UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY . A TKfiKTISE ON THE LAW OF PENNSYLVANIA, RELATING TO THE ESTATES OF DECEDENTS THE CONSTITUTION, POWERS, AND PRACTICE, OF THE BY THOMAS F. GORDON. Congeriem secoit, sectamque in membra redegit. Nothing so much requires legislative attention as the proceedings in the Orphans' Courts for as sure as we descend into our graves, so sure into this court we must come and the man would be a real public benefactor, who would devise set forms, and furnish directions in conducting the vast business in these courts, where we every day find so deplorable a system of confusion Opinion of DUN-CAN, Justice, in the case of MTherwn vs. Cunliffet al. PHILADELPHIA: PRINTED FOR THE AUTHOR, BY J. MAXWELL. 1825. EASTERN DISTRICT OF PENNSYLVANIA, to wit- BE IT rtEMBEBED, that on the fifteenth day of February, in the fortv ninth year of the independence of the United States of Ame- rica, A. D. 1825, THOMAS F. GORDON, of the said district, hath deposi- ted in this office the title of a book, the right whereof he claims as Author in the words following, to wit: 9 Treatise on the Law of Pennsylvania, relating to the Estates of Decedents, the Constitution, Powers, and Practice, of the Orphan's Court. By Thomas F. Gordon. Congeriem secuit, sectamque in menibra redegit. Nothing so much requires legisla- tive attention as the proceedings in the Orphan's Courts for as sure as we descend into our Graves, so sure into this Court we must come and the,man would be a real public Benefactor, who would devise set forms, and furnish directions in conducting the vast Business in these Courts, where we every day find so deplorable a System of Confusion. Opinion o/Dunc AN, Justice, in the case of M'Pherson vs. Cunliff et al. In conformity to the act of the congress of the United States, intitu- led " An act for the encouragement of learning, by securing the co- pies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned." And also to the act, en- titled, " An act supplementary to an act, entitled, " An act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies during the times therein mentioned," and extending the benefits thereof to the arts of designing 1 , engraving, and etching historical and other prints." D. CALDWELL, Clerk of the Eastern District of Pennsylvania. PREFACE. IT is the object of the following treatise to present to the profession and to the public a systematic view of the law of Pennsylvania relating to the estates of persons deceased, whether dying testate or intestate: To investigate the rights and duties of their repre- sentatives, whether selected by themselves or ap- pointed by law: To examine the rights of heirs, le- gatees, and distributees: To designate the means by which such rights may be enforced; and generally to inquire into such matters as appertain to the jurisdic- tion of the Orphan's Court. That Court is confessedly among the most impor- tant of our tribunals. The estates of a vast majority of our citizens must be subjected to its supervision as certainly, as their owners descend to their graves; and every man in the community, as heir, legatee, distri- butee, executor or administrator, principal or agent, is interested to obtain a knowledge of the law and prac- tice by which it is governed. Yet such has hitherto been the prevailing ignorance on these subjects, that the Supreme Court has had occasion to lament it, as often as they have been required to revise the deci- sions of the Orphan's Court. Nay, the enormity of this ignorance has created its own protection by establish- ing the maxim that," The proceedings of the Orphan's Court are to be viewed with great indulgence." A judge of the Supreme Court, in a very late case, repor- iy PREFACE. ted at the end of the volume, has said, " nothing has been more irregular than, the practice of the (Or- phan's) Courts generally, there may be some excep- tion, but very rare. In some counties I would not take fifty per cent, to insure the purchaser." Two reasons may be assigned for the existing state of knowledge in relation to the business of the Or- phan's Court; First, there is no connected view of the law on the subject, the statutes and adjudged cases relating to it, being widely scattered over many vo- lumes; and, secondly, the short sessions of the court, and the manner in which its business is done, being chiefly in paper, prevent the student from learning its practice, from his own observation. By collecting and digesting tjie law, the author flatters himself, that he has prepared a direct path to the attainment of a com- petent share of information, for conducting the ordina- ry business before this tribunal; That by drawing from Toller and other English authorities the princi- pal rules of the law, common to our own state and to Great Britain, for the government of executors and administrators, whilst he has rejected every thing pe- culiar to the latter country, he has, in some measure, supplied the place of such authorities. His ambition is, that his work may become the nucleus on which a complete and uniform system shall hereafter be for- med for the Orphan's Courts throughout the common- wealth. The late decision of the Supreme Court in the case of M'Pherson vs. Cunliff et al. determined at Pittsburg on the thirteenth of September last, has re- stored the Orphan's Court to its proper place among PREFACE. v our tribunals. At least, its decrees for the sale of real estates will no longer be subject to reversal in eject- ment. The principle of this case will meet with the general approbation of the bar, even though, it should be thought, that in a part of the case the principle has been carried too far. Hitherto it was incumbent on the suitors of that Court to guard against irregularity in the proceedings antecedent to the decree, lest such irregularity should become the foundation of a suit in another court-, less attention by parties interested in the distribution of real estate, will not now be necessa- ry, to protect them from the conclusive effects of an order of sale. The case of M'Pherson vs. Cunlijf et al. esta- blishes the principle that the decrees of the Orphan's Court upon all subjects within its jurisdiction, are con- clusive, unless reversed upon appeal. Hence, it may be presumed, that, the accounts of executors, admin- istrators, guardians' and trustees, confirmed by the Or- phan's Court, and embracing only matters which are within its jurisdiction, will not be opened, in suits in the common law courts-, and that, the Orphan's Courts will be permitted uninterruptedly to pursue what they are empowered to effect, the entire distribution of the real and personal estate of the decedent; compel- ling the executor, administrator, guardian or trustee, by attachment or sequestration to perform his trust. The author submits his work to the public, with a full conviction that his professional brethren, who are the best able to detect his errors, will make every proper allowance for the novelty and difficulties of his subject. A TABLE OF THE CONTENTS. BOOK I. Of the Constitution and Powers of the Orphan'? Court. CHAPTER I. Organization and general powers of the Court' form of action and process judgment and appeal. SECTION I. Organization and general powers of the Court. 1 II. Form of suit and process. - 16 III. Judgment and appeal. 26 BOOK II. Of Wills and Probates. CHAPTER I. What is a will how many kinds what is a codicil who may make a will of what a will may be made construc- tion proper words to create the several species of estates by will revocation of wills. SECTION I. What is a will how many kindswhat is a codicil. -.-..--39 viii A TABLE OF THE CONTENTS. SECTION II. Who may make a will. - - 45 III. Of what a will may be made. - 49 IV. Of the construction of wills. - 50 V. Of the proper words to create the several species of estates by will. 53 VI. Of revocations. 59 CHAPTER II. Of Probate. Of the Register Register's Court issue to Common Pleas of appeal from Register's Court effect of probate. SECTION I. Of the Register. 65 II. Of the Register's Coort. - 69 III. Of the issue to the Common Pleas. 71 IV. Of appeal from Register's Court. 74 V. Of the effect of probate. - - 77 BOOK III. Of the rights and duties of Executors and Admi- nistrators. CHAPTER I. What is an executor who may be how appointed of ac- ceptance or refusal by executor revocation of letters tes- tamentary, executor de son tort. Power of executor before probate. SECTION I. What is an executor who may be how ap- pointed. ----- 79 II. Of acceptance and refusal by executor. 