisfied out of the security before
tate mortgaged by the testator will the residue can be held for adminis-
probably be insufficient on foreclosure tration expenses, or the claims of gen-
1493
§ 1430 EXECUTORS AND ADMIXISTEATORS. [PAKT V.
right to redeem property for the benefit of the widow, at the cost
of an insolvent estate, nor in general to discharge incumbrances by
mortgage, pledge, or lien, on his sole responsibility, and without
judicial order, where the estate is likely to derive no advantage
from the act, but rather the reverse.®
Lien, mortgage, and pledge creditors, in general, take the full
benefit of their security, notwithstanding the death of the debtor;
and may apply such security in discharge of their respective claims,
under the usual niles and resen'ing the usual equities. Thus, a
solicitor or attorney has a particular lien ; so, too, has a bailee for
hire, or the workman upon a certain thing,^ or a banker for his
advances.^
So far as pursuing all such rights against the estate is concerned,
modern codes and practice often permit the secured creditor either
to realize his security or have it valued ; and where he elects to
value, he can only prove for the balance of his claim less tlie valua-
tion.^ The security or securities are of course available by way of
preference, in accordance ^vith the usual legal doctrines, and the
creditor is not obliged to resort to the general assets like general
eral creditors; and only the expenses (1912) 1 €h. 561 (equitable right of
of the sale take precedence. Mur- secured creditor to follow assets of es-
ray's Estate, 18 Cal. 686; Murphy v. tate, on a deficiency under the secur-
Vaughan, 55 Ga. 361. But cf. Alter ity) ; Darby's Estate, (1907) 2 Ch.
V. O'Brien, 31 La. Ann. 452. If a 465.
mortgagee does not present his claim 6. Rossiter v. Cossitt, 15 N. H. 38;
within the limited time for present- Ashurst v. Ashurst, 13 Ala. 781;
ment and the estate is settled, his Shaw, C. J., in Ripley v. Sampson, 10
right to enforce the mortgage is not Pick. 373; supra, § 1318. As to dis-
affected. Smith V. Gillman, 80 Ala. charging a debt secured by vendor's
296. But he loses all right to hold lien, see Mullins v. Yarborough, 44
the decedent's estate for a dificiensy. Tex. 14. And see Slack v. Emery, 30
Willard v. Van Lceuwen, 56 Mich. N. J. Eq. 458.
15. See as to equity proceedings in 7. Lloyd v. ]\Iason, 4 Hare, 132;
foreclosing a mortgage whore the de- Schoul. Bailm. §§ 122 127.
ficiency was treated as a valid claim 8. Ixjonino v. Leonino, L. R. 10 Ct.
against assets, Shelden v. Warner, 5'.) D. 460.
Mich. 444, 26 N. W. 667. See also 9. Williams v. Hopkins. 29 W. R.
119 P. 616, 51 Colo. 564; Eustace Re, 767; McClure v. Owens, 32 Ark. 443.
1494
CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE. § 1430
creditors.^ If, after realizing upon the security, a balance remains
due to the secured creditor, his claim for such balance stands on
no better footing than that of unsecured creditors ; and, if assets are
deficient, he should be paid proportionately udtli them.^ En gen-
eral, claims secured by mortgage, pledge, or lien, are no exception
to the rule which requires a personal demand to be presented and
proved or sued upon, within a specified time, or else to be barred
as against the estate.^ Collateral security, given by the executor
or administrator for a debt due from the deceased, cannot operate
so as to place the creditor in a better situation against the estate
itself than he was in without such security ; ■* and a secured cred-
itor's claim aside from the worth of the security takes no rightful
priority. But an estate may sometimes benefit by the proof of a
claim in waiver of the security.^
On the whole, therefore, the rights of general creditors of a de-
cedent are subject to all equities attaching to the estate at the time
of his death ; such creditors take the estate in the plight in which
they find it, and their rights cannot be enlarged beyond their deb-
tor's, to the prejudice of secured creditors or lien priorities.^
1. As among different securitiss, A vendor's lien for unpaid purchase-
real and personal, a pro rata contii- money is not a preferred claim. Kim-
bution may be proper in conformity mell v. Burns, 84 Ind. 370.
to the contract. Leonino v. Leonine, 3. Clark v. Davis. 32 ]Micb. 154;
L. R. 10 Ch. D. 460. Tlie duty of the Pitte v. Shipley, 46 Cal. 154. See
executor or administrator to redeem Watt v. White, 46 Tex. 338; 56 Mich,
property of the deceased under mort- 15, 122 N. W. 185 (as to deficiency),
gage, pledge, or execution, where he The creditor who probates his claim
has suiScient assets, or else to sell, against the estate is not debarred
subject to the incumbrance, is found thereby from proceeding to foreclose
enforced by legislation, provided his mortgage. Simms v. Richardson,
there appears to be a valuable interest 32 Ark. 297. See Williamson v. Fur-
over and above the incumbrance. Tut- bush, 31 Ark. 539.
tie V. Robinson, 33 N. H. 104. 4. Wyse v. Smith, 4 Gill & J. 295:
2. The rule for such creditors is Piester v. Piester, 22 S. C. 139; 53
frequently defined by the local stat- Am. Rep. 711.
ute. See Martin v. Curd, 1 Bush, 5. Avey v. Stearman, 140 S. W.
327; Williams v. Hopkins, s^ipra; 1055, 145 Ky. 574.
Williams v. Eaton, 3 Redf. (N. Y.) 6. Dulaney v. Willis, 95 Va. 606.
603; Moring v. Flanders, 49 Ga. 594. 64 Am. St. Rep. 815, 29 S. E. 324.
1495
§ 1431
EXECUTORS AND ADMINISTILiTORS.
[part V.
§ 1431. Invalid or Exorbitant Claims; Voluntary Transactions.
Claims against the estate, which have no legal validity, rnu^t not
be paid ; and if exorbitant or partially invalid, the executor or ad-
ministrator should reduce to the proper amount; otherwise his erro-
neous or excessive payment will amount to a devastavit, as against
legatees and distributees as well as creditors. A bond debt, founded
in immoral consideration, or transgressing the usury laws, or given
by one incompetent to contract, comes within this rule." And the
testator or intestate having died an infant, it is held that his legal
representative should not pay a debt, not for necessaries, such as
required one's ratification on attaining majority to render it bind-
mo-.
Debts, for which the deceased was not in fact liable, do not be-
come obligatory by directions in his will that "" all just debts"
should be paid.^ So, too, though a voluntary bond be good between
the parties, yet in the course of administration, it must be post-
But where a judgment creditor's lien
lias expired, he must enforce it for the
benefit of all creditors, if at all. 104
Iowa, 360, 73 N. W. 875. Se?, fur-
tlier, 160 Mass. 499, 36 N". E. 476; lOi
N. C. 458, 10 S. E. 709.
7. 1 Ves. Sen. 254; 18 Ves. 258;
Wms. Exrs. 1016. A manifestly il-
legal expenditure cannot be allowed
en an accounting. Burlce v. Coolidge,
C5 Ark. 180. Otherwise, as to debts
paid honastly, and not car;'lessly,
vitiiout knowledge that the consider-
jition was illegal. Coffee v. Ruffin, 4
C'oldw. 487. And 3f>e, as to claims of
doubtful legality (which appear to
1)6 always a fit subject of compro-
mise), Parker v. Cowell, IS N. H.
149. We may presume tliat the sen-
cral principle of probate and equity,
which exempts a representative from
the liabilities of extraordinary bailee
or insurer (see supra, § 131.".), ap-
plies to the payment of claims in mod-
ern practice, whether they turn out
illegal or not.
8. Smith V. Mayo, 9 Mass. 62; 6
Am. Dec. 28. But see Sehoul. Dom.
Rel. 3d ed. § 402, showing that the
privilege of avoiding passes to an in-
fant's representatives and privies in
blond, who may either avoid or up-
hold. See also Washburn v. Hale, 10
Pick. 429; La Rue v. Gilkyson, 4
Penn. St. 375, 45 Am. Dec. 700;
Smith V. McLaiigl.lin, 77 111. 596. If
the executor or administrator in good
faitli pays a claim as allowed by the
probate court (in a Statt> where the
probate court receives, classifies, and
allows), its invalidity cannot be set
up against him afterwards. Owens
V. Collinson, 3 Gill & J. 25.
Of claims barred by limitations we
have already spoken. Supra, § 1389.
9. Smith v. Mayo, 9 Mass. 62, 6
Am. Dec. 28; Mason v. Man. 3 Desau.
116.
149G
CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE. § 1432
poned to any just debts, though the latter be due by simple con-
tract.^ Gratuitous and voluntary services, rendered the deceased
by members of his own family or others, cannot be made the basis
of a legal claim against the estate, which the legal representative
should recognize; there must have been a mutual intention for
recompense either expressed or to be inferred properly from the
circumstances and conduct of the parties at the time the services
were rendered.^ Even as to services entitled to a recompense, the
statutory period of limitations must apply.^
§ 1432. Claims of Persons disappointed of a Legacy; Family
Claims, etc.
As to persons in general, who perfonn a service in expectation
of a legacy, mere expectation cannot create an enforceable con-
tract ; but a mutual understanding that the service would be recom-
pensed by a legacy, may, if shown, afford the basis of a valid claim
upon the estate, where the deceased has left no will, or has omitted,
under his will, to make suitable provision.* Other instances of a
debt enforceable against an estate because of some violated promise
to bestow by testament may occur ; or on account of special family
service rendered the decedent and not recompensed.^
1. Stephens v. Harris, 6 Ired. Eq. (Vol. I.) Cf. Weaver's Estate, 182
57. Penn. St. 349; 38 A. 12; 118 N. C.
2. See Schoul. Hus. & Wife, § 274. 752, 24 S. E. 542; 93 Wis. 104; 67
and general works on contracts. And N. W. 15.
see Shallcross v. Wright, 12 Beav. 5. Ewers v. White, 114 Mich. 266;
558. 72 N. W. 184. See § 1490, note. See,
3. Hughes's Estate, 17G Penn. St. further, 115 N. W. 1052, 152 Mich.
387. But mere inadequacy of consid- 197; 106 Ga. 513, 32 S. E. 600; 58
eration will not defeat wholly a claim Neb. 268, 78 N. W. 495; 46 W. Va.
against one's estate. Nye v. Lothrop, 261, 76 Am. St. Rep. 815, 33 S. E.
94 Mich. 411; 54 N. W. 178. 257.
4. Shakespeare v. Markham, 17 N. There are many claim cases under
Y. Supr. 311, 322, and cases cited; the head of family service in tha
Rhea v. Meyers, 111 Mich. 140; 105 latest reports. Special services ren-
Mich. 490, 64 N. W. 490; 136 Penn. dered by a relative who did not live
St. 239; Schoul. Dom. Rel. §§ 238, with decedent's family are not pre-
274; Schoul. Wills, §§ 1452, 1453 sumably gratuitious. 131 N. W.
1497
§ 1433
EXECUTOES AXD ADMINISTRATORS.
[part V.
§ 1433. Decree or Order for Payment.
In some States, claims being regularly filed in the probate court
for classification and allowance, the judge or surrogate will order
payment, or, by decree, establish the classification and indebted-
ness of the estate; and, acting upon such order in good faith, the
representative is protected.'' But, except for insolvent estates, the
6S2; 152 Iowa, 106 (step-son); 117
P. 672, 160 Cal. 574 (nephew's wife) ;
126 N. Y. S. 155; 134 N. Y. S. 974
(sister-in-law) coming as cook); 82
A. 397, 34 N. I. 29.
Aliter, with members of decedent's
own family household, thougli re-
motely related. 80 A. 1012, 115 Md.
349 (one treated as a daughter) ; 80
A. 595, 33 R. I. 249 (grand-daugh-
ter) ; 134 N. Y. S. 13; 138 N. W.
689, 119 Minn. 444; 159 S. W. 1165,
155 Ky. 904. A mutual promise or
fair understanding of recompense
should appear in proof. Wise v.
Martin, 81 A. 184, 232 Penn. 159;
134 X. W. 983, 169 Mich. 146; 138
N. Y. S. 41; 137 N. Y. S. 1105; 137
N. W. 79, 171 Mich. 195; 138 N. W.
325, 173 Mich. 93. The services
should appear to exceed the value of
the board, lodging or other advantage
received by claimant. Gaither v. Lee,
69 S. E. 477, 135 Ga. 375 (minor
child taken for education, etc.).
Where domestic service is hired at a
certain rate, that rate is presumerl to
-cover emergencies, such as the em-
ployer's last sickness may ocoasion.
lb.
Legacies or other provisions by
will are distinct from actual claims
upon one's estate. Keeler v. Loan &
Trust Co., 253 111. 528, 97 N. E. 1061.
Particular circumstances may suj)-
f)ort a claim for family service, lis
P. 781, 39 Utah, 561 (child living
with parent) ; 134 N. Y. S. 238; Olson
V. Olson, 135 N. W. 836, 149 Wis.
248 (valid consideration); White v.
Almy, 82 A. 397, 34 R. I. 29 (board
of a mother-in-law ) .
See, further, 135 N. Y. S. 511
(husband of testatrix); SO A. 821,
85 Vt. 1 (jury trial on a disputed
claim) : 78 A. 1033, 229 Penn. 473
(son's claim closely scrutinized).
In all su2h claims of service it
should appear that there was an
agreement express or implied on the
decedent's part. Myron v. Myron,
130 N. W. 338, 165 ]\Iich. 63 ; 127 N.
Y. S. 764; Trautman v. Traub, 129
N. W. 322, 150 Iowa, 23; 129 N. W.
614, 150 Iowa, 119.
6. Arnold v. Downing. 11 Barb.
554; Cossitt v. Biscoe, 12 Ark. 95;
Wood V. Ellis, 12 Mo. 616; Owens v.
Collinson, 3 "Gill & J. 25 : Lanier v.
Irvine, 24 Minn. 116; Johnson v.
Von Kettler, 66 111. 63; Jessup v.
Spears, 38 Ark. 457. Where a claim
is approved by the administrator, and
allowed by the .probati' court, it can-
not be disallowed by collateral pro-
ceedings. Smith V. Downes, 40 T<^x.
57. Nor in equity, 117 N. W. 213,
153 Mich. 120. But tlie representa-
tive should always guaril the estate
against unjust claims. 186 Mass.
.'577, 72 N. E. 88. See 85 A. 36, 35
R. T. 10; 79 A. 667, 230 Ponn. 457
1408
CHAP. I.] DEBTS AXD CLAIMS UPOIST THE ESTATE. § 1434
rule elsewhere is, to leave the creditors and legal representative to
the usual remedies in other courts, or to their private arrangements ;
the probate court confining itself to disputed matters specially re-
ferred, and allowing or disallowing the payments charged in the
administration account. Even in States where claims are first al-
lowed and approved, the administrator's payment, without a pre-
vious order of the court, is held valid, if in itself a proper payment
and such as the court would have decreed.' Local practice some-
times permits the surrogate or probate court to liquidate demands
of an uncertain amount, whether legal or equitable, and order them
paid.^ The allowance of a claim against the estate of a deceased
person, by the probate court, is, at least, a qmisi judgment, and
cannot be collaterally impeached.^
§ 1434. Commissioners or Auditors to examine Claims.
Commissioners or auditors are sometimes appointed, under local
statutes, to examine and report to the probate court concerning
claims presented against the estate of a. deceased person. The
duties of such commissioners, as well as the occasion for appoint-
ing them, are set forth at length in the local codes, whose provisions
should be carefully followed.^
(deceased partner). See as to mat- Buchoz v. Pray, 38 Mich. 429; Boyd
ters of local practice, Harper v. v. Lowry, 53 Miss. 352; Commercial
Stroud, 41 Tex. 367; § 1420; local Bank v. Slater, 21 Minn. 72; Cape-
codes, iiart V. Logan, 20 Minn. 442; Hair-
7. Lockhart v. White, IS Tex. 102. land v. Trust Co., lOS Penn. St. 236.
See Thompson v. Taylor, 71 N. Y. Claims must be presented to them
217. within a specified limited time. The
8. Babcock v. Lillis, 4 Bradf. 218. rejwrt of such commissioners, as to
9. Baker v. Rust, 37 Tex. 242; 35 the allowance or rejection of certain
Neb. 422. claims submitted to them, is usually
1. Such commissioners are most final, unless appealed from; and
frequently appointed where the exe- claims rejected by them cannot be
cutor or administrator represents the afterwards used by set-off or otlier-
estate insolvent. In Maine, commis- wise against the estate. Rogers v.
sioners are appointed on exorbitant Rogers, 67 Me. 456; Probate Court v.
claims. Rogers v. Rogers, 67 Me. Kent, 49 Vt. 380. And even the pro-
456; 82 A. 645, 109 Me. 62. And see bate court has not always a stattttory
1499
§ 1435 EXECUTOES AXD ADMI^'ISTRATOES. [PART V.
§ 1435. Exhaustion of Assets in paying Superior Claims ; Prefer-
ences to be observed; Representation of Insolvency.
An executor or administrator, whose assets are necessarily ex-
haiisted in paying debts of the prior class, is bound to plead accord-
ingly when sued on a debt of lower rank ; othei'wise a sufficiency of
assets for both classes is virtually admitted, and he must respond
cordingly.^ And if, upon due opportunity to ascertain the con-
dition of the estate, he believes it to be insolvent, he should so rep-
resent to the court and relieve himself of undue responsibility.^
But in some States it is distinctly provided, that where the execu-
tor or administrator shows by his account in the probate court that
the whole estat-e and assets in his hands have been exhaused in the^
administration and funeral charges, debts of last illness, and other
debts or claims preferred by statute, such settlement shall be a suffi-
cient bar to any action brought against him by a creditor not en-
titled to such preference, even though the estate has not been rep-
resented insolvent.* It would be devastavit, rendering him person-
ally liable for the deficiency, if the executor or administrator gavo
preference to a debt of lower dignity over those duly presented of a
higher ; and this rule is the same in law and equity.^
power to accept, reject, or modify against persons who do not appear,
their report at discretion. As to 59 Mich. 299, 26 N. W. 519. But cf.
notice of the time and place for heir- 69 A. 655, 81 Vt. 121. Under some
ing and examining claims, and the codes a creditor may call for commis-
gcneral proceedings of commissioners, sioners if the court neglects to ap-
cf. local statute's; Hall v. Merrill, 67 point thorn; 57 Vt. 49.
Me. 112; insolvent estates; § 1446. 2. 1 Salk. 310; Wms. E.vrs. 989; 3
Claims purely of an equitable or con- Bl. Com. 511.
tingent character cannot be deter- 3. Newcomb v. Goss, 1 Met. 33.3.
mined by commissioners. Brown v. But in modern practice a judicious
Sumner, 31 Vt. 671. And see 51 Vt. executor or administrator may gen-
50. But the probate or the "county" erally bring all creditors to accept a
court may have jurisdiction of such pro rata allowance, according all due
<laims. Hall v. Wilson, 6 Wis. 433. priorities, and so close the estate with
See Clark v. Davis, 32 Mich. 154. less cost and delay.
The commissioners are not a "court" 4. Mass. Gen. Stats, c. 97. § 20.
in the constitutional snnse. 40 Mich. 5. ^foye v. All>ritton, 7 Ired. Eq.
503. They cannot fin. I an,! report 62; Cay v. Lemle, 32 Miss. 309:
1500
CHAP. I.] DEBTS AND CLAIMS UrOX THE ESTATE. § 1436
§ 1436. Notice of Debts as affecting their Payment with due
Preferences; English Rule.
It is laid down, that an executor or administrator may volun-
tarily pay a debt of the inferior, before one of a superior sort, of
which he had no previous notice ; a doctrine, fundamental in char-
acter and rational, which keeps tardy creditors from disturbing the
settlement, and which obliges all who mean to assert claims upon
an estate to present them in good season.^ The rule that the ex-
ecutor or administrator must personally respond as for devastavit,
where he has used up the assets upon inferior debts, applies with
this reservation ; ^ for, if he had no notice of the higher debt in ques-
tion, and was not bound to take notice of it, he must stand
excused. Where, too, it is said that debts of superior rank must be
pleaded in bar of an action to recover a debt of lower rank, if there
are not assets enough for both, or else the representative will be
personally bound, a like reservation is to be understood ; ^ and
hence, an executor or administrator may plead, when sued on a
debt of the higher rank, judgment recovered without notice thereof
on a debt of the lower rank to the exliaustion of assets ; for, unless
he knew of the higher debt, he could not have prevented a recovery
of the lower.^ As to debts in general, actual notice must have been
received by the executor or administrator, in order to preclude this
plea ; though, what this notice, the English cases do not clearly de-
termine.^ But, of judgments, decrees in equity, and debts due by
recognizance and statute, the judicial record is treated as affording
constructive notice, which every executor or administrator is bound
Huger V. Dawson, 3 Rich. 328; Swift oer, 1 T. R. 690; 3 Lev. 114; Wms.
V. Miles, 2 Rich. (S. C.) Eq. 147; Exrs. 1029.
People V. Phelps, 78 111. 147; Howell 1. It is intimated in 1 Mod. 175,
V. Reams, 73 N. C. 391. Cf. Miller v. that such actual notice must be by
Janney, 15 Mo. 265. suit. But, by the better authorities,
6. 2 Show. 492; Hawkins v. Day, the executor or administrator, how-
1 Dick. 155; Wms. Exrs. 1029. ever apprised of the existence of a
7. Supra, § 1425. higher debt, cannot safely disregard.
8. Supra, § 1435. Wms. Exrs. 1032; Oxenham v. Clapp,
9. Bull. N. P. 178 ; Sawyer v. Mer- 2 B. & Ad. 312.
1501
§ 1437 . EXECUTOES A^"D AI>MIlS'ISTRA.TOES. [PAKT V.
to regard ; ^ such debts being stjled debts of record, and classed ac-
cordingly. With the modem extension of the courts and judicial
business, this rule must needs impose a perilous responsibility upon
the legal representative; but, except for requiring that judgments
be docketed in order to afford a constructive notice, English legis-
lation long did nothing to alleviate the burden thus imposed upon
the representative.^
§ 1437. The same Subject; English Rule as to Equal Creditors;
Creditor's Bill, etc.
Among creditors of equal degree, the English law has permitted
the executor or administrator to pay one in preference to another
at his discretion ; a privilege to do injustice to others by way. per-
haps, of recompense for the injustice done to himself.* This prefer-
ence may be controlled, however, by proceedings of creditors in the
courts. For, as to such creditors of the deceased, a scramble may
ensue in the common-law courts ; and not he who first commences
an action, but he who first recovers a judgment against the executor
or administrator, must first be paid. If one such creditor com-
mences the suit, and the legal representative gets notice of it, the
latter's right to voluntarily prefer another creditor of equal degree,
and then plead plerie administravit, becomes checked.^ Yet the
privilege is not wholly lost; for, by baffling this litigant until he
has confessed judgment to the suit of another creditor of equal
degree, or otherwise aided the other creditor to recover judgment
first, the executor or administrator still exercises his right of prefer-
ence.® Equity will not interfere with such an election ; ^ nor do the
courts of common-law preclude his plea puis darrein continuance,
that judgment was confessed in the latter suit, after he had pleaded
2. Pro. Eliz. 763; Searle v. Lane, 4. Wms. Exrs. 1033; Lyttkton v.
2 P'rofm. 104; Wms. Exrs. 1031, 1032. Cross, 3 B. & C. 322.
3. Stat. 4 & 5 VV. & M. c. 20; stat. 5. Ashley v. Pocock. 3 Atk. 20S;
23 & 24 Vict. c. 38. But see stat. Wms. Exrs. 1033. 1034.
32 & 33 Vict. c. 46; also § 1427. 6. Vau.?h. 95; Lyttleton v. Cress, 3
B. & C. 217; Wm.=i. Exrs. 1034.
1502
CHAP. I.] DEBTS AXD CLAIMS UPON THE ESTATE. § 1437
the general issue to the farmer ; nor even require that the debt con-
fessed was known to him before this action commenced.^ A prior
plea, confessing assets to a certain amount, may accord a similar
preference.^ All that tho law appears to insist upon is bona fide
conduct on the part of the executor or administrator, so that the
judgment confessed by him, or the plea confessing assets to a cer-
tain amount, shall disclose what is truly owing, or what is the true
state of the assets, with reference to the several creditors suing,
and the time and circumstances of the several suits.'^
Where, instead of an action at law, proceedings in equity are
commenced against the executor or administrator by a creditor's
bill, it is settled in England that a decree of chancery against an
executor or administrator is equivalent to a judgment at law
against him ; ^ whence, it follows, that a decree for payment must
take priority of judgments at law later obtained,^ and that by suf-
fering such a decree to be entered by bill taken pro confesso, the
executor or administrator preser\"es still his right in the courts, of
electing to prefer, as among creditors of the same degjee.* But pro-
ceedings in equity may be brought iti behalf of one creditor, or
several, or all; and to correct the manifest injustice of a preference
by the representative, such as the common law permitted, modern
English practice favors the chancery bill brought once and for all
on behalf of all creditors of the deceased, wherever there is likeli-
hood of insolvency, for the purpose of compelling an account and
a just and ratable distribution of the assets among all the creditors.*
The barrier thus afforded against the preference among claims of
7. Lepard v. Vernon, 3 Ves. & B. 3. Cas. temp. Talb. 217, 223. By
53; 1 P. Wms. 215. injunction equity will enforce obedi-
8. Lyttleton v. Cross, 3 B. & C. ence to such a decree, and due heed
322; Prince v. Nicholson, 5 Taunt, to its precedence in the courts of com
333. mon law.
9. Waters v. Ogden, 2 Dougl. 453. 4. Cas. temp. Talb. 217, 225.
1. Tolputt V. Wells, 1 M. & S. 395. 5. Brady v. Shiel, 1 Camp. 148;
2. Morrice v. Bank of England, Jones v. Jukes. 2 Ves. jr. 51S;
Cas. temp. Talb. 217; s. c. 2 Bro. P. Mitchelson v. Piper, 8 Sim. 64; Wms.
C. 465; Wms. Exrs. 1035, 1036. Exrs. 1036, 1037.
1503
§ 1438 EXECUTORS AND ADMIKISTEATOES. [PAET V,
equal rank is still, however, an imperfect one ; for, contrary to an-
alogy, it is held that even voluntary preference may he made by the
executor or administrator pending a decree upon the bill ; ^ while,
in accordance with the common-law doctrine, judgments confessed
by the representative elsewhere, before the decree is actually eu"
tered, take precedence, as of course, among debts of the same
rank.^ All such preferred payments are accordingly respected when
the decree is entered ; though as to creditors who have received
a partial payment, chancery will make no further payment to them,
until all the other creditors are proportionably paid.^
§ 1438. The same Subject; American Rule,
There are American cases which support some of the doctrines
above stated. Doubtless, in this country, an executor or administra-
tor who pays debts of one class, without notice of other debts entitled
to priority, commits no waste, provided that in the time and mode
of such payment he transgresses no local statute.^ In rare instances
his legal right to give preference among creditors of equal degree,
by confessing a judgment, has been conceded ; ^ but it is held that
6. Upon this point Darston v. Wms. Exrs. 1039. And as to an or-
Lord Oxford, Prec. Ch. 188, ruled der nisi, see L. R. 8 Ch. D. 154.
diflferontly, and, as it would seem, 8. Wilson v. Paul, 8 Sim. 63.
more reasonably; but the decree was 9. Place v. Oldham, 10 B. Men.
reversed on appeal; s. c, Coles, 229. 400; Mayo v. Bentley, 4 Call (Va.)
And see Maltby v. Russell, 2 Sim. & 528. Payment, without knowledge
Stu. 227; Wms. Exrs. 1038; Radcliffe of a debt due the United States, is
Re, W. R. 417. thus justified. United States v.
7. Larkins v. Paxton, 2 Beav. 219; Ricketts, 2 Cr. C. C. 553; Aiken v.
Gilbert v. Hales, 8 Beav. 236. Lar- Dunlap, 16 John. 85.
kins V. Paxton indicates how full the 1. Wilson v. Wilson, 1 Cranch. C
opportunity might be for carrying out C. 255; Gregg v. B udo, 9 Dana, 343.
such a preference, and how greatly And equity will not interfere to pre-
the estate might leak away, while vent the representative from giving
chancery pursued its tedious pro- su.h preference. Wilson v. Wilson,
cesses ; for here the creditor's suit ib. This right of preference is not
was instituted in 1811, the answers favored where the representative was
were got in about 1820, and no de- interested personally in tlie debt to
cree was entered until 1829. See which he confesses judgment. PowelL
1504
CHAP. 1.] DEBTS AND CI^ilMS UrON THE ESTATE.
§ 1438
such preference is checked by the filing of a 'creditor's bill in
equity.- Constructive notice of a judgment debt, as afforded by the
judicial record, is not favored in this country;^ nor are chancery
proceedings on the creditor's behalf, where action at law opens the
readier means of recovering his dues.'*
The whole policy of American legislation, however, is to dis-
courage competition among creditors, and this whole system of vol-
untary preference ; and, under the local statutes which require a
presentment of claims within a definite period, to the representa-
tive or to the court, a date is fixed at which debts become absolutely
payable from the estate, according to their statute rank, and the rep-
resentative is granted full immunity as to all claims not brought to
his notice until afterwards, save as the assets then left may suffice
for meeting them.^
V. Myers, 1 Dev. & Bat, Eq. 562; nex.
section.
2. Barnawell v. Smith, 5 Jones Eq.
168; Overman v. Grier, 70 N. C. 893.
3. A judgment by a justice of the
peace, not being of record, requires
actual notice. State v. Johnson, 7
Ired. L. 231. As to dormant judg-
ment, see supra, § 1428. Notice of a
debt entitled to priority need not bs
by suit. Webster v. Hammond, 3
Har. & M. 131. And in Arkansas a
docketed judgment, unless duly pre-
sented as a claim, loses its priority.
Keith V. Parks, 31 Ark. 664.
4. McC«y V. Green, 3 Johns. Ch.
58; Walker v. Clieever, 35 N. H. 347.
5. ^upra, § 1420. Tlie Massachu-
setts statute provides tliat no execu-
tor or administrator can be held to
answer to a suit of a creditor of tlie
deceased, if commenced within one
year after he gives bond, unless it is
on a demand that would not be af-
fected by the insolvency of the estate
or is brought after the estate has been
95 15
represented insolvent for the purpose
of ascertaining a contested claim.
And if, within the year after giving
notice of his appointmerit, he does not
have notice of demands against tlie
estate which will authorize him to
represent it iTisolvent, he may proceed
to pay the debts due, without any
personal liability on that account to
any creditor who shall not have given
notice of his claim, although the es-
tate remaining should prove insuffi-
cient to pay the wliole. Mass. Gen.
Stats, c. 97, §§ 16, 17. See Newcomb
V. Goss, 1 Met. 333; Tittering v.
Hooker, 58 Mo. 593. An unsecured
claim against an estate has no pi-ef-
erence over other unsecured claims.
114 P. 490, 50 Colo. 37; 133 S. W.
949, 96 Ark. 222 (decedent's will can-
not control ) .
A claim ought to be presented to
the executor or administrator in writ-
ing, altliough not positively so re-
quired by statute; merely mentioning
the approximate amount, etc., is not
05
§ 1439 EXECUTORS AXD ADMIXISTRATORS. [PART V,
§ 1439. Debt due the Representative from the Estate; Right to
retain, etc.
As part of the English system of preference among equal cred-
itors at an executors or administrator's discretion, the legal repre-
sentative has a right to prefer his own. debt to all others of equal
degree, and to retain assets for it accordingly." This privilege
being inequitable, courts of chancery do not allow its assertion in
respect of equitable assets, sought by their aid ; ^ though this right
of retainer, as regards legal assets, extends to debts which may lie
due the executor or administrator, either as trustee or as cestui que
trust., as well as individually, and chancery itself concedes the prin-
ciple.^ The right does not, however, extend to the gift, bequest, or
transfer of other creditors' proved debts.^ And there can be no
right to retain in an action at law for a demand of which no ac-
coimt can be taken by a jury, and which the other party cannot
controvert ; ^ nor on a claim for damages arbitrary in amount, as
for a tort. When the debt due him exceeds the value of the assets,
60 that the estate is insolvent, he may keep the assets in satisfac-
enough to avoid the barrier. Pike v. one should sue himself or enter into
Thorp, 44 Conn. 450. Under the the strife among equal creditor-; to
California code, if the representative procure a prior judgment. 2 Bl. Cmn.
pays some of the creditors in part, he 511; 3 Bl. Com. 18; Wms. Exrs. 1039.
i-> ix)und to pay a like proportion int^ And see (1895) 2 Ch. 345. But tlie
court for creditors whose suits are general doctrine of lien, and th?
pending on their claims. 61 Cal. 71. maxim that among equals he in pos-
But see 60 Tex. 422. session has the first claim, may like-
ProWsion is usually made (as sug- wise be considered the foundation; a
gosted supra, § 1420) by these doctrine which may be invoked still
American statutes for protecting the in aid of administration cliarges,
interests of creditors whose claims sums paid and expenses incurred in
will not seasonably accrue, or, under the trust.
peculiar equitable circumstances, can- 7. 2 Eq. Cas. Abr. 450; 41 L. T.
not be presented within the period X. S. 672.
fixed by tho statute. 8. Plummer v. Marchant, 3 Burr.
6. Wms. Exrs. 1039-1050, where 1380; Cockroft v. Black, 2 P. Wms.
this topic is fully considered; ciuses 298.
infra. This right of retainer is 9. Jones v. Evans, L. R. 2 Cli. D.
treated as arising from mere opera- 420.
tion of law. .nnd flic incdiigruity that
150G
CIIAP. I,] DEBTS AND CLAIMS UPON" THE ESTATE.
1439
tion, without realizing upon them.^ His right of indemnity may
sometimes create an equitable debt as to which he may retain.^ The
executor or administrator, it is held, may retain for a debt whose
direct suit would be barred by the statute of limitations,'' and not-
withstanding the estate is insolvent; ^ but he cannot retain to the
prejudice of his co-executor or co-administrator.^
In the United States, if the preference among equal creditors
is not favored, still less is that of the executor's or administrator's
retainer for his own debt. Confession of judgment, under such
circumstances, is viewed with suspicion, nor will the judgment be
treated as proof of the debt.^ It is held that the representative
cannot retain for his own legacy or distributive share to the detri-
1. Loane v. Casey, 2 W. Bl. 968;
De Tastet v. Shaw, 1 B. & Aid. 664.
Whether the executor, by instituting
an administration action on behalf of
himself and all other creditors,
waives his right of retainer, see
Campbell v. Campbell, 29 W. R. 233.
And see Richmond v. White, 27 W. R.
878. Tlie right of retainer is not af-
fected by the later judicature act
abolishing the distinction between spe-
cialty and simple contract debts. L.
R. 16 Ch. D. 388.
2. Gilbert Re, (1898) 1 Q. B. 282.
As to an annuity, arrears or future
payments, see Fowler v. James,
(1S96) 1 Ch. 48. As to a deceased
pauper who has been publicly main-
tained, see (1895) 1 Q. B. 59.
3. Giles Re, (1896) 1 CK 956.
And see Rhoades Re, (1899) 2 Q. B.
347; Davies v. Parry, (1899) 1 Ch.
602 (insolvency); Beavan Re, (1913)
2 Ch. 595; (1914) 1 K. B. 283 (stat-
ute).
4. Hopkinson v. Liac-h, cited Wms.
Exrs. 1049; Stahlschmidt v-. Lett, 1
Sm. & G. 415; (1896) 1 Cb. 844. But
cf. 15 Lea, 438.
15
5. Davies v. Parry, (1899) 1 Ch.
602.
6. 11 Vin. Abr. 72; 9 Mod. 268.
The representative may retain for as-
sets which came to his hands mid
which he pays over to a receiver; but
not for assets collected by a receiver.
The right is capable only of being ex-
ercised against assets which come into
his hands. 32 Ch. D. 395.
An executor or administrator can-
not retain for a debt due himself
which is unenforceable because of the
Statute of Frauds; for he is no bet-
ter than any other creditor of the
estate in this respect. Rownson Re,
29 Ch. D. 358 ; siijjra, § 1392. As to
setting off the representative's claim
from the estate against what he owes
it, see 25 Ch. D. 175. The repre-
sentative has a right of retainer for
a debt of his decedent only when he
actually pays it. See Beavan Re,
(1913) 2 Ch. 595 (surety for the tes-
tator ) .
7. Smith V. Downey, 3 Ired. Eq.
268: Finch v. Ragland, 2 Dev. Ch.
137; Hubbard v. Hubbard, 16 Ind.
15; Henderson v. Ayers, 23 Tex. 96.
07
1439
EXECUTOES AXD ADMIXISTE_\.TOES.
[part V.
ment of other legatees and distributees similarly entitled.^ And,
though in a few States the English doctrine of retainer may still
prevail,^ the better American policy insists that creditors of the
same rank shall have equal opportunity. In Xew York and Mis-
souri, the right of retainer has been expressly abolished.^ Other
States, in establishing the system of classification and allowance
of claims by the probate court, by inference exclude such right."
Some local statutes to check abuses of this sort, require further,
that, whenever a debt, claimed by the representative as due to him-
self from the deceased, is disputed by any person interested, the
claim shall be stated fully of record, and submitted under direc-
tions of the probate court to referees agreed upon by the claimant
and the objecting party.^ Such a claim, however allowed, must
take its full or its ratable proportion with those of other creditors.*
In Xew York the surrogate has jurisdiction to adjudge or allow a
8. Gadsden v. Lord, 1 Desan. 247.
9. Williams v. Purdy, 6 Paige, 166 ;
Page V. Patton, 5 Pet. 303; 2 Dev.
& Bat. Ch. 255; Harrison v. Hender-
son, 7 Heisk. 315; 5 Lea, 508; Wms.
Exrs. 1039, Am. ed., n. by Perkins.
1. Treat v. Fortune, 2 Bradf. Sur.
116; 6 Thomp. & C. 288; Nelson v.
Russell, 15 Mo. 356. And see 10 S.
C. 354.
2. Wriglit V. Wright, 72 Ind. 149;
4 Redf. 263, 499. It must be proved
and allowed by the probate court. 58
Md. 442; 92 Cal. 433, 28 P. 486.
3. Mass. Gon. Stats, c. 97, §§ 26,
27. Cf. Dana v. Prescott. 1 Mass.
200; Willey v. Thompson, 9 Met. 329.
Whether the representative who has
a claim against the estate is bound
to present it within the time allowed
to other creditors, where he retains
assets, see Sanderson v. Sanderson, 17
Fla. 820. He cannot sue himself at
law to recover a debt due to him
from the decedent. 11 R. I. 270.
4. See also Hubbard v. Hubbard, 16
Ind. 25; Henderson v. Ayres, 23 Tex.
96, 65 A. 212. As to the presentment
of the legal representative's private
claim to the judge of probate under
local statute, see ilcLaughlin v. Xew-
ton, 53 N. H. 531; Duflfy v. McHale,
85 A. 36, 35 R. I. 16; Wetmore Gran-
ite Co. v. Bertoli, 88 A. 898, 87 Vt.
257. In New York the surrogate has
power to pass upon a disputed claim
of an executor or administrator
against the estate. Flood, Matter of,
6 Abb. (N. Y.) Pr. N. S. 407; 6
Thomp. & C. 288; 4 Rodf. 263. See
text.
This right of retainer, for the rep-
resentative's own debt against tlie
decedent, is to be distinguished from
his claim for disbursements and tlie
charges of administration, for which
he has a lien. See supra, § 1259;
§ 1526, post.
1508
€nAP. I.] DEBTS AND CLAIMS UPOX TILE ESTATE. § 1440
claim legal or equitable, of an executor or administrator, against
the estate represented by him, whether he holds such claim in a
representative capacity or as an individual.^
§ 1439a. The same Subject.
Where a testator leaves to his executor a less amount than is
actually due him in payment of the debt, and the executor proves
the w^ill and takes letters, he cannot, it is held, claim more than the
amount so given him, even though he qualified ignorantly.® And
though a will should give the executor power to pay, if he sees
proper, just debts baz*red by the statute of limitations, the execu-
tor cannot pay his own debt which is thus barred.^
But one's own fair and honest claim upon the estate ought on
principle to stand upon as good a footing, at least, as other claims ;
and where real estate may be sold under express power or a license
for the payment of debts, such sale may be lawfully invoked for
the payment of a debt, in no way invalid or outlawed, which is due
the representative.^
§ 1440. Interest on Claims presented.
Interest is not allowable from a decedent's estate, where, from
the nature of the debt, no interest was due; and the claims of
creditors with whom settlement is made in the ordinary course of
administration, are usually dealt with on the footing they occupied
in this respect at the date of the decedent's death.^ Statutes some-
times prescribe a different rule, however, where especial delay
arises, as in the settlement of an insolvent estate ; and upon special
contract with the representative himself, or on the ground of his
•delinquency, a creditor may sometimes claim interest as against
5. Neilley v. Neilley, 89 N. Y. 352. post. The representative ought to
6. Syme v. Badger, 93 N. C. 706. present in due time and prove his
Cf. § 1546. claim like those of third persons. 92
7. Williams v. Williams, 15 Lea, Cal. 433.
438. Cf. 8 Bush, 564. 9. Davis v. Wright, 3 Hill (S. C.)
8. O'Flynn v. Powers, 136 N. Y. 560; Durnford's Succession, 1 La.
412, 32 N. E. 1085. And see Part VT. Ann. 92. And see 78 Ky. 548.
1509
§ 1441 EXECUTOES AND ADillXISTEATOES. [PAET V.
liim, where lie, on his part, cannot biuJ the estate in return. Bonds,
notes, and other instruments, given bj the decedent, which ex-
pressly bear interest, must, doubtless, be paid according to their
tenor.^
§ 1441. Mode of paying off Claims; Extinguishment, etc.
Debts are to be paid in money which is legal tender, or according
to the original contract, or as the creditor and representative may
mutually agree.^ But, as between the representative and the es-
tate, the prudent interests of the estate must be protected. If the
executor or administrator pays off the debts at a discount, he is
entitled to a credit only for the sums paid ; ^ but, in thus procuring
a discount, advantages which may prudently be gained for the
benefit of the estate, it is proper for him to secure.*
But a promissory note given by an executor or administrator, for
a debt of the testator or intestate, is neither a payment nor an ex-
tinguishment of such debt ; but, at most, it only suspends the right
of action on the original debt, until the maturity of such note.^
A creditor, we may add, cannot pay himself by withholding the
property of the estate in his possession from the administrator ; ^
1. Interest is allowed in some cases receipt of sufficient assets to pay his
of fraud or wrong by decedent. See own debt is held an extinguishment
Batty V. Greene, 92 N. E. 715, 206 of that debt where the doctrine of re-
Mass. 561. See, further, Hursey v. tainer prevails. 27 Ala. 130; 4 Dev.
Surles, 74 S. E. 618, 91 S. C. 284 103; 2 Hill, 340. But see 7 Heisk.
(claim for services to decedent) ; 110 315.
P. 699, 15 N. M. 258. 6. Roumfort v. McAlarney, 82 Penn.
2. See Magraw v. McGlynn, 26 Cal. St. 193. But as to charging against
420. As to the payment of debts in a fund in his hands by way of set-off.
Confederate money, see Carruthers v. see supra, § 1190.
Corbin, 38 Ga. 75; McGar v. Nixon, If a claim against an estate is coni-
36 Tex. 289; supra, § 1310. promised, the whole benefit sliould go
3. Heager's Executors, 15 Johns. to the estate. Supi'a, § 1330; Wms.
65; Miller v. Towles, 4 J. J. Marsh. Exrs. 1842. An executor or adminis-
255. trator will not be allowed to settle
4. As to paying a bank in its own such a claim for less than its face,
paper, see Wingate v. Poole, 25 111. and appropriate the difference. Cox
118. V. John, 32 Ohio St. 532.
5. Taylor v. Perry, 48 Ala. 240. A
1510
CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE. § 1444
yet proper offsets one makes in striking the balance due from him-
self as a debtor are allowable without special formality.^
§ 1442. Personal Liability of Representative for Debts.
An executor or administrator, whose conduct is honest and pru-
dent, and whose course conforms to law, does not become liable, in
his private capacity, for debts of the deceased, or charges against
the estate, concerning which he entered into no express undertak-
ing. If assets fail to satisfy all claims in due order of preference,
and he kas used the assets properly, as far as they go, creditors of
the estate cannot pursue him farther.^
§ 1443. Payment, or Advancement, out of Representative's own
Funds.
In American practice, an executor or administrator who pays
the debts of his testate or intestate, out of his private funds, or
advances the money therefor, has usually no right of subrogation
to tire original creditor, and can. acquire no undue advantage
over heirs, devisees, and others interested in the estate, by doing
so.^ The debt becomes extinguished; and his proper mode of re-
imbursement is by way of account with the estate. After he shows
in the legal manner that there is a balance due him from the estate,
upon faithful administration, he has a right to recover or retain it
out of the personalty, if there be any left, otherwise out of proceeds
of the land, and thus be reimbursed.^
§ 1444. Recovery of Over-Payment from Creditor.
Where the executor or administrator has full authority to prefer
among equal creditors, as under the old English rule, he will have
7. 92 Cal. 293, 28 P. 287. 9. Gist v. Coekey, 7 Har. & J. 135;
8. Eno V. Cornish, Kirby, (Conn.) McClure v. McClure, 19 liid. 185.
S97; Rucker v. Wadlington, 5 J. J. 1. Blank's Appeal, 3 Grant (Pa.)
Marsh. 238; Ritter's Appeal, 23 Penn. 192; Frary v. Booth, 37 Vt. 78; Hill
St. 95; Orange County v. Kidder, 20 v. Buford, 9 Mo. 869; Part VII. c.
Vt. 519. 2, as to allowances on accoumt.
1511
^ 1445 EXECUTOES AXD ADMINISTRATOKS. [pART V.
neither right nor occasion to recall his deliberate act.^ But the
operation of our American rule is different. Payments made with-
out an order of the probate court, which classifies and allows
claims, are in some States irregular; and in States which permit
of a specified time for the presentation of claims, the executor or
administrator incurs a personal risk if he pays any debt sooner,
and if later claims, seasonably presented, show a deficiency of as-
sets. While his own liability is none the less, in such a case, how-
ever, it is generally conceded that the excess may be recovered by
him from the creditor thus imprudently overpaid; the inference
being that only such payment as the estate could really afford was
intended by him.^
But the equity of a creditor honestly accepting payment, where
no order of court was needed, is considered in some cases superior
to the equity of the representative for a refund, where the latter
voluntarily paid regardless of preferred claims, and the assets
prove deficient.*
§ 1445. When Heirs of Next of Kin, etc^ are liable for Debts of
the Deceased.
Apart from their own personal undertaking, moreover, heirs and
next of kin are not to be held liable for debts of a deceased person.
Where they, or others in interest, are held responsible at all, the
theory is, that the person has received property through the de-
ceased which was fairly subject to the prior incumbrance of his
just debts and the usual charges consequent upon his death. Stat-
utes which provide for the enforcement of such inchoate and con-
tingent claims as may accrue after the limited period for settling
the estate are framed upon this theory.^ And, since the personalty
2. See Johnson v. Corbett, 11 Paige, 4. Findlay v. Trip;;i. R3 Va. 539, 3
SOfj; § 1437, supra. S. E. 142; 2 Rawle, 118, 19 Am. Dec.
3. Hoard v. Drake, 4 Gray, 514; 627. As to relirf in (xiuity for mis-
Walker V. Hill, 17 Mass. 380; Beatty take, see 50 S. E. 680, 146 N. C. 258.
V. Dufief, 11 T^. Ann. 74; 42 X. J. Eq. 5. Sw Walker v. Byers, 14 Ark.
f)28. But cf. Lawson v. Hausborough, 246; ]VIa8a. Gen. Stats, c. 97.
10 B. Mon. 147.
1512
CHAP. I.] DEBTS AITD CLAIMS UPON TlIE ESTATK § 1446
constitutes the primary fund for that purpose, no liability can be
imposed upon heirs-at-law, bj reason of their inheritance, save
upon a deficiency of personal assets. The general doctrine is here
respected, that one person cannot, against his consent, be rendered
liable out of his own means for the indebtedness of another.^
§ 1445a. Debt of Legatee, etc., to the Estate.
Where a legatee or distributee owed the decedent personally, it
may often be convenient and proper, an behalf of the estate, to
deduct the amount of such debt when paying over the legacy or dis-
tributive share.'' This retainer or deduction is the representative's
right and he should enforce it wherever needful.^
§ 1446. Payment of Debts and Claims where the Estate proves
Insolvent.
Where the decedent's estate is found insolvent, the legal priori-
ties among claimants should be strictly observed ; and special pro-
vision is made, both in England and various parts of the United
States, for a fair distribution of the estate, under such circum-
6. Selover v. Coe, 63 N. Y. 438. For tive's own advances, Taylor v. Taylor,
this doctrine, as applied to surviving L. R. SO Eq. 155 ; Kelly v. Davis, 37
liiisband or wife, see Schoul. Hus. & Miss. 76. See, further, 37 Ala. 74,
Wife, Part VIII, cs. 1, 3. But an 76 Am. Dec. 347; 2 Snced. 200; Nel-
heir may appear and object to a son v. Murfee, 69 Ala, 598; 107 Ga.
claim, to protect his remote interest. 108, 450, 73 Am. St. Rep. 135, 32
134 N. W. 663, 148 Wis. 548. And S. E. 951.
see 125 P. 832, 62 Oreg. 593. 8. Where one's indebtedness equals
7. Helmsley v. McKim, 87 A. 506, or exceeds hia residuary or distribu-
119 Mo. 431; Hoffman v. Hoffman, tive share he is entitled to nothing;
88 Md. 60, 40 A. 712; Webb v. Fuller, but a probate judgment does not lie
85 Me. 443, 22 L. R. A. 177, 27 A. for excess of the debt. Caldwell v.
346; Fiscus v. Fiscus, 127 Ind. 283, 26 Caldwell, 121 Ala. 598, 25 So. 825.
N. E. 831. As to permitting an exec- See, further, Morris v. Dorsey, 85 A.
utor or administrator to set off a debt 1134, 80 N. J. Eq. 555; Turner v.
due to his decedent against the leg- Turner, (1911) 1 Ch. 716 (debt of
acy or distributive share payable, see a partnership to which the legatee
also Courtenay v. Williams, 3 Hare, belonged) ; Abrahams Re, (1908) 1
539; Hodgson v. Fox, L. R. 9 Ch. D. Ch. D. 69 (debt owing by install-
€73: 23 W. R. 826: 28 W. R. 914; ments).
Cutliff V. Boyd. 72 Ga. 302. And As to such a debt constituting
see, as to setting off the representa- assets of the estate, see § 1208, supra.
1513
§ 1446
E5ECUTOES AXD ABMIXISTEATOES.
[part V.
stances.^ A reasonable time is allowed after one's appointment for
representing the estate as insolvent/
9. See sitpra, §§ 1425, 1434. Em-
barrassing questions often arise in
dealing with the insolvent estates of
deceased persons; but, as statutes of
this character are of purely local
origin and application, no general
exposition of the law appears re-
quisite, beyond what is elsewhere
stated of the precedence of claims,
the abatement of legacies, marshal-
ling assets, and creditors' bills in
chancery.
In modern English practice, the
creditors' bill in chancery has become
the usual resort for compelling a
just distribution of assets among the
creditors of a deceased insolvent, as
already indicated in the course of the
present chapter. Wms. Exrs. 1037 ;
supra, § 1437. See 19 Q. B. D. 92.
The same course must be pursued in
various American States, where chan-
cery jurisdiction prevails, and no
statute modifications have been intro-
duced. A bill is thus brought to mar-
shal assets and settle the estate. See
Peak V. Jones, (1914) 1 Ch. 742
(right of representative to recoup for
advances ) .
In various American States, how-
ever, the executor or administrator
should seasonably announce the fact
of insolvency to the probate court;
and upon such representation (which
need not be marie if the estate would
be used up in paying preferred
claims) the probate court appoints
commissioners to examine all claims
which may be presented. These com-
missioners appoint times and places
of meetings, to receive claims, ex-
amine claimants upon oath, if
necessary, liquidate and balance all
mutual demands, and make due re-
turn to the court; six months being
the time usually allowed for proof of
claims. Upon the basis of their re-
turn, the estate is adjusted under
direction of the probate court, ap-
peal meanwhile lying, however, on
behalf of a dissatisfied creditor, from
the decision of commissioners to the
temporal courts. The rules of pro-
cedure in insolvent estates are fully
detailed in such statutes, concerning
whose interpretation there are num-
erous decisions. See Mass. Pub. Stats,
c. 137 ; Smith Prob. Law, 3d ed. c. 13.
And see Redfield's Surrogate Prac-
tice, 402; Johnson v. Corbett, 11
Paige, 265.
Instead of employing commission-
ers, some statutes direct the probate
judge himself (at all events in es-
tates below a specified value in
assets) to perform the duty of exam-
ining and passing upon the claims
presented. See supra, § 1434; Gary's
Probate Law (Wisconsin, Michigan,
Minnesota, etc.) ; § 1368 et seq.
Whether the representative who ig-
norantly pays a creditor, and then
finds the estate insolvent, maj' prove
the debt in the name of the creditor,
see 17 Mass. 380; Heard v. Drake, 4
Gray, 514; 10 B. Mon. 147.
1. See local codes on this subject.
And as to selling land, where the
personal assets prove insufficient, see
post, Part VI.
See, further, 133 N. W. 120, 152
I'Owa 6S6 (preferred claim for labor) ;
Lowentraut v. Jack.son, 81 A. 743,
82 N. J. 403 (percentage payable on
1514
CHAP. I.] DEBTS AXD CLAIMS UPON THE ESTATE. § 144Ga
§ 1446a. New Assets for Payment of Debts.
As a general rule no property can be considered new assets, so
as to revive debarred and unsatisfied claims, which has been in the
hands and under the control of the executor or administrator, or
has been inventoried, or which is the product of such property,
although it may have assumed or been converted into a new form.^
But what are properly new assets may be applied to properly out-
standing claims.^
§ 1446b. Buying up Claims, etc.
While an executor or administrator should not speculate nor
collude with others for his own profit, third parties, it is held, may
lawfully buy in debts of the estate at a discount and collect their
face value or purchase the claims of legatees, where no fraud ap-
pears, and the estate proves solvent.'*
§ 1446c. General Conclusion as to Debts and Claims.
In a broad sense it may be said that the executor or adminis-
trator holds the estate of his decedent primarily as a trust fund for
preferred charges and the payment of the decedent's debts.^ Claims
in respect of negotiable instruments follow the peculiar negotiable
rule.^ Wliere the decedent was a surety for another, or jointly and
severally liable, a claim against his estate will hold good.' "WTiere-
ever judicial allowance of a claim is attacked, the procedure should
be direct, as in judgments of a court generally.^
claims) ; 93 N. E. 641, 207 Mass. 207 as to a purchase by the executor or
(solvent and insolvent estate disting- administrator, see § 1358.; 32 Ohio
uished) ; Ryan v. Lyon, 99 N. E. 169, St. 532.
212 Mass. 416 (suit by creditor de- 5. Bankers' Surety Co. v. Meyer, 98
barred). N. E. 399, 305 N. Y. 219.
2. Littlefield v. Eaton, 74 Me. 516. 6. See Selvee v. Crutchfield, 142 S.
3. See Quincy v. Quincy, 167 Mass. W. 1017, 146 Ky. 517 (maker not
536, 46 N. E. 108. And see Bover v. mentally competent) ; Watkins v.
Chapman, 119 U. S. 587, 30 L. Ed. Parker, 134 S. W. 1187, 97 Ark. 497.
532 (domestic and ancillary) . 7. See 166 111. A.pp. 384; sitpro,
4. Owen v. Potter, 115 Mich. 556, 73 § 1428.
N. W. 977. Here the estate was era- 8. Rabbett's Estate v. Connolly,
barrassed and jjenerally believed insol- 133 N. W. 1060, 153 Iowa 607. And
vent, when letters were taken out. But see §§ 1160, 1161.
1515
§ 1448 EXECUTOES AK^D Al>MI]SriSTEATOKS. [PAKT V.
CHAPTER IL
SPECIAL ALLOWANCES TO SUKVIVIKG SPOUSE AISTD MINOE CHILDREN.
§ 1447. Wife's Paraphernalia, Separate Property, etc., do not
enter into Administration of Husband's Estate.
The surviving wife's rights should be studied in connection with
the law of husband and wife, which is well known to have changed
its whole scope and bearing since the common law defined the rules
of coverture centuries ago. What have been termed the widow's
paraphernalia, or the suitable ornaments and wearing apparel of
a married woman, remaining at the time of her husband's death,
imdisposed of by him, exist as hers, by exception to the old rule
that all her chattels became her husband's, while all his remained
his own.-^ An exception of far wider consequence, under equity
decisions and the recent married woman's legislation in England
and the United States, is that of the wife's separate property.''
§ 1448. Widow's Allowance under Modern Statutes.
A widow may have rights, by way of distribution or dower, or
as a legatee or devisee, in the estate which her husband left at his
death. And, furthermore, we are to observe, that as a claimant
for the immediate support of herself and the young children of her
deceased spouse, modem legislation deals liberally with her. Let
us here examine her rights in this latter aspect.
The statutes relating to what is familiarly known as the widow's
allowance provide, in general (though with variations of language),
that such parts of the personal estate of a person de<>eased as tho
1. Schoul. Dom. Rel. § 208; Cora. respectively. Mass. Gen. Stats, o.
Dig. Baron & Feme, Paraphernalia. 96, § 4. Community property set
Local statutes in these times some- apart for the wife's homestead does
times provide expressly that the ar- not constitute assets. 120 Cal. 421,
tides of apparel and ornament of the 52 P. 708.
widow and minor cliildrcn of a de- 2. Schoul. Dom. Rel. cs. 7-10.
ceased person shall belong to them
1516
CIIAP. II.]
SPECIAI. ALLOWANCES.
§ 144S
probate court, having regard to all the circumstances, may allow-
as necessaries to his widow, for herself and family under her care,
shall not be taken as assets for the payment of debts, legacies, or
even (to follow the expression sometimes inaptly used) charges of
administration.^ The intent of such legislation is to make an ex-
press allowance from the husband's estate for the benefit of his
widow and minor children, whenever their circumstances require
it, treating their immediate necessities as paramount to the claims
of creditors. It is to be strictly considered as an allowance out of
the decedent's personal property alone, and not extending to real
estate unless the code provides accordingly ; * and, in general, as
an allowance to be made whether the husband and father died tes-
tate or intestate,^ and as a temporary and reasonable provision
merely.®
3. Mass. Gen. Stats, c. 96, § 5. And
see Strawn v. Strawn, 53 111. 263;
Sherman v. Sherman, 21 Ohio St. 631;
other cases infra; Sawyer v. Sawyer,
28 Vt. 245.
4. Paine v. Paulk, 39 Me. 15; Hale
V. Hale, 1 Gray, 523. But of. 152
Penn. St. 63, 25 A. 164. As to advice
by the representative, see 75 N, C. 47.
5. See, however, Mathes v Bennett,
1 Fost. 189; Iowa code. As for re-
stricting to the amount of cash in
hand, see 113 Penn. St. 11, 4 A. 60.
The sum of $1,000 out of an estate of
$12,000 is excessive. 58 N. H. 44. Cf.
14 Cal. 73. But where mortgaged
realty of the decedent sold for less
than $200 above the mortgage of $100,
the widow may have the rest to the
exclusion of a tax lien. 109 Penn.
St. 75. An allowance may be made
although there are no children, and a
legacy has been left to the widow.
Moore v. Moore, 48 Mich. 271, 12 N.
W. 180. And it may be made al-
though the husband has by will dis-
posed of all. Baker v. Baker, 57 Wis.
382. Under the Iowa code a court
may make an allowance or set off
specific property. McReynold's Es-
tate, 61 Iowa, 585, 16 N. W. 729. The
widow of a non-resident cannot claim
out of local assets although she
comes into the ancillary jurisdiction
after her husband's death. 97 N. C.
112, 2 S. E. 668; 76 Ala. 521. Nor
can proceeds of land outside the juris-
diction be charged with the widow's
allowance. 174 111. 52, 43 L. R. A.
403, 50 N. E. 1083.
As to the wife's bona fide domicile,
though her husband died a non-resi-
dent, see 57 S. E. 372, 144 N. C. 600,
11 L. R. A. (N. S.) 361. See, fur-
ther, 28 La. Ann. 872 (sum fixed);
143 S. W. 1063, 102 Ark. 309 (addi-
tion to dower) ; 140 S. W. 205, 124
Tenn. 355 (two sets of children) ; 34
L. R. A. (N. S.) 1161, 124 Tenn. 528.
6. Woodbury v. Woodbury, 58 N. H.
44.
1517
f 1449 EXECUTORS AND .\j):ministratoes. [past v.
§ 1449. Widow's Allowance; whether confined to Cases of Dis-
tress.
To relieve immediate distress is the main intent of such legisla-
tion ; to provide necessaries for a widow and young orphans, as far
as may be, until the estate is fully settled, or one can make other
arrangements for support.'^ It is not intended to furnish the widow
with a capital for business pui'poses, nor to establish a fund from
which she may derive a permanent income.^ But the allowance,
though evidently designed for temporary relief, is not confined to
cases of absolute and permanent destitution and slender estates;
for a widow who, on a final division of the estate, is likely to receive
a considerable competence, may be without the usual means of com-
fortable livelihood meanwhile; and such cases the judge appears
competent to relieve. Indeed, in some States, it is plainly decided
that even a rich widow may claim the allowance ; ^ and that the
statute provision is of universal application, the discretion of the
court extending only to the amount of the provision.^ But, accord-
ing to the better opinion, an allowance may be refused where no
good reason is shown for granting it.^
The language of the local statute is of consequence, however, in
determining its scope and purpose ; and, in some States, the allow-
ance is so purely for " present support," that it may or may not
be treated as part of the widow's share in her husband's estate, ac-
cording to the court's discretion."'' That the allowance is not to be
deemed, in any sense, as the judge's gift, or as a means of rectify-
ing any apparent injustice to which one may be exposed by the
statute of distributions or the testator's will, appears certain.*
7. Hollenbeck v. Pixley, 3 Gray. by charity or a loan does not debar).
521; Foster v. Foster, 36 N. H. 437; 1. Sawyer v. Sawyer, 28 Vt. 245.
165 Mass. 157, 42 N. E. 505; Niland's 2. Hollenbeck v. Pixley, 3 Gray,
Estate, 143 N. VV. 170, 154 Wis. 514. 524; Kersey v. Bailey, 52 Me. 199.
8. lb. 3. Foster v. Foster, 36 N. H. 437;
9. Strawn v. Strawn, 53 III. 263; Mathes v. Bennett. 1 Fost. (N. H.)
Thompson v. Thompson, 51 Ala. 493; ISO.
100 Cal. 593, 35 P. 341; 152 Cal. 4. Foster v. Foster. 36 N. H. 437;
274, 92 P. 643. See Glover v. Glover. Hollonbock v. I'ixlcy. 3 Gray. 525.
102 N. E. 945, 215 Mass. 576 (relief
1518
CHAP. II.] SPECIAL ALLOWANCES. § 1451
§ 1450. Maintenance for a Particular Period sometimes speci-
fied.
The statutes of various southern States provide explicitly for " a
year's support/' or the maintenance of widow and children for one
year out of the deceased husband's estate.^ Such an allowance ap-
pears to be properly claimed, as such statutes often run, by any
widow for the period specified, regardless of her other means of sup-
port.^ But, in such case, the property actually consumed before the
application for support should be taken into account; and where tlie
widow has lived on her deceased husband's estate for a year after
his decease, using the property at her discretion, she is entitled to
no further allowance of this kind.^ In lieu of the year's provision,
or support, a sum of money may sometimes be awarded.^
§ 1451. Precedence of Widow's Allowance over other Claims;
whether independent of Distribution, etc. ; Effect of De-
cedent's Insolvency.
The statute allowance is usually accorded priority over all claims
of general creditors ; it is sometimes preferred even to the expenses
of administration and funeral ; ^ though, in practice, a probate
court will generally reserve enough for these prior and essential
charges.^ Judgments and other liens are in some instances re-
garded as subordinate; nevertheless, a secured creditor is not to
be thus deprived of rights which he can enforce without the aid of
an administrator or executor.^
5. Cole V. Elfe, 23 Ga. 235 ; 61 Ga. sarily exclude the allowance. Rogers,
410; 78 S. E. 40, 139 Ga. 693; 1 Ex parte, 63 N. C. 110.
Swan, 441; Rocco v. Cicalla, 12 Heisk. 8. Nelson v. Smith, 12 Sm. & M.
508; Grant v. Hughes, 82 N. C. 216, (Miss.) 662. Land is sometimes set
697. apart for her under the local sode.
6. Wally V. Wally, 41 Miss, 657. 56 S. K 1025, 127 Ga. 679.
See as to English statute allowance 9. Mass. Gen. Stats, c. 96; § 5;
CuflFe Re, (1908) 2 Ch. D. 500 (in- Kingsbury v. Wilmarth, 5 Allen, 144.
testate estate). 1. Giddings v. Crosby, 24 Tex. 295;
7. Blassingame v. Rose, 34 Ga. 418 ; Elfe v. Cole, 26 Ga. 197.
36 Ga. IM. But delay in taking out 2. See § 1430 supra. As to widow's
administration beyond a year from allowance out of pledged property,
the decedent's death does not neces- see 96 Ga. 625.
1519
§ 1451 EXECUTORS AND ADMINISTRATORS. [pART V.
As a rule, this immediate allowance is quite independent of one's
prospective distributive share, legacy, or provision under a will ; ^
but. while a mere advancement would by no means meet all neces-
sitous cases, the court, in some States, may at discretion treat the
allowance to a widow as on such a footing ; ^ which, however, ap-
pears contrary to the general policy of such legislation."
According to local statutes as to this allowance, must appear the
bearing of the decedent's insolvency. In some States, paying a
portion of the assets for the support of the widow and children,
when the estate is insolvent, is not justified; and, certainly, an
executor or administrator could not do so, at his own discretion,
by way of advancing more than would be theirs on a final settle-
ment.^ On the other hand, in 'States which confide the amount to
the discretion of the court, and accord to this allowance an express
precedence, insolvency is no barrier ; and it is not uncommon, where
the husband has died insolvent, leaving few assets, for the whole
of the personal property to be thus awarded to the widow (less,
perhaps, the necessary preferred charges), whereby is afforded an
expeditious means of settling a small and embarrassed estate.''
3. Meech v. Weston, 33 Vt. 561; 5. See Davis v. Davis, 63 Ala. 293;
Foster v. Fifield, 20 Pick. 67; Haven's 86 A. 708, 239 Penn. 153.
Appeal, 69 Conn. 684. Such allow- Statutes do not always give the
ance may take precedence of a tax widow's allowance a priority over
lien. 109 Penn. St. 75. Of general charges and expenses of administra-
creditors and judgment liens: but as tion, funeral, etc. McCord v. Mc-
to other liens and equities she takes Kinley, 92 111. 11. And, as to admin-
as her husband held it. 95 N. C. istration, it is certain that, in many
504. See 131 N. W. 647, 151 Iowa instances, unless administration was
441; 132 P. 67 (Colo.). The widow granted and its expenses paid, there
cannot be postponed to a creditor's would be no fund available for mak-
claim by either court or admin istra- ing the widow's allowance from,
tor. 67 Iowa, 110. And if the widow Where the personal estate is small,
surrenders exempt property to her however, it may be awarded to the
husband's creditors where the estate widow, provided there is real estate
was solvent in fact, her allowance which may be sold for the funeral
uliould be made her. 65 Wis. 551, 27 expenses, etc. McCord v. McKinley,
K. W. 351. supra.
4. Mathes v. Bennett, 1 Fost. (N. 6. TToischler, Re, 13 Iowa, 597.
H.) 1S9. 7. Buffum v. Sparhawk, 20 N. H.
1520
CHAP. IT.]
SPECIAL ALLOWANCES.
§ 1453
§ 1452. Decree of Allowance, etc., how enforced.
The allowance to widow and children being duly decreed, the
executor or administrator in charge of the estate should make pay-
81; Brazer v. Dean, 15 Mass. 183;
Johnson v. Corbett, 11 Paige, 265;
Hampson v. Physick, 24 Ark. 562.
And as to " a year's support," see
Elfe V. Cole, 26 Ga. 197; Nelson v.
Smith, 12 Sm. & M. 662. See 96 Cal.
584, 31 P. 915. Excessive amount
reduced. 155 Mass. 141, 29 N. E.
371. The fact that friends relieve by
their charity does not debar allow-
ance. 155 Mass. 153, 29 N. E. 375.
See 107 Ga. 108, 450; 73 Am. St. Rep.
135, 32 S. E. 951, 33 ib. 425 (no dis-
tribution of an estate exhausted by
the widow's allowance ) .
The nature and circumstances of
this allowance require that it should
be promptly sought. Ordinarily, the
application should be made as soon
as the inventory of the estate is re-
turned, and the court has the means
of judging how much should be
granted. Kingman v. Kingman, 11
Fost. 182. And it should precede the
full administration of the assets. The
petition and proceedings for allow-
ance are simple. Notice to the ad-
ministrator or executor, as one who
has knowledge of the actual condition
of the estate, who represents claim-
ants, and must pay over the sum de-
creed, seems always highly proper;
and yet, in conformity with the local
statute, an ex parte proceeding is in
some States clearly sanctioned. Mor-
gan V. Morgan, 36 Miss. 348; 152 Cal.
274, 92 P. 643; cf. Wright v. Wright,
13 Allen, 207. The allowance should
be moderate, and according to the for-
tune of the deceased and the necessi-
ties of the petitioner. The amount
of the widow's separate property and
means, the circumstance that she is
accustomed or able to earn her own
support or the contrary, the number
and respective ages of her children. —
all these, as well as the value of the
estate, and the prospective distribu-
tion, are facts for the court to con-
sider, as material to the case. Adams
v. Adams, 10 Met. 170; Ilollenbeck v.
Pixley, 3 Gray, 525; Kersey v.
Bailey, 52 Me. 198; Duncan v. Eaton,
17 N. H. 441. The amount suitable
by way of reasonable allowance is de-
creed accordingly at the judge's dis-
cretion. Statute sometimes fixes the
allowance. Claudel v. Palao, 28 La.
Ann. 872.
The discretion of the judge of pro-
bate is considered a legal discretion,
to be judiciously exercised, and sub-
ject (except, perhaps, in extreme in-
stances) to the revision and correc-
tion of the supreme court. Piper v.
Piper, 34 N. H. 563; Cummings v.
Allen, 34 N. H. 194; Kersey v. Bailey,
52 Me. 198. Some statutes give a
permissive right to the petitioner, in
case the decree of allowance is ap-
pealed from, to receive the sum upon
furnishing a bond with sureties con-
ditioned to repay the sum if the de-
cree is reversed. Mass. Gen. Stats,
c. 94, §§ 9, 10.