82 III. Revocation of letters testamentary. - 83 IV. Of executor de son tort. - 87 V. Of the power of the executor before probate. - 93 A TABLE OF THE CONTENTS. ix CHAPTER II. Administration what how many kinds who may be an administrator how granted. SECTION L Administration what. - 94 II. Of the several kinds. - 95 III. Who may be administrator. - 100 IV. Administrator how appointed. - 107 CHAPTER III. Of the interest of the executor, or administrator, in the estate of the decedent. SEonon I. In chattels real 115 II. In chattels personal 118 III. In choses in action - - 123 IV. Of the chattels which survive to the wife - 138 V. Of Parapharnalia 148 VI. Of Donatio causft, mortis - - 150 VII. How the effects which the executor takes, become his own - "-".' 1^3 VIII. Of the interest of an administrator, general and special of a married woman executrix, or ad- ministratrix of several executors or adminis- trators of the executor of an executor. 154 CHAPTER IV. Of the duties of an executor or administrator of the funeral of the inventory of collecting the effects of the pay- ment of debts of the payment of legacies of the distribu- tion of the personal estate. Advancement. SECTION I. Of the funeral - 155 II. Of the inventory - - 156 III. Of collecting the effects 159 IV. Of the payment of debts - 161 2 * A TABLE OF THE CONTENTS. SECTION V. Of the payment of legacies 181 VI. Of the distribution of the personal estate - 211 VII. Advancement - 214 CHAPTER V. Of the power of the executor and administrator over the real estate of the decedent. SECTION I. In what cases they may sell the real estate of the decedent 219 II. Of estates devised to be sold - - 220 III. Of estates refused by the heirs, or parties, in dis- tribution - .- 225 IV. Of sales for the payment of debts, and support of minor children - - 224 V. Of sales for payment of debts after final settle- ment of accounts of executor, or administrator 242 VI. Of conveyance of lands pursuant to contract of decedent 246 VII. Lien of the purchase money - 249 VIII. Of the effect of sales by order of the Orphan's Court - 263 CHAPTER VI. Of Devastavit - 250 BOOK IV. Of remedies for and against executors and adminis- trators. CHAPTER I. Of causes for which an executor or administrator* may main- tain suit of suits by executors or administrators, SECTION I. Of the causes for which an executor, or adminis- trator may maintain suit 268 II. Of suits by executor or administrator 269 A TABLE OF THE CONTENTS. xi CHAPTEil II. Of remedies against executors and administrators for cre- ditors legatees distributees. SECTION I. Of remedies for creditors in the common law courts ._---- 279 II. Of remedies for creditors in the Orphan's Court 315 III. Of remedies for distributees ... 326 IV. Of remedies for legatees - - 327 BOOK V. Of descents and distribution of real and personal es- tates. CHAPTER I. Of persons entitled to distribution of their respective pro- portions - - 335 CHAPTER II. Of the manner of making distribution. SECTION I. Of the powers of the Orphan's Court in making distribution ... _ 344 II. Of the inquest for partition - 354 HI. Of the order or writ 360 IV. Of the return and confirmation - - 366 V. Of the sale of the real estate where the parties re- fuse to take the estate at the valuation - t 390 CHAPTER III. Of the widoiv's dower how barred of her rights under the intestate laws. SECTION I. Of the widow's dower 392 II. How barred - - 400 III. Of the rights of the widow under the intestate laws 416 xii A TABLE OF THE CONTENTS. BOOK VI. Of guardian and ward. CHAPTER I. SECTION 1. Of the several species of guardians 424 CHAPTER II. Who may be guardian how appointed powers, duties, and liabilities of guardian. Remedies of the ward against the guardian. Of the termiation of the wardship. SECTION I. Who may be guardian - 436 II How appointed - 437 III. Of the powers, duties, and liabilities of guardians 439 IV. Of the remedies of the ward against the guardian 447 V. Of the termination of the wardship 451 ADDENDA. \ No. I. Note on the remedy which a creditor legatee, or distributee of a decedent's personal estate may have against debtor of such estate - 454 II. Note on the execution of wills. ... 456 III. Note on the powers of executors, administrators, and guardians, to vest monies. IV. Rule of Orphan's Court of first district, relative to the sale of decedent's estate after final settle- ment of accounts by executors and adminis- trators. V. Note on the power of executors, administrators, trus- tees, and guardians, to extinguish redeemable ground -rents. VI. Note on liability of executors, and administrators, for costs. A TABLE OF THE CONTENTS. xiii APPENDIX. No. I. No. 1. Petition for citation. 2. Citation. 3. Proof of service. 4. Attachment. 5. Return. 6. Attachment with proclamation. 7. Return. 8. Writ of sequestration. 9. Appeal from decree of register. 10. Issue from the Register's Court. 11. Affidavit on appeal. 12. (a) Recognizance on appeal. 12. (b) Proceedings on appeal, on disputed will. 12. (c) Proceedings on appeal, on disputed administration de bonis non, cum testamento annexo. 12. (d) Proceedings on appeal from a decree revoking letters of administration. IS. Executor's oath. 14. Letters testamentary. 15. Administrator's oath. 16. (a) Letters of administration, 16. (b) Letters of administration, with the will annexed. 16. (c) Letters of administration pendente lite; (d) Letters of administration de bonis non, 17. Petition for order of sale. 18. Order of sale. 19. Advertisement. 20. (a) Return to order of sale. 20. (b) Order of the court on return of administration of the sale of real estate. 20. (c) Return when not sold. 21. Petition for an order of sale on the final settlement of the accounts of an administrator or. an executor. 22. Bond of administrator on the sale of an intestate's real estate. A TABLE OF THE CONTENTS. 23. Petition for partition. 24. Order of partition. 25. Petition for inquest. 26. Writ of partition. 27. Return to order of partition, where the property cannot be divided among all the heirs. 28. Return to order of partition where the estate is equally divided among all the heirs. 29. Return to an order of partition where the estate cannot be divided. 30. Sheriff's return to writ of partition where the estate cannot be divided. 31. Return of sheriff to the writ of partition where the estate can be divided. 32. Bond to secure the payment of the purpart and divi- dend of the estate of an intestate to the heirs, &c. 33. Petition for rule on the heirs. 34. Rule upon the heirs. 35. Acceptance of estate at valuation. 36. Refusal of the estate at the valuation. 37. Power of attorney from heirs of intestate. 38. (a) Declaration of attorney in fact. 38. (b) Confirmation. 39. Petition for the sale of real estate of an intestate, when refused at the valuation. 40. Order of the court on the above petition. 41. Appeal from a decree of the Orphan's Court. 42. Petition for citation to widow to elect or refuse a devise or bequest. 43. Citation to widow. 44. Order of the court on the non appearance of widow. 45. Order of court on the appearance of widow. 46. Petition for guardian for minor under fourteen years of age. 47. Petition for guardian for minors above fourteen years of age.' 48. Petition for guardian by minors under and above the age of fourteen years. A TABLE OF THE CONTENTS. xv 49. Petition for sale of minor's estate. 50. Report of auditors on the foregoing. 51 Order jbr sale of minor's estate. 5. Return of sale by guardian. 53. Bond by guardian. 54. Petition for citation to guardian to settle his accounts. 55. Petition for the appointment of auditors on guardian's accounts. 56. Report of auditors. 57. Affidavit of the truth of exceptions to report of auditors. APPENDIX. No II. Case of John M'Pherson v. Robert Cunliff'and Al. (on the con- clusiveness of the judgment of the Orphan's Court.) ERRATA. Page 32. line 12, before "judicial" inserters*. S3, line 20, dele " fcis." " line 22, dele " ascertain" and insert order. 57, title, for " conduction" read construction. 81, title, dele " ivhat is a will," and read executor how appointed. 112, 113, 114, title, for "appeal from Register's Court," read appoint- ment of administrators, 134, line 4, dele " devisor" and read devisee. 140, line 2, dele " serves" and read set-era. 14, dele " distribution" and read disposition. 141, after word " bankrupt" in bottom line, insert dependant upon her survi- ving another person. 248, 2 line, dele " of." 289, line 14, for "^eri" read scire. " note (a) for " 1056" read 1029. 401, line 7, for "jointures" read jointure. 439, line 4, for " its" read fcis. 440, line 25, after " emp/oi/wient" insert of the. 50, note (c) for " Tiudlay" read Findlay. 55, note (g) for " 264" read 455. TABLE OF AMERICAN CASES CITED /JV* THE FOLLOWING W011K. Page A. ADAMS and Sword 129 and Jacobs - - 178 Adleman v. Way 124 Addicks and Commonwealth 426 Allen v. Irwin - 92. 98 Anderson's ex'r v. Sharp and Al 409 Vt Carkuff 239 Armstrong t>. Booth - 302 Arndt v. Arndt 61 Axers v. Mussleman - 239 B. 410 Bailey & Watson Baker's appeal 440, 441, 444, 451 Bannister's, ex'r & White 308 Barnet, & Yohe 27, 29, 145, 377 Barne's less. v. Irwin 46, 47 and Say's, ex's 440, 441, 447 Barnitz. v. Eichelberger - 233 Beach u. Lea - - 145 Beatty & Wife v. Smith 165, 171, 376, 388 Berquier & Dessebats 43, 68 Berry hill v. Wells - 177 Bevan v. Taylor 339 Bickel & Young 244, 355, S61, 361, 364, 418 Biddle & Powell - - 182 Biggs v. Brown - 136, 137 Blanchard v. M'Laughlin 454 Boileau & Vanz,ant 72 Boudinot v. Bradford 59,60, 61, 64, 212 3 Bovard v. Wallace Boniface v. Scott Bond's case Booth v. Armstrong Bower & Kaufelt Boyd & Shaw Boylston & Dawes Buckwalter & Hamilton Bulkly's case Blocher v. Carmony Page 27 162, 163 162, 167 302 401, 402 - 126 403 84 - 383 Bradford & Ingersol 71, 72 Brady & Commonwealth 69,70,76, 113 Bradford's, ex'rs, case of 97, 149 Brand & Shaller 178, 412 Braxton v. Justices of Spot- sylvania - 297 Bremen v. Weishaupt - 129 Brennenian & Hersha 369, 370 Brown & Hylton 40 & Dougherty & Al 54 & Griswold 's Appeal & Clow & Al v. Turner v. Furer Bruce v. Bruce - Bruington & Engles & Al Brower's ex. v. Fromm Bryant v. Hunter & Al - Bryan & Al v. Commth. Bryson & Lazarus Bujac r. Morgan Burns v. Burns Burkart . Bucher Burt Vi. Krumbaar Burnlv r. Lambert 124 267 271 329 330 43 40 182 205 309 233, 234 16 59, 60, 61 55 141,142 189, 308 XV1H TABLE OF AMERICAN CASES, &c. Page Busby v. Busby 55 Byrne v. Byrne - .- 206 v.Walker 319 C. Caldwell, ex'rs v. Fitzgerald 197 less. v. Furguson 55 Callaghau v. Hall 127, 214, 264 Campbell v. Hollaway - 140 v. Richardson 168 & M'Donald - 263 Cay's, ex. & Roberts - 177 Carkuft'v. Anderson - 239 Chew v. Griffith 335 Chaloners, ex. & Dallas 295 Christy v. Smith's, ex'rs 282 Clarke v. Webb & Al - 308 v. Mercey 49 v. Herring 333 Clow & Al. v. Brown - 271 Coates v. Hughs - , 63, 76 Commonwealth v. Irwin 13 v. Lewis 161 _ v. Emery 168 v. Brady 69, 70, 71, 113 v. King 119, 120 v.Ryan&Al 309 v. Fence 381 v. Evans 410 v. Addicks 426 v. Nutt v. Keppele 426 440 325 376 126 55 178 Connolly & Sutton Cooper & Taggert Cortelyon v. Lansing Creamer & Green Craig & Williams Cresoe -v. Laidley 336, 340 Crawford & Al v. Willing 178 Croft v. Smith's, ex'rs. 282 Craighead v. Febiger 239 Crosky & O'Brien - 272 Crunkelton & Hastings &A1 400 Cuthbert v. Cuthbert 184, 202 Crosdale & Scott - 414 Croston's case - 421 Cunliff & Al & M'Pherson. Appendix. Page Dallam v. Wampole & Al Dallas v. Chaloner's, ex'rs 295 Dasher v. Leineweaver 324 Dawes v. Boyleston - 126 v. Swan - 195 Davis & Havard 40, 63, 64, 65 Davy & Marriot & Ux u. Turner 323 - 406 43,48 202 - 371 337 263, 421 136 178 171 397 46 51 54 Dessebats v. Berquier Dewit v. Tates Diamond v. Robinson Dillo & M'Comb Dillon v. Young Dickey & Shults Dil worth v. Sunderling Dorsey & Tunis Dodson v. Davis Douglass & Starrit Downs & Linn Doughty & Al v. Browne E. Eckhart & Grasser - 212 Eichelberger v. Barnitz 223 Elder & Wallace 27, 55, 72 Ex'rs & M'Collough 387 Elliot v. Elliot 358, 364, 365, 390, 451 Emerick v. Garwood - 165 Emery & Commonwealth 168 Emory & Rapelje & Al 178 Engles & Al v. Bruington 40 Eyster v. Young - 41, 68 Eyre v. Golding - 191, 195 Evans & Fox - - 73 less v. Webb 396, 403 v. Comm'th 410 Ewing v. Lewis 272 F. Febiger v. Craighead 239 Federhaft & Kohr - 324 Ferree v. Commonwealth 381 Ferguson & Caldwells, less, .55 Findley v. Read - 50 Finney v. Moore - 27, 36 Fisher & Hoge's, lessee, 45, 46 &A1& Lewis - 182 TABLE OF AMERICAN CASES, &c. xix Page Fitzgerald v. Caldwells', ex'rs 1 77 Fitzsimmons v. Solomons 285 Folwell & Smith 223 Fogelsonger v. Sommerville 385 Fox v. Evans 73 - v. Wilcox 213,440,441,443 Frazier v. Tunis 174 Frazer & Griffith - 111 Franklin v Kean 171, 367, 376 French v. M'llhenny - 54 Fries & Watson 177 Fromm & Brewer's, ex'r 182 Fulmer & Moody 223 Fullerton's case 227 Furer v. Brown - 330 G. Garwood & Emerick - 1 65 Gause v. Wiley - 329 Gelbach's appeal 447 Gold ing v. Eyre 191 Gordon's adm'rs v. Justices of Frederick 296 Graft v. Smiths, ex's 280, 414 Graham's appeal Grasser v. Eckart Gratz v. Prevost Grayson & Kline Green v. Creamer - -v. Sarmiento Grseme u. Harris Grier v. Huston Griffith v, Frazer - < Ogle - - v. C ew 425, 430 212 233 370, 373 - 55 - 166 - 109 - - S15 111 289 - - 334 Griswold t?. Brown - 124 Guier v. Kelly 98, 231, 28 H. Haines v. Witmer - 59 Hall v. Vandergrift - 55, 56 - v. Callaghan 127, 214, 26 Hamilton & Lodge 139, 141 Hamilton v. Buckwalter 403 Hanna & M'Clay 37 Hautz v. Hull - - 72 lantz v. Seely Harris & Grseme - -v. Hays larrison v. Kelly H. Page 291, 329 109 - 338 406 281 lart & Miller iassencleaver v. Tucker 192, 332 ffasting & Al v. Crunkelton 400 flavard v. Davis 40, 63, 64, 65 Hays v. Jackson - - 133 tteister v, Knipe 290 Henry v. Risk 178 & Wilson 49 Herr v. Slough - 124 Hersha v. Brenneman 369, 370 Hight v. Wilson - 40, 41 Hoare v. Mulloy - - 285 Hoge's, less. v. Fisher 45, 46 Holsback v. Vanbuskirk 327 Hollaway & Campbell - 140 Howel v. Leacock 414 Hubly v. Hamilton 171, 377 Humes v. M'Farlane - 50 Huckle v. Phillips 227, 263 Hunter & Al r. Bryant 205 Hunts, ex'r v. Wilson 290 Huston & Grier 315 Hylton V' Brown 40 I. Jackson & Hays Jacobs v. Adams Iddings u. Iddings Jenkins & Stool loos tngersol v. Bradford Jones & Knox & Al Jones v. Ringold Jones t?. Moore Johnson v. Haines, less and Price & Ux Irish i". Smith Irwin v. Commonwealth & Shields', & Al & Barnes, less & Allen & Larrimer's, less. - 133 178 51 386 71,72 ' 178 - 178 - 272 340 393 62, 73 13 - 42 - 46 92,98 228 XX TABLE OF AMERICAN CASES, &c. Page Justices of Frederick & Gordons, adm'rs - 296 Justices of Spotsylvania & Braxton - 297 Izard & Shippen 539 K. Kaufelt r. Brown 249 Kean v. Franklin 171, 367, 376 Kelly & Guier - 38, 231, 282 & Harrison 406 Keller v. Michael - 415 Kennedy v. Wachsmuth 256 & Nedrow & Ux 401, 403 Keppele & Commonwealth 440 Kilhnger v. Redinhauser 174,416 King v. Comm'th 1 19, 1 20 Kintner & Messinger - 38 Kline v. Grayson 370, 373 Kohr v. Federhaft 324 Kirk v. Dean - 410 Knipe v. Heister 290 Knox & Al v. Jones - 178 L. Laidly v. Cresoe 336, 340 Lambert & Burnty - 189 Lansing & Cortelyon 126 Lawson v. Morreson 59, 61, 64 Larriiner & Al v. Irwin 228 Lazarus v. Bryson 233, 234 Lea & Beach - 145 's ex'r v. Yard - 294 Learning & Massey & Al 207 Leacock & Howell - 414 Legg v. Legg - - 140 Lewis v. Maris - 40 & Fisher & Al - 182 & Ewing - 272 Lloyd's, less v. Taylor 223,407 Lodge v. Hamilton 1S9, 141 Long v. Majestre 453 Ludwig v. Stoever - 111 Lynn v. Do\vns - 51 M. Majestre v. Long 453 Marriot v. Davy Maris & Lewis Martin v. Smith Massey & Stones, adm'r & Al v. Learning v. Schots & Al Page 323 - 40 272 124 407 295 362, Matther v. Trinity Church 124 Meason ex parte 153,162,163,179 Messenger u. Kintner 38, 251, Mercy & Clarke Mercer & Watson M'Clay fi Hanna M'Comb v. Dunch v. Dillo M'Cullough v. Young 64 49 412 37 292 337 110 & Elder's, ex'r. 387 & Allen - 403 M' Donald v. Campbell 263 M'Farland v. Humes - 50 M'Laughlin v. Blanchard 454 M'Kim & Al v. Riddle - 272 M'Kean v. Shannon - 295 M'llheunj & French - 54 M'Intirev. Ward - 411 M'Pherson v. Cunliff & Al Appendix. No. II. Millar & Al v. Millar Michael & Kellar & Stout v. Hart 46.72 414 280 - 281 323 . 195 227 16 27, 36 272 223 223 Morrow & Thompson 396, 411 Morrison & Al v. Semple 54, 55 and Lawson 59, 61 , 64 Morris, less v. Vanderin - 67 ex. v. M'Conaughy 282 less v. Smith - 280 Mundorf & Shenk 124 Murray & Welsh - 165 Mulloy & Hoare Musselman & Axers - 272 Millar v. Millar Miles v. Wistar Moliere's, less v. Noe Morgan & Bujac Moore & Finney & Jones Moody v. Vandyke & Al 's less v. Fulmer TABLE OF AMERICAN CASES, &c. xxi N. Page Nedrow & Kennedy & Ux. 401, 403 Newlin v. Newlin 146 Newel's case - 218 Nichols & Prevost 164 v. Postlethwaite - 332 Nicholas & Obermeyer 178 Noe & Moliere's, less - 227 North v. Rham 231, 233 Nutt & Commonwealth 426 O. Obermeyer v. Nicholas 178 OBrian v. Crosky 2/2 Ogle & Griffith - - 289 Oyster & Al v. Oyster - 217 P. Patterson . Sample - 170 Pemberton v. Parke 182, 188 Pendleton v. Ruffin - 303 & Swearingen 167, 267, 284 Penrose v. Penrose - 285 Petit & Sharp 68,416 Phillips & Huckle 227 Plumstead's Appeal - 42 Pleasants & Young - 248 Price & Scott 59 v. Watkins - 188 & Ux v. Johnson - 393 Prevost v. Nichols - 164 v. Gratz, 223 Pringle v. Black's, ex'rs 292 Powell v. Biddle 182 Postlethwaite & Nichols 332 Pollard's case - 438 R. Rambler & Spangler - 77 Ramsey & Scott - 164,165 Rapelje & Al v. Emory - 178 Richard's case 37, 320, 321, 326,451 Read & Walmsley's, less 41, 75 Redinhauser & Killinger 174, 416 Page Rex v. Rex - - 358, 360 Richardson &Campbell 169, 170 