The widow may have a second al-
lowance, provided such allowance be
just, at any time before the personal
estate is exhausted. Hale v. Hale,
1 Gray, 518; 67 Cal. 349, 7 P. 733. A
9G
1521
§ 1453 EXECUTORS AXD ADMIXISTEATOKS. [PAKT V.
inent accordingly, regarding the statute dignity of the claim, and
charging the sum in his account ; otherwise, the claim may be en-
forced, after a demand and refusal, by action brought by tiie claim-
ant against such representative ; * who, if at fault in withholding
payment, ought, it seems, to be personally cast for the costs. Pay-
ment or delivery having been made in good faith, in accordance
with the decree, the executor or administrator is entitled to have
credit for the same in his accounts.^ A claim against the decedent,
purchased after property has vested in the widow by a decree,
cannot be set oif by a debtor to the estate against the widow's special
claim. ^
§ 1453. Widow's Allow^ance, how barred.
Undue delay in presenting the claim for allowance cannot be per-
mitted, so as to injure those whose rights have become fully fixed,
and among whom a disbursement of sssets has properly begun. ^
Misconduct of the wife, such as adultery or desertion, is also made
an express bar,^ and might otherwise, be taken into consideration
periodical allowance may be dimin- wife to the marriage, however, the
ishcd by the judge on good cause, value of her services to her husband,
but not retroactively. Baker v. Baker, and the like, are not material to tlie
51 Wis. 538, 8 N. W. 289; 53 Iowa, present issue, which is one of actual
467, 5 N. W. 685. and present needs, considering the
An allowance, as it is held, may actual personalty left to supply tliem.
be granted, although provision was Hollenbock v. Pixley, 3 Gray, 525;
made for the widow by her husband's 10 Met. 170.
will in lieu of dower, and accepted by 8. Drew v. Gordon, 13 Allen. 120;
her, and although the executor, being Godfrey v. Getchell, 46 Me. 587.
also residuary legatee, has given bond 9. Richardson v. Merrill, 32 Vt. 27.
as such to pay the debts and legacies. 1. Ilaugh v. Seabold, 15 Ind. 343.
Williams v. Williams, 5 Gray, 24. As to creditors see 73 S. E. 416, 137
Nor does the fact that the wife has Ga. 38. Procedure is in rem. 54 So.
a separate estate prevent the allow- 646, 171 Ala. 521.
ance; at leAst in States where such 2. See Doase v. Cooper. 40 Miss.
estate constitutes in law and equity 114; Kingman v. Kingman, 11 Post,
no fund for the obligatory support of 1S2; cf. Miller v. Miller, 82 111. 403;
wife and minor children. Thompson 121 P. 1003, 162 Cal. 250.
V. Thompson, 51 Ala. 493; Wally v. 3. Cook v. Sexton, 79 N. C. S05;
Wally, 41 Miss. 657. Questions con- 132 Ind. 403.
cerning the contribution made by the
1522
CHAP. II.] SPECIAL ALLOWANCES. § l-i54
as determining her necessities, while the fact of leaving her husband
with apparent justification ought, certainly, not to preclude her
allowance.'' The acceptance of a distributive share would seem to
be inconsistent generally with the claim for allowance.^ Beneficial
provisions under a will, which the widow does not renounce, are
held, in some instances, to exclude her from claiming the allow-
ance; especially when made in lieu of all such claims.® But the
mere release of all claims upon her husband's estate, under a mar-
riage contract, is held no bar to a widow's allowanca^ A separa-
tion deed, followed by separation, may debar, and so may a mar-
riage settlement, antenuptial or postnuptial.^ Yet actual separa-
tion, it is held, is not conclusive as against the widow's allowance,
since it is not made as a wife's meritorious reward but in view
of her actual necessities.^ And the usual rules of consideration
apply in debarring by a marriage settlement.^
§ 1454. Widow's Allowance ; Effect of her Death or Remarriage,
etc., before Grant.
So temporary in its nature and so personal in its character is this
4. Slack V. Slack, 123 Mass. 423. Binns, 92 Penn. St. 348; 84 N. E.
See 31 La. Ann. 854. 192, 233 111. 116, 122 Am. St. Rep.
5. So the acceptance of a succes- 149; 115 N. W. 500, 81 Neb. 33;
sion. Claudel v. Palao, 28 La. Ann. 134 N. W. 1061, 154 Iowa, 428 (ante-
872. nuptial agreement not a positive
6. Turner v. Turner, 30 Miss. 428; bai-) ; 163 Mo. App. 205; Yoell's Es-
54 N. J. Eq. 632, 35 A. 456. But tlie tate, 129 P. 999, 164 Cal. 540.
widow's appeal from the probate of 8. As to litigation on such points,
a will does not estop her irom claim- see Speidel's Appeal, 107 Penn. St.
ing her allowance, independently of 18; 66 Iowa, 79, 23 N. W. 273; 38
that issue. Meech v. Weston, 33 Vt. Ark. 261; 151 Ind. 200, 51 N. E. 328.
561. As to a direction in one's will 9. Chase v. Webster, 168 Ma.ss. 228.
that his family be provided for, etc., Cf. as to fault, 107 N. C. 171, 12 S.
see Reid v. Porter, 54 Mo. 265; Riley E. 60. As to her remarriage, cf. 117
Ch. 152. Cf. 43 Neb. 463, 61 N. W. Cal. 509; 98 Ga. 366, See 111 P. 258,
756. 158 Cal. 428 (wife lii-ing apart) ; 75
7. Blackington v. Blackington, 110 S. K 636, 138 Ga. 544 (not estopped
Mass. 461. And see Sheldon v. Bliss, to claim by her own acts).
4 Seld. 31; Phelps v. Phelps, 72 111. 1. Richter v. Richter, 60 So. 8S0,
545; Pulling v. Durfee, 85 Mich. 34, 180 Ala. 218.
48 N. W. 48. But see Tierman v.
1523
§ 1455 EXECUTORS AND ADMI^'ISTRATOKS. [PART V.
widow's allowance, that where the widow dies before it is granted,
the allowance is lost, even though proeeedings relative to the grant
are still pending; nor does the right survive or go to her personal
representative.^ The effect of her death, after a decree unappealed
from has established her right, absolutely and conclusively, to an
allowance, appears, on the other hand, ,to cause this right of prop-
erty to pass to her personal representatives.^ Eemarriage, too,
before allowance, is held to debar her.*
But, as to minor children, as well as herself, the state of things
when her husband died, is usually the criterion for relief.^
§ 1455. Allowance to Minor Children.
Legislation such as we are considering not only provides that
the allowance to the widow shall be for herself and the family under
her care, but, in some States makes express allowance to the minor
children, in case there is no widow. Under the Massachusetts stat-
ute, the allowance to minor children shall not exceed fifty dollars
for each child.^ Should the widow's death precede the grant of
an allowance, or should there be no widow, an application on behalf
of the minor children of the decedent, if there be any, may, there-
fore, be properly entertained. Statutes authorizing one year's sup-
port may likewise give the children the right to apply by guardian
for the provision, on the death of the widow.' Where minor chil-
dren do not live with, and are not maintained by, the widow, the
probate court sometimes apportions the provision for the benefit of
2. Adams v. Adams, 10 Met. 171; widow's waiver of allowance under
Dunn, Ex parte, 63 N. C. 137; Tar- a marriage settlement does not debar
])ox V. Fisher, 50 Me. 236. The Ohio the minor children. Yoell's E«-
rule is to the contrary. Dorah v. tate, 139 P. 999, 164 Cal. 540; Snead
Dorah, 4 Ohio St. 292 ; Bane v. Wick, v. Scott, 62 So. 36.
14 Ohio St. 505. And see 77 Ga. 232. 5. Hayes Re, 112 N. C. 76, 16
3. Drew v. Gordon, 13 Allen, 120. S. E. 904.
4. Hamilton's P:state, 66 Cal. 576, 6. Mass. Gen. Stats, c. 96, § 5. And
f) P. 49.3; 117 Cal. 509, 49 P. 463. see Leshcr v. Wirth, 14 111. 39.
See 98 Ga. 366, 25 S. E. 831. A 7. Edwards v. McGee, 27 Miss. 92.
1524
CHAP. II.] SPECIAL ALLOWANCES. § 145G
all concerned.^ Such statutes and their rule, the represeutative
must carefully follow.^
§ 1456. Specific Articles of Personalty allowed Widow and Chil-
dren; Exempt Chattels, etc.
American statutes enumerate specific articles of property, in
connection with, or as a substitute for, the money allowance to
widow and minor children. Thus, the Massachusetts act excepts
from assets of the deceased, in addition to this allowance, " such
provisions and other articles as are necessary for the reasonable
sustenance of his family, and the use of his house and the furni-
ture therein, for forty days after his death." ^ Their own articles
of ornament and wearing apparel are expressly confirmed to widow
and minor children; ^ and, under some codes, the widow may take
articles of personal property, at their appraised value, to a stated
amount.^
In various States, the widow is entitled to all the property of
her deceased husband which is exempt by law from sale on execu-
8. Womack v. Boyd, 31 Miss. 443. 1. Mass. Gen. Stats, c. 96, § 5. And
Pamily allowance for a year may go see Carter v. Hinkle, 13 Ala. 529;
to minor children where there is no Graves v. Graves, 10 B. Mon. 41. Ex-
widow. 70 Ga. 733; § 1450. But pressions for the benefit of minor
" children " usually means " minor children are found in such codes,
children " in such connoction. 70 2. Mass. Gen. Stats, c. 96, § 4.
Ala. 381. And " grandchildren " may See "paraphernalia," Schoul. Dom.
be included. 35 La. Ann. 371. If the Rel. §§ 217-219; Stromber's Es-
widow dies, her minor children may tate, 138 N. W. 428, 119 Minn. 325
have a year's support from her es- (widow of a non-resident) ; supra,
tate. 74 Ga. 795. This allowance § 1447.
should be made on liberal, not on 3. Hastings v. Myers, 21 Mo. 519;
narrow lines, as in keeping young Bonds v. Allen, 25 Ga. 343 ; Darden
children at school or college, if the v. Reese, 62 Ala. 311; Leib v. Wil-
condition of the estate justifies it. son, 51 Ind. 550; Fellows v. Smith,
Cheney v. Cheney, 73 Ga. 66. As to 130 Mass. 376. Such permission is
vesting a title in Georgia, see 68 Ga. presumably to take as on account of
66, 641. And see 105 Ga. 305, 31 her share in the estate; but the local
S. E. 186 ; 67 N. H. 512, 38 A. 19. statute sometimes extends it to a sort
9. See 144 Mo. 258, 46 S. W. 135. of special gift from the estate.
1525
§ 1456
EXECUTORS AXD ADMI^'ISTEATOES.
[part v.
tion.* This right appears to exist whether the estate was testate or
intestate, solvent or insolvent, and so that the exempt property shall
not go to the executor or administrator; but the widow's claim is
usually confined to exempt property of her late husband which
remained on hand, as a part of his estate, at the time of his death.^
All such property going directly to the widow, the representative
who converts it is a wrong-doer, and makes himself individually
liable ; ® unless he is required to take a tem]x>rary charge of such
property, as, for instance, for the purpose of making his inventory.^
4. Thompson v. Thompson, 51 Ala.
493: Taylor v. Taylor, 53 Ala. 135;
Whitely v. Stevenson, 38 Miss. 113;
Pride v. Watson, 7 Heisk. 232; 92
Tenn. 715, 23 S. W. 66; 151 Penn. St.
577, 25 A. 146; 79 Tex. 189, 14 S. W.
915.
5. Johnson v. Henry, 12 Heisk. 696.
6. Carter v. Hinkle, 13 Ala. 529;
Morris v. Morris, 9 Heisk. 814. And
see, as to " marital portion " to a
surviving spouse in necessitous cir-
cumstances, Newman's Succession, 27
La. Ann. 593.
As to what the code gives a widow
as " head of the family," see Schaff-
ner v. Grutzmacher, 6 Iowa, 137;
Paup V. Sylvester, 22 Iowa, 371.
Statutes recognize the right to re-
ceive money in lieu of exempt or other
specific articles. Reavis, Ex parte, 50
Ala. 210.
7. Voelckner v. Hudson, 1 Sandf.
315. The administrator cannot pur-
sue such property. Wilmington v.
Sutton, 6 Iowa, 44. The selection of
property by the wido\v vests her with
the title at once. 73 Ala. 542; 117
Ala. 432.
The right in Missouri is absolute,
and requires no election on her part
to take the property, and her husljand
cannot dispose of the property against
her. 77 Mo. 162.
A widow may select a watch under
the JIarylond code among other ar-
ticles. 62 Md. 560.
As to provisions relating to a widow
who is " housekeeper," and •' head of
a family," see 14 111. 39: 27 111. 129.
And as to " implements of industry,"
see 72 Mo. 656; 122 Cal. 434, 55 P.
158. Specific articles to be set apart
to the widow will be found enumer-
ated in certain codes. York v. York,
33 111. 522; Brigham v. Bush, 33
Barb. 596; 1 Sandf. (N. Y.) 215.
Pennsylvania statutes provide, after
a peculiar expression, as to the re-
tention of exempted chattels for the
comfort of the widow and family, and
as to property to a certain value.
1 Ashm. 314; U. S. Dig. 1st series,
Executors & Administrators, 2712: 91
Penn. St. 34; 134 Penn. St. 377, 19
A. 684. By Texas statute, allowance
should be made, and exoj]q>t property
set apart, by the court without any
request. Connell v. Chandler, 11 Tex.
249.
So far as it may be said that the
right to specific articles under a stat-
ute vests immixliatelj- upon the dcatli
of the husband, and is not contingent
1526
CHAP, IT,]
SPECIAI. AIXOWANCES.
§ 1^57
§ 1457. Use of Dwelling House ; Widow's Quarantine.
The Magna Charta of Henrj III., which established and defined
the rule of dower, made a special provision that the wi-dow might
tarry forty days after her husband's death in her husband's house.*
The latter privilege has since been known as the widow's quaran-
tine, a right prelimiuaiy t-o assigning her dower, and has been ex-
pressly recognized by statute in some of the United States, apart
from its existence by force of the common law alone; ^ our l^isla-
tion tending, moreo\'«r, to afford the same shelter to the minor chil-
dren, and to extend the privilege to the use of the furniture therein,
and the consmnption of provisions and articles necessary to suste-
nance.^ In Ohio, it is held that the widow's statute right is not re-
stricted to a personal continuance in the house, and that she may
rent or occupy during the statute period, as may best promote her
comfort.^ The statute period in various States lasts until dower
is assigned to the widow.^
or subject to allotment or grant under
the court's direction, the right to
these articles, on the widow's death,
without receiving them, devolves upon
her executor or administrator, who
may pursue the property accordingly.
Hastings v. Myers, 21 Mo. 519. Such
articles come to the wife, not through
the husband's will bestowing all of
his estate for her support, but by
virtue of the statutes. Vedder v. Sax-
ton, 46 Barb. 188.
On all such points cases are num-
erous but turn upon the constitution
of local statutes whose language var-
ies in different jurisdictions.
8. 2 Bl. Com. ISo.
9. Mass. Gen. Stats, c. 96, §§4,
5; 35 Ala. 328; Whaley v. Whaley,
50 Mo. 577; Craige v. Morris, 25 N.
J. Eq. 467; Calhoun v. Calhoun, 58
Ga. 247; 96 Ga. 374, 23 S. E. 312;
Young V. Estes, 59 Me. 441; Doane
V. Walker, 101 111. 638; 11 Paige,
265. The husband ought to have
been in actual possession of such
house. 56 N. J. Eq. 126; 38 A. 648;
50 N. J. Eq. 325, 25 A. 181.
1. Mass. Gen. Stats, c. 96, §§ 4, 5.
2. Conger v. Atwood, 28 Ohio St.
134, 22 Am. Rep. 362. And if the
executor or administrator, in disre-
gard of the widow^s right, rents the
mansion house, she is entitled to re-
cover the rent reoeived by him dur-
ing the statute period fixed for her
enjoyment of the premises. lb. But,
in Massachusetts, absence of the wife
from home deprives her of the quar-
antine. Fisk V. Cushman, 6 Cosh. 20,
52 Am. Dec. 761. In Indiana a
widow has the right to crops planted
and liar\'ested within the year. 81
Ind. 292; Hoover v. Agnew, 91 Ind.
370. And see as to growing crops,
39 N. J. Eq. 506; § 1307.
1527
§ 145 Ta
EXECUTORS AJN'D ADMIXISTEATORS.
[part V.
§ 1457a. Widow's Election to take against her Husband's Will.
Our local statutes enlarge upon the old doctrine of the widow's
dower (which might not be absolutely willed away from her by her
husband) by allowing the widow to elect fonnally to take under or
against her husband's will ; and what she shall take in the latter
alternative is defined by the same local statute/ She must make
her election within a stated time — such as a year or less — or she
shall be deemed to have elected to take as the will provides ; and, in
general, lapse of time, her conduct, negative as well as positive, may
pioperly debar her from electing.^ But the widow is not bound by
her election made in ignorance of the facts which should influence
The widow in possession under the
Xew Jersey statute giving her the
right to hold her husband's home-
stead until dower is assigned is not
lilce a tenant for life, and she is not
bound to keep down interest, pay
taxes, or make necessary annual re-
pairs. Spinning v. Spinning, 41 N. J.
Eq. 427; 40 N. J. Eq. 30. If she re-
ceives rent she should account for it,
and is credited for taxes and repairs.
39 N. J. Eq, 506. But she should pay
water rates. 43 N. J. Eq. 215, 10 A.
270.
The lien of a mortgage on land ap-
pears not to be ailected under such
statutes. Kauffman's Appeal, 112
Penn. St. 645, 4 A. 20. As to acts of
the widow, like selling timber and
building a new house, see 27 W. Va.
750; 72 Ga. 665.
Whether dower can be claimed in
addition to what is provided by will
for the widow, see (local statute i
144 Mass. 564; Konvalinka v. Schle-
gel, 104 N. Y. 125.
The removal of the children by their
guardian does not affect the widow's
right to occupy. Zoellner v. Zoellner,
53 Mich. 620, 19 N. W. 556.
15
3. Davenport v. Devenaux, 45 Ark.
341. See Clay v. Anderson. 132 S. W.
1039, 141 Ky. 455 (as between two
mansion houses ) . Booker v. Jarrett,
78 S. E. 754, (W. Va.) as to curtilage.
4. Mathews v. Mathews, 141 Mass.
511, 6 N. E. 776; 39 Hun, 252; Bro-
kaw V. Brokaw, 41 N. J. Eq. 304, 7
A. 414. Dissent from the will is not
necessary for securing the statutory
exemption. Supra, § 1456 ; 73 Ala.
578.
5. Hovey v. Hovey, 61 N. H. 599.
The widow may thus elect to take
dower rather than the statute life-
interest in one-half the estate, real
and personal. Mathews v Mathews,
supra. See 43 W. Va. 226.
As to her election of a homestead
in lands, see Davidson v. Davis, 86
Mo. 440.
Where a widow is of unsound mind,
tlie court in lier interest may elect for
her. Penhallow v. Kimball. 61 N. H.
596; Van Stoenwyck v. Washburn, 59
Wis. 483, 48 Am. Rep. 432, 17 N. W.
289. As to recalling assent, and then
electing against the will, see 97 N.
C. 236, 1 S. E. 452; 149 Ind. 363, 48
N. E. 642.
28
ciiAr. II.]
SPECIAL ALLOWANCES.
§ 145Tb
it.^ She cannot waive provisions in her husband's will which are
not solely for her benefit ; '' nor can she elect partly to accept and
partly to reject what the will offers her.^
§ 1457b. Surviving Husband's Election against his Wife's Will.
Now that our law gives the wife her own property liberally, and
permits her to make her own will, the surviving husband in many
States has a corresponding right to waive provisions on his behalf
under his wife's will.'
6. Elbert v. O'Neil, 102 Penn. St.
303.
7. Leonard v. Haworth, 171 Mass.
496, 51 N. E. 7.
8. Crawford v. Bloss, 114 Mich. 204,
72 N. W. 148.
The widow's right of election is
purely personal, and cannot be exer-
cised by others after her death. 185
Penn. St. 174, 39 A. 818. She is bound
by her acceptance of any provision
expressly made " in full satisfaction
and recompense." 140 N. Y. 421; 66
Vt. 46, 28 A. 419. Cf. 99 Mich. 128,
57 N. W. 1097.
A widow who has elected against
such will is debarred from attacking
in equity chattel transfers made in
her husband's lifetime. 143 Mass.
340, 35 N. E. 660.
9. Buckland's Estate, 86 A. 1098,
239 Penn. 608 (a personal right
only) ; 77 S. E. 852, 161 N. C. 541;
96 Ark. 251, 131 S. W. 450; 130 S. W.
1098, 140 Ky. 277 (time limit strict;
insane person's guardian). So as to
England, see Harris Re, (1909) 2 Ch.
206 (right of election difficult as will
was made) ; 95 N. E. 971, 250 111.
577 (election to take binds).
Recent cases concerning election
against a will by the surviving spouse
are very numerous, turning largely
15
upon local statute. See Simmons v.
Simmons, 150 S. W. 59, 150 Ky. 85
(will leaving the survivor nothing) ;
52 Wis. 295, 9 N. W. 162; 90 Penn.
St. 384, 35 Am. Rep. 666; Cowell's
Estate, 130 P. 209, 164 Cal. 639
(intent of testator to force fl":<l'on) ;
100 N. E. 275, 256 111. 296 (rest of
estate still testate) ; 131 N. W. 323,
114 Minn. 320 (election by guardian
where survivor is insane) ; Fergus v.
Schiable, 135 N. W. 448, 191 Neb,
180 (a personal right only) ; 125 P.
88, 87 Kan. 582; Kennard v. Clay,
75 S. E. 636, 138 Ga. 544; Martin v.
Martin, 84 A. 619, 80 N. J. Eq. 359;
Stockton v. Wooley, 20 Ohio St. 184;
78 A. 1129, 229 Penn. 495; 130 N. W.
789, 150 Iowa 671; 79 N. E. 731, 186
X. Y. 456; 42 N. W. 129, 122 Minn.
190 (failure to dissent).
One should be permitted to ascer-
tain the condition of the estate before
electing; yet a reasonable limit ap-
plies, not too long nor too short. 95
N. E. 971, 250 111. 577; 80 A. 1051,
231 Penn. 520; Koelling v. Foster, 98
N. E. 952, 254 111. 494 (too long
delay); 133 S. W. 982, 142 Ky. 15.
And see Williams v. Campbell, 118
P. 1074, 85 Kan. 631 (estoppel to re-
voke an election). See, further, as to
election of legatee, post, § 1489.
29
§ l-ioTc
EXECTTTOES AXD ADMINISTEATOES.
[part
V.
§ 1457c. The Marriage Relation in Settlement of Estates.
In various other instances a surviving spouse is treated witli
special consideration while the estate is in course of settlement.^
And the reciprocal rights of husband and wife are to be upheld
here with justice and discrimination.^
1. A widow can recover from her
husband's estate the amount paid by
her to discharge valid debts of the
decedent. Gilliam v. Gilliam, 141 S.
W. 370, 146 Ky, 15.
2. See Pepper's Estate, 112 P. 62,
158 Gal. 619 (wife's loan to her hus-
band for his business considered a
claim upon the estate and not her
separate property ) .
Provision made for the wife by her
husband's will, in lieu of dower, etc.,
puts her designedly to her election.
See § 1489 post.
1530
CHAP, III.] LEGACIES. § 1459
CHAPTER III.
LEGACIES, THEIR NATUEE AND INCIDENTS.
§ 1458. This Subject a Branch of the Law of Wills.
The subject of legacies is, properly speaking, a branch of the
law of wills; and, to general treatises on wills, the reader is
usually referred for a detailed treatment of the subject. ]\Iany
intricate problems arise in the equity courts under this head,
which an executor or administrator, as such, may never be re-
quired to solve; but, where embarrassment arises in the inter-
pretation of a testamentary trust, they who administer that trust,
whether trustees or executors, must seek competent legal advice.
The plain directions of a well-drawn and simple will are to be
pursued according to the testator's manifest wishes, and after a
plain and common-sense fashion; and even the close and subtle
analysis which acute judicial minds have given to the most com-
plicated of testamentary provisions, proceeds, after all, upon the
common-sense principle that the testator's just intentions sliould,
if possible, prevail.
It may be advantageous, however, to set here before the reader
the nature of legacies and their chief incidents ; for, to this extent,
at least, every executor should make himself familiar with that
interesting topic of our jurisprudence.^
§ 1459. Legacy defined; Executor under a Will should pay or
deliver; Legacy to Satisfy Debt.
A legacy is a gift or disposition in one's favor by a last will. We
commonly apply the word to money or other chattel gifts, though a
broader reference is not inappropriate ; " bequest " being the more
precise term for a testamentary gift of personalty.^ ISText to see-
1. See 1 Jarm. Wills; Wms. Exrs. 2. A legacy is defined by Godolphin
1051, etc.; Schoul. Wills (Vol. I.) as "some particular thing or things
Book I., Part VI. given or left, either by a testator in
1531
§ 14G0 E5ECUTOKS AND ADMINISTEATOES. [PAKT V.
ing that all just debts and charges are amply provided for, one who
administers under a will should att-end to the payment or delivery
of legacies in accordance with law and the last wishes of his tes-
tator.
While, by " legacy/' our law signifies a testamentary disposi-
tion ; and every testajnentary disposition is admitted to be ambula-
tory, and revocable by the testator during the testator's natural
life; it does not follow that a legacy is necessarily devoid of con-
eideration.^ In fact, a legacy is sometimes left in satisfaction of a
valid debt owing by the decedent * or upon other consideration ;
though the presumption is that one gives by will as a bounty.
§ 1459a. When Testamentary Gift Vests.
A testamentary gift vests generally in interest at the death of
the testator ; but the vesting in possession beneficially may be later.
This distinction is fundamental.^
§ 1460. Description of the Legatee, and who may be such.
Various classes of persons have been treated as disqualified from
receiving legacies under English statutes ; the list being quite simi-
lar to that which pertains to the ofiice of executor.*" Prohibited
classes, however, must be defined by law ; ^ for every person is
his testament wherein an executor is 6. Supra, § 1032-ir.T4, 1432, 1460,
appointed, to be paid or performed by 1490. And see Schoul. Wills, (Vol.
his executor, or by an intestate in a I.) §§ 23, 24.
codicil or last will, wherein no execu- 7. The fundamental terms of its
tor is appointed, to be paid or per- creation are, as to every corporation,
formed by an administrator." Go- properly resorted to for detennininjr
dolpli. pt. 3, c. 1, § 1, cited Wms. Exrs. its legal capacity to take, as legatee
1051. or devisee; tlie main dilliculty being
3. 3 Abb. App. 411. to adjust the weight of presumptions
4. See §§ 1432, 1469, 1490. And properly where those terms have not
see Steglich v. Schneider, 123 N. Y. been clearly expressed. It is not es-
S. 336; 124 N. Y. S. 831; Harper v. sential that the corporate organi/.a-
Davis, 80 A. 1012, 115 Md. 349. tion be complete or final when tlio
5. Brown v. Brown, 97 N. E. GSO, testamentary provision takes cfTeet;
253 111. 466. And see Schoul. Wills, l)ut associations clearly identified,
5§ 559-563. may, like two or more persons, stand
ir>32
CHAP. III.]
LEGACIES.
§ 14G1
capable of taking a legacy as a rule, excepting such as are tlius
expressly forbidden.^ Even an unborn child may by proper desig-
nation under the will be made a legatee,'*
§ 1461. Subject-Matter of Legacies; Specific distinguished from
General Legacies.
All legacies are either general or specific. A general legacy is
entitled to a bequest; and such asFO- the English chancery courts, this be-
ciation may procure afterwards an
act of incorporation from the legis-
lature in confirmation of its right.
Nye V. Bartlett, 4 Met. 378; Zimmer-
man V. Anders, 6 W. & S. 218, 40 Am.
Dec. 552; England v. Prince George's
Vestry, 53 Md. 466. So, too, a cor-
poration named as legatee or devisee
not unfrequently resorts to the legis-
lature, after the death of the testator,
but before the money is payable, to
procure such amendment of its char-
ter as may clearly remove all restraint
upon its capacity to take the benefits
of the will in question. See Wms.
Exrs. 1052, Perkins's note; 4 Dem.
271. A corporation's right to take
by will is subject to the general laws
of the State passed after the incor-
poration. Kerr v. Dougherty, 79 N.
Y. 327. And see England v. Parish
Vestry, 53 Md. 466.
Corporations, public or private, are
not so readily presumed capable of
taking lands under a will as personal
property ; the rule of policy is difTer-
ent in the two instances, and the law
of situs prevails as to land. See
United States v. Fox, 94 U. S. 315,
24 L. Ed. 192; Fox, Matter of, 52 N.
Y. 530. The bequest to the United
States, whence was derived the Smith-
sonian Institution, was sustained in
ing a bequest of personal property.
8. 1 Roper Legacies, 28; Wms.
Exrs. 7th ed. 1052. Among persons
formerly disqualified at English law
were those who denied the Scriptures,
traitors, and artificers going abroad.
Such disqualifications have no appli-
cation to the United States, and the
modern sense condemns them. See
Schoul. Wills, §§ 23, 24 (Vol. I.)-
And as to subscribing witnesses under
a will, cf. W^ms. Exrs. 1053; Schoul.
Wills, § 357 (Vol. I.). See also stat.
1 Vict. c. 26, § 15.
As to aliens, infants, insane per-
sons and married women, modern law
and practice favor their rights to be-
come legatees. 1 Jarm. Wills, 3d
Eng. ed. 70; Wms. Exrs. 1054;
Schoul. Wills, §§ 23, 24.
9. Chambers v. Shaw, 52 Mich. IS,
17 N. W. 223; 57 Mich. 265, 23 N. W.
807. A devise to grandchildren, the
immediate issue of persons in being
at the time of a will, is valid. Mc-
Arthur v. Scott, 113 U. S. 340, 28
L. Ed. 1015. And see § 1465, But
in Connecticut and New York a devise
to persons who may not be in being
at the testator's death, and who may
not be the immediate issue of per-
sons then in being, is pronounced
void. Wheeler v. Fellows, 52 Conn.
238,
1533
§ 1461 EXECUTORS ajstd admixisteatoes. [part v.
one which does not necessitate delivering anj particular thing or
paying money out of any particular portion of the estate. But a
specific legacy is tlie converse of this ; or where a particular thing
must be delivered, according to the terms of the bequest, or money
paid out of some particular portion of the estate.^
Thus, if a testator bequeaths to A. a horse or a gold ring, this
indefinite expression constitutes a general legacy ; for we may infer
that the executor is left free to j)rocure something which shall an-
swer that description out of the funds in his hands, provided none
be left at the testator's decease. But, if the bequest is expressed,
" my roan horse," " the gold ring which C. D. gave me," or (with
reference, not to a present possession, but possession at the time of
one's decease) " whatever horses shall be in my stable," or " all the
books which may be in my library," or " all the furniture which
shall be contained in my dwelling-house," this legacy is a specific
one.^ Or, to proceed with the distinction, should a testator be-
queath $10,000 in the public funds, or $10,000 in first-class rail-
road bonds, or simply $10,000, the legacy would be general ; while,
on the other hand, the bequest of $10,000, " of my stocks in the
public funds," or " of my railroad bonds," answering such a de-
scription, or of " $1,000 out of my savings-bank deposit in B.," it
will be held specific. To the latter class belongs a bequest of all the
stock in the public funds, all the first-class railroad bonds, or all
the savings-bank deposits to which the testator may be entitled at
1. 1 Roper Legacies, 170; Wms. residence is specific. 141 N. Y. S. 705.
Exrs. 1158. "A specific legacy," 2. VVliere one bequeaths all per-
says Langdale, M. R,, " is something sonalty to C. with specific exceptions,
distinguished from the rest of the C.'s legacy is general; bequests of
testator's estate; and it is sufficient money to each of certain persons are
if it can be specified and distinguished general; but the specific chattel.'; ex-
from the rest of the testator's estate cepted from C.'s legacy and specific-
at the time of his decease." 3 Beav. ally given to B. constitute a specific
342. See § 1461a. In Mecum v. legacy to B. Kelly v. Richardson,
Houghton, 86 A. 52, 81 N. J. Eq. 100 Ala. 584, 13 So. 785. See Fon-
319, legacies under a joint will were taine v. Tyler, 9 Price, 94. See also
treated as general and not specific. § 1381.
A bequest of furniture in a certain
1534
CHAP. III.]
LHGACIES.
§ liOl
the time of his death; and so, too, with any designated portion
thereof.^ A specific legacy may be given under a will, with the
substitution besides of a general pecuniary legacy in case of its
failure, to be satisfied in a specific manner."* The balance of a part-
nership settlement not drawn out of the concern, or the good-will
of a business, may be specifically bequeathed, in whole or in part ; ''
and so may a debt or claim in favor of the estate ; "^ and insolvency
of the concern or of the debtor renders the legacy worthless, unless
there was good security with it.
It should be observed, however, that no direction out of what
fund the legacy shall be raised will render that legacy specific,
unless the clear intent was to transfer all or a part of the same
identical fund."^ Xor will a legacy be rendered specific, by direc-
tions incidental to a general bequest; such as a certain srim of
money to be laid out in mourning rings ; or $1,000 to recompense
the executor, or for charity, or to be invested in a prescribed class
of securities, or payable in cash.^ A reference, on the other hand,
3. Bothamley v. Sherson, L. R. 20
Eq. 304; Wms. Exrs. 1162. and Per-
kins's note; Ludlam's Estate, 13
Penn. St. 189; Johnson v. Gross, 128
Mass. 433; 1 Roper Leg. 170; Fon-
taine V. Tyler, supra; Herring v.
Whittam, 2 Sim. 493: Foote, Appel-
lant, 22 Pick. 299. Specific bequests
of money are not frequent ; but such
a bequest may be made as out of a
certain place of deposit, or from a
fund placed in a certain person's
hands, or of money arising out of a
particular security. Lawson v.
Stitch, 1 Atk. 507 ; Perkins v. Mathes,
49 N. H. 107 ; 144 N. Y. S. 457.
4. Fontaine v. Tyler, 9 Price, 94.
There may be a bequest of shares in
the capital stock of a joint stock
company, although the testator held
stocks of the denomination in excess
of the bequest. Norris v. Thomson,
2 McCarter (N. J.) 493. See legacy
of less stock than one o^vned con-
strued as a pecuniary legacy, in Ma-
honey V. Holt, 19 R. I. 660, 36 A. 1.
And see Nottage Re, (1895) 2 Ch.
657; Weed v. Hoge, 83 A. 636, 85
Conn. 490; West Re, (1909) 2 Ch,
180; Bullard v. Leach, 100 N. E. 57,
213 Mass. 117 (specific); 86 A. 52,
81 N. J. Eq. 319; 154 S. W. 378, 153
Ky. 44; 135 N. W. 270, 169 Mich.
578; 87 A. 201, 35 R. I. 438.
5. Ellis V. Walker, Amb. 309;
Fryer v. Ward, 31 Beav. 602.
6. 2 Del. Ch. 200; Farnum v. Bas-
com, 122 Mass. 282.
7. 2 Redf. Wills, 135.
8. lb.: Wms. Exrs. 1162; Richards
V. Richards, 9 Price, 226; Lawson v.
Stitch, 1 Atk. 507; Edwards v. Hall,
11 Hare, 23; Apreece v. Apreece, 1
Yes. & B. 364.
1535
§ 1461a EXECUTOES AXD ADMINISTRATORS. [pART V,
to the fact of one's deatJi for ascertaining liis legacy — as in tlie be-
quest of '' all the horses which I may have in my stable at the time
of my death " — does not render the gift other than specific.^
One important consequence of this distinction between general
and Specific is, that, should the assets prove deficient, general lega-
cies must all abate, while a specific legacy does not ; ^ and, on the
other hand, should the specific legacy fail, or come short, for want
of the identical things described, the legatee can claim no satisfac-
tion out of the general personal estate.^ In some instances, there-
fore, the specific legatee is the better off, and in others the worse.
Since, however, specific bequests, on the whole, interfere with a just
and uniform settlement of an estate as one whole, courts of equity
lean against pronouncing legacies specific in doubtful cases.^
Nevertheless, testamentary intention shall prevail, if duly ex-
pressed ; and so clearly separable in sense is a specific from a gen-
eral legacy, that even though the testator should expressly provide
against the ademption of a legacy specifically identified in his will,
such legacy is not thereby rendered a general one, and denuded of
its other peculiar incidents.'*
§ 1461a. Demonstrative Legacies.
There is an intermediate sort of legacy, known as the demon-
strative legacy.' But the two main classes are general and specific,
9. Bothamley v, Sherson, L. R. 20 demonstrative legacy is a bequest of a
Eq. 309, per Jessel, M. R. thing or money not specified or dis-
1. Except for creditors as a last tinguished from all others of the same
resort. § 1490. kind, but payable out of a designated
2. See post, § 1471, as to the ademp- fund. Kramer v. Kramer, 201 F. 248,
tion of legacies; Wms. Exrs. 1159. 119 C. C. A. 482 (e. g. $10,000 to be
3. See Lord Chancellor in Ellis v. paid out of proceeds of testator's life
Walker, Amb. 309; Wms. Exrs. 1160; insurance policy). And see 141 N.
82 A. 988, 117 Md. 27. Y. S. 922; Marshall Re, 141 N. Y. S.
4. 2 Coll. 435. As to controlling in- 540 (general, where made payable
tent here of the will, see Spinney v. from a demonstrated source if avail-
Eaton, 87 A. 378, 111 Me. 1, 46 L. R. able, otherwise from general estate) ;
A. (N. S.) 535; Ferreck v. Estate, 88 Harrison v. Denny, 77 A. 837, 113 Md...
A., mr,, 241 Penn. 340. 509.
6. Wms. Exrs. 1160; 4 Ves. 555. A
1536
CHAP. III.] LEGACIES. § 1462a
and it is to he remembered that their several incidents are variable
according to a testator's declared wishes.^
§ 1462. Whether a Residuary Bequest can be deemed Specific.
The bequest of all one's personal estate, or the devise and bequest
of all the residue, both personal and real, cannot be treated as
specific ; but such a disposition, from its own terms, is general and
residuary, and subject to the usual payment and satisfaction of
debts and legacies.^ !N^or is a general residuary clause to be other-
wise construed, merely because some of the particulars of which it
shall consist are enumerated in the will.^ But there may be a
specific bequest of all one's estate in a particular locality ; ^ so, too,
the bequest of what shall remain of a specific and identical thing
or fund, after other legacies enumerated shall have come out of it,
or specified incumbrances are removed, may be specific, so long as
the directions be capable of fulfilment without destroying the iden-
tity of the thing or fund itself.^
§ 1462a. What Property is bestowed in Legacies.
One devises land and bequeaths personal property. Legacies are
mostly charged primarily against personal property; but the in-
tention of the testator prevails, and his intent to charge rather the
real estate may be evidenced by express words or it may be implied
from a just consideration of the whole will.^
6. See Pratt Re, (1894) 1 Ch. 491: v. Lauckner, 81 A. 784, 108 Me. 443.
Kelly V. Richardson, 100 Ala. 584, 13 See Jenkinson v. Finance Co., 82 A.
So. 785. 36, 79 N. J. Eq. 247, 100 N. E. 1092,
7. See Wms. Exrs. 1172-1177; 214 Mass. 109; Wallace's Estate, 83
Fairer v. Park, L. R. 3 Ch. D. 309. A. 280, 234 Penn. 459 (real estate
8. Taylor v. Taylor, 4 Hare, 628. specifically devised ) .
9. Nisbett v. Murray, 5 Ves. 150; 2 As a rule general and pecuniary
Vern. 688; Wms. Exrs. 1172. legacies must be paid out of personal
1. lb. property till it is exhausted before re-
2. Wilts V. Wilts, 130 N. W. 906, course can be had to the testator's
151 Iowa 149; Haynes v. McDonald, real estate. Dodd v. Scott, 140 S. W.
96 N. E. 823, 252 111. 236; Mclntire 52S, 105 Ky. 310; 140 N. Y. S. 602.
97 1537
§ 1464 EXECUTORS AXD ADMIXISTEATOKS. [PAET V.
§ 1463. Bequests for Illegal and Immoral Purposes void; Super-
stitious Uses, etc.
A bequest to further and carry into effect any illegal purpose,
which the law regards as subversive of sound paiicv or good morals,
and destructive to the fundamental institutions of society and the
civil government, whether by disseminating such writings or other-
wise, will, on general principle, be held void ; and the executor is
not justified in paying it.^ Men's ideas as to civil polity or follies
of belief are by no means immutable, however.
Whenever a charitable intent appears on the face of the will, but
the terms used are broad enough to allow of applying the fund
either in a lawful or unlawful manner, the gift will be supported,
and its application restrained within the bounds of law.* And,
where some bequests, in a duly probated will, are invalid, and must
fail, the valid provisions, if separable, should nevertheless be exe-
cuted.^
§ 1464. Bequests to Charitable Uses; Statute of 43 Eliz., c. 4.
Gifts to charitable uses had their origin in the Christian dispen-
sation, and are found regulated by the Justinian code.* Our Eng-
3. 2 Beav. 151; 2 My. & K. 697; 1 Petitioner, 134 Mass. 426. But the
8alk. 162; Habeshon v. Vardon, 7 E. older cases, and especially the Eng-
L. & Eq. 228. lish ones, condemn such gifts as for
4. Gray, J., in Jackson v. Phillips, superstitious uses. West v. Slnit-
14 Allen, 556. See Shoul. Wills, § 22' tleworth, 2 My. & K. 684. Legacies
(Vol. 1). for circulating the religious writings
5. Bent's Appeal, 38 Conn. 26. of Jews and dissenters, or for the
As to bequests for " superstitious benefit of their churches and minis-
uses," so called, the policy of our law ters, have been annulled in former
has greatly changed in the course of centuries, which would not bo in the
two centuries, consistently with the present era of enlightenment and tol-
advance of religious toleration. See, eration. But see Dunn v. Byrne
in detail, Wms. Exrs. 1055; Schoul. (1012), App. 40 (vague grant to a
Wills (Vol. I.), § 1421a. A legacy prelate for what he judges the "good
by a Roman Catholic for masses of religion "). See further Sch. Wills,
for the repose of his soul, etc., § 21 (Vol. I.).
is fref]uently pronounced lawful at 6. Code Just. I. 3.
this day. 2 Dem. 87; Sciiouler,
1538
CHAP. III.] LEGACIES. § 1464
lish law on this subject is controlled by the stat. 43 Eliz. o. 4.^
Since this enactment, English courts of equity have treated char-
itable bequests as properly restricted to the purposes therein enu-
merated, and to such, besides, as by analogy may be deemed within
its spirit or intendment. " Charitable use " is a term not easily
defined ; nor does the statute 43 Eliz. define, but rather illustrates
by instances such as might vary from age to age. Lord Camden's
definition, often quoted, that a gift to charity is " a gift to a gen-
eral public use. which extends to the poor as well as to the rich," *
seems to touch the vital point; namely, that the private benefaction,
should be well designed to promote some public object of utility.
Where such is the case, the disposition of English chancery has con-
stantly been to bring the bequest by analogy within the purview of
the statute, even though literal interpretation might have ex-
cluded it.
In this liberal sense, gifts to charitable uses are likewise sus-
tained in all or most of the American States ; our equity courts rest-
ing their jurisdiction upon this statute, as part of the law of Eng-
land which the first settlers brought over with them; or else deriv-
ing it from that earlier common law founded in the precepts of the
Christian religion, and the divine injunction that love of God be
manifested in the love of our fellow-men, — which such enactments
serve only to explain and apply.^
7. 1 Jarm. (ed. 1861), 192. This portation and help of young trades-
statute specifies the following gifts as men, handicraftsmen, and persons de-
charitable : For the relief of aged, im- cayed ; for the relief or redemption of
potent, and poor people ; for the main- prisoners or captives ; for the aid or
tenance of sick and maimed soldiers ease of poor inhabitants; and con-
and mariners; for schools of learning, cerning payment of fifteens, setting
free schools and scholars in univer- out of soldiers and other taxes,
sities ; for the repair of bridges, ports, 8. Jones v. Williams, Amb. 651.
havens, causeways, churches, sea- Sometimes incorrectly ascribed to Lord
banks, and highways; for the educa- Hardwicke, the reporter failing to
tion and preferment of orphans; for designate clearly the individual,
the relief, stock, or maintenance for 9. 2 Story Eq. Jur. §§ 1155-1164; 2
houses of correction; for the mar- Kent Com. 287, 288; Burbank v.
riages of poor maids; for the sup- Whitney, 2-4 Pick. 146, 35 Am. Dec.
1539
§ 146;
EXECUTOES AXD ADMIXISTEATOES.
[part V.
The definiteness or indefiniteness of these charitable trusts is
sometimes an important element in determining the validitv of
such gifts ; as to whether the testator has given for some charity or
is rather leaving his trustees to give or not, according to their own
inclination. But our courts are not disposed to let a good public
object fail if thej can help it, where the testator's intention may be
discovered and he has not confided too great discretion to those
selected to carry out his wishes.^
§ 1465. Bequest void for Uncertainty; or where Principal or In-
come is locked up too long.
There may be bequests void for uncertainty.^ So may the be-
quest fail when given to remain in bulk for some remote, unborn
generation, in violation of the rule against perpetuities.^ l^or
312; Drury v. Natick, 10 Allen, 177;
Wms. Exrs. 1069, 1070, and Perkins's
notes. In Jackson v. Phillips, 14
Allen, 556, Gray, J., quotes approv-
ingly the language used by Mr. Binney
in arguing the Girard Will Case, 41,
that a charitable or pious gift is
" whatever is given for the love of
God, or for the love of your neighbor,
in the catholic and universal sense —
given from these motives and to these
ends — free from the stain or taint of
every consideration that is personal,
private, or selfish." And see 2S Penn.
St. 35; Wills, § 21 (Vol. I.).
The New York doctrine of charitable
uses is drawn from the common law
and local statutes, irrespective of 43
Eliz. Denio, J., in Williams v. Wil-
liams, 4 Seld. 525.
1. See gift to meritorious widows
and orphans to keep them from be-
coming paupers, in Camp v. Crocker,
54 Conn. 21, 5 A. 604: Sowers v.
Cyreniufl. 39 Ohio St. 29, 34 Am. Rep.
418. But a gift to " charitable ob-
jects," such charitable jmrposcs as A.
15
shall deem proper, etc., is of very
doubtful validity. 53 Conn. 242, 5 A.
6S7; Prichard v. Thompson. 95 X. Y.
76, 47 Am. Rep. 9. Cf. Goodale v.
Mooney, 60 N. H. 528, 49 Am. Rep.
334. A will may use such expressions
as " benevolence," " charitable assist-
ance and benefit," etc., in the general
sense of charity. 14 R. I. 412; 52
Conn. 412. Some of our later codes
check charitable bequests by pronounc-
ing them void unless made within a
prescribed period — e. g., two months
— before the testator's death. 154 N.
Y. 199. See Schoul. Wills. (Vol. 1.),
§ 24.
2. See § 464; 2 P. Wms. 387; Jub-
ber V. Jubber, 9 Sim. 503 ; Wms. Exrs.
1155. But mistakes of description
may sometimes be corrected l).y con-
struction. 1 Bro. C. C. 91; Tomkins
V. Tomkins, 3 Atk. 257; Wms. Exra
1152-1155, and Perkins's » notes.
Sclioul. Wills (Vol. T.), §§ 591-597.
3. After some fluctuation in the de-
cisions, the limitation finally fixed
upon is the period of a life or lives
40
dllAi'. 111.]
LEGACIES.
§ 14G5
.should income be locked up too long, to accumulate for distant pos-
terity, and so as to debar immediate survivors of the decedent from
receiving income as well as capital.'*
in being at the death of the testator,
and twenty-one years more: adding,
in case of a posthumous child, a few
months longer, to allow for the period
of gestation. If a further postpone-
ment be attempted, the limitation is
void. Bengough v. Edridge, 1 Sim.
173; 7 Bligh, 202; 1 Jarm. Wills, 226-
229; Schoul. Wills (Vol. I.), § 21. Of
two possible constructions, that seems
to be preferred which would avoid
violating the rule against perpetuities
.ind thus vitiating the bequest. Rand
V. Butler, 48 Conn. 293; 169 111. 432;
48 N. E. 561, 49 A. 320; 84 A. 921, 86
Conn. 217. And see Kennedy v. Ken-
nedy, (1914) A. C. 215. Thus, where
trustees were directed to pay over, in
" three years or earlier or later, in
their discretion," after a designated
life should expire. Brandenburg v.
Thorndike, 139 Mass. 102, 28 N. E.
575.
A devise of property to one's widow
for life, and after her death the prop-
erty to become part of her residuary
estate is valid within the rule. Bailey
V. Bailey, 97 N. Y. 460. Semhle, the
" life or lives in being " may be those
of strangers instead of beneficiaries,
lb. Life or lives in being, without the
addition of twenty-one years, is the
limit of suspension in some State
codes. 61 Wis. 469 ; 50 Am. Rep. 148,
21 N. W. 615 ; 20 Fed. R. 792 ; 102 N.
Y. 161, 55 Am. Rep. 793, 6 N. E. 898.
For a corresponding prohibition of
fidei commissum under the Louisiana
code, see 36 La. An. 754.
A tendency to perpetuity is no ob-
jection, however, to a charitable be-
quest; for charity, it is said, never
fails. 2 Redf. Wills, 546, 547; Odell
V. Odell, 10 Allen, 1; Williams v. Wil-
liams, 2 Seld. 525. But a gift to keep
family tombs in perpetual repair is
objectionable under the rule of the
text. 10 Jur. N. S. 648 ; Coit v. Corn-
stock, 51 Conn. 352, 50 Am. Rep. 59;
Detwiller v. Hartman, 37 N. J. Eq.
347; Fite v. Beasley, 12 Lea, 428;
79 Ala. 423, 58 Am. Rep. 596. And
so as to funds left for a l)ras3 band to
come to the grave every year and play
dirges. 37 N. J. Eq. 347. The Ameri-
can rule against perpetuities is like
the English, but statute qualifications
are found. See 23 Hun (N. Y.), 223.
4. See Thellusson v. Woodford, 4
Ves. 227. The usual rule applies
(where no statute intervenes) to capi-
tal and income alike. Mr. Thellus-
son's will gave a large fortune to ac-
cumulate in trust, income being ad-
ded to principal, during all the lives
in being at his decease, and for
twenty-one years more; in other
words, for the entire period permitted
by the rule against perpetuities. Such
was the public indignation in England
at this heartless bequest, that Parlia-
ment passed an act (39 & 40 Geo. III.
c. 98) which forbade accumulation
thenceforth under trusts longer than
the life of a grantor or settler, and
the term of twenty -one years after his
death, or during the minority of such
as would otherwise be entitled under
the will. This act, still styled the
" Thellusson act," loads the testator's
memory witli a reproach, wliich n)ay
well outlast the suspension of his
1541
§ 1467 EXEcuTOEs a:^t> admixisteatoes. [paet v.
§ 1466. Legacies Absolute or Conditional, Vested or Contingent.
Legacies may be made couditional ; the condition annexed being
either precedent or subsequent; so that, on the one hand, the be-
quest may never take effect, or, on the other, it may take effect with
the liability of being afterwards defeated. Legacies, however, are
usually absolute, or are so given without condition as to vest imme-
diately and fully. Devises and legacies, moreover, may be vested
or contingent, and may be given under such limitations as to confer
an interest in possession to one, and an interest, by way of remain-
der, to another, thus giving rise to many abstruse questions not
properly discussed in a treatise like this.^ But every interest under
a will vests at the decease of the testator, unless otherwise provided ;
and even an interest to take effect in possession after a precedent
one, may vest simultaneously with it in right, so as to devolve upon
the executors or administrators of any legatee who, having survived
the testator, may die afterwards before his possession has vested ;
nevertheless, an interest which is clearly contingent must be so
construed, however inconvenient to a beneficiary and his represen-
tatives.
§ 1467. Lapsed Legacies; General Rule.
There is an implied condition, precedent to all legacies, founded
benefaction. The restraints of this main, which imposes especial re-
act apply not only to cases expressly straints upon devises of land for
providing for, but to such also as by charitable purposes, &c., see act 9 Geo.
implication result in, such accumula- II. c. 36 (1736) ; 1 Jarm. Wills, 219;
tions. See 1 Jarm. Wills, 293. This Wms. Exrs. 1058 et seq. American
act limits accumulation for charities policy is not uniform in this respect.
as well as for individuals. Master- See 2 Kent Com. 2S3; 79 N. Y. 327;
man Re, (1895) 2 Ch. 184; (1895) 69 Mo. 492.
App. 186. 5. See Wms. Exrs. 889: 1 Jarm.
In the several United States, either Wills, 799; Schoul. Wills, §§ 562. 598-
there is corresponding local legisla- 600 (Vol. I.) ; Hammond v. Ilain-
tion on this point, or else the general mond, 55 Md. 575; Clayton v. Soniers,
restriction as to accumulating both 27 N. J. Eq. 230; Giddings v. Gilling-
capital and income prevails. 95 N. Y. ham, 81 A. 9-51, 108 Me. 512; 95 Me.
13, 103; 63 Wis. 529, 24 N. W. 161. 864, 209 Mass. 432; Joseph Re, (1908).
As to the English statute of mort- 1 Ch. D. 599.
1542
CHAP. III.] LEGACIES. § 1467
in the ambulatory character of the will itself, during the maker's
own life; namely, that the testator must first die, leaving the in-
strument as his last true will, before it can operate as such. The
death of the legatee named therein before the testator, causes,
therefore, the legacy to lapse ; while, as the preceding section shows,
the condition precedent, or contingency with which the bequest may
have been coupled, produces a lapse in various instances where the
legatee dies after the testator. For a lapsed legacy is one which
never vests: either (1) in consequence of the death of the legatee
before the testator; or, (2) because, notwithstanding the legatee
survive the testator, he dies before his interest can be said to have
vested under the will. Lapsed legacies are most commonly of the
former kind.®
There are cases where the death of the legatee, subsequent to
the testator's death, will cause the legacy to lapse, his interest not
having vested in the meantime. Such is not the general rule ; but,
if the legatee die after his testator, and before payment, his own
executor or administrator may demand the legacy of the testator's
representatives.^ Yet where the will expressly and absolutely post-
pones payment of the legacy until a later period than the testator's
death, we are to inquire what is the intent of such a provision.^
6. Swinb. pt. 7, § 23, pi. 1; Wins. 54, 146 Mich. 660; Traver v. Schell,
Exrs. 1204-1206; 1 P. Wms. 83. And 20 N. Y. 89; next c.
see Maitland v. Adair, 3 Ves. 231. As 8. If the testator's apparent inten-
to the common-law distinction be- tion was to emphasize the law con-
tween lapsed devises and lapsed lega- cerning the time of payment, or to
cies, see MofTet v. Elmendorf, 152 N. modify it for the convenience of the
Y. 475, 485 , 46 N. E. 845, 57 Am. St. legatee on the one hand, or of his own
Rep. 529. Modern statute tends to executor on the other, the title vests
abolish all such distinction, so that immediately upon his death, following
lapsed devises, like lapsed legacies, the usual rule; and so, in general,
fall into the residue of the estate. lb. where it appears to have been intended
7. Swinb. pt. 7, § 23, pi. 1: Gart- that one's bounty should immediately
shore v. Chalie, 10 Ves. 13; Wms. attach upon his death. If, however,
Exrs. 1224; Hester v. Hester, 2 Ired. the context and circumstances forbid
Eq. 330; Jersey v. Jersey, 110 N. W. such favorable interpretation, and the
testator obviously meant to incorpo-
1543
1467
EXECUTOKS AJS^D ADMI^'ISTRATORS.
[part V.
The general rule at this day is that all devises or legacies aro
deemed to have lapsed where the beneficiary named dies in the tes-
tator's lifetime; in which case the gift falls into the residnum or
l>ecomes intestate estate, as the case may be.^ But by a substitu-
tional gift, if the will so directs, the devise or legacy may upon such
predecease vest in some other beneficiary.^
Tate time, not with the payment, but
with the substance of the gift, as a
condition precedent to vesting the
title, the legacy is here contingent in
interest; and, being contingent, it
lapses if from death of the legatee or
other cause it cannot have vested.
Courts of equity incline, on the whole,
to adopt a construction most favor-
able to vesting the interest, provided
the testator's wishes be not thereby
violated. 3 Woodeson, 512; Wms.
Exrs. 1224; Eldridge v. Eldridge, 9
Cush. 516.
This subject, which presents many
abstruse inquiries, all resolvable by
the rule, that what appears to have
been the testamentary intent should
prevail, is examined at length in
Wms. Exrs. 1224-1251. A testator
dies intestate as to a lapsed devise or
bequest contained in a residuary
clause. Gorgas's Estate, 166 Penn.
St. 269, 31 A. 86; Morton v. Wood-
bury, 153 N. Y. 243, 47 N. E. 283.
9. Jackson v. Alsop, 67 Conn. 249 ,
34 A. 1106; Wood v. Seaver, 158
Mass. 411, 33 N. E. 587 (though using
the word " heirs ").
1. Glover v. Condell, 163 111. 566;
35 L. R. A. 360; 45 X. E. 173. As to
a lapse in gifts to a class, see (1893)
1 Ch. 567; Farnsworth v. Wliiting, 66
A. 831, 102 Me. 296; 65 A. 282, 27 R.
I. 586; 81 N, E. 640, 76 Ohio St. 443;
Eell'B Estate, 86 A. 877, 239 Penn.
385; Woodward v. Congdon, 83 A. 8,
34 R. I. 316; 101 N. E. 209, 257 111.
624, 102 N. E. 122, 271, 214 Mass. 520,
582 : Hall V. Harvey, 88 A. 97, 77 X.
li. 82.
There is no difiFerence between a
lapsed legacy and a lapsed devise as
to consequence. 131 N. Y. S. 1017 ; Bul-
evard lie. 79 A. 716, 230 Penn. 491
(devise to a society lapsing). 151 S.
W. 1014 (distinction between realty
and personalty abolished).
Recent local statutes sometimes pre-
vent a lapse in case of a near relative
of decedent who predeceases but leaves
issue surviving the testator. See local
codes; 143 N. Y. S. 494, 997; Wor-
cester Trust Co. V. Turner, 96 N. E.
132, 210 Mass. 105 ; Gillette v. Plimp-
ton, 97 N. E. 260, 253 111. 147; 142
S. W. 401, 146 Ky. 327; 127 P. 43,
163 Cal. 797.
A legacy payable on the termina-
tion of a life estate lapses on the
death of the beneficiary before tlie
life estate terminates. 81 A. 951, 103
Me. 512; Pope v. Hinckley, 95 N. E.
864, 209 Mass. 432: Huston v. Dodge,
88 A. 1. Ill Mc. 246 (trust never
Ijecamo operative). Hall v. Harvey.
Cf. 77 A. 98. 31 R. I. 150 (limitation
over and no lapse). Wliere tlie lan-
guage of a will is so uncertain that
the intent of the testator cannot be
understood, a lapse occurs. Karsten
v. Karsten, 98 N. E. 947, 254 111. 480.
1544
CHAP, lll.j LEGACIES. § 14G9
§ 1468. Cumulative Legacies; Repetition or Substitution of
Legacies.
Where the same, or a different amount of money or other things,
as estimated by quantity, is bequeathed to the same person by the
same will more than once, it may be a question whether the legatee
shall by intendment take both amounts or one only ; for, in the one
case, the legacies are cumulative, while, in the other, a mere repe-
tition of the bequest, or else a substitution, takes place.^
Added legacies or substituted legacies are presumed to carry the
incidents of the original legacy; though such presumptions yield
readily to proof of the testator's real intention.^
§ 1469. Satisfaction of Debts by Legacies.
There is an old rule, founded upon a series of English equity pre-
cedents, which, to quote Judge Redfield's expression, seems still
to maintain " a kind of dying existence," though whimsical and
unsatisfactory: namely, that where a debtor bequeaths to his cred-
titor a legacy equal to or greater than the amount of the debt, it
shall be presumed, all other things being equal, that he meant the
legacy should operate in satisfaction of the debt.* Upon this pre- .
2. Wms. Exrs. 1289; Guy v. Sharp, Hanks, 55 Vt. 317; Spansler's Appeal,
1 My. & K. 589 ; Hubbard v. Alex- 107 Penn. St. 95. Legacies, not of the
ander, 3 Ch. Div. 738; Wms. Exrs. same kind, or not payable in the same
1290-1294; De Witt v. Yates, 10 event, or at the same time, may well
Johns. 156, 6 Am. Dec. 326; Rice v. be presumed cumulative. Wray v.
Boston Aid Society, 56 N. H. 191; Field, 2 Russ. 257. But where lega-
Suisse V. Lowther, 2 Hare, 424, 432, cies are of the same amount and char-
ter Wigram, V. C. The testator's in- acter, the presumption that they were
tention should be the main guide; intended to be cumulative is a slight
though to fortify the construction in one, and may be easily shaken. 17
fases of doubt, various presumptions Ves. 34, 14; Wms. Exrs. 1291, and
are stated by courts of equity. Cases, numerous cases cited. See also State
supra; Tweedale v. Tweedale, 10 Sim. v. Crossley, 69 Ind. 203; Schoul.
453; Guy v. Sharp, 1 My. & K. 589. Wills (Vol. I.), § 565.
For recent instances of legacies held 3. Cooper v. Day, 3 Meriv. 154;
to be cumulative and not merely re- Wms. Exrs. 1296: 7 Sim. 237: Dun-
petitive or substitutionary, see Utley can v. Duncan. 27 Beav. 386.
V. Titcomb, 63 N. H. 129; Barnes v. 4. 2 Redf. Wills, 185, 186; Bronson,
1545
§ 1470 EXECUTORS AXD ADMINISTEATOES. [PAET V.
STunptioii, supposing it available — and how nnlikelj it is tliat one
should intend discharging, by way of favor, and on the contingency
of his death, that which subsists as a legal obligation, regardless of
that contingency or of his last wishes, and taking precedence of all
legacies, a moment's reflection will show — the courts have en-
grafted various exceptions, often laying hold of little circumstances
or expressions, as if to show a readiness to reverse the rule.'
The better rule for this day is that if a debtor leaves a legacy to
his creditor this is not to be deemed a satisfaction of the debt, un-
less intent appears ; ^ though actual intent must govern.
§ 1470. Release of Debts by Legacies.
Where a creditor bequeaths a legacy to his debtor, without clearly
indicating his intention in so doing, the presumption appears to be
iha!; the debt shall not thereby be released or extinguished; and if
the debt be further evidenced by a promissory note or other writ-
ing, and the writing, dociunents, or securities, appear among the
J., in Eaton v. Benton, 2 Hill (N. Y.) mainly one of the presumed intention
576; \Yms. E?;rs. 1297. See Horlick of the estator. See §§ 1499, 1500.
Re, (1395) 1 Ch. 516. An accpj)ted legacy to A. of more
5. Wms. Exrs. 1238, and cases cited; than the testator owed her, the will
1 Atk. 428; 3 Atk. 96; Byde v. declaring expressly that it shall be in
Byde, 1 Cox, 44; Rawlins v. Powel, 1 lieu of all claims of A. against the
P. Wms. 299; 2 P. Wms. 132, 343; testator's estate, of course satisfies
Xicholls V. Judson, 2 Atk. 300; Wms. the debt. Rusling v. Rusling, 42 N.
Exrs. 1298 ; Crouch v. Davis, 23 Gratt. J. Eq. 594, 8 A. 534. But acceptance
62; Carr v. Estabrooke, 3 Ves. 561. of a legacy does not usually preclude
Even a direction in the will to " pay one from making a claim founded on
all debts and legacies " has been re- the testator's mismanagement of the
lied on as the foundation of an cxcep- legatee's property. Whittemore v.
tion. 3 Atk. 65; Field v. Mostin, 2 Plamilton, 51 Conn. 153. As to in-
Dick. 543. See supra, § 1439, con- terest on such a debt, where the
corning the effect of appointing one's legacy should cancel it, see 70 Iowa,
creditor his executor. And see Far- 368, 30 N. W. 638.
rell V. Farrell, 127 N. Y. S. 764. 6. 12 Wend. 68; Sheldon v. Shel-
As for satisfying portions by a don, 133 N. Y. 1, 30 N. E. 730. But
legacy, a rule of presumption is ap- identity in amount may be evidence
plied by the equity decisions; though of such intent. 55 N. J. Eq. 42, 35 A.
here, once more, the question is 827,
1546
CHAP. Ill,]
LEGACIES.
§ 1470
testator's effects, uncancelled, and as though fit to l>e tioateJ as as-
sets, they will be so regarded.^ Under such circumstances, it is held
that the legacy of a creditor to his debtor may be retained in pay-
ment pro tanto, though the debt were barred by the statute of limi-
tations.^ Where, however, the evidence goes to show that the cred-
itor meant to release the debt and give a legacy besides, his debtor
shall have the full benefit thereof ; ' and while such intention ought,
if possible, to be gathered from the force of the will, courts of
equity have sometimes explored in other directions to ascertain
whether, as between creditor and debtor, the debt was ever re-
mitted.^ A liberal construction is given to the intention of a tes-
tator to forgive a debt.^
To bequeath expressly the debt to one's debtor, operates as a
sort of testamentary release to him ; but, inasmuch as a testament
cannot dispose of assets, nor give legacies to the injun^ of creditors
against the estate, the debt must needs continue assets for their
benefit, should a deficiency appear.^
7. Wms. Exrs. 1303; Wilmot v.
Woodhouse, 4 Bro. C. C. 226.
8. Coates v. Coates, 33 Beav. 249;
Coiirtenay v. Williams, 3 Hare, 589;
27 N. J. Eq. 135. Local statutes
sometimes provide that a debt due
from a legatee to the estate may be
deducted from his legacy. But unless
the intent of the will is clear, a debt
barred by limitations cannot be thus
deducted. Allen v. Edwards, 136
Mass. 13S. See Wentworth v. Went-
worth, 78 A. 64, 75 N. H. 747 (treated
as an advancement ) .
9. Wilmot V. Woodhouse, 4 Bro. C.
C. 226: Hyde v. Neate, 15 Sim. 554;
Wms. Exrs. 1304.
1. Eden v. Smyth, 5 Ves. 341.
Viewing the subject of releasing or
satisfying debts by legacies as one of
purely testamentary interpretation,
there seems legal inconsistency in
going far outside the will to ascertain
what a testator meant; and it is said
to be dangerous to extend the doctrine
of Eden v. Smyth, where the testator's
books, papers, declarations, etc.,
were, though reluctantly, admitted.
See Chester v. Urwick, 23 Beav. 404:
Wms. Exrs. 1304; 2 Redf. Wills, 190,
note. Yet it must be conceded that a
transaction, as between debtor and
creditor, may lie entirely outside the
will, notwithstanding debtor or cred-
itor be himself a legatee; nor is it
strange for a testator to so regard it.
2. See 37 N. J. Eq. 377, where the
will spoke of two mortgages, when
there were three. 76 Ala. 381; Brom-
ley V. Atwood, 96 S. W. 356, 79 Ark.
357.
3. Rider v. Wager, 2 P. Wms. 331.
As to the effect of appointing a debtor
to be one's executor, see supra, § 1208.
The bequest of a note to its maker
gives him the absolute title; the tes-
1547
§ 1471a EXECUTOES AXD ADMIXISTEATOKS. [PAKT V.
§ 1471. Ademption of Legacies.
A few words should be added on the subject of ademption. A
bequest fails, doubtless, not only by a lapse, but when revoked.''
Aside from the revocation of a testamentary instrument as such,
any particular legacy or legacies may be revoked, or to use the more
appropriate word, adeemed. By the word " ademption," employ-
ing it^ Latin figiire, is signified the extinction or taking away of a
legacy in consequence of some act of the testator which, though not
directly a revocation of the bequest, should be considered in law
as tantamount thereto.^ The ademption of a legacy is distinguish-
able, of course, from its lapse.*
§ 1471a. Lapsed and Void Legacies, etc., fall into the Residue.
The general rule is that all particular legacies which prove lapsed
and void, or which fail through non-acceptance or other legal cause,
fall into the residuary fund and increase the amount for residuary
legatees accordingly.^ Only clear provisions in the will or by statute,
tator's estate not being deficient for McDowell, 134 N. W. 419, 154 Iowa
paying what he owed. Herrick v. 38; 143 S. W. 242, 146 Ky. 201.
Wright, 63 N. H. 274. Ademption of specific property
4. See supra, § 1082. takes place by the subsequent sale
5. Jarm. Wills, 147; Wms. Exrs. during testator's life. 39 App. D. C.
1321. 162; 141 X. Y. S. 922. Or by pay-
6. Supra, § 1467. See 72 S. E. 372, ment or transfer to legatee. Grogan
156 X. C. 286; 117 X. W. 260, 139 v. Aslie, 72 S. E. 372, 156 N. C. 286.
Iowa 219 ; Mecum v. Stoughton, 86 A. But ademption depends upon circum-
52, 81 X. J. Eq. 319 (applied to specific stances, and parol evidence is admissi-
Icgacy) ; Kramer v. Kramer, 201 F. ble to resolve a doubt of the testator's
248, 119 C. C. A. 482; Gardner v. real intention. One who is given a
McXeal, 82 A. 988, 117 Md. 27; legacy by a will, which is revoked by
Heather Re, (1906) 2 Ch. 23; Pope a codicil, has a right to have the
V. Hinckley, 209 Mass. 323, 95 X. E. validity of that codicil adjudged.
798; 131 N. W. 1010, 115 Minn. 73; Sherman v. Warren, 97 X. E. 892,
Durham v. Clay, 134 S. W. 153, 142 211 Mass. 288.
Ky. 96 (investment elsewhere). 7. Supra, § 1467; Bradford v.
An advancement to a child or by Leake, 137 S. W. 96 (Tenn.) ; Sotek
one in loco, parentis, in the nature of v. Sotek, 97 X. E. 656, 253 111. 302 >
a portion operates ademption. 441 139 X. Y. S. 869.
N. Y. S. ISO; § 1469. Cf. Johnson v.
1548
CHAP. III.] LEGACIES. § 1472
substitutionary or otherwise, to control the situation, can avert this
consequence.^ Property otherwise undisposed of under the will
follows the same rule, unless more suitably disting-uished under the
statute of descent and distribution.'
§ 1472. Trustees under a Will ; Equity and Probate Jurisdiction ;
Duties of a Trustee; Equity; Probate Procedure.
In order to cari-y out special provisions under a will, which look
to the preservation of a principal fund for special schemes, such as
charity, or so as to pay income only to persons designated, until the
happening of some event, or so that the fund may accumulate, and
generally where the intent is to postpone the full beneficial vesting
of the legacy in the ultimate legatee, trustees are usually desig-
nated under a will to hold and manage the fund, apart from exec-
utors. These trustees act subject to the approval, direction, and
sometimes selection of courts of equity ; and, properly speaking, the
administration of these testamentary trusts is a branch, and quite
an important one, of equity jurisdiction. In many parts of the
United States, however, the probate courts in the several counties
have general equity powers, conferred by statute, and exercised
concurrently with the supreme tribunal of the State. ^
The appointment, qualification, and immediate supervision of
testamentary trustees, devolves, however, under American codes,
upon the local probate courts, in the first instance, as in case of
executors. Not only are such courts empowered to appoint trustees
in various instances of trust not testamentary, where there is a
vacancy under the instrument, and no adequate provision made for
8. Supra, § 1466-1468. tion is to bring important questions
9. Clarke v. Andover, 92 N. E. 1013, affecting the administration of tes-
207 Mass. 91. See King's Estate, 93 tamentary trusts to the supreme
N. E. 484, SOO' N. y. 189 ; 57 So. 298 ; court of equity and probate, in order
Russell V. Hartley, 78 A. 320, 83 that the jurisdiction may be clear and
Conn. 654; Trumble's Will, 92 N. E. tlae decree conclusive. See local codes
1073, 199 N. Y. 454. on this subject: also Schoul. Wills.
1. Mass. Gen. Stats, c. 100, § 22. (Vol. I.) §§ 608-611,
Nevertheless, the prevailing disposi-
1549
§ 1473 EXECUTORS AJSTD ADMIjN"ISTEATOES. [pAET V.
supplying it; but every trustee appointed by will should petition
for a confirmation of bis appointment, file a sufficient bond with the
probate judge (with or without security, as the case may be), and
procure letters under the probate seal, before entering upon active
official duties.^
The duties of testamentary trustee are distinct from those of ex-
ecutor, and require separate credentials, even though, as often hap-
pens, the testator has designated the same person to serve in both
capacities. Where a vacancy from some cause occurs in the office,
as where the trustee named declines, resigns, dies, or is removed
before the objects thereof are accomplished, the probate court, upon
the usual formalities, makes an appointment for one to act alone
or jointly with others,, as the case may be. Co-trusteeship survives
like co-executorship. Like an executor, the testamentary trustee is
required to return an inventory and render his account regularly
to the probate court; and, for misconduct or culpable negligence,
he is liable to removal, his bond to the judge being put in suit for
the benefit of those injured by his breach of tiTist. Subject to the
usual variation of State enactments, the general rule in the United
States is to place testamentary trustees under a probate supervis-
ion similar, 'mutatis mutandis, to that of executors, and from a like
sedulous regard for the welfare of the beneficiaries.^ From the
probate decree in such trusts, the usual appeal lies to the supreme
tribunal of the iState.*
§ 1473. Construction of Wills and Legacies; Bill of Interpleader
to remove Doubts, etc.
The construction of a will, and the true interpretation of an ex-
ecutor's or trustee's duties in conformity tliereto, raise other issues
wdiich pertain more strictly to an equity jurisdiction, where the
course to be pursued is left uncertain. The convenient method
2. Mass. Gon. Stats, c. 100. 4. Smith Prob. Law, 238. See
3. Smith Prob. Law, 93, 97, 101, Perry Trusts, § 282 ct seq.; supra, §§
236: Rodf. Surr. Pract. 424. And sec 146, 247.
local code on this subject.
1550
CHAP. III.] LEGACIES. § 1473
is to bring a bill of equity in the nature of a bill of interpleader,
to procure instructions bow to act; thus saving to the fiduciary,
executor or trustee, the hazards of later litigation, and avoiding on
his own part a perilous risk. Whenever there is reasonable doubt
in regard to the proper construction of an instrument creating a
testamentary trust, the rule is, that chancery may be resorted to
for instructions."
As between the executors and trustees under a will, it would
seem a rational distinction, that, when the doubtful interpretation
relates simply to administering a fund or funds turned over to the
trustees for purposes prescribed by the testator, the tinistees are
the proper persons to procure instructions; but, that where such
doubt relates substantially to the administration of the estate, as in
determining how the executor shall perform his own duties, so as
to discharge himself of legacies and the residue for whose satisfac-
tion he is ofBciali/ responsible, he rather should be the petitioner.
Wliile, however, the executors or the trustees, as the case may be,
take more commonly the initiative, and bring a bill setting fortli
the facts, and calling upon the claimants to settle their rights be-
fore the court, the procedure is not left wholly to their option ; but
any party, claiming aji interest affecting the construction of the
will, legatee or cestui que trust, may institute the suit against the
executor or trustee and all other parties interested in the question.®
"\Miere directions are thus sought in regard to the interpretation
of a will or trust, and the duty of those appointed to carry its pro-
visions is to effect, the whole expense of the litigation is usually
5. Supra, § 1265; Schoul. Wills, bill in equity against the cestui que
(Vol. I.) § 492. trust, and a creditor who has broufrht
6. Martineau v. Rogers, 8 De G. M. suit against him, to determine
& G. 328; Maxwell v. Maxwell. L. R. whether moneys received by him
4 H. L. 521; Bowers v. Smith, 10 from the representatives of the de-
Paige, 193 ; Treadwell v. Cordis, 5 ceased executor are to be accounted
Gray, 341; 2 Story Eq. Jur. 824, and for as belonging to the estate or the
cases cited. trust. Putnam v. Collamore, 109
Where one is both administrator Mass. 509. See Clay v. Gurley, 62
with the will annexed and trustee Ala. 14.
under the will, he may maintain a
1551
§ 1474 EXECUTORS a::sd ADMI^"ISTRATORS. [part v.
thrown upon the estate, unless the petitioner discloses a frivolous
case.^ This mav prove an especial hardship to residuary legatees ;
and no precaution is so good as that of making one's own testmen-
tarv scheme clear, simple, and just.^
§ 1474. Construction of Wills, Legacies, etc.
To enter into a discussion of the general rules affecting the con-
struction of wills and the legacies given by a testator is foreign to
the purpose of this work. The cases under this head, which are
very numerous, may be found in general treatises on wills, Eng-
lish and American, and this author has discoursed upon this sub-
ject at length in the companion volume.^ The leading principle,
which the courts of both countries respect, is that the testator^s in-
tent shall be followed, if possible ; this intent, to use a common
figure of judicial speech, being the pole star by which the court
should be guided.^ Such a rule, to be sure, leads into various
courses, since every will must be steered by it-s own luminary. Yet,
uniform justice is better than strict consistency; and it is observ-
able, that, while in contracts the common mind of two or more must
be sought out from their mutual expression, a will expresses but one
mind essentially, and one disposition ; and again, as inter vivos^
parties may oppose their own proofs, whereas the testator neces-
sarily confides his meaning to an instrument which courts of equity
7. Studholme v. Hodgson, 3 P. Wms. various interests affected by the con-
SOS; Attorney-General v. Jesus Col- struction. See L. R. 7 Eq. 414.
lege, 7 Jur. N. S. 592; Saw-jer v. 9. See Schoul. Wills (Vol. I.) Part
Baldwin, 20 Pick. 378 ; Rogers v. Ross, VI.
4 Johns. Ch. 608; Rowland v. Green, 1, See Quincy v. Rogers. 9 Cush.
108 Mass. 283. English practice is 294, per Shaw. C. J. Cf. Schoul.
to pay the fund into court, and have Wills, (Vol. I.) Part VI. at length,
the parties appear and obtain the A will speaks for some purposes, as
judgment of the courts as to their good sense allows, from the period of
rights. Hooper's Will, Re, 7 Jur. N. execution, and for others from the
S. 595. death of the testator; but it never
8. Chancery seeks, if it be practica- operates until the latter period. Jariu.
ble, to adjust the costs ratably to the Wills, 762; Schoul. Wills, (Vol. I.)
§ 486.
1552
CHAP. in. J LEGACIES. § 14T0a
are sacredly enjoined to interpret justly as between him and those
he leaves behind, should controversy arise, death having closed his
own lips.
§ 1475. Doubtless Points settled by the Agreement of all Parties
in Interest.
It is a general principle, that all the parties interested ii; an es-
tate or fund, may, if competent and sui juris, waive, by their own
mutual agreement and stipulations under the will w^hich affect its
distribution, or agree upon some particular construction of doubt-
ful provisions, so that the will shall be carried out accordingly. An
executor, by procuring some such mutual agreement, may often re-
lieve himself of an embarrassing responsibility without invoking
the assistance of the court at all.
Legislation sometimes extends expressly the right of thus ad-
justing conflicting interests, by empowering the executor or other
fiduciary to bind the future contingent interests of parties not
capable of being represented, wherever the court of equity shall
declare the operation of such proceeding to be just and reasonable
in its effect upon such interests.^
§ 1475a. Testamentary, Lapse, etc.
One who is given, as a legacy, simply what the law would give
him, regardless of a will, takes under the law. And where all the
beneficiaries named in a will, and the designated executor besides,
die before the testator, so that a complete lapse of testamentary
provision occurs, the estate is to be regarded as practically an intes-
tate one.^
2. Brophy v. Bellamy, L. R. 8 Ch. the estate among themselves as they
798. See Sherman v. Warren, 97 N. see fit, after the executor has been
E. 892, 21 Mass. 288; 95 N. discharged. Wentworth v. Went-
E. 854, 209 Mass. 459. Legatees worth, 78 A. 646, 75 N. H. 547.
under a will, if sui juris, may devido 3. CuflFe Re, (1908) 2 Ch. D. 500.
98 1553
§ l-iTG EXECUTOES AXD ADillXISTKATOES. [PAKT V.
CHAPTER IV.
PAYME]!v'T AXD SATISFACTIOX OF LEGACIES.
§ 1476. Payment, etc., of Legacies by the Executor; All Valid
Legal Claims take Precedence.
With the preliminary view of legacies, their nature and inci-
dents, afforded in the preceding chapter, we come to the payment
and satisfaction of legacies by the executor. And here, it should
first be observed, that before an executor can safely pay over lega-
cies of any description, he must settle or provide for the adjust-
ment of all valid legal claims against the estate, since these take
regular precedence, regardless of a testators wishes.^ Even volun-
tary bonds and other debts by specialty, whose seal imports a con-
sideration, must be paid in preference to legacies, and not debts
founded in actual consideration alone.^ His disregard of such legal
preference must render him liable personally.^
Much discussion has arisen upon the liability of a representative
for contingent claims, as upon some outstanding covenant in a
deed, or condition in a bond, executed by his testator, where the
condition or covenant is not yet broken ; and the result appears to
be, that the executor is not obliged to part with the assets to par-
ticular or residuary legatees, unless fully indemnified against such
contingent claims.* For, while an executor is bound to pay over
to the legatee, as it is said, upon receiving such indemnity,^ the de-
cisions establish that, without such indemnity or impounding part
of the assets, he would be liable to answer the damages de bonis
1. Lomas v. Wright, 2 My. & K. 3. Even though he follows tlie di-
769; Spode v. Smith, 3 Russ. 511; rections of the will. Handley v. Hef-
Wms. E.xrs. 1340. lin, 84 Ala. 600, 4 So. 725.
2. Wms. Exrs. 1015, 1341; Gordon 4. Cro. Eliz. 466; Moore. 413;
V. Small, 53 Md. 550; Krell v. God- Alej-n, 38; Hawkins v. Day, Ambl.
man, 154 Mass. 454, 26 Am. St. Rep. 160; Cochrane v. Robinson. 11 Sim.
260, 14 L. R. A. 860, 28 N. E. 578. 37S: Wms. Exrs. 1341-1344.
fitic § 1490 post, as to legacies given 5. Higgins v. Higgins, 4 Hagg. 244,
upon clear considerations. per Sir J. NichoU.
1554
CHAP. IV.] PAYMETCT AND SATISFACTIOX OF LEGACIES. § 1477
propriis, should the covenant or condition be afterwards broken so
as to become absolute.'^ Chancery will protect an executor who
confides here in its guidance.^ It formerly required the legatee,
in all cases, to give the executor security to refund if debts should
afterwards appear ; * but this requirement fell into disuse ; and the
modern chancery practice is rather to permit such creditors to fol-
low assets into the hands of legatees.®
A kindred inquiry relates to the payment of legacies before
claims, of which an executor had as yet received, no notice, were
settled. Whether the executor would remain liable upon debts not
made known to him during the first year of his office, after he had
paid over all assets to the legatees, was formerly much discussed in
the English cases ; but the rule seems at length to have been well
established, that payment of the legacies is no defence against the
non-payment of debts, provided the assets were originally sufficient
for legal demands against the estate ; ^ unless, perhaps, the failure
of the creditor or claimant to give notice of his demand, involved,
by lapse of time, laches and the presumption of a waiver on his
part.^
§ 1477. Executor's Bond of Indemnity from Legatees.
A legacy may be payable before the statute period of limitation
for claims has elapsed. A pavment before probate of the will
6. Cochrane v. Robinson, 11 Sim. to the estate may be set off. 34 Hun,
378; Wms. Exrs. 1344; Simmonds v. 104.
Bolland, 3 Meriv. 547. Modern American legislation, as
7. Dean v. Allen, 20 Beav. 1; Eng- elsewhere noticed, removes most prac-
land V. Tredegar, L. R. 1 Eq. 544. tical difficulties, by setting a reason-
8. 1 Ch. Cas. 257; 3 My. & Cr. 41; able barrier to the presentment of
Wms. Exrs. 1348. claims against an estate, and provid-
9. 1 Atk. 491; Wms. Exrs. 1348; 3 ing for impounding assets, under the
My. & Cr. 42. probate direction, to meet inchoate or
1. Wms. Exrs. 1349-1353; Clielsea contingent claims. Supra, §§ 1418-
Water Works v. Cowper, 1 Esp. 275 : 1420. And see the English statute 22
Hill V. Gomme, 1 Beav. 540; Norman & 23 Vict. c. 35, § 39, to much the
V. Baldry, 6 Sim. 621; Smith v. Day, same purport. Wms. Exrs. 1355; L.
2 M. & W. 684. R. 3 Eq. 368.
2. lb. A debt owing by the legatee
1555
§ 1478 EXECUTOES A2s"^D ADMINISTRATORS. [pART V.
would be validated, so far as all claim by the legatee is concerned,
by the probate and appointment.^ For the executor's protection in
this or other cases of official liability, a refunding bond from the
payee is proper. And it is quite common for American codes to
provide, with reference to probate practice, that such bond shall
be given by a legatee wherever suitable.*
§ 1478. Legacies are usually Payable within a Year from Testa-
tor's Death.
The rule of chancery, borrowed from the civil law, makes lega-
cies payable, unless the will fixes a later date, at the expiration
of one year from the testator's death ; the presumption being, that
such delay allows the executor reasonable time for informing him-
self whether the estate is ample to pay both debts and legacies.^
Within the first year, therefore, an executor cannot be compelled to
pay over legacies, notwithstanding the will itself directs their
earlier discharge; ® unless, as some American statutes provide, one's
directions to that effect must be followed.^ But, as this rule is set
for the convenience of an estate, executors may of choice, and in
fact often do. pay legacies, much earlier where the estate is un-
doubtedly ample or a refunding bond is given.^ If the payment of
3. Pinkham v. Grant, 72 Me. 158; 5. Wood v. Penoyre, 13 Ves. 333;
§ 1238. Miller v. Congdon, 14 Gray, 114;
4. See Mass. Gen. Stats, c. 97, § 21. King's Estate, 11 Phila. (Pa.) 26;
On a sufficient bond being given by a Wms. Exrs. 1387; State v. Crossley,
residuary legatee for the benefit of 69 Ind. 203; Walford v. Walford, H.
other legatees entitled to security, L. E., (1912) 1 App. 658; Harrison
one may pay over without regard to v. Denny, 77 A. 837, 10 Md. 509.
whether the interest of one of such 6. Benson v. Maude, 6 Madd. 15 ;
legatees is an estate or a power. White v. Donnell, 3 Md. Ch. 5".i6.
Chandler v. Batchelder, 61 N. H. 370, There is no estate applicable to the
And see where security could not be payment of legacies until the testa-
i-equired. Martin v. Lapham, 38 tor's debts are paid. Coddington v.
Ohio St. 538. Bispham. 36 N. J. Eq. 224; Foltz v.
See as to rcriiiiring a bond from Hart, 84 Ind. 56; § 1476.
life tenants for tlie ultimate benefit 7. Wms. Exrs. 1387. and Perkins's
of the remainderniiin, where the cor- note.
pus of tiie personal property is turned 8. 1 Sch. & Lef. 12 ; Gartlishore v.
over to the former. 126 N. Y. S. 396. Chalie, 10 Ves. 13.
1556
OIIAP. IV.] PAYMENT AND SATISFACTION OF LEGACIES. § 1478
a legacy is postponed by an intci^vening estate, by pending litiga-
tion, or for any other cause, more than a year after the testator's
death, it becomes payable immediately when the right accrues, and
the executor cannot claim further delay.®
Where the legacy is liable to be devested by a condition subse-
quent or limitation over upon some contingency, the legatee shall ^
nevertheless receive his legacy at the end of a year from the testa-
tor's death ; and, whether security shall be required of such legatee
to refund in case his title be devested, depends upon circumstances ;
though equity dispenses with such security, unless prudence evi-
dently requires it to be taken.^
A legacy, given under a will in the form of an annuity, or as
regular income for life, follows the general rule as to the time when
the executor must begin paying it ; that is to say, the first payment
need not be made by him until a year has elapsed from the testa-
tor's death ; but the date from which the annuity or income shall
actually commence, and the frequency of the periodical payments,
must be gathered from the expressions of the will and the testator's
obvious intent.^
9. Laundy v. Williams, 2 P. Wms. 2. Wms. Exrs. 1390; Irvin v. Iron-
478; Miller v. Philip, 5 Paige, 573; monger. 2 Ruas. & My. 531; Storer v.
Lord V. Lord, L. R. 2 Ch. 782. Prestage, 3 Madd. 167. For the Mas-
1. Fawkes v. Gray, 18 Ves. 131; sachusetts rule, see Wiggin v. Swett,
Taggard v. Piper, 118 Mass. 315; 6 Met. 194. Statutes sometimes pro-
Wms. Exrs. 1388, and Perkins's note. vide for compelling an executor after
Where a legacy was given to the a summary manner in probate court
father on condition that he did not to pay the legacy. 2 Dem. 134, 230.
interfere with the education of his But this jurisdiction exists only
daughter, security was required by where the right to the legacy is un-
the court, the costs being deducted disputed; and if the rights of others
from the legacy. Colston v. Morris, to the legacy are in controversy, these
6 Madd. 89. rights can only be determined upon a
Executors are permitted to lend to final accounting. Riggs v. Cragg, 89
a devisee or legatee, in a proper case, N. Y. 479; 92 N. Y. 251. As to lien
upon the security of his interest. 2 of a legacy upon the land on which
Dem. (N. Y. ) 435. An advance to it is charged, see Lombaert's Appeal.
a legatee in necessitous circumstances 99 Penn. St. 580; Merritt v. Buck-
is sometimes ordered. 1 Dem. 553; nam, 78 Me. 504, 7 A. 383.
€5 Cal. 378, 4 P. 379. See § 1445 a. Where the executor is directed by
1557
§ 14:79 EXECUTORS A]N'D AD2^IIXISTRAT0ES. [PAET V.
§ 1479. When the Legatee's Right vests ; Rule as to Annuitants,
Beneficiaries for Life, etc.
Notwithstanding a year's possible delay in paying over the
legacy, a legatee is entitled to payment, unless the will speaks dif-
ferently, as of the date when the testator died.^ It is the executor's
duty to promptly notify legatees of their legacies, and, if from any
ambiguity it is uncertain who are legatees, to institute a bill for
ascertaining.^
Doubts may arise, however, in case of a legacy by way of an-
nuity; for the testator might have intended it to commence from
the end of the first year, instead of what is more rational, from the
date of his own death.^ There has been great fluctuation of opinion
in the English equity courts, moreover, concerning the effect of
a bequest of use, income, or interest in property, to a person for
life, and then the principal over to others; but it is finally well
established, that the beneficiary for life shall be entitled to the
income in one shape or another from the death of the testator ; and
this, notwitlistanding the life income is to be derived from a resid-
uary fund which might not be ascertainable until two years or more
had elapsed from the executor^s appointment, and, moreover, might
have to be transferred by the executor himself to trustees desig-
nated in the will.^ American courts approve of this conclusion ; ^
the will to invest a legacy and pay a period and delay, as will provided ) .
the income to another for his life, it Where the will particularly speci-
is a breach of his official bond if he fies the time when the legacy shall be
does not so invest, Scituate v. Angoll, paid, that date takes effect. 86 A..
14 R. I. 495, but uses the legacy in 878, 239 Penn. 389 (no acceleration) ;
his business. And see 88 A. 38, 139 N. Y. S. 304, 81 A. 1076, 76 N. H.
121 Md. 79. An executor is charged 594.
with the duty of setting apart and in- 4. Tilton v. American Bible So-
vesting a fund for annuity purposes cioty, GO N. IT. 377, 49 Am. Rep. 321.
where the will fails to designate such Cf. § 1487, n.
fund or to specify who shall invest it. 5. See Gibson v. Bott, 7 Ves. 96, 97;
163 111. 502, 45 N. E. 417. Wms. Exrs. 1390; Kent v. Dunham,
3. 10 Ves. 1, 13; supra, § 1467; 106 Mass. 586.
Carter v. Whitcomb, 69 A. 779, 74 6. Wms. Exrs. 1390, 1391, ami
N. H. 482; Park v. Fogarty, 68 S. E. cases cited; Brown v. Gellatly, L. R.
699, 134 Ga. 861 (accumulation for
1558
CHAP, IV.] PAYMENT AND SATISFACTION OF LEGACIES. § 1480
and there are loeal American statutes which expressly favor such
construction as to all annuitants and income beneficiaries, either
for life or until the happening of some evcnt.^
§ 1480. Interest and Produce of Specific Legacies, etc.
Out of regard for the time when the legacy legally vests, it is
determined that a specific legacy shall go to the legatee, with what-
ever interest, income, or produce may have accrued thereon since
the testator's death besides. Thus, a specific legacy of domestic
animals carries subsequent offspring of the females and all net
profitable usufruct; a specific legacy of stock, the dividends since
accruing; and a specific legacy of notes, bonds, or other incorporeal
personalty, the interest and coupons, if any, appropriate thereto
from a similar date ; in short, whatever the specific thing or f imd
has legitimately earned from the time the legatee's right became
2 Ch. 751; Angerstein v. Martin, 1
Turn. & R. 232; Taylor v. Clark, 1
Hare, 161.
7. Sargent v. Sargent, 103 Mass.
297; Evans v. Inglehart, 6 Gill & J.
171; Levering v. Minot, 9 Cush. 151;
Williamson v. Williamson, 6 Paige,
298; Hilyard's Estate, 5 Watts & S.
30; Cooke v. Meeker, 42 Barb. 533.
But see Welsh v. Brown, 43 N. J. L.
37.
8. Mass. Gen. Stats, c. 97, §§ 23,
24; 77 A. 98, 31 R. I. 150.
A charge of an annuity on devised
real estate will be enforced in equity
by a sale. Merritt v. Bucknam, 78
Me. 504, 7 A. 383. An annuity given
by a will, and springing solely
therefrom, is a legacy. Heathering-
ton V. LeAvenburg, 61 Miss. 372. See
163 111. 502, 45 N. E. 417; Young Re,
(1912) 2 Ch. 479; Parker v. Cobb,
94 N. E. 476, 208 Mass. 260 (fund
for purchase of annuity chosen).
Where a fund is invested by direc-
tion of the will in interest-bearing
15
securities, the " annual interest, in-
come and dividends thereof " to be
paid to the life tenant, and on his
death the " principal or capital sum "
to be divided among the remainder-
men; and when on the death of the
life tenant who received the fixed in-
terest these securities sold for more
than the original investment, it was
held that this surplus belonged to
the remaindermen. Gerry, Re, 103
N. Y. 445. And see 132 S. W. 1038,
141 Ky. 472. A dividend being de-
clared but not payable on stock before
the life beneficiary died is principal
and not income; so are interest in a
sinking fund, and options: but a divi-
dend declared after the death of the
life beneficiary from earnings accu-
mulated previously is income. Ker-
nochan, Re, 104 N. Y. 618. See fur-
ther § 1324. A life beneficiary ought
to keep down charges on the several
parts of his fund out of the income
of the whole. (1896) 2 Ch. 511.
59
§ 1481 EXECUTORS AXD ADMIXISTRATOKS. [pART V.
vested.^ Thus, too, would it be, with specific funds appointed to
specific purposes, under a will's apparent intent.^ Prudence dic-
tates, therefore, that the executor should discharge himself of
specific legacies as soon as he is satisfied that he may safely do so,
considering the debts ; for, while he retains the specific thing or
fund with its accretions, he must account as for the management
of something distinct from the testator's general estate.
In exceptional eases the specific bequest of an incorporeal (or
intangible) chose is found, on due construction of the will, to
carry even interest accruing in the lifetime of the testator, that is,
from the time the will was executed.^
§ 1481. Interest on General Legacies.
But, as to general legacies, the rule is somewhat different. Pru-
dence in the general settlement of the estate is here requisite ; and
the year's delay allowed the executor operates to postpone interest
on the several demands of legatees. Interest is recoverable, in gen-
eral, from the time such a legacy becomes payable, and not sooner ;
which means, usually, after the expiration of the year from the
testator's death.^ Though the testator directed payment of the
legacy " as soon as possible," or " with interest," this does not
change the rule ; * nor are phrases readily construed as justifying
9. Wms. Exrs. 1424; Sleech v. Thor- 2 A. 855; 22 S. C. 92. And see Ar-
ington, 2 Ves. Sen. 560; Barrington raentrout v. Armentrovit, 72 S. E.
V. Tristram, 6 Ves. 345; Evans v. 721, 112 Va. 660 (postponement until
Inglehart, 6 Gill & J. 171; Bristow life estate expires); Spinney v. Ea-
V. Bristow, Kay, 600. ton, 87 A. 378, 111 Me. 1, 46 L. R. A.
1. Loring v. Horticultural Society, (N. S.) 535. Real estate specially
171 Mass. 401, 50 N. E. 936. charged is not charged with a gen-
2. Wms. Exrs. 1438; Harcourt v. eral pecuniary legacy, where there is
^lorgan, 2 Keen, 574. nothing to show such intention. Dav-
3. Wood V. Penoyre, 13 Ves. 326; enport v. Sargent, 63 N. H. 538. But
Grain v. Barnes, 1 Md. Dec. 151; Mil- cf. Cook v. Lanning, 40 N. J. Eq. 369.
ler V. Congdon, 14 Gray, 114; King's 4. Webster v. Halo. 8 Ves. 410;
Estate, 11 Pliila. (Pa.) 26; State v. Lawrence v. Erabrce, 4 Bradf. (N. Y.)
Crossley, 69 Ind. 203 ; Wms. Exrs. Sur. 364 ; Bartlett v. Slater, 53 Conn.
1424; 41 N. J. Eq. 39, 2 A. 778; 102.
Springer's Appeal, 111 Penn. St. 228,
1500
CHAP. IV.] PAYMENT AND SATISFACTION OF LEGACIES. § 1481
later payments without allowance of interest.^ And even though
the fund out of which payment of a pecunian^ 1^'gacy is directed
should bear interest meantime, residuary legatees are presumed
entitled to the benefit.® But, if the will clearly directs the payment
of interest from an earlier date, the bequest is enlarged accord-
ingly.'' And, where the legacy is decreed to be in satisfaction of a
debt, the equity practice is to allow interest from the death of the
testator.* Where, moreover, the executor voluntarily pays tho
legacy over within the year, or invests it specifically for the lega-
tee's benefit, or pays it into court and the court orders the money
specially invested, the interest, profits, and income thereafter ac-
cruing will belong to such legatee.'
After the expiration of the year, interest is generally allowed
to pecuniary legatees from whom payment is withheld ; and espec-
ially does this hold true where it appears that the executor has all
the time had the means in his hands wherewith to pay the legacy.^
And interest will run in the legatee's favor thenceforth, even
though no demand has been made upon the executor for the legacy.^
There are cases which seem to lay stress upon the executor's oppor-
tunity to pay over and his delinquency in failing to do so at the
proper time ; ^ as where the validity of the will was in litigation,
or the grant of letters testamentary was justifiably delayed, or the
legatee himself interposed obstacles or assets sufficient were not
then available. Yet the usual rule, English and American, has
heen that pecuniary legacies bear interest from the time when they
became vested in enjoyment and payable under legal rules or the
5. Kent v. Dunham, 106 Mass. 586. Clark v. Sewell, 3 Atk. 96; Wav v.
And see Gunning's Estate, S3 A. 63, Priest, 87 Mo. 180.
234 Penn. 148; 135 N. W. 379; 85 A. 9. Maxwell v. Wettenhall, 2 P.
845, 237 Penn. 466, 43 L. R. A. (N. Wms. 27; Wms. Exrs. 1424, 1427;
S.) 869; 77 A. 98, 31 R. I. 150. Sullivan v. Winthrop, 1 Sumner, 1.
6. Pearson v. Pearson, 1 Sch. & 1. Wood v. Penoyre, 13 Ves. 326,
Lef. 10, per Lord Redersdale. and other cases cited supra.
7. 171 Mass. 401, 404. 2. Wms. Exrs. 1427, and Perkins's
8. Shirt V. Westby, 16 Ves. 393; note; Birdsall v. Hewlett, 1 Paige, 32.
3. See State v. Adams. 71 J.To. 620.
1561
1482
ESECUTOES AXD ADMI^'ISTEATOKS.
[part V.
express terms of the will, provided the estate be ever iu a condition
to satisfy them, and notwithstanding delay was occasioned on the
l^atee's part.* And, if the executor has sufficient assets, he must
pay interest to legatees from the end of the twelve months whether
the assets have been productive or not,° all intermediate profit, if
received, going to swell the general bulk of the estate.^
§ 1482. Interest on Legacies to Children, Widow, etc. ; and other
Special Instances.
To the rule for delaying a reckoning of interest, well-settled ex-
ceptions exist in favor of young offspring not otherwise provided
for; '' or so as to give corresponding support to a widow; or where
4. Wms. Exrs. 1427; Kent v. Dun-
ham, 106 Mass. 5S6; Smith v. Field,
6 Dana, 361 ; Fowler v. Colt, 25 N. J.
Eq. 202. In Lyon v. Magagnos, 7
Gratt. 377, the legatee died shortly
after the testatrix, and there was no
administration on his estate for
twelve years; and yet interest was
held to be payable. And Lord Redes-
dale, in Pearson v. Pearson, 1 Sch. &
Lef. 10, mentions a case where the
fund did not come to be disposable
for the payment of legacies till
nearly forty years after the death
of the testator, and yet the legacies
were held to bear interest from the
year after the testator's death. See
121 P. 784, 44 Mont. 331 (legacy be-
queathed less a note) ; 139 N. Y. S.
304 (on death of another).
5. Pearson v. Pearson, 1 Sch. & Lef.
10. For the rule as to compounding
interest in case of delay, see Wms.
Exrs. 1433; 2 P. Wms. 26; 106 Mass.
586; post, Part VII. Interest may be
charged by way of penalty upon the
representative himself, where the
fault of delay is his own. We have
seen that the beneficiary of income is
entitled to income as computed from
the testator's death. Supra, § 1479.
But, as to a legacy in the shape of an
annuity, interest is not usually com-
putable on an instalment until the
first twelve months have elapsed.
Those entitled to income or annuity
are usually entitled to regular pay-
ments after the first year, reckoning
back, but not to interest upon income
thus regularly paid. See Wms. Exrs.
1428; 8 Hare, 120.
The English chancery rule com-
putes the rate of interest payable on
a legacy at four per cent.; unless the
rate should be increased, or interest
compounded, because of the represen-
tative's breach of trust or culpable
neglect. Wms. Exrs. 1432, 1433;
Part VII., post. In the United States
tlie rate fixed may be greater. 27
N. J. Eq. 492. But the statute rate
determines, even though trust funds
usually earn a lower rate. Welch v.
Adams, 152 Mass. 74, 9 L. R. A. 244,
25 N. E. 34; 171 Mass. 404, 68 Am.
St. Rep. 440, 50 N. E. 933, 41 L. R.
A. 800.
6. See 70 Iowa, 368.
7. Harvey v. Harvey, 2 P. Wms. 21;
Brown v. Temperly. 3 Russ. 263;
1562
ClIAP. IV.] PAYMENT AND SATISFACTION OF LEGACIES. § 1483
in consideration or the widow's release of dower; or so as to pur-
sue special directions of the testator/ as where he gives a fund in
trust to the support and maintenance of his legatee.^ Other special
instances may arise, and the manifest intent of the will controls.^
§ 1483. To whom Legacies should be paid; Deceased Legatees;
Infants, Insane Persons, etc.
The executor is bound to pay each legacy to the person entitled
to receive it, or to his proper legal representative. If the legatee
has deceased since the testator,^ his executor or administrator is the
proper representative ; and an appointment may be needed accord-
ingly for the express purpose of discharging such payment.^ Where
the legatee is an infant, the parent or natural guardian of the child
should not be paid, nor the child himself, but the child's probate
Martin v. Martin, L. R. 1 Eq. 3C9;
Williamson v. Williamson, 6 Paige,
298; Wms. Exrs. 1429; Magoffin v.
Fatten, 4 Rawle, 113. This rule is
enforced, even though the will should
expressly direct an accumulation of
the income. Mole v. Mole, 1 Dick.
310.
8. 1 Beav. 271; Williamson v. Wil-
liamson, 6 Paige, 298. But see 2
Penn. St. 221. A legacy payable at
a future fixed date, or on a future
contingency, carries no interest in
such legatee's favor, as a rule, until
the date arrives or the contingency
happens. Wms. Exrs. 1428. But
where the payment of a legacy is post-
poned to a future period, and the will
directs that when that period arrives
payment shall be made with interest,
the legacy bears interest from the
end of the year after the testator
died. Knight v. Knight, 2 Sim. & Stu.
792; 2 Wms. Exrs. 1430. Compound
interest on the legacy will, if directed,
be allowed by the legatee. Arnold
V. Arnold, 1 My. & K. 365; Wms.
Exrs. 1432, 1433; Treves v. Towns-
hend, 1 Bro. C. C. 386; Williams v.
Powell, 15 Beav. 461.
9. Townsend's Appeal, 106 Penn.
St. 268.
1. See Spinney v. Eaton, 87 A. 378,
111 Me. 1, 46 L. R. A. (N. S.) 535
(stock bequeathed and exchanged by
the testator for bonds) ; Keech's Es-
tate, 87 A. 623, 240 Penn. 491; State
V. Main, 87 A. 38, 87 Conn. 175.
2. If the legatee dies before the tes-
tator, the legacy usually lapses. See
supra, § 1461; Jones v. Letcher, 13
B. Mon. 363: 13 Phila. 406.
3. In English chancery practice,
where a legatee of a residue less than
£20 has died, and has no personal rep-
resentative, distribution among his
next of kin is permitted without re-
quiring administration to be taken
out. 2 Heram. & M. 32. But see gen-
erally as to requiring administration,
supra, § 1091, 1120.
1563
§ 14S4
EXECUTOES AND ADMIIS'ISTRATORS.
[part V.
or chancery guardian duly appointed and qualified.^ "Where, too,
the legatee is insane, the qualified guardian or committee of such
insane person is, in American probate practice, the proper person
to receive the legacy." An equal distribution among all of a class
should be made where the will so designates.®
§ 1484. To whom Legacies should be paid; Absentees, Persons
not known, etc.
Aside from legislation expressly providing for the case of ab-
sent-ees,^ the executor may find himself embarrassed with respect
to legacies which are nominally payable to persons who, in fact,
have long been absent and missing, and cannot with certainty be
pronounced alive or dead. Probate courts have no inherent juris-
diction of questions pertaining to the payment of legacies. The
executor's better course, when left with legacies in his hands await-
ing unknown claimants, appears to be, in the absence of positive
4. Schoul. Dom. Rel. 3d ed. § 302;
Dagley v. Tolferry, 1 P. Wms. 285;
Miles V. Boyden, 3 Pick. 213; Genet
V. Tallmadge, 1 Johns. Ch. 3 ; Quinn
T. Moss, 12 Sm. & M. 365; 1 Dem.
(N. Y.) 160; 94 Ga. 270. Letters of
probate guardianship often issue in
American practice because some
legacy or distributive share vests.
But English chancery guardianship is
so costly, that, under stat. 36 Geo.
III. c. 52, § 32, the executor is per-
mitted to pay such legacies into the
Bank of England in various cases.
See Wms. Exrs. 1406-1408; 31 Beav.
48.
5. Schoul. Dom. Rel. .3d. ed. § 293.
As to married women, the common-
law rule has now so completely
changed, that, in general, only the
wife herself can receipt for her sep-
arate legacy, and it cannot be paid
to her husband. See Schoul. Dom.-
Rel. Part II. passim.
6. Rollins V. Rice, 59 N. H. 493.
Testator gave E. $25,000, and or-
dered that $8,000 of said sum be paid
over to T. when T. should arrive at
the age of twenty-one; held, that the
executor must pay the whole to E.,
who became T.'s trustee. Denton. Re,
102 N. Y. 200, 6 N. E. 299.
7. The English statute, 36 Geo. III.
c. 52, § 32, permits legacies of ab-
sentees " beyond the seas " to be
turned, like tliosc of infants, into the
Bank of England. See Wm.s. Exrs.
1407, 1421. And see Birkett. Re, L.
R. 9 Ch. D. 576. American statutes,
somewhat corresponding in tenor, may
be found; but our legislation is usu-
ally applied with reference rather to
unclaimed balances in an adminis-
trator's hands. See next chapter.
1504
CHAP. IV.] PAYlVrEXT AXD SATISFACTION OF LEGACIES. § 1485
statute direction, to tnist liimself to the guidance of chancery, in-
vesting or disbursing the fund as that court may require.
Where a legatee has been long absent, sixteen years or more,
without being heard from, chancery has presumed death, in various
instances ; directing, it may be, that those entitled in such contin-
gency to the legacy, should, upon its receipt, furnish security to
refund in case the legatee should ever return.*
§ 1485. To whom Legacies should be paid; Testamentary Trus-
tees, etc.
If the bequest be to one person for the benefit of others, or with
directions to expend the fund for the use of others, either generally,
or in a particular mode, the executor may safely make payment
to such person, as trustee, without reference to the parties bene-
ficially interested.® It is customary- in modern wills for the testa-
tor to name trustees who shall hold funds bequeathed for the benefit
of others, or for special purposes, such as charity, and wherever a
full legal title in the beneficiary is suspended.
Testamentary trustees, in American practice, must qualify and
receive letters from the probate court before they are empowered
to act; nor should an executor place the trust fund in their hands
until they have conformed to statute.^ Even though the same per-
son be constituted executor and trustee under the will, he must
procure his credentials as trustee in due form, as preliminary to
holding and mana^ng the fund in his new capacity." So, too, he
must show some act done to change the character of his holding
and to place the fund properly, before he can be discharged as ex-
ecutor therefor.^ Where the testator omits to name a trustee, or
the trustee named is disqualified, or declines to act, or a vacancy
8. Dixon V. Dixon. 3 Bro. C. C. 510; 9. Cooper v. Thornton, 3 Bro. C. C-
Bailey v. Hammond. 7 Ves. 590 ; Wms. 96 ; Robinson v. Tickell, 8 Ves. 142 ;
Exrs. 1420. Sec Lewes' Trusts, Re, supra, § 1472.
L. R. 11 Eq. 236. As to paying a 1. Newcomb v. Williams, 9 Met. 535.
bona fide assignee of the legatee, see 2. See Miller v. Congdon, 14 Gray,
Houston V. Wilcox, 88 A. 32, 121 Md. 114.
91; 143 N. Y. 522. 3. Sanborn's Estate, 109 Mich. 191.
1565
§ 1486
EXECUTORS AJSTD ADMIXISTKATOES.
[pAET V.
afterwards occurs from any cause, proceedings may usually be
had, in American practice, for filling the office by probate appoint-
ment.* But where personal property is given in trust, the execu-
tor should protect and preserve the property until a trustee has
been appointed ; ^ and in special instances he may be compelled to
act and account as a trustee.^
§ 1486. Delivery of Specific Legacies; Legatee's Right to select.
Specific things bequeathed should be identified and delivered to
the respective legatees, as directed by the will. TVliere the testator
bequeaths a number of things, out of a larger number belonging to
4. See local statutes as to appoint-
ing testamentary trustees. Smith
Prob. Pract. 90-93: also Lord Alvan-
ley in Cooper v. Thornton, 3 Bro. C.
C. 96; Wms. Exrs. 1796. If a legacy
is given in trust, no person being
named as trustee, it may be incumbent
on the executor as such to administer
the same according to the provisions
of the will. Groton v. Ruggles, 17
Me. 137. Where, however, the tes-
tator appointed one to be his sole
executor, and bequeathed to him " his
executor and trustee," his property in
trust, the offices of executor and trus-
tee are distinct, and must not be
blended. Wheatley v. Badger, 7
Penn. St. 459. And see supra, §§
1247, 1472. As to transferring from
one capacity to the otlier where the
same person is executor and trustee,
see supra, § 1248; Wms. Exrs. 1399,
and Perkins's note.
It may happen that a particular
fund or the residue of the estate is
to be invested in good and productive
securities, and held, by the true in-
tendment of the will, in trust iiy the
executor himself, for purposes of ac-
cuniulatinn : or, so as to pay out in-
15
come only, until some prescribed period
has elapsed, or a certain contingency
happened; whereupon the principal
shall be paid by him to the person or
persons ultimately entitled thereto
under the will, or in default of such
ultimate disposition, to those entitled
under statutes of distribution in case
of intestacy. See Carson v. Carson,
6 Allen, 299; Miller v. Congdon, 14
Gray, 114. However unusual in ex-
tent and character may be the func-
tions thus exercised by him. the ex-
ecutor is bound to a just and rightful
performance; and his official bond,
though expressed after the ordinary
tenor, stands as security that the obli-
gations he has incurred shall be faith-
fully performed in all respects. \^'ms.
Exrs. 1399, and Perkins's note; Dorr
V. Wainwriglit, 13 Pick. 328; Sheet's
Estate, 52 Penn. St. 257; Lansing v.
Lansing, 45 Barb. 182.
5. As where the trustee named re-
fuses to serve, and there is a delay in
appointing another. Casperson v.
Dunn, 42 N. J. Eq. 87.
6. Hodge's Estate, 63 Vt. 601, 22 A.
725.
G6
CHAP. IV.] PAYMEXT AND SATISFACTIOX OF LEGACIES. § 1487
him, — as in a bequest of " ton of the horses in my stable," — it is
held that the legatee has a right of selection from the number.'' But
where the entire fund is bestowed in parcels, to be divided among
different legatees, such individual selection would be impractica-
ble.^ The direction or fair intent of the will as to such legacies
should be followed.^
§ 1487. Method of paying General Legacies; Money, etc.
The presumption is that general legacies shall be paid in la^vful
money. -^ Tjut a testator may require any general legacy to be paid
in a particular currency or coin, or in specified securities or prop-
erty.^ In either case an executor does not discharge himself when
7. Jacques v. Chambers, 2 Col. 435;
Wms. Exrs. 1440.
8. In such case the lejratees may
well abide by the executor's selection,
if they cannot agree; but, otherwise,
equity must decide. lb.
9. Where a testatrix gave her son
one undivided tenth of her estate, with
the provision that it should be in-
dorsed on a certain note which he
owed her daughter, the executor was
held bound to appropriate the legacy
to the payment of such note, and to
pay the residue only, if any, to the
legatee. Low v. Low, 77 Me. 171.
Where the executor delivers a spe-
cific legacy or a specific fund to the
life beneficiary and takes a proper re-
ceipt or inventory for the remainder-
man, the legacy or fund having been
thus bequeathed, he is discharged
from further duty or liability. 52
N. J. Eq. 611, 30 A. 477. See Staple-
ton V. Haight, 113 N. W. 351, 135
Iowa 564; 124 K Y. S. 641.
Where there has been no ademption,
but a substitution in a specific legacy,
the specific legacy in its new shape
is due from the estate. Spinney v.
15
Eaton, 87 A. 378, 111 Me. 1, 46 L. R.
A. (N. S.) 1535 (resort to the gen-
eral fund).
1. Rates of exchange in payments
will be reckoned accordingly. Wms.
Exrs. 1433-1435; Lansdowne v. Lans-
downe, 2 Bligh, 91; Bowditch v. Sol-
tyk, 99 Mass. 136; Yates v. Maddan,
16 Sm. 613. As to payment in " con-
federate money," see 79 Va. 118.
Lord Coventry, 2
Banks v. Sladen. 1
King V. Talbot, 50
2. Sheffield v.
Russ. & My. 317;
Russ. & My. 216;
Barb. 453.
An executor is not bound to search
out a legatee; it is enough if he is
always ready when called upon to
pay the legacy. Thompson v. Young-
blood, 1 Bay (S. C.) 248; Hemphill v.
Moody, 62 Ala. 510. Yet, as the ex-
ecutor must be ready to pay interest
on the legacy after one year, he should
invest the amount or else pay it into
court to be invested. Lyon v. Magag-
nos, 7 Gratt. 377 ; supra, § 1323. And
see 60 N. H. 377.
A legatee or distributee may, if sui
juris, receipt and release for what is
due him. As to taking the fiduciary's
G7
§ 1488 EXECUTOES A2s"D ADMl^'ISTKATOES. [PAET V.
he turns over worthless or desperate securities by imposing on the
young or inexperienced.^ Debt lies to recover a legacy on a decree
of the probate court, in our local practice/
Legacies are payable without deduction for expense of adminis-
tration, although paid out of real estate upon which they are
charged." But a legacy tax may be payable under local statute.*
§ 1488. Assent of the Executor to a Legacy.
The theory of our law is, that the title of a legatee, whether
specific or general, does not become complete and perfect, until the
executor assents to the legacy.^ But, as an executor's wishes are
not to control those of his testatx>r, the object of the requirement
appears to be nothing more practically than to await tJje executor's
reasonable convenience. Consequently, a legatee has no i*ight to
take possession of his legacy and exercise full dominion over it,
pending administration ; nor could the testator himself have con-
ferred such a privilege without imperilling prior rights.^ Even
though the legacy were of a specific chattel, trespass, trover, re-
plevin, and other remedies founded in possessory rights, are inap-
propriate to the legatee's title before the executor has surrendered
own note for the amount, see Lawton 6. Whether legacies are liable to
V. Fish, 51 Ga. 647; 9 N. J. Eq. 314. legacy duty, etc., or not, is a familiar
As to form of decree for distribution subject in English practice. (1894) 1
of a legacy where there is a doubt Ch. 286. And in this country at the
concerning the person entitled, see 3 present time we find legacy and suc-
Dem. (N. Y.) 282. cession taxes imposed by State legis-
3. 1 Dem. 568. See also Codding- lation, so as often to constitute a
ton V. Stone, 36 N. J. Eq. 361 ; 101 double burden to the estate of a
N. Y. 311. wealthy person. See § 1508 c.
4. Weeks v. Sowles, 58 Vt. 696. 7. Wms. Exra. 1372; Northcy v.
That legacies may by mutual agree- Korthey, 3 Atk. 77 ; Nunn v. Owens,
ment be settled by appropriating 2 Strobh. 101; Refeld v. Belette, 14
specific assets of the estate as equiva- Ark. 148 ; Lott v. Meacham, 4 Fla.
lent for cash, see Dowsott v. Culver, 144; Crist v. Crist, 1 Ind. 570; Finch
(1892) 1 Ch. 210; § 1506 post. v. Kogers, 11 ITiunph. 559, 57 S. E. 59,
5. Hays's Estate, 153 Penn. St. 328. 127 Oa. 706.
See TTarrison v. Denny, 77 A. 837, 8. Wms. Exrs. 1372.
113 Md. 500; § 1445 a.
15G8
CilAP. IV.] PAYMENT AND SATISFACTION OF LEGACIES.
1488
Lis own ; ^ nor should the legatee's sale and transfer give an inde-
feasible title to the purchaser, regardless of proving the executor's
assent to the legacy.
Should, however, the executor unreasonahly withhold his assent
to the legacy a court of equity will compel him to yield it.^ Assent,
moreover, may be express or implied, the question being one of
fact.^ If the executor notifies the legatee that he is ready to pay
whenever the legatee calls, there is a clear assent ; ^ but not where
he merely congratulates ;^ nor should the assent of one who is named
executor avail where another qualifies and administers.^ A prema-
ture assent should not be readily inferred from doubtful acts or
expressions.®
9. Nortliey v. Northey, 2 Atk. 77.
1. No action will lie at law to re-
cover the legacy before assent is given,
but equity regards the executor as a
trustee, and compels him to assent
where he ought to do so. Lark v.
Linstead, 2 Md. Ch. 162; Wms. Exrs.
1375; Nancy v. Snell. 6 Dana, 148;
Price V. Nesbit, 1 Hill Ch. 445 ; Crist
V. Crist, 1 Ind. 570, 50 Am. Dec. 481.
2. George v. Goldsby, 23 Ala. 326;
Eefeld V. Belette, 14 Ark. 148; Crist
V. Crist, 1 Ind. 570, 50 Am. Dec. 481;
Elliott V. Elliott, 9 M. & W. 27; Buf-
faloe V. Baugh, 12 Ired. 201.
3. Barnard v. Pumfrett, 5 My. &
Cr. 70.
4. Wms. Exrs. 1376, criticising
Shep. Touchst. 456.
5. White V. White, 4 Dev. & Bat.
401. If an executor assents before
letters testamentary are issued to
him, his assent will not pass the legal
title, nor bind the estate which he
represents. Gardner v. Gantt, 19 Ala.
666. But English cases have held, re-
lying upon the older doctrine so in-
consistent with our modern legisla-
tive policy, that the executor's author-
ity being derived from the will, he
may assent before probate. Wms.
Exrs. 303, 1378.
6. George v. Goldsby, 23 Ala. 326;
Wms. Exrs. 1376; Burkhead v. Col-
son, 2 Dev. & Bat. Eq. 77; 112 Penn.
St. 390.
Should the legatee have or gain
possession of the thing bequeathed,
without the executor's assent, the ex-
ecutor, it would seem, may recover it
from him by action at law, in trespass
or trover, by virtue of his better title.
Wms. Exrs. 1374; Mead v. Orrery, 3
Atk. 239. For, until after his assent
to the legacy, the executor has not
only a bare authority, but the interest
in the thing bequeathed. 3 Atk. 235,
239. In general, the right to recover
and collect assets is in the executor
And yet retention of the legacy for a
considerable time, without complaint
by the executor, may conclude the
latter, if the thing or fund be not
needed for administration ; since as-
sent may be given by acquiescence,
and without an actual transfer of
possession. Andrews v. Hunneman, '3
Pick. 126; Spruil v. Spruil, 2 Murph.
99
1569
§ 1488 EXECUTORS AXD ADMIXISTEATOES. [pART V.
The effect of the executor's assent to a specific legacy is, that the
specific thing bequea4:hed ceases at once to be part of the testator's
assets, and the legal title of the legatee thereto becomes perfect ; ''
and this notwithstanding the assets prove afterwards insufficient
to pay the debts.^
As to legacies not specific, the practical effect of the executor's
mere assent appears of less consequence. There ensues a sort of
contract obligation to pay the legacy, which obligation may be en-
forced in equity; but, unless a specific fund has been set aside in
consequence, nothing can be identified upon which the legatee's
legal title actually attaches.® The prime object of requiring tlie
executor's assent to a legacy or devise is apparently for the purpose
of keeping the property meanwhile subject to the testator's debts.^
Where the executor is himself a legatee, assent to his own legacy
is needful. And, until his express or implied assent to the legacy
has been given in such a case, the qualified executor holds the
specified thing or fund in his representative capacity, even though
all the debts have been paid ; for the rule is, that one's assent can-
175; Jordan v. Thornton, 7 Ga. 517; Mon. 529. A setting apart of certain
Eherstein v. Camp, 37 Midi. 176. property by the executor alone
When executors die, after the debts amounts to nothing more than a mere
are paid, but before the legacies are mental determination and does not
satisfied, their assent will sometimes bind the estate. Sherman v. Jerome,
be presumed. Cray v. Willis, 2 P. 120 U. S. 319, 30 L. Ed. 680. As to
Wms. 531; Wms. Exrs. 1377. So may a presumed assent after lapse of time,
the executor's assent be given condi- etc., see 75 Ga. 285. A complaint for
tionally instead of absolutely. Wms. allowance of a legacy may be made in
Exrs. 1378; Lillard v. Reynolds, 3 some States to the probate court in
I red. 366. In short, assent may be the form of a claim upon the estate,
inferred either on the ])rosumption 97 Ind. 289.
tlmt an executor meant to do wliat 7. Nancy v. SncU, 6 Dana, 148.
was his duty, or from some act or 8. lb. See Sloan v. Sloan, 83 A.
expression on his part which recog- 38, 117 Md. 141; 133 N. Y. S. 145
nized the legatee's present right to (assent irrevocable),
receive the legacy. See per curiam 9. Andrews v. Hunncman, 6 Pick,
in George v. Goldsby, 23 Ala. 326. 129; Wms. Exrs. 1372; Dunham v.
Where tliere are joint executors, the Elford, 13 Ricli. Eq. 190.
assent of one will suffice. Wms. Exrs. 1. See Northrop v. Lumber Co., 186
948, 1378; Boone v. Dyke, 3 T. B. F. 770, 108 C. C. A. 640.
1570
CHAP. IV.] PAYMENT AXD SATISFACTION OF LEGACIES. § 1489
not be inferred from acts equallj applicable to the title of legatee
and executor.^ If the executor is residuary legatee he occupies such
dual relation to the estate that the court retains control of his offi-
cial acts until the estate is administered and the residue turned over
properly.^
§ 1489. Legatee's Assent to the Legacy.
There is another element in the acquisition of title to a legacy:
namely, the legatee's assent. A will being once established in pro-
bate, each legatee is readily presumed to assent to his own legacy,
whether larger or smaller in amount than what he might reasonably
have expected. Yet the legatee's assent to his legacy is a legal pre-
requisite to the completion of the gift ; for no one can be made the
beneficiary of another against his own wish ; and, where a bequest
is coupled with onerous conditions or trusts, as in various instances
of charity, or some public corporation is legatee, a formal accept-
ance or assent will often precede with propriety the payment or
delivery by the executor. The simple bequest to an individual,
however, is usually assumed to have been accepted, if per se bene-
ficial, unless positively declined; and an actual acceptance, with-
out reservation, of the money or specific thing bequeathed concludes
the matter. Should the legatee refuse to accept and disclaim all
title to the legacy, his refusal or relinquishment given sui juris,
would operate to divest his interest, and subject the property thus
bequeathed to distribution, as in the case of intestacy, or to a lapse
into the residuary fund.*
2. Doe V. Sturges, 7 Taunt. 223; see 2 Sm. & M. 527, 41 Am. Dec. 607.
Com. Dig. Adm. 6; Wms. Exrs. 1382. 4. Walker v. Bradbury, 15 Me. 207;
3. Ridgley v. People, 163 111. 112, § 1471 a. Where, of cumulative be-
45 N. E. 116. When an executor as- quests to the same person, one is on-
sents to a legacy given for life with erous and the other beneficial, the
a remainder over, the assent extends legatee cannot accept one and reject
also to the remainder and his control the other; nor, of course, can a leg-
over the legacy ceases. McKoy v. acy be accepted apart from its essen-
Guirkin, 102 N. (5. 21, 8 S. E. 776. tial restrictions; there must be ac-
See Murphee v. Singleton, 37 Ala. ceptance in toto or rejection !?i toto
412. As to dispensing with assent, of what the testator has bequeathed
1571
§ 14S9a
EXECUTORS AND ADMINISTRATORS.
[part V.
§ 1489a. Election by the Beneficiary.
We further observe that a beneficiary named in a will may some^
times be put to Kis legal election wbetlier to take the benefit thereof
or stand upon his own rights regardless of it.^ In general one must
elect to wholly abide by the will or wholly repudiate its benefits.
Election to take under the will is to be presumed in all cases unless,
a timely and definite choice is made to the contrary ; and the elec-
tion once made understandingly becomes conclusive.'
to him. Talbot v. Radnor, 3 My. &
K. 254; Nayle v. Conrad, 86 A. 1103,
80 N. J. Eq. 253. But the intention
of the testator expressed in the will
controls the question. Long v. Kent,
.11 Jur. N. S. 824; Wms. Exrs. 1448.
Where a gift is not prima facie
beneficial, but burdened with onerous
requirements, the presumption of
acceptance is not readily inferred.
Bradford v. Leake, 137 S. W. 96, 124
Tenn. 312. An actual acceptance of
the legacy relates back. lb. Taking
possession of the property and exer-
cising acts of ownership conclude ac-
ceptance and estop from refusal.
Banks v. Lester, 137 Ga. 34. By
accepting a devise or legacy coupled
with an obligation one binds himself
to discharge such obligation. 72 S.
E. 545, 90 S. C. 20; -Jacobs v. Ditz,
102 N. E. 1077, 260 111. 98; 179 111.
App. 274, 484. But not, presumably,
to pay the testator's debts. Burton
Co. V. Davios, 205 F. 141, 123 C. C A.
373.
5. As to the widow's or surviving
husband's election, see § 1457 o, 6.
And under recent legislation, recog-
nizing a married woman's will, a cor-
responding cl(!ction is sometimes ex-
<trcisal)le l)y the husband. See Sch.
Wills, §§ 56-58. But a married tes-
tator may purposely put the surviv-
15
ing spouse to an election of benefits;
as where a special provision is made
in lieu of the widow's dower. A bene-
ficiary under a will which disposes of
property owned by him must elect
either to claim his own property or to
take under the will. Van Schaack
V. Leonard, 164 111. 602; Hyatt v.
Vanneck, 82 Md. 465; 82 Wis. 364;
92 Va. 307; 103 N. Y. S. 446 (estop-
pel) ; 148 N. Y. 410. But specific
portions of a legacy to a town for dif-
ferent designated purposes, may be
severally accepted or rejected. Web-
ster V. Wiggin, 19 R. I. 73. For here
there are severable bequests in effect
to diff'erent beneficiaries. And see 106
N. Y. S. 27 (annuity).
6. Election against a will should be
made freely and understandingly.
Buckland's Estate, 86 A. 1098, 239
Penn. St. 608; 131 P. 608, 89 La.
352; Waggoner v. Waggoner, 08 S. E.
990, 111 Va. 325. Compensation ia
sometimes given to other devisees or
legatees where election is made to
their injury. Cooley v. Houston, 78
A. 1129, 229 Penn. 495; Dunlap v.
McCloud, 95 N. E. 774, 84 Ohio St.
272. See, further, as to effect of
election. Northern Trust Co. v.
Wheaton, 94 N. E. 980, 249 III. 606;
79 A. 173, 220 Penn. St. 542.
One may accept by election some
72
CHAP, IV.] PAYMENT AND SATISFACTION OF LEGACIES. § 1490
§ 1490. Abatement of Legacies in Case of Deficient Assets.
j^ext in order, after collecting the assets and paying or provid-
ing for the due adjustment of all valid claims, and charges against
his testator's estate, an executor naturally regards the delivery of
specific legacies; for these are not to be abated under ordinary cir-
cumstances, being answerable for debts only as a last resort, and
for general legacies scarcely at all.'' If, however, the will creates
exceptional conditions, as where general legacies are made an ex-
press charge upon the specified legacies or upon the personal prop-
erty, and there is no other fund which can satisfy such bequests,
the rule is different.^ Legacies, by a suitable construction of the
"will, may bo charged, sometimes, upon the testator's land.^
So long as there remain assets not specifically bequeathed to ap-
propriate to legal debts and charges against the estate, specific be-
quests cannot be disturbed, though general legacies be swallowed
up ; it is only when, the residuary and other general legacies sacri-
ficed, nothing remains of the personal estate for satisfying legal
debts and charges but what was specifically bequeathed, that
specific and demonstrative legatees can be compelled to contribute ;
and, in such case, abatement shall be proportioned to the value of
their respective legacies.^ For it should be borne in mind that all
provision and yet have other claims ate wills making one scheme) ; 113
under the virill. 96 N. E. 513, 251 111. Md. 495, 77 A. 975; 111 Va. 325.
568. Legatee allowed to elect the As to election by surviving spouse,
money, instead of an annuity to be see § 1457 supra.
purchased by trustees. 94 N. E. 476, 7. Wms. Exrs. 1359, 1360.
208 Mass. 260. 8. Prec. Ch. 393; White v. Green,
Actual disclaimer of a legacy leaves 1 Ired. Eq. 45; 25 N. Y. 128. Demon-
a right to retract until acted on. strative legacies have a presumed se-
Fraser v. Young, [1913] 1 Ch. 272. curity for their payment, and do not
As to estoppel to elect by acts of in- abate with general legacies. Supra,
consistent ownership see 128 N. W. § 1461 a; 4 Ves. 150; Creed v. Creed,
969, 149 Iowa, 658. See 77 S. E. 73, 11 CI. & Fin. 509.
139 Ga. 218 (election under either 9. McCorn v. McCorn, 100 N. Y.
contract or will); 137 S. W. 96, 124 511. Humphrey v. Hadnall, 84 N. E.
Tenn 312; Douglas-Menzies v. Um- 203, 233 111. 185; 69 A. 655, 81 Vt.
phelby, [1908] App. 224 (two separ- 121.
1. Barton v. Cooke, 5 Ves. 461;
1573
1490
EXECUTORS A^'D ADMIXTSTEATOES.
[part V.
legacies, specific or general, are postponed to the prior payment of
all debts against the estate.^
General legacies rank together; so that whatever remains over
and above satisfying the legal debts, demands, and charges against
the estate and specific legacies, must be applied to general legacies
in proportion to their amount, until they are fully paid.^ It fol-
lows, that where the estate is scarcely enough, or less than enough,
to pay such general legatees in full, the residuaiy legatee must be
the sufferer.^ But legacies upon a meritorious consideration are
preferred to other general legacies.""
Sleech v. Thorington, 2 Ves. Sen. 561;
Wms. Exrs. 1371.
2. Ford V. Westervelt, 55 N, J. Eq.
585; § 1476. Where neither debts
nor legacies are chargeable upon
realty, the personalty must first be
applied to paying the debts. lb. See
§§ 1509-1512.
3. Wms. Exrs. 1359; 78 Me. 233;
Mollan V. Griffith, 3 Paige, 402.
4. lb. Where the testator appears
not to have contemplated the possible
failure of assets sufficient to meet the
legacies named, the presumption of
intended equality prevails between
general legatees, as to meeting all de-
ficiency. Emery v. Batchelder, 78 Me.
233, 3 A. 733. An indiscriminate
residuary bequest of realty and per-
sonalty charges the whole with the
payment of prior legacies. 61 Miss.
372.
The usual priority among legatees
may be varied by the special direc-
tions of the will. See Dey v. Dey, 4
C. E. Green, 137; Lewin v. Lewin, 2
Ves. Sen. 415; Marsh v. Evans, 1 P.
Wms. 668; Brown v. Brown, 1 Keen,
275; Haynes v. Haynes, 3 De G. M.
& G. 590; Towle v. Swasey, 106 Mass.
100. Local statutes, too, may be
found to modify the rule. See, as to
a post-testamentary child, 5 Paige,
588.
Local statute sometimes requires
specific legacies of a certain kind to
contribute in case of a deficiency.
Bullard v. Leach, 100 N. E. 57, 213
Mass. 117 (bank deposits). But the
general rule is that specific legacies
do not contribute. 129 N. W. 915,
150 Iowa, 230; Hamilton v. Hamilton,
134 N. Y. S. 645. See Wedmore Re,
(1907) 2 Ch. 277 (forgiveness of a
debt).
5. Legacies given for a valuable
consideration are preferred to other
general legacies, wlien abatement is
necessary, because, doubtless, of their
quasi obligatory character. Burridge
V. Bradyl, 1 P. Wms, 127 ; Ambl. 244
Wedmore Re, (1907) 2 Ch, 277
Blower v. Morret, 2 Ves. Sen. 420
Norcott V. Gordon, 14 Sim. 258; Wms.
Exrs. 1364; Wood v. Vandenburgli, 6
Paige, 277; Clayton v. Akin, 38 Ga.
300; Pollard v. Pollard, 1 Allen, 490.
Cf. §§ 1432, 1469. It might be
thought that, regarded as debts, they
should, to the extent of the consider-
ation, and not farther, rank above all
legacies, even specific ones; b\it courts
1574
CHAP. IV.] PAYMENT AA^D SATISFACTION OF LEGACIES. § 1490a
§ 1490a. Personalty the Primary Fund for Payment of Lega-
cies; Exceptions.
It is well settled that the personal estate constitutes the pri-
mary fund for settling all the personal obligations of a decedent;
and next to debts and claims upon legal consideration, legacies
do not appear to apply this prefer-
ence with so nice a sense of justice;
and, on the one hand, specific legacies
will take full precedence, while, on
the other, as among general legacies,
these have been excepted to their full
amount, even though the bequest
should exceed the value of its actual
consideration. Towle v. Swasey, 106
Mass. 106; Ambl. 244, Among gen-
eral legacies thus privileged, are
those given in consideration of a debt
actually owing to the legatee, or of
the relinquishment of a widow's
dower. Burridge v. Bradyl, and other
cases cited supra; Borden v. Jenks,
140 Mass. 562, 54 Am. Kep. 507, 5
N. E. 633. It is essential, however,
to this privilege, that the considera-
tion should subsist at the testator's
death; and, hence, legacies given to
creditors whose claims had been com-
pounded and released during the life
of the testator, Davies v. Bush, 1
Younge, 341; Coppin v. Coppin, 2 P.
Wms. 291; or provisions nominally in
lieu of dower, where the testator has
left no dowable lands, are voluntary
merely. Acey v. Simpson, 5 Beav. 35 ;
L. R. 3 Ch. D. 714. And the same
may be said of a legacy given to pay
off another person's debts. Shirt v.
Westby, 16 Ves. 396. The meritorious
object of a voluntary bequest, more-
over, will not entitle it to pre-em-
inence above other general legacies
given by way of bounty; and, aside
from provisions which properly de-
15'
fray the incidental expenses of fun-
eral and administration, legacies
given for mourning rings, or to recom-
pense executors for their care and
trouble, are liable to abatement in
the usual proportion. Apreece v.
Apreece, 1 Ves. & B. 364; Fretwell v.
Stacy, 2 Vern. 434; Duncan v. Watts,
16 Beav. 204; Wms. Exrs. 1366. In
American States, however, where com-
pensation is regularly allowed to ex-
ecutors for their services, a legacy
given by way of recompense, might,
perhaps, be pronounced a legacy upon
valid consideration; but, even were it
abated, the executor would not be
thereby debarred, we presume, from
receiving his full compensation on
the usual footing of such officials. See
Part VII., c. 2, on this point. The
report, in 1 P. Wms. 423, appears to
sanction the exemption of a legacy
left for building a monument to the
memory of a relation; but there is
here some error. See Wms. Exrs.
1366, and note; 1 Bro. C. C. 390; 6
Paige, 277. Legacies to servants, or
for charities, cannot claim precedence.
Attorney General v. Robins, 2 P. Wms.
25; Wms. Exrs. 1366.
On the other hand, a widow's an-
nuity under an ante-nuptial settle-
ment takes precedence of general
legacies. Pitkins v. Peet, 108 Iowa,
480, 79 N. W. 272. So with a legacy
given to discharge a subsisting debt.
Harper v. Davis, 80 A. 1012, 115 Md.
349 ( but not for gratuitous services ) .
§ 1490a' EXECUTORS AXD ad:mixistkatoks. [pakt v.
should be tliiis satisfied ; with such further resort to realty, in case
of a deficiency of assets, as may be permissible.^ But legacies are
sometimes made expressly chargable by one's will upon the real
estate devised ; ^ while an indiscriminate residuary bequest of
realty and personalty charges the whole estate with the payment of
other legacies.^
While the true intendment of the will must be the criterion in
<!ase of doubt, it is even held that the personal estate is not only
tiie primary, but prima facie the exclusive fund for the payment
of legacies, even though it should appear that the testator had no
personal property when the will was executed. It follows that
"where one dies without leaving sufiicient personal estate for the
payment of his bequests, they must be adeemed wholly or pro tanto,
unless there is something discoverable from the will, expressly or
by inference, to denote an intention to charge one's real estate with
the payment.^ "Whether an executor, who is also a devisee, becomes
personally or as executor bound to pay such legacies, depends upon
his promise express or implied.^
6. See §§ 1005, 1212-1215, 1509- upon testator's real estate) ; St.
1517; Bank of Ireland v. McCarthy, John's Church v. Dippoldsman, 84 A,
(1898) A. C. 181; 68 A. 404, 8 Del. 373, 118 Md. 242 (charge upon real
Cb. 284. estate if personalty proves insuffi-
7. But even here the presumption cient) ; 129 N. Y. S. 941; 79 A. 1119,
is that personalty shall be the pri- 77 N. J. Eq. 271; Triber v. Lass, 131
mary fund, in absence of clear direc- N. W. 357, 146 Wis. 202.
tion to the contrary. Knight v. The legatees (and not the execu-
Knight, (1895) 1 Ch. 499. See tor) are the proper persons to enforce
Lloyd's Estate, 174 Penn. St. 184. such charge. St. John's Church v.
8. Cook v. Lanning, 40 N. J. Eq. Dippoldsman, supra.
3G9. See also 61 Miss. 372; 83 N. E. 9. Duvall's Estate, 146 Tenn. St.
18, 231 111. 508; 112 N. W. 101, 134 176, 23 A. 231, and cases cited.
Iowa, 583; Greene v. Rathbun, 78 A. 1. lb. Cf. Evans v. Foster, 80 Wis.
528, 34 R. I. 145. 509, 14 L. R. A. 117, 50 N. W. 410;
The intent manifested by the will § 1488. Though the land specifically
controls in all such cases. Bronnan devised may liave to be sold to pay
V. Brennan, 127 X. Y. S. 420; 166 111. debts, etc., the surplus, if any, goes
App. 414 (intent to charge legacy to such devisee. 87 Mc. 63, 32 A. 784.
i57n
CHAP. IV.] PAYMENT AXD SATISFACTION OF LEGACIES. § 1401
§ 1491. The Refunding of Legacies after their Payment.
The general rule appears to be well settled, that after the execu-
tor has once voluntarily paid a legacy without reservation, he can-
not at discretion force the legatee to refund.^ Where, however, the
assets are found deficient for meeting the lawful debts and charges,
the executor may, by a bill in equity, compel legatees to refund
what may have been already overpaid to them ; ^ though equity will
not make legatees refund for the sake of repairing losses occasioned
by the executor's waste ; * nor while unappropriated assets remain
for administration purposes.^
Creditors cannot, however, be debarred of their prior rights by
the executor's imprudence or misconduct, but may in all cases
pursue assets into the hands of legatees, where their own lawful
demands remain unsatisfied ; and the satisfied legatee, whether paid
by the executor voluntarily or under the sanction of chancery, may,
by chancery, be compelled to refund.® Where chancery has admin-
istered the fund, however, a particular legatee may be required to
refund only his proportionate share.^ And it would appear con-
sistent with our American probate practice to cause unsatisfied
creditors, where the deficiency was occasioned by maladministra-
tion, to exhaust their remedies first against the executor or admin-
2. Orr V. Kaines, 2 Ves. Sen. 194; 5. 1 La. Ann. 214. The executor's
Coppin V. Coppin, 2 P. Wms. 296; 5 prudent course is to take a refunding
Cranch, C. C. 658 ; Wms. Exrs. 1450. bond from legatees, as against claims
Local statutes sometimes change this which may afterwards be presented
rule. within the time allowed by law; un-
3. Wms. Exrs. 1451; 1 Chanc. Cas. less the estate is ample. Supra, §
136; Davis V. Newman, 3 Rob. (Va.) 1477; McGlaughlin v. McGlaughlin,
664, 40 Am. Dec. 764. The executor 43 W. Va. 226, 27 S. E. 378; 31 Gratt.
should come into the court " with 602.
clean hands," if he expects equity to 6. Wms. Exrs. 1451 ; 1 Vern. 162 ;
aid him. See 77 N. C. 357. March v. Russell, 3 My. & Or. 31;
4. McClure v. Askew, 5 Rich. Eq. Davies v. Nicholson, 2 De G. & J.
162. If he volunteers to pay legacies, 693; Buie v. Pollock, 55 Miss. 309.
with full knowledge of outstanding 7. Gillespie v. Alexander, 3 Russ.
debts, he may have to bear the pen- 130.
alty of his own imprudence. Harkins
V. Hughes, 60 Ala. 316.
1577
§ 1491a EXECUTORS AND ADMIXISTEATOES. [PAET V.
istrator and the sureties on liis official bond.^ And since creditors
maj compel legatees to refund, so the executor is sometimes subro-
gated to their right for his own indemnity.®
As among legatees, moreover, no one of them shall be allowed
an unjust precedence, because of an executoi-'s favor or misappre-
hension, where the assets were not originally sufficient, in fact, to
pay all in full; but in such case equity will compel the legatees
thus "overpaid to contribute so as to make the whole proportionate
abatement what it should have been.^
§ 1491a. Change from Representative to other Capacity.
At the proper point an executor or administrator who is also
sole beneficiary for the residue, changes the character under which
he holds the fund and becomes residuary legatee or distributee,
Or he may change from one representative capacity to another.^
8. Pyke v. Searcy, 4 Port. 52. A the residuary legatee may be pursued
decree of the court directing a pay- to whom the executor has made im-
ment without security, will protect proper payment. Buffalo Loan Co.
the executor. 154 Penn. St. 3S3, 25 v. Leonard, 154 N. Y. 141, 47 N. E.
A. 816. Cf. § 1477. 906.
9. See 83 Va. 539, 3 S. E. 142. 2. As to where he is to hold the
1. Walcott V. Hall, 1 P. Wms. 495; fund as trustee or guardian, see §§
Wms. Exrs. 1452; Gallego v. Attor- 1247, 1248. For devolution of title
ney General, 3 Leigh, 450, 24 Am. as legatee or distributee, see § 1249.
Dec. 650. Otherwise, where assets, Where one is sole residuary legatee
originally sufficient, have been wasted or distributee and all debts are paid,
by the executor. See Wms. Exrs. he may turn over to himself any out-
1452; Evans v. Fisher, 40 Miss. 644. standing claim of the estate and sue
Trust funds, misapplied and distrib- for it in his individual capacity,
uted by the executor among legatees, Ewers v. White, 114 Mich. 266, 72
may be recovered by a bill in equity. N. W. 184. And see Coates v. Lunt,
Green v. Givan, 33 N. Y. 343. Where 100 N. E. 829, 213 Mass. 401 (on
specific legacies have not been paid, which bond liable).
1578
CilAi'. V.J PAYMENT AND DISTEIBUTIOX OF THE RESIDUE. § 14:93
CHAPTER V.
PAYMENT AND DISTRIBUTION OF THE RESIDUE.
§ 1492. Residue of Personal Estate goes according to Testacy or
Intestacy of Deceased.
After the payment of debts and (if there be a will) of specific
and general legacies, the final duty of the executor or administrator
is to pay over or deliver what residue or surplus of the assets may
remain to the person or persons duly entitled to the same. In case
of testacy, the residuary legatee or legatees, or, as the case may be,
trustees selected to hold the residue for the purposes contemplated
by the will, are the proper parties ; but, where one died intestate,
the residue goes to the person or persons designated by law and
the statute of distributions. These two cases we now proceed to
consider separately.^
§ 1493. I. As to the Residue in case of Testacy.
Firsts as to the case of testacy. After an executor has settled
all lawful debts and charges against the estate which he represents,
and has paid or delivered all the general and specific legacies ac-
cording to the tenor of the will, he should transfer whatever per-
sonal property remains to the residuary legatee or legatees if such
there bc.^ And if a residuary legatee dies after the testator, and
pending a final settlement of the estate, his personal representative
will take his share of the residue in his right.^ Subject to the direc-
tions of the will, and such legatee's convenience, this residuary
fund is turned over in money or other kinds of personalty, as the
proceeds of a prudent administration.
1. The representative's right of re- thermore, as to what the latter may
tainer or deduction, as against each reasonably owe the representative be-
legatee or distributee for what the cause of matters growing out of the
latter may owe as a debtor to the settlement of the estate. lb.
estate has been considered, supra § 2. Wms. Exrs. 1454; Gibbs Re,
1445 a. And this right applies, fur- (1907) 1 Ch. 465.
1579
§ 1494: EXECUTORS AND ADMINISTEATOES. [pAET V.
§ 1494. Right of the Executor where there is no Residuary Leg-
atee named.
Formerly it was contended in the English courts, more out of
favor to the individual upon whom the deceased had bestowed his
confidence than upon any rational theory of interpretation, that
if a testator had named in his will an executor, but no residuary
legatee, the executor should retain the residue of the personal es-
tate for his own benefit, after settling all debts and charges, and
paying whatever legacies were duly bestowed. For inasmuch as
the personal estate had devolved upon the executor in the first in-
stance, there the surplus legally remained.* So unsatisfactory was
the doctrine, however, that though equity gave formal adhesion to
this common-law rule, they made exceptions wherever they might; ^
and, in 1830, Parliament declared explicitly that, for the future,
unless the will directed otherwise, the executor must be deemed,
in all such cases, a trustee for the persons entitled to the estate
under the statute of distributions.^ Generally, if not universally,
in the American States, the executor has been considered a trustee
for the next of kin as to all residue in his hands undisposed of;
and American statutes a hundred years old repudiate the notion
that a beneficial interest should vest in him by virtue of his ofilce.'"
3. Brown v. Farndell, Carth. 52 ; be to put the burden of proof on the
Cooper V. Cooper, L. R. 7 H. L. 53. A executor to show that the testator
residuary legatee, under a will, has a intended he should enjoy the residue
clear and tangible interest in the resi- beneficially. Juler v. Juler, 29 Beav.
due, and the next of kin stand, with 34. But the statute is considered to
regard to an intestate estate, in the apply only in cases where the testat(^r
same condition. Cooper v. Coopj^-r, ib. has loft next of kin: and, accordingly,
4. Attorney General v. Hooker, 2 where there is no known next of kin,
P. Wms. 338; Urquhart v. King, 7 the executor will take the residue as
Ves. 288; Wms. Exrs. 1474, 1475. against the crown, unless the intent
5. Ib. ; Langham v. Sanford, 17 Ves. of the testator to exclude his executor
4.')5; Middleton v. Spicer, 1 Bro. C. C. afTirmativoly appear. 2 Coll. 64S.
201; Taylor v. Ilaygarth, 14 Sim. 8. For the English decisions under tliia
6. Act. 11 Geo. IV. & Wm. IV. c statute, sec Wms. Exrs. 1474-]4S.'.\
40; Wms. Exrs. 1476; 1 Bro. C. C. and cases cited ; Glukman 72c, (1907)
201; Taylor v. Haygarth, 14 Sim. 8. 1 Ch. 171.
The efText of this statute appears to 7. 2 Story Eq. Jurisp. 5 1208; Wms.
1580
CHAP, v.] PAYMENT AND DISTRIBUTION OF THE RESIDUE. § 1405
The fact, that the next of kin is likewise executor, does not, of
course, disentitle him from taking beneficially the residue which
otherwise would have vested in him.^ But a pecuniary legatee's
interest is not enlarged constructively by his appointment as an
executor.* It has been held that a testator cannot by negative words
exclude any or all of his next of kin from sharing beneficially his
undisposed-of residue, but must give it expressly to some one else,
if he means to cut off such kindred's right to share.^
§ 1494a. Distribution of Property not effectually Devised or be-
queathed.
As a rule, at this day, heirs and next of kin participate in the
distribution of all property of the decedent not effectually devised
or bequeathed elsewhere.^
§ 1495. II. As to the Residue in Case of Intestacy; Statutes of
Distribution.
Secondly, as to payment or deliver^' of the residue in case of
intestacy. As the law of England anciently stood, the ordinary,
succeeding to the king's right, himself appropriated the residue of
an intestate's estate, as though for pious uses, giving certain por-
tions to widow and children, if there were any. Later statutes com-
pelled administration to be granted to the next relatives of the de-
Exrs. 1474, and cases cited; Hays v. court to construe the testator's will
Jackson, 6 Mass. 149; Wilson v. Wil- and made distribution in accordance
son, 3 Binney, 557. And see § 1503 therewith, in the exercise of due care
post. ■ and good faith, they were protected,
8. Mass. Stat. 1783, c. 24, § 10. although it turned out subsequently
9. Browne v. Cogswell, 5 Allen, 556. that the court's construction of the
See Reeve's Trusts, Re, L. R. 4 Ch. will was erroneous. Fraser v. Page,
D., as to a bequest to an executor, but 82 Ky. 73.
not in that character. Negative words An executor cannot be compelled, by
will not suffice to exclude any of summary process for contempt, to
one's next of kin from sharing bene- make distribution. 81 Va. 395.
ficially in a residue undisposed of. 2. Lyon v. Safe Deposit Co., 87 A,
Clarke v. Hilton, L. R. 2 Eq. 810. 1089, 120 Md. 514.
1. Where executors applied to the
1581
§ 1495 EXECUTORS AXD ADMIXISTEATORS. [PAET V.
ceased ; but here the immediate result was, that the person selected
for the trust might make the office lucrative for himself, by enjoy-
ing the surplus, to the exclusion of other equal kindred to the in-
testate. For, as the temporal courts finally decided, the ordinary
had no power to compel a distribution, notwitlistanding such au-
thority had long been assumed.^
To this unsatisfactory state of the law we owe the first of our
formal statutes of distribution, — one of those excellent enactments,
following the Restoration, which have placed English jurispru-
dence upon a sound modem establishment. This act provides in
detail for distributing justly and equally the surplus of all intes-
tate estates amongst the wife and children, or children's children,
if any such be, or otherwise to the next of kindred to the dead per-
son in equal degree, or legally representing their stocks, pro suo
cuique jure.* By this same statute the ordinary spiritual court
was empowered to take bonds, with sureties, from all administra-
tors on their appointment, conditioned not only to exhibit an inven-
tory, and administer the estate well and truly, but likewise to ren-
der a just account of one's administration, and deliver and pay the
residue found due to such person or persons as the court should de-
decree, pursuant to the terms of this act.^
3. 2 Bl. Com. 515; Edwards v. Free- 4. Stat. 22 & 23 Car. II. c. 10. De-
man, 2 P. Wms. 441; Wms. Exrs. tails arc given in Wms. Exrs. 1434, at
1483 ; 1 Lev. 223. The spiritual considerable length. Admirable as is
courts had required administrators to the policy of this statute, some Eng-
give bonds, with condition to distrib- lish jurists have considered it, to use
ute; and statute 2 Hen. VIII. c. 5, ex- Lord Ilardwicke's words, "very in-
pressly sanctioned " taking surety " correctly penned." Stanley v. Stan-
of the person to whom such office was ley, 1 Atk. 457. See. for a curious
committed. It appears, too, to have historical study of the old cases,
been the custom, moreover, to divide Wms. Exrs. 1527-1549.
an intestate's personal estate among 5. See stat. lb. ; Wms. Exrs. 530,
his next relatives. Stat. 21 Hen. 531, 1484. As to language used in
\^II. c. 5, § 3; Wms. Exrs. 529; the court of probate act, stat. 20 &
supra, §§ 7, 139. Assignments before 21 Vict. c. 77, which substitutes ]»ro-
a distributee's right to a share ac- bate jurisdiction for that of the old
crued, confers no full right upon tlio spiritual courts, see Wms. Exrs. 292.
assignee. 3 Dem. 5G7. Under modern English practice, ac-
1582
CHAP, v.] PATMENT AND DISTRIBUTION OF THE RESIDUE. § 1496
Statutes are to be found in all of the United States expressly
directing the distribution of an intestate's personal, as well as the
descent of his real estate, and differing in various details from one
another, though based upon the English statute of Charles 11.^ It
is likewise the American rule to require account and distribution
by tbe administrator, under the direction of the probate court, and
to insert corresponding conditions in the administration bond."
The persons among whom distribution should be made, and the
method of making distribution must therefore be determined by
local statutes, and the procedure of the courts under them. But
the rights and method of distribution, English and American, de-
serve some further attention.^
§ 1496. Surviving Husband's Right to the Residue of his De-
ceased Wife's Personalty.
Under the English statutes (and perhaps at common law), not
only is the surviving husband entitled to administer upon his
wife's estate in preference to all others, but, subject to the payment
of such debts as bind him upon surviving her, he recovers her out-
standing personal property to his own use and enjoyment. His in-
terest is a peculiar one, moulded by the peculiar laws of cover-
ture ; and he is said to administer for his own benefit when he ad-
ministers at all, and to acquire a title to his wife's personalty, fitly
designated as a title jure mariti under the statutes of distribution.*
So greatly, however, have the ancient rights of husband and wife
been changed by modem legislation, both in England and the
United States, that the present legal rule on this subject cannot be
stated with uniform precision.^
cordingly, tlie bond runs as condi- Sclioul. Dom. Eel., § 196, etc.: 2 Bl.
tioned to pay the residue to the per- Com. 515; Watt v. Watt, 3 Ves. 246.
sons entitled under the statute of 1. 2 Kent. Com. 136; Barnes v.
distributions. Underwood, 47 N, Y. 351; Cox v.
6. 2 Kent Com. 426, and notes. Morrow, 14 Ark. 603; Nelson v. Goree,
7. Supra, § 1140. 34 Ala. 565; Baldwin v. Carter. 17
8. See Table of Consanguinity. Conn. 201. 42 Am. Dec. 735; Wood-
9. Clough V. Bond, 6 Jur. 50: man v. Woodman, 54 N. H. 226; Wil-
1583
§ 1497 EXECUTOES AKD ADMIXISTEATOKS. [pART V.
§ 1497. Surviving Wife's Rights in the Distribution of her De-
ceased Husband's Personalty.
The English statute of distribution' preserves the " widow's
thirds/' which the ancient common law bestowed as her pars
rationahilis; the remaining two-thirds going to the children of the
intestate or their representatives.^ The statute further provides,
as likewise did the ancient law, that when the husband dies intes-
tate, leaving a widow only, and no lineal descendant, the widow
shall have a moiety or half of his personal estate ; giving a husband's
next of kin the other half. Xot more than one-half can the widow
take by distribution, under any circumstances; for, where there
are no next of kin, the other half goes to the crown.^
In this country the statute of Charles II. is at the basis of our
legislation regarding the estates of intestates ; but various modifi-
cations are found in the several States, to the greater favor of the
surviving wife ; and modem legislation at the present day is found
capricious in this respect, though tending to equalize the rights of
surviving spouses in one another's property.*
son V. Breeding, 50 Iowa, 629 : Holmes part" between widow and children
V. Holmes, 28 Vt. 765. See Btatutes provided more favorably for the
of the several States regiilating this widow than the statute alone; which
subject; also Schoul. Dom. Rel. Pt. 2, last, it is observed, virtually bestows
c. 15, and cases cited. The statute 29 the " death's part " upon the children
Car. II. was never in force in Illinois; to increase their portion, exclusive of
and the husband must distribute ac- the widow. Wms. Exrs. 1530. Supra,
cording to the local statute of dis- § 1495, n.
tributions. Townsend v. Radcliffe, 3. 2 Bl. Com. 515, 516; 2 Kent
44 111. 446. Com. 427; Cave v. Roberts, 8 Sim.
As to curtesy at the common law, 214.
or the surviving husband's potential 4. See Schoul. Dom. Rel. Pt. II. c.
life interest in his wife's lands, wliere 16; the latest local codes: 2 Kent
a child was born of the marriage, and Com. 11th ed. 427, 428.
substitutes for this right under some A surviving spouse's rights may bp
late American statutes, see Schoul. l>arrod by antenuptial settlement, etc.
Dora. Rel. ib. ; 2 Kent Com. 134; 1 Divorce excludes such rights. The
Washb. Real Prop. 128. wife's dower interest (or life-tliird)
2. Stat. 22 & 23 Car. II. c. 10. Tlie of her liusband's laiid.s sliould also l)e
statute and custom of London, taken noted. Schoul. Dom. Rel. Pt. II. cs.
together, so as to divide the " deatli's 15, 17.
1584
C'IIA1\ v.] PAYMENT AND DISTRIBUTION OF THE RI<:SIDUE, § 1498
§ 1498. Rights of Children and Lineal Descendants in Distribu-
tion.
The English statute directs an equal distribution among tho
children of an intestate, after deducting the widow's third; or, if
there be no widow or husband, the entire residue is proportioned
equally among them. "Where the intestate has left only one child,
the statute hy implication provides for such child, giving him the
entire two-thirds, or, in case of no surviving widow or husband,
the entire residue.^
If any child was dead at the time of the intestate's parent's
death, and yet left a child or children of his own then surviving,
such child or children will take their own parent's share in the in-
testate's personalty, by what is termed the " right of legal repre-
sentation."
This right of representation extends to lineal descendants in the
remotest degree, the descendants of a deceased heir, as a class,
being substituted to the share their own parent would have taken,
if living ; * though exclusive of such parent's widow. But repre-
sentation applies only where one or more of them of a nearer de-
gree to the intestate survived him, while such as did not, left lineal
descendants instead, the right to take per stirpes thus equalizinoj
a distribution among those of the nearest degree ; for, were all the
children of the intestate dead, and only grandchildren left, the
grandchildren would be, in fact, the next of kin surviving, and, as
equal members, take per capita; while, as between grandchildren
and the surAnving children of a deceased grandchild, supposing
such a case to have occurred, the right of representation as per
stirpes, would once more operate.^ American local statutes, while
recognizing these general rules, specify how far the right of repre-
sentation shall apply: a principle which might well avail among
collateral kindred, and in landed inheritance, but whose extent,
5. Wms. Exrs. 1495, 1497: Carth. 7. 2 Bl. Com. 517: Bac. Abr. tit
52. Exors. I. .3; Wms. Exrs. 1497, 1498.
6. Price v. Rtranfre. 6 Madd 161;
3 Bro. C. C. 226 : Wms. Exrs. 1496.
100 1585
§ 1499 EXECUTORS AND ad:mixistkatoes. [pakt v.
Tinder the act 22 & 23 Car. II.. is not precisely determined.'
Children of the half blood are entitled to a share equally with
those of the whole blood; a rule applicable where the parent mar-
ried more than once, and had offspring by the different marriages.^
And this rule extends generally to kindred of the half blood in the
same degree. A posthumous child, too, or one bom after the death
of the parent, inherits, whether of the whole or half blood, in the
same manner as if born during the lifetime of the parent and sur-
viving him.^ On such points, statutes of distribution in our Ameri-
can States are sometimes found explicit; providing, also, for other
cases, where the common law was either harsh or uncertain, as in
the instance of illegitimate children.^ So highly favored are the
equal rights of children or lineal descendants in this country, that
provisions may be found in our various codes, restraining the par-
ental right, or, at all events, presuming strongly against the par-
ental intention to deprive any one of them of the equal benefits of
his will.^
§ 1499. Advancements to Children; How reckoned in Distribu-
tion.
By the English statute of distributions, portions are taken into
account ; and, if the father, during his lifetime, makes an advance-
8. Semhle, that, as long as there mothers may be brothers or sisters of
are lineal descendants, the division the " half blood," in the sense of that
must be per stirpes. See Ross's word, as it appears.
Trusts, L. R. 13 Eq. 286. Inheritance 1. 2 Kent Com. 424; Edwards v.
or succession " by right of repre- Freeman, 2 P. Wms. 446 ; Wms. Exrs.
sentation " takes place when the 1497. And see Mass. Pub. Stats, c.
descendants of a deceased heir take 127, § 22.
the same share or right in the estate 2. Mass. Pub. Stats, c. 12r), §§ 3-5.
of another person tliat t]ieir parent The rights and disabilities of illcgiti-
would have taken if living. Mass. mate children, as well as the status
Pub. Stats, c. 125, § 6. And see of legitimacy, are subjects considered
North's Estate, Re, 48 Conn. 583. at length in Schoul. Dora. Relations,
9. 1 Mod. 209; Carth. 51; Wms. Part TIT., cs. 1, 6.
Exrs. 1496; 2 Kent Com. 424; Crook 3. Mass. Pub. Stats, c. 127, § 21; 2
V. Watt, 2 Vern. 124. Children by Kent Com. 421; 4 Kent Com. 471.
diflferent fathers or by difTcrciit
1586
CHAP, v.] PAYMENT AND DISTRIBUTION OF THE RESIDUE. §1500
merit to any of his children, towards their distributive share, the
riile is to deduct this in making distribution.*
§ 1500. Advancements to Children; American Rule.
To discriminate carefullv under such maxims must be difficult;
and, in this country, the rule of advancements does not appear to
be so strict, more stress being usually laid upon mutual intention
at the date of the transaction, than upon the equity of distribution
to all children alike. It is true that, advancements are in some
States reckoned by a legal inference similar to that which the Eng-
lish cases uphold ; nor is it unfrequently held that a gift, either of
land or money, which is made to a child or heir, by a person who
afterwards dies intestate, shall be presumed an advancement ; ^ as
4. Stat. 22 & 23 Car. II. c. 10, § 5;
VVms. Exrs. 1485, 1498; Edwards v.
Freeman, 2 P. Wms. 435; 2 Bl. Com.
517. And see Dallmeyer Re, (1896)
1 Ch. 372. As to the deceased father,
the statute takes away nothing which
has been once received by a child ; but
only his distributive share can be af-
fected by such computation, unless
he chooses to relinquish more; and
the rule of hotch-pot applies only to
cases of actual and complete intes-
tacy. Walton V. Walton, 14 Ves. 324;
Edwards v. Freeman, 2 P. Wms. 443.
Bringing an advancement into hotch-
pot is intended for the benefit of
children, and not the widow; but, as
among children, the rule extends to
those who succeed to a deceased
child's share by the right of repre-
sentation. Kircudbright v. Kircud-
bright, 8 Ves. 51; Proud v. Turner, 2
P. Wms. 560. But grandchildren who
take per capita need not thus account
for advancements to their respective
parents deceased. Skinner v. Wjnne,
2 Jones (K C.) 41.
Lands received by settlement upon
a younger child, and charges upon
such land, have been included within
the English statute under the rule of
advancements. 2 P. Wms. 441 ; Wms.
Exrs. 1500, 1501. And so have pro-
visions by marriage settlement and
pecuniary portions. Wms. Exrs.
1502; Edwards v. Freeman, 2 P. Wms.
440. Where a father settles upon bis
son on the latter's marriage, all the
limitations to the wife and children
of such son should be considered part
of the advancement. Weyland v.
Wcyland, 2 Atk. 635. As to what
shall constitute an advancement of
the latter description, the acts of the
father appear to have been often con-
strued in England with less reference
to actual intention of the parties than
the requirement of equal justice.
See, c. g., Wms. Exrs. 1502-1505 ; 1
Atk. 403; 8 Ves. 51; 2 P. Wms. 435;
31 Beav. 583; Boyd v. Boyd, L. R. 4
Eq. 305; Bennett v. Bennett, L. R. 10
Ch. D. 474.
5. See Meadows v. Meadows, 11 Ire.
1587
? 1500
EXECUTORS .VXD ADillNISTRATOKS.
[part V.
where, for instance, the provision was calculated to aid directly and
advance the child when starting in life. But, generally, all such,
presumptions may be readily overcome by proof of actual intent ; ^
while, in some States, the statutes of distribution, unlike the Eng-
lish, permit nothing to be reckoned as an advancement to a child
by the father, unless proved to have been so intended, and charge-
able on the child's shai'e by certain evidence prescribed.^ Where
L. 148; 2 story Eq. Juris. § 1202;
Parks V. Parks, 19 Md. 323; Grattan
V. Grattan, 18 111. 167, 65 Am. Dec.
726; Creed v. Lancaster Bank, 1 Ohio
St. 1; Wms. Exrs. 1502. n. by Per-
kins: 4 Kent Com. 419; Hollister v.
Attmore, 5 Jones Eq. 373 ; Fellows
V. Little, 46 N. H. 27; 85 Tenn. 430.
6. Smith V. Smith, 21 Ala. 761;
Parks V. Parks, 19 Md. 373, 81 Am.
Dec. 639; Phillips v. Chappel, 16 Geo.
16; Bay v. Cook, 31 111. 336.
7. Mass. Gen. Stats, c. 91, § 6 et
seq.; Hartwell v. Rice, 1 Gray, 587;
22 Pick. 508 ; 4 Kent Com. 418 ; Por-
ter V. Porter, 51 Me. 376; Adams v.
Adams, 22 Vt. 50; Johnson v. Belden,
20 Conn. 322; Mowrey v. Smith, 5
R. I. 255. See also Schoul. Dom. Rel.
§ 273 ; Vanzant v. Davies, 6 Ohio St.
52; Vaden v. Hance, 1 Head, 300; 119
111. 151, 170, 8 N. E. 796. 801.
Hence it is laid down that whether
a certain provision made by the de-
ceased during his lifetime be a gift or
an advancement is a question of in-
tention; but that, if it was originally
intended by both parent and child as
a gift, it cannot be subsequently
treated by the father as an advance-
ment, without at least the child's
knowledge or consent. Lawson's Ap-
peal, 23 Penn. St. 85; Sherwood v.
Smith, 23 Conn. 516. On the other
hand, bonds or promissory notes held
by an intestate parent against hia
child, or the transfer of money upon
an account stated, when expressed in
the usual form, justify rather the pre-
sumption that there was a loan and
not a gift or advancement intended.
Vaden v. Hance, 1 Head, 300; Bruce
V. Griscom, 16 N. Y. Supr. 280; Bat-
ton V. Allen, 5 N. J. Eq. 99, 43 Am.
Dec. 630; 42 N. J. Eq. 15, 633, 6 A.
2S6, 8 A. 312; 70 Ala. 484; West v.
Bolton, 23 Geo. 531, 45 Am. Rep. 88.
See 133 P. 277, 165 Cal. 568 (doc-
trine applied to partial intestacy) ;
Laning's Estate, 88 A. 289, 241 Penn.
98 (advancement to a partnership to
which the son belonged). All such
presumptions may be rebutted ; and,
to the facts and circumstances at-
tending the transaction, and, likewise,
to declarations of the one as part of
the res gestae, and admissions by the
other, much weight is attached.
One's advancement may be changed
into a gift to the child; and one may,
by his will, reduce expressly his sur-
viving child's legacy out of consider-
ation for special favors rendered; but
the conversion of an al)solute gift into
an advancement or debt, so as to af-
fect a child's right of distribution, in
case of intestacy, is not to be accom-
plished by the mere acts and declara-
tions of the parent subsequent to tlie
transaction, and ajjart from the c'lild's
1588
■CHAP, v.] PAYMENT AND DISTRIBUTION OF THE RESIDUE. § 1500
at all events it clearly appears that the father intended a gift, tho
gift will be treated as an advancement.*
The rule of bringing one's advancement, in real or personal es-
tate, into hotchpot, if the child so desire, with the whole estate of
the intestate, real and personal, so as to take his proportion of
the estate, prevails in several of the United States.' But this privi-
lege of election to the child is by no means universally conceded.^
own assent to the change. Green v.
Howell, 6 W. & S. 203; Mitchell v.
Mitchell, 8 Ala. 414; Manning v.
Manning, 12 Rich. Eq. 410; Lawson's
Appeal, 23 Penn. St. 85; Miller's Ap-
peal, 31 Penn. St. 337; 110 Ind. 444,
11 N. E. 312; Sherwood v. Smith, 23
Conn. 516. Evidence of the mutual
intention, in short, is regarded with
great favor where the deceased par-
ent has not given express directions
by his will; nor are entries and
memoranda by the parent conclusive
as to either the amount or character
of the transfer to his child. 5 Watts,
9, 80; Wms. Exrs. 1502, Perkins's n.
The advancement being made and ac-
cepted, the incidents to an advance-
ment follow. Nesmith v. Dinsmore,
17 N. H. 515. As under the English
rule, there must be a complete act of
the parent during his life divesting
himself of the property to constitute
an advancement. Crosby v. Coving-
ton, 24 Miss. 619. Old promissory
notes long outlawed may be presumed
to have been paid rather than held as
an advancement. 23 S. C. 456. A
contemporary writing or the peculiar
tenor of a promissory note or other
security may show that an advance-
ment was intended. Kirby's Appeal,
109 Penn. St. 41; 90 Mo. 460, 2 S. W.
413. Or it may show the reverse.
16 Lea, 453. Circumstantial evidence
bears on the issue. 58 Mich. 152, 24
N. W. 549. An advance by the father
may consist in paying his child's
debts. 85 Tcnn. 430, 3 S. W. 649.
With the assent of the child a ^ather
may change his advancement into a
gift. 71 Ga. 544, 43 So. 301.
As to impounding a child's share
to pay a judgment recovered on what
lie owed the estate by way of advance,
see 65 Mo. 59, 153, 5 A. 294, 4 A.
402.
It is a general rule in the United
States (confirmed by statute in some
States), that while an advancement
must be taken by a child towards his
share, as regards a distribution of
the estate, so as to abate or extin-
guish his distributive rights, no child
shall be required to refund any p-^rt
of the sum advanced to him, although
it should exceed his share. Black v.
Whitall, 9 N. J. Eq. 572, 59 Am. Dec.
423; Mass. Gen. Stats, c. 91, § 6;
Cushing v. Cushing, 7 Bush. 259.
8. Morgan, Re, 104 N. Y. 74, 9
N. E. 161.
As to a remainder-man's debt see
Broas v. Broas, 116 N. W. 1077, 153
Mich. 310.
9. Wms. Exrs. 7th Eng. ed. 1499;
Jackson v. Jackson, 28 Miaa. 674, 64
Am. Dec. 114: 2 Kent Com. 421;
Barnes v. Hazleton, 50 111. 429;
Knight V. Oliver, 12 Gratt. 33. Chil-
dren with advancements, refusing to
come into hotchpot, shall be disre-
1589
§ 1501 EXECUTOES AXD ADMIXISTEATOES. [PART V.
The child who thus elects does not thereby relinquish his title to
the advancement, but takes such a course to ascertain whether his
share actually exceeds or falls short of an equal share." In this
case, and, in general, wherever the value of an advancement is to be
ascertained, the value of the property at the time of the advance-
ment governs in the distribution, and interest should not be reck-
oned.^
§ 1501. General Distribution among the Next of Kin.
In default of surviving husband, widow, children, or lineal issue,
the general rights of next of kin must be considered. Under the
English and American statutes of distributions, next of kin more
distant than children and their representatatives, may, as we have
seen, be entitled to share with the widow, or, in some of our States,
with the surviving husband; but the statute rule is, that if there
be no wife, surviving husband, or lineal issue, then all the estate
must be distributed among the next of kin of equal degree. The
rules of consanguinity already stated in connection with the right
of taking out administration should here be applied once more.*
Both English and American statutes regard the father with
much favor under such circumstances; and under the statute 22 &
23 Car. 11. c. 10, if the intestate thus dying left a father, the
father was entitled to the whole of the personal estate to the exclu-
garded in the distribution. St. the just proviso is found, in sub-
Vrain's Estate, 1 Mo. App. 294. stance, that, if the value of the ad-
1. See 2 Kent Com. 419, 421. Stat- vancement was precisely expressed
utes are to be found in various States contemporaneously between the par-
on this subject. lb. Chancellor Kent ties, this value shall be reckoned,
does not appear to favor this special Mass. Gen. Stats, c. 91, § 3; Osgood
right of election, nor to consider the v. Breed, 17 Mass. 356; Nelson v.
privilege of any consequence. lb. Wyan, 21 Mo. 347.
2. Jackson v. Jackson, supra. Concerning the sale of expectant
3. Jenkins v. Mitchell, 4 Jones Eq. estates by children, see Schoul. Dom.
207; VVms. Exrs. 1498, n. by Perkins. Rel. § 272; 1 Story Eq. Juris. §§ 33G-
For the New York rule, sec Beebe v. 339.
Estabrook, 18 N. Y. Supr. 523. The 4. Supra, § 1101. And see Table
rule is sometimes defined by local in Appendix,
statutes; as in Massachusetts, where
1500
CHAP, v.] PAYMENT AND DISTKIBUTION OF TIIE RESIDUE. § 1501
sion of all others ; ^ the mother coming next in order, but even thus,
under the amended act, having to share with brothers and sisters
of the deceased, if there were such.® American policy tending, how-
ever, in later times, to place parents upon a more equal footing as to
their own children, we find that some States now require distribu-
tion to father and mother in equal shares, where both survive ; or, at
all events, prefer, in degree, either surviving parent — the other
being dead — to brothers and sisters of the deceased.^ It has been de-
cided, under the English statute, that, in default of parents, the
brothers and sisters of the deceased are to be preferred to a grand-
parent, notwithstanding all, in legal strictness, are of the same de-
gree ; ^ and this preference, which is founded in natural reason,
American Codes have expressly conceded,^ though grandparents are
admitted to outrank uncles and aunts, under the English reckon-
ing.^
If the intestate leaves no husband, widow, or issue ; and no father,
mother, brother, nor sister; his personal estate goes to his next
of kin in equal degree ; and, as to these, our codes of distribution
rarely specify more particularly the parties entitled. But, it is
observable, that in various American States it is distinctly pre-
scribed that the degrees of kindred shall be computed according
to the rules of the civil law.^
Half-blood kindred, in the same degree, are to inherit equally
5. Wms. Exrs. 1506; Blackborougla 1. Wms. Exrs. 1509, 1510. Some
V. Davis, 1 P. Wms. 51. codes provide, by way of qualifying
6. As to the mother's sharing with the distribution among the next of
brothers and sisters, see stat. 1 Jac. kin in equal degree, that when there
II. c. 17; Wms. Exrs. 1506-1508, and are two or more collateral kindred in
cases cited. The English statutes on equal degree, but claiming through
this point appear carelessly drawTi; different ancestors, those who claim
but various American codes express through the nearest ancestor shall be
the idea very clearly. preferred to those claiming through
7. Mass. Pub. Stats, cs, 125, 135; an ancestor who is more remote.
Oliver v. Vance, 34 Ark. 5&4. 2. See Mass. Gen. Stats, c. 91, § 5;
8. 2 Freem. 95; 3 Atk. 762, 763; Sweezey v. Willis, 1 Bradf. Sur. (N.
Ambl. 191. Y.) 495; Table in Appendix.
9. See local codes.
1591
§ 1502a EXECUTOKS ^Os'D ADMI^'ISTEATORS. [PAET V.
with those of the whole blood, as our local statutes not unfre-
quently declare, and the English decisions concede.^
§ 1502. The same Subject.
The Engiish statute of distributions appears to have so limited
the right of representation among collaterals as to exclude it,
where the next of kin are more remotely related to the intestate
than brothers and sisters ; and hence, where the intestate leaves sur-
viving an uncle or aunt and the son of another uncle or aunt de-
ceased, the latter can take nothing; hence, too, surviving nephews
and nieces become distributees, regardless of the child of a de-
ceased nephew or niece.* A corresponding limitation may be
found, more or less precisely expressed, in American codes ; ^
which, likewise, incline to treat lineal kindred, and brothers and
sisters, more favorably than more remote collateral kindred in
respect of representation.
It should always be borne in mind, that as husband and wife are
not legally next of kin to one another, so distribution, and those
other rights which pertain to kinship, cannot be predicated of a
mere connection by marriage ; on the contrary, there must be com-
mon blood in the intestate and those claiming to be entitled to share
as kindred. And among kindred are three classes: those in the
ascending line, those in the descending, and those in the collateral.*
§ 1502a. Distribution by Mutual Consent.
Where all the beneficiaries under a will agree to a division other
3. The Englisli cases extend ttii.s 5. 2 Kent Com. 425; Parker v.
doctrine to posthumous brothers and Xinis, 2 N. II. 460; Porter v. Askew,
sisters of the half blood. Watts v. 11 Gill & J. 346: Bifi;elow v. Morong,
Crooke, Show. P. C. 108; Burnet v. 103 Mass. 287; Hatch v. Hatch, 21
Mann, 1 Ves. Sen. 156; Wms. Exrs. Vt. 450; Adee v. Campbell, 79 N. Y.
lijll. And see Mass. Gen. Stats, c. 52. And see further, as to children
lil, § 5. of deceased brotlier, etc., Conant v.
4. 2 Vern. 168; Powers v. Little- Kent, 130 Mass. 17S.
woi.rl, 1 P. Wms. 595; Wms. Exrs. 6. F.oiiv. Diet. "Kindre<l."' See,
1486, 1512. as betweeu brother and the grand-
1502
C'lIAP. V.J TAYMENT AND DISTKIBUTION OF THE RESIDUE. § 150i
than the will provides, a distribution made accordingly is held
valid and tlie executor is protected.^
§ 1503. Distribution where there is Known Husband, Widow
or Next of Kin.
Where the deceased intestate has left no husband, widow, or next
of kin, the residue, after paying all debts, belongs, by English law,
to the crown, as uUimus haeres; ^ and, under our American codes,
the residue reverts or escheats in like manner to the State.^ But,
while American policy appears to regard the State official who may
thus receive the balance as a sort of trustee for the benefit of those
who may have lawful claims thereon/ and in final default of such
claimants, for the public, it is held in England that the crown shall
take the residue personally and beneficially. Indeed, English sov-
ereigns have been accustomed to grant such property to their own
favorites by letters patent or otherwise, reserving, perhaps, one-
tenth part for the royal chest ; ^ though the long pendency of admin-
istration proceedings in chancery, under a bill in equity, may
afford to absentees an ample opportunity to appear and assert their
rights before such final distribution is awarded.
§ 1504. Time and Method of Distribution.
The due computation of that balance which serves as the basis
of a rightful distribution is necessarily postponed to the lawful
adjustment of debts due from the estate to its creditors; and hence
the postponement of distribution. The English statute of distribu-
tions directs that no distribution shall be made till after a year
child of a deceased brother, Suckley's 12-15; Parker v. Kuckens, 7 Allen,
Matter, 18 N. Y. Supr. 344. And see 509; Fuhrer v. State, 55 Ind. 150;
Table, post. Leiand v. Kingsbury, 24 Pick. 315.
7. Bidwell v. Beckwith, 85 A. 682, 1. Mass. Gen. Stats, c. 95, §§ 12-15.
86 Conn. 462 ; Wentworth v. Went- 2. Wms. Exrs. 433, 434, 1515 ; 2 Bl.
worth, 78 A. 646, 75 N. H. 547. Com. 505, 506. The estates of bas-
8. Megit V. Johnson, Dougl. 548; tards, as of persons having no kin-
Taylor V. Haygarth, 14 Sim. 8. dred, passed in like manner to the
9. See Mass. Gen. Stats, c. 95, §§ sovereign, by the common law.
1593
§ 1504 EXECUTOKS AXD ADMIXISTEATOES. [pAET V.
from the intestate's death, and that distributees shall give bond to
indemnify the administrator in ratable proportion if lawful debts
afterwards appear,^ American statutes proceed upon the same gen-
eral theory; usually permitting, however, that the estate shall con-
tinue unsettled until the statute period for presenting claims
(whether longer or shorter, and whether rightfully computed from
the intestate's death or from the death of the administrator's ap-
pointment) shall have expired.*
Upon a final settlement of the administration accounts, in Ameri-
can practice, distribution, if sought, should be granted." Distribu-
tion, whether total or partial, may be applied for by the representa-
tive or by distributees, as local statutes frequently provide, after a
certain period reasonably long for ascertaining the true surplus,
and before a final settlement of the estate ; a refunding bond being
part of this proceeding, where the administrator continues respon-
sible for claims upon the estate.^ But it is usual to postpone such
decree until the time has fully elapsed for settling the debts. A
decree for partial distribution is provided in the practice of some
States ; such decree being conclusive only as to the funds then dis-
tributable, and assets being reserved for further liabilities con-
nected with the administration.'
Where the persons entitled are well known to the representative,
3. Wms. Exrs. 1486; stat. 22 & 23 mond v. Delay, 34 IMiss. 83; Johns-
Car. II. c. 10, § 8. ton V. Fort, 30 Ala. 78; Edgar v.
4. A court has no jurisdiction to Shields, 1 Grant (Pa.) 361; Hays v.
order a final distribution during the Matlock, 27 Ind. 49; 57 A. 1118, 208
time that creditors may present Penn. 636 (right to a refunding
claims under statute. 151 Mass. 595, bond). And see Part VII., c. 1, post.
25 N. E. 23. Cf. 107 N. C. 168, 11 7. Kline's Appeal, 86 Pcnn. St. 363;
S. E. 1051. It is devastavit for tlio Harrison v. Meadors, 41 Ala. 274;
representative to distribute before the Curtis v. Brooks, 71 111. 125. See
debts are paid. Lewis v. Mason, 84 Robinson's Estate, 134 N. Y. S. 863
Va. 731, 10 S. E. 529. (order for distributing accumulated
5. Pritchett's Estate, Re, 52 Cal. income in case of delay) ; Reed's Es-
94; Part VII., c. 1, post. tate, 85 A. 138, 237 Penn. 125 (cor-
6. Lilly V. Stahl, 5 Ind. 447; Black- rection of a partial distribution on
crby V. Holton, 5 Dana, 520; Rich- a subsequent distribution 1 .
1594
CHAP, v.] PAYMENT AND DISTEIBUTTON OF THE EESIDUE. § 1504a
both as to legal right and identity, payment is usually made with-
out the formality of procuring a decree of distribution from the
court.^ But where questions affecting such rights are pending, dis-
tribution should neitlier be made nor decreed.
§ 1504a. The same Subject; Decree of Distribution,
A decree of distribution should specify the distributees; also the
personal representative of any deceased distributee as the person to
receive the share. An order which in effect requires payment to
the next of kin is erroneous and insufficient for protection.* But
an error in a decree of partial distribution may be cured on the
next distribution.^ An ex parte decree of distribution, which does
not follow the statute, fails to protect.^ A decree is sometimes
opened and amended upon a suitable state of facts.^ An order of
8. See Part VII., c. 1, post. A de-
cree of distribution in a final settle-
ment is inconclusive on a minor for
whom no guardian ad litem was ap-
pointed. Conwill V. Conwill, 61 Miss.
202. Money is sometimes paid into
court for distribution on the settle-
ment of the estate. 93 Ind. 173. But
the practice in some States is for the
decree to issue to the administrator,
who procures the receipts of all the
distributees named, and then returns
the full document to be filed at the
probate registry. Where distributees
are known and their shares undis-
puted the representative may pay
them and credit the payments in his
final account, which, when duly al-
lowed, settles the estate properly
enough. 166 Mass. 306, 44 N. E. 446.
As to the public administrator's
final deposit of unclaimed balance,
see Mass. Gen. Stats, c. 95 ; Leland v.
Kingsbury, 24 Pick. 315; Common-
wealth v. Blanton, 2 B. Monr. 393;
Fuhrer v. State, 55 Ind. 150. But, if
there be known kindred, a public ad-
ministrator should distribute among
them. Parker v. Kuckens, 7 Allen,
509; 56 Vt. 187.
9. Grant v. Bodwell, 78 Me. 460, 7
A, 12. The local statute should be
followed. Notice, as to form and
sufficiency, is within the court's dis-
cretion. 170 Mass. 295, 49 K E. 440.
1. Dickinson's Appeal, 54 Conn. 224,
6 A. 422. The court in this State is
not precluded from acting unless the
parties interested file a solemn docu-
ment of division. lb.
2. Shriver v. State, 65 Md. 278, 4
A. 679.
See as to the framing of a decree
where the decedent had deposits in a
savings bank in trust for various par-
ties. 4 Dem. 24.
3. 4 Dem. 30.
1595
§ 1505 EXECUTOES AXD ADMIXISTRATOES. [PAET V.
distribution obtained by fraud maj be set aside, so long as rigbts
are not confirmed by limitations.*
The errors or inequalities of a partial distribution may be recti-
fied an a subsequent or final distribution.^ And so, too, should the
representative's proper claims upon the fund, and all other equities
be duly provided for, before a final division.® A decree of final
distribution, made bona fide upon full jurisdiction and not ap-
pealed from, affords protection to the representative, and is a judg-
ment in rem, binding upon all concerned.'
§ 1504b. The same Subject.
There should be no decree of full distribution until the final
account of administration is settled ; and in such decree the court
decides who are entitled.^
§ 1505. Distribution where Real Estate has been sold to pay-
Debts.
Distribution applies, in general, to personalty alone; real estate
of the decedent descending to his heirs. The surplus of the pro-
ceeds of a sale of realty, after payment of debts, may be distributed
among the heirs or those claiming under them.^
4. Leavens's Estate, 65 Wis. 440, distribution to quiet title) ; 77 A»
27 N. W. 324. 844, 113 Mo. 422 (non-resident dis-
5. Yetter's Estate, 160 Penn. St. tributee) ; 77 A. 612, 74 N. J. Eq. 1;
506, 28 A. 847. 95 N. E. 951, 209 Mass. 585, 135 N.
6. See 141 N. Y. 21, 35 N. E. 961. Y. S. 143; 82 A. 326, 79 N. J. Eq.
7. 52 P. 132, 120 Cal. 79; 68 N. E. 274 (court directs payment of a
945, 204 111. 571: 128 Mass. 140 (no fund).
collateral impeachment); 93 N. W. 8. Spreekel's Estate, 133 P. 289,
253, 132 Mich. 208; 101 X. W. 68, 93 165 Cal. 597: McAfee v. Flanders, 76
Minn. 233; 112 P. 298, 158 Cal. 721. S. E. 844, 140 Ga. 386; Nalle v. Safe
The distribution of a testamentary Deposit Co., 87 A. 770, 120 Md. 187.
fund, when the proper time arrives. No final decree is rendered until the
is a concern of probate or chancery. time for distribution arrives. Nagle
Nagle V. Conrad, 81 A. 841, 79 N. J. v. Conrad, 87 A. 1119, 80 N. J. Eq.
Eq. 124, 80 N. J. Eq. 252; 72 S. E. 252. And see Burton Co. v. Daviea,
372, 156 N. C. 286; 80 A. 92, 84 Conn. 123 C. C. A. 373 (no collateral at-
323. tack of decree).
See, further, 111 P. 98, 104, 158 9. Sears v. Mack, 2 Bradf. (N. Y.)
Cal. 396, 410 (petition for a partial 394; Harris v. Ingalls, 04 A. 727, 74
1596
CHAP, v.] PAYMENT AND DISTRIBUTION OF THE RESIDUE. § 1506
§ 1506. Whether Distribution may be of Specific Chattels not
reduced to Cash.
In order to distribute strictly under a decree of distribution,
the reduction of the surplus to cash would seem to be necessary.
But such a course must sometimes be highly disadvantageous, in
these times, especially where the estate is a large one; and it is
preferable, wherever the distributees can be brought into accord,
to make a division specifically or in kind, save so far as a sale may
have been necessary for the security and benefit of the estate in
course of administration,^ Under all circumstances, however, dis-
tributees should be equally dealt with, and upon a just valuation
of the property, and the administrator should stand impartial as
among them.^ A fair transfer of assets, corporeal or incorporeal^
N. H. 35; 70 N. W. 442, 112 Mich.
118; Part VI., post.
1. Evans v. Inglehart, 6 Gill & J.
171; Hester v. Hester, 3 Ired. Eq. 9;
Reed's Estate, 82 Penn. St. 428.
Local statutes sometimes provide for
a specific distribution of personal
property in certain cases. Rose v.
O'Brien, 50 Me. 188. If shares of
Bpecific property are not exactly
equal, the balances may be made up
in money. Williams v. Holmes, 9
Md. 281. Where those interested in
the estate divide among themselves
the effects of an intestate, the admin-
istrator has usually no cause of com-
plaint. Weaves v. Roth, 105 Penn.
St. 408. And see § 1502 a. Local
codes are found on this point ; but
not so as to authorize distribution in
kind, of choses in action or money
rights, some of which are collectible
and others are doubtful or desperate.
115 111. 83, 3 N. E. 505. As to com-
promising on such money rights, see
71 Ala. 258.
2. If, on final settlement of the
administrator's accounts, the assets
15
are partly gold and partly currency,
each distributee should have his fair
share of each kind. Lowry v. New-
som, 51 Ala. 570. See Tilsen v. Haine,
27 La. Ann. 228. And, in general,
distributees should be equally dealt
with. Lowry v. Ncwsom, 51 Ala. 570.
See, further, Colton's Estate, 127 P.
643, 164 Cal. 1 (an indivisible chose
in litigation).
At the expiration of a specified
time, the distributee may bring an
action for his share against the ad-
ministrator under the local act. 10
B. Mon. 62. But cf. Thornton v.
Glover, 25 Miss. 132. Distributees
are thus entitled to distribution upon
tendering a refunding bond. 24 Miss.
150. As a general rule, a distributee
has the right to compel a distribution
at any time after the lapse of the per-
iod limited for presenting and suing
upon claims; but the riglits of cred-
itors should be protected according
to the exigency. 33 Miss. 134. An
administrator should not distribute
nor suffer a decree of distribution to
be entered, regardless of claims of
97
? i5o:
EXECUTORS AND AD^rI^:ISTEATORS.
[part V.
which a beneficiary of the estate knowingly accepts as the equiva-
lent of cash is to be regarded as an actual payment in cash.^
§ 1507. Death of Distributee pending Distribution.
Descent is cast, and rights of distribution are vested, upon the
death of the intestate ancestor or person whose estate is to be ad-
creditors brought to his notice which
might reduce the surplus. Clayton
V. Wardwell, 2 Bradf. 1. If resi-
duary parties are willing to take
their share in personal assets, the
representative should not convert into
cash. 82 Penn. St. 428. See Thomp-
son Re, 71 N. E. 1140, 178 N. Y. 554;
44 S. E. 47, 1007, 132 K C. 476;
11 N. Y. S. 40.
Distributees have, of course, no
right to sue for and recover claims
due their intestate's estate pending
a settlement, for this is a funda-
mental right of the administrator.
Kaminer v. Hope, 9 S. C. 253. And
until distribution of an estate is
made, the legal title to the assets re-
mains in the representative, irrespec-
tive of a distributee's debts, no mat-
ter where the possession may be.
Hence, shares of distributees cannot
be reached by garnishment pending
the administration. Sclinan v. Milli-
ken, 28 Ga. 366. But, after lapse of
the time for presenting claims and a
final settlement by the administrator,
including the payment of debts, and
distribution, the property divided
among the distributees, or held by
them in common, may become liable
for their respective debts, or be made
available for their own benefit. As
to their rights, after a final settle-
ment by the administrator, to sue
upon an uncollected chose, see Hum-
phreys V. Keith, 11 Kan. 108 : Pratt
V. Pratt, 22 Minn. 148. And as to
liability of the property correspond-
ingly for their debts, see Brashear v.
Williams, 10 Ala. 630. See also, as
to the effect of a bona fide payment
made to the next of kin before ad-
ministration, Johnson v. Longmire,
39 Ala. 143; supra, § 1120. In fact,
the legal title to the personal prop-
erty of a decedent vests in the ad-
ministrator specially, and for the
special purposes of collecting and pre-
serving the assets, paying the debts,
and distributing the surplus. As to
the legal title of distributees, where
there is no administration, and no
necessity for one, see Andrews v.
Brumfield, 32 Miss. 107.
After an estate has been distrib-
uted, tlic distributees cannot treat the
settlement as illegal or void, on ac-
count of an irregularity in the pro-
ceedings, without restoring, or offer-
ing to restore, wliat they have re-
ceived under the settlement. McLeod
V. Johnson, 28 Miss. 374.
3. Hawthorne v. Beckwith, 89 Va.
786, 17 S. E. 241; Richardson Re,
(1896) 1 Ch. 512. See 95 N. E. 951,
209 Mass. 585 (court order to convert
personalty into cash); Michigan So-
ciety V. Corning, 129 N. W. 686. 164
Mich. 395 (cash payable to trustees
for a long investment).
1598
CHAP, v.] PAYT^tEXT AKB DISTRIBUTION OF THE RESIDUE. § 1508
ministered ; hence the subsequent death of a distributee transfers
his interest to bis personal representative.*
§ 1508. Distribution ; Refunding Bond, Contribution, etc,
A refunding bond should be taken by the administrator, for his
own protection, from each distributee, wherever he makes volun-
tary distribution before creditors' claims are barred, since other-
wise he cannot require contribution if compelled to pay such claims,
according to the rule of some States ; ^ a rule announced, however,
not without admitted exceptions.^ Where the administrator has
4. If, therefore, the surviving
widow of an intestate dies before the
personal estate has been distributed,
her share or surplus will devolve upon
her own personal representatives.
Wms. Exrs. 1526; Garth. 51, 52; Mc-
Conico V. Cannon, 25 Ala. 462 ; Foster
V. Fifield, 20 Pick. 67; Moore v.
Gordon, 24 Iowa, 158 ; Kingsbury v.
Scovill, 26 Conn. 349; Puckett v.
James, 2 Humph. 565. Cf. Maxnvell
V. Craft, 32 Miss. 307. And so cor-
respondingly with a surviving hus-
band or one next of kin to a deceased
person entitled in like manner. As
to the husband's death, pending settle-
ment of his wife's estate, a circuitous
course was formerly taken in English
practice. See Schoul. Hus. & Wife,
§ 415; Roosevelt v. Ellithorpe, 10
Paige, 415; Fielder v. Hanger, 3
Hagg. Ec. 770. And see § 1483.
Wliere any of the distributees of
tlae estate has died, their legal repre-
sentatives should be brought in be-
fore a final settlement of tlie estate
is allowed in court. Hall v. Andrews,
17 Ala. 40. The case resembles that
of a residuary legatee who dies before
his surplus is ascertained; the dis-
tributees of an intestate estate be-
ing, as it were, residuary legatees
under a will drawn up by the legis-
lature for general emergencies. See
Cooper V. Cooper, L. R. 7 H. L. 53.
Where one of the distributees died
before settlement and the adminis-
trator paid part of his share for the
support of such distributee's family,
he was allowed a credit in equity,
where it was shown that creditors
and others in interest did not suffer
in consequence. 95 N. C. 265. Ad-
vances made by the administrator to
the distributee will be so treated in
case of such distributee's death be-
fore the time of distribution, and al-
though he gave his note for such ad-
vance. Lyle V. Williams, 65 Wis. 231,
26 N. W. 448. See, further, 63 Cal.
520.
5. Moore v. Lesseur, 38 Ala. 237;
Musser v. Oliver, 21 Penn. St. 362;
supra, § 1506 ; 43 W. Va. 226, 27 S. E.
378.
6. Alexander v. Fisher, 18 Ala. 374;
11 Ala. 264. Such refunding bonds
are usually taken with reference to
claims of creditors, and not by im-
plication, so as to recover for an
excess paid by way of distribution.
State V. McAleer, 5 Ired. L. 632 ; Rob-
1599
§ 150Sa' EXECUTORS AI^D ADMI^'ISTKATORS. [pAET V-
eufficient funds for his own reimbursement, lie cannot recover for
making an excessive payment to a distributee; and bis negligence
or default may debar him in other cases from procuring reimburse-
ment; though creditors might, on their own behalf, if not them-
selves at fault, pursue assets into the hands of the distributees.' If
the representative fails to take a refunding bond from the next of
kin where he pays before creditors are debarred from pursuing
their claims, he makes himself personally liable to the creditors, at
all events, for the amount he has distributed, and honest error will
not shield him.^ Local codes provide that the administrator need
not distribute until the time has elapsed for ascertaining what the
true balance above the debts shall be, and earlier distribution
should not be expected by kindred unless they give the refunding
bond.^
Generally speaking, no partial distribution will afford protection
to an executor or administrator unless he has the court's sanction.^
§ 1508a. Suit against Executor or Administrator for Neglect to
Distribute, etc.
After suihcient time has elapsed and the sole duty of an execu-
tor is to pay the legacies, or of an administrator to make distribu-
tion, and he fails to do so, he is sometimes made liable to civil
action for his breach of duty without waiting for an order of dis-
tribution by the probate court ; but no such suit can be maintained
unless the facts furnish full justification.^
inson v. Chairman, 8 Humph. 374; is more liberal than that of the com-
Rimpson's Appeal, 109 Penn. St. 383. mon law in such cases.
That the court has discretion in re- 8. Jones's Appeal, 99 Penn. St. 124;
quiring a refunding bond, see 98 Cal. 13 Phila. 350. But as to acting with
654, 53 P. 726. due regard to the supposed rights of
7. Singleton v. Moore, Rice (S. C.) creditors in such a case see Graves v.
Ch. 110; Saeger v. Wilson, 4 Watts Spoon, 18 S. C. 386.
& S. 501; Donnell v. Cook, 63 N. C. 9. Such, too, is essentially the prin-
227; Wms. Exrs. 883, 1450, 1452, and ciple as to an executor in dealing with
Perkin.s's note. And see supra as to legatees. See § 1477.
payments by executors (§ 1491), 1. 83 Md. 60, 62.
which indicates that the equity rule 2. Clarke v. Sinks, 144 Mo. 448, 46
IGOO
CUAl'. v.] PAYMENT AND DISTRIBUTION OF THE RESIDUE. § 1508e
§ 1508b. Inheritance Taxes.
An inheritance tax is now collected from legatees and distribu-
tees, especially those of collateral kindred; and many American
States have loeal enactments upon that subject.^
§ 1508c. Assignment by Legatee or Distributee.
Since the assignment by way of sale, pledge or mortgage, of one's
own share or interest in a legacy or distributive share is legal and
valid, a probate order of distribution need not concern itself with
such assignment, but may leave such questions, involving a third
person's title, to other courts.*
S. W. 199. Hence the safer course is
to apply to the probate court. Cf.
Appendix; Schaub v. Griffin, 84 Md.
557, 36 A. 443; 79 Md. 357, 32 A.
1054. See Bayley v. Bayley, 126 N.
Y. S. 102, as to holding an adminis-
trator liable for a wrongful distri-
bution, and at the same time recover-
ing from the distributee. vSee fur-
ther, as to legacies. 25 Hun (N. Y. )
482; 129 N. W. 538, 88 Neb. 3-79 (long
acquiescence) .
See as to distributive share, 71 S.
E. 901, 136 Ga. 486. And as to an
interested party who is aggrieved by
a distribution, see Wentworth v.
Wentworth, 78 A. 646, 75 N. H. 547.
3. See supra, § 1487. A decree of
distribution by the court may leave
such tax out of account, since theor-
etically the distributee pays the tax
and the personal representative with-
holds it. Carroll's Estate, 128 N. W.
929, 149 Iowa 617. See as to payment
of this inheritance tax, 103 N. Y. S.
446; 70 A. 579, 221 Penn. 112;
Wyckoff V. O'Neil, 71 A. 388, 71 N.
J. Eq. 729. And see Hollins Re, 131
N. Y. S. 713 (ancillary administra-
tion ) .
4. Howe's Estate, 118 P. 515, 161
Gal. 152; 131 N. Y. S. 664; 127 P.
1034, 164 Cal. 138; Coram v. Davis,
95 N. E. 298, 209 Mass. 229; .Jenkin-
son V. Finance Co., 82 A. 36, 79 N. J.
Eq. 247.
As to distribution of special stat-
utory fund (as for wrongful killing
of decedent) see local code; 131 N. W,
381, 114 Minn. 364; supra, § 1283.
101
1601
PART VI.
GENERAL POWERS, DUTIES, AND LIABILITIES OF EXECUTORS AND
ADMINISTRATORS AS TO REAL ESTATE.
CHAPTER I.
KEPKESENTATIVE's title and authority in GENEKAIi.
§ 1509. No Inherent Authority or Title as to Decedent's Real
Estate.
As we have already seen, the real estate of a decedent descends
at once to his heirs or devisees, and the personal representative has
no inherent authority or title thereto under his appointment.-^ An
administrator, more especially, takes neither estate, title, nor in-
terest in the realty of his intestate.^ ISTor has an executor authority
over real estate, unless the testator expressly confers such power
by his vdll ; ^ and, even though thus empowered, whether to sell or
dispose of the decedent's land, or to lease it, or to mortgage it, or
to invest, re-invest, ©r change investments of real estate, such power
is confined to the methods and purposes therein expressed.* If ho
1. Supra, §§ 1212-1214, and cases v. Whitney, 9 Iowa, 267; Crocker v.
cited; Wms. Exrs. 650. As to what Smith, 32 Me, 244; Spears Eq. 399.
is real estate, and not personalty, He cannot sue for rents, income and
see § 1198-1228, snipra. profits of land where there are no
2. Supra, § 1212; Drinkwater v. debts to be paid. 108 Ala. 105. But
Drinkwater, 4 Mass. 354 ; Stearns v. see next c. as to statutes.
Stearns, 1 Pick. 157; Walbridge v. 3. Wms. Exrs. 650; Gregg v. Cur-
Day, 31 111. 379, 83 Am. Dec. 227; rier, 36 N. H. 200. And see Place,
Vance v. Visher, 10 Humph. 211; Re, 1 Redf. 276.
Gregg V. Currier, 36 N. H. 200. Nor 4. 1 Sugd. Powers, 128 et scq., 6th
has the widow an inherent aruthority ed. ; James v. Beesly, 4 Redf. (N. Y.)
here. Williams v. Williams, 118 236; Wms. Exrs. 650, 654, 944, 951,
Midi. 477, 76 N. W. 1039. An ad- notes by Perkins; Hauck v. Stauffcr,
miniatrator has nothing to do with 28 Penu. St. 235; Thompson v.
real estate, or title ttierfto of the dc- Schenck, 16 Ind. 194; Brown v. Kel-
ceasod, save for the hwncfit ai cred- sey, 2 Cush. 243; Hawley v. .James,
itors and payment of debts. Gladson 16 Wend. 61.
1602
CHAP. I.]
TITLE, ETC., TO REAL ESTATE.
§ 1509
has an interest of his own in such land, his own dftcd can convey
no more than his own personal interest.^
Accordingly, an executor or administrator has no inherent au-
thority to make leases of the real estate belonging to his decedent's
estate.'' Nor to grant an easement or right of way therein.^ Nor
to bring ejectment,^ or sue for trespass,^ where the right originates
after the decedent's death. He has no inherent power to sell the
land ; and his conveyancei, invalid for want of power in him to
make it, appears to leave the title in the heirs or devisees,^ while
he cannot be charged with its value officially as assets of the
estate.^ He cannot charge the decedent's real estatf^ by his building
contracts.^ He cannot recover possession of the decedent's land by
a suit at law.* Nor are the proceeds of a sale of such land, made
by order of a court having no competent jurisdiction, assets in his
5. Fields v. Bush, 94 Ga. 664, 21
S. E. 827.
A power of sale as to real estate,
given by will to the executor, must
be carefully observed with its lim-
itations. 157 S. W. 726, 154 Ky.
345 ; 144 N. Y. S. 442. Equity grants
relief wherever the executor abuses his
power under tl^ will and makes an
unauthorized and fraudulent sale by
a deed not void or voidable on its face.
Wetmore v. Granite Co. v. Bertoli, 88
A. 898, 87 Vt. 257. As to an im-
plied power of sale under a will see
Cooke V. Woman's Medical College,
87 A. 131, 82 N. J. Eq. 179.
6. Taylor Landl. & Ten. § 133;
Bac Abr. Leases, I. 7; 2 W. Bl. 692;
Bank v. Dudley, 2 Pet. 492, 7 L. Ed.
496; 4 Bush, 2T; Lee v. Lee, 74 N.
C. 70. Otherwise, however, as to
dealing with leases granted to his de-
cedent, which are chattels real.
Supra, § 1353. But such a lease by
an executor or administrator, though
good at law, is voidable in equity,
unless shown to be in the course of
administration, and hence the con-
currence of l^atees or distributees
may often be desirable. Statutes
sometimes define the right. See Tay-
lor Landl. & Ten. 134; 3 East, 120; 8
Sim. 217.
7. Hankins v. Kimball, 57 Ind. 42.
8. Wms. Exrs. 632, 792; 2 Root,
438. Cf. 23 Fla. 90, 11 Am. St. Rep.
334, 1 So. 516.
9. Aubuchon v. Lory, 23 Mo. 99.
1. King V. Whiton, 15 Wis. 684;
Hankins v. Kimball, 57 Ind. 42;
Thompson v. Gaillard, 3 Rich. 418, 45
Am. Dec. 778; Fay v. Fay, 1 Cush.
105; 65 Conn. 161, 32 A. 396.
2. But, as to holding the repre-
sentative and his sureties liable for
misappropriation in case he assumes
control, see Dix v. Morris, 66 Mo. 514.
3. 54 Kans. 770, 39 P. 694.
4. Drinkwater v. Drinkwater, 4
Mass. 354.
1603
§ 1509
EXECUTORS AND ADMIXISTKATOES.
[part VI.
iiands.'^ Xor should he invest in land nor apply personal assets to
repairs and improvements of the decedent's real estate, even though
his decedent had agreed to make them." Sot should he make out-
lay to strengthen the title.^ Xor can he mortgage the decedent's-
lands.^ But local codes may vary these rules.^
Even admitting that the personal representative may institute
proceedings fof setting aside a conveyance of land, which the
decedent made in fraud of his creditors, this is for the benefit of
creditors only; as for heirs, they must institute proceedings in
their own interest.^ Except by attacking the decedent's own sale
during his lifetime as in fraud of creditors, and bringing due pro-
ceedings, he cannot contract or sell, even for paying debts, land in.
which the decedent had no title when he died.^ And of so little
bearing is the fiduciary character of an administrator usually upon
the lands of his decedent, that he has been permitted to purchase
at any such sale of real estate ; except a sale conducted by himself
as administrator, where, for instance, the personalty was insuffi-
cient to pay debts.^ On the other hand, an administrator's pur-
5. Pettit V. Pettit, 32 Ala. 288.
6. Cobb V. Muzzey, 13 Gray, 57. See
1 Bailey Ch. 23; 2 Hill Ch. 215;
Clark V. Bettelheim, 144 Mo. 258, 46
S. W. 135. An administrator who
invests assets in land and takes the
deed to himself, though liable, per-
haps, to distributees in proceedings
for deimstavit, or so as to treat the
land as assets, may nevertheless con-
fer a legal title by transfer free of
tlieir claims upon the land. Richard-
son V. McLemore, 60 Miss. 315. See
§ 1383. See as to sale of corporate
stock of a hotel property left to tes-
tator's widow, Iloyt's Estate, 84 A.
835, 236 Penn. 433.
7. Brackett v. Tillotson, 4 N. H.
208. Where the administrator is
guardian of the heir, his management
of real estate is on the guardianship
account. Foteaus v. Lepage, 6 Iowa,
123.
8. Black V. Dressell, 20 Kan. 153;
Smith V. Hutchinson, 108 111. 662;
162 111. 232, 44 N. E. 499. Nor re-
scind executory contract for purchase
of land. Cotham v. Britt, 10 Heisk.
469. And see 151 N. Y. 204, 45 N. E,
458.
9. See c. 2 post. See statute as to
making reasonable repairs, 110 Cal.
494.
1. Richards v. Sweetland, 6 Cush.
324, per Metcalf, J. See also Sher-
man V. Dodge, 28 Vt. 26; Ford v.
Exempt Fire Co., 50 Cal. 299; §§
1220, 1252, 1297.
2. 121 N. C. 190, 28 S. E. 264. See
§ 1213.
3. Dillingcr v. Kelly, 84 Mo. 561.
1G04
€HAP, I.] TITLE^ ETC.^ TO REAT. ESTATE. § 1510
chaso, whether by himself or another, at his own sale, is voidablo
at the election of the heirs or devisees.* And where the fiduciary
is charged with the sale of lands to pay debts, he ought not to pur-
chase such lands for himself on an execution sale against the de-
cedent.^
§ 1509a. The same Subject.
The general rule is, therefore, that the real estate of a decedemt
vests at once on his death in his heirs or devisees, subject to being
divested in due course of administration, wherever the personal
assets prove deficient for the due settlement of debts and claims
against the estate.^ But the will of the testator or a local statute
may cause some variance of such a situation.^
§ 1510. Rule where Representative collects Rents, manages, etc.
If the representative takes possession of the decedent's real es-
tate, and collects rents (as some loeal statutes now pei-mit him to
do), he is generally understood to hold the money in tiTist for tho
devisees or heirs; and to such parties he should account justly for
his management, according to their respective interests.^ Author-
ity may be conferred and revoked by heirs or devisees for this pur-
4. And this even though the probate land, 55 So. 174, 172 Ala. 72 ; Power
court confirmed the sale. McMillan v. Grogan, 81 A. 416, 232 Penn. 387;
V. Rushing, 80 Ala. 402. See next 58 So. 465 (Ala.). But heir and per-
chapter; 142 N. Y. 484; § 358. sonal representative cannot maintain
-^5. Marshall v. Carson, 38 N. J. Eq. ejectment jointly. Wilson v. Kirk-
250, and cases cited. land, 55 So. 174, 172 Ala. 72.
6. Wentworth v. Wentworth, 78 A. 8. Supra, § 1213, and cases cited;
646, 75 N. H. 547. See Smith v. Taylor Landl. & Ten. § 390; Palmer
Stiles, 123 P. 448, 68 Wash. 345 (con- v. Palmer, 13 Gray, 328; Kimball v.
tract for the sale of land). Sumner, 62 Me. 309; 173 111. 368, 50
7. Cf. § 1509. As to maintaining N. E. 1095. Such matters, including
trespass under statute, see Plumley'a taxes assessed on the land since the
Adm'r, 79 A. 45, 84 Vt. 286. owner's death, insurance, repairs, and
Ejectment by the representative is improvements, do not belong properly
now permitted in various States, un- to the accounts of administration,
der legislation with regard to a de- Lucy v. Lucy, 55 N. H. 9 ; Kimball v.
cedent's land. See Wilson v. Kirk- Sumner, 62 Me. 305; § 1512 b.
1605
1510
EXECrTOES AXD ADMIXI5TEAT0ES.
[PAET VI.
IK)se/ and the representative who collects without their authority is
liable to them.^ Under the authority conferred by a will, again, the
executor may, of course, manage his testator's real estate; and, if
the will orders a special disposition of rents, issues, and profits, he
should comply with its directions.' In some American States, as
we have seen, liberal provision is made for the management of a
decedent's estate by his personal representative, during the settle-
ment of the estate ; ^ which course may often be convenient, even
though the personal assets be ample for the claims presented.
But the representative, in order to justify himself in thus man-
aging the decedent's real estate, should bring himself within the
provisions of the statute, or the terms of the will under which he
acts, or show consent of the parties interested ; which consent may
be presumed from their conduct.* He must also use due diligence
9. Supra, § 1212: Griswold v.
Chandler, 5 N. H. 492.
1. Even though he uses the money
as assets to pay debts of the estate.
Conger v. Atwood, 28 Ohio St. 134,
22 Am. Rep. 362.
2. Jones's Appeal, 3 Grant, 250.
3. 15 CaL 259: Kline v. Moulton,
11 Mich. 370: McClead v. Davis, S3
Ind. 263; supra, § 1213 and cases
cited; Flood v. Pilgrim. 32 Wis. 377.
And as to ■working plantations, in
various Southern States there is sim-
ilar legislation. 40 Miss. 711, 760;
Henderson v. Simmons, 33 Ala. 291,
70 Am. Dec. 590; 51 Ga. 647; John-
son V. Parnell, 60 Ga. 661. So as to
a vineyard, 118 Cal. 462, 50 P. 701.
By virtue of such local legislation in
the United States, the administrator
contrary to general law (see § 1509)
may lease real property belonging to
the estate during the period of ad-
ministration. 66 Cal. 476, 6 P. 130.
4. Billingslea v. Young, 33 Miss.
95. Special exception is sometimes
made in favor of the representative's
authority, where there is no heir or
devisee present to take possession.
Hendrix v. Hendrix, 65 Ind. 329. As
to collection of rents by a special or
temporary administrator, see §§ 1134,
1135, 1414.
An executor has no right, under a
mere power to sell contained in the
will, to collect and apply rents for
administration against the wishes of
the residuary legatee. He can only
pursue the terms of his power. Watt's
Estate, 168 Penn. St 431, 47 Am. St.
Eep. 893, 32 A. 25. And see 168 111.
155, 48 N. E. 311. Nor is an imper-
fect power available. 101 N. C. 218,
8 S. E. 99, 106.
Power to mortgage is sometimes
given expressly by will. See Ames v.
Holdesbaum, 44 Fed. 224.
A power to sell real estate, given to
co-executors, may be exercised by the
survivor. Wilson v. Snow, 33 S. Ct.
487, 228 U. S. 217. See. further, as
to such powers. Roper Lumber Co. v.
1606
CHAP. I.] TITLE,, ETC.^ TO REAL ESTATE. § 1511
in all such management ; ^ and the same general rule as to honor
and diligence applies as in the case of personalty.®
§ 1511. Sale of Real Estate to pay Debts, Legacies, etc.
In the English practice, a power to sell lands, given to the ex-
ecutor under a will, is fully sustained. And, notwithstanding
doubts formerly entertained, the English chancery has gone so far,
in cases decided since the middle of the last century, as to imply a
po^ver of sale in executors from a charge made of debts, although
the estate was devised to others.'' That rule is made clear by statute
22 & 23 Vict c. 35. But, so far is this from being regarded as an
inherent right in the representative, that an administrator is held
to have no such power to sell a decedent's real estate for payment
of debts, either under the general doctrines of chancery or under
the statute.^ Modem English legislation, nevertheless, renders
the lands of a deceased person, not charged with his debts, liable
as assets for payment of the same, under the administration of
courts of equity ; not by way of specifically charging the real assets,
but so as to make the heirs or devisees personally liable to the ex-
tent of their respective interests.^ The general principle is, that
creditors of a decedent can have no recourse to his real estate for
satisfaction, unless the personalty proves insufficient.
In this country, the sale of lands to pay debts of the decedent
whose personalty is found deficient, is regulated quite extensively
Swain, 77 S. E. 700, 161 N. C. 566 ing considerable difficulty in titles,
(power to sell for division merely) ; And see Lewin Trusts, 340.
Dolan V. Brown, 86 A. 935, 81 N. J. 8. Clay, Re, 29 W. R. 5. Not even
Eq. 262 (by persons jointly). an administrator with will annexed
5. flail's Estate, 70 Vt. 548, 41 A. has power. lb.
508. 9. See statutes 1 Wm. IV. c. 47, and
6. 96 Cal, 522, 31 P. 584; 111 N. C. 3 & 4 Wm. IV. c. 104, cited Wms.
297, 16 S. E. 417; §§ 1314, 1315, Exrs. 1688-1692; 1 Mac. & G. 456; 22
13S2; 109 N. W. 710, 32 Iowa 216. Beav. 21; Richardson v. Horton, 7
7. Robinson v. Lowater, 5 De G. M. Beav. 112; Dyson Re, (1896) 2 Ch.
& G. 272; 21 Beav. 337; 37 Beav. 553. 720. And see Wms. Exrs. 1688-1692,
In Sugden Powers, 14th Eng. ed. 662, as to the proper procedure in equity
note, this new rule is regarded un- under this act.
favorably by the author as iutroduc-
1607
§ 1511 EXECUTORS AND ADMIXISTEATOES. [PATIT VT.
by statutes, in the nature of a probate license to sell.^^ With the
real estate, or its title, it is admitted that the personal representa-
tive has nothing to do, by virtue of his office, unless the personal
assets prove insufficient for the purposes of his trust ; except under
the special qualifications already set forth, by local statute or other-
9b
Wise.
Sales of land in conformity with a will, in order to provide lega-
cies, where there is a deficiency in personal assets, are, however,
permitted both in English and American chancery; the presump-
tion being that a testator intends the legacies given by his will to
be a charge on his residuary real as well as his personal estate. ^° In
general, an executor who sells or conveys land under an appropri-
ate power does not make himself personally liable for failure of the
title.^-^
They who purchase land of a decedent from his heirs or legatees,
before the full administration and settlement of the estate, take the
incumbrance of a possible sale for payment of debts and the ex-
penses of administration, unless otherwise secured.^
9a. See next chapter. a devise, charging the land with the
9b. See supra, § 1213; 5 Whart. 228, payment of debts, see 115 N. C. 366.
350. Any surplus arising from such And see Pitt's Estate, 133 N. W. 660,
a sale though commonly distributable 153 Towa, 269; 58 So. 873, 130 La.
as personalty, should be considered as 1043.
impressed by the testator's intent in 9c. Greville v. Browne, 7 H. L. Ca3.
case of a devise. 181 Penn. St. 551, C89; Bench v. Biles, 4 Madd. 187;
37 A. 576. Poulson v. Johnson, 2 Stew. 529;
The general principle is, that chan- Corwine v. Corwine, 24 N. J. Eq. 579 ;
eery has no inherent jurisdiction in 31 N. J. Eq. 427. The right apart
such matters, except for enforcing from statute is denied in 4 Del. Ch.
some specific lien or right in the 9. See Mass. Gen. Stats, c. 102,
land. Wras. Exrs. 650; supra, § 1212, § 19; Gibbens v. Curtis, S Gray, 392.
and cases cited. Vendor's lion is not Where tiie will gives to the executors
an asset thus available. 44 S. W. a power to sell tlio land in case of a
485, 91 Tex. 488. Out of the surplus deficiency of asst'ts, they should sell
from a sale the representative may under the power and not under the
fully reimburse himself Ix-fore dis- statute. 5 Dem. (N. Y.) 14, 251.
Iributing to residuary parties. Bol- 9d. Twitty v. Lovelace, 97 N. C. 54,
ton Re, 146 N. Y. 257, 48 Am. St. 2 S. E. 001. And sec § 1515.
Kep. 790, 40 N. E. 737; 43 So. 228, 1. Fhxxl v. Strong, 108 Midi. 501,
150 Ala. 532. For incumbrance under 06 N. \V. 473. Sec a.s to cipiity pow-
1G08
CHAP. I.]
TITLE,, KTC.^ TO REAL ESTATE.
§ 1512
§ 1512. Exoneration of Real Estate by the Personal; Marshalling
Assets, etc.
The exoneration of real estate bj the personal is an important
doctrine of equity jurisprudence in administering estates; the rule
being in full conformity with our general policy, that wherever the
intention of a testator does not clearly conflict with such an inter-
pretation, real estate shall be applied to debts, legacies, and charges,
only so far as personal assets, the primary fund, prove insufficient,
notwithstanding mere directions in the will to sell or mortgage for
such purposes.^ Marshalling the assets in favor of creditors and
legatees, is the chancery method of causing the whole property, real
and personal, of a decedent, to be so applied among claimants, that
all equities shall be preserved according to due order.^
ers to authorize a conversion, John-
son V. Buck, 77 N. E. 163, 220 111. 226.
2. Walker v. Hardwicke, 1 My. &
K. 396; 1 Sim. 84; Van Vechten v.
Keator, 63 N. Y. 52; 115 N. C. 366,
20 S. E. 520 (general or specific
debts) ; Wms. Exrs. 1705. As this
rule, after all, is subject to proper
expressions of testamentary inten-
tion, numerous subtle refinements are
found in the decisions which interpret
this intention. See Wms. Exrs. 1694-
1712, and Perkins's notes, where this
question is examined at length.
American cases admit the general
maxims of exoneration; and hence
the rule, supported by numerous
American, as well as English, equity
decisions, that debts contracted by a
testator, although secured by mort-
gage, are to be paid presumably out
of his personal property to the exon-
eration of his real estate. Supra, §
1430; Sutherland v. Harrison, 86 111.
363; Plimpton v. Fuller, 11 Allen,
140; Towle v. Swasey, 106 Mass. 100;
McLenahan v. McLenahan, 3 C. E.
Oreen, 101; 2 Salk. 449; Howel v.
Price, 1 P. Wms. 292; Wms. Exrs.
1694-1697, and cases cited. Even as
to personal assets from a foreign jur-
isdiction. See 90 Tex. 245, 38 S. W.
350. See Wilts v. Wilts, 130 N. W.
906, 151 Iowa 149; Lake v. Weaver,
80 A. 821, 80 N. J. Eq. 154; Horton
V. Robinson, 98 N. E. 681, 212 Mass.
248; Taylor v. Major, (1914) 1 Ch.
278. But this is an equitable doc-
trine with many reservations, and the
late English stats. 17 & 18 Vict. c.
113, and 30 & 31 Vict. c. 69,
pronounce against such a rule of
interpretation. The New York stat-
utes likewise discountenance such pre-
sumptions; and, in that State, a
mortgage debt is primarily charged
upon the real estate mortgaged, un-
less a will clearly directs otherwise;
wliich seems the fairer doctrine on
this subject. Waldron v. Waldron, 4
Bradf. Surr. 114; Van Vechten v.
Keator, 63 N. Y. 52. In some States
real estate taxes due at testator's
death must be paid out of the person-
alty. § 1428.
3. See Wms. Exrs. 1713-1720, and
1G09
1512a
EXECUTOES AND ADMIXISTEATOES.
[PAET VI.
§ 1512a. Dealing with Mortgages on Real Estate.
Wiere, after the death of a beneficiary under a will, the execu-
tor, in order to save the expense of a foreclosure, takes a convey-
ance of the premises covered by a mortgage belonging to the estate,
he must account therefor as personalty to the administrator of such
deceased beneficiary ; but otherwise as to lands acquired under fore-
closure and bought in to protect the estate before such beneficiary's
death.*
Subject to exceptions founded in covenant or testamentary in-
tention, the rule is, that if the deceased was not liable personally
to the mortgagee or other lienholder for the debt secured upon the
land, the personal property cannot be applied to its satisfaction;
he holds the land subject to the lien, but is not liable himself, nor
is his estate other than the land liable for the debt.^ But it is other-
wise where the decedent contracted the mortgage debt or actually
assumed an incumbrance already existing.®
numerous cases cited; 1 Story Eq.
Jur. § 558 et seq. In the United
States, generally, by statute, all the
property of the deceased, real and
personal, is, in equity, to be applied
as follows in the payment of debts,
when no statute or express will pre-
scribes a different order of applica-
tion, exhausting all the assets of each
class before proceeding to the next:
(1) The general personal estate.
(2) Real estate specially devised for
the payment of debts. (3) Real es-
tate descended. (4) Real estate de-
vised, though charged. 4 Kent Com.
421. And see supra, § 1490; 2 Jarm.
Wills, 588-590; Wms. Exrs. 1693,
Perkins's note; Perry Trusts, § 566.
While creditors are not confined to
this general order, legal representa-
tives, heirs, legatees, and devisees
have rights for relief against each
other in case the true order is disar-
ranged. Perry Trusts, § 566. See 83
Md. 104, 34 A. 877; 115 N. C, 398,
29 S. E. 519; (1906) 1 Ch. 446.
4. Barclay v. Cooper, 42 N. J. Eq.
516, 9 A. 107. See supra, § 1214.
5. Minter v. Burnett, 90 Tex. 245,
248, 38 S. W. 250, and cases cited;
128 P. 818.
6. lb. See also Nagle v. Conrad, 81
A. 84, 79 N. J. Eq. 124.
Executor who advances his own
money to redeem land of the testator
from a mortgage debt is entitled to
reimbursement. Horton v. Robinson,
98 N. E. 681, 212 Mass. 248; 148 S.
W. 245, 103 Ark. 574.
For the case where a mortgagor is
appointed executor of the mortgagee
see Stewart v. Hurd, 78 A. 838, 107
Me. 457.
1610
CHAP. I.] TITLE^ ETC., TO RExiL ESTATE. § 1512b
§ 1512b. Charges and Allowances with reference to Real Estate;
Reimbursement, etc.
Dealings with real estate so far as appropriate, may justiiy
special charges and allowances or a higher rate of commissions to
the fiduciary' than is usual in administration.'^ He may thus be
allowed for a salary paid a collecting agent ; ^ for a broker's fee in
procuring a sale f^ and for taxes, water rates, repairs, or ins\irance,
upon the principles already discussed.^
Where realty of the decedent has been lawfully converted into
personalty by a sale, the proceeds are in the hands of the executor
or administrator for all purposes of administration; and before
distributing this fund to the residuary legatees or distributees, the
representative may pay the balance of the decedent's debts, or, what
is the same thing, may reimburse himself for all legal debts paid
or incurred in excess of the personal estate that came to his hands.^
7. See Part VII., c. 2. executor or administrator, but not
8. Dey v. Codman, 39 N. J. Eq. 258. those usually which are charged after
8a. Dey v. Codman, supra. And see his death. Supra, § 1428, and cases
Stone V. Strong, 42 Ohio St. 53; 121 cited in notes; Lucy v. Lucy, 55 N.
Cal. 609, 54 P. 97. H. 9 ; Kimball v. Siimner, 62 Me. 305.
9. See supra, §§ 1212, 1213. We So as to insurance. lb.
have observed that taxes and water 1. Bolton Re, 146 N. Y. 257, 48
rates chargeable on land before an Am. St. Rep. 796, 40 N. E. 737.
owner's death may well be paid by his
1611
^ 1513 EXECUTOES AJSTD ADMINISTKATOKS. [PAKT VI.
CHAPTER II.
STATUTE SALES OR MORTGAGES UNDER JUDICIAL LICENSE.
§ 1513. Modern Legislation permitting Sales under a Judicial
License.
In the United States are various modern enactments, of strictly
local application, bv virtue of which executors and administrators,
like other fiduciaries, may be judicially licensed to sell real estate
in special cases, where the welfare of interested parties requires it,
and they have no adequate authority otherwise. In the present in-
stance the usual object of a license is, in the course of administra-
tion, to pay debts and legacies, where the personal estate of the de-
ceased person proves insufficient for such purposes/ including the
reasonable costs and expenses of settling the estate.^ In American
practice the probate court is usually invested with an appropriate
statute jurisdiction ; for such relief the executor or administrator
presents his petition for a license, representing the facts essential
to the case; and the license being granted, its terms must be strictly
pursued. In the execution of a statute power like this, the terms
of the legislative grant, with its limitations, should, like the power
conferred by a testator under his will, be carefully observed by the
1. Recent statutes, however, author- 2. See 40 N. J. Eq. 173; 53 A. 110.
ize sales and mortgages by license of 96 Me. 570; 94 N. W. 679, 89 Minn,
a court for other purposes, as, for in- 253; 195 Pcnn. St. 225; 44 N. W. 318,
stance, to discharge contingent inter- 78 Mich. 186. As to sale for mere
ests in an estate. See Mass. Pub. administration expenses, or for a
Stats, c. 142. Or to sell or release debt due tlie executor or administra-
a cemetery lot. lb. Or where the tor, cf. 39 So. 379, 143 Ala. 652; 85
power under a will was dependent S. W. 239, 74 Ark. 168. As to gon-
upon the consent of a person since era! statute authority to order sale
deceased. lb. Or, under certain cir- of land see Candce's Appeal, 86 A.
cumstances, where there are no known 758, 87 Conn. 85; Morris v. Dorsey,
heirs. Mass. Pub. Stats, c. 131, § 11. 85 A. 1134, 80 N. J. Eq. 555; Nelson
As to sale by foreign representatives, v. Schoonhover, 131 P. 147. 89 Kan.
Bee Mass. Pub. Stats, c. 134, § 10. 388; 131 P. 413, 54 Cal. 451.
Cf. local codes on this point.
1G12
CHAP. II.] STATUTE SALES, ETC., OF KEAL ESTATE. § 1514
court which issues the license, and by the representative who sells
under it.^ And if the statute made can be pursued with advantage,
for such purposes, equity should take no jurisdiction of the case,*
nor interfere with the sale made in proper pursuance of the li-
cense.^
§ 1514. License restricted to such Land as may be needful;
Rights of Heirs and Devisees respected; Qualifications
of Rule, etc.
A license to sell land, for the payment of debts and legacies, is
•usually restricted to the actual necessities of the estate upon the
exhaustion of personal assets; though such statutes provide that,
where, by a partial sale of land, the residue or some specific part
would be greatly injured, the court may license a sale of all or of
such part as may appear to be most for the interest of all con-
cerned.^ Nor are the rights of heirs and devisees to be ignored;
but they should have due notice of the petition, and opportuniTy to
avert the necessity of a sale; as, perhaps, by making up the defi-
ciency themselves. But, by our legislative policy, real estate de-
scends to heirs, or goes to devisees, subject to administration and
the due settlement of debts and legacies, and this liability continues
against not only such parties, but purchasers from them, until the
administration is closed ; ^ and where there exist lawful claims and
insufl^cient personal assets to meet them, it is the duty of the rep-
resentative to apply for a license, and of the court to grant it.^
3. Mass. Pub. Stats, c. 134; 67 tract of sale. Hendrickson v. Hen-
Conn. 1. Proceedings are not, under drickson, 41 N. J. Eq. 376, 4 A. 665.
some codes, confined to the probate But jurisdiction to grant a license
court. 63 Conn. 332. existing, the hnna fide purchaser's
4. Springfield v. Hurt, 15 Fed. R. title is not to be afi'ected by collateral
307. facts, which, if known to the court,
5. Johnson v. Holliday, 68 Ga. 81. might have prevented the license from
6. Mass. Pub. Stats, c. 134; 90 N. being granted.
C. 551. The orphans' court, as such 7. § 1511; State v. Probate Court,
statutes usually run, cannot order to 25 Minn. 22.
be sold for debts an equitable interest 8. Whether a surviving spouse's in-
of the decedent in land under a con- terest in the decedent's real estate
1613
§ 1514
EXECUTORS AND ADMI]S^ISTEATOKS.
[part VI.
Until tlie will is proved or letters of administration are granted,
the court is without jurisdiction to order a sale of land in aid of
assets.^ But after this jurisdiction attaches, application should be
made for license to sell within a reasonable time after the condition
of the estate can be ascertained ; nor should the court on the other
hand delay its permission to sell upon any hypothetical regard for
personal assets which are practically unavailable, for an adjust-
ment as promptly as creditors of an estate have usually the right
to expect.^ Heirs and devisees cannot prevent a license from issu-
can thus be sold, see 107 Ind. 121, 8
N. E. 71. A mere reversionary in-
terest in expectancy cannot be, unless
statute specifies. 127 Ind. 332, 26
K E. 823.
See Smith v. Wells, 134 Mass. 11,
■tt'here, after a residuary legatee's
death who was also executor, the only
property consisting of a farm, an ad-
ministrator with will annexed was
allowed to sell the land under statute
license for payment of legacies. And
see § 1407. But an executor and resi-
duary legatee who has given bond to
pay debts and legacies cannot be li-
censed to sell land. 133 Mass. 447;
§ 1138. A sale or mortgage by heirs
or devisees, before administration has
proceeded far enough to settle or bar
out claims, leaves the land meanwhile
with a sort of cloud upon the title;
but after administration has been
fairly completed, such sale or mort-
gage would be practically clear of the
incumbrance. An administrator can-
not sell the land of his intestate
while it is held adversely by anotlier,
without proceedings for possession.
08 Ga. 81. And see 67 Ala. 173; 51
Mich. 360, 10 N. W. 685. There may
be a sale at the instance of an ad-
ministrator de bonis non. 83 Ind.
411; 59 Tex. 172. Or perhaps of the
creditors. See 108 Mich. 561, 66 N.
W. 473.
Jurisdiction to order a sale of land
does not extend to land in another
State or country. People v. Parker,
132 P. 56, 54 Colo. 604. Nor to land
held adversely to the estate by a third
person, before recovering possession.
Walker v. Steflfes, 77 S. E. 580, 139
Ga. 520; Trimble v. Rice, 204 F. 407.
As to application order, etc., con-
sult local code and practice. And see
Doran v. Kennedy, 141 N. W. 851,
122 Minn. 1, (sale of land where
patent had not been granted) ; Gil-
bert V. Hopkins, 204 F. 196, 204 (land
of a deceased tenant in common) ;
Griswold v. McDonald, 143 N. Y. S.
341 (previous sale by the heirs in par-
tition) .
9. Whitesidcs v. Barber, 24 S. C,
373.
1. A petition for a license was de-
nied where the creditors had been cul-
pably negligent in applying for the
appointment of an administrator. 63
N. PI. 29. And see as to long delay
justifying an injunction against the
sale, 86 Mo. 253. See also 60 Conn.
63, as to wasted personalty. And
see 59 N. E. 586, 189 111. 144; 79 N.
E. 629, 115 Am. St. Rep. 155, 224 IlL
238 (laches).
1614
CHAP. II.] STATUTE SALES^ ETC., OF REAL ESTATE, § 1515
ir.g in a suitable case ^ on tlie representation of the fiduciary,
though they might save the land, perhaps, if no other urgency ex-
isted, by averting the necessity for a sale.
§ 1515. Legislative Provisions as to Sale; Essentials of a Pur-
chaser's Title.
The local statutes provide in detail the method of procuring a
license to sell, and of acting under it.^ ^^ny surplus proceeds,
2. 75 Ala. 335.
3. American statutes have usually
the following points in common:
(1) an application to the court,
upon which the license is granted ;
(2) a special bond covering such
proceeds of the sale as may be real-
ized; (3) the formal sale of the land,
usually at public auction; (4) the
execution of a deed with proper re-
citals to the pvirchasers, covenanting
that the representative's sale has been
legal and upon due authority; (5) a
proper application of the proceeds
arising from the sale. As to war-
ranty, the bona fides of a sale, the
right of a representative to purchase,
etc., the maxims set forth, supra, §
1361, as to sale of personal property,
have here a corresponding applica-
tion. See local codes and decisions;
2 Sugd. Vend. & P. 8th Am. ed. 714,
note; Wms. Exrs. 650, and Perkins's
notes. A sale may be adjourned like
other such sales. 41 N. J. Eq. 515.
But if the representative unreason-
ably delays availing himself of his
license, recourse should be had to the
court which issued the license. 105
Penn. St. 315. Confirmation refused
by the court where the price was
grossly inadequate though the sale
was fairly conducted in other re-
Bpects. SO Va. 695. Some codes re-
quire confirmation, others do not.
See 89 P. 666, 75 Kan. 391.
A sale and deed by an administra-
tor who acts under a void appoint-
ment are void. Allen v. Kellam, 69
Ala. 442; § 1160; 99 Mich. 590, 58
N. W. 636. And see 110 Cal. 579, 52
Am. St. Rep. 116, 42 P. 1063. A pri-
vate sale is void where a public sale
is ordered. 110 Cal. 579.
As to a purchase by the fiduciary
himself at his own sale, see supra,
§ 1358; Marshall v. Carson, 38 N. J.
Eq. 250; 80 N. E. 1056, 226 111. 550
(voidable only); 158 S. W. 577, 252
Mo. 147 (statute prohibition) ; 105
S. W. 891, 32 Ky. Law. 314; 135 X,
W. 875, 149 Wis. 251 (statute pro-
hibiting) ; 74 S. E. 422, 137 Ga. 833
(voidable); 53 So.- 830, 169 Ala. 648
(sustained if fair) ; 131 S. W. 42, 140
Ky. 739 (guardian and trustee) ; 127
N. W. 793, 162 Mich. 492 (statute) ;
99 N. E. 657, 255 111. 493; James v.
Little, 70 S. E. 251 (private arrange-
ment with distributees) ; Conrad v.
Conrad, 153 S. W. 740, 152 Ky. 422
(purchase prohibited) ; 131 P. 413, 54
Colo. 451 (remote interest).
Decree void if without jurisdiction,
as inspection of the record shows;
otherwise voidable by evidence ali-
unde. Pinnacle Mining Co. v. Popst,
131 P. 413, 54 Col. 451. See Craw-
1615
§ 1515
EXECUTORS AJfD ABillXISTKATOES.
[ PART vr.
which may remain, after satisfying the purposes of the sale, belong
to the heirs or devisees, as though impressed with the original char-
iicter of the property. As to the essentials of a purchaser's title,
the terms of the statute must furnish the gnaide ; and while merely
incidental irregularities may be cured by the completion or con-
firmation of the sale, there must have been jurisdiction in the court,
and a substantial compliance with the fundamental requirements
of the statute, both in granting the license and in pursuing it.'* The
representative warrants nothing in the title of the land ; nor is it
for him to remove incumbrances ; ^ and even should he thus cove-
nant he will not bind the estate but himself.®
ford V. Crawford, 77 S. E. 826, 139
Ga. 535. And see Acklin's Estate,
85 A. 862, 257 Penn. 528.
The doctrine of caveat emptor ap-
plies to such sales, and the purchaser
cannot renounce his bid or repudiate
and get back his purchase-money, be-
cause of defective title, in the absence
of any fraud by the executor or ad-
ministrator. Tilley v. Bridges, 105
111. 336; Jones v. Warnock, 67 Ga.
484; 67 Ala. 508. Or even, as it is
held, where the fiduciary fraudulently
asserted that there was no incum-
brance. Riley v. Kepler, 94 Ind. 308.
One buys subject to any outstanding
agreement between decedent and a
third party, which complies with the
formalities of law. Shup v. Calvert,
174 111. 500, 51 N. E. 828. See supra
§ 1361.
Tlie purchaser's title, as against
heir or devisee, dates from the sale or
the court's confirmation of the sale,
or the execution of tlie conveyance,
according to the intendment of the
local statute. fii some States the
fiduciary executes liis own convey-
juice. conformably to tlie terms of
Bale; in otiier States, the conveyance
is executed by order of the court.
4. Local decisions in construction of
local statutes will afford to the prac-
titioner the true rules of guidance.
The main question is one of statute
interpretation ; as to what provisions
in fact shall be regarded as impera-
tive, and what as merely directory.
The disposition is to regard an in-
firm sale as voidable at the election
of those injured by it, ratlier than to
pronounce it utterly null and void,
where there was jurisdiction and all
statute provisions plainly imperative
were followed. On the question of
confirmation of the sale only those
questions which the statute treats as
material can be considered by the
court.
5. Stipra, § 1212; Le Moyne v.
Quimby, 70 111. 399; Ives v. Ashley,
97 Mass. 198; 2 Sugd. V. & P. 687,
note.
6. Hale v. Marquette, 69 Towa, 377,
28 N. W. 647. Where an administra-
tor sold land without leave of sourt
and applied the purchase-money to
the payment of debts, the purcliascr
was subrogated to the riglits of tlie
creditors who liiMJ been thiin paid, but
IGIG
CHAP. TI-l STATT'TE SALES, ETC., OF REAL ESTATE.
§ 151G
§ 1515a. The same Subject; Principal and Ancillary Jurisdic-
tions.
It is no objection to an order for the statutory sale of real estate
in one State to pay debts, that there was personal property in the
State of principal administration sufficient for their payment ; for
courts and creditors of the local site are not compelled to forego
thus their just advantage.''
§ 1516. Judicial License to Mortgage Real Estate for Certain
Purposes.
In connection with the payment of debts, legacies, and charges,
no further lien was allowed him.
Duncan v, Sainey, 108 Ind. 579, 58
Am. Rep. 71, 9 N. E. 470.
After long lapse of time from the
sale under a license, every reasonable
intendment will be resorted to, to
uphold the regularity of the proceed-
ings. Starr v. Brewer, 58 Vt. 24, 3
A. 479. An action to set aside such
a sale as fraudulent and void and to
compel the fiduciary to perform a
trust charged on the land is a matter
of equity jurisdiction. Caldwell v.
Caldwell, 45 Ohio St. 512, 15 N.^E.
297. Formal defects cured by retro-
spective legislation. 66 Iowa, 552,
24 N. W. 50. Under the Ohio stat-
ute, the costs and expenses of the
sale of incumbered real estate take
precedence of mortgages and other
liens. 42 Ohio St. 53.
As to the adjustment of assessed
taxes, see Fessenden's Appeal, 77 Me.
98.
There are many other decisions
under this head, involving mere stat-
ute construction for the most part.
7. Lawrence's Appeal, 49 Conn. 411.
An executor before selling ought to
make sure that he has complied with
the lex rei sitae as to probate of the
will. 60 Tex. 353. Sometimes a
representative who pays debts of the
estate, may fairly be subrogated to
the rights of the creditors, and have
land sold for his reimbursement.
Denton v. Tyson, 118 N. C. 542, 24
S. E. 116. But a sale of land for the
payment of debts whose lien under
the local statute has expired, is a
nullity. 178 Penn. St. 245, 56 Am.
St. Rep. 760, 35 A. 1047, 36 L. R. A.
834. As to a power to sell land in
another jurisdiction, see Smith v. Ab-
bott, 81 A. 115, 79 N. J. Eq. 117.
A foreign administrator cannot sell
nor mortgage, nor even assign a mort-
gage on land in a local jurisdiction.
Wyman v. Porter, 79 A. 371, 108 Me.
110. But as to probating a foreign
will, under local statute, where the
will confers a power on the executor,
cf. Illinois Steel Co. v. Konkel, 131
N. W. 848, 146 Wis. 556, 572.
Fraud or mistake inducing a bid
relievable. Holmes v. Holmes, 78 S.
E. 903. 140 Ga. 217. Mortgage lien
paid from proceeds of sale in 79 S. E.
561, 140 Ga. 699.
102
1617
ISlTa
EXECUTORS AA'D ADMINISTRATORS.
[part VI.
or for other stated purposes, a personal represent-ative may, as
some American statutes provide, be licensed to mortgage real estate
of bis decedent.^ But tbe statute sbould be explicit, for the right
to sell does not imply the right to mortgage the realty ; ^ nor upon
an application for a license to sell should a license to mortgage be
granted/
§ 1517. Levy of Execution obtained against the Representative.
In some States, lands may be subjected to the payment of claims
against the estate, by levying thereon an execution obtained against
the personal representative.^
§ 1517a. Discretion to Sell under Will.
Discretionary power to sell land for payment of debts and lega-
cies is sometimes conferred by will,^ and such a power is to be
strictly construed. Such a discretionary power, when thus con-
ferred, does not deprive the representative of his statute right to
sell for payment of debts pursuant to statute provisions.*
8. Mass. Pub. Stats, c. 134, §§ 19,
20. These statutes are quite strict in
expression, and rarely apply in favor
of a general administrator; the li-
cense to sell enabling him sufficiently
to discharge his official functions.
9. See 114 Penn. St. 618, 8 A. 2;
162 111. 232, 44 X. E. 499; Allen v.
Ruddell, 51 S. C. 366, 29 S. E. 198.
If an administrator, under a license
from a judge of probate, sells and
conveys an equity of redemption in
lands whereof he is seized of the un-
incumbered fee, nothing passes by his
deed. Bradley v. Simonds, 61 N. H.
369. But a mortgagor's equity of
redemption is liable to sale; his lands
after his death may be sold subject
to the incumbrances he created. 67
Ala. 508.
1. 145 Ind. 281, 44 N. E. 467.
If an executor has autlmrity to
IG
mortgage real estate under an ex-
press power contained in the will, he
may execute a mortgage in conform-
ity, without procuring an order from
the court; and the lien of such a
mortgage mil be beneficially upheld.
Iowa Co. v. Holdenbaum, 86 Iowa, 1,
52 N. W. 550.
2. 4 Allen, 417; 5 Watts, 367; 14
Me. 320. But that course is not uni-
versally permitted in this country.
See 16 111. 318; Wms. Exrs. 651, Per-
kins's note.
3. See Harrison v. Donny, 77 A.
837, 113 Md. 509; Ranhofer Realty
Co., 128 N. Y. S. 230, 128 N. Y. S.
686; Hanson v. Hanson, 127 N. W.
1032, 149 Iowa 82 ; Coles v. Jamer.son,
71 S. E. 618, 112 Va. 311; Haggin v.
Straus, 146 S. W. 391, 148 Ky. 140.
4. Personeni v. Goodale, 92 N. E.
7r,4. 100 N. Y. 323.
18
PART VII.
ACCOUNTING AND ALLOWAI^CES.
CHAPTER I.
ACCOUNTS OF EXECUTORS AND ADMINISTRATORS,
§ 1518. Obligation to keep Accounts; Equitable Jurisdiction in
England.
An executor or administrator is bound to keep clear, distinct.
and accurate accounts of his management of the estate committed
to him, like any trustee, and his accounts ought in some way to be
open to the inspection of persons interested in the estate.^ Upon
the analogies of trusteeship, English courts of equity long exercised
a jurisdiction over such matters, while the powers of spiritual
tribunals appeared inadequate either for compelling the personal
representative to administer the estate or to disclose the course of
his dealings with it. Among the various functions of chancery,
therefore, has been that of entertaining a bill of discovery against
the personal representative, and forcing him to set forth an account
of the assets and the manner in which he has applied them.^ Upon
the admitted justice and policy of such coercion, and the confessed
inadequacy of all other tribunals to apply it, the lord chancellors
firmly rested their authority. Nor did they defer to the ordinary
himself in these proceedings; for a bill might be brought in chan-
cery, for the discovery of assets, before a will had been proved in
the spiritual courts, and, indeed, while probate litigation was pend-
ing ; they did not deem it needful to wait until an executor had re-
ceived his letters testamentary, provided a trust of some sort could
1. Freeman v. Fairlee, 3 Mer. 43; Brooks v. Oliver, Ambl. 406; Wma.
Perry Trusts, § 821; Rhett v. ^Masoii, Exrs. 3005, 2006; Story Eq. Jur.
18 Gratt. 541. § 534.
2. Howard v. Howard, 1 Vern. 134;
1619
§ 1519 EXECUTORS AXD ADMINISTKATORS. [PAET VII.
be alleged and proved against him ; and even thougli an adminis-
trator's accounts had been passed and distribution ordered in the
ecclesiastical forum, chancery might at discretion re-investigate
and direct an accounting de novo.^
§ 1519. The same Subject; Creditors' Bills, etc.; English Prac-
tice.
Proceedings of this character were usually brought by what was
known as a creditors' bill. One or more creditors of the estate
would file a bill in chancery on behalf of themselves and all others
who might be brought in under the decree, with the intent of pre-
venting any undue preferences by the executor or administrator
in the payment of claims, and causing all the assets to be brought
in and appropriated in a due course of settlement.* If assets were
admitted by the representative, and the petitioner's debt proved,
immediate payment therefor was ordered ; ^ otherwise, a general
account of the estate, and all debts and claims upon it, was taken
against the executor or administrator, and an appropriation of the
fund directed accordingly.^ As one creditor might thus institute
proceedings which would bring in all the other creditors besides, so
one or more legatees or distributees might, on behalf of themselves
and all others similarly concerned, invoke the aid of chancery with
corresponding effect.^ And yet, complicated and costly as might
be the process for working out such results, none were conclusively
bound by the final decree, who had not been brought within the
scope of the suit ; and absent creditors, legatees or distributees, who
had been guilty of no laches in failing to respond and becoming
parties to the bill in equity, might afterwards assert their claims,
3. 2 Vern. 47, 49; Phippa v. Stow- Exrs. 2006, noto; Coope v. Carter, 2
ard, 1 Atk. 285; 2 Chanc. Cas. 198. De G. M. & G. 292.
Some wilful ne{»lcct or default with 4. See supra, § 1437.
respect to assets was usually, how- 5. Wood<,'ate v. Field. 2 Hare, 211.
ever, to be allej^ed and shown, as the 6. Wins. M\rs. 2007; 1 Rusa. & My.
f.TOund of invoking; chancery reme- 347.
dies in cases of this kind. Wms. 7 lb.
1620
CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 1310
not, indeed, against the executor or administrator himself, but for
contribution from the creditors, legatees, or distributees, who had
obtained at much cost what they had supposed their own.^
The natural tendency of all this must have been, to make prac-
tical waste of the assets, while theoretically assuming to save thein ;
to bury the better part of an estate in a wholesale litigation, lest
one party should be preferred. Under English enactments during
the reign of Victoria, some of the most serious objections to these
prolix and costly proceedings were removed ; the creditor, legatee,
or distributee who petitions, has now become, in a measure, the
master of his own suit, pending a decree, and need not serve the
others in interest ; chancery exercises authority with apter discre-
tion ; and a suit may more readily terminate, as such suits often do,
in the settlement or compromise of the petitioner's individual de-
mand, the proceedings for administration and a full account in
chancery being consequently dropped.' Nevertheless, the English
equity courts are still much exercised with creditors' bills and suits
for administration ; ^ and, as incidental thereto, the taxation of
costs,^ appears to be still an absorbing cause of dispute. And, after
8. David v. Frowd, 1 My. & K. 200 ; ant with the representative then in
Wms. Exrs. 1450, 2008. Members of office. Wms. Exrs. 2014; Holland v.
a class only continojently entitled to Prior, 1 My. & K. 237. And as to
a benefit under the will cannot main- co-executors, see L. R. 10 Ch. 464.
tain an administration suit. Clowes The suit may be brought still on be-
V. Hilliard, 25 W. R. 224. half of other creditors, etc. Eyre v.
9. Stats. 15 & 16 Vict. c. 86; 22 & Cox, 24 W. R. 317. And, under some
23 Vict. c. 35; 2 Hare, 213; Wms. circumstances, must be. 24 W. R.
Exrs. 2008 et seq. See also equitable 269.
remedies, post. And see Nayler v. 2. See e. g., among recently re-
Blount, 27 W. R. 865; Laming v. ported English cases, involving ques-
Oee, 27 W. R. 227; Wollaston v. Wol- tions of costs, etc., L. R. 10 Ch. D.
laston, L. R. 7 Ch. D. 58. 468; L. R. I Ch. D. 33, 176; 26 W.
1. In Wms. Exrs. 2008 et seq., the R. 165; 29 W. R. 420, 821; Moore
subject will be found discussed at v. Dixon, L. R. 15 Ch. D. 566. And
length with numerous citations. as to awarding costs where executors
Where an account of assets is thus had distributed to wrong parties and
sued for, the personal representative returned incorrect accounts, etc., see
of a former representative of the es- 25 W. R. 161; also 24 W. R. 51, as
tate is properly joined as a co-defend- to his error or wilful mistake. Where
1621
§ 1520
EXECUTOES AXD ADMI^'ISTEATOKS.
[PAET VII.
all, though one may get his debt or legacy paid, he cannot very
readily obtain an inspection of the administration accounts.
§ 1520. The same Subject; Creditors' Bills, etc., in American
Practice.
In various instances, few of which are very recent, the equity
courts of American States have entertained bills filed by creditors
and others in interest, who seek an accounting from the executor or
administrator, in connection with the enforcement of their indi-
vidual rights in the disbursement or distribution of the assets.
And, wherever the probata and common-law courts are found in-
competent, in any State, to afford the relief thus sought, a court
of equity, as such courts are usually constituted, may, perhaps,
compel the executor or administrator to account for, administer,
and distribute the property entrusted to him.^
it is probable that the estate will
prove insolvent, the judgment in a
creditor's action should contain pro-
vision for that emergency. 44 L. T.
647. Costs of an administration suit
are sometimes payable out of a par-
ticular fund designated by the will.
44 L. T. 499 ; Sharp v. Lush, L. R. 10
Ch. D. 40, 468; Penny v. Penny, L. R.
11 Ch. D. 440. Interrogatories may
be put to the defendant executor as
to the accounts. 44 L. T. 547.
As to commencing such actions by
next friend on behalf of infants inter-
ested, see 25 W. R. 873. A receiver
may be appointed on motion in cred-
itors' actions. 26 W. R. 434. Of-
ficial referees are also appointed.
See 29 W. R. 821. And see passim,
Wms. Exrs. 2008 et serj.; supra, § 437.
3. Colbert V. Daniel, 32 Ala. 314;
Cram v. Green, 6 Ohio, 429; 2 Hayw.
103; Wright V. Lowe, 2 Mur])h. 354;
Rogers V. King, 8 Paige, 210. This
jurisdiction appears to be reluctantly
tak-pn in most States, if taken at all.
16
Thus, an executor, who was also an
agent or trustee of the decedent dur-
ing his life, cannot, after the final
settlement of his accounts in the or-
phans' court, be called upon to ac-
count separately as a trustee in
equity. Vanmeter v. Jones, 3 N. J.
Eq. 520. And see 66 A. 946 (N. J.
Ch. 1901) where interference is only
allowed for fraud or mistake in the
orphans' court. See also 103 N. Y. S.
410; 105 N. Y. S. 223. An executor
pro forma need only account for the
surplus remaining after paying debts.
2 liar. & J. 191. Order for an ac-
count has, in some cases, been de-
clined after a long interval. 8 Ired.
Eq. 141. Or where it was not al-
leged that insufficient security had
been given by the representative. 2
P. & II. 225. In Morgan v. Rotch, 97
Muss. 396, it is held tliat a suit in
equity, charging the executor with
conduct in violation of his trust, is
not sustainable where he has not yet
rendered a final account in the pro-
22
CHAP. I.] ACCOUNTS OF EXECUTOKS AND ADMINISTRATORS. § 152D
But, in the United States, modern probate practice, as extended
by our local legislation, affords, usually, all the facilities now need-
ful for compelling a duly qualified personal representative to ac-
count for his management of the estate confided to him; and that
by a process comparatively inexpensive and simple, founded upon
the duty he owes under his bond. As we shall presently show, in
detail, the probate court, which controls the appointment and re-
moval in the first instance, has become, in most of the United
States, the competent and convenient primary forum for his ac-
counting; an appeal, of course, lying to the supreme probate and
equity tribunal of the State, as from other probate decrees. The
American rule of the present day is, therefore, with few exceptions,
that the court of chancery, usually, has neither jurisdiction nor
occasion to interfere in the settlement of the estate, and to order
an accounting by an executor or administrator.* And, even as to
one who has resigned or been discharged from his trust, our law
inclines to treat him as one whose accounts should be closed under
probate direction, like a representative who has died in ofiace.''
bate court. And see Garrett v. Stil- 4. Jones v. Irwin, 23 Miss. 361
well, 10 N. J. Eq. 313. Stale demands Morgan v. Rotch, 97 Mass. 396
are not to be reopened. 35 Ark. 137. Walker v. Cheever, 35 N. H. 345
But a bill filed by one who was no Adams v. Adams, 22 Vt. 50; Wms.
party to a final settlement in the Exrs. 2006, note by Perkins. Cf. 10
probate court may treat it as null, N. J. L. 287. Though, as to matters
and invoke a court of equity to com- growing out of the account, such as
pel a full account. 5 Cal. 58, 63 Am. adjusting rights between the repre-
Dec. 82. Legatees and next of kin sentative and the estate, it may be
should not be joined as parties. 53 otherwise. Adams v. Adams, supra.
Md. 550. And a creditor cannot In the United States as well as in
bring a bill to have an account taken England, the common-law courts have
for his own benefit, apart from other no immediate cognizance of the ac-
creditors. 2 N. J. Eq. 133. See 5 counts of executors and administra-
Rand, 195; 3 Sm. & M. 329, 1 Sandf. tors, and cannot compel a perform-
Ch. 399; 3 Johns. Ch. 578; Garvin v. ance of the duty; this being a branch
Stewart, 59 111. 229; Peters v. of probate or equity jurisdiction.
Rhodes, 47 So. 183, 157 Ala. 25 (re- Wms. Exrs. 786, 1931, Perkins's
sort to equity, after a probate ac- note; 1 Xott & M. (S. C.) 587.
counting, to enforce a trust where 5. Cf. Gould v. Hayes, 19 Ala. 438;
the probate court cannot enforce). 8 Sm. & M. 214; 33 Miss. 560. And
1623
f^ 1520
EXECUTORS AND ADMINISTRATORS.
[part VII.
In a few American States, however, where chancery jurisdiction
is plenary, equity and probate courts appear to exercise a sort of
concurrent jurisdiction as to the accounts of executors and admin-
istrators.® And where it becomes necessary to apply to a court of
equity, as, for instance, should the personal representative himself
ask for necessary instructions as to the final distribution under a
will, that court, sometimes — having all parties before it, by means
of personal or substituted service — proceeds to the settlement of
the representative's accounts and a final distribution.^ Convenience
may sometimes dictate such a course ; besides which, the assump-
see 81 N. Y. 573. See also, as to the
bill for accounting from one's pre-
decessor, Stallworth v. Farnham, 64
Ala. 259, 345. And see, as to admin-
istrators de bonis non, supra, § 1408.
6. Ewing V. Moses, 50 Ga. 264;
Marsh v. Richardson, 49 Ala. 431;
Sanderson v. Sanderson, 17 Fla. 820.
As to settling two estates under the
same administrator, see 56 Ala. 486.
As to appellate powers, or those of
review in chancery, where the probate
tribunal has acted, see further, §
1530, post.
7. Daboll V. Field, 9 R. I. 266;
Wms. Exrs. 2006, and note. The Mis-
sissippi code aims, in regulating such
suits, to allow in a single suit, com-
plete justice to be done to all parties,
including creditors, distributees, and
sureties. Buie v. Pollociv, 55 Miss.
309. And see Kent v. Cloyd, 30
Gratt. 555; Dulaney v. Smith, 97 Va.
130, 33 S. E. 533 (collusion in a
fraudulent misappropriation) ; Spall-
holz V. Sheldon, 132 N. Y. S. 560
(fraud discovered) ; Elizalde v. Mur-
phy, 126 P. 978, 163 Cal. 681; Gilli-
gan V. Daly, 80 A. 994, 79 N. J. Eq.
336 (carrying on business without
authority).
The original and inherent jurisdic-
tion of equity, in a State, we may add,
over an executor's or administrator's
accounts, is not to be taken away
by mere implication, whenever a legis-
lature clothes the probate tribunals
with competent powers; nor, even at
this day, is a local probate authority
usually found adequate for adjust-
ing all the questions which may arise
in the course of settling estates, still
less for exercising exclusive jurisdic-
tion in such matters. And yet the
American tendency is, and ought to
be, to favor pre-eminently tlie probate
tribunals as those of primary func-
tions, for dealing with the accounts
of executors and administrators, and
keeping the records of settlement,
and regulating details after its own
simple system; while chancery re-
frains from disturbing these methods,
unless a special complication renders
its intervention desirable, and, on the
whole, discourages costly and burden-
some proceedings out of course by
creditors' bill or otherwise, to the
needless shrinkage of the assets; all
parties aggrieved having ample op-
portunity for redress by taking a di-
rect appeal from the |)roi)ate decree.
1024
CUAP. 1.] ACCOtJJfTS OF EXECUTORS AND ADMINISTRATORS. § 1521
tion of authority by so augiist a tribunal may not, in practice, be
readily disputed. A court of chancery will rarely interfere, how-
ever, where the probate tribunal has already taken cognizance, and
is competent to adjust the account.* Provision exists, in some
States, for removing the settlement of an estate from the probate
to the chancery court,- in certain cases. ^
§ 1521. Ecclesiastical and Probate Jurisdiction of Accounts in
England.
To come to our main subject, namely, ecclesiastical and probate
jurisdiction over the accounting of executors and administrators.
We have seen, that, as to security from executors, neither the spirit-
ual nor the probate court has, in England, been vested with com-
petent powers ; but. that courts of chancery rather have exercised
whatever plenary authority was available ; ^ also, that administra-
tor's bonds, under the latest acts, do not enforce the duty of a pro-
bate accounting very strenuously."
One may readily infer, therefore, that jurisdiction over the ac-
counting of executors and administrators, as exerted by the Eng-
lish probate or ecclesiastical tribunals, is, in character, quite sec-
ondary to that of chancery. It is said, that neither an executor nor
administrator can be cited by a probate tribunal ex officio to ac-
<:ount after he has exhibited an inventory, but it must be at the
instance of an interested party. But those interested, and those
with even the appearance of an interest, may, we have seen, require
an inventory to be produced.^ Whether this should be equally true
of proceedings for account or not, it is clear, that, at the instance
of a legatee, or next of kin, or creditor, the representative was
compelled to account before the ordinary, while the probate tribu-
8. Seymour v. Seymour, 4 Johns. 1. Supra, § 1137; Wms. Exrs. 237.
409. 2. Acts 31 Hen. VIII. c. 5; 22 & 23
9. Marsh V. Richardson, 49 Ala. 431. Car. II. c. 10; 20 & 21 Vict. c. 77;
That the probate court in this State Wms. Exrs. 529-533; supra, § 1139.
is a court of general jurisdiction for 3. Wms. Exrs. 2057; 1 Salk. 315,
the settlement of administration ac- 316; 3 Atk. 253, by Lord Hardwicke;
counts, see 65 Ala. 16. Wainford v. Barker, 1 Ld. Raym. 232.
1625
§ 1521 EXECUTOES A^'D ADMIXISTEATOES. [PAKT VII.
nal was an ecclesiastical one. But, although a creditor might, by
ihis course, gain an insight into the condition of the assets, in aid
of proceedings in the common-law court to enforce his rights, pro-
hate tribunals had no authority to award payment of his debt ; and
hence, the bill in equity, praying for a discovery of assets and ad-
ministration, was more commonly brought.* Legatees and dis-
tributees were better off; for legacies and distributive shares might
fonneriy be sued for in the ecclesiastical forum; and, indeed, it
was hy a sort of invasion of the spiritual jurisdiction that English
chancery courts first began to take cognizance of such rights ; but
the exclusiveness of chancery authority in this latter respect, as
finally conceded by the English parliament, plainly indicates how
inadequate must have been the relief which an ecclesiastical forum
in that country was ever competent to afford. °
Upon petition for an account before the probate or ecclesiastical
forum, the creditors, legatees, and all others having an interest
must be cited to be present ; as, otherwise, an account rendered in
their absence will not bind them. At the hearing, whether all such
parties appear or not, the judge shall proceed, and the account, as
determined, shall be final.® Inventory and account, in modem
English practice, are usually returned at the same time ; for neither
inventory nor account is produced unless called for; and if inter-
ested parties seek the one they probably request the other. But if
the personal representative exhibits personally his inventory and
account, and takes his oath to the truth thereof, he has performed
his whole duty by creditors ; for they are not permitted to contest
items, but his oath, given under the penalties of perjury, concludes
the matter here.^ If, however, a citation to account in the eccles-
4. Supra, § 519; Wms. Exrs. 2058, act 20 & 21 Vict. c. 77, § 23, the new
2061; Toller, 495; Burn Eccl. Law, court of probate can entertain no
487. suits for legacies nor for the distri-
5. Decks V. Strutt, 5 T. R. 692. It bution of the residue. lb.
was Lord Nottingham who first ex- 6. 4 Burn Eccl. Law, 487; Wnis.
tended the system of equitable relief Exrs. 2058.
to legatees. Wms. Exrs. 2061. Under 7. 2 Add. 330 ; 4 Burn Eccl. Law,
1G26
CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 1521
iastical forum was given by a legatee, or next of kin, the account,
as rendered, could be objected to or disproved ; and, notwithstand-
ing his general oath, the personal representative might be put to
liis proof of each item.^ Wherever it appeared, upon due investiga-
tion, that the account rendered was true and perfect, however, the
court decreed its validity; and, as to all interested parties cited in,
the decree became final, and no further suit could be entertained.*
It might happen that, while one creditor resorted thus to the
probate tribunal, another would invoke the ampler relief afforded
by chancery.^ But chancery judges would not permit creditors,
legatees, or next of kin to use the process of the spiritual courts in
aid of an administration suit; and wherever one who had brought
his bill in chancery prayed for an inventory under a probate cita-
tion, he was compelled to make his choice which tribunal to proceed
in.^
As the new English court of probate is invested with the same
authority as the spiritual courts formerly exercised in such mat-
ters, but under nominal restrictions even greater as to affording
practical relief to those entitled to ask for an account, the suprem-
acy of the English chancery, in litigation which relates to the dis-
covery and administration of assets, appears to have become more
firmly established than ever.^ That returning either inventory or
account to a probate tribunal has become a matter of indifference,
appears conceded by the very form of the bond now prescribed by
the English probate court ; * it is a virtual assent that courts of
488 : Wms. Exrs. 2060. As to whether 9. Wms. Exrs. 2060 ; 4 Burn Eccl.
objections could be entertained to an Law, 487.
inventory, there has been some var- 1. 2 Cas. Temp. Lee, 561.
iance in the decisions. Wms. Exrs. 2. 2 Cas. Temp. Lee, 31, 134, 268;
982, 2060. Wms. Exrs. 2061.
8. The rule was that for payments 3. See stat. 20 & 21 Vict. c. 77;
made bona fide in sums less than 40s. Wms. Exrs. 290, 292, 2062.
the oath of the executor or adrainis- 4. See supra, §§ 137-139; Wms.
trator was admitted as due proof, but Exrs. 533. The condition of bond
for payment of larger sums he liad to (less strict than that formerly stated)
produce vouchers. 4 Burn Eccl. Law, is that the principal shall make and
488; Wms. Exrs. 2060. exhibit an inventory and render an
1627
§ 1522 EXECUTORS AND ADMINISTEATORSc [pART VII.
equity shall direct and supervise the practical administration and
settlement of contentious estates, and that non-contentious business
may be privately adjusted.
§ 1522. Probate Jurisdiction of Accounts in the United States.
In this country, where courts of probate are temporal tribunals,
and a harmonious judicial system prevails in the several States,
the primary and usual forum of accounting is the local probate
court, whence the executor or administrator received his creden-
tials. To this tribunal, by the American system, regular accounts
should be returned by the personal representative, as well as his
. inventory. The bond, which neither testacy nor intestacy exempts.
one from furnishing, obliges the representative to return an account
to the probate court, not upon request, but within stated and regu-
lar periods, until the administration is closed; and to this condi-
tion the sureties of the representative, if there be such, stand like-
wise bound. ^ The system of probate accounting is simple, exact,
and, except in contentious business, attended with little cost. The
probate accounts of each deceased person's estate become matter of
public record. And, while tlie parties interested may, jDcrhaps,
be suffered to close up an estate privately, provided those entitled
to the surplus all agree, and all creditors' claims and legacies are
settled, together with charges, the failure to render one's probate
account is, nevertheless, a breach of the bond, and any dissatisfied
party in interest may avail himself of it.® Under such conditions
account of administration "whenever tory and acconiit is rovocablc. 170
required by late so to do." lb. We Mass. 506, 49 N. K. 916.
have seen that, even with the old form A private arranp;onient botwoen
of V)ond, tho practice of returning an some of the distribiitcos does not dis-
invcntory had fallen into disuse in cliargo the administrator as afjainst
tiiat country. Hupra. § 1229. any one wlio was not a party to the
5. tiuprn, § 1140. Sucii is the usual afrrccnieiit; nor as against a deceased
tenor of legislation in American I)arty in interest whose own represen-
tStates. tative did not enter into it. Smilie
6. McKim v. Tlarwood. 129 Mass. v. Siler, 35 Ala. 88. And distribu-
75. An agrecnieiit to waive invcii- tees may generally, at election, hold
1028
CHAP. I.] ACCOUNTS OF EXECFTOHS AXD AUMINISTRATOES. § 1522
it is inilikely that an estate will be settled out of court without
affording to all concerned a fair opportunity of inspecting the ad-
ministration accounts, unless, at all events, their respective claims
are fully and promptly settled.
If, in fact, an executor or administrator settles privately Tntb
the parties interested, rendering no final account to the probate
court, such settlement, though often perhaps conveniently made,
the administrator to a strict statutory
accounting. Stewart v. Stewart, 31
Ala. 207. Even if the assets were all
used in preferred charges, one is ac-
countable. Griffin v. Simpson, 11 Ire.
126. Tf the representative claims that
the petitioner for an account has re-
leased him, the surrogate may pass
upon the question of the validity of
such release. 41 Hun, 95 ; 4 Dem.
366. That an account filed several
years before had not been acted upon
does not excuse the failure to render
periodical accounts as the statute re-
quires. 44 Ark. 509.
Next of kin and residuaries may
petition to compel an account. Hobbs
V. Craige, 1 Ired. L. 332. So may a
creditor or legatee. Harris v. Ely,
25 N. Y. 138; Wever v. Marvin, 14
Barb. 376. But see Freeman v.
Rhodes, 3 Sm. & M. 329. Concerning
devisees, see 4 Desau. 330. Trustees
under a testamentary trust can com-
pel an accounting but not the cestui
que trust. Attwill v. Dole, 67 A. 403,
74 N. H. 300. As to reasonable delay
in proceedings for account, see 124
N. Y. S. 864 (favored where all the
parties concerned, including the rep-
resentative himself, are readily
reached). Cf. 190 F. 62. And as to
a cestui que trust or infant, whose
trustee or guardian is one of the ex-
ecutors, see also 1 Sandf. Ch. 399.
The representative is bound to account
upon the application of any one in-
terested in the estate, and if the ap-
plicant has no interest, tliat is a
sufficient defence before the probate
tribunal. Becker v. Hager, 8 How.
(N. Y.) Pr. 68. But relief by in-
junction is not to be granted on tliis
ground. lb. See Okeson's Appeal, 2
Grant (Pa.) 303.
Delay in settling accounts is len-
iently regarded by some American
courts where no fraud or misconduct
has intervened. Jones v. Williams. 2
Call, 102. But correct accounts
should have been kept and exhibited
to any interested party desiring to
see them. Rhett v. Mason, 18 Gratt.
541. As to the duty of probate ac-
counting, notwithstanding a pending
chancery suit, see Jones v. Jones, 41
Md. 354. Breach of the bond, how
cured before suit brought on it.
McKim V. Harwood, 129 Mass. 75.
A sherifT or ex officio administra-
tor may be cited in to account. Mc-
Laughlin V. Nelms, 9 Ala. 925. As
to accounting by the representative
of a deceased representative, see
Schenck v. Schenck, 3 X. J. L. (2
Pen.) 562; supra, § 1408.
See, in general, Sellers v. Sellers,
35 Ala. 235; Hillman v. Stephens, 16
N. Y. 278; Whiteside v. Whiteside,
20 Penn. St. 473.
1629
§ 1522 EXECUTOSS AND ADMINISTKATOES. [PArtT VII.
will not absolve him from compliance with the law^; and he maj
be cited into court, and compelled to render account there, even
though he produces the receipts of all residuary legatees or dis-
tributees acknowledging the payment of their respective shares
in fulL^ A settlement out of court is not presumed to intend dis-
pensing with accounting; and, even if it did, not to account is a
breach of the conditions annexed to the appointment. ISTot only
are representatives liable to suit on their official bond if, on being
cited in, they neglect to render accounts of administration, but,
under some American codes, they may be indicted for delinquency
in this respect,^ or compelled to pay a fine ; ^ and one may be
removed from his trust for failing to account correctly on cita-
tion.^ Any one showing a prima facie right may require the ac-
count.^ In various States, moreover, the probate court may, of
its own motion, and without application of an interested party,
make an order citing in the delinquent representative.^ And thus
American probate practice is seen to be quite difi^erent from that
wbieli prevails in England.
But an executor or administrator is not bound to render either
7. Bard v. Wood, 3 Met. 74; Harris son v. Jaques, 1 Greenl. 139: McKim
V. Ely, 25 N. Y. 138; Clark v. Clay, v. Harwood, 129 Mass. 75; Barcalow,
11 Fost, 393. Matter of, 29 N. J, Eq. 282. And,
8. See State v. Parrish, 4 Humph. upon showing the court that he has
285; Davis v. Harper, 54 Ga. 180; 14 received no assets, he is excused; or.
La. Ann. 779. He may be imprisoned if good cause be furnished for further
for contumacy. 14 La. Ann. 779. delay, the court is usually empowered
9. Collins V. Hollier, 13 La. Ann. to grant it. Citation to the rcpre-
585. sentative is a matter of right. Smith
1. See, as to removal, supra, § 1154. v. Black, 9 Penn. St. 308.
2. 14 Phila. 310, 322, 325. See 141 Neglect of the representative to
N. Y. S. 179 (creditor of a distribu- make answer to a demand to pay
tee). sums due by way of distribution may
3. Witman'a Appeal, 28 Penn. St. be considered a refusal to account.
376: Campbell, Re, 12 Wis. 369. But Cutter v. Currier, 54 Me. 81.
one is not considered as refusing or Where the representative has ap-
neglecting to account, witliin tlie peared in answer to a citation, he is
usual meaning of the American stat- affected with knowledge of all subse-
utes. until lie has been cited by the quest proceedings. Duffy v. Bu-
piolnite court for tbat jmrpose. Nel- chanan, 8 Ala. 27.
1030
CHAP. 1.] ACCOUNTS OF EXECUTOKS AND ADMINISTRATORS. § 1523
account or inventory, it is held, where no property has come to his
hands/ And where special circumstances, such as lapse of time,
civil commotion, or the assent of interested parties, have rendered
an exact accounting impracticable while imputing no blame to the
representative, the court will be lenient as to particulars.^ Xor is
it to be supposed, in general, that any one but a creditor or other
party in interest can call the representative to account, by recourse
to the court.^
§ 1523. Citation of Parties interested in the Account, in Ameri-
can Probate Practice; their Assent to its Allowance.
In American probate practice, the executor or administrator
presents his account to the register, who issues a citation directing
next of kin, creditors, legatees, and all other persons interested in
the estate, to appear before the probate court at a day stated, and
show cause, if any they have, against its allowance. Citation is
usually by newspaper publication, and the representative must
obey the mandate as issued to him. But, following the distinctions
to be noticed between partial accounts and the final account, those
of the former kind are not unfrequently passed upon by the judge
without formal citation, the rights of interested parties being more
sedulously protected at the final rendering; nor is a probate court
always left without some statute discretion as to requiring a cita-
tion at all. Citation may be dispensed with when all persons
interested (or, more particularly, those entitled to the surplus)
4. Walker v. Hall. 1 Pick. 20. Phila. 284. He may be required to
The mere filing of a statement under file a suitable account in place of a
oath that the representative neither defective one which is unfit to be
received nor paid out anything is not passed upon. Hirschfield v. Cross, 67
a settlement which relieves him and Cal. 661, 8 P. 507.
his sureties on the bond, where the 6. Policy favors bringing in all
court made no order. 88 Fed. 573. other residuary parties where one of
5. Clark v. Eubank, 80 Ala. 584. them seeks accounting. Hanvy v.
Where the representative, without Moore, 79 S. E. 772, 140 Ga. 691;
good excuse, states his account un- Nelson v. Errickson, 87 A. 116, 81
intelligibly he may be ordered to re- N. J. Eq. 226 (bill in equity).
state it at his own expense. 13
1631
1523
EXECUTOES AXD ADMIXISTEATOES.
[PAET VIL.
express, in writing, tlieir request that the account be allowed with-
out further notice; thereby assenting virtually to its allowance.
But the assent of one or more persons in interest does not conclude
the others, nor impair their own right to be cited in before the
account is allowed.'^
In some States, where one of the persons interested in a final
accounting is an infant, or not sui juris, a special guardian must
be appointed to represent him.^ But, in others, a published cita-
tion appears to dispense practically with other formalities. The
fact, that a probate decree may be voidable as to an infant, does
not, of course, entitle any one else who is interested to invoke such
disability on his own behalf.®
7. A probate citation is usuallly
published once a week for tliree suc-
cessive weeks; the statute require-
ment should be carefully followed.
See 16 Ala. 693. Where notice is
given of an annual or partial settle-
ment, a final decree is improper. 21
Ala. 363. See Scott v. Kennedy, 12
B. Mon. 510; 20 Miss. 649; Probate
Manuals of Smith, Redfield, and Gary,
passim; also the provisions of local
codes. In some States greater form-
ality appears to be pursued. The
account must be first presented to the
judge, accompanied with vouchers; it
must then be examined and stated for
allowance; after which, notice is
given of the term at which it will be
reported for allowance, that all who
are interested may examine the ac-
count as stated, and be prepared to
contest it. See Robinson v. Steele,
r> Ala. 473; Steele v. Morrison, 4
Dana, 617; 5 Hayw. 261; 5 Dem. 21,
216. We have seen that claims upon
an estate are in some States regu-
larly filed for allowance in court.
Supra, § 1420. It is customary, how-
ever, in New England States, and in
many others, for the executor or ad-
ministrator to pay and keep his own
vouchers for payments, presenting
such vouchers for the court's inspec-
tion upon any controversy.
8. Gunning v. Lockman, 3 Redf.
273.
9. Hutton V. Williams. 60 Ala. 107.
In some States accessible parties,
such as a distributee residing within
the county, are entitled to personal
service of the notice of final settle-
ment. 34 Miss. 322.
Neglect of legatees, etc., to attend
at the final settlement, enables the
representative to proceed ex parte, as
to those who fail to appear. 4 Paige,
102. Notice is not a pre-requisite to
probate jurisdiction, and the want of
notice may be cured by the voluntary
appearance of tlie parties interested.
35 Ala. 295.
Creditors of distributees are not
parties in interest wlio may object to
the representative's account. 40 Ala.
289.
1632
CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 1525
§ 1524. The Form of Administration Account.
In his probate account, it is usual for tlie executor or adminis-
trator, hy way of general statement, to charge himself with the
amount of assets which have come to his hands, and ask to be
allowed for the amount of all debts and claims paid by him,
together with the expenses of administration; the balance shown,
if any, going over to the next account, or remaining finally for dis-
tribution. A convenient form, adopted in various States, makes
the general statement on the face of the account refer for details
to schedule A. and schedule B. ; schedule A. sets forth the items
with which the representative charges himself, making the inven-
tory valuation of personal property the first item in a first account,
and the balance from the next preceding account the first item
in each succeeding account; schedule B. details the payments, the
losses upon the inventory valuation, and charges. The usual rules
of single-entry bookkeeping are followed, as to entering dates, par-
ties, sums received or paid, and the like. In many States, blanks
are supplied at the probate registry for the purposes of probate
accounts.^
Tbe proper number of each administration account is stated on
its face; a final account, moreover, should plainly purport to bo
such ; ^ but perhaps an account, appearing on its face to be a final
one, will be deemed such, although not so styled in the caption.^
§ 1525. Authentication and Proof of Account in American Pro-
bate Practice.
A probate account is usually submitted on oath by the executor
or administrator. This oath, to the effect that the account is just
and true, is administered in open court by the judge of probate,
according to the more exact practice ; current legislation, however,
tends to facilitate such business, where the judge's duties are oner-
ous, by permitting the oath not only to be taken out of court, but
1. See Smith Probate Guide, 165. 3. Stevenson v. Phillips, 21 N. J.
2. Bennett v. Hannifin, 87 111. 31. L. 77.
103 1P)33
§ 1525 EXECUTOES AXD ADMIXISTEATOES. [p.\IlT VII.
to be administered bj a justice of the peace or notary.* Wliether
tbe oath to the account is administered by the judge or not, hi8
decree of approval is generally essential, before its formal allow-
ance.
Much of this accounting is non-contentious and formal ; and with
the rendering of his account, thus sworn to, together with an affi-
davit that the citation to interested parties has been duly served,
if citation was ordered, or, instead, their written assent, the duty
of the executor or administrator becomes fulfilled. But the judge
of probate may at discretion scrutinize the account, ask proof as
to particular items, and ascertain judicially that the account is
correct before allowing it.^ And if parties interested appear and
object to its allowance as presented,® a fair hearing should be given
them. The court may allow, disallow, or order the accountant to
charge himself with sums received which should have been entered,
and practically require a restatement of the account, with proper
corrections, as justice may require; though as to compelling such
restatement, independently of a clear statute authority, the power
of a probate judge may be questioned.^ The executor or adminis-
4. See Gardner v. Gardner, 7 Paige, 7. The hearing before a judge of
112. probate takes usually the course in-
5. Especially if the rights of in- dicated in the text; the procedure
fants or absentees are concerned. being flexible, and the practical ob-
Gardncr v. Gardner, 7 Paige, 112. ject to secure a correct account and
6. Tlie probate court may proceed settlement; and the representative
to determine whether a party who himself, as well as the parties in in-
objects to an account has any interest terest, usually acquiescing in tiie de-
in the estate, notwithstanding such cision of the judge. But it is held
party's sworn statement that he has that an executor or administrator
an interest. Garwood v. Garwood, 29 cannot be compelled to conform his
Cal. 514; Halleck's Estate, 49 Cal. return under oath to the views of the
111. The interest should be alleged court; that it is for the reprcsenta-
of record. 2 Harring. 273. And see tive to make returns, and for the
38 La. Ann. 830. Next of kin, court to judge of their effect. 40
though resident abroad, have a status. Miss. 704. But the court may have
65 N. E. 561, 172 N. Y. 547, 63 L. R. a correction made by reference or
A. 95. See Balfe v. Tilton, 198 F. otherwise where the representative
704 (validity of releases executed by does not correct the account. 41 Miss,
complainant). 411.
1634
CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATOBS. § 1525
trator, as various local codes declare, may be examined on oath
before the court, upon any specific matter relating to his accounts ; *
and the party at whose instance interrogatories have been proposed
to him has a right to offer evidence to disporve his answers.^ As
in the old ecclesiastical practice, the executor or administrator is
a competent witness to small charges; ^ but larger items objected
to he ought to support by vouchers or other extraneous proof.^
One money standard, and that the prevalent and legal one, ought
to regTdate the whole accounting.^
Hearings before a judge of probate upon an administration ac-
count are generally quite informal ; and issues are raised, and
questions put and answered, regardless of technical rules, the judge
seeking to elicit truth upon a summary hearing, that he may decide
correctly and quickly. Oral testimony is generally admitted, and
explanations are made by the representative, often without being
sworn at all. Where, however, disputants insist upon it, the rules
of judicial investigation are more strictly observed ; the represen-
tative is put upon oath as to items ; * and, if chancery precedents
be favored, those surcharging an account should specify the par-
ticular items objectionable, and issues be framed accordingly.^
8. Stearns v. Brown, 1 Pick. 530; Glynn, 26 Cal. 420. Upon an account-
Hammond V. Hammond, 2 Bland, 306 ; ing, payments made cannot be re-
44 Mich. 57, 6 N. W. 115. And see jected, because neither the accounts
Ogilvie V. Ogilvie, 1 Bradf. 356. The nor the oath show to whom the pay-
duly verified administration account ments were made; but the testimony
is prima facie correct. 4 Redf. (N. of the representative is admissible on
Y.) 265. this point. Nichols, Re, 4 Eedf. (N.
9. Higbee v. Bacon, 8 Pick. 484; Y.) 288.
Wade V. Lobdell, 4 Gush. 510; Smith 4. Rathbone's Estate, 44 Mich. 57,
Prob. Pract. 183. 6 N. W. 115; Stearns v. Brown, 1
1. Bailey v. Blanchard, 12 Pick. Pick. 530.
166. Charges " not exceeding forty 5. See Tanner v. Skinner, 11 Bush,
shillings" (or, perhaps, five dollars) 120. But this rule is flexible as ap-
may be thus proved. plied. Gardner v. Gardner, 7 Paige,
2. Hall V. Hall, 1 Mass. 101; 19 112; Buchan v. Rintoul, 70 N. Y. 1.
Tex. 317; 12 La. Ann. 537; 2 Dev. & An account may be restated before
B. Eq. 325; 63 Cal. 349. allowance, so as to separate items
3. See 2 Call, 190; Magraw v. Mc- improperly blended, and include
1635
1525
EXECUTOKS AND ADMIAISTKATORS.
[part VII.
But an examination is not usually confined to written interroga-
tories and answers, though it may be thus conducted ; and even
should the account be regularly audited, strict proof of items may
be dispensed with where, from the nature of the case, vouchors
cannot be produced.® In settling an administration account, a pro-
bate or equity court is not usually bound by technical rules of evi-
dence.'
others which were the proper subject
of a surcharge. 174 Penn. St. 628,
34 A. 316.
6. Lidderdale v. Robinson, 2 Brock.
159. Vovichers alone may not be
strictly evidence of payments without
authentication, but they are accepted
usually if not objected to. 2 Dev.
Eq. 137.
7. Sterrett's Appeal, 2 Pa. 419;
Romig's Appeal, 84 Penn. St. 235. In
some States an account in contentious
business is to be made before an
auditor under the probate court's di-
rection, and he will report. Hengst's
Appeal, 23 Penn. St. 413; Pollock,
Re, 3 Redf. 100; Rich, Re, 3 Redf.
177; Tucker v. Tucker, 28 N. J. Eq.
223. An administration account,
audited by commissioners, returned to
court and recorded, is not a conclu-
sive settlement of the estate; either
distributees or the representative him-
self may oppose its acceptance. 90
N. C. 537. The representative claim-
ing credit on settlement for the pay-
ment of a debt has the burden of
proof. 73 Ala. 238. Where a note
given by decedent is produced by one
objecting to the account, the repre-
sentative may sliow that the note has
been paid. 106 Penn. St. 498. Ob-
jections to the account should be
specific. 74 Ala. 332; 87 Ind. 294.
As to burden of proof, see 81 N. E.
294, 195 Mass. 559 (stat.) ; 67 A.
192, 56 S. E. 922, 144 N. C. 257;
local code.
When the disputed account of an
executor or administrator is referred
to an auditor for examination, he
should pass upon the objections filed
to the accounts and no others; the
surrogate or probate judge may allow
further objections to be filed; but, if
the rulings of an auditor are appeal-
able at all from the surrogate or
judge, the questions must at all
events have been first referred to the
surrogate or judge for his decision.
Boughton V. Flint, 74 N. Y. 476. The
probate court need not refer matters
to an auditor where the facts can be
conveniently ascertained and deter-
mined without doing so. Maxwell v.
McClintoek, 10 Penn. St. 237. And
see, as to auditor, 15 Penn. St. 403;
23 Penn. St. 180.
On an accounting, the executor or
administrator may be required to dis-
close the assets of a partnership of
which he and the decedent were mem-
bers when the latter died, although
the interest of the decedent in the
firm is entirely unliquidated. VVood-
rufr V. VVoodniir. 17 Abl). (N. Y.) Pr.
165.
1030
CUAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 152G
§ 1526. Periodical Returns; Partial Accounts and the Final Ac-
count.
Periodical return is part of the American probate system ; a
first account being ordered within a stated time, usually one year
from the date of appointment; and other accounts from time to
time, or, perhaps, annually, until the estate is fully settled.^
Ilenee, as estates may not always be legally wound up within on©
year, a practical distinction between partial accounts and the final
account which closes the administration.®
The rule is, that partial accounts of administration are, espec-
8. Upon the final accountng, the
probate judge or surrogate has gen-
erally a jurisdiction to hear and de-
termine a disputed claim of the ex-
ecutor or administrator himself
againtet the estate; and even though
tlie claim were such that equitable
relief for enforcing it could only be
had in chancery, the right to retain
out of the assets of the estate a sum
of money as belonging or due to him,
1)rings the matter fairly within the
province of the tribunal which passes
upon the account. Boughton v. Flint,
7-1 N. Y. 476 : Kyle v. Kyle, 67 N. Y.
400. See, as to retainer, supra, §
1439. See Watson v. Watson, 58 Md.
442; 62 Cal. 186. Where the repre-
sentative has by retainer satisfied his
own claim against the estate, the pro-
bate court in passing his account has
jurisdiction to inquire into the valid-
ity of the claim, and the legality of
his action in retaining therefor. Kin-
nan V. Wiglit, 39 N. J. Eq. 501. The
excess of commissions allowed on an
intermediate account cannot be ex-
amined by exceptions to a subsequent
account, but if excessive commissions
were allowed, that fact may be con-
eidered in fi.xing their commissions
for subsequent services. 36 N. J. Eq.
515. And see next c.
9. As to requiring annual returns,
see Wellborn v. Rogers, 24 Ga. 558.
The periods for settling accounts are
prescribed in each State by statute,
and accounts are usually to be ren-
dered within a year from the time of
appointment, and afterwards as often
as once a year while the trust con-
tinues; but accounts later than the
first are sometimes left discretionary
with the court. See Mass. Pub. Stats,
c. 144; Musick v. Beebe, 17 Kan. 47.
Wliere assets come to the hands of
the executor or administrator after a
partial account, he is bound to ren-
der a supplementary account, includ-
ing such assets, within a reasonable
time afterwards. Witman's Appeal,
28 Penn. St. 376; Shaffer's Appeal,
46 Penn. St. 131. A representative's
duty to file annual or partial returns
is a statute requirement, and condi-
tions not expressed in the statute
cannot be interpolated. Koon v.
Munro, 11 S. C. 139. Statutes set
special periods for accounting where
the estate is insolvent. Mass. Pub.
Stats, c. 137.
1637
§ 1526
EXECUTOES AXD ADMINISTPATOKS.
[part VII.
ially if rendered without citation, prima facie correct, but nothing
more, and bind no one in interest ; and, on a final settlement, they
mav be so far opened up, without any special application, as to
correct eri'ors therein, whether originating in fraud or misappre-
hension, and although the error was not excepted to when the par-
tial account was rendered, nor when appealed from.^ Former
accounts, too, may be opened up for correction of fraud or mis-
take, upon the filing of subsequent partial accounts, as various local
acts plainly sanction.^ A final account has the force of a final judg-
ment, and is taken to be conclusive, unless appealed from or im-
peached for fraud; while a partial account is only a judgment
de bene esse; for according to such practice, the latter is often ren-
dered ex parte, and without notice to persons interested, and may
be considered as given chiefly for the information of the court, and
the convenience of the personal representative in the management
of the estate.^
1. Coburn v. Loomis, 49 Me. 406;
Clark V. Cress, 20 Iowa, 50; Goodwin
V. Goodwin, 48 Ind. 584; 58 Iowa, 36,
11 N. W. 723; 75 Mo. 204; Picot v.
Biddle, 35 Mo. 29, 86 Am. Dec. 134;
Cavendish v. Fleming, 3 Munf. 198;
Grant v. Hughes, 94 N. C. 231; 37
S. C. 123.
2. Stayner, Re, 33 Ohio St. 481;
Shepley, J., in Sturtevant v. Tallman,
27 Me. 85; Stearns v. Stearns, 1 Pick.
157; Sumrall v. Sumrall, 24 Miss.
258; Stephenson v. Stephenson, 3
Hayw. 123; Mix's Appeal, 35 Conn.
121, 95 Am. Dec. 222.
3. Musick V. Beebe, 17 Kan. 47;
State V. Wilson, 51 Ind. 96; Sheetz v.
Kirtley, 62 Mo. 417, 68 A. 811; Lid-
dell V. McVickar, 6 Hals. 44; Snod-
grass V. Snodgrass, 57 Tenn. 167.
Annual and partial accounts are
peculiarly valuable as serving to
Bhow the representative's liability,
and for keeping the court and inter-
10
ested parties informed of the general
condition of the estate while in pro-
cess of settlement, and ascertaining
whether the representative's bond
should be increased. They afford
prima facie evidence of the facts they
state; and it is proper enough for
interested parties to object, when the
partial account is rendered, to the
allowance of any item therein stated.
Practically, indeed, the rendering of
periodical accounts is often found to
bring dissensions between the repre-
sentative and parties in interest to an
issue before the interests of the estate
have sufTored too far; while executors
and administrators are thus kept to
a diligent and faithful discharge of
their duties, and the judge of pro-
bate may the better pacify or protect
legatees and kindred when they and
the representatives of the estate fail
to harmonize.
38
CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTEATOES. § 1526
But, on the final account, the general fairness of the adminis-
tration comes up properly for a final review. Such an account,
in order to operate as conclusive upon all concerned, can only be
rendered upon due publication of notice to creditors and all per-
sons interested, unless their assent is expressed ; the time for ren-
dering it is when the estate has been fully administered, and not
before, unless one's office for some reason expires sooner; it is
properly for the protection of the representative, and as a final ad-
judication of all controversies in which he is concerned. On this
final account, errors and mistakes in all former accounts may and
should be corrected, once and for all, and improper items stricken
out; and disputes of charge, compensation, and allowance finally
determined ; nor is the allowance of previous partial accounts with-
out notice to legatees or next of kin, conclusive on them, but they
may object on the final account, and the court is bound to consider
evidence from them disproving or reducing former items.'* Errors
which result not from administration bu.t the accounting, are
readily rectified, no real harm resulting.^ This final account, once
examined and approved by the probate court, after due citation,
and not reversed on appeal, operates as a final judgment; it con-
cludes in general all the parties interested, and cannot be re-opened
or annulled in any court, except it be by direct proceedings in pro-
bate, or perhaps in chancery, for fraud or manifest error.®
4. Mix's Appeal, 35 Conn. 121, 95 other items, but not in this. Clem-
Am. Dec. 222; Brazeale v. Brazeale, 9 ent's Appeal, 49 Conn. 519.
Ala. 491; Collins v. Tilton, 58 Ind. 5. See Little v. Little, 161 Mass.
374. The fact that allowance had been 188, 36 N. E. 795.
made by a former judge of the court 6. Austin v. Lamar, 23 Miss. 189;
by a mere approval, without a hear- Brick's Estate, 15 Abb. (N. Y.) Pr.
ing or citation, does not affect the 12. As to appeal, etc., see § 1530,
right to re-open before the subsequent post. See, as to the analogous case of
judge. Collins v. Tilton, ib. And see guardianship accounts, Schoul. Dom.
Bantz V. Bantz, 52 Md. 686. It is no Rel. 3d ed. § 372, and cases cited. And
ground for not correcting an error see Mayo v. Clancy, 57 Miss. 674;
that the item had been allowed upon Seawell v. Buckley, 54 Ala. 592;
appeal from the former and partial Musick v. Beebe, 17 Kan. 47; 105
settlement by a person interested in Iowa, 564, 75 N. W. 482; 144 Mo.
1639
§ 1526
EXECUTORS AXD ADMINISTEATOES.
[tAKT VII.
The broad distinction between partial and final accounts, is not,
however, universally approved in American probate practice of late
years. Thus, in Pennsylvania, where it was formerly usual to
admit exceptions, when a final account was filed, to that or to any
previous probate account, all partial accounts are, under later leg-
islation, rendered, when confirmed absolutely and upon due con-
sideration, and without an appeal, final and conclusive, in regard
258, 46 S. W. 135. A final account
allowed is voidable at the election of
one not duly cited as entitled nor
brought into the account. 54 Miss.
700. In New York practice, a surro-
gate may make an order opening a
final accounting of executors or ad-
ministrators for re-examination, at
least to the extent of correcting
specified errors apparent on the face
of the account; but the power should
be exercised only in rare instances
and with great caution. Decker v.
Elwood, 1 Thomp. & C. (N. Y.) 48;
Strong V. Strong, 3 Redf. 477. Only
a court of equity, and not a probate
court, can open a settled account in
some States. Harris v. Stilwell, 4
S. C. 19. Though such is not the rule.
See § 1528, post. A final accounting
does not bar proceedings for a dis-
tinct trust. 5 Hun, 16; 4 Redf. 180.
The final settlement does not preclude
further inquiry in regard to the assets
of the estate in the hands of the rep-
resentative not accounted for nor
passed upon. McAfee v. Phillips, 25
Ohio St. 374. Cf. 16 Ohio St. 274.
But it concludes as against the rep-
resentative, that what was charged in
the accounting as assets was such.
McDonald v. McDonald, 50 Ala. 26.
And a final account regularly al-
lowed is presumed to embrace every-
thing which was the proper subject
of inquiry. Brown v. Brown, 53
Barb. 217. See Davis v. Cowden, 20
Pick. 510; Sever v. Russell, 4 Gush.
518.
There are various State enact-
ments which relate to the subject of
opening and reviewing accounts, their
tendency being, however, to conclude
all such controversies in the probate
court and upon appeal in regular
course. See, on this point, 30 Ark.
66; 34 Ark. 117; 50 Ala. 319; 64 Ind.
79. But cf. 14 Fed. R. 93. One who
retains the benefits is not competent
to allege a fraud in the accounts. 81
111. 571. Nor will equity set aside
a settlement because of illegal allow-
ances to the representative where
there is no proof that they were ob-
tained by fraud or misrepresentation.
34 Ark. 63; 54 Mo. 200; 67 Mo. 247,
See as to application by an infant one
year from the time of attaining ma-
jority; also N. Y. Code, conferring
power to reopen in cases of fraud,
newly discovered evidence, clerical
error, or other suflicieiit cause, Til-
den, Re, 198 N. Y. 434. And see
Riley v. Norman, 39 Ark. 158. But
a final settlement is generally con-
clusive, apart from fraud, etc., where
infant distributees in interest are rep-
resented by a guardian ad litem,
Trawick v. Trawick, 67 Ala. 271.
Consult local codes on this point.
IG-IO
CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 1526
to all that they contain/ though not as to what may liave been re-
served for a future account.^ In Massachusetts, too, and some other
States, the policy is manifestly to discourage, at all events, the re-
opening of disputes which were actually heard and determined on
one account, when later accounts are exhibited.® But, in order to
give a conclusiveness to partial accounts, it appears proper not only
that no appeal should be taken, but also that the account shouhl
have been allowed after the usual citation to parties interested,
or their appearance or waiver of notice ; for, as in a final account,
the decree of allowance on a partial account ought not to bind those
who were not made parties to the accounting.^
7. Rhoad's Appeal, 39 Penn. St. 186.
The confirmation of a partial admin-
istration account is conclusive as to
matters embraced therein. Fross's
Appeal, 105 Penn. St. 258. A partial
account may be made the subject of
probate investigation at discretion. 2
Deni. 289.
8. Shindel's Appeal, 57 Penn. St.
43. As e. g., on a later account the
representative may be charged with
money received by him before the
confirmation of the preceding account,
and not accounted for. lb. And see
242 Penn. 3.
9. Mass. Pub. Stats, c. 144, § 9;
Smith V. Button, 4 Shepley, 308;
Cummings v. Cummings, 128 Mass.
532 ; Wiggin v. Swett, 6 Met. 194, 39
Am. Dec. 716.
1. Supra, § 1523; Crawford v. Re-
dus, 54 Miss. 700. Mass. Pub. Stats, c.
144, § 9, expressly provides that when
such account is settled " in the ab-
sence of a person adversely interested,
and without notice to him," such ac-
count may be opened on his applica-
tion at any time within six months
after the settlement thereof.
An executor or administrator hav-
ing been surcharged or falsified on
exceptions to his administration, all
parties interested in the surplus are
entitled to participate in the balance
as finally ascertained, in due propor-
tion, though some of them filed no ex-
ceptions to the account. Charlton's
Appeal, 34 Penn. St. 437. It is prud-
ent, when the accountant finds his ac-
count disputed in important respects,
for him to request the party objecting
to specify in writing the items ob-
jected to; for then, the account being
once settled, the particular items dis-
puted and determined will be shown
by the record. A Massachusetts stat-
ute provides that, upon the setlement
of an account, all former accounts
rendered in the course of settling the
same estate may be so far opened as
to correct a mistake or error therein;
but that a matter which has been
previously heard and determined by
the court, shall not, without leave of
the court, be again brought in ques-
tion by any of the disputants. Mass.
Pub. Stats, c. 144, § 9 ; Cummings v.
Cummings, 128 Mass. 532; Wiggin v.
Swett, 6 Met. 194. And this is also
the Ohio rule. Watts v. Watts, 38
1641
§ 1527 EXECUTORS AXD ADMIXISTEATORS. [PAET VII.
§ 1527. Settlement upon a Final Accounting; Distribution, etc.
The rendering of a final account to the probate judge or surro-
gate appears to be, strictly speaking, a proceeding distinct from the
settlement thereof; that is to say, the executor or administrator
sets forth in his ac<i0.unts the true condition of the trust, and of his
administration, without bringing into his statement the payments
made to any of the distributees or residuary legatees on account.
Usually, in our practice, a decedent's estate is closed in the pro-
bate accounting; payments made in true proportion to all proper
parties being thus exhibited, without the formality of a further
decree, as for distribution. But, when this course is pursued, the
distribution statement or schedule should be kept distinct ; for the
probate accounting, in theory and apart from local code or practice,
settles nothing but the basis upon which distribution may after-
wards be made in a proper tribunal, and ascertains what balance,
if any, is left for that purpose.^
In some States, therefore, the decree made upon an adminis-
trator's final accounting determines simply the amounts received
and paid out by the representative, and the balance due from him
to, or to him from, the estate ; and a decree of distribution, settling
the rights of residuary legatees or distributees, is afterwards in
order.^ The distribution of intestate estates lies peculiarly within
Ohio St. 480. See also Ward's Estate, itors' claims, arc paid upon proper
116 N. W. 23, 150 Mich. 218. vouchers.
2. See Ake's Appeal, 21 Penn. St. The words "final settlement" in a
320; Smith v. Van Kuren, 1 Barb. Ch. statute may be construed not to sig-
473; Tappan v. Tappan, 30 N. H. 50; nify the mere ascertainment of the
Fleece v. Jones, 71 Ind. 340; Arnold final cash balance in the hands of the
V. Smith, 14 R. I. 217. Where the executor or administrator. A pay-
distributees or residuary parties in ment of that balance is also included,
interest are clearly known, the repre- so that nothing shall remain to be
sentativc is practically safe in settl- done by him in his fiduciary character
ing with them on their several re- to complete the execution of the trust,
ceipta for their respective proportions, Dufour v. Dufour, 28 Ind. 421.
and rendering his final account as It is irregular practice to petition
upon such a distribution, tiiereby dis- for an account and for distribution
pensing with formalities and needless together. 11 Phila. 43.
delay. Legacies, in general, like cred- 3. Johnson v. Richards, 5 Thomp. &
1642
CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS, § 1527
the province and jurisdiction of American probate courts; and
local statutes define the method by which the administrator or any
one of tlie distributees, may, on application to the probate court,
obtain an appropriate decree/
But, as to testate estates, a probate court has no inherent juris-
diction to decide who are entitled as legatees under the will; nor
can it, in the absence of some enabling act, decree to whom, or at
what time, legacies, or the residuary fund, shall be paid.^ Agrce-
C. (N. Y.) 654; 15 N. J. L. 92; 7
Baxter, 406. A formal decree may be
a needful preliminary to suing on the
administrator's official bond.
4. The decree of distribution, which
is founded upon the final balance
shown by the accounting, specifies the
names of persons who are entitled to
share in the estate and the amount
payable to each. Loring v. Steine-
man, 1 Met. 304; Smith Prob. Pract.
196. A decree in favor of a distribu-
tee is conclusive as to amount, allow-
ing for all previous advancements.
Cousins V. Jackson, 49 Ala. 236.
After an administrator has made
distribution without judicial direc-
tion, he is personally liable, if others
entitled to distribution appear of
whose existence he had no knowledge.
2 Call (Va.) 95.
In some States an order of distri-
bution is imperative. 19 La. Ann. 97.
Accounts, with items showing partial
and unequal payments to distributees,
do not supply the correct balance upon
which distribution is to be made. See
53 Ga. 282.
The notice requisite for a decree
may be prescribed by statute, other-
wise the notice is such as the court
in its discretion shall deem proper.
1 Met. 204. See 49 Wis. 592; 60 111.
27. Tlie probate court has no author-
ity to make an order for distribution
to the assignee of a distributee's share.
Knowlton v. Johnson, 46 Me. 489;
Holcomb v. Sherwood, 20 Conn. 418;
Portevant v. Xeylans, 38 Miss. 104.
And it is no valid objection to a de-
cree of distribution that it was made
on its face in favor of parties who
were not applicants for the decree, or
whose shares had been satisfied or re-
leased. Sayre v. Sayre, 16 N. J. Eq.
505. Nor should the administer be
thus decreed to apply the distributee's
share to a debt due to the adminis-
trator personally. 13 Ala. 91; 3
Grant (Pa.) 109; 25 Miss. 252. Nor
to make deduction from the share of
any one on account of a debt he owes
to the estate. 17 Mass. 81. But such
equities may be regarded in the course
of compliance with a decree of distri-
bution. See 6 Ired. Eq. 341; 2 Barb.
Ch. 533; 2S Penn. St. 208; 3 Cranch,
C. C. 61. And it would appear that a
bona fide payment made under the
decree of distribution to the attorney
in fact, or actual assignee of the dis-
tributee named therein, is a compli-
ance with the order. Marshall v.
Hitchcock, 3 Redf. (N. Y.) 461. Set-
ting aside on appeal a decree of dis-
tribution does not necessitate setting
aside the final account. 90 Wis. 480.
5. Smith V. Lambert, 30 Me. 137;
1643
§ 1528 EXECUTORS AND ADMINISTEATOES. [PAKT VIK
ablj, however, to the jurisdiction conferred upon probate courts in
various States, this court, subject to the usual appeal, may settle
all questions relative to legacies; and accordingly, where the con-
struction of a will is necessary to determine questions arising on
the account of administration, the court of probate jurisdiction in
such .States may pass upon the construction of the will, for this
attaches as incidental to the accounting.^ Decrees which confirm
the accounts of executors or administrators are not to be opened
and re-examined, at all events, where the balance thereby found to
be due has, in the meantime, been actually paid and discharged/
But various local codes provide for equitable relief, whether by
petition in the probate court, or otherwise, so as to reopen after-
wards a probate settlement upon a proper showing of mistake or
fraud, and by a direct attack upon that settlement.^
§ 1528. Conclusiveness of the Final Settlement in the Probate
Court.
The final settlement of an executor or administrator with the
probate court is conclusive, operating as the judgment of a court
of competent authority, with jurisdiction of the subject-matter and
of tbe person, and cannot be called in question, except by a direct
proceeding, such as appeal or writ of error ; ^ and only in the pro-
Cowdin V. Perry, 11 Pick. 503. Lega- codes; Brandon v. Brown, 106 111.
cies in many States may be sued for 519.
and reeovcrpd at common laAV. Far- See further, Kilbournc's Estate, 139
well V. Jacobs, 4 Mass. 634; Smith v. N. W. 16, 173 Mich. 258 (residuary
Lambert, 30 Me. 137. Beyond this, legatee who has been paid) ; 155 Mo.
the subject is more especially one of App. 574 (attack upon a fraudulent
chancery jurisdiction, and the pro- final settlement) .
bate records are not conclusive of tlic The citation on a final settlement
rights of such parties, though doubt- of account cannot serve for confirm-
less important evidence. But statutes ing a sale of real estate likewise,
may afl"oct this question, enlarging the Washington v. Eogart, 119 Ala. 377.
powers of a probate court to that end. 9. Caldwell v. Lockridge, 9 Mo. 362;
Sandford v. Thorpe, 45 Conn. 241. Barton v. Barton, 35 Mo. 15S; Austin
6. Purdy v. Hayt, 92 N. Y. 446. v. Lamar, 23 Miss. 189; Brick's Es-
7. Lehr's Appeal, 98 Penn. St. 25. tate, 15 Abb. (N. Y.) Pr. 12; Smith
8. Sec Arnold v. Spates, 65 Iowa, Prob. Pract. 183.
670, 22 N. VV. 680; various local
1644
CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 1523
bate court when impeached for fraud or manifest error; though,
if the proceedings in that court were such that they may be treated
as a nullity on account of fraud, the executor or administrator may
be cited to account there anew.^ The probate settlement remains
conclusive evidence not only of the fact of receipts and payments,
as specified, but of the validity of those receipts and payments ; ^
nor can the decree of the probate court, duly allowing the final
account of the representative, be collaterally impeached; as in an
action at law against him, upon a claim against the deceased.^
While a decree of the probate court, settling an executor's or
administrator's final account, pratakes of the nature of a final
judgment, its conclusiveness is nevertheless restricted to the mat-
ters involved, and the items, together with the surplus, as passed
upon and shown of record.^ Xor is the decree of distribution, as
1. Davis V. Cowden, 20 Pick. 510;
supra, § 1526, note; Decker v. El-
wood, 1 Thomp. & C. 48. Thus there
should be due citation to parties in-
terested on such account in order to
operate conclusively. 144 Mo. 509, 46
S. W. 202.
2. 1 Hoffm. 202 ; Burd v. McGregor,
2 Grant, 353; 52 Cal. 403.
3. Parcher v. Bussell, 11 Gush. 107;
Harlow^ v. Harlow, 65 Me. 448; San-
ders V. Loy, 61 Ind. 298; § 1526; 13
Lea, 728. Where the administrator
of a deceased partner in a firm has
settled with the surviving partners,
and his account, including the account
received from such settlement, has
been allowed by the probate court,
that court should not reopen the ac-
count upon his successor's petition
upon any ex parte or insufficient
charge that the surviving partners in-
duced the settlement by fraud. Blake
V. Ward, 157 Mass. 94, 31 N. E. 693.
4. A balance found due upon formal
accounting: mav in some cases be a
cash balance ; and a careful executor
or administrator Avill take heed that
items of doubtful value, which may
affect a just cash balance for distri-
bution, are duly stated at the final
hearing, and weighed by the court.
But the balance, as found on such
accounting, is in strict truth a bal-
ance, not of money, but of the estate
undisposed of remaining for distribu-
tion, and the schedules will frequently
show that this balance is made up of
various items of personal property not
reduced to cash, which, at their stated
valuation, the representative stands
ready to transfer. Where, therefore,
the representative finds himself unable
to use the assets upon a cash valua-
tion, he should apply to the probate
court for corresponding relief: and
the order of distribution may be made
out or amended in conformity to the
facts, and as essential justice requires.
But, after the time is past for the
representative to distribute the sur-
plus to those entitled thereto, and
1645
§ 1529 ESECUTOKS AND ADMI^ISTKATOES. [pART VII.
to the balance shown bj the administration accounts, a payment.^
But it is to be assumed that the parties in interest were all cited,
or had otherwise due opportunity to scrutinize or contest the ac-
count.^
An executor or administrator whose accounts have once been
settled will not be ordered to account further because of the exist-
ence of possible assets not within his control, but which, after a
third party shall have acted, may come to his hands.'' And the rea-
sonable presumption from a probate decree which judicially set-
tles the representative's accounts, where all the parties interested
have been cited, is that the account was correct, and all the assets
have been accounted for. A further accounting, therefore, should
only be ordered when it appears clearly that there are other mat-
ters not embraced in the former account, for which the representa-
tive is responsible, and has not accounted.^
§ r529. Perpetuating Evidence of Distribution and Procuring a
Final Discharge; Effect, etc.
It is provided expressly in various States, that the executor or
such distribution raay be assumed to act of the distributee to its prejudice,
have taken place, he is no longer con- will exonerate the trust fund from
oerned in asking relief of this char- the distributee's claim. Brown, J., in
acter. Sellcro's Appeal, 36 Conn. 186. Clapp v. Meserolo, 38 Barb. 661. And
That one may be cited to account for see, as to the form of such decree of
what does not appear on his accounts, distribution, McCracken v. Graham,
see Flanders v. Lane, 54 N. H. 390; 14 Penn. St. 209.
88 Md. 151, 40 A. 705. See as to order As to the effect of a settlement of
discharging the representative, 86 Tex. the residue out of court, after a par-
207, 24 S. W. 389. tial settlement in court, see 27 Ohio
5. It is not a payment so as to dis- St. 159.
charge the executor or administrator, 6. As to acquiescence of a guardian
nor is it a payment so as to exonerate not necessarily concluding the minors,
the fund distributable. Tlie decree see 148 Mass. 434.
gives to tlie distributee a remedy 7. Soulier Re, 105 N. Y. 514, 12 N
against the executor or administrator E. 34. And see as to an accounting
personally for his proportion of the for additional assets after a partial
funds found to be in the latter's accounting; which was in the court's
hands, but this does not impair his discretion until it could be made a
remedy against the fund itself. Noth- final accounting. 3 Dcm. (N. Y. ) 414.
ing sliort of actual payment, or some 8. Souttor A'c. ib.
1646
CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTEATOES. § 1529a
administrator shall have his final discharge, and may perpetuate
the evidence of his payments or distribution of the surplus, as of
record. The usual course is for him to return the court's decree of
distribution, with indorsements, showing full payments made under
it, or within a specified time to present what is in substance a final
account, exhibiting the distribution of the balance for which he
vras accountable to the parties entitled.^ Unclaimed moneys, which
the court has ordered paid over, may be placed on deposit with the
judge, or in the public treasury, according as local enactments pre-
scribe, thereby discharging the executor or administrator, and his
sureties, from all further responsibility for the funds,^ a suitable
receipt from such depositary being often filed for convenience.
§ 1529a. Discharge of Executor or Administrator.
In some States it appears to be the practice of the court to enter
a judgment by way of discharging liability on the part of the per-
sonal representative ; and the right of such representative to be dis-
charged after a final settlement and performance of his duties is
taken thus to be implied if not expressly authorized by statute.^
But one's discharge is not to be readily inferred from mere acts of
performance on his part without at least a regular judicial order
of discharge.^ No such order of discharge is properly more than
a discharge from the particular business involved in an accounting
9. The Massachusetts statute pro- party, shall be allowed as his final
vides that when an executor or ad- discharge, and ordered to be recorded,
ministrator has made or delivered Such discharge shall forever exoner-
over to the persons entitled thereto ate the party and his sureties from
the money or other property in his all liability under such decree, unless
hands, as required by a decree of the his account is impeached for fraud or
probate court, he may perpetuate the manifest error. Mass. Pub. Stats, c.
evidence thereof by presenting to such 144, § 12.
court, within one year after the de- 1. Mass. Pub. Stats, c. 141, § 16.
cree is made, an account of such pay- 2. 18 Ga. 346; 10 Ind. 528;
ments, or of the delivery over of such Rooney's Estate, 143 S. W. 888, 163
property; which account, being Mo. App. 389; 49 Pa. Super. 203.
proved to the satisfaction of the 3. Atherton v. Hughes, 94 N. B.
court, and verified by the oath of the 546, 249 111. 317; 161 111. App. 483.
1647
§ 1530 EXECrXOES AIVD ADMIXISTEATOKS. [part VII.
up to that period/ Otlier unforeseen matters for administration
may come up later ; and until the representative dies, resigns or is
removed, so tliat a regular successor receives due credentials upon
a proper vacancy, his legal authority continues.^
§ 1530. Appellate Jurisdiction as to Probate Accounting.
Appellate jurisdiction from our probate tribunals is carefully
exercised in most States, as regards the probate accounting just set
forth. And, upon appellate proceedings, the supreme court declines
to act, as if entertaining an original jurisdiction over the account.
For, as it is said, the court of probate can only be deprived of its
statute jurisdiction for the settlement of a personal representative's
accounts by some process or course of proceeding which v^ould
legally remove the settlement to another tribunal. And, hence,
probate jurisdiction remains, although the personal representative,
who had before been cited to settle his accounts, had neglected to
do so, and leave had been granted to bring a suit upon his bond;
no suit having been commenced.^ Nor will the supreme court, as
a court of chancery, resettle an administration account alleged to
have been fraudulently settled in the probate court.^
So, too, it is held that former accounts from the allowance of
which no appeal was taken, and the matters passed upon in them,
are not subject to a revision and readjustment upon an appeal from
4. Fraser v. Fraser, 149 111. App. 7. Jennison v. Hapgood, 7 Pick. 1;
186. 119 Am. Dec. 258; Sever v. Russell,
5. 37 Iowa, 684; Weyer v. Watt, 4 Cush. 513; 50 Am. Dec. 811. As to
48 Ohio St. 545. If a settlement is the States where liberal chancery
reopened, all concerned should have powers are assorted by way of a con-
the benefit. 56 Ga. 297. current jurisdiction with probate
In many States there is no practice tribunals, see supra. § 1522. A judg-
of discharging thus from liability. ment of the probate court may be im-
6. Sturtevant v. Tallman, 27 Me. peached for fraud in a court of
78. Appeal does not lie from the re- equity, in a proper case. Anderson
fusal of an account informally pre- v. Anderson, 178 111. 160, 52 N. E.
sentcd. 50 Ala. 39. See, further, 39 1038.
A. 569, 91 Me. 234; 29 N. W. 867, 63
Mich. 355.
1648
CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 1530a
the allowance of a later account in which the same question was
not before the probate judge for consideration.^
Where a mistake is made in the settlement of a probate account,
the course is to apply to the judge of probate for its correction, or
to state the amount claimed in a new account; unless, when the
mistake is discovered, the party has a right of appeal to the supreme
tribunal, and may there have it corrected.® When the account of
the representative has been allowed by the probate judge, and no
appeal is taken, it cannot be revised above ; and, under such circum-
stances, the probate judge's decision that no mistake has been made,
concludes the controversy.^ If the probate court reopens, or refuses
to reopen, a final accounting in a proper case, there lies a direct
remedy by appeal.^
§ 1530a. Equity Refusal to Intervene.
As a rule, an equity court in this country refuses to intervene in
proceedings for accounting where the probate court has a plain,
adequate and complete remedy in the case.^
8. McLoon v. Spaulding, 62 Me. Seymour v. Seymour, 67 Mo. 303;
315; 27 Me. 78; 49 Me. 408, 561. Sherman v. Chace, 9 R. I. 166; Reed
But, in Massachusetts, the supreme v. Reed, 68 A. 849, 80 Conn. 401.
court, while disclaiming to act other- Setting aside on appeal a decree of
wise than as an appellate tribunal distribution does not necessitate set-
with reference to probate accounts, ting aside the account upon which
construes the latest legislation, not distribution was based. 90 Wis. 480,
only as modifying the former rule of 63 N. W. 1042. See also 15 Mo. App.
conclusiveness, but so that, without 574.
any formal petition alleging mistake 9. Stetson v. Bass, 9 Pick. 27; Co-
or error, objections made to allowing burn v. Loomis, 49 Me. 406.
a later probate account may amount 1. Coburn v. Loomis, 49 Me. 408;
eubstantially to an application to Arnold v. Mower, ib. 561.
have the former accounts reopened; 2. Githens v. Goodwin, 32 N. J. Eq.
and sustains a reopening on appeal, 286. As to reopening a stttled ae-
although an appeal from the former count by proceedings in the probate
acpount was taken to the supreme court, see sxtpra, § 1526.
court and there determined. Blake 3. Allen v. Hunt, 100 N. E. 552,
V. Pegram, 109 Mass. 541. And see 213 Mass. 276. Cf. Nelson v. Errick-
Williams v. Petticrew, 62 Mo. 460; son, 87 A. 116, 81 N. J. Eq. 226.
104 1649
§ 1531 EXECrTOES AND ADMIXISTEATOES. [PAET VII.
§ 1531. Rendering Accounts in Case of Death, Resignation, Re-
moval, etc., of Representative.
American statutes provide explicitly for the rendering of pro-
bate accounts in case of a vacancy in the office. Thus, when one of
two or more joint executors or administrators dies, resigns, or is
removed before the administration is completed, the account is ren-
dered by the survivor or sur^dvors.'* And when a representative
dies, not having settled his sole account, a final account should be
rendered by his own executor or administrator; and it has been
held, that it may be settled by the administrator of one of his sure-
ties, for the protection of the bond ; ^ since, for a deficit beyond the
actual assets to be administered upon, the sureties of a deceased
executor or administrator who proves a defaulter in his trust,
are answerable, rather than the deceased defaulter's own repre-
sentatives.^
iStatutes provide for the closing of accounts by a representative
who resigns, or is discharged from his trust. Thus, it is declared,
that an executor or administrator shall not be permitted to resign
without first settling his accounts; and, on such rendering, the
court should have the account carefully examined and approved
like any other final account.^ But, without appropriate legislation,
4. Mass. Pub. Stats, c. 144 ; 44 Hun 48 Ala. 468 ; Sevier v. Succession of
(N. Y.) 457; 3 Dem. 236 (N. Y.). Gordon, 25 La. .^nn. 231. Tlie par-
See Crothers v. Crothers, 88 A. 114, ties to this final accounting are, be-
.121 Md. 114. In case of representa- sides next of kin, legatees, or dis-
tive's death pending proceedings for tributees, as the case may be, the
the settlement of his accounts, the successor in the trust. Waller v.
proceedings abate, and his own rep- Ray, 48 Ala. 468. Where one is dis-
resentative must account anew. 3 charged or removed, persons inter-
Dem. 236. See also as to insanity, ested as creditors, etc., have the
Michigan Trust Co. v. Ferry, 33 S. usual right of objecting to the ac-
Ct. 550, 228 U. S. 346. count. Poulson v. Frenchtown Bank,
5. Curtis V. Bailey, 1 Pick. 190; 33 N. J. Eq. 518. Tlie New York
Hocking Valley R. v. White, 101 N. code specifies the persons who may
E. 354, 87 Ohio St. 413. call to account in such cases. 3 Dem.
6. See siipra, § 114G. But see 2 251. A succeeding admin i.strator may
Pen. (N. J.) L. 562. contest the account of his predeces-
7. »S'«pra, § 1156; Waller v. Ray, sor. 120 Cal. 698. And see Hudson
1650
CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 1532
the probate coui't cannot, perhaps, order an account from one whoso
resignation has already been accepted.^ The final probate decree,
on settlement of the accounts of a removed representative, will con-
clude his sureties,^ who, together with himself, are answerable for
any defalcation in the trust.
It is not to be inferred, however, that a final settlement upon the
accounts of a representative who has died, resigned, or been re-
moved, while in the exercise of his functions, is a " final settle-
ment," so to speak, of the estate; for it is rather a transfer of the
predecessor's just balance to the successoa*.^ The accounts of a suc-
cessor should never be blended with those of his predecessor.^
"WTiere a predecessor's final account is duly prepared and pre-
sented ^ and the administrator de bonis non is a party to such set-
tlement, and represents the creditors and others interested, and
afterwards such de bonis non representative makes his own final
settlement, there is a final settlement of the whole estate.*
§ 1531a. The same Subject; Revocation of Letters.
Upon the revocation of letters testamentary which were issued
upon the original prohate of a will, the court should require an
accounting.^
§ 1532. Accounts by Co-Executors or Co-Administrators, Tem-
porary Administrators, etc.
The accounts of co-executors or co-administrators, may, in the
T. Barrett, 61 P. 737, 62 Kan. 137. found due on the account of a prede-
Surrogate asked to remove for waste, cesser deceased, Munroe v. Holmes, 9
may order an accounting. 128 N. Y. Allen, 244; Bingham, Re, 32 Vt. 329,
S. 626. 1. See 40 Miss. 747.
8. See 6 Tex. 130. 2. Hamaker's Estate, 5 Watts, 204.
9. Kelly v. West, 80 IST. Y. 139. 3. As by his own personal repre-
Statutes in some States authorize the sentative in case of his death, etc.
probate court, upon a final account 4. State v. Graj', 106 Mo. 526, 7 S.
by a representative removed from his W. 500.
trust, to render a decree against him 5. Cavanaugh's Will, 131 N. Y. S.
for the balance in favor of the sue- 982 (code). See 131 N. Y. S. 187
cessor. 13 Ala. 749. See, as to (death of life tenant) .
remedies for recovering a balance
1651
§ 1533 EXECTJTOES AND ADMINISTEATOES. [PAJIT VII.
practice of some States, be rendered on the oath of one of them.
In Pennsjlvania and some other States, however, joint representa-
tives mav keep and file separate accounts, each one charging him-
self with a part of the estate ; ® and, it is held, that on the settle-
ment of a subsequent account bj one, he is not chargeable with the
balance in the hands of the other, however might be the case in a
suit upon their joint bond.'^ There mav be advantage in such a
course; for, on general principle, the settlement of a joint account
by co-executors or co-administrators, and its confirmation, showing
a cash balance in their hands, admits and adjudges their joint lia-
bility ; and a division of the fund between them does not sever that
liability ; ^ though, as to securities which appear to be imcollected,
by their joint accounts, no conclusive liability, of course, arises.*
The separate accounts of co-representatives cannot be combined in
making the distribution ; and, having filed separate accounts, they
have no joint duty to distribute.-^
§ 1533. Effect of Lapse of Time, etc., upon Accounts.
Long lapse of time may justify a refusal to order an account of
6. Davis's Appeal, 23 Penn. St. Mass. Pub. Stats, c. 144. Where
206; Bellerjeau v. Kotts, 4 N. J. L. one of co-executors presents his ac-
359. count for settlement without the
7. Davis's Appeal, ib. other's signature, his associate may
8. Duncommun's Appeal, 17 Penn. contest it. 4 Dem. (N. Y.) 364. A
St. 268; Laroe v. Douglass, 13 N. J. joint accoimt by two executors prima
Eq. 308. facie renders one of them liable for
9. Lightcap's Appeal, 95 Penn. St. contribution to the other who has
455. paid the balance. Conner v. Mc-
. 1. Heyer's Appeal, 34 Penn. St. Ilvaine, 4 Del. Oh. 30.
183. Co-executors, who have received As to a temporary administrator's
and inventoried a trust fund held by accounts, see local code. 4 Dem. 450.
their testator as executor, and have In Massachusetts special administra-
jointly settled their final probate ac- tors are held to account whenever re-
count, are jointly chargeable with quired by the probate court; and pub-
tlie trust balance ascertained to be in lie administrators, who liavc given a
their hands. Schcnck v. Sclienck, 16 general bond, render an annual ac-
N. J. Eq. 174. See, also, §§ 1400- count of all balances in their hands,
1406. The accounts of joint exccu- besides annual accounts as to eacii
tors or administrators may be ren- separate estate. Smith Prob. Guide,
dered on the oath of one of them. 163.
1652
CHAP. I.] ACCOUNTS OF EXECUTOES AND ADMINISTKATOES. § 1533
administration ; especially, in connection with other circumstances,
such as the death of all the parties cognizant of the transactions,
destruction of the comity records, and loss of papers; for, other-
wise, there would be danger of injustice to the deceased personal
representative.^ Under ordinary circumstances, however, a lapse
of time less than twenty years appears to constitute no bar to the
ordering of a probate account ; ^ but, where the administration has
Iven closed, and the representative formally discharged, it may
be different.*
But, however it may be with a judicial accounting, a court may
presume, a considerable time having elapsed since the estate should
have been settled and the functions of the representative tenni-
nated, that the debts have all been paid, in fact, and the affairs of
the estate finally and justly settled. Final settlements ought to be
seasonably and directly assailed, in order to avoid their effect as
judgments importing verity.^ Where an account has been finally
adjusted many years, those concerned acquiescing, apparently, in
the settlement, it will not be reopened, except upon good cause
shown for the delay ,^ nor, usually, except to correct mistakes appar-
ent; but the representative may be cited at any time, to account
2. Stamper v. Garnett, 31 Gratt. decree comprising a settlement of the
550. As to a presumption of settle- account was refused a hearing after
ment after lapse of time, see 9 Phila. the lapse of thirteen years, the death
(Pa.) 344. of the principal parties, etc. 79 Va.
3. Campbell v. Bruen, 1 Bradf. (N. 468. And see Evans v. Evans, 94 N.
Y.) 244. Or even twenty-five years. E. 1106, 83 Ohio St. 482 (forty years,
14 Phila. 297. See, also, McNally's etc., unreasonable).
Estate, 124 N. Y. S. 864 (circum- 5. State Bank v. Williams, 6 Ark.
stances making a late accounting sea- 156; Williams v. Petticrew, 62 Mo.
sonable). 460. See Schoul. Dom. Rel. § 372;
4. See Portis v. Cummings, 14 Tex. Gregg v. Gregg, 15 N. H. 190; Pierce
139; 5 D€m. (N. Y.) 453. Local v. Irish, 31 Me. 254; Smith v. Davis,
methods are not uniform in this re- 49 Md. 470.
spect. Some codes show a special 6. See Davis v. Cowden, 20 Pick,
favor to the private settlement of es- 510, where the delay shown was not
tates among those interested, in dis- such as imputed acquiescence in the
regard of a probate accounting. A account.
1653
§ 1534a EXECUTORS and AD:MI^'ISTKATOKS. [part VII.
for assets not included in his settled accounts, especially if tliey
come to hand at a later date.''
§ 1534. No Account required fron? Residuary Legatee giving
Bond to pay Debts, etc.
Where a residuary legatee has given bond as executor, to pay the
testator's debts and legacies, a bill in equity cannot be maintained
against him for an accounting for assets and administration in
chancery ; nor, of course, can a probate accounting be compelled.
For the assets of the estate become part of his general property,
and are no longer subject to the enforcement of a trust in favor of
other legatees ; ^ though his own estate is liable, like that of any
debtor, for debts and legacies ; and his bond affords security for the
benefit of all such claimants.'
§ 1534a. Private Accounting and Settlement.
A private accounting and settlement of the estate out of court
by those interested has been upheld as conclusive aga'nst all third
persons.^
7. McAfee v. Phillips, 25 Ohio St. McElroy v. Hatheway, 44 Mich. 399,
374; supra, § 1526; Soulier, Re, 105 6 N. W. 835.
N. Y. 114, 12 N. E. 34. Under cir- 9. Copp v. Hersey, 31 N. H. 317;
eumstances importing good faith, an supra, §§ 1138, 1249.
account filed late might be indulged 1. Bailey v. Merchant's Ins. Co., 86
as to specifying details. A. 328, 110 Me. 348.
8. Clarke v. Tufts, 5 Pick. 337;
1654
CHAP. II.] CHAKOES AND ALLOWANCES UPON ACCOUNTS. § 1536
CHAPTER II.
CHAEGES AND ALLOWANCES UPON ACCOUNTS.
§ 1535. What is to be charged to the Representative, and what
allowed Him.
In the present chapter we shall consider (1) what may be
charged to the executor or administrator in his accounts; and (2)
what may be allowed him therein. We shall here suppose the ac-
count to have been prepared with items of the former kind debited
to him as under schedule A., and those of the latter kind credited
under schedule B.^
§ 1536. Representative should charge Himself with Inventory
Valuation as a Basis ; Corrections of Value, etc.
First, as to charges. While bookkeeping accounts are usually
conducted on the basis of receipts or payments in cash or their
equivalent, the balance being struck accordingly, a peculiarity of
accounting in most of our probate courts is, that the accountant
shall charge himself, first of all, with the total amount of personal
property as returned in the inventory.^ Accordingly, he is com-
pelled to carry forward in schedule A., the bulk of personal assets
on the appraisers' valuation ; asking an especial credit in the
schedule B., should any of these assets realize at a loss when dis-
posed of, or be worth less for a distribution, than at their valua-
tion ; and, accounting, in fact, for all assets which have come to
either his possession or knowledge, and not for his actual receipts
alone.^ On the other hand, should particular assets fetch more, or
be worth more in computing the final balance, than the amount
1. See supra, § 1524. Every item ment of partnership aflFairs, if the
of receipt and expenditure should be surviving partner be executor. 2
distinctly entered in the account. Bradi. 165; 17 Abb. (N. Y.) Pr. 165.
Hutchinson's Appeal, 34 Conn. 30O; 2. See Bogan v. Walter, 12 Sm. &
Jones, Re, 1 Redf. 263; 4 Day, 137. M. 666.
The account should include a state- 3. 49 N. J. Eq. 552.
1655
§ 1537 EXECUTOES AXD ADMIXISTRATOES. [PART VII.
stated in tke inventory, the representative must charge himself with
the excess. So, too, if assets inventoried as desperate and value-
less, turn out to be worth something, their proper worth, or what
thej have actually realized, is to be debited to him in the account.
For, an inventory appraisal is prima facie and not conclusive proof
of the representative's liability for a corresponding amount; the
real test of liability by which his accounts shall be settled being,
whether he has bestowed honesty and due diligence in collecting,
realizing upon, preserving, and disbursing the assets.*
§ 1537. Amounts to be added; Representative charged with Per-
sonal Assets not inventoried ; Profits, Income, Premiums,
Interest, etc.
Indeed, amounts received from all sources not included in the
inventory, of the nature of personal assets, should be charged to
the accountant, by suitable items, in the administration account;
not specific gains upon the inventory valuation alone, but new
assets, or such as from ignorance, inadvertence, or any other cause,
were omitted from the inventory itself,^ and the income, interest,
profits, premiums, and usufruct of every description, derived out
of the assets in the course of a prudent and faithful administra-
tion; including premiums received, and interest with which the
representative ought to be charged, because of culpable careless-
ness or his personal appropriation and misuse of the assets.^ The
profits accruing out of the decedent's estate should all be accounted
for, whether they accrue spontaneously or by the representative's
acts.^ But where a legatee or distributee has once been settled with,
4. Weed v. Lermond, 33 Me. 492; G. 192; Allen v. Hubbard. B N. H.
Craig V. McGehee, 16 Ala. 41, The 487; Liddell v. McVickar, 11 N. J. L.
items of the inventory need not be re- 44; 19 Am. Dec. 369. Income should
peated in the account; but only the be .stated as a separate item from the
gross amount debited. Sheldon v. principal. 11 Phila. 113; Stone v.
Wright, 7 Barb. 39. Stilvvell, 23 Ark. 444. If there is no
5. But, by the practice of some increase, profit, etc., that fact should
States, a new inventory should be be stated. 1 Redf. (N. Y.) 263.
filed in such cases, f^upra, § 1230. 7. Wms. Exrs. 1657, 1847. And
6. Sugden v. Crossland, 3 Sm. & see Sugden v. Crossland, 3 Sm. & G.
1656
CIIAl'. II.] CHARGES AND ALLOWANCES UPON ACCOUNTS. § 1537
and the executor or administrator holds one's securities as agent,
he is no longer accountable as executor or administrator.^
If the representative charges himself with interest, he may in
various cases be justly allowed dividends as an offset.*
193. Tlie wilful omission of the rep-
resentative to charge himself with as-
sets coming to his hands has been
lield ground to set aside his settle-
ment for fraud. Houts v. Shepherd,
79 Mo. 141.
The discussion of a representative's
liability, in former chapters, may
sufficiently show what an executor or
administrator should be charged with.
A cardinal principle in all trusts, al-
ready adverted to, is that the fidu-
ciary shall make no personal profit
out of the trust beyond what a court
may fitly allow him by way expressly
of compensation for his services; and
that, whatever the gains out of the
assets, whether in the course of a
rightful management or a perversion
of his trust, shall go to enhance the
fund, and not to enrich himself, and
shall be duly accounted for. Supra,
§§ 1322, 1332. Profits out of a lease
belonging to the estate, profits out of
a trade of the decedent pursued by
the representative, profits out of a
purchase of assets, profits out of an
investment made with the assets,
profits arising from a composition,
discount, or deduction of a claim
upon the estate, all come within this
broad principle. Purchases of assets,
or of the claims of creditors, legatees,
or distributees upon the estate, by
the representative, are, if not neces-
sarily void, treated, at all events,
with marked disfavor, especially as
to the profit he may make on them,
and may usually be avoided by inter-
ested parties. Supra, §§ 1358, 1363;
Trimble v. James, 40 Ark. 293. And
see Wms. Exrs. 1842, and Perkins's
note; Cook v. Collingbridge, Jacob,
607; Hall v. Hallett, 1 Cox, 134;
Wedderburn v. Wedderburn, 22 Beav,
100. The personal representative is
not authorized to take assets at their
appraised value to his own use and
make what profit he may out of them.
Weed V. Lermond, 33 Me. 492.
Bonuses from borrowers belong to the
trust estate. Savage v. Gould, 60
How. Pr. 217; Landis v. Saxton, 89
Mo. 375, 1 S. W. 359. One who
trades or operates with the assets
must account to the estate for all the
profits realized. Haberman's Appeal,
101 Penn. St. 329. Premiums re-
ceived where gold commanded a
premium should be accounted for. 17
S. C. 521; 20 S. C 64; 37 S. C. 123,
15 S. E. 917. Also the profit made
on some purchase of assets inconsis-
tent with his duty, reserving, how-
ever, the amount of his private dis-
bursement. 80 Ala. 11. As to profit
or loss from a sale, see 40 N. J. Eq.
158 (applying the usual standard of
diligence and good faith). And as to
profits which should have been made
for the estate, see Grant v. Reese, 94
N. C. 720.
8. 31 Hun (N. Y.) 420.
9. Dudley v. Sanborn, 159 Mass.
185.
1657
§ 1538
EXECUTORS AJTD ADMIXISTEATORS.
[part VII.
§ 1538. Charging the Representative with Interest.
Cliancerj and probate coui-t5, in modern practice, will compel the
executor or administrator to charge himself in his account with in-
terest, and, in gross instances, with compound interest, where he
lias abused his trust. This is a doctrine applicable, both in Eng-
land and America, to all trustees who prove delinquent or dishon-
orable in the management of the estate confided to them. The
charge appears to be supported on either of two sufficient grounds :
one, that, bj perverting the fund in question to his own use, the
fiduciary has made a probable profit for which interest, or com-
pound interest, may be supposed a fair equivalent ; the other, that
loss of interest, occurring through his remissness or misconduct,
should be made up to the fund. In other words, all profits made
with trust moneys, belong to the trust ; and, furthermore, a culpable
failure to make profit for the estate, out of funds which should have
been made productive, is a waste.^
1. Trustees in general are made
liable for interest, where they delay
unreasonablly to invest, or mingle the
trust money with their own, or neg-
lect to settle their accounts or pay
over the money, or disobey directions
of the will or of a court as to the
time or manner of investing, or em-
bark the funds in trade or speculation
without authority, etc. Perry Trusts,
§§ 468-472. Where extra .profits or
bonuses are made by a trustee, they
belong to the estate. lb. § 468. Com-
pound interest is rarely charged by
the English chancery unless there
was more than mere negligence; some
wilful breach of trust in effect. lb.
§ 471. See as to payments made
through mistake of law, Hulkes, Re,
33 Ch. D. 552. Though, on principle,
it would appear that if the trustee
has probably derived actual profit of
interest, compounded with periodical
rests, from the manner of using the
money, compound interest should be
charged him by way of a just ac-
counting, independently of good or
bad faith on his part.
If a trust company as executor is-
sues its own certificates of deposit
for the fund, this is essentially using
the trust money for its own profit. 62
Minn. 408, 65 N. W. 74.
See as to compound interest in
cases of administration, English v.
Harvey, 2 Rawle, 305; Sladc v. Slade,
10 Vt. 192; McCall's Estate, 1 Ashm.
357; Scott v. Crews, 72 Mo. 261;
aark's Estate, 53 Cal. 355; Wms.
Exrs. 1851, and Perkins's note; Jones
V. Foxall, 15 Beav. 388; Jennison v.
Hapgood, 10 Pick. 77; Blake v. Peg-
ram, 100 Mass. 541; 2 Barb. Ch. 213;
Hook V. Payne, 14 Wall. 252; 20 L.
Ed. 887.
A court acts with discretion in such
1658
CHAP. II.] CHARGES AND ALLOWANCES UPON ACCOUNTS. § 1538
Executors and administrators, however, are charged with more
reluctance than trustees, for simply letting funds lie adle, since
their primary function is to administer and not to invest;^ but,
for any wilful perversion of the assets, they are doubtless charge-
able.^ During the first year, after the decedent's death, more espec-
matters, and charging compound or
excessive interest is not favored, ixn-
less for exceptional misconduct. 33
So. 699, 135 Ala. 585; 35 So. 479, 111
La. 113; Peterman v. Rubber Co., 77
N. E. 1108, 231 111. 581; 95 N. W.
697, 1 New (unoflF.) 290; Silkman,
Re, 83 N. E. 1131, 190 N. Y. 560;
Brigham v. Morgan, 89 N. E. 418,
185 Mass. 27; Mclntire v. Mclntire,
24 S. C. 196, 192 U. S. 116, 48 L. Ed.
369.
2 Supra, § 1322 ; Wms. Exrs. 1844-
1851, and Perkins's notes.
As to indemnifying interest for
long delay in proving a will, see
Stevens, Re, (1898) 1 Ch. 162. And
see Dudley v. Sanborn, 159 Mass. 185
(offset) .
3. Executors and administrators
are liable for interest if they mingle
assets with their private funds. Gris-
wold V. Chandler, 5 N. H. 492; 1
Johns. Ch. 50, 527, 620; Jacob v.
Emmett, 11 Paige, 142; 4 Cranch C.
C. 509; Grigsby v. Wilkinson, 9 Bush,
91; Troup v. Rice, 55 Miss. 278; 53
Cal. 355. And see 11 Ala. 521. Or,
where they are unreasonably delin-
quent in paying, investing, or dis-
bursing funds, as the law, the testa-
tor, or the court may have expressly
directed. 3 La. Ann. 353, 574;
Smithers v. Hooper, 23 Md. 277; 6
Daly, 259; Hough v. Harvey, 71 111.
72. And this delinquency may in-
volve a delinquency in accounting. 23
Md. 273; Loramen v. Tobiason, 52
Iowa, 665; 3 N. W. 715. Or, where
the money is used for private gain
and speculation. Davis, Matter of,
62 Mo. 450. Where they fail to ac-
count for interest or profits actually
produced by the assets, they are lia-
ble to be charged with the highest
rate at which profit might have been
made, and, at all events, with inter-
est at current rates. Ringgold v.
Stone, 20 Ark. 526; 3 Harring. 469;
English V. Harvey, 2 Rawle, 305. A
conversion of productive property
into cash, long before it becomes need-
ful for the purposes of the estate,
may be culpable negligence, so as to
charge the representative with inter-
est. Verner's Estate, 6 Watts, 250.
Upon the executor's or administra-
tor's own debt to the estate, the usual
rules of interest apply, as to other
debtors. Supra, § 1250.
Interest may be recoverable from
an executor on legacies, and, perhaps,
on debts or claims which are not sea-
sonably paid, and whether he shall be
reimbursed from the estate depends
upon his own conduct as justifying
the delay or not. Supra, §§ 1440,
1481.
See Saxton v. Chamberlain, 6 Pick.
423, as to examining the executor or
administrator upon oath, in order to
ascertain whether he is liable for in-
terest. Interest actually received
must of course be accounted for.
1659
§ 1538
EXECUTORS AND ADMINISTEATOES. [PART VII.
iallj, tlie person who administers must often keep large sums in his
hands lying idle, and negligence is not readily inferred from such
conduct, but often the reverse; though, to keep money long in his
hands, unproductive, might charge him.* Whether the personal
Supra, § 1537. And, if a represen-
tative improperly employs funds in
trade or speculation, the beneficiaries
may elect to take the profits instead
of interest. Wms. Exrs. 1847; Rocke
T. Hart, 11 Ves. 61; Robinett's Ap-
peal, 36 Penn. St. 174; supra, § 1338.
Where an executor or administrator
dies in office, liability for interest
may be suspended while the estate is
tmrepresented. 6 Rich. 83. On im-
proper payments disallowed in his ac-
count, one is not readily to be
charged with interest. Clauser's Es-
tate, 84 Penn. St. 51. As to interest
on uncollected claims, see Strong v.
Wilkinson, 14 Mo. 118.
One who has diligently and faith-
fully discharged his trust of adminis-
tration is chargeable only for the in-
terest he has made. 11 N. J. L. 145 ;
6 Dana, 3; 16 S. & R. 416. And for
a mere delay in making returns,
•where the collection, management, and
disbursement of assets has been pru-
dent and honorable, interest is not
usually imposed. Binion v. Miller, 27
Ga. 78. But, if such delay involves
the beneficiaries of the estate in great
cost and trouble, it may, perhaps, be
otherwise. lb. See also Davis, Mat-
ter of, 62 Mo. 450. Closing a deposit
which bore interest, and transferring
the fund to a bank which pays no in-
terest, before it was necessary to do
60, does not render the executor or
a/lrainistrator liable for interest, pro-
vided he does not mingle it with his
own moneys, or use it for his own
profit, or deposit it in his own name,
or neglect unduly to disburse or set-
tle his accounts. Wms. Exrs. 1844;
McQueen's Estate, 44 Cal. 584; 12 S.
C. 423. And see 46 S. E. 589, 54 W.
Va. 621; Wyckoff v. O'Neil, 71 A.
388, 71 N. J. Eq. 729; 116 N. W. 23,
152 Mich. 218 (charges permitted on
either of two accounts; Armstrong's
Estate, 125 Cal. 603, 58 P. 183 (for
delay in settlement, resulting in no
loss to the heirs, interest on the bal-
ance is sufficient indemnity) ; 128 N.
W. 32, 87 Neb. 700. See 74 S. E.
630, 159 N. C. 437 (delay in paying
balance found due ) .
4. Wms. Exrs. 1844, and Perkins's
note; 2 Cox, 115; 3 Bro. C. C. 73,
108, 433; Ashburnham v. Thompson,
13 Ves. 401. In Griswold v. Chand-
ler, 5 N. H. 497, it is observed that
where the administrator, without any
just reason, retains money in his
hands unemployed, when it ought to
be paid over, or receives interest for
money which belongs to the estate, or
applies it to his own use, he ought
to be charged with interest, but not
otherwise. And see Stearns v. Brown,
1 Pick. 531; Knight v. Loomis, 30
Me. 204; Ogilvie v. Ogilvie, 1 Brndf.
.'556. Pursuance of duty, in accord-
ance with the principles we have dis-
cussed, aflords a fair test. An exe-
cutor charged with special duties
may be bound to invest and not leave
funds long idle.
1660
CHAP. II.] CIIAKGES AND ALLOWANCES UPON ACCOUNTS. § 1539
representative shall justly be charged with interest on funds be-
longing to the estate, the particular circumstances in each case must
determine. American practice does not appear to favor charging
the representative with interest upon funds which he is prepared
to disburse, and denying him his commissions or compensation be-
sides, unless some wilful default be shown.^ Local statutes, how-
ever, supply local rules on this subject.®
§ 1539. Charges on Account as Concerns Real Estate or its Pro-
ceeds or Profits.
Real estate, we have seen, may be inventoried under a separate
head ; but it is the amount of personal property alone, as returned
in the inventory, for which a representative is primarily charge-
able in account, since one does not, in that capacity, deal usually
with a decedent's real estate, unless an emergency arises.^ Nor do
rents of land go properly into an administration account, to be
blended with items of personal assets ; as the outlay or distribution
of such funds follows distinct rules.^ If the heirs or devisees per-
mit the representative to manage real property, his account be-
comes most naturally a special account with them as their attorney.^
Where, however, real estate has been sold under a license for
the payment of debts, or under a power contained in a will, or in
some other nianner lands or their proceeds come into the hands
of the executor or representative, to be managed and dealt with
as personal assets, they enter into the usual administration account
together with rents and profits subsequently accruing; the repre-
sentative taking due care to settle the same with those properly
entitled thereto.^ Real estate may well be accounted for under
5. Troup V. Rice, 55 Miss. 278; 8. Supra, § 1510; 11 Phila. 118.
Lloyd's Estate, 82 Penn. St. 143. As 9. With regard to expenses of
to interest where the representative laborers etc., in getting in crops, see
draws fund from bank, see 183 Penn. 70 Ala. 63; § 1307. Cf. 106 N. Y. fe.
St. 647. 421.
6. Clark v. Knox, 70 Ala. 607, 45 1. See Boyd, Re, 4 Redf. 154; Part
Am. Rep. 23 VI., c. 2. Chattels real, leases, etc.,
7. Supra, §§ 1213, 1509. of course, if sold or underlet, enter
1661
g 1540 EXECUTORS AND ADMINISTRATORS. [PAKT VII.
siicli circumstances, under special scliedulcs; and so with all funds
set apart agreeably to law or a testator's directions for special pur-
poses. In a few States, moreover, as we have seen, both the real
and personal property of a decedent is temporarily niaiiaycd by
his executor or administrator.^
If in the sale or management of the land, under due authority
as above, the representative is guilty of culpable negligence. or
had faith resulting in loss to the estate, he may bo charged with
such loss on his accounting.^ On the other hand, he should bo
allowed for all expenses fairly incurred upon such property in the
discharge of liis trust.*
§ 1540. Charges on Account; Miscellaneous Points.
In adjusting an administration account, the probate court has
authority to reciuirc that assets not inventoried nor credited by the
executor or administrator, shall nevertheless be accounted for.^
And the validity of a claim against the executor or administrator
in favor of the estate, as growing out of his misappropriation or
abuse of trust, may thus bo established.'^
Where the executor's or administrator's accounts are not only
untrustworthy, but of a most suspicious character, he is readily
liable to be charged with omitted assets against, iiis own statements;
into administration accoiinta with its r-ost on his account. SewcU v.
personal property, fiupra, § 1223. SlinKlufF, 62 Md. 592.
See Gottsbergcr v. Smith, 2 Bradf. 86. 5. Boston v. Boylston, 4 Mass. 318;
2. Supra, § 1510. Iliirllmrt v. Wheeler, 40 N, H. 73;
3. Hftight V. Brisl>in, 100 N. Y. 29. Wills v. Dunn, 5 Gratt. 384.
3 N. E. 74; Brown v. Reed, 56 Oliio 6. Canlnor v. Gardner, 7 Paige,
St. 284. 112; Tlovoy v. Smitli, 1 Barb. 372.
4. Part VI., supra; Dry v. ("od- If, in the administration account, the
man, 39 N. .T. Eq. 258; 87 N. C. 34. representative does not charge him-
A. finished a house partly erected self witii any property whatever, but
by his wife, being iier administrator, enters simply, "the apprai-sera made
ignonint tliat she had left a will, and no return of personal projjerty," tho
suytposing liiniself life tenant of tlio court does not, by decreeing allow-
premises. He was allowed credit witli ance, fimi tliat there was no pro|>erty,
etc. MiMire v. Holmes, 32 Conn. 553.
If562
CHAP. II.] CHARGES AND ALLOWANCES UPON ACCOUNTS. § 1541
though the question is, after all, one of evidence.^ On the other
hand, where the representative has acted apparently in good faith
and for the best interests of the estate, and the probate court apH
proved his acts at the time, he deserves protection, whether all his
acts were technically legal or not.^
In general, the rule of reason is applied to charges in an admin-
istration account; technicalities cannot prevail against justice; and
where one is surcharged for an unreasonable purchase he should
be credited for proceeds turned in to the estate.^
§ 1541. Allowances to the Representative; Disbursements,
Losses, etc.
Second, as to what shall be allowed an executor or administrator
in his accounts. The opposite schedule of the administration ac-
counts, or schedule B., exhibits amounts paid out in detail, and
such sums, by way of charge to the estate, as the representative
may claim for allowance. As to the amounts paid out, all proper
disbursements made by the executor or administrator with due
regard to rules of priority and limitations as to creditors, in the
course of settling the estate, should here be credited ; and whether
the debt or claim originated with the decedent, or with himself,
he is entitled to its allowance and credit, if it be fitly charged
against the estate on the general principles of law which apply to
administration.^ Even though he paid before he was obliged to
do so, he is entitled to full credit if the estate suffered no damage
by it.^ The expenses incurred in realizing a particular fund, or
7. Downie v. Knowles, 37 N. J. Wash. 172; Hill's Estate, 88 A. 878,
Eq. 513. 242 Penn. 80; 133 P. 538. 90 Kan.
8. Owen v. Potter, 115 Mich. 557; 423.
73 N. \V. 977. Release from the dis- 1. Supra, § 1441; Edelen v. Edelen,
tributee may be shown. 192 Penn. St. 11 Md. 415. " Expenses of settling
531, 43 A. 1027. For erroneous the estate" ought to be specified by
charges against himself iu the ac- items, not allowed as a gross sum.
count, the representative should be 30 Conn. 205.
duly credited. 107 Ga. 494, 33 S. E. 2. Millard v. Harris, 119 111. 85,
€69. See, further, § 1542. 59 Am. Rep. 789, 6 N. E. 469.
9. Witt's Estate, 132 P. 1012, 74
1663
§ 1541 EXECUTORS AXD ADMIXISTEATOES. [PAET VII.
collecting a particular claim, are properly charged accordingly,
so as to present a net result.^
Following the general maxims, elsewhere fully discussed, each
credit should be allowed according to what was honestly and pru-
dently disbursed. If the representative has paid off claims at a
discount, the estate shall reap the benefit ; ^ while, for what he
may have paid out imprudently, or dishonestly, or illegally, full
credit cannot be allowed.^ Claims which have been paid in the
exercise of a sound and prudent discretion, where the local practice
leaves this fiduciary to settle and adjust with creditors, should be
allowed ; ® and it is not enough for their disallowance, that their
payment might possibly have been resisted.'' The same considera-
tions hold true of paying allowances to widow or children, legacies
and distributive shares. As distribution can only be safely made
upon a final surplus, an administration account which credits all
advancements to distributees, as they happen to be made, without
reference to the respective shares and their amounts, is erroneous
in form.* Disbursements by way of distribution are to be reckoned
on a division of the balance, all distributees being treated fairly.
And on such a basis, for whatever is advanced by the representa-
tive to parties in interest he may reimburse himself.^ What a re-
tiring representative pays over to his successor he should be cred-
ited with.^
3. Hays's Estate, 153 Penn. St. clared void. 142 Mo. 187; 43 S. W.
328, 25 A. 822. 659. And see § 1508 6 (inheritance
4 Paff V. Kinney, 1 Bradf. Sur. 1; taxes).
8\ipra, § 1638; Carruthers v. Corbin, 7. Frazer, Re, 92 N. Y. 239.
38 Ga. 75; Chevallier v. Wilson, 1 8. Pearson v. Darlington, 32 Ala.
Tex. 161. See 8 N. H. 444. 227; Rittenhouse v. Leverring, 6 W.
5. Supra, § 1431. & S. 190; Adair v. Brimmer, 74 N. Y,
6. See supra, Part V., c. 1; Rog- 539; § 1527.
ers V. Hand, 39 N. J. Eq. 270, where 9. See Part V., c. 5; Lyle v. Wil-
a claim was compromised to avoid liams, 65 Wis. 231, 26 N. W. 448;
litigation, and the residuary legatees Gundry v. Henry, 65 Wis. 559, 27
opposed the settlement. N. W. 401; Kost's Appeal, 107 Penn.
Taxes (personal) paid with rea- St. 143.
Bonable prudence are allowable, even 1. Even though he pays before his
though the tax was subsequently de- successor fjiialirios. ho may credit
1GC4
CHAP. II.] CHARGES AND ALLOWANCES UPON ACCOUNTS. § 1542
Where assets realize less on sale or collection, or othenvise prove
less valuable than as appraised in the inventory, the loss or depre-
ciation should be stated by way of credit; ^ and if proper, allow-
ance will be made accordingly." Nothing can be allowed one, how-
ever, inconsistent with the just fulfilment of his fiduciary obliga-
tions ; but he is chargeable with all losses resulting from his mal-
administration.*
§ 1542. Allowances to the Representative; Subject continued;
his Reasonable Expenses, etc.
Disbursements duly credited thus may include expenses of last
sickness, the funeral and burial expenses, the outlay for cemetery
lot and monument, all of which have been sufficiently discussed ; ^
together with those other preferred claims, commonly styled tho
charges of administration, as to which last, the representative sub-
mits his claim, as for a personal allowance, more directly to the
discretion of the court upon accounting. For an executor or ad-
ministrator cannot pay himself; but his compensation is judicially
decreed, either expressly or by the allowance of his account.*' All
himself with the payment, so long as 4. As where he paj's claims in full
the successor becomes duly charged regardless of the priority of other
with it. Allen V. Shriver, 81 Va. 174. claims. 108 Ala. 209, 19 So. 312.
2. For, reckoning upon the basis of Or incurs expense in suing a debt due
an inventory value, the accountant from himself to the estate. 150
debits himself with gain, and credits Penn. St. 307, 24 A. 623. Where he
himself with loss, instead of account- fails to keep accounts, a credit in
ing for gross amounts actually real- obscurity or doubt which he claims
ized. is treated unfavorably to him. 54
3. Supra, § 1362. As upon a sale N. J. Eq. 371, 34 A. SS2.
of stock. Jones, Ex parte, 4 Cr. C. See, further, 40 N. J. Eq. 158;
C. 185; Jones, Re, 1 Redf. (N. Y.) Knapp v. Jessup, 109 N". W. 666, 14t5
263. Or where a debtor, supposed Mich. 348, 117 Am. St. Rep. 646, 7
with good reason to be good, turned L. R. A. (N. S.) 617; § 1537.
out insolvent. Cline's .-ippeal, 106 5. See supra, §§ 1421, 1422. And
Penn. St. 617. Or in ease of a pru- as to necessaries for support of the
dent deposit of funds in a bank family, see supra, § 1448.
which afterwards fails. 38 N. J. Eq. 6. See Collins v. Tilton. 58 Ind.
259. See Part IV., cs. 2-5. 374; § 1545 post.
105 16G5
§ 1542 EXECUTOKS AXD ADMIXISTEATOKS. [PAET VII.
reasonable charges incurred for the benefit of the estate are to be
allowed to a faithful representative, together (in American prac-
tice) with a reasonable recompense for his trouble.^ And thus may
he be indemnified against loss upon contracts relating to the estate,
where he has necessarily incurred a personal liability.*
Thus, where the executor or administrator pays a debt or dis-
charges an obligation, which constituted a just charge against the
estate, out of his private funds, he may claim an allowance for the
same in his accoimt.^ And though he should have paid prema-
turely, yet for that which, regarding legal priorities, was then
justly payable, he may claim remuneration.^ Payments made in
good faith, under a de facto appointment, may be allowed, notwith-
standing a revocation of the appointment aftein^'ards.^ A sacrifice
of assets to meet obligations may be justified as not unreasonably
imprudent.^ And, where the proper disbursements exceed the re-
ceipts, relief may be had from other property belonging to the
estate, as from the decedent's lands, if the personal assets prove
insufficient.* The charge of interest by a-representative, for pay-
ments from his own means, is viewed with suspicion ; yet interest
may be allowed him on sums advanced by him, for necessary out-
lays to preserve the assets or for debts carrying interest.^
7. Nimmo v. Commonwealth, 4 H. order to complj' with the law. Win-
& M. 57; Pearson v. Darrington, 32 gate v. Pool, 25 III. 118.
Ala. 227; Edelen v. Edelen, 11 Md. 4. Reaves v. Garrett, 34 Ala. 55S;
415; Glover v. Hallcy, 2 Bradf. 291; Clayton v. Somers, 27 N. J. Eq. 230.
Clarke v. Blount, 2 Dev. Eq. 51; Usurious payments are unfavorably
Wilson, Re, 2 Pcnn. St. 325. regarded, and yet they may be al-
8. f>'upra, § 1259. lowed in certain instances. Coffee
9. Woods V. Ridley, 27 Miss. 119; v. Ruffin, 4 Coldw. 487. See 2 P. &
Watson V. McClanahan, 13 Ala. 57; H. (Va.) 124. The expense of keep-
97 N. Y. S. 171. ing a house which could not be sold
1. Johnson v. Corbett, 11 Paige, may be allowable. 7 J. J. Marsh.
265. 190. And see § 1327.
2. Bloomer v. Bloomer, 2 Bradf. 5. Liddell v. McV'ickar, 11 N. J.
(N. Y.) 33<); supra, § 1160; Sewell L. 44, 19 Am. Dec. .360; Mann v.
V. Slingluff, 62 Md. 592. Lawrence, 3 Bradf. (N. Y.) 424.
3. Or, of course, as necessary, in A novel question wiiich is likely to
16GG
CHAP. II.] CHARGES AND ALLOWANCES UPON ACCOUNTS. § 1542
But special costs and expenditures, incurred through the repre-
sentative's own culpable carelessness or misconduct, he cannot
fasten upon the estate.*^ Nor can he claim interest from the estate,
for debts paid and advances from his private funds, where he might
have met such demands seasonably out of the assets.'' ^Nor be cred-
ited with payment made for debts unauthorized by law, from a
sense of honor and to save family disgrace ; for such payments, if
honorably made, are made from one's own means.^ For whatever
losses or impairment of assets may have been occasioned by the
representative's want of due diligence or bad faith, by his dis-
obedience to the directions of a will, of a local statute, or of the
general law pertaining to the administration of the estate intrusted
to him, he is accountable.^ Nor can one charge the estate for look-
ing up or litigating some interest purely of his own, as an heir or
otherwise.^
be frequently discussed, relates to
the right of one to charge an estate
specially with the cost of procuring
sureties on his bond, or more particu-
larly for paying a guaranty company.
See 51 La. Ann. 490; Eby's Estate,
25 So. 239, 105 La. 592; 164 Penn.
St. 249, 30 A. 124 (not allowed).
The rent of a box in a safe-deposit
vault may be allowed to the repre-
sentative. Dudley v. Sanborn, 159
Mass. 185, 34 N. E. ISl.
See as to costs, (1897) 2 Ch. 190.
6. Brackett v. Tillotson, 4 N. H.
208; Robbins v. Wolcott, 27 Conn.
234; Mackin v. Hobbs, 105 N. W.
305, 126 Wis. 216; 44 So. 958, 153
Ala. 437. Losses occurring through
his negligence in taking a refunding
bond from distributees may render
the representative liable. 8 B. Mon.
461. Or where he pays without a
sufficiency of assets, debts to which
others should have been preferred.
See Part V., c. 1. In Evans v. Hal-
leck, S3 Mo. 376, the court would not
subrogate him to the rights of a
secured creditor whom he had mis-
takenly paid.
7. Billingslea v. Henry, 20 Md. 282.
8. Jones v. Ward, 10 Yerg. 160.
9. Part IV., cs. 2, 5 in detail; Wel-
dy's Appeal, 102 Penn. St. 454. A
loss of property occurring through
the representative's culpable neglect
to apply for an order of distribution
has been charged to him. Sanford
V. Thorp, 45 Conn. 241. Cf. 8 N. H.
444. And for damages to distrib-
utees by his unreasonable delay. 7J
Ala. 163.
1. Glynn's Estate, 57 Minn. 21, 58
N. W. 684. And see 163 Penn. St.
35, 29 A. 758; 111 P. 8, 158 Cal.
355; 113 P. 1105, 62 Wash. 352; 126
P. 978, 163 Cal. 681.
1667
§ 1542a EXECUTORS AXD ADMIXISTEATOES. [pAET VII.
§ 1542a. The same Subject; Hired Services and Expense; Rep-
resentative's own Debt, etc.
Expenses incidental to a sale of assets, including, if proper, an
auctioneer's bill, may be thus charged to an estate ; ^ and in certain
sales a broker's services are well employed.^ Under some circum-
stances, considering the condition of the estate, the expense of an
agent, collector, or bookkeeper, may be charged to a reasonable
amount ; ^ though not as an extra charge, where the agent was
needlessly employed to do what the representative might personally
have done." Likewise, the cost of publishing citations, and other
expenses attending the probate proceedings.® Or valuable services
rendered in procuring assets, and even the services of a detective
or other expert, or of some one employed to procure evidence or
serve as a witness, where the service was needful or just.'^ But one
cannot charge for specially employing another to do what he should
have done for himself, nor to repair his own mischief.^
Whether the executor or administrator can claim for travelling
expenses to and from court, or board and lodging, will depend upon
2. Pinckard v. Pinckard, 24 Ala. lowed, though special circumstances
250. This does not include liquors may justify such charges. -3 Redf.
furnished at an auction, nor usually 465; Miles v. Peabody, 6i Ga. 729;
any refreshments to customers. Gris- 31 So. 450, 132 Ala. 230; 77 K. E.
wold V. Chandler, 5 N. H. 492. As llOS,. 221 111. 581; Merritt v. Mer-
to purchasing lumber, see 31 Oreg. ritt, 57 N. E. 117, 161 N. Y. 634
86, 49 P. 838; Willard's Estate, 73 (reasonable). Much depends upon
P. 240, 139 Cal. 501, 64 L. R. A. 554. the size of the estate and the pres-
3. See Myrick Prob. 86; Tucker v. sure of business details in its settle-
Tucker, 29 X. J. Eq. 286. ment.
4. McWhorter v. Benson, Hopk. 28 ; See Overman v. Lanier, 73 S. E.
Morrow v. Peyton, 8 Leigh, 54; Hen- 192, 159 N. C. 437.
derson v. Simmons, 33 Ala. 291, 70 6. Reynolds v. Reynolds, 11 Ala.
Am. Dec. 590; 16 La. Ann. S56; 1 1023.
Harp. Ch. 224; 121 Cal. 609, 54 P. 7. Lewis, 7?c, 35 N. J. Eq. 99;
97. And see 16 Abb. Pr. N. S. 457. Greene v. Grimshaw, 11 111. 389.
5. Gwynn v. Dorsey, 4 Gill. & J. 8. 55 S. W. 12. 67 Ark. 340; 105
453. N. W. 305, 126 Wis. 216; 82 N. Y.
In American practice, a charge for S. 394.
clerical services is not generally al-
16G8
CHAP. II.] CHARGES AND ALLOWAXCES UPON ACCOUNTS. § 15-l:2a
custom and the special circumstances ; and all expenses of this na-
ture must have been reasonably and bona fide incurred in prose-
cuting the business of the estate ; ^ but a near relative cannot charge
the estate for offices properly gratuitous and kind, even though he
be executor or administrator.^
■An executor or administrator should not charge the esate for
services rendered by him during his decedent's lifetime, of appar-
ently a gratuitous character or recompensed by a legacy ; nor upon
any iniquitous claim.^ But for a bona fide debt due him by the
decedent, he may claim allowance as creditor on the usual footing;
all proper offsets being duly reckoned.^ And whatever the true
principle as to requiring an executor or administrator to charge
himself absolutely with a debt which he personally owes the estate,*
there can be no doubt that if he was well able to pay when he
assumed the trust, he should be charged with it on his final ac-
count, though by that time he had become insolvent.^
But an executor or administrator who in a proper case of doubt-
ful title is party to a bill of interpleader, is not, pending its de-
9. Disallowed in 3 Hayw. 123. An
administrator has no right to charge
considerably more by reason of living
at a distance from the place where
his duties have to be performed.
Watkins v. Romine, 106 Ind. 378, 7
K E. 193. See 80 N. Y. S. 214.
Actual travelling expenses were al-
lowed in Dcy v. Codman, 39 N. J.
Eq. 258. As to travel on business of
the estate with one's own horse, car-
riage, and fodder, see 4 Dem. 536.
See also 31 Oreg. 86, 49 P. 886; 122
Cal. 260, 54 P. 957. See 82 P. 577,
14 Wyo. 101; 31 Oreg. 86, 49 P.
886; 122 Cal. 260, 54 P. 957; 147
Mo. 319, 48 S. W. 915.
1. Lund V. Lund. 41 N. H. 355.
And see 106 N. Y. S. 471.
2. Egerton v. Egerton, 17 N. J. Eq.
419; supra, § 1431; Pursel v. Pursel,
14 N. J. Eq. 514.
3. Supra, § 1439. See, further,
Kerr v. Hill, 2 Desau. 279; Dickie v.
Dickie, 80 Ala. 37.
4. See § 1208; Baucus v. Stover,
89 N. Y. 1 (which reverses S. C. 24
Hun, 109). And see 69 Cal. 239, 10
P. 335.
5. Condit v. Winslow, 106 Ind. 142,
5 N. E. 751; 69 Cal. 239, 10 P. 335;
§ 1208 supra. See Ike's Estate, 84
A. 786, 236 Penn. 429. Under the
New York code the representative is
chargeable for the indebtedness of a
firm of which he is a member. 95
N. Y. 340. See 88 N. C. 407.
1G69
§ 1543 EXECUTORS AND ADMINISTEATOES. [PAKT VII.
tonnination, chargeable with a sum which may ultimately be de-
cided to belong to the estate.^
§ 1543. Expenses of Education, Maintenance, Advancements,
etc.
Expenses of education and maintenance devolve, usually, upon
trustees under a will and guardians, rather than upon the fiduciary
who administers and distributes the estate^ An administrator
cannot in general be credited, in his accounts, for board, clothing,
or other necessaries of his adult distributees ; ^ for such outlay, if
matter of allowance at all, affects only the method of paying fully
the share of an individual distributee, as if the representative ad-
vanced him so much money. On a settlement of administration
accounts, one is not properly credited for money advanced by him
to a distributee; but the amoimt may be charged by him against
the distributee when the latter's distributive share is ascertained.^
But statute allowances to widows and young children stand on
their own peculiar footing ; ^ and, as to executors, these may have
the right and duty of applying sums for education and mainte-
nance, in exceptional instances, under a testator's directions.^
Upon equitable principles our probate courts may allow either to
executors or administrators sums advanced for an infant legatee's
or distributee's education and maintenance; and such jurisdiction,
it is held, may be implied even if not expressly conferred.^
6. Sanderson v. Sanderson, 20 Fla. And see State v. Donegan, 83 Mo.
292. 374.
7. See Perry Trusts, 117, 612; 9. Dickie v. Dickie, 80 Ala. 57;
Schoul. Dom. Rel. 3d ed. § 238. Fitzgerald's Estate, 57 Wis. 508, 15
8. Brewster v. Brewster, 8 Mass. N. W. 794; § 1541.
131; Trueman v. Tilden, 6 N. H. 201; 1. Supra, § 1451; Mead v. Bying-
Willis V. Willis, 9 Ala. 330; Serin ton, 10 Vt. 116; 1 Har. & J. 227;
V. Olinger, 12 Ind. 29; 10 Sm. & M. Simmons v. Boyd, 49 Ga. 285.
179; 8 Jones L. 111. Rent of a fam- 2. Triggs v. Daniel, 2 Bibb, 301;
ily pew, occupied by the family after Harris v. Foster, 6 Ark. 388.
the testator's death, follows this rule. 3. Hyland v. Baxter, 98 N. Y. 610.
Scott V. Monell, 1 Redf. (N. Y.) 431. And see Munden v. Bailey, 70 Ala.
1670
CHAP. II.] ClIAEGES AND ALLOWANCES UPON ACCOUNTS. § 1544
Charges for the maintenance or education of the decedent him-
self are reckoned like other claims against an estate; and, while
the representative's own charge in such connection invites scinitiny,
it may, if proper, be allowed him.*
§ 1544. Allowance of Counsel Fees, Costs, etc.
Executors or administrators who ask legal advice, employ coun-
sel, or incur costs in litigation on behalf of the estate, may claim
reasonable allowance for the same in their accounts, such employ-
ment being reasonable and proper.^ It is the duty of a representa-
tive to defend the estate against claims which he honestly, and
upon reasonable grounds, believes to be unjust; and these expenses
should be reimbursed, even though the suit be lost; ® and certainly,
if the estate benefit by it The principles are those discussed else-
where : good faith and ordinary prudence on his part, in protecting
the interests he represents, are all that may be exacted of him ; ^
and, in employing counsel, he incurs a personal liability, his lien
63. iloneys may be thus expended
in good faith and properly for infant
legatees or distributees who have no
guardian. Rogers v. Traphagen, 42
N. J. Eq. 421; 39 N. J. Eq. 258; 20
Fla. 262; GilfiUen's Estate, 170 Penn.
St. 185, 50 Am. St. Rep. 760, 32 A.
585; Ford v. Ford, 80 Wis. 565; 6
Houst. 552. See De Vany Re, 132
N. Y. S. 1126 (advancement to leg-
atee repaid by her).
4. Malony's Appeal, 11 S. & R.
204; Wall's Appeal, 38 Penn. St. 464.
And see 4 Redf. 380.
5. Wms. Exrs. I860; Macnamara
V. Jones, Dick. 587; 24 W. R. 979.
See also § 1256. The fact that the
administrator was insane when he
paid does not deprive him of such
credit. 95 N. C. 265. Reasonable
compensation for services and ex-
penses in rectifying mistakes made
without the representative's fault is
16
allowed. Bartlett v. Fitz, 59 N. H.
502.
Some States, in practice, are op-
posed to giving credit for attorney's
fees paid by the fiduciary to a firm of
which he is a member. 93 Ind. 121.
But in other States a fiduciary who is
also a professional lawyer, is entitled
to make the usual professional
charges, provided his whole recom-
pense be fair and reasonable. 70 Ala.
607, 45 Am. Rep. 93. See also 28 So.
415, 127 Ala. 328; Porter v. Long,
83 N. W. 601, 124 Mich. 584; 80 N. E.
1121, 188 N. Y. 542; 128 N". W. 32,
87 Neb. 700; 136 N. Y. S. 633.
6. 32 Ala. 227; 6 Greenl. 48; Pol-
hemus v. Middleton, 37 N. J. Eq. 240;
6 Allen, 494; 19 N. H. 205; 35 Miss.
540; 31 Penn. St. 311; 28 Vt. 765; 4
Redf. 302.
7. Supra, § 1314.
n
1544
ESECUTOES AXD ADMIXISTRATOES.
[part VII.
on the assets sen-ing for bis own indemnity.^ With such reserva-
tions, the expenses of a litigation bona fide incurred, whether for
procuring the probate of a will or one's appointment, or in the
due course of administration, as in the pursuit of assets, or in
resistance to creditors, or in asking instructions of the court, as
also by way of accounting in compliance with the law and the terms
of his bond, are allowed, with considerable indulgence, out of the
assets, that a faithful representative may not personally suffer.'
8. Supra, § 1256; McHardy v. Mc-
Hardy, 7 Fla. 301; Parker v. Day,
155 N. Y. 383, 49 N. E. 1046.
9. Wms. Exrs. 376, 594, 860, 1894;
cases supra; 33 Ala. 291, 70 Am.
Dec. 590; 8 Gill, 285. One may
specially limit his liability by a con-
tract that the attorney shall look to
the estate alone for payment. 58
Md. 58. The court makes its own
allowance, but the contract with
counsel depends upon the parties.
Kruger's Estate, 85 P. 891, 143 Cal.
141. As to the liability of executors
or administrators for costs, upon a
non-suit or a verdict against them,
see Wms. Exrs. 1894, 1897, 1980.
Costs in suits asking directions under
a will, etc., and in such other amic-
able litigation as may bo justifiable
under the particular circumstances,
are usually allowed, at the court's
discretion, out of the estate. Wms.
Exrs. 376, 2034, 2038; L. R. 1 P. &
D. 655; 1 Paige, 214; 31 N. J. Eq.
234; 159 Mass. 185, 34 X. E. 181.
And to such awards probate and
equity courts incline in their own for-
mal practice. In probate causes, in
some States, however (probate pro-
ceedings being conducted somewhat
informally), it is not customary to
allow costs to either party. 12 Allen,
17; 7 Cray, 472. And see 4 Redf. 1.
1G7
Local practice usually determines the
question of costs, independently of
external jurisdictions.
Contingent fees, or fees beyond
those taxable, may be consistent with
local practice. 2 H. & M. 9; 29 Misa.
72. But legal expenses, and the rea-
sonable fees of attorneys or counsel
employed in good faith, are thus al-
lowable; not money paid out by way
of a compromise. 33 Ala. 291, 70
Am. Dec. 591. Each case must stand
on its own merits as to allowing the
executor or administrator for costa
and fees in litigation. 9 Ala. 734; 31
Oreg. 86, 49 P. 886. The representa-
tive cannot bind the estate by a
promise to convey a portion of the
land recovered by suit as the attor-
ney's contingent fee. 64 Ark. 438, 44
S. \Y. 348. Allowances of this char-
acter are found regulated by local
statute. Seman v. Wliitehead, 78 N.
Y. 306. In some cases the counsel
services were not really rendered to
the representative but upon the stip-
ulation of the widow and sole devisee.
Wliether the representative can agree
to give an attorney half of what ho
may recover by getting certain fraud-
ulent transfers by the decedent set
aside, see Piatt v. Piatt, 105 N. Y.
488, 12 N. E. 22. Costs made by
claimants in successfully prosecuting
2
CHAP, II.] CnARGES AND ALLOWANCES UPON ACCOUNTS. § 1544
These considerations apply to taxing court costs, or to the fees of
artorneys and counsel in or out of court/ and to proceedings on
appeal as well as in the original jurisdiction.^ One may even be
allowed his reasonable expenses incurred in defending the will he
serves under^ or his own good conduct when attacked by others.^
But bills for legal services, counsel fees, and the costs of litiga-
tion, are not to be allowed to the personal representative where the
expense was not incurred in good faith, as reasonably calculated to
promote the benefit of the estate.'* Nor where, in instituting litiga-
tion or suffering it to proceed, or in managing the cause on his own
part, the representative was culpably remiss in the performance
of the duty confided to him.^ Nor where the expense was incurred
by him, against the interests of the estate, and for his own express
benefit as in needless and selfish antagonism, or in resisting just
proceedings against him,*' or because of his misconduct." I^or for
ser^nces in connection with matters which lie outside the range of
his official duty.^ ISTor where, imprudently or dishonestly, he has
clai-ms against an estate are not ex-
penses of administration. Taylor v.
Wright, 93 Ind. 121.
1. 8 Thomp. & C. (N. Y.) 211; 30
Ark. 520.
Excessive fees are to be disallowed.
49 Pa. Super. Ch. 122; 137 N. Y. S.
1010 (experts).
2. Hazard v. Engs, 14 R. I, 5.
3. Tuckerman v. Currier, 129 P.
210, 54 Colo. 25; 143 N. Y. S. 775;
Armstrong v. Boyd, 79 S. E. 780, 140
Ga. 710.
4. O'Neil V. O'Donnell, 9 Ala. 734.
5. Green v. Fagan. 15 Ala. 335. As
where the representative defended a
suit properly brought against him by
reason of his delinquency. Lilly v.
Griffin. 71 Ga. 535.
6. Mims V. Mims, 39 Ala. 716;
Stephens' Appeal, 56 Penn. St. 409;
Cameron v. Cameron, 15 Wis. 1, 82
Am. Dec. 652; Dorris v. IMiller, 105
Iowa, 564, 75 N. W. 482; 141 Mo.
642, 143 S. W. 617; 122 Cal. 230, 54
P. 957; 107 N. C. 278, 12 S. E. 134;
107 N. C. 278. As where an execu-
tor who was also a legatee contested
against other legatees as to his own
legacy. 65 Cal. 287, 3 P. 896. Where
the same litigation involved points
partly for the executor's personal
benefit and partly for the benefit of
the estate, the costs and charges
should be fairly apportioned. Clem-
ent's Appeal, 49 Conn. 519. And see
Kingsland v. Scudder, 36 N. J. Eq.
284. An administrator may have to
pay all costs arising on just excep-
tions to his account, but not the costs
of settling the estate. 58 Iowa. 36.
7. 37 Ala. 683: 109 Mass. 541; 81
Penn. St. 263; 109 Ala. 117, 29 So.
440.
8. Lusk V. Anderson, 1 Met. 426;
2 Bibb, 609; 17 Wash. 683, 50 P. 580;
1673
§ 1544 EXECUTOKS AND ADMIXISTEATOKS. [PAET VII.
incurred needless expenditure in the execution of his trust; em-
ploying legal services where none were required, or more counsel
than was reasonably needful and proper, or settling extravagant
fee bills without a prudent scrutiny.^ Nor in general where such
sen-ices were unnecessary. The general rule is, moreover, that
attorney's fees are not to be recovered from an adverse party.^
Costs or counsel fees are not usually to be credited on the rep-
resentative's accounts, unless he has paid them.^ And where an
attorney performs services properly belonging to the representa-
tive himself, compensation for both of them cannot reasonably be
allowed.^ All such counsel services are a personal charge to the
representative in the fii^st instance according to American practice ;
and his effort is to have them allowed him on his account.^ In
various important instances an executor or administrator is called
upon to employ legal counsel and may rely upon professional ad-
vice as to prosecuting or settling a claim, or otherwise performing
his proper duties ; ^ but he does not thereby forego his own duty of
prudence and honor.^ And 'yet there might be excessive expenses
incurred where he was not responsible.^
80 Cal. 625, 22 P. 260; 120 X. C. 472, So. 440. See, further, 146 S. W.
27 S. E. 121; Robert's Estate, 163 1124, 148 Ky. 370 (counsel to uphold
Penn. St. 408, 30 A. 213. the will against attack) ; Cowie v.
9. Crowder v. Shackelford, 35 Miss. Strohmeyer, 136 N. W, 958, 150 Wis.
321; Liddell v. McViekar, 11 N. J. L. 401; 133 N. Y. S. 1104; 54 So. 127,
44, 19 Am. Dec. 369. And see 127 La. 857 (order of court) ; 127
Smyley v. Reese, 53 Ala. 89, 25 Am. N. Y. S. 884 (representative at
Rep. 598; 5 Dem. (N. Y.) 244. fault) ; Frick v. Dension, 81 A. 597,
1. Dorris v. Miller, 105 Iowa, 534, 116 Md. 296 (do.) ; 137 N. Y. S. 1129
75 N. W. 482. (judge disqualified as counsel) ; At-
2. Thacher v. Dunham, 5 Gray, 26; kinaon v. May, 57 Neb. 137 (counsel
40 Ala. 391, 421, 100 N. Y. S. 471, of a contesting legatee); 71 Vt. 160
As to allowing them directly to the (bill of interpleader); Overman v.
attorney, see 12 W. Va. 427. Lanier, 73 S. E. 192, 157 N. C. 544
3. 4 Dem. 333. See Kingsland v. (litigation over commissions, etc.);
Scudder, 36 N. J. Eq. 284. Witt's Estate, 132 P. 1012, 74 Wash.
4. 3 Dem. (N. Y.) 1. 172 (excessive fees disallowed) ;
5. See 142 Mo. 187, 43 S. W. 659; Davison v. Sibley, 79 S. E. 855, 140
§ 1274; 99 Tenn. 462, 42 S. W. 199. Ga. 707 (probate in solemn form
6. Prj-or V. Davis, 109 Ala. 117, 19 compelled) ; N«l.son v. Schoonover,
1674
CHAP. II.] CHARGES AND ALLOWANCES UPON ACCOUNTS. § 1545
§ 1545. Compensation of Executors and Administrators.
A-s to comp(>iisation, the long-established English rule of chan-
cery has been, that a fiduciary office is honorary and gratuitous.
Hence, the executor or administrator must sen^e without i'e<jom-
pense for his own services, being strictly forbidden to make profit
out of his office.^
American policy, on the other hand, binds the executor or admin-
istrator closely to the ci3urt in his official dealings; but renders the
judicial proceedings as inexpensive as possible, and remunerates
him for faithful services; holding him bound, in consequence, to
fulfil his trust with a just sense of the legal obligations which it
imposes. It discourages the idea of recompensing deputies liber-
ally for duties which the representative may himself capably ren-
der. And, compensation being thus allowed, the legal liability is
greater ; and more stress is laid upon personal qualifications for the
trust.
132 P. 1183, 89 Kan. 779; Dunlop's
Estate, 142 N. Y. S. 286 (employ-
ment by co-executors).
7. Edelmeyer Re, 142 N. Y. S. 26.
8. Perry Trusts, §§ 432, 904; Rob-
inson V. Pett, 3 P. Wms. 132; Wms.
Exrs. 1853. A consequence not un-
natural is, that the labors of the
office with its responsibilities becomes
unduly shifted, where the estate is a
large and onerous one, upon solicit-
ors, proctors, counsel, and officers of
the court; so that the actual repre-
sentative finds himself administering,
not unfrequently, for the peculiar
profit of those whom he must trust
to lead him, unless he can keep his
business out of the courts as non-
contentious.
Tlie English chancery rule, as to
trustees, too, has been very strict,
that tmstees cannot derive direct or
indirect profit from the estate they
represent; that they cannot be fac-
16
tors, experts, brokers, receivers, nor
even make charges against the estate
represented for professional services
rendered, notwithsanding the profes-
sional or expert knowledge they may
have brought to the discharge of the
trust. Perry Trusts, §§ 132, 904.
Even though trustees carry on a
trade under the testator's direction,
they can charge nothing for their ser-
vices, notwithstanding the perilous
risks they incur. Perry Trusts, §
906.
But it has been found necessary to
allow compensation in British col-
onies in order to induce suitable men
to accept the office; and probably
with the modern development of
wealth invested in personal secur-
ities, other exceptions wil'l be con-
ceded by the English Parliament.
See as to trustees, Perry Trusts, §
904; and as to guardians, Schoul.
Dom. Rel. § 375.
75
§ 1545
EXECUTORS AXD ADMIXISTEATOES. [PAKT VII.
Compensation being now allowed to the personal representative
in, perhaps, every State in this Union, upon maxims of sonnd
policy which our most eminent equity jurists have inculcated,^ it
becomes matter of local custom or enactment what compensation
shall be reasonable. In many States, a commission on the amounts
received and paid out is allowed ; an excellent basis for such a
computation, and, perhaps, universally approved in this country,
wherever a fiduciary's recompense is passed upon.^ But as such a
9. '■ The policy of the laAV ought to
be such as to induce honorable men,
■without a sacrifice of their privata
interests, to accept the office." 2
Story Eq. Jur. § 1268 n. Ana see
Boyd V. Hawkins, 2 Dev. Eq. 334;
Perry Trusts, § 917. But see Chan-
cellor Kent in 1 Johns. Ch. 37, 534, 7
Am. Dec. 475, 534. Also the Dela-
ware rule as applied in State v. Piatt,
4 Harring. 154. American policy is
in favor of granting remuneration.
Perry Trusts, § 917; Schoul. Dom.
Rel. § 375; Barney v. Saunders, 16
How. (U. S.) 542, 14 L. Ed. 1047;
Clark V. Piatt, 30 Conn. 282; Wms.
Exrs. 1853, Perkins's note. And it
may also be said that wliile executors
are selected by a decedent as matter
of personal trust or confidence to ad-
minister, an administrator is ap-
pointed to perform duties without
any such essential relation to the
estate represented.
1. The allowances made for the
compensation of executors and other
fiduciary officers varies in difierent
States; but the local statutes on the
subject are digested in Perry Trusts,
§ 018, and notes. In the larger num-
ber of States the compensation is by
way of a commission, which may
vary, according to circumstances,
from one to ten per cent., wliicli last
IG
is usually the maximum. The New
York rule established is five per cent,
on sums not exceeding one thousand
dollars; half that amount upon all
sums between that and five thousand
dollars; and one per cent, on sums
exceeding that amount. 3 Johns. Ch.
43. This rule practically obtains in
other States as fixing on the whole a
fair average rate. One-half the com-
mission is for sums received, and the
other half for sums disbursed. The
New Jersey statute fixes a higher
rate of commissions. Perry Trusts,
§ 918, note. Three and a half com-
mission upon an estate of nearly
$300,000 was not thought excessive
where the executors had to carry on
litigation, and sell real estate under
a power. 39 N. J. Eq. 270. And
courts have been even more liberal
than this. 189 Penn. St. 385, 42 A.
28. But in an estate of .$500,000,
whose settlement gave very little
trouble, two per cent, was thought
enough. 37 N. J. Eq. 578. And so
is it in various other States. Perry,
ib. See 28 La. Ann. C38; 11 Phila.
(Pa.) 26, 39, 92; 2 Kedf. (N. Y.)
244. 255, 312, 465. Cf. 18 R. I. 120, 25
A. 1099. Commissions on credits or a
set-ofT, where a claim is adjusted, are
not favored; that should rather be
computed on tlie balance; and com-
76
CHAP. II.] ClIAEGES A^^D ALLOWANCES UPON ACCOUNTS. § 1545
rule meets routine rather than extraordinary services, our later
cases appear inclined to allow to an executor or administrator,
besides the usual commission, a moderate charge for professional
and personal services specially rendered by him, where sucli skill
was needed and bestowed, and where he was capable of bestowing
it; ^ and such is the positive rule of some States.^ Each local rule
missions on a debt owing to the rep-
resentative himself should bo disal-
lowed. 85 Penn. St 398; 38 Tex. 109
Nor can commissions be charged on
what the representative owes to the
estate. 156 Penn. St. 473. And see
Handy v. Collins, GO Md. 229 (debt
forgiven by the will).
Double and contemporaneous com-
missions on a constructive change of
capacity are in New York treated
with disfavor. Johnson v. Lawrence,
95 N. Y. 154. And so, too. Thorn v.
Thorn, 95 Va. 413, 28 S. E. 583. But
executors taking a fund as trustees
are entitled to commissions in each
consecutive capacity. 39 N. J. Eq.
493; 42 N. J. Eq. 361; Willets, Re,
112 N. Y. 2S9. The executor or ad-
ministrator may claim commissions,
even though the property received re-
mains in his hands in the same state
as when he received it. 3 Dem. 289.
Full commissions in good money can-
not be charged upon collections made
in depreciated currency. 75 Ala. 162.
As to fixing the statute rate of com-
pensation on income, see 2 Dem. 257.
An executor cannot usually claim
compensation or commissions for
turning over specific bequests to the
persons entitled to them. 1 Dem.
296. Nor can commissions be
claimed on trust funds of decedent.
169 111. 93, 48 N. E 218. Nor on the
principal items of a large transac-
tion of the decedent, which the rep-
16
resentative closes out by merely re-
ceiving a balance. Hitchcock v.
Mosher, 106 Mo. 578, 17 S. W. 638.
For commissions are properly com-
puted upon what one administers;
not upon the gross personalty as the
decedent owned it. lb. Cf. 145 Penn.
St. 459, 22 A. 962.
Where the distributees take the se-
curities left, commissions are allowed
as for a sale. Ill N. Y. S. 40. As
to commissions where one is executor
and then trustee, see McAlpine Re,
126 N. Y. 285, 27 N. E. 475, 19 N. E.
690.
2. Wendell v. Wendell, 19 N. H.
210; 11 Phila. 95. In New Hamp-
shire, Maine, and Vermont, the court
gives a per diem compensation for
time, travel, labor, etc. Perry Trusts,
§ 918. Where an executor gave much
time to managing and carrying on
farms belonging to the estate, he was
allowed a reasonable compensation
for this service, besides the usual
commissions as executor. 70 Vt. 458,
41 A. 508; Lent v. Howard, 89 N. Y.
169. Cf. 109 N. W. 866, 146 Mich.
368.
And see for extra allowance under
peculiar circumstances of difficulty
and responsibility, 113 Mich. 561, 71
N. W. 1085. Such allowance is usu-
ally discretionary with the court. lb.
3. Sec statute cited in 90 Wis. 236.
In order to recover for extraordinary
services it must appear that they
77
1545
EXECUTORS AITD ADMINISTRATORS.
[part VH.
is based largely upon local statutes. Such services are sometimes
estimated by the court, in fixing the commission ; but in most ISTew
England States where the court is empowered to allow what is rea-
sonable, specific sums may be charged for special services in addi-
tion to the usual commission, or in lieu thereof, provided the whole
does not exceed a fair rate of compensation ; and the court may
vary the allowance according to circumstances.* Claims for special
were necessary, and that the usual
compensation is insufficient. 93
Iowa, 303, 61 N. W. 975. For un-
collectible debts, specific compensa-
tion, not a commission, should be the
recompense. 40 W. Va. 161, 20 S. E.
933. See, further, Hodgman Re, 140
N. Y. 421, 35 N. E. 660; 98 Mich.
319, 57 N. W. 171.
4. Longley v. Hall, 11 Pick. 120;
Emerson, Appellant, 32 Me. 159;
Roach V. Jelks, 40 Miss. 754; Evarts
T. Nason, 11 Vt. 122; Clark v. Piatt,
30 Conn. 2S2.
A gross sum should not be charged
generally for services, without some
specification of particulars. 41 Ala.
267. But a gross sum is permitted
to be charged in some States. Charg.
ing more than the statutory remun-
eration, for services to heirs, etc., is
not permitted. 59 Mo. 585; 6 Rich.
Eq. 2. Ea?h heir specially served
should pay his own recompense. See
Morrison's Estate, 46 A. 257, 196
Penn. St. 80. As to the Illinois rule,
which treats claims for professional
service with disfavor, see Hough v.
Harvey, 71 111. 72.
Where a will directs a six per cent,
commission allowed upon " all mon-
eys collected," this means " collec-
tions " merely, and does not embrace
the entire estate. Ireland v. Corse,
67 N. Y. 343. See 93 P. 121, 6 Cal.
App. 730.
10
Real estate may be properly con-
trolled by the representative and a
commission allowed. Eshleman's Ap-
peal, 74 Penn. St. 42; 70 Ala. 575; 70
Cal. 69, 11 P. 471; 118 Cal. 462, 50
P. 701. For the rule of commissions,
where an incumbrance is discharged
and applied to a claim, see 36 Tex.
116; 30 Ark. 520; 42 Ohio St. 53.
And see, as to selling lands under a
power, 24 Hun, 109; Twaddell's Ap-
peal, 81* Penn. St. 221; 38 N. J.
Eq. 405. On a sale of real estate, a
commission exceeding two and one-
half per cent, is rarely allowable. 11
Phila. 53. Commissions based on a
constructive possession of assets, and
not actual, are not favored. 51 Miss.
211; 30 Ark. 520. And thus is it as
to merely constructive dealings with
the decedent's real estate. 43 W. Va.
296, 27 S. E. 319. Or with no such
dealings at all. 17 Wash. 875, 50 P.
587. See, also, 72 S. E. 466, 89 S. C.
551; 137 N. Y. S. 438 (will directing
conversion of real estate into person-
alty) ; 127 P. 55, 163 Cal. 801 (will
empowering a sale of real estate) ;
Nelson v. Schoonovcr, 132 P. 1183, 89
Kan. 779.
As to an administrator de bonis
non and his commissions, see My rick
Prob. 163. Special administrators
arc not usually entitled to full com-
missions. 41 Ala. 267; 67 Mo. 415.
But cf. 106 N. Y. S. 1073; 137 Ga.
78
CHAP. II.] CIIAEGES AND ALLOWANCES UPON ACCOUA'TS. § 154:5
allowances should, however, always be closely scrutinized, as the
representative here employs himself, so to speak; all items im-
proper should be disallowed, and exorbitant amounts reduced.^
Commissions and compensation may be forfeited by the repre-
sentative's misconduct and culpable remissness in his trust.^ And,
if one has been appointed on a distinct understanding with those
interested to serve as executor or administrator without recom-
147, 72 S. E. 899. Co-executors or
co-administrators are, as a rule, en-
titled to share the commissions
equally. 4 Abb. App. Dec. 57S; 40
N. J. Eq. 517; Squier v. Squier, 30
N. J. Eq. 627. But they may arrange
with one another as to duties and
compensation. See 4 Md. Ch. 368; 8
Md. 548; § 1545, note. And a sur-
vivor of co-representatives may be
favored, who has done all the work.
87 Md. 43, 39 A. 102. And so other-
wise the quantum and value of eash
one's services may be considered. 4
Dem. 463; 88 Mich. 614, 26 Am. St.
Rep. 306, 50 N. W. 654. A public
administrator who seeks an appoint-
ment, knowing that by law he is not
entitled, can claim no recompense. 27
La. Ann. 574.
As to executors who are testamen-
tary trustees, and their commissions,
see 4 Redf. (N. Y.) 34; 11 Phila. 80.
Concerning the time when commis-
sions should be computed, see Drake
V. Drake, 82 N. C. 443. One should
not appropriate his commissions un-
til they have been allowed; but he
may retain funds to meet them.
Wheelwright v. Wheelwright, 2 Redf.
(N. Y.) 501. See, further, Harrison
V. Perea, 168 U. S. 311; 42 L. Ed.
478.
5. Although one may be surcharged
for some improper expenditure, yet
his good and beneficial management
on the whole may entitle him to full
recompense. 166 Penn. St. 121.
6. Brown v. McCall, 3 Hill, 335 ; 67
A. 954, 219 Penn. 46; Hapgood v.
Jennison, 2 Vt. 294; 3 Green, 51;
Clauser's Estate, 84 Penn. St. 51;
Eppinger v. Canepa, 20 Fla. 262: 36
La. Ann. 420. Neglect to render ac-
counts until citation does not neces-
sarily forfeit commissions, though it
is an unfavorable circumstance. Bar-
calow. Re, 29 N. J. Eq. 282. See
10 S. C. 208; 4 Redf. 34; 94 N. C.
720. One may forfeit commissions,
and yet be entitled to a reasonable
recompense. 3 Green, 51. One who
discharges his duties faithfully and
with advantage to the estate, does
not forfeit commissions for keeping
on hand larger amounts than he
ought; though this might make him
chargeable for interest on the excess
thus lying idle. Frost v. Denman, 41
N. J. Eq. 47, 2 A. 926. One may be
entitled to commissions or compensa-
tion and yet have to pay interest, or
be surcharged for some improper out-
lay. 166 Penn. St. 121, 24 A. 502;
supra, § 1538. See, further, 42 N. J.
Eq. 337; Stevens v. Melcher, 152 N.
Y. 551, 46 N. E. 965. As to the eflfect
of a statutory change in the rule,
see 64 Md. 517, 2 A. 943.
1679
§ 1546
ESECUTOES a:xd admixisteatoks.
[PAKT
VII.
pense, or at a stated compensation, he must abide hj his engage-
ment.^ But as a general rule, an honest and prudent fiduciary is
entitled to his just recompense; ^ and while one remains honest and
prudent he may be allowed recompense, even though his subsequent
maladministration should debar all claim for continuing such al-
lowance.^
For illegal allowances voluntarily made, the executor or admin-
istrator is responsible to the estate.^
§ 1546. General Matters as to Charges and Allowances, Bequest
in Lieu, etc.
A few points may here be added as to charges and allowances on
accounting. An administration account, rendered in the probate
court for settlement, is said to be in the nature of a declaration
in a writ ; so that, unless amended by order of court, a greater sum
than actually charged cannot be allowed to the representative,
7. Davis, Re, 65 Cal. 309, 4 P. 22.
It is immaterial that such promise
was not made with all the parties
interested. Bate v. Bate, 11 Bush,
639. But the agreement of one execu-
tor to waive commissions cannot
prejudice the right of his co-executor.
14 Phila. 290; § 1401. See 146 Mo.
436, 46 L. R. A. 232, 48 S. W. 653;
68 A. 763 (X. J. 1907); Hilton v.
Hilton, 109 S. W. 905, 33 Ky. Law.
276 (expenses only allowed) ; Cook
V. Stockwell, 100 N. E. 131, 206 N.
Y. 481 (waiver binding). Making no
charge is not per se a waiver, 87 P.
241, 4 Cal. App. 43. Any agreement
with the heirs for an extra compensa-
tion is subject to the court's discre-
tion as to allowing it. 107 N. Y. S.
277. See, further, 128 N. Y. S. 255
(contract of sole legatee with execu-
tor) ; Avey V. Stcarman, 140 S. W.
1045, 145 Ky. 574 (commission on
one's own legacy) ; 147 Mo. 310
(proper travelling expenses allowed) ;
140 S. W. 1070; 125 Tenn. 182 (rea-
sonable compensation) ; 137 Ga. 147,
72 S. E. 899 (extraordinary services) ;
54 So. 127, 127 La. 857 (compensa-
tion denied for maladministration) ;
81 A. 1135, 79 N. J. Eq. 230 (trus-
tee) ; 157 N. C. 544, 73 S. E. 192
(compensation proportionate to the
service) ; 136 S. W. 681, 233 Mo. 607
(executor and trustee) ; 80 A. 363,
231 Penn. 299 (large estate); 127
N. Y. S. 879; Brown, Re, 139 N. Y.
S. 342 (official salary).
8. Pryor v. Davis, 109 Ala. 117, 19
So. 440; 166 Penn. St. 121, 45 Am.
St. Rep. 356, 30 A. 1030.
9. Foster v. Stone, 67 Vt. 336, 31
A. 841.
1. As wlicre he allows to his intes-
tate's surviving partner for personal
services in the business. Loomis v.
Armstrong, 49 Mich. 521, 14 N. W.
.505.
1680
CHAP. II.] CHARGES AND ALLOWANCES UPON ACCOUNTS. § 1546
either in that court or upon appeal.^ But, as to commissions and
interest, the probate practice, in some States, is to omit such items
when the accomits arc presented, so as to allow them to be entered,
or the amounts carried out, upon the hearing before the judge of
probate.^ In making up a final account, items for subsequent ex-
penditure may be specified by way of anticipating payment, and
the balance struck accordingly.* And it may be just and proper
to defer the complete recompense until the complete performance
of one's duties, so that only partial recompense shall be allowed at
intenncdiate periods,^
A bequest to an executor may be made in full of compensation
for his trust; ® but unless the language of the will shows that the
bequest is to be by way of specific compensation, this does not de-
prive him of the right to charge commissions.^ Nor does the fact
that an administrator is also a distributee compel him to treat his
distributive share as his recompense for ordinary services. The
right to retain commission or compensation does not properly
accrue until the account has been submitted and allowed.^ Ameri-
can practice in these days does not favor the deprivation of an ex-
ecutor's fair rights by anything the will itself may contain, even
though this executor should probate the will. It is held that a tes-
tator cannot take away his executor's recompense by restrictions
thus attempted ; for, where there has been full and just adminis-
tration, even the court has no power to deprive the fiduciary who
2. Pettingill v. Pettingill, 64 Me. Runyon's Estate, 125 Cal. 195, 57 P.
350. 783; Ireland v. Corso, 67 N. Y. 343
3. Lund V. Lund, 41 N. H. 355, 364; (commissions specified in will) ;
113 Mich. 561, 71 N. W. 10S5. Waechter's Succession, 59 So. 918,
4. See Hone v. Lockman, 4 Rcdf. 131 La. 505; Richardson v. Richard-
(N. Y.) 61, as to adding items of re- son, 129 N. Y. S. 941 (legacy for
ceipts and expenditures subsequent to compensation does not abate),
filing the final account. As to compensation of an executor
5. See 49 N. J. Eq. 549. who, without authority, continues the
6. See provision of such a will in business of his testator, see Archer
38 N. J. Eq. 405; Syme v. Badger, 92 Re. 137 N. Y. S. 770; Gilligan v.
N. C. 706. Daly, SO A. 994, 79 N. J. Eq. 36.
7. Mason, Re, 98 N. Y. 527. See 8. 4 Dem. (N. Y.) 463.
106 1681
§ 1547 EXECUTORS AXD ADillXISTEATORS. [PAET VII.
settles the estate of the minimum compensation which the law gives
him.®
Our local statutes sometimes permit executors to elect between
the commissions fixed bv law and any testamentary provision in
lieu thereof.-^ Where, however, an executor accepts his office with
deliberate knowledge that the will has fixed his recompense for
such sen-ices, he is usually to be held bound thereby.^
§ 1547. Accounts and Allowances, as to Foreign Assets.
A foreign executor or administrator cannot be compelled to ac-
count, unless he has brought assets into the domestic jurisdiction;
nor then, necessarily, as one answerable to the local probate court
and not rather in chancery, on general maxims.^ The expenses
attending a sale of lands in a foreign jurisdiction, or the taxes
paid on such real estate, are not properly allowed upon an admin-
istration account rendered in the domestic forum.^
9. Handy v. Collins, 60 Md. 229. State are granted in that State to a
1. 1 Dem. 244, 337. citizen of Pennsylvania, the Pennsyl-
2. Hays's Estate, 183 Penn. St. vania courts have refused to take any
296, 38 A. 622; 98 N. Y. 527. jurisdiction to compel the settlement
3. Kohler v. Knapp, 1 Bradf. (N. of his accounts or to entertain a bill
Y.) 241; supra, §§ 1173-1180. in equity to cliarge him with assets,
4. 1 Root, 182; Roberts v. Roberts, before his accounts have been settled
28 Miss. 152, 61 Am. Dec. 542; Jen- in such other State, showing a balance
nison v. Hapgood, 10 Pick. 77. in his hands. Musselman's Appeal,
Where letters testamentary upon 101 Penn. St. 165.
the estate of a resident of some other
1682
APPENDIX.
KEMEDIES BY AND AGAINST EXECUTORS AND
ADMINISTRATORS.
In the course of the present volume we have touched upon all the usual
remedies to be pursued by or against executors and administrators. As the
reader has doubtless observed, English practice favors bringing all the assets
of the estate, together with the personal representative, into tlie court of
chancery; there to have the administration practically controlled and directed,
unless the parties interested are satisfied that their rights will be duly
respected by a settlement out of court; i while, according to the American
system, chancery is seldom resorted to where the local probate jurisdiction is
adequate, and the security chiefly relied upon by creditors, legatees, and
other interested parties, is the probate bond, filed by the personal repre-
sentative, which obliges him not only to administer properly, but to render
regular accounts in the probate court besides.2 It is the bill in equity
upon which those interested in the estate who distiiist the j)ersonal repre-
sentative, or seek redress against his mismanagement, must chiefly rely,
where an English estate is administered; but where the estate is American,
a probate court aff'ords chief protection, requiring, as it may, ample sureties
to be furnished wlien such precautions appear desirable, and, in all cases of
ofiicial delinquency, permitting the representative's bond to be prosecuted for
the benefit of the interested parties.3 As to remedies of this nature, little need
be added, except to refer the practitioner to general rules of practice, as laid
down in all elementary works of equity or common law, with a further express
reference to the codes of his own State, for copious details in which, as
independent local courts expound such legislation, American jurisdictions by
no means harmonize.
But, in both English and American practice, it frequently occurs that the
personal representative should sue or be sued in a common-law court; and
upon this topic there remains something to be said. Here, as already sug-
gested to the reader more than once, tl>e fundamental difficulty in our practice
is, that in some instances tlie representative should sue or be sued in his
official capacity, in others in his personal capacity; while, in an intermediate
class of cases, there appears an option given for a suit in either capacity.*
The essential reason for this distinction is, that our law of administration
regards the contract of an executor ar administrator as binding himself
individually, unless made under an express reservation that only assets shall
be resorted to; the real object being to allow assets to be strictly applied to
claims in a regular course of administration, so that the personal representa-
tive may not create liens or preferences in favor of those with whom he deals.
1. Supra, §§ 151S, 1521. 3. Supra, §§ 1136, 1139, 1367-1395.
2. Supra, §§ 1520, 1522. 4. Supra, §§ 1137, 1140, 1367-1395.
16S3
APPENDIX.
However commendable this rule, its application makes much difficulty in the
courts; for an action, grounded in a good cause, may be thrown out because of
some misconception in the plaintiff's mind as to how that cause originated,
and in what capacity the representative should be made a party to the suit.5
Let us trace the distinction into remedies by or against the personal repre-
sentative.
(1) As to suits by the executor or administrator. Here the difficulty is the
less, because of a liberal option which our law concedes. Where the cause of
action originated in the time of the deceased, the representative sues in the
detinet only, or in his representative capacity. But where the cause accrues
after the death of the testator or intestate, the executor or administrator
may sue as such or not at his option ; and, whenever the fruits of the suit
must be assets, he may sue in his representative character, though the cause
originated in his own contract.6 Even though he call himself " executor " or
" administrator " in the action, if it appears that the cause of action is in
his own right, the representative word may be stricken out as surplussage; 7
and even matters of substance are aided after default or a verdict in his
favor.8
(2) As to suits against the executor or administrator. It is here that the
rigor of the common-law rule is more strongly manifested. Where a defendant
is simply misdescribed as " executor " or " administrator," the descriptive word
may be stricken out as surplusage, and a judgment rendered against him
individually. But where he is sued as executor or administrator, and the
whole pleadings show that conception of his liability, when he should have
been sued as an individual, the variance is held fatal to the suit.9 For the
judgment follows the complaint; and if the cause is maintained successfully
against one in his representative character, the debt, damages, and costs
are to be levied de bonis decedentisA The action cannot, strictly speaking,
be converted into one against the defendant personally, if wrongly begun ; nor
can counts be joined as of causes originating against the deceased and
against the representative; but, for a suit on the representative's own con-
tract, the judgment is against him as an individual, or de bonis propriis.^
The practice in some States appears to cliange this rule, however, so as to
give greater freedom in suing in the alternative, and adapting the judgment
accordingly; 3 and such modifications of the old doctrine appear highly
desirable in the interests of justice.
We may add a few words as to common-law suits against the executor or
administrator. When sued in his representative character, the defendant wlio
5. Supra, § 1396. 1. 47 N. Y. 360; Smitli v. Cliapman,
6. Wms. Exrs. 1871; supra, § 1290. 93 U. S. 41, 23 L. Ed. 796; 78 A. 497,
7. Wms. Exrs. 1872. 32 R. I. 185; Wms. Exrs. 1937.
8. lb. 2. See Wms. Exrs. 1937-1939.
9. See Austin v. Munro, 47 N. Y. 3. \Vm^. Exrs. 1947, Perkins's n.;
360, opinion of court; 5 East, 150. Davis v. Vansands, 45 Conn. 600. But
And see 59 Kan. 568, 53 P. 864. cf. 47 N. Y. 360.
1684
APPENDIX.
intends to deny his being such, should specially plead «e ungues executor or
ne ungues administrator.^ But the proper plea, where he has not assets as
representative, is plene administravit.^ These pleas are sometimes artificially
employed,6 but they are not necessarily false pleas. And, as observed in a
leading American case, unless the executor or administrator falsely pleads
plene administramt, he is not liable to a judgment beyond assets in bis hands
to be administered.7 A full and lawful administration previous to such suit,
or the utter want of assets to respond to the demand, is a good defence; and
judgment dc bonis decedentis is the only kind to which the plaintifif would
be thus entitled. But, devastavit being averred and proved on the repre-
sentative's part, or assets being shown to have existed which ought to be
applied to the plaintiff's claim and which cannot be found, the court may
order the judgment levied out of the representative's own proper goods.s
4. Wms. Exrs. 1943. When an executor or administrator
5. Wms. Exrs. 1953. If he has as- has committed a devastavit, there are
sets, but not enough, he pleads plene two modes of proceeding to render hira
administravit praeter, etc. liable; the one by an action of debt
6. Supra, § 1187. on the judgment obtained against
1. Smith V. Chapman, 93 U. S. 41, him, and the other by a scire facias
23 L. Ed. 795. founded thereon. 3 Head, 575; Wms,
2. lb.; Wms. Exrs. 1975, 1987. Exrs. 1984, 1987.
1685
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GENERAL INDEX.
(References are to sections. Section numbers below 1000 are comprised in
Volume I; those above 1000 in Volume II.)
A.
ABSENTEE, Sec.
administration as to 1109, 1115, 1133, 1135, 1154
legacy of 1484
distribution as to 1503
ACCOUNTING,
obligation of representative to keep accounts 1518 et seq.
creditors' bills; equity practice as to compelling account 1519, 1520
ecclesiastical and probate juri.sdiction of accounts in England 1521
probate jurisdiction of accounts in the United States 15£2
citation of parties interested in the account; their assent to its al-
lowance 1533
form of administration account 1524
authentication and proof of account in American practice 1525
periodical returns; partial accounts and the final account 1526
settlement upon a final accounting; distribution, etc 1527
conclusiveness of final srcttlement in probate court 1528
perpetuating evidence of distribution and procuring final discharge. 1529
discharge of executor or administrator 1529a
appellate jurisdiction as to probate accounting 1530
equity refusal to intervene 1530a
rendering accounts in case of death, resignation, removal, etc 1531
the same subject; revocation of letters 1531a
accounts bj- co-executors or co-administrators 1532
effect of lapse of time upon accounts 1533
no account required from residuary legatee giving bond to pay debts,
etc 1534
private accounting and settlement 1534a
Avhat is to be cliarged to representative and what allowed on account 1535
should charge with inventory value as a basis; corrections, etc. . . . 1536
amounts to be added; assets not inventoried; profits, income, pre-
miums, etc 1537
charging the representative with interest 153S
charges on account, as concerns real estate, its profits, etc 1539
charges on account; miscellaneous points 1540
(16S7)
1688 GENERAL INDEX.
ACCOUNTING — continued. Sec.
allowances to the representative; disbursements, losses, etc 1541
reasonable expenses, etc., allowed 1542
hired services and expense; representative's own debt, etc 1542a
expenses of education, maintenance, advancements, etc 1543
allowance of counsel fees, costs, etc 1544
compensation of executors and administrators 154-3
general matters as to charges and allowances 1546
bequest in lieu of recompense 1540
accounts and allowances as to foreign assets 1547
ACKN0WLEDG:\IENT. see Execution 344
ACTION. See also Appendix, Vol. II.
as to executor de son tort or intermeddler 11S7 et seq,
admissions by representative 1263
bills of administration, etc 1264
interpleader for instructions 1265
transactions barred by lapse of time 12686
discovery of assets, embezzlement, etc 1270, 1271
modes of discovering assets; suspected persons 1270, 1271
actians by executor or administrator.
suing to recover assets; survival of actions 1277
actions founded in contract obligations survive; exceptions. ... 1277, 1278
actions founded in injury to person or property died with the person. 1279
later variations of rule; modern statutes, etc 1279, 1280
actions founded in wrongful possession or detention; replevin,
detinue, etc 1281, 1282
action for damages in causing death 1283
actions founded in wrong done to real estate 1284
actions upon covenants real, etc 1285
suit on breach of covenant in deed or lease 1286
action for disturbing possession; pew, lease, etc 1287
general principle of suits for assets; whether as individual or repre-
sentative 1288-1290, 1203
principle applied to torts aflFecting the property 1201
suits on contracts made with the representative 1202
euits on promissory note, negotiable instruments, etc 1293
prosecuting suits in equity with reference to assets 1295-1297
distraining or suing for rent in arrears 1301
actions against decedent or his representative.
survival of action founded in decedent's contract 1366-1369
or tort 1370-1373
for rent, damage to real estate, etc 1374-1376
waste or dcvastamt by representative 1382-1385, 13086
instances of devastavit, etc 1386-1304
representative, how sued upon his own contracts 1395-1397
suing for funeral expenses, etc 1398, 1421-1424
suins on negotiable instrument 1398o
GENERAL IXDEX. 1GS9
ACTION — continued. Sec.
action for waste 139S6
actions by or against co-executors and co-administrators 1303, 1404
administrator with will annexed 1407
administrator de bonis non 140S-1412
actions by or against special or temporary administrators, etc 1414
equity suits for settlement, against successive representatives 141G
creditors' bills in equity, etc 1437
See CiAiMS.
bill of interpleader for construction of will, etc 1473
levy of execution on land of decedent 1517
creditors' bills; equity proceedings to compel account 1519, 1520
remedies by and against executors and administrators, Appendix, Vol. II.
See Courts.
ADMINISTRATION,
how estates of the deceased are settled; main objects 1001
modern tlieory of judicial supervision 1001
death fundamental to jurisdiction ; survivorship lOOlo
settlement of estates testate or intestate 1002
executors and administrators and their functions 1002
affects personal property; whether real estate affected 1005
succession in civil law 1006
testacy preferred to intestacy in civil and common law 1007
former abuses in spiritual courts as to administration 1007
jurisdiction, English and American, considered 1007-1014
See Courts.
foreign and domestic; questions of comity, etc 1015-1020
last domicile gives jurisdiction 1022
locality of personalty or bona notabilia may confer jurisdiction
aside from domicile 1024-1026
question of double jurisdiction 1024-1026
case where right of action is created by local statute 1026
whether locality of real estate can confer jurisdiction 1027
constitutional points; each State exercises jurisdiction 1028, 1029
only interested parties regarded 1029a
letters, etc., in case of intestacy 1090 er seq.
procedure is in rem 1121
See ADinxiSTRATORs; Appoixtmext.
letters of, are credentials of authority 1351
revocation of letters; new appointment, etc 1150-1167
See Appoixtmext.
foreign and ancillary 1162 et seq.
See Coxflict of Laws.
officiating without appointment: intermeddler ; executor de son tort
11S4-1193, 1197
See Appoixtmext.
1690 GEXEEAL INDEX.
ADMINISTRATION— coM^mu^d. Sec.
acts done by a rightful representative before qualifying. .. 1195, 1196
the property to be administered upon 1198 et seq.
See Assets.
inventory of the estate 1229-1237
See Ix\'extoky.
general poicers, duties and liabilities of executors and administra-
tors as to personal assets 1238 et seq.
title to personal praperty devolves upon representative by relation
from decedent's death; liability, etc 1238
representative's title and authority during administration excludes
that of all others in interest 1239
executor or administrator has power to dispose of personal as-
sets 1240, 1241
executors and administrators distinguished in this respect 1241
but title, etc., of executor or administrator is by way of trust 1242
identity of assets should be preserved; title intact, etc 1243
no title taken to property held by decedent in another's right; cor-
poration, etc 1244
representative does not succeed to decedent's trusts, etc 1245
how one ceases to hold assets as representative so as to hold as in-
dividual 1240
devolution of title where representative is also guardian or trustee.
1247, 1248
legatee or distributee 1249
residuary devisee and legatee 1249
executor sometimes acts as trustee 1247a
executor should administer estate undisposed of, where partial intes-
tacy 1250
right and duty of discharging contract liabilities, etc., of deceased. 1251
avoidance, etc., of contracts by deceased illegally made 1252
contracts personal to deceased, etc., distinguished from those requir-
ing performance 1253
personal liability of representative upon deceilent's debts or con-
tracts 1254, 1255
how incurred; statute of frauds; sufficient consideration, etc 1255
representative's own creation of debt binds liimself; not the estate 1250
he cannot contract witli him.self 1250rt
lien on assets for representative; not for creditor; estate 1k)w an-
swerable 1257
negotiable notes, etc., running to representati^'e ; other instances.. 1258
recognition of claim arising on his own contract; limitations 1258
lien on assets, how far existing for rei)ro9entative'8 own immunity. 125!)
rule of lien applied in settling account of r('[)res<>ntativc deceaswl, etc. 1200
assets recovered by representative on his own contract enure to es-
tate 1201
estate should not derive unconscientious advantairo 12(;2
GENERAL INDEX. 1G91
ADMINISTRATION— cowfmttcd. Sec.
whether admissions by representative bind estate 1263
control of assets by probate or equity; practice 1264
interpleader, etc., for instructions, by personal representative.... 1265
representative not a proper party to annuUinjr a marriage 1266
trust provision by decedent in anticipation of death 1266a
vesting of possession; chattels real, etc., distinguished from chattels
personal 1267
whether representative may act by attorney 1268
no property in corpse of decedent 1268o
transactions barred by lapse of time 12686
collection of the assets 269 et seq.
See Assets.
methods for discovery and pursuit of assets 1270, 1271
collection; duty to collect or pursue; actions 1272 et seq.
See Actions, Assets.
care, custody, and management of assets 1312 et seq
See Assets.
sale, pledge, purchase, etc, by representative 1339 et seq.
See Assets.
liability of executor or administrator 1365 et seq.
See Actiox; Assets.
administration rights and duties; co-executors 1051, 1400-1406
co-administrators 1041, 1051, 1404-1406
administrator with will annexed 1123, 1407
administrator de honis non 1128, 1408 et seq.
administrator de honis non with will annexed 1413
temporary and special administrators 1414
as to qualified administration in general; rights, duties, etc... 1415, 1416
payments and distribution 1417 et seq.
See Claims; Distribution; Legacies.
widow's allowances; minor children's alloAvances. etc 1447 et seq.
rights, powers, etc., of representative as to real estate. .1213, 1509-1517
See Real Estate.
accounting of executor or administrator, and allowances. .. .1518 et seq.
See Accounting.
ADMINISTRATORS,
defined 1002
See also Advinisteation.
original and general; how appointed 1090
appointment granted wherever there is no executor 1090
origin of spiritual jurisdiction in case of intestacy 1090
essentials of a probate jurisdiction to appoint 1090-1096
persons to whom general administration is granted 1097 et seq.
See Appointment.
appointment of husband of deceased wife 1093
1692 GEXEEAL I^'DEX.
ADJnXISTRATORS — continued. Sec.
widow of deceased husband 1099, 1100
next of kin 1101-1111
nomination of third person to administer 1113
appointment of creditor, stranger, etc 1115
public administrator or other official in certain cases.. 1116, 1117, 1197&
1414, 1504, 1532
letters of administration 1119
when administration may be dispensed with 1120
administrator with will annexed, when and how appointed. . 1122-1127
administrator de bonis non, when and how appointed. .. 1128-1131, 1232
1237
rights, duties and liabilities 1408-1413
accounts 1532
administration during minority (durante minore aetate) .1132, 1135, 1232
during absence (durante absentia) 1133, 1135, 1232
pendente lite 1134, 1135
special administration 1135, 1414, 1532
bonds of administrators 1136-1149
See Bonds.
foreign and ancillary 1162 et seq., 1547
See Conflict of Laws.
AD^nSSION,
by representative whether binding 1263
ADVANCEMEXT,
by representative to creditors 1443
to children, how reckoned in distribution 1499, 1500, 1543
AGE,
as aflFecting testamentary capacity 130-142
AGENT,
responsibility of representative for acts of.... 1268, 1296, 1321, 1351(i
ALIEN,
cannot take gift 23
whether capable of making will 34-36
as executor 1032, 1033
ALIENATION. See CoxDmoN 601, 602
ALLOWANCES. See Accounting 1228, 1446a, 1515c, 1535 ct scq.
ALTERATION,
of estate, whether a revocation 427
alteration defined : partial revocation 10. 428
alteration of instrument 10, 429-433
probate with interlineations, etc 434
presumptions and proof 435
disposition altered by codicil 438
how far codicil revokes 437, 438
effect of revoking will or codicil 439
will and codicil compared 440
probate of codicil 440a-44So
GENERAL INDEX. 1G93
Sec.
ALTERNATIVE WILLS 291
AMBIGUITY. See Evidence 581
ANCILLARY,
administration 1042, 11G2 ct seq.
See Conflict of Laws.
ANNUITY 1479
APOPLEXY. See Insane Persons 118
APPEAL. See Actions, Courts 1011, 1150, 1151
APPOINTMENT,
of executors.
designated under will; trust absolute or qualified 1031
who are capable of serving; rule as to married women, infants, cor-
porations, etc 1032
rule as to criminals, dissolute persons, insolvents, etc 1033
miscellaneous disabilities for the office 1034
express appointment by testament 1035
constructive appointment by designating functions; executorship ac-
cording to the tenor 1036, 1037
mere designation of trustees, legatees, etc., insufficient 1037
identifying the executor 1038
suggested executor, adviser, etc 1039
conditional appointment; substitution 1040
co-executors 1040
testator's delegation of the power to name 1041
limited or conditional executorship for different countries, etc 1042
whether executorship passes to executor's representatives; executor
of executor, etc 1043
acceptance and refusal of the executorship; citation of person named 1044
death equivalent to a renunciation 1045
refusal of record; constructive refusal or acceptance 1046, 1047
right to renounce not to be exercised corruptly, etc 1048
whether executor renouncing may exercise a power 1049
retraction after renunciation; subsequent appointment 1050
renunciation where several executors are named 1051
how appointed by the court ; letters testamentary 1052
probate of will 1053
See Probate.
of original and general administrators.
jurisdiction to appoint wherever there is no executor 1000
intestacy fundamental to the grant of general administration lOni
death, and domicile or local assets 1(:91
presumption favors jurisdiction in granting; but fundamental facts
must exist 1092
value or kind of estate, whether fundamental 1093
time within which original administration must be applied for.... 1094
1694 GENERAL INDEX.
APPOIXTJIEXT— con<!Mi/^d. Sec.
no original and general administration granted while other letters
are in full force; double jurisdiction, etc 1095
judicial inquiiy into the fa«ts essential 1096
persons to whom general administration is granted 1097
husband's right to administer upon estate of deceased wife 1093
widow's right to administer upon estate of deceased husband. .1099, 1100
right of next of kin to administer; consanguinity 1101
who are next of kin; how to ascertain preference among kin-
dred 1101, 1102
preferences among kindred of the same degree, etc 1103
leading considerations affecting the choice among those equally en-
titled 1104
suitableness for appointment, etc 1104
suitableness as between males and females, younger and older, etc. . 1105
suitableness as concerns married women; husband's rights, etc 1106
suitableness as concerns insane persons; infants; corporations, etc.. 1107
illegitimate children and their right to administer 1108
whether non-residence disqualifies 1109
other considerations determining the choice of administrator 1110
statute order among next of kin stated 1111
renunciation or non-appearance of those entitled by preference 1112
citation of those entitled 1112
nomination of third person by the person entitled to administer. ... 1113
unsuitablencss of judge of probate, etc., for tlie appointment 1114
right of creditor or stranger to be appointed in default of kindred,
etc 1115
public administrator, or other ofTicial, appointed in certain
cases 1116, 1117
method and form of granting letters of administration 1118
administrator as such must be appointed; credentials of authority. . 1119
in what cases administration may be dfsponsod with 1120
procedure is in rem 1121
of administrators not original and general.
administration with will annexed (cum tcstamento anncxo) ; when
granted, and how 1 122
functions of the office 1123
to whom granted; residuary legatee 1124
appointment of next of kin 1125
sur\-iving spouse's right considered 1120
executor's rights 1 127
of personalty not already administered (de honvi non) ; when granted 1128
to whom committed 1 12^
miscellaneous points 1131
temporary- administration; during minority (rliirnntc minorr
artnin) ll-'^2. ll.-^S
during absence (durante absentia) 1133, 1135
GENERAL INDEX. 1695
AFPOINTME'ST— continued. Sec.
pendente lite 1134, 1135
special administration, for limited and special purposes 1135, 1153
attorney for absent appointee, etc 1 1 35
bonds of executors and administrators 1136 et seq., 1153
See BoxDS.
appeal; revocation of letters; neio appointment, etc.
appeal from decree of probate court; mandamus, etc 1150, 1151
revocation by proceedings in the probate court 1152
grounds upon which revocation is proper 1153
removal of executor or administrator 1 154
procedure in case of revocation of appointment or removal from oflBce. 1155
resignation of executor or administrator 1156
jurisdiction in general, as to revocation, removal, and accepting a
resignation 1157
natural termination of executor's or administrator's authority;
death ; final settlement, etc 1 15S
delegation of authority does not relieve, but supersedure does 1159
the efl'ect of probate decrees 1160
the effect of an appeal from probate 1161
the effect of revocation upon late office 1161a
court cannot appoint during former appointment 11616
foreign and aiicillary appointmen,ts.
this subject considered at length 1162 et seq.
letters testamentary, or of administration, have no extra-territorial
force 1164
foreign and domestic probate, and letters testamentary. . .1169-1171, 1173
foreign and domestic administration 1172, 1173
See Conflict of Laws.
officiating without an appointment.
executor de son tort at common law defined 1023a, 1184
various circumstances under which one may act without having been
qualified 1185
wrongful and injurious dealings with a dead person's estate; execu-
tor de son tort 11 86
executorship de son tort ; legal consequences 1187
effect of wrongful and injurious dealings, aside from the theory of
executorship de son tort 1188
modern statutes restrict the liability of intruder to creditors and
strangers 1 189
liability of intruder upon estate to the rightful executor or adminis-
trator 1 190
intermeddling with lands of the deceased 1191
liability of one who administers under void letters, etc 1192
beneficial dealings with a dead person's estate by one not appointed. . 1193
acts done by a rightful executor before qualifying 1194
acts done by a ri,2;htful administrator before qualifying 1195
1696 GEI!fEKAL IXDEX.
APP0I>rr3kIEXT — continued. Sec.
whether a suitable representative who has intermeddled can be com-
pelled to take out letters 1 196
intermeddling by a third person after the grant of letters testamen-
tary or of administration 1 197
appointment of trustee under a will 1472
See Trustees.
notice of appointment, under statute 1418-1420
See Claims.
APPORTIONiCENT 121G, 1301
APPRAISERS. See Lnventoby.
ARBITRATION,
by representative 1298
of claims 1373, 1386, 1387
ASSESSMENTS,
whether payable by representative 131S
See Tax.
ASSETS,
assets classified.
what comprise assets of a deceased person's estate; personal con-
trasted with real assets 1090, 1198
personal property of the decedent vests in executor or administrator. 1199
enumeration of personal assets; choses in action as well as choses in
possession 1200
contingent and executory interests 1201
stock; public and corporation securities; life-insurance policies.... 1202
personal property taken or given in security 1203
to constitute assets, title must have stood in decedent at his death. . 1204
personal property of another among goods of deceased; identifica-
tion 1205
literary property; letters, etc 120.5(1
personal property of decedent left in another's possession is assets.. 1206
personal property constitutes assets notwithstanding ultimate title
of legatees, heirs, etc 1207
debt due from representative or legatee, etc., to decedent, constitutes
assets 1208
personal assets coming to knowledge but not possession of the rep-
resentative 1209
personal assets or not, where decedent's title was qualified 1210
various cases where representative does not hold strictly as assets.. 1211
equitable title of others to assets 1211a
real estat*; descends to heirs; not as.'^ets except for deficiency 1212
executor or administrator has no inherent authority as to real estate 121.1
real estate of mortga^'or or mortgagee; rule of assets 1214
nile of assets as to land set ofi" on execution 1215
rents, profits, and income of real estate; damages, etc.; rule of assets 1216
GENERAL INDEX. 1G97
ASSETS— continued. Sec.
legal character of property, real or personal, fixed at owner's death. . 1217
rule of equitable conversion 1-17
character of property at owner's death; instances; contract to sell
land 1218
land damages ; fire-insurance money 1218
gifts caicsa mortis as affecting question of assets 1219
efi"ect of insolvency; equitiible assets, etc 1219a
assignment, gift, or transfer by decedent, to be avoided if fraudulent
as against his creditors 1220
equitable assets as distinguished from legal assets 1221
assets wliere property is appointed under a power 1222
chattels real as assets ; leases, etc 1223
chattels which come by remainder as assets 1224
things on the border-line of real and personal 1225
rule of assets applied to heirlooms 1225
emblements 1226
fixtures 1227
products of severance r227a
new assets for debts 14466
rule as to foreign assets 1024, 1174, 1228
See INVEWTOBY.
general powers, duties, and liabilities of executors and administrators
as to assets.
title to personal property and its devolution upon the representa-
tive 1238-1250
right and duty of discharging contract liabilities of deceased 1251
contract personal to decedent; representative's undertaking 1253-1255
representative's own creation of debt; estate how answerable. . .1258-1260
assets recovered by representative on his own contract enure to estate 1261
estate should not derive unconscientious advantage 1262
control of assets in probate and equity; interpleader, etc 1264, 1265
vesting of possession; chattels real and chattels personal distin-
guished 1267
whether representative may act by attorney 1268
no property in the corpse 1268o
collection of assets.
general duty of representative to collect and procure the effects, etc. 1269
statute methods for discovering assets in aid of his pursuit 1270
special statute proceedings against intermeddlers with assets, etc. . . 1271
power of representative to enter premises, force locks, etc 1272
duty to pursue or collect depends upon means at disposal 1273
also upon sperate or desperate character of claims 1274
also upon representative's means of knowledge 12 1 5
legatees, creditors, etc., have no right to hold against him 1276
suin'^- to recover assets; actions founded in contract, etc., survive... 1277
rule of survival as to contract obligatimi ; exceptions 1278
1G98 GEXEEAL I^'DEX.
ASSETS — contimied. Sec.
actions founded in injui-y to person or property 1279-1282
action for damages in causing death 1283
action founded in wrong done to real estate; upon covenants
real, etc 1284, 1285
breach of covenant in deed or lease 1286
action for disturbing possession ; pew, lease, etc 1287
in general, personal representative sues for assets of the estate 1288
suits, whether to be brought by representative in his own name or
as representative 1289
general priciple as to such suits 1290
this principle applied in suing for torts affecting the property. .. . 1201
suits on contracts with the representative 1292
suit on promissory note or other negotiable instrument 1293
general conclusion as to suing on .contract in individual or repre-
sentative character 1294
prosecuting suits in equity with reference to assets 1295
proceedings to obtain possession of specific negotiable instruments,
etc. ; agency 1296
pursuit of assets where decedent fraudulently transferred 1297
representative's power to compromise or arbitrate 1298
effect of contract, covenant, etc., to decedent which did not name ex-
ecutors, administrators, etc 1299
effect where expression " assigns," " next of kin," " heirs," etc., is
used 1300
right of representative to distrain or sue for rent in arrears 1301
right as to conditions made with deceased 1302
right accruing to personal representative by chattel remainder, etc. 1303
in his time and after decedent's death 1304
right of personal representative as to pledge, collateral security, etc. 1305
collection of debts with security; changing or renewing the security 1306
gathering the crop or emblements 1307
want of diligence or good faith in collecting assets 1308
collection of interest-bearing debts; usury, etc 1309
what may be taken in payment; private arrangements with debtor,
etc 1310
liability where property is taken or money collected by mistake as
assets 1311
care, custody and management of assets.
effect of payment, etc 1311a
care, custody and managcniont an important function 1312
executor or administrator, how far a bailee as to responsibility; lion-
psty, etc 1313. 1314, 1316
whc'tlier like a gratuitous Iiailoc or a bailee with recompense 1315
acts done in good faith ; i)()licy of courts 1315a
liability as to rare and custody, and general managcincnt. . . . 1313, 1316
collection of inroino, etc.; responsibility 1317
GEXEKAL IXDEX. 1G90
ASSETS— continued. Bec.
as to investing or paying cash ; deposits, etc 1317rt
paying assessments, discharging liens, etc., on personal assets 1318
vote upon stock 1319
putting assets into a salable condition; repairing, etc 1320
responsibility of representative for acts of his attorney, etc 1321
duty as to investing assets; placing funds at interest, etc 1322
investments, how to be made, etc.; rule of liability 1323, 132-1
liability for leaving assets in trade; speculation, etc 1325
closing out decedent's business, or speculations 1325a
carrying on a trade with assets, etc 1326, 1326o, 13266
sale, investment, etc., of perishable assets; cattle, etc 1327
calling in money already out on loans or investments 1328
making unauthorized loans or investments 1329
representative's acts are for benefit of those interested; good faith,
etc., required 1330
assets should be kept distinct from representative's own property. 1331
liability qualified when acts are performed under advice and assent
of parties in interest 1332
or under direction of court 1333, 1334
following directions of will as to investment 1333
summary of doctrine as to management and investment; deviations 1336
rule similar to that of guardian, trustee, etc 1337
election of parties in interest to charge representative or accept in-
vestment 1333
representative's power to sell and transfer assets and to purchase.
power to dispose of assets 1322, 1339
sale or transfer only while representative holds office 1340
whether at public or private sale; agent to sell 1341, 1341^
sale of goods bequeathed for life with remainder 1342
power of representative to dispose of chattels specifically bequeathed 1343
sales of perishable assets, etc 1344
representative's sale of his decedent's business 1325, 1345
sales and transfers under probate direction 1346
authority as affected by expressions in the will 1347
consulting parties in interest as to time, manner, etc., of sale 1348
representative may pledge or mortgage assets instead of selling. . . . 1349
bona fide purchaser, pledgee, etc., not bound to see to application. . . 1350
letters testamentary, or of administration, are credentials 1351
good faith and caution requisite from purchaser, pledgee, etc 1352
disposal of chattels real; assigning and underletting leases. .. 1223, 1353
restraints upon power to dispose of assets as to representative 1354
his liability for negligence, fraud, etc., in sale 1355
obtaining payment or taking security for the purchase-money 1356
collusive or fraudulent disposition of assets by representative 1357
purchase by representative at his own sale, etc 1358, 1358a
1700 GEN'EEAL INDEX.
ASSETS — continued. Sec
re-opening representative's voidable transfer, etc.; relief as against
third parties 1359
representative cannot avoid his own voidable transfer 1360
■whether he warrants title when he sells 1361
sales of negotiable instruments 1258, 1352, 1362
authority to purchase 1363
no right to give away assets 1364
liahility of an executor or administrator as to assets.
liability is in respect of acts of deceased or his o^vn acts 1365
acts of deceased; survival of actions founded in contract 1366
exceptions as to personal contracts of deceased 1367
distinction as between gifts and contracts 1368
form of action material in this connection 1369
survival of actions founded in tort; not permitted at common law 1370
whether replevin can be maintained against representative 1371
whether other remedies might be applied because of tort 1372
- modern statutes enlarge the survival of actions 1373
sur%'ival of actions for rent or damage to real estate 1374
covenants of decedent; covenants under lease, etc 1375
personal representative's liability for rent 1376
liability on covenants concerning real estate, etc 1377
joint, several, etc., contracts of decedent 1378
of representative of deceased partner 1379
deceased stockholder 1380
exoneration of personal property specifically bequeathed 1381
liability of personal representative as to his own acts 1382
negligence; bad faith ; waste or devastavit ; torts 1382-1386
representative how to be sued for his wrongful acts 1385
effect of arbitration or compromise of demands 1386, 1387
release of debt, renewals, etc., by representative 138S
general and special statutes of limitations 1389, 1390
opportunity to ascertain insolvency 1301
the statute of frauds 1392
devastavit when excused by concurrence, etc., of those injured
thereby 1393
complicitj' of third persons in the devastavit renders them liable.. 1394
liability of executor or administrator on his own contracts 1395
liow sued upon his express promise or collateral undertaking 1396
exceptional instance of suing for funeral expenses, etc 1398
liability on negotiable instruments 139Sa
liability for waste ; action 13986
rif/hls, duties, and liahilities as to assets in co-administration and
qualified administration 1399
rights, duties, and liabilities of co-executors; their title and au-
thority 1051, 1400, 1401
liability of co-executors 1051, 1402
GENERAL INDEX. 1701
ASSETS — continued. 55ec.
co-executors; actions by and against 1403
rights, duties, and liabilities of co-administrators 1401
sur\dvorship among co-executors or co-administrators. ... 1041, 1051, 1405
liability of co-executors and co-administrators on bonds; joint or
several bonds 1406
rights, duties, and liabilities of administrator with will annexed. 1123, 1407
rights, duties, and liabilities of administrator de bonis non. ..1128, 1408
1409
relation of administrator de bonis non to predecessor's contracts,
etc 1410
suit on negotiable instrument as concerns administrator de bonis non 1411
administrator de bonis non bound to observe good faith and prudence 1412
with will annexed 1413
rights, duties, and liabilities of temporary and special administra-
tors, etc 1414
qualified representative's designation of his own office 1415
negligence by various representatives in succession 1413
See Claims; Distribution; Legacies.
marshalling assets in case of a deficiency 1490, 1512
See Real Estate,.
ASSIGNMENT.
voluntary in fraud of creditors 1220
See Assets.
by legatee or distributee 1508o
ATTESTATION. See Will 318-356, 107S
ATTORNEY,
power of * 423a
delegation of authority does not relieve of responsibility. .. .1159, 1321
whether representative may act by attorney 1268
employment of counsel 1268, 1544, 1545
fees when allowed in account 1544, 1545
AUCTIONEER 1351a
AUTOPSY 192
B.
BAILMENT,
doctrines of responsibility applied 1313, 1316
BANKRUPTCY,
conditions against 606
BEQUEST. See Construction ; Will 3, 513
See also Legacy.
BLANKS IN A WILL 29Sa, 548
BLIND.
wills of such persons 94-99, 317, 343
BODY,
of decedent 1268a
1702 GENERAL INDEX.
Sec.
BOXA NOTABILIA. See Administration; Assets 1024, 1091
BONDS,
necessity of qualifying before appointment 1136
security required by the court 1136
when and how required from an executor 1137
of an executor who is residuary legatee 1138, 1534
when and how required from an administrator 1139, 1140
how probate bonds are taken; penal sum, sureties, etc 1141
irregularities, etc., attending execution, how far available 1142
whether probate bond may bind as a common-law bond 1143
sufficiency, as to the security and parties offered 1144
co-executors and co-administrators; joint and separate bonds 1145
probate bonds; what property is covered; what functions included,
etc 1146
release or discharge of sureties 1 147
new or additional bonds, when and how required 1148
lost and missing probate bonds 1149
liability as bond, how enforced 1 148a
of co-executors and administrators 1145, 1406
of administrator with will annexed 1123, 1407
administrator de bonis non 1128, 1408 et seq.
bond of indemnity from legatees 1477, 1508
remedies for overpayment, etc 1491
special, where licensed to sell real estate 1513
negotiable, as investment 1202
of surety or guaranty company 1144, 1542;i
BONORUM POSSESSIO,
BURIAL. See Funeral 1006
BURNING. See Revocation.
C.
CANCELLING. See Revocation.
CAPACITY,
to take under a will 23-27
See Infants; Insane Persons; Married Women.
what persons may make a will 31
measure of capacity defined 32
whether crime disqualifies 33
whether aliens are capable 34-36
whether sovereign is capable 37
wills of seamen and soldiers 38
^incapacity of infants 30-44
See Infants.
incapacity of married women 45, 46
See Married Women.
GENERAL INDEX. 1703
CAPACITY— continued. Sec.
of insane persons Co et seq.
See Insane Persons.
of deaf, dumb, and blind persona 94-99
error, fraud, and undue influence 214
effect of error in uills 215
correction of errors in probate 210-219
equity jurisdiction to correct mistakes 220
fraud or force vitiatea a will 221, 222
equity and probate jurisdiction 223
general considerations as to fraud and deceit 224
fraud, undue influence, etc., vitiate will 225-231
relate to time of execution 232
will need not originate with testator, etc 233
effect of failure of will 234
maxims applied to parent, child, and spouse 235-237
fraud, etc., must have operated; natural will 238
burden of proof as to fraud, undue influence, etc 239, 240
points of evidence considered 24 1 -247
probate where fraud operates 248-251
inspection of instrument by jury 251
mistake as to legal effect of will, etc 80a
CAPITA, PER 538-541
CAPITAL 1013, 1476
CERTAINTY,
gift whether certain or uncertain 591
uncertainty in subject or object 592-594
precatory trusts 595
uncertainty in such gifts 596
general conclusion 597
CHANCERY. See Actions; Courts.
CHARGES. See Accounting 1535 et seq.
CHARITY 21, 592a, 593
CHATTELS 508
CHATTELS REAL 1223, 1224, 1303
See Assets; Lease.
CHILD. See also Infant.
payment of legacy to infant 1483
as distributee 1495, 1498
advancements to, how reckoned 1499, 1500
CHILDREN,
unprovided for in will 20, 425, 426
See Construction.
described in gift 480, 529-534
illegitimates, adopted children, etc 481, 53 1
in estates tail, etc 555
extrinsic proof of gift 585
1704 GEXEEAL IXDEX.
CITATION, Sec.
in proceedings for probate and administration 1069, 1112, 1115
on accounts 1523
CLAIMS,
on behalf of the estate.
See Assets.
against the estate.
debtor's payment to sole distributee 1197rt
executor of administrator bound to pay debts, claims, etc. ...1251, 1417
notice of appointment: presentation of claims 141S-1420
statutes of special limitations 1418-1420
funeral charges and their priority 1421
place of final interment; gravestone, etc 1422
other preferred claims; administration charges; debts of last sick-
ness 142.3
these preferred claims rank together; settlement in full or ratably 1424
general payment of debts ; rule of priority 1425
English classes as to priority, enumerated; debts of record; specialty
and simple contract debts, etc 1426, 1427
American rules of priority among claimants 1423
claims grounded in a tort; contingent claims; damages, etc., how
reckoned 142(1
classification by probate court 1428n., 1433
mortgage debts; rights of creditors having security 1430
invalid or exorbitant claims; voluntary transactions 1252, 1431
claim of person disappointed of a legacy; family claims 1432
decree or order of payment 1433
commissioners or auditors to examine claims 1434
exhaustion of assets in paying superior claims; preferences to be ob-
served 1435
notice of debts as aflfecting their payment, etc., English rule. . .1436, 1437
English rule as to equal creditors; creditors' bill, etc 1437
notice of debts as alTocting their payment; American rule 1438
debt due representative from estate; right to retain, etc 1430
interest on claims presented 1440
mode of paying off claims; extinguishment, etc 1441
personal liability of representative for debts 1442
payment or advaneomont out of representative's own funds 1443
recovery of over-pnymont from creditor 1444
when heirs, next of kin, etc., are liable for debts of the estate 1445
debt of legatee or distributee 144.")a
payment of claims wliere estate proves insolvent 1435. 1446
new assets for debts 14466
buying up claims, et<? 1 44Go
general conclusion as to debts and claims 1446c
satisfaction of debt by legacy 1467, 1470
See Lf.gacy.
GENERAL INDEX. 1705
CLAIMS— continued. Sec.
widow's allowances, etc 1447 et seq.
See Widow.
take precedence of legacies 1476
See Legacies,
sale of real estate to pay 1511, 1514
CLAIRVOYANCE 168
CLASS,
gift to 529-532
See Construction.
CO-ADMINISTRATION. See Joint Administbation.
CODICIL,
as affected by insanity, undue influence, etc 76, 250
papers probated together, etc 280-282
effect in altering a will 7, 8, 436-440
probate of 440a, 448a
' revocation of codicil, etc 430
comparison with will 440, 1060, 1082
implied republication 447, 448
requires formal execution 359
use of, to revoke, etc 404-410, 416, 417
See Revocation.
in construction , 487
COERCION. See Influence.
COLLATERAL SECURITY. See Pledge.
COLLECTION,
of debts, personal assets, etc 1269 et seq.
See Assets.
COaCMON,
interest in devise or bequest 566
COMPENSATION,
of executor or administrator 1545
COMPRO]\nSE,
of a will 1072
power of representative 1298, 1373, 1386, 1387
CONCEALMENT 1270
See Assets.
CONDITION,
wills upon 285-290
precedent or subsequent 598-600
restraints upon alienation, etc 601, 602
restraints upon marriage 603
restraints as to residence, assuming name, maintaining good charac-
ter, etc 604
against disputing the Avill 603
miscellaneous conditions 604
against bankruptcy or inaolvoncy 606
limitation and condition distinguished 607
1706 GE^'EKAL I^'DEX.
CONFLICT OF LAWS, Sec
general rule of comity; authority of representative local 1015
rule as to foreign creditors 1015
comity favors as to payment of legacies and distribution 1016
as to execution and validity of foreign wills 1017
as to accountability of executor or administrator 1018
personal and real property contrasted; situs prevails as to real.. .. 1019
general rules varied by treaty, statute, etc 1020
local appointment to prosecute statutory action 1023fi
probate of foreign wills 1057
foreign and ancillary appointments in the United States and England 1162
what is ancillary administration 1163
letters testamentary or of administration have no extra-territorial
force 1164
foreign and domestic probate and letters testamentary 1169, 1170
whether will to be operative must conform to law of last domicile 1171
foreign and domestic administration 1172
foreign appointment of executors and administrators; local letters,
etc 1173
principal and ancillary letters; comity as to transmitting assets for
distribution after local debts are satisfied 1174
duty of tlie domestic representative as to foreign assets 1175, 122S
voluntary surrender of local assets to domiciliary administrator... 117^
liability of representative in domestic jurisdiction for acts done
abroad 1177
permitting foreign creditors to sue in the local jurisdiction 1178
principal and ancillary jurisdictions, how far independent of one an-
other 1179
responsibility where the same person is principal and ancillary repre-
sentative 1180
ancillary or local representative, how far responsible for assets.... 1181
where different executors are named in a will for different sovereign
jurisdictions 1182
where the principal representative cannot procure foreign assets,
legatees and distributees may pursue 1183, 1446a, 1515a
principal and ancillary as to real estate 1515o
accounts and allowances 1547
officiating without an appointment; executor de son tort, etc.. .1184 et scq.
See Appointment.
CONSAGUINITY. See Appointment; Table in Appendix, Vol. II. .1101, 1102
CONSIDERATION,
wills revoca.ble by way of gift 451
wills upon consideration irrevocable 231a, 452
wills probated, notwithstamling breach 452rt
rule of consideration applied to legacy; otlier instances 453, 453rt
contract for a certain will enforced 454
joint or mutual wills 62, 455, 457
distinctions and incidents of such wills 231o, 458-460
GENERAL INDEX. 1707
CONSTITUTIONAL QUESTIONS, Sec.
afTecting administration in the United States 1028, 1029
each State exercises independent jurisdiction; United States should
not interfere 1029
CONSTRUCTION,
general rules laid dmin.
precedents of interpretation; deeds and wills 26, 27, 461
scope of rules of testamentary construction 462-464
aided or unaided by extrinsic evidence 46.1
cardinal ruk that intent shall prevail 466, 467
whole will taken together 468, 473
language according to testator's situation 469
technical and familiar words, etc 470-472
later clause construed with earlier 474
words in same clause 474a
general description limited by particulars 475
predominant idea of will 470
language, how far changed or moulded; punctuation, etc 472, 477
treatment of repugnant parts 478
favor to heir, next of kin, children, etc 479-482
devise without limitation ; its effect 483-48.5
when a will takes effect; after acquired property 480
codicil construed with will 487
some effect given to will 488
whether controlled by condition of estate 488a
presumption of compliance with law, etc 489
presumption against partial intestacy 490
local law of interpretation 401
summary ; Jarman's rules 492
details of testamentary construction.
details relating to property considered 493
as to real estate and leaseholds 494
trust estates, and mortgages 495
reversionary interests 490
lands contracted for 497
" land." " tenement." " hereditament " 49S
" messuage/' " premises " 499
" house," "mill," etc 500
" appurtenances." etc 501
devise of a " farm," " freehold," etc 502
" rents and profits " ; " use and occupation " 503
as to personal property; " mortgages," " securities " 504
" money " or " moneys " ; " cash " etc 505
" movables " ; " gift of interest or produce " 506, 507
" goods " ; " chattels " 508
"effects"; "possessions"; "things" 509
1708 GENERAL INDEX.
COXSTRUCTION— conirnMed. Sec.
" estate " ; " property " 510
miscellaneous terms 511, 512
description of gift; devise, bequest, etc 513
general terms restrained by particulars 514, 515
false description does not vitiate 516
but particulars may qualify 517
repugnant description 518
real estate with the personalty thereon 518a
residuary bequest; its effect 519, 520
residuary devise; its effect 521, 522
gift of residue in general 522-524
execution of power 525, 526
errors of description corrected 527
object of gift to be considered 528
gift to children, etc., as a class 529-532a
" children," " grandchildren " 533, 534
" issue," " decendants," etc 535
collateral relatives 536
surviving spouse 535a
" relations," '' family," etc 537
" beneficiaries " 537a.
taking per capita or per stirpes 538-541
" heirs " or " next of kin " in bequests 542, 543, 543
" representatives," " executors," etc 544
heir, in real estate, etc 545-548
devise of lands, etc., in fee 549
" estate," " property," " residue," " remainder " 550
heirs; estates tail; Shelley's Case, etc 551-553
limitation and purchase 553i/,
rule as to " issue," " children," etc 555
estates tail not favored 550
bequests, absolute or for life 557, 553
devise or bequest, absolute or not 550
life estate and remainder 560
executory devise 500
devise or bequest by implication 501
gift whether vested or contingent 562
vested estates defeasible 562a
beneficiaries, when ascertained 563
" dying without issue," etc 564
substitution, survivorship, etc 565
interest, whether joint or common 566
interest of husband and wife 566
pi f t.s to servants, strangers, etc 566a
extrinsic evidence to aid 567-568
See EviDKNci:.
GENERAL INDEX. 1709
CONSUL, Sec.
foreign in appointment 1116, 1117
CONTINGENT,
wills 285-290
See Condition.
CONTRACT,
in wills 67, 270, 452-454
liabilities of deceased 1251 et seq., 1365
See Actions; Assets; Claims.
CONVERSION 1271 1398c
CORPORATION. See Actions; Assets.
wliether capable of taking under will 24
assets owing by 1025ffl
as executor or administrator 1032, 1107, 1114
as surety on fiduciary bond 1144, 1542n
corporate officer's death ; effect 1244
rent of safe-deposit bos 1542u
as legatee 1460
CORPSE 1268a
COSTS 213o, 492a
COURTS. See also Actions.
former abuse of spiritual courts in cases of intestacy 1007
English ecclesiastical or spiritual jurisdiction 1010
probate jurisdiction and procedure in the United States 1011-1013
chancery jurisdiction whether concurrent 1013
modern probate jurisdiction in England; new Court of Probate Act
20 & 21 Vict 1014
jurisdiction in granting letters; founded in domicile 1022, 1023
locality of personalty or bona notabila 1024-1026
questions of double jurisdiction 1024-1026
whether locality of real estate may give jurisdiction 1027
constitutional points; each State exercises jurisdiction 1028-1029
only interested persons regarded 1029^
appointment of executors or administrators 1052 et seq.
revocation of letters; new appointment, etc 1150-llGl
appeal from decree of probate court; madamus, etc.... 1150, 1151, 1161
See Appointment.
effect of probate decrees 1 160
in matters of foreign and ancillary administration 1162 et seq.
See Conflict of Laws.
power of probate court as to inventory 1236
probate and equity control of assets; bills for administration, etc.. 1264
interpleader for instructions 1265
directing investments, etc 1333, 1334
sales, etc., of personal assets under probate direction 1346
classification of claims against estate; and order of payment. 142Sn, 1433
creditors' bill, etc 1437
1710 GENERAL INDEX.
COURTS — continued. Sec.
commissioners, auditors, etc., as to claims 1434
decree for widow's allowance, etc 1452
equity and probate jurisdiction of wills and trustees 1472
interpleader, etc., for construction of will 1473
license to sell real estate, etc 1511, 1513, 1516
compelling an account in equity 1519, 1520
jurisdiction of accounts and allowances 1518 et seq.
See Accounting.
COVENANT. See Assets; Claims.
COVERTURE. See IVIakeied Women.
CREDITOR,
right to administer 1115
foreign claimants, etc 1173
See Claims; Conflict of Laws.
CRIME,
disqualifying from making will, etc 23, 33
CROP. See Emblements.
CUSTODY. See Assets.
D.
DEAF AST) DUMB,
wills of such persons 94-99
DEATH 1001a, 1026, 1055, 1091, 1158, 1160
DEBT,
of representative, legatee, distributee, etc., to decedent. 1208, 1470. 14fl2a
due from decedent 1439, 1469
satisfaction by legacy 1459
See Assets.
in general. See Claims.
DECLARATIONS. See Evidence 18, 193-195, 243, 244, 317o, 40-3
DEED,
compared with will 270, 461
DELIRIUM,
delirium of disease, etc 114, 121-123
delirium tremens 124-128
dementia distinguished 129
See Insane Persons.
DELUSIONS. See Insane Persons 143-168
DEMENTIA. See Insane Persons 129-142
DESCENDANTS. See Construction 480. 535
DESCRIPTION 494 ct seq.
See Construction.
DESTRUCTION. See Revocation.
l)EV.\STA^aT. See Actions; Assets 1382-1384
DEVISE. See Con.struction; Will 3, 15, 513
executory 560
QEKEKAI. INDEX. 1711
DISPUTE, Sec.
of will C0.>
See Condition.
DISTRIBUTION,
rules of comity ; non-residence, etc 1016
balance due public officers, pensioners, etc 1 120
of foreign assets 1174, 1183
Sec Conflict of Laws.
debtor's payment to distributee ll!)7a
distributee's ultimate title 1207
debt of distributee to decedent 1208, 1492ffl
representative who is also distributee 1248
distributees wlien liable for claims against estate 1445, 1492n
residue of personal estate goes according to testacy or intestacy . . 1492
as to the residue in case of testacy; residuary legatee 1493
rights where there is no residuary legatee named 1494
rights where not effectually devised or bequeathed 1494a
as to the residue in case of intestacy; distributees 149.5
statutes of distribution 1495
surviving husband's right to residue of deceased wife's personalty. 1496
surviving wife's rights in the distribution of deceased husband's per-
sonalty 1497
rights of children and lineal descendants in distribution 1498
advancements to children, liow reckoned in distribution 1499, 1500
general distribution among the next of kin 1501, 1502
distribution where there is no known husband, widow, or next of kin 1503
distribution by mutual consent 1502a
time and metliod of distribution 1504
distribution where real estate has been sold to pay debts 1505
whether distribution may be of specific chattels not reduced to cash. 1508
death of distributee pending distribution 1507
distribution; reimbursement, contribution, etc 1445, 1508
suit for neglect to distribute 1508a
inheritance taxes 15086
assignment by distributee, etc 1508c
decree of distribution 1504, 1527
DIVORCE 426a
DOMICILE. See Conflict of Laws.
what this is; residence, inhabitancy, etc 1021
applied to the subject of administration 1022, 1023, 1091, 11G7, 1183
death while on transit, etc 1023
DRUNKENNESS. See Insane Persons 124
DUPLICATE WILLS 399, 411
1712 OEJTERAT. IITDES.
E.
Sec.
ECCEXTEICITY. See Insane Pebsons 144-153
EFFECTS 509
ELECTIO:^ 1457a, 14576, 14596 c, 1489
EMBEZZLEIMENT. See Assets 1270
EMBLEMENTS 1226, 1307, 1315
ENGLISH,
Englisli Statute, 1 Vict. c. 26. Appendix A, Vol. I.
EPILEPSY 118
EQUITY. See CoxsTBUcnoN.
jurisdiction to correct mistakes 220
questions of fraud and force 223
as to joint or mutual wills 456-460
procedure in construction 492a
ERROR,
in wills 80a, 102, 163, 214-220
See Capacity.
in describing property 527, 550
ESCROW 1083, 1218
ESTATE. See Administeation ; Consteuction 510, 549 et seq.
EVIDENCE,
in wills of the insane, etc 95, 99, 110-120, 127
See Insane Pebsons.
to prove capacity and incapacity 169-213
See Capacity.
burden of proof of fraud, undue influence, etc 239-241
character of evidence in such issues 242-247
extrinsic, not to dispute plain tenor 277
of instruments incorporated as a will 282
in conditional or contingent wills 290, 292
to prove execution 299a
of subscribing witnesses 348
of nuncupative will 377
in case of lost or defaced, etc., will 401-403, 412
to show revocation 423
where will is altered 435
extrinsic, to aid in construction 465
presumptions in construction 402, 463
See CONSTBUOTION.
extrinsic to aid construction.
general rule stated 5^'7
not to control, contradict, etc ' 568, 50!)
not to change rules of construction 570
meaning of words ; punctuation, etc -"^ ' 1
extrinsic to resolve a doubt •''>"■'
to aid equi Vfx;al description 573-575
GENERAL INDEX. 1713
EVIDENCE — continued. Sec.
concluftioii as to proof of intent 576
reference to context 577
extrinsic proof not to aid to misconstrue ^78
extrinsic proof of facts and circumstances 579, 580
latent and patent ambiguities 581
proof of custom ; deciphering, translating 582
misnomer; nickname; identity proved 583
blank in will ; no insertion 584-
devise or bequest to children, etc 585
proof of resulting trust, etc 586
language not to be varied 587
general summary as to extrinsic evidence 588; 589
Sir James Wigram's propositions 590
EXECUTION,
signature and attestation 213a, 255a, 256, 257
whether instrument is testamentary 267-269
what execution signifies 302
signature hy the testator.
statute requirement as to signing 300, 301
testator signs or makes mark 303-305
testator signs, or another for him 306, 307
name aiBxed by subscribing witness 308
seals usually dispensed with 309
misnomer or discrepancy 310
position of signature 311, 312
signing must have been intended 313
signature for several sheets 314
where will is written by portions 315
upon paper fastened to the will 316
contents made known to blind or illiterate 317
testator's understanding an issue 317a
attestation, etc., hy vAtnesscs.
attestation or subscription in general 318
under modern statutes 319
number of witnesses required 320
signing or acknowledging before witnesses 321-325
publication or declaration of will 326
simultaneous presence of witnesses 327
subscription by testator after witnesses 328
request to witnesses to sign 329
attestation and subscription distinguished 330
what is signing or subscription 331-334
position of signature, etc 335-337
" signing " and " subscribing " equivalent 338
whether another may sign 339
1714 GEIfEKAL IXDEX.
EXECXJTLO'S— continued. Sec.
subscribing " in the presence of," etc 340-343
certificate of acknowledgment ; magistrate, etc. ; other formalities . . . 344
re-execution when necessary 345
use of attestation clause 346, 347
subscribing witnesses relied upon, etc 348
attestation to sanity, etc 349
competency of witnesses 350-35S
execution of oral wills compared 359 et seq.
See Nuncupative Will.
re-execution of will 442, 443
See Republication.
EXECUTORS,
in general 50, 297, 354, 544, 583, 611
modern definition of 1002, 1003, 1030
absolute or qualified 1031
appointment of 1030 et seq.
See Appointment.
■who may be 1032, 1034
scope of appointment or designation 1035, 1040
acceptance, refusal, etc 1044-1051
appointment by court; letters testamentary 1052, 1052a
probate of will by 1053
See Peobate.
should propound will for probate 1064
grant of letters upon probate; only one probate needful 1087
bonds of 1137, 1138
administration with will annexed 1127
See Bonds.
removal or resignation 1154, 1156
See Appointment.
foreign 1 162 et seq.
See Conflict of Laws.
executor de son tort 1046, 1 184 et seq.
See Appointment.
acts done before qualifying 1046, 1 194
distinguished from administrators as to power to dispose 1241
should administer estate undisposed of; partial intestacy 1250
as residuary legatee 1249
matters common to executois and administrators.
See Adminsitration.
EXONERATION,
of personal property specifically bequeathed 1381
of real estate by person al 1512
EXPENSES. See Accounting 1542 ct seq.
EXPERT, MEDICAL, ETC 197-213
GENERAL INDEX. 1715
F.
Sec.
FAiMILY 537
" FAKE " WILL 250, 278, 279
FIXTURES 1227, 1287
FORCE. See Ixfluence.
FOREIGN,
appointments, distribution, etc 1 102
See ABSENTEE; Conflict of Laws.
FORGERY 241
FRAUD,
of decedent as to his creditors avoided 1220, 1234, 1252
pursuit of assets fraudulently transferred by deceased 1297
in dealing with assets 1357
waste; devastavit, etc 1382, 1384
See Assets.
fraudulent claims against an estate 1431
exerted in procuring will.
See Influence
FRAUDS, STATUTE OF,
as to personal undertaking of representative on decedent's behalf. . . 1255
affecting decedent's engagements, etc 1392
FUNERAL. See Claims . 1398, 1421-1424
G.
GIFT. See Will 3
causa mortis, and will distinguished 63, 271
causa mortis as affecting question of assets 1219
voluntary transfer in fraud of one's creditors 1220
distinguished from contract .' 1368
of assets by representative 1364
See Advancements.
GOODS 508
GUARDIAN,
inventory of representative as to several wards 1235
where representative is also guardian 1247
investment rule 1337
testamentary, whether appointed by will 44, 294, 295
of insane 81, 82
HEIR, H.
formerly favored 479-4S5
in bequests 543
in realty, etc 545-548
words of limitation or purchase 551-554
See CoNSTRrcTioN.
1716 GENERAL INDEX.
Sec.
HEmLOOMS 1225
HOLOGRAPH WILL 9, 253
HUSBAXD,
sur\-iving, right to administer deceased wife's estate 1098
deceased, administration by wife 1099
See Wife, Widow.
administering in wife's right 1106, 1126
death of, pending settlement of spouse's estate 1130
survivor, election under wife's will, etc 1457&-C
surviving, right to residue of wife's personal estate 1496
I.
ILLEGALITY,
in wills 21-24
ILLEGITIMATE CHILD. See Childben.
right to administer 1 108
distribution of estate 1117
as to distributee 1503
ILLITERATE PERSONS,
wills of 317
IMBECILES. See Insaxe Pebsons.
INCOjME,
of personal property 1200, 1317
of real property 1216
INDEMNITY. See Bond.
INFANT,
may take under will 25
reason of incapacity to make will 39
earlier and later rules compared 40-42
modern legislation does not favor 43
appointment of testamentary guardian 44
as executor 1032
testamentary capacity 1080
unsuitable to administer 1 107
administration during minority (durante minore acfoYc) .... 1132, 1135
allowance to 1447, 1455
as to accounting 1543
interest on legacy 1481, 1482
See Child; Guardian.
INFLUENCE,
undue, in wills considered 80, 221 ct seq.
fraud, force, or undue influonco 221-226
undue infliionro defined ; liow exerted 227-233
ofTcft upon will 234, 238
maxima applied 236-238
evidence in such cases 239-247
GENERAL INDEX. I7l7
IKFLTJEl<iCE— continued. Seo.
probate of wills unduly influenced 248-251
subsequent and parol assent insufficient 2516
in issues of revocation 427a
INJUNCTION,
denied on probate 1089o
INSANE PERSONS,
may take under will 2;)
their incapa<nty to make a loill; in general.
will void ; modern tests difficult 65, 66
standard of capacity in contracts compared 67
general standard stated 68, 69
incapacity more than weak capacity 70, 71
test referred to the particular instrument 72
will in extremis proper 73
capacity consistent with insane delusions 74, 75
effect as between will and codicils 76
rational and irrational wills 77, 78
manner of executing the will 79
complex and simple estates contrasted 80
will of one under guardianship 81, 82
sound and disposing mind and memory, health, etc 83, 84
classifications of insanity, etc 85-87
courts apply practical tests 88
tests of mental capacity 88, 89
each case tested by its own facts 89a
incapacity of idiots, imbeciles, the deaf, dumb, and blind, etc.
what is idiocy; idiots and imbeciles incapable 90-93
persons bom deaf, dumb, and blind 94, 95
persons not so born, but disabled 96-99
general conclusion as to the blind, etc 99
lunacy, and general mental derangement.
mental unsoundness in medium degree 100, 101
illusions, perversions, false judgment 102
expert attempts, etc., to classify insanity 103
common symptoms of insanity 104
will of lunatic, etc., invalid 105
restoration and intermittent insanity 106
lucid intervals 107-109
proof of will made during lucid interval 109-115
doubtful derangement, paralysis, prostration, apoplexy, hysteria,
etc 116-118
mental condition nearly contemporaneous with will 119
suicide not conclusive of insanity 120
murder by testator 120
delirium, drunkenness, and dementia.
delirium of disease incapacitates 121-123
1718 GEXEKAL INDEX.
IXSAXE VERSO'SS— continued. Sec.
delirium tremens, drunkenness, opium habit, etc 124-128
dementia distinguished from mania, etc 129
senile dementia, or decay of the aged 130-134
Avills of the aged, how regarded 135-142
monomania, and insane delusions.
monomania, or partial insanity 143
eccentricity and insane delusions distinguished 144, 145
delusions, sane or insane, in general 147
whimsical or eccentric behavior 149-152
monomania or insane delusion affects capacity 153-156
English cases considered 157, 158
American cases considered 159-161
sudden manifestations, etc 161a
insane delusion distinguished from prejudice or error 162-164
rational or irrational, just or unjust will 165
delusions in religion, etc 166, 167
belief in witchcraft, spiritualism, clairvoyance, etc 16S
proof of capacity and incapacity.
uncontested cases; contested cases; burden of proof 169-174
subscribing witnesses; their testimony 175-180
to test capacity 181, 182
statement of sanity in attestation clause 183
proponent opens and closes case 184
issue of testamentary capacity; matters of proof 186-192
testator's declarations, etc 193
miscellaneous points as to evidence 194-196
character of witnesses who testify 190
opinion of witness as to sanity 197, 193
opinions of non-experts 197, 199-203
expert opinions and testimony 204-213
in issues of revocation 427a
testamentary capacity of 1080
unsuitable to administer 1 107
legacy to, how payable 1483
IXSOLVEXCY,
as unfitting for executorship 1033
as disqualifying to administer 1104
of decedent; effect of 1219rt, 1220, 1391, 1420, 1421, 1424
payments where estate is insolvent 1435, 1446
widow's allowance, whether affected 1451
condition against 606
INSURAXX'E,
life, policy of, whether assets 1202, 1211
fire instirance 1218
INTENTION. See Construction.
GENERAL INDEX. 1719
INTEREST, Sec.
collection of interest-bearing debts, usury, etc 1303
placing funds on interest 132-
on claims against the estate 1440
interest and produce of specific legacies 1480
interest computed on general lagacies 1481, 1482
when charged to the representative 153S
when allowed him in his account 1541, 1542
INTERMEDDLING 1184 et seq., 1271
INTERPLEADER,
bill of, for instructions 1265, 1473
INTESTACY. See Administration; Administrators.
partial, etc 298, 490
INVENTORY,
of real and personal property 1005
formerly required in England; custom fallen into disuse 1229
required in American practice; whether indispensable 1230
dispensing with, after lapse of time 1231
qualified representative not exempt from rendering 1232
what the inventory should contain 1233, 1234
assets and inventory in special instances; co-ownership, etc 1235
effect of inventory; power of local probate court to alter, etc 1236
inventory as evidence 1236
advantages of returning an inventory 1237
items in account, etc 1536
INVESTMENT. See Assets 1323 et seq.
ISSUE 535, 554, 564
J.
JOINT, (
interest in devise or bequest 29'o, 566
JOINT WILL. See Consideration 480
JOINT ADMINISTRATION,
co-executors, appointment of, etc 1040, 1041, 1051, 1123
appointing co-administrators 1111, 1128
bonds of co-execLxtors and co-administrators 1145
co-executors ; rights, liabilities, etc 1051, 1400-1406
co-administrators; rights, liabilities, etc 1041, 1051, 1404-1406
accounting by co-executors or co-administrators 1532
JUDGMENTS. See Actions; Claims.
JURISDICTION. See Courts.
in probate of wills; death, last domicile, etc.lOOlo, 1015, 1024, 1029, 1057
spiritual, as to appointing administrator where no executor 1090
essentials of jurisdiction lOOlo, 1055, 1091, 1092
as to revocation, removal, etc 1157
1720 GENERAL INDEX.
K.
KIN, NEXT OF, Sec.
who are 542, 543
how appointed 1101, 1102, 1125
See ApporxTArENT,
as distributees 480, 1498-1502
See DisTBiBunoN'.
K
LANDS. See Real Estate 497, 493
LEASE,
as assets ; chattels real 494, 1223, 1224
vesting of possession; chattels real, leases, etc., distinguished from
chattels personal 1267
suits upon breach of covenant 1286, 1367, 1375
disturbing possession ; ejectment, etc 1287
distraining or suing for rent 1301
assitrnment and transfer; underletting, etc 1223, 1353
liability for rent, etc 1376
LEGACY. See Coxstbuction ; Will.
rule of foreign will; comity 1016, 1174, 11S3
residuary legatee, appointment and bond of 1124, 1138
legatee's dfbt to decedent 1208
legatee's ultimate title to legacy 1207
representative who is also legatee 1248
rights of legatees, as to investment and sale 1335, 1338, 1343
bequests for life with remainder 1342
specific bequest; exoneration ; how delivered 1381
claims of persons disappointed of legacies 1432
legatee, when liable for claims against the estate 1445, 1492
legacies, their nature and incidents.
this subject a branch of the law of wills 1458
legacy defined; executor should pay or deliver 1459
legacy to satisfy debt 1459
when legacy, etc., vests 14590
description of legatee and who may bo such 1460
subject-matter of legacies; specific distinguished from general; dem-
onstrative legacies 1401, 1461a
' ■ -whether a residuary bequest can be deemed specific 1462
what property is bestowed in legacies 5, 1462o
bequests for illegal and immoral purposes void; superstitious uses
etc 1463
bequests to charitable uses; statute of Elizabeth 1^64
boquost void for uncertainty 1465
wlx-re principal or income is locked up too long 1465
restraints under statute of mortmain 1^65
GENERAL INDEX. 1721
LEGACY — continued. Sec.
legacies absolute or conditional, vested or contingent 1466
lapsed legacies, general rule 1467
cumulative legacies; repetition or substitution of l^acies 1403
satisfaction of debt or portion by legacy 1^69
release of debts by legacies 1470
ademption of legacies , 1471
trustees under a will; duties of trustee; appointment 1472
equity and probate jurisdiction; bill of interpleader for construc-
tion 1472, 1473
construction of wills, legacies, etc 1474
doubtful points settled by agreement of all parties concerned 1475
payment and satisfaction of legacies.
payment, etc., of legacies; all valid legal claims take precedence. 1445, 1476
executor's bond of indemnity from legatees 1477
legacies usually payable within a year from testator's death 1478
when legatee's right vests 1479
rule as to annuitants, beneficiaries for life, etc 1479
interest and produce of specific legacies 1480
interest on general legacies 1481
special instances; widow, children, etc 14P2
to whom legacies should be paid; deceased legatees 1483
payment of legacy to infants, insane persons, etc 1483
payment, as to absentees, persons not known, etc 1484, 1494
payment of legacies to testamentary trustees 14S5
delivery of specific legacies ; legntee's right to select, etc 1486
method of paying general legacies ; money, etc 1487
assent of executor to a legacy 1488
legatee's assent to the legacy ; election 1489
abatement of 1-egacies in case of deficient assets; relative rank, etc. . 1490
personalty the primary fund; exceptions 1490a
refunding of legacies after their payment 1491
change from representative to other capacity 1491a
legacy taxes 15086
assignment by l^atee, etc 1508c
sale of real estate to pay legacy 1511, 1514
See Real Estate.
bill for account, etc 1521, 1522
See Accounting.
LETTERS,
testamentary or of administration 1052
See Administeatoes; Executors; Appoixtment.
of deceased, whether assets 1205o
LIABILITY. See Administration 1365 et seq.
LICENSE. See Real Estate 1513-1517
LIEN,
upon chattels 1203
1722 GENEEAL IXDEX.
LIEX — continued. Sec.
on assets; not created for creditor's advantage 1257
but for representative's own immunity 1257-1260
discharge of, by representative 1318
claimants against estate having security 1430
right of representative to retain for debt due him 1439
LIFE INTEREST 560, 1497
LlinTATION,
and condition distinguished 283, 607
and purchase distinguished 553a
to probate of will 1056, 1069
as to dispensing with inventory 1231, 1390
transactions barred by lapse of time 12685
general and special statutes as to administration 1258, 1389
special statute ; as to presenting claims, etc 1418-1420
lapse of time, effect upon accounting 1533
LOCKS,
power of representative to open, etc 272
LOST WILL. See Wells 402
LUCID INTERVAL. See Insane Peksons.
LUNATIC. See Insane Persons.
M.
MAINTENANCE. See Accounting; Widow.
]\L\NDAMUS. See Courts.
MANIA. See Insane Persons '. 121-128
MARINERS. See Nuncupative Will
MARRIAGE,
rights of surviving spouse 11, 19, 79, 481a, 535a, 595
mutual will of husband and wife 62
martial influence in procuring a will 236, 237
husband or wife as subscribing witness 355
subsequent, etc., revokes will 19, 20, 46, 424-426
effect of divorce 426a
husband and wife under a gift. 566
restraints upon marriage 22, 603
suits for annulling; representative not a proper party 1266
in settling estates 1457c
MARRIED WOMEN,
as executors 1 032
Roe Widow; Wife.
effect of subsequent statute 11
may take under will 25
incapacity to make will at common law 45
marriage a revocation 46, 424
modern cliangcs as to wife's incapacity 47
GENERAL I^^DEX. 1723
MARRIED WOME'S— continued. Bec,
exceptions; bequeathing by husband's assent 48, 49
wife's disposition as executrix 50
wife's will of separate property 51-54
modern English statutes of wills 55
wife's will under late American statutes 56, 57
civil law rule; present tendency to conjugal equality 58
devise or bequest to husband 60
devise or bequest to wife 585
his agreement to wife's will 61
mutual wills of husband and wife 62, 455-457
wife's gift causa mortis 63
wife's execution of testamentary power 64
]MARSHALLING ASSETS 1490, 1512
MASSACHUSETTS,
Mass. Wills Acts, Appendix A, Vol. I.
MEDICAL OPINION 204-213
MISNOMER " 583, 1160')
MISTAKE. See Ereor.
MISTRESS 22, 236, 237
MONEY . ; 505
MONOMANIA. See Insane Persons 75, 76, 143-163
MORTGAGE,
in general 495, 504
of chattels as to assets 1203, 1349
of real estate as to assets 1214, 1512a
investments in 1323, 1324
sales of 1258, 1352, 1362
rule as to exonerating real estate by the personal 1430, 1512
judicial license to mortgage 1516
statute mortgages, etc 1513-1517
MURDER,
of testator by beneficiary 23
by testator 33, 120
MUTUAL WILLS. See Consideration.
MYSTIC,
will 9
N.
NAME,
condition of assuming 604
NEPHEW 536
NEW YORK.
N. Y. Wills Acts. Appendix A. Vol. I.
NICKNAME 583
1124: GENERAL lA'DEX.
Sec.
KOTES, NEGOTIABLE 1202
running to executor or administrator 125S
suits by or against representative as to 1293, 1296, 139Sa, 1411
See Assets.
KU^XUPATIVE WILL,
wills which require no formal writing, etc 6, 38, 359
oral or nuncupative will defined 360
history prior to Statute of Frauds 361
affected personal but not real estate 362
restraints under Statute of Frauds 363
now virtually abolished, with few exceptions 364, 365
soldiers, mariners, etc., privileged 366-368
points to be considered ; distinctions 369
whether made in extremis 370, 37 1
place of making will 372
manner of declaring 373, 374
requisite number of witnesses 375
subsequent reduction to writing 376
strictness of proof of material facts 377
informal writings, whether upheld 378
whether written will thus revoked, etc 379
O.
OBLITERATION. See Revocation.
P.
PARALYSIS. See Insane Persons ,..116-118
PARENT,
influence of in procuring a will 235
PARTNERSHIP. See Assets 29a, 1325, 1326, 1370
partners as executors 1032
in accounting 1528, 1544, 1546
PAYMENT. See Claims; DisxBiBtrrioN ; Legacies ISllo, 1417 et scq.
PENNSYLVANIA,
Pcnn. Wills Acts, Appendix A, Vol. I. <'- — r~.—r-.
PERPETUITIES 21
PERSONAL PROPERTY,
various kinds enumerated 1198 ct scq.
See Assets.
PEW 1287, 1543
PLEDGE,
as to assets 1203
rights of personal representative 1305, 1306
power to pledge personal assets 1349-1352
claimants against estate having security 1430
See Claims.
GENERAL INDEX. 1725
POWER, Sec.
under a will 64, 299, 525, 526
how exercised 1049, 1222, 1347, 1511
PRECATORY,
words, effect of 263, 595-597
PREJUDICE 102, 163
PRESENCE,
at execution of will 340-343
See Execution.
PRESUMPTION. See Consteuction ; Evidence.
PRIORITY. See Claims 1425, 1428, 1451, 1476
PROBATE. See Couets.
of the will 1017, 1035 et seq.
letters testamentary distinguished 1052o
See Appointment.
duty of producing will; fundamental importance of determining tes-
tacy or intestacy 1053
procedure against persons suspected of secreting, destroying, etc.,
the will 1054
death of testator; its effect upon will 1055
how soon after death should will be presented for probate 1056
testamentary papers ineffectual until after proper probate; excep-
tions 105B
probate relates back 1058
what testamentary papers require probate ; wills of real and personal
property 1059
testamentary papers; various kinds stated; wills, codicils, etc 1060
secret wills; extraneous documents referred to 1061
instruments which do not purport to be testamentary 1062
modern statutes correct laxity, by requiring attestation to all wills 1063
by whom the will should be propounded for probate 1061
petition and proceedings for probate 1065
probate in common form; non-contentious business 1065-1068
probate in solemn form 1065, 1069, 1070
contest over conflicting testamentary papers 1071
agreement of parties in interest to conform to invalid will 1072
proof needful to establish will; proceedings at the hearing for pro-
bate 1073
essentials of proof detailed 1074
instrument to be in writing and signed by testator 1074, 1075
publication, so-called, by the testator 1075
proof by subscribing witnesses 1076
mode of attestation by witnesses 1077
proof of attestation clause 1078
proof of suitable testamentary condition on the testator's part... 1079
suitable testamentary condition as respects legal capacity 1080
proof of will; testimony at hearing 1081
1726 GEXEKAL INDEX.
FROB ATE— continued. Sec.
revocation or alteration of wills; codicils; new wills 1082
contest is in rem; appeal ; costs, etc 1052a
lost wills ; informal alterations 1084
probate in whole or in part 1085
probate in fac-simile or by translation 1086
probate of two or more testamentary papers; grant to executors. . 1087
decree of probate entered; public custody of the will lOSS
nuncupative wills and their probate 1089
no injunction ; effect of probate 1089a
judge of, as administrator 1114
as to insanity, due execution, etc. ; costs 213rt
full or partial in case of error 216, 219
undue influence, etc 223, 248-251
several papers making a will 280
of altered will 434, 435
of codicil 440a, 448a
of joint or mutual will 456-460
court in construction 492o
PROOF. See Evidence, Probate.
PROPERTY,
real, personal, and mixed 4, 28, 29
See Assets, Will.
acquired after making the will 29, 449, 486
real, descriptions construed 494-504
personal, descriptions construed 504-512, 550, 557-580
See Construction.
PROSTRATION 116
PUNCTUATION .472, 477, 571
PURCHASE 553a
See Assets.
R.
REAL ESTATE,
whether locality may confer jurisdiction 1027, 1154
See Conflict of Laws.
whether will of should be probated 1059
intermeddling with 1191
descends to heirs; not assets except for deficiency 1005, 1212
executor or administrator has no inherent authority as to real estate. 1213
rule of assets as to mortgagor or mortgagee 1214, 1512a
as to lands set ofT on execution 1215
rents, profits, and income of real estate; rule of assets 1216
legal cliaracter of property, real or personal, fixed at owner's death. 1217
rule of equitahle conversion; real into personal, or personal into real. 1217
character of property at owner's doatli ; instances; contract to sell. 1218
land damages; fire insurance money, etc ]~l^
GENEKAL IXDEX. 1727
REAL ESTATE— <;ontinued. Sec.
border line of real and jjersonal 1225-1227
representative's title ami autJiority in general 1509 et seq.
no inherent authority or title as to decedent's real estate 1212, 1509
actions relating to real estate 1284-1286
whether the executor or administrator may lease 1353, 1509
as to setting aside conveyance by deceased 1509
rule where representative collects rents, manages, etc 1510
power to sell lands; sale to pay debts, legacies, etc.; equity rules. . . . 1511
exoneration of real estate by the personal; whether mortgages are to
be paid off, etc 1430, 1512
equity rule as to marshalling assets 1512
dealing with mortgages 1512a
charges and allowances; reimbursement, etc 1512b, 1539
statute sales or mortgages under judicial license 1513 et seq.
modern statutes permitting sales under a judicial license 1513
legislative provisions as to a sale; essentials of purchaser's title. . . . 1514
principal and ancillary jurisdictions 1515a
judicial license to mortgage for certain purposes 1516
levy on land of execution obtained against the representative 1517
discretion given by will 1517a
intermeddler, whether an executor de son tort 1191
actions founded in wrong done to land 1284
upon covenants real, etc 1285
distraining, etc., for rent in arrears 1301
taking land in payment of debt 1310
in'vestment in 1323, 1324
representative's liability on covenants, concerning 1377
survival of actions for damage to real estate 1374
distribution of surplus where real estate has been sold to pay debts. 1505
REASONABLE PARTS. See Distribution 1009, 1497
RELATIONS 537
RELEASE,
of claims 1 388
of debt by legacy 1470
REMAINDER 550, 560, 1224, 1303, 1342
REMEDIES. See Actions.
REMOVAL,
of executor or administrator 1154, 1531
RENT. See Lease; Real Estate.
REPLEVIN. See Actions.
REPRESENTATIVE, PERSONAL. See Administbation 538. 541, 5-15
REPUBLICATION,
of will after coverture 59
definition ; acts express and implied 441
express republication or re-execution 442, 443
implied republication ; oral or written 444-447
effect of republication 448-450
1728 GENE-RAT. IIN'DEX.
REPUGNANCY, Sec.
in wills 4yg
See CoNSTEUcnox.
in description 513
REQUEST. See Pkecatoey.
REQUISITES. See Wiixs.
RESIDENCE. See Condition ; Domicile . . 604-
RESIDUE. See Coxstbuction 521, 525, 550
RESIGNATION 1156[ 1531
RETAINER. See Lien.
REVOCATION 1082, 1150 et seq.
See Administration; Appointmesvt.
revoking instruments 296
whether nuncupative will revokes 379
various modes of revocation 10, 380, 381
oral or implied not recognized 382
by burning, tearing, cancelling, etc 383, 384
sane intention to revoke must accompany 384
as to will destroyed unintentionally 3S5
where intention fails of action 386
burning, etc., by testator himself, etc 387
no witnesses to act necessary 388
burning, tearing, cancelling, etc 389-394
incomplete burning, cancelling, etc 395, 396
revocation of part only, etc 397, 398
of duplicate wills; of will, but not codicil 399, 400
presumiptions; will lost or defaced 401, 402
testator's declarations 403
by subsequent will or codicil 404-410
two wills of same date 411
where revoking will cannot be found 412
revival of earlier will 413-415
reference of codicil to one of two wills 416
express revocation by later will, etc 417, 418
by other writing 419-422
parol evidence of intention 423
instrument intended to confirm; power of attorney, etc 423a
inference of law; subsequent marriage, etc 40, 424-426
efTcct of divorce 426a.
implied by alteration of estate 427
effect of contemporaneous mortgage 427&
See Alteration.
by codicil, etc 437-439
by joint or mutual will 458rt
presumption against 48da
GENERAL INDEX. 1729
S.
Sec.
SAFE DEPOSIT COMPANY 1542n
SAILORS. See Nuncupative Will.
SALE,
of assets 1322, 1327, 1339 et seq.
See Assets.
of real estate 1511, 1513
See Real Estate. . . .
SEAL. See Execution.
SEAMEN. See Nuncupative Will 38
SECURITIES 504
SECURITY 1203, 1305, 1306, 1430
SENILE DEMENTIA. See Dementia 129-142
SERVANT 56Ga
SET-OFF,
representative's right 1508?^
See Lien.
SETTLEMENT. See Accounting 1527, 1528
SEVERANCE 1227a
SIGNATURE. See Execution 256, 300 et seq.
SOLDIERS. See Nuncupative Will 38
SOVEREIGN,
will of 37
SPENDTHRIFT TRUSTS 606
SPIRITUALISM. See Insane Peksons 168
STATUTE,
effect of subsequent upon will 11
leading wills acts 14-16
Thellusson act 21
. as to execution, writing, etc 252-257
as to signing 300, 301
aa to attestation 319, 320
as to gifts to attesting witnesses 357
as to nuncupative wills 363-365
as to revocation of wills 380, 381, 422
in rules of construction 485
leading Wills Acts: English (1 Vict. c. 26); Massachusetts; New
York; Pennsylvania; Virginia Appendix A, Vol. I
See Construction.
STIRPES, PER 538-541
STOCK. See Assets.
vote upon, and liability for 1319, 1380
STRANGER 566a
STUPOR. See Dementia 140
SUBSCRIPTION. See Execution.
SUBSTITUTION 565
1730 GENEKAL INDEX.
Sec.
SUCCESSION 12, 13, 17, 1006, 1007
SUICIDE. See Insane Persons 120
SUPERSTITIOUS USES 21, 21o
SURETY. See Bonds.
SURVIVAL,
of actions by or against estate 1277, 1360
See Actions.
SURVIVORSHIP 529-532, 565
T.
TAIL, ESTATES 553-555
TAX. See Assessments.
preference of 1426-1428
inheritance or legacy tax 15086
allowance in payments 1541
TESTAMENT. See Administration; Executors; Wills.
TITLE,
to personal property vests in executor or administrator . 1194, 1238 et seq.
TORT. See Actions; Claims; Intermeddling.
TRADE,
carrying on, with assets 1325, 1320
closing out business 1325, 1345
TRANSLATION of will 582
TREATY affecting appointment of administrator 1116, 1117
TROVER 1217, 13980
TRUST. See Trustee 495
resulting, proof of 58(J
precatory, uncertain, etc 595-597
when invalid or liable to be set aside 610
TRUSTEE,
testamentary rights and duties 495, 608, 61 1
good faith and diligence required 611
under will also named as executor 1046
trust of decedent to be closed, etc 1244, 1245
case where guardian is trustee 1247
where executor acts as trustee 1247a
investment rule 1337
testamentary trustees under a will 1472, 1485
TRUST PROPERTY,
held by decedent, ear-marks, etc 1205
special trust provisions 1266a
U.
UNCERTAINIT. See Certainty
UNJUST OR UNNATURAL WILLS 77, 112, 165, 227, 482
USURY. See Interest
QESTEKAL INDEX. 1731
V Sec
VIRGINIA,
Virginia Wills Act, Appendix A, Vol. I.
W.
WASTE. See Actions; Assets 1382-1384
WIDOW. See :Makbiage; JVIabbied Women; Wife
insurance, etc., for 1211
as to funeral 1422
allowance to, under modern statute 1448
whether confined to cases of distress 144^
maintenance for a particular period sometimes specified 1450
precedence over other claims; whether independent of distribution,
etc 1451
effect of decedent's insolvency upon this allowance 1451
decree of allowance, etc., how enforced 1452
allowance how barred 1453
effect of widow's death or re-marriage before grant 1454
allowance to minor children 1455
specific articles of personalty allowed; exempt chattels, etc 145G
use of dwelling-house; widow's quarantine 1457
election to take against husband's will 1457a
ancient doctrine of reasonable parts 1009, 1497
other rights considered 1457c
WIFE,
deceased, husband's right to administer 1098
will of 1098
surviving, administration upon husband's estate 1099, 1106, 1126
death of, pending settlement of spouse's estate 1130
marriage of sole executrix or administratrix 1154
widow, whether deemed intermeddler 1193
paraphernalia, separate property, etc., do not enter into administra-
tion 1447
surviving, interest in residue of deceased husband's personal es-
tate 1009, 1497
WILL. See AppExXdix, Vol. I.
its nature and origin.
definition I
last will and testament; testament and testator 2
gift ; devise ; bequest , — 5
property given ; real, personal, and mixed 4
legacy defined 5
written and unwritten or nuncupative 6
codicils or postscripts to will 7
will includes codicil 8
1732 GEKERAI. I^'DEX.
WILL — continued. Sec.
testaments in the civil law; special kinds; mystic, holograph, etc... 0
when ^vill comes into force, ambulatory character 10
effect of subsequent statute 11
origin of will ; succession, etc 12, 13
origin in England ; devises, etc 14, 15
origin in the United States 16
natural right to deAise. etc 16a
prevalent rule of succession 17
will of State and will of individual 17, 18
will of State when paramount 18
case of husband and Avif e 19
of children unprovided for 20
perpetuities, superstitious uses, etc 21
gifts, illegal, immoral, etc 22
personal incapacity to take under will 23
incapacity of corpora tionse to take 24
infants, insane, married women, etc., may take 25
maxims of testamentary construction 26
general conclusion as to policy of succession 27
what may be given by will 28, 29, 486
scope of investigation to be pursued 30
capacity and incapacity to make a will 31 et seq.
See Capacity.
what constitutes a will.
wills written or unwritten; most wills written 252
real and personal property now treated alike 253
statute rules on this subject 254-256
holograph wills, how far recognized 255
will drawn up by anotlier 255a
statute rules as to form, signature, and attestation 256
will not properly executed and attested is inoperative 257
requirement of writing ; materials 258
language ; legible writing 259, 260
no date necessary; nor formal words 261, 262
will imperative, though softer words used 263
general form of wills 264-266
form where statute requires attestation 267-269
instrument composed of deed or contract and will 270
will distinguished from gift causa mortis 271
test between will and other instrument 272, 273
posthumous and ambulatory character 274
operates, notwithstanding mistake in law 275
writings otherwise intended 276
plain tenor of instrument; effect of doubt 277
GENERAL INDEX. 1733
WILL — continued. ' Sec.
made in jest; animus testandi 250, 278, 27'^
several papers making will; instruments incorporated 280-282
reference of will to other writings 283
will on several sheets 284
wills conditional or contingent 283-290, 292
wills in the alternative Z91
will to operate at another's discretion 293
papers not probated as wills; ai)i)ointing guardian; appointing to a
situation; excluding from inheritance, etc 294-290
will simply nominating executor; wills without executor 297
wills disposing, as in intestacy 298
will with blank spaces 298a
wills under a power 299
proponent to prove execution 36-t
valid and invalid provisions separated 364
nuncupative or oral wills 359-379
signature by testator and witnesses 300 et seq.
See Execution.
nuncupative or oral wills 359-379
See Nuncupative Will.
how revoked 380-409
lost or missing 402
See Revocation.
how altered 428-440
See Alteration.
republication of 441-450
See Republication.
upon valuable consideration, irrevocable, etc 451-460
See Consideration.
construction or interpretation 461 et seq.
See Construction.
miscellaneous provisions 591 et seq.
against disputing will ; bond, etc 005
See Certainty; Condition.
trustees, their rights and duties 008, 61 1
whether without executor 1003
whether operating on property afterwards acquired 1004
whether of real and personal property distinguished as of right... 1008
modern statutes 1008
affected by doctrine of reasonable parts 1009
foreign ; rules of comity 101 7
death of testator, its effect upon 1055
of real as contrasted with personal property 1059, 1076
attestation of; modern statutes, etc 1063, 1074, 1076, 1078
probate of. See Probate.
invalid will sustained by agreement 1072
1734 GENERAL INDEX.
WILL — continued. Sec,
testamentary capacity, etc 1079, 1080
revocation and alteration ; codicils; new wills 1082
contest is in rem; appeal or review from probate 1083
lost wills ; alterations, etc 1084
letters testamentary issued upon probate 1087
public custody of probated will 1088
nuncupative wills and their probate 1089
foreign and domestic probate, etc 1169-1171
case of partial intestacy 1250
directions of, as to investment 1335
authority to sell personal assets under 1347
legacies under. See Legacies.
election of widow under 1457a
construction, to remove doubts 1473
leading Wills Acts, English and American Appendix, Vol. I, A
forms of wills Appendix, Vol. I, B
suggestions to persons making their wills Appendix, Vol. I, C
WITCHCRAFT. See Insane Persons 163
WITNESS. See Evidence; Probate.
subscribing, as to the testator's sanity 177-181, 108
opinions of otlier witnesses 197-209
subscription by 318-356
See Construction.
competency of subscribing ; " credible," etc 23, 350-358
gift to, annulled by statute 23, 357
in nuncupative will 375
of act of revocation 388
WORDS,
technical, etc., in a will 470-472
See Construction.
describing real estate construed 494-504, 510-512
personal estate construed 504-512
object of gift 533-.^)43
denoting estate or interest 549-560
meaning interpreted by will 571
See Evidence.
precatory, effect 263, 595-597
WRITING. See Wills 252 et seq.
[Total Number of Pages 1908.]
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