Riddle & Findlay 50 & M'Kim & Al - 272 Ringold & Jones 178 Risk -v. Henry - 178 Rham v. North 23 Rossiter v. Simmons - 40 Robinson v. Martin 186, 343 & Diamond 321 Roberts v. Cay's, ex'ors 177 Ruffin v. Pendleton - 303 Russell v. Skipworth - 49 Ruston v. Ruston - 50, 51 S. 170 217 166 Sample & Patterson Sampson v. Sampson Sarmiento v. Green Say's, ex'rs v. Barne's 440, 441, 447, 451 Semple & Morrison Scott v. Price v. Ramsey & Boniface v. Crosdale Selin v. Snyder Seely & Hantz Sharp v. Petit 54,55 59 164, 165, 167 162, 163 414 - 262 292 68, 416 & Al v. Anderson's, ex. 409 Shaller v. Brand 1 78, 412 Shaw v. Boyd - 401, 402 Shannon v. M'Kean - 295 Shippin v. Izard 339 Schot & Al & Massey 295 Shields & Al v. Irwin 42 Shauffer v. Steever 111 Shenk -i. Mundorf 124 Shoemaker v. Walker 397 Simmons & Rossiter - 40 Simpson v. Ammon 160, 26,9 & Talbot's, less 412,413 Sinderling & Dil worth 178 Skipworth & Russel - 49 Slough & Herr - 124 Smith & Irish - 6<4, 73 xxn TABLE OF AMERICAN CASES, &c. Page Smith & Martin 272 's, ex'rs & Graff 280, 414 & Morris', less - 280 & Croft 282 & Walker 339 & Beatty & Wife 165, 171, 376, 388 & Zebach 223 & Folwell Snyder v. Snyder Solomons & Fitzsimmons Sommerville & Fogelsonger Stool foos & Al v. Jenkins Spangler v. Rambler Starret r. Douglass Stammers & Weston Stcever v. Whitman Ludwig 323 253 286 385 286 - 77 46 67, 364 50 111 280 Stout v. Millar Stewart & Al v. Wootering 164 Stewarts' Deborah case 437 Steel v. Taggart 165 Stone's, ad'r v. Massey 120, 188 Stultz v. Dickey 136 Sword & Adams 129, 120 Swan & Dawes 195 Swearingen -v. Pendleton 167, 257, 284 Sutton v. Connelly - 352 T. Taggert v. Toner 43 & Steele 165 & Cooper - 376 Talbot's, less -v. Simpson 412, 413 Taylor & Lloyd's, less 223, 407 &Bevan - - 339 Thompson & Morrow 396, 411 Tod v. Tod's, ex'rs - 115 Torbett v. Twining 51, 147 Tower & Wright Trinity Church & Matther 124 Tucker & Wells - 120 & Hassencleaver 192 Tunis & Dorsey 171 & Frazier - 174 Turner & Brown - 329 Page Turner & Davy & Ux 407 Turbett v. Tufbett 51 V. Vanbuskirk & Holsback 327 Vandergrift & Hall 55, 56 Vanderin & Monis, less 7 Vandyke & Al & Moody 223 Vanzant v. Boileau - 37 W. Walkerer's appeal &. Byrne . v. Smith & Shoemaker 37 319 339 397 Wallace v. Elder 27, 35, 72 & Bovard 72 Walmsley's, less. v. Read 41, 75 Walton v. Willis 171, 358, 362, 364, 369, 375, 377 Wampole & Al & Dallam 193 Watson & Fries 177 v. Baily - 410 v. Mercer - 412 Ward & M'Intire 411 Watkins & Price 188 Way & Adleman 124 Webb & Evans', less - 396 &Alw. Clarke 208 Wells v Tucker 150 & Berry hill 177 Weishaupt & Bremen 129, 130, 186 Welsh y. Murray 165 West's appeal - - 38 Weston v. Stammers - 67 Wilcox v. Henry - 49 & Fox 214, 440, 441, 443 Wilson v. Wilson 19, 55,212, 280, 327 & Might - 40, 41 v. Hunts, ex'r - 290 Williams v. Craig 178 Willing & Crawford & Al 178 Wiley & Gause 329 White & Al v. Bannister's, ex's - - 308 Whiteman & Stcever - 50 TABLE OF AMERICAN CASES, &c. XXHl Page Witmer & Haines 59 Wistar & Miles 195 Witman v. Norton - 332 Wootering v. Stewart & Al 164 Wright v. Tower 165, 166 Y. Yard v. Lea's, ex'rs - 294 Yohe v. Barnet 27, 29, 145, 19,4, 377 Page 41, 68 - 110 - & Silsby & Al - 209 Young & Eyster & M'Cullough -- v. Bickel 244, 355, 361, 364', 418 v. Pleasants - 248 v. Dillon 263, 421 Z. Zebach v. Smith 223 A TREATISE ON THE LAW OF PENNSYLVANIA, RELATING TO THE ESTATES OF DECEDENTS. BOOK I. OF THE CONSTITUTION AND POWERS OF THE ORPHAN'S COURT. CHAP. I. ORGANIZATION OF THE COURT GENERAL POWERS FORMS OF SUIT PROCESS JUDGMENT APPEAL. SECTION I. Organization and general powers of the Court. ONE of the earliest acts of the Proprietary of Penn- sylvania under the grant of Charles II. was the es- tablishment of the Orphan's Court. At the first assem- bly held at Chester, on the seventh December, 1682, this was organized with the other courts of the pro- vince, (a) An inquiry into the provisions of the early laws on this subject, would serve but to gratify a useless curiosity, since they are supplied by the act of twenty -seventh March, 1713. (6) By the first section of this act, the justices of the courts of General Quarter Sessions of the peace in each county, or so many of them as are enabled to (a) Penn's Lett. August, 1683. (6) 1 8m. L. 81. 10 GENERAL POWERS. [BOOK i. hold those courts, are empowered, in the same week that they are by law directed to hold them, or, at such times as they see occasion, to hold and keep a court of record, to be styled the Orphan's Court; and to award process and to cause to come before them, all persons who as guardians, trustees, tutors, executors, administrators, or otherwise are entrusted with, or in any wise accountable for any lands, tenements, goods, chattels or estate, belonging to any orphan, or person under age; and to cause them to exhibit within a rea- sonable time true and perfect inventories and accounts of the said estates; and to cause the registers or their deputies, on application made in that behalf, to trans- mit into the said Orphan's Court, true copies or dupli- cates of all such bonds, inventories, accounts, actings and proceedings whatsoever, in their respective offi- ces as relate to the said estates; and to order the pay- ment of such reasonable fees for the said copies and for all other charges, trouble and attendance which any officer or other person shall necessarily be put upon in the execution of this act: and if upon hearing or examination thereof, it appears to the justices of the said court, that any of the said officers have mis- behaved themselves to ttye prejudice of any minor or others, concerned for them, the justices are required to certify the same accordingly, which shall be good evidence for the party grieved, to recover his dama- ges at common law. Where insufficient surety has been taken by the register, from administrators who are unable to make good the yalue of the decedent's estate, the court may require them to give better security to the CHAP, i.] GENERAL POWERS. 11 register by bond, with such sureties and under such penalties as it may approve. And if the adminis- trators embezzle, waste or misapply, any part of the decedent's estate, or neglect or refuse to give such bonds, the court may revoke the letters of adminis- tration: and new letters shall be granted by the re- gister to such person having right thereto, as will give the bonds required, (a) On complaint made to the court that an executrix having minors of her own, or being concerned for others, is married or like to be married to another husband, without securing the minors' portions, or estates; or where an executor or other person having the care and trust of minors' estates is like to prove insolvent, or shall refuse or neglect to exhibit inven tories, or give a just account of the estates in their hands, an Orphan's Court may be held forthwith, and may cause such executors and trustees, as also such guardians or tutors as are appointed by the court to give security to the orphans or minors by mortgage or bonds in such sums and with such sureties as the court shall judge reasonable, conditioned for the per- formance of their respective trusts and for the pay- ment of the legacies, portions, shares, and dividends of estates, real and personal of such minors, as far as they have assets, as also for their maintenance and education, according to the order of the court. (6) And if a legatee or creditor, or person interested in the real or personal estate of a decedent, or surety in an administration bond, shall declare on oath or affirmation, that he believes the executor or adminis- (a) 1 Sm. L. 82. Act 1713. Sec. 2. (6) Ib. 83. Sec. 3. 12 GENERAL POWERS. [BOOK i. trator is wasting or mismanaging the estate of the decedent, and shall apply for security, the court may order the executor to give bond with sureties, and the administrator to give bond with such further sureties, as it may think proper. And on the neglect, or refusal, of the executor or administrator, for thirty days, after notice of such order, to give security, the court may vacate the letters testamentary or of ad- ministration, and award new letters to be granted by the register, to such persons, and upon such security as it may think proper; and may compel the super- seded executor or administrator, to deliver to his successor the estate of the decedent remaining in his hands on the pains of contempt, (a) By Sect. 1, Act nineteenth April, 1794, (6) the Orphan's Court is empowered to call administrators to account touching the goods of their decedent, and to make distribution of the residue after the payment of debts, funeral and just expenses, amongst the parties entitled thereto 5 and having decreed distribution, to compel the administrators to observe it. The court is also empowered to admit minors to make choice of guardians or tutors, and to appoint them, and to appoint guardians, next friends or tutors for such as are too young or otherwise incapable to make choice of themselves: and at the instance and request of executors, administrators, guardians, or tutors, to direct the binding out of minors, apprentices to trades, husbandry, and other employments, (c) (a) Act 4 April, 1797. Sect. 1. (c) Act 27 March, 1713. Sec. 7. 3 Sm. L. 296. 1 Sra. L. 83. (6 3Sm. L. 143. CHAP, i.] GENERAL POWERS. 13 It was doubtless the intention of the legislature that the Orphan's Court should carefully superintend the interests of minors, and that the assent of the court or guardian, or next friend appointed by it should be requisite to their apprenticeship. This was more practicable when the act was passed, than in the pre- sent populous state of the country. There are now no instances of the court directing the maintenance and education of minors j nor is it necessary that a next friend in an indenture of apprenticeship should be appointed by the court, (a) The Orphan's Court has power to make partition of the real estates of intestates on petition of the widow, or children, if of age, or of their guardians or next friends, if under age. (b) It may direct the sale of the real estate of dece- dents in the following cases. 1. On the application of the administrator for the payment of debts and maintenance of the children until the eldest comes of age. (c) 2. On the petition of the executor or admi- nistrator, after final settlement of the administration account, in the court, if there be not sufficient assets to pay the balance due from the estate, (d) 3. At the instance of a guardian, for the maintenance and edu- cation of a minor, where the personal estate is in- sufficient, (e) 4. Where the heirs or distributees of an intestate refuse to take the estate at the valuation made by inquest. (/) (a) Decided by the Supreme Court, (d) Act 1 April, 1811. 5 Sin. in the case of Common wealth, L. 258. v. Irwin. Ms, (e) Act 7 April, 1807. 4 Sm. L. (6) Act 19 April, 1794. Sec.22. 401. (c) Act 19 April, 1794. 3 Sm. L. (/) Act 2 April, 1804. Sm. L. 150. 184. 14 GENERAL POWERS. [BOOK i. Where a devise or bequest is made to a widow, her assent to which bars her dower, the court is em- powered to cite her to make her election between the devise or bequest, and her dower at common law. (a) If any person duly summoned to appear in the Orphan's Court ten days before the time appointed for his appearance, make default, the court may attach him for contempt, and may force obedience to its warrants, sentences and orders, by imprisonment of body or sequestration of lands and goods as fully as any court of equity may or can do. (b) The court has authority to appoint guardians for old soldiers, and to compel the settlement of their accounts, (c) And in the acts authorizing the sale of lands of minors or others, the persons directed to sell, are most commonly obliged by law to exhibit their ac- counts for settlement in this court, (d) The change of government consequent on the re- volution made but little alteration in the organization and powers of this court. By the constitution of 1776, the Orphan's Courts were directed to be held quar- terly, in each city and county, (e) And by the present the judges of the court of Common Pleas, any two of whom make a quorum,compose theOrphan's Court.(/) By the act of thirteenth April 1791, for carrying into effect the provisions of the constitution,(g) it is enacted (a) Act 1 April, 1811. 5 Sm. L. (e) Chap. 11. Sec. 26. 5 Sm. 258. 428. (b) Act 1713, Sec. 8. 1 Sm. L. 84. (/) Act 5. Sec. 7. (c) 6 Read's L. 27. (g) Sm. L. 3 vol. 30. (d) 1 Sm. L. 87. n. OHAP. i.] GENERAL POWERS. 15 that the Orphan's Court shall be held at such stated times as the judges shall ordain for each year. By the act of twenty -fourth February 1806, (a) the judges of the court of Common Pleas, of the first district, or any two of them, the president being one, shall compose and hold an Orphan's Court in that district at such times as they may think proper: and the judges of the courts of Common Pleas, in each county, wherein the court is to continue two weeks, or any two of them, the president being one, shall hold the Orphan's Court in such counties in the first week of each term, and at such other times as they may think proper: and in the other counties the court so constituted may fix such times for their sessions as they may find con- venient. Any two judges may hold the Orphan's Court in each county, for the appointment of guar- dians, and other business; but a party interested in any case, may request a continuance thereof until the president shall be able to attend. Pursuant to the act of 1806 (b) the judges of the first district composed of the city and county of Philadel- phia, hold a stated session on the third Friday of every month, at which the general business of the court is transacted. No applications are received on other days, except in cases of necessity, which must be shown to exist before they will be considered, and the court have directed that the evidence of such necessity shall be laid before them in writing by affi- davit or otherwise to be placed upon the record. (a) 4 Sm. L. 275. P. Q. S. and O. C. njade 1 January, (6) See the rules of courts of C. 1824 pages 17, 18 and 19. 16 FORM OF SUIT AND PROCESS. [BOOK i. SECTION II. Form of Suit and Process. Suits fcre commenced in this court by petition and citation or subpoena. The petition states the character in which the party applies, the grievance of which he complains, and concludes with a prayer to the court, to award a cita^ tion, if any be required, or to make such order as may be necessary for his relief, (a) The citation or subpoena is a writ directed to the defendant commanding him to appear on a day given, and to do a certain thing therein specified, or to shew cause why he should not. (6) It is never issued, unless to witnesses, but on a special order of the court. Against guardians it is usually to command them to settle their accounts-, or to shew cause why they should not be removed: against trus- tees to file a statement of their trust, or to make a set- tlement thereof: against a widow executrix, to com- mand her to secure the minor's estates: against ex- ecutors and administrators, to give security for the faithful performance of their duties; to file their ac- counts; to make distribution, &c. &c. The service of the citation must be made ten days before the return day, (c) and may be personal, or it may be left at the dwelling of the person cited, (d) It may be served by any person competent to prove the service. In England, if on the service of the subpoena, con- temptuous words be spoken of it, the offender, on mo- (a) Appendix, No. 1. (c) Sin. L. 84. (6) Appendix, 2. (d) Bujac v. Morgan, 3 Yeates, 258. CHAF. i.J FORM OF SUIT AND PROCESS. 17 tion, supported by affidavit of two persons, will be com- mitted without further examination; and a single affi- davit is sufficient to grant an attachment upon which he may be examined. If on such examination the misdemeanour be confessed, he will be committed-, but if denied he will be discharged, but not without costs in respect to the oath made against him. (a) If the person serving the subpoena be beaten or abused, the offender will on affidavit of the fact, by more than one witness be committed. But though contemptuous words are spoken of a subpoena, and the person serving it be severely beaten, yet if the facts are proven by the oath of a single person only, the court will not, in the first instance, order the offender to stand committed, but make an order upon him to shew cause why he should not stand committed. (6) Whenever a person is called upon to answer for a contempt, the court exercises its sound discretion on the subject, (c) and considers whether the party acted under a mistake or contumaciously towards the court, (d) But in Pennsylvania it may be well doubted whether in such cases the court could punish the party for con- tempt; since by the act of third April, 1809, (e) made perpetual by the act of thirty-first March, 1812, (/) the power of the several courts to issue attachments and inflict summary punishments for contempts of court is restricted " to the official misconduct of the officers of such courts respectively, to the negligence or disobedi- fa) Harr. Cb. 199200. (d) Page ex parte, 17 Vez. 61. (6)3 Atk. 219. (e) 5 Sm. L. 55. (c) Ball v. Coutts, I Vez. & Beames, (/) Ib. 384. 297. ' 18 FORM OF SUIT AND PROCESS. [BOOK i. ence of officers, parties, jurors, or witnesses, against the lawful process of the court, to the misbehaviour of any person in the presence of the court, obstruct- ing the administration of justice." And if the court have power to punish for othpr contempts, it is by fine only, in the first instance. The party, however, may be committed to prison by the sheriff until such fine be paid or discharged, or if he be unable to pay it, he may be imprisoned by the court for any time not exceeding three months, (a) The defendant appears personally or by attorney, But it is not the practice to enter his appearance on record. Yet such entry might prevent much embar- rasment in the subsequent stages of the cause, should the defendant deny having appeared, or suggestions to that effect be made by others. If there be a minor party to the suit he should appear by guardian-, (b) if he have no guardian, the court, as in a suit for par- tition, will assign him one. The neglect of the defendant to appear, is consider- ed a contempt of the court, and a second citation will be issued upon an affidavit, that the first was duly served, ten days before the return day. (c) The second citation, which must also be served at least ten days before the return day, commands the defendant to shew cause why an attachment for contempt should not issue against him. If upon this, he do not appear, and due proof of the service be made, the court will grant an attachment, commanding the sheriff to bring the defendant before them, (d) (a) 5 Sm. L. 56. (c) Appen. 3. (6) 1 Harr. Ch. 78. (d) Appen. 4. CHAP, i.] FORM OF SUIT AND PROCESS. 19 The return of the sheriff to the writ of attachment, is either, that the party is not found, or that he has taken, and has him in custody, (a) If he be taken, he must enter his appearance, and perform that which was required by the citation, or shew cause why he should not; and he must pay all costs which have ac- crued by his standing out. (6) When the defendant is in custody on the attachment, he lies in prison, or gives bail for his appearance at the time assigned. We are next to inquire, by what means a party ab- sconding, to avoid the process of the court, may be compelled to appear. By the seventh section of the act of 1713, the court may compel obedience to its warrants, sentences, and orders, by imprisonment of body, or sequestration of goods, as fully as any court of equity may or can do. (c) But obedience to the warrant or citation of the court cannot be enforced by imprisonment, where the party cannot be found 5 but his appearance may be compelled, by sequestration of his lands or goods.(d) As the power of the Orphan's Court, in this particu- lar, is assimilated to that of a court of equity, and as from the paucity of cases in which recourse has been necessary to other process than citation, we have not an established practice among ourselves, we must resort to the chancery courts for rules upon this head. The practice of chancery, which we are about to state, from the attachment to the sequestration, is founded on the contempt in not appearing to the sub (a) Appen. 5. 1 Harr. Ch. 200. (c) 3 Binn. B. 550. (6) Harr. Ch. 201. 2 Madd. 166. (d) 1 Chan. Cas. 139. 20 FORM OF SUIT AND PROCESS. [BOOK i. pcena or citation after service thereof consequentjy if the subpoena were not served, the attachment, &c. could not issue. Hence a party having knowledge that a citation had issued against him, and avoiding the service by absconding might bid defiance to the court. This was remedied in England by Stat. G. II, c. 25. But is it less a contempt to avoid the process of the court than to disobey it? Is not public justice as much insulted by the one as by the other? And a defendant cannot complain who keeps out of the way, that the ultimate process of the court is awarded against him, when he may remove all inconvenience by appearance. In a court of chancery then the process of sequestra- tion is a writ or commission, sometimes directed to the sheriff but more usually to four or more commission- ers of the complainant's choice, authorizing them to enter on the real and personal estate of the defend- ant, and to take the rents, issues, and profits into their hands, and keep possession thereof, or pay them as the court shall order, until the party in contempt, do that which is enjoined upon him by the writ, (a) It is issued by order of the court, on petition of the complainant, setting forth the several unsuccessful at- tempts to serve the citation or to execute the attach- ments. In England, if " non est inventus" be returned to the first attachment, and the party persists in his contumacy, an attachment with proclamation issues, commanding him to appear on pain of his allegiance (sub poend legiancice) at a day given. (6) If this also be returned " non est" a commission of ^rebellion may is- (a) 1 Harr. Ch. 191. 2 Ch. Ca. 163. (&) 1 Harr, Ch. 183. CHAP, i.] FORM OF SUIT AND PROCESS. 21 sue. (a) This writ is sometimes directed to the sheriff, but generally to commissioners jointly and severally commanding them to attach, or cause to be attached, the defendant as a rebel and contemner of the law. If the commissioners return " non est inventus" to the commission of rebellion, a Serjeant at arms is moved for. (6) This is an officer whose duty is to attend the chancellor, and execute all warrants granted against one who has stood out a commission of rebellion, &c.; and, if he certifies that, the defendant cannot be taken, a motion is made for an order for- sequestration, (c) Thus, in order to obtain a writ of sequestration in the court of chancery, the plaintiff must first issue a sub- poena or citation, an attachment, an attachment with proclamation, a commission of rebellion, and must ob- tain an order for a Serjeant at arms. In the Orphan's Court, it is presumed that the course would be, 1. A petition for citation. 2. Return on oath or affirmation of the service of the citation, or that the party could not be found, and, that he had absconded to avoid service. 3. Citation to shew cause why an attachment should not issue. 4. Proof of ser- vice or that the defendant cannot be found. 5; Attach- ment, (d) 6. Return " non est inventus.'' 7. Attach- ment with proclamation, (e) 8. Return " non est in- ventus"(f) 9. Sequestration, (g) Although by this course the party has not precisely the same form of notification, as in chancery, yet he has the like oppor- tunities and number of notices, to come in and purge his contempt, and answer over. (a) 1 Han. Ch. 185- (e) Append 6. (6)Harr. Ch. 188. (/) Append. 7. (cj K>. 191. (s-) Append. 8. (a) Append. 4. 22 FORM OF SUIT AND PROCESS. [BOOKI. The service of each citation should be ten days be- fore the return day. The attachment may be return- able instanter; or where the defendant is lurking with- in the jurisdiction of the court, on the next stated Or- phan's Court day. If an attachment with proclama- tion issue, the time given to the defendant to appear should be from one stated court day to another, or thirty days: This is analagous to the time given to parties interested in proceedings before the court, upon whom personal service cannot be made: and as in those cases, notice should be published in one or more newspaper in the county where the court sits, or if there be no newspapers published in such coun- ty, then in those of the nearest county in which news- papers are published. And due proof of such publi- cations should be made. For if the court will not do any act by which the representative of an intestate, however slightly interested, shall be concluded, with out such notice, a fortiori they will not take from a party his estate, real and personal, without such no- tice. The commission of sequestration being delivered to the sequestrators, they proceed to take possession of the real and personal estate of the defendant: and the plaintiff may obtain an order for the tenants to attorn, or pay the rents to the sequestrators, (a) or for the sale of the goods, when perishable, (b) But they cannot seize the land itself, (c) The commission- ers are the officers of the court, and are account- able to it, for the execution of their office, and are to conduct themselves by its directions; they are (o) Hyde v. Greenhill, 1 Dick. 107. Sed. Contra Ambl. 421., (b) Mitchel v. Draper, 9 Vez. 208. (c) 1 Dick. 107. CHAP, i.] FORM OF SUIT AND PROCESS. 23 to make return from time to time, of what they have seized; to account for the property which comes to their hands, to bring the money they may receive, in- to court, to be put to interest or otherwise disposed of, as it shall determine, (a) It is not usual to pay money to the plaintiff, it com- monly remains in court till the defendant has appear- ed and cleared his contempts-, and then whatever has been seized, by virtue of the sequestration, is to be paid to him. The court however, have the whole under its control and will act according to the equity and circumstances of each case. (6) As the sequestrators are officers of the court, the plaintiff is not answerable for their acts, (e) They may possess themselves of every species of property owned by the defendant, (d) They cannot sell with- out leave of the court, (e) Where they seize goods they are permitted to take them from the premises, though the sequestration be irregular. (/) The seques tration binds from the time of awarding the commis- sion, and not from the time of executing it only, (g) The compensation allowed to the sequestrators, is such as the court shall decree under all the circum- stances of the case.(^) A voluntary and fraudulent conveyance is no bar to the sequestration. But if any one claim the estate sequestered by title paramount, mortgage, judgment, lease or otherwise, he may move the court to be ex- amined with regard to his interest. In such case the (a) Harr. Ch. 192. (e) 1 Harr. Ch. 195. (ft) 1 Harr. Ch. 192. (/) Ib. 193. (c) Ib. 194. (g) t Vern. 58. Contra 1 Vez. 181. (d)Ib,193. (A) 1 Harr. Cb. 195. 24 FORM OF SUIT AND PROCESS. [BOOK i t plaintiff may exhibit interrogatories to the claimant, to discover his title, the court will hear evidence from both parties; and if it appear that the claimant has a plain title the court will discharge the sequestra- tion, (a) The writ of sequestration is used to enforce the judgment, or decree of the court, as well as to com- pel the appearance of the party. For if a party do not obey a decree all the process of contempt may issue against him; and if he be not arrested, the court will grant a sequestration. So if he be taken and lie in prison, obstinately refusing to perform a decree, a writ of sequestration may issue. (6) And where the decree is for the payment of money the court will order the sale of goods, and direct the proceeds, and the rents and profits of lands to be applied in dis- charge of the debt and cost, (c) But there is no in- stance of an order to sell, under a sequestration a sub- ject which passes by title and not by delivery, and therefore real estates cannot be sold, (d) The sequestration may be discharged by one of the following modes. 1 . Error in the anterior pro- cess. 2. Extinction of the defendant's interest in the estate sequestered. 3. By the defendant appearing and purging his contempt and performing that which the court has ordered. 1. As this high and extraordinary process is found- ed on the principle that the defendant has contemned the authority of the state exercised by its courts of justice, the court will take great care that the party (a)l Harr. Cb. 193. 1 Vez. 181. (d} Shaw . Wright, 3 Vez. 22. (6) 2 Ch. Rep. 151. Sutton v. Tone, 1 Dick. 107. .(c) 1 Vez. 180. Pract. Reg. 320. CHAP, i.] FORM OF SUIT AND PROCESS. 25 is really subject to this writ. If he be not within the court's jurisdiction; if there be not sufficient time be- tween the test and return of the several citations; if the return to the attachment be not on oath; if there be not four weeks notice of the attachment with the proclamation; if the return thereto be not regularly made; or if there be any other error or oversight by which the party might possibly not have had notice in due form and time, of the process anterior to the writ of sequestration, the court on due proof of the facts will discharge the commission. 2. If the estate sequestered be a leasehold, or an annuity of the wife, issuing out of the estate of the husband;(a) or an estate for life, of the party, or for the life of another; tenancy in tail after possibility of issue extinct; or by the curtesy; in the first of these cases the sequestration will die with the term, and in the others with the life of the party in interest. 3. In considering the third mode of discharging the sequestration, it may not be amiss, to offer a few re- marks on contempts. A contempt as now understood is a disobedience to the authority of the court, and commonly consists, in a party doing otherwise than he is enjoined, or not doing that which he is commanded by the process, decree or order of the court. (6.) Where the party is before the court, on any process of con- tempt he will be imprisoned until its order be com- plied with, and until he shall have cleared himself of his contempts. If he purge his contempt on oath on interrogatories filed, he will be discharged without punishment, save the payment of costs. As the seques- (a) 1 Ch. Rep. 247. (i) 1 Harr. Ch. 257. 26 JUDGMENT AND APPEAL. [BOOK i. tration on mesne process has for its object the appear- ance only, of the party, it is quashed on his reconcilia- tion with the court. But if it be to enforce a decree, as to compel guardians or executors to settle their accounts, or administrators to make distribution, the sequestration will not be removed whilst the decree is in force and unobeyed. There is a process called writ of distringas, issued against corporations aggregate, when they refuse to come in on the citation, or to obey the decree of the court, (a) By it the sheriff is commanded to make a distress on the lands and tenements, goods and chat- tels, rents and profits of lands of the corporation, until it appear to the citation, or if there be a decree, until it obey the order of the court. There is seldom oc- casion for this writ, yet it may become necessary where corporations act as executors. SECTION III. Of the Judgment and Appeal. The judgment of the court is its order or decree on the subjects submitted for its consideration. It is either of course, and entered without a particular or- der, or it is entered by the special direction of the court. Of the first kind are the provisional orders on the accounts sent by the register to this court for con- firmation. These accounts are not formally present- ed to the court, nor is judgment passed upon them in- dividually; but the clerk indorses upon them " con- firmed nisi" and enters this judgment of confirmation upon his record. The practice is the same in relation (a) 10 Rep. 32. 1 Harr. Ch. 264. QHAP. L] JUGDMENT AND APPEAL. 27 to the reports of auditors, unless exceptions be taken, at the court to which they are returned. In other cases the judgment is by special order made on pro- ceedings read and examined in open court. We have already considered the means employed by the court to carry its judgments into execution. All of which are founded on the contempt of the party, against whom the whole of the process from the attachment to the sequestration may be issued. And on a sequestration for compelling the perform- ance of a decree, the court will direct the personal property to be sold, and the proceeds, and the rents and profits of the real estate to be paid to him in whose favour the decree is made. Thus the attachment will operate as a capias satisfaciendum and the seques- tration or distringas as a Jieri facias. If the facts in a case before the Orphan's Court be disputed, it may send an issue to the common pleas to ascertain them, (a) In exparte Pleasants, first April, 1821, the Orphan's Court of Philadelphia, after argu- ment, expressly decided that they had not this power. The case was argued by Binney denying, and J. R. Ingersoll affirming, the power of the court. In support of the negative, it was said, that this appli- cation was of the first impression, and that it might be confidently asserted, that during one hundred and forty years there was no instance of such a course of pro- ceeding j that this strong argument was sought to be obviated by attributing to the Orphan's Court all the powers of a Court of Chancery. But there was (a) Yohe v. Barnet, 1 Binn. 364. R. 143. Finneyt. Moore, 8 Sergt. Wallace v. Elder, 5 Sergt. and and R. 346. 28 JUDGMENT AND APPEAL. [BOOK i. only one point of resemblance between the Orphan's Court and the Court of Chancery, the power to de- termine facts without the assistance of a jury. That in the latter court, an issue was not of course, except in questions of devisavit vel non, and of tithes. In other cases it was discretionary. It is not so here. This is a court of limited jurisdiction, and the power to direct an issue must be found in the act of assembly, or must be sanctioned by long and established practice. That there was another strong objection to granting an issue by this court. It would establish a precedent, which would be generally followed, introducing with the cause, the great delays and enormous expenses, with which the Courts of Chancery are so much re- proached. At the establishment of the Orphan's Court promptness of decision was required in Penn- sylvania, and the fair inference is, that the Orphan's Court was to decide upon the subjects of its jurisdic- tion summarily. This is confirmed by the various acts of assembly establishing this court, which show that a power to send out an issue does not exist. The act of twenty-seventh March, 1713, (a) contains a specific enumeration of the powers delegated to the Orphan's Court. In the second section it is particularly called, to decide on complicated facts, waste and embezzlement. The eighth section empowers the court to enforce its sentences, warrants and orders, as fully as any court of equity. But this has reference only to the process of execution, pre-supposing a decree, and has no re- lation to the mode of proceeding on wjiich it is found- ed. The registers court, had no power to direct an (a) 1 Smith, 382, CHAP, i.] JUDGMENT AND APPEAL. 29 issue until it was given by act of assembly; and the act of thirteenth April, 1791, (a) giving such power, pro- vides that facts determined upon an issue shall not be re-examined on appeal. So perfectly well settled has been the understanding upon this subject that the practice has always been to appoint auditors, be- cause the issue when tried and returned would not be conclusive-, and the benefit of appeal being, by the ninth section of the act of March, 1713, (b) in all cases reserved, where any definitive sentence or judgment is given by the Orphan's Court, new exceptions might be taken and discussed de novo upon the appeal. The case of llohe v. Baiwet, (c) in which the Chief Justice says " if necessary, facts may be ascertained by a jury," may seem opposed to this view of the subject. But this was not the point in controversy, nor was it ne- cessary to advert to it, for the determination of the case, and the opinion of the judge is therefore but an obiter dictum. In another part of that case the same judge relies upon the fact of " no trace" of the exer- cise by the courts in this state, of the powers exer- cised by the Courts of Chancery in England of insist- ing upon some provision for the wife when the hus- band applied for her personal property, as conclusive proof, that they possessed not such power. Another strong argument against the authority claimed for the Orphan's Court may be drawn from the particular situation of the Common Pleas of this county in rela- tion to that court. It has no civil jurisdiction where the amount of controversy exceeds one hundred dol- lars, and it can scarce be contended that by implica- . (a) 3 Son. L. 34, (b) Sm. L. 85. (c) 1 Binn. 364. 30 JUDGMENT AND APPEAL. [BOOK. i. tion it could receive from the Orphan's Court power to determine a cause whose amount might exceed an hundred thousand. Nor is there a want of remedy in this case a, particular tribunal has been erected for distributing the assets among creditors in case of an alleged deficiency. The Orphan's Court has power to appoint three or more auditors for that purpose, (a) Upon principle therefore as well as expediency the issue ought to be refused. Mr. Ingersoll in the affirmative relied, on the prac- tice of chancery in cases of doubtful fact and alledged fraud, and on the position that the Orphan's Court is constituted with ordinary chancery powers. This he inferred from its mode of proof by deposition, its mode of enforcement by attachment, the subjects of its juris- diction, peculiarly those of a Court of Chancery, guar- dians, trustees, tutors, executors and administrators, its mode to compel them to make an account, and by its daily recurrence to the practice of the Courts of Chancery to execute its powers. Hence, the au- thority of the court to appoint auditors, whose report like the finding of the issue, is not conclusive. The court never receive the finding on the issue, unless it is satisfactory j and they either direct a new trial or reject it altogether. It is emphatically to inform, not to di- rect the consciences of the judges. The power exer- cised by the Circuit Courts to direct an issue from the powers and practice necessarily inherent in their character as a Court of Equity is an analogous case. But a still closer and conclusive analogy is found in the power of the Supreme Court of the state, which is (a) Sra. L. 149. CHAP, i.] JUDGMENT AND APPEAL. 31 declared to be inherent, (a) But the right to direct an is- sue has been expressly decided by the Supreme Court, in Yoke v. Barnet, whose opinion was delivered by the Chief Justice. Nor, was that opinion, an obiter dictum. If not the very point in issue, it was at least the necessary foundation for the decision, without which it could not have been pronounced. It contemplates the ex- istence of incidental, as well as direct powers, of such as are derived from the nature of the court as well as from the act of assembly. It was perhaps the very point in the cause. The marginal note made by Mr. Binney so epitomizes it. Hallowell, President. James Kinsey, administrator of Elizabeth Lovett, de- ceased, one of the creditors of the estate of Samuel Pleasants, deceased, by whom the exceptions are fil- ed, prays the court to direct an issue to try certain matters of fact arising out of the exceptions. Having been, when at the bar, of counsel with the executor, I give no opinion in any other part of this case except- ing on the abstract question, in which at the request of both parties, I have heard the argument, and consent- ed to take a part in the decision. Has the Orphan's Court power to direct an issue for the trial of facts? This application to direct an issue, is of the first impression. The Orphan's Court has existed in Pennsylvania, nearly one hundred and for- ty years, and no trace can be found of the exercise of such a power by that court. The Court of Chancery in England, has exercised it from time immemorial. The Supreme Court of (a) 1 Smith 40. 32 JUDGMENT AND APPEAL. [BOOK i. Pennsylvania, being of extensive and general juris- diction, exercises it, in some cases, by virtue of their inherent power. Every court of common law, hav- ing authority to issue a venire, and summon a jury, can direct an issue to try facts in cases depending before them. This is, however, a court of limited jurisdic- tion. It has no power but what it derives from the acts of assembly, or is sanctioned by usage or prac- tice. The power under consideration is not given to it by any act of assembly, nor has it ever been exer- cised. To what court shall such an issue be directed? To the court of common picas of the judicial district? That court is not a court of general, but of limited powers in civil cases, possessing little or no original jurisdiction. To the District Court for the city and county of Philadelphia? That is a separate court, unconnected with, and independent of the Orphan's Court, and I should think it extremely questionable whether they would be bound to obey the mandate of any other court. * The Orphan's Court has power, and has always ex- ercised it, to investigate and decide facts when large concerns, and important interests, are involved; no inconvenience has resulted from it, subject as it is to an appeal to the Supreme Court. A party, in the Orphan's Court, who wanted delay, would ask for an issue. If granted in one case, it would be difficult to refuse it in another, and a scene of vexation and procrastination might ensue, which would be extremely inconvenient, troublesome, and expensive. No adequate benefit would be produced 8HAP. i.j JUGDMENT AND APPEAL. 33 to counterbalafice the mischiefs apprehended. The issue when found, would not be obligatory on the judges of the Orphan's Court, who, if they did not like the finding, might utterly disregard it, and investigate and judge for themselves, as if it had not been sent to a jury. On appeal to the Supreme Court, the whole case, law, as well as fact, is before them, de novo. The issue when decided and returned might therefore be o useless, as well as troublesome, dilatory, and expen- sive, and the business of the Orphan's Court is to de- cide causes summarily. No satisfactory argument can be drawn from the appointment of auditors: this, though not directed by act of assembly, is supported by long and almost immemorial usage. But it is said that this point has been decided by the Supreme Court in the case of Yoke v. Barnet, 1 Binn. Rep. 358. I cannot think so it was riot the point of the case and what is said by the Chief Justice is a mere obiter dictum, which perhaps escaped him hastily, and with- out his considering its effect. I cannot believe that able and dignified person ever meant to lay it down as his opinion, that the Orphan's Court might ascer- tain facts to be tried before another court. The court in that case were considering, whether a debt due by judgment from Jacob Yoke, to the estate of his father- in-law, Henry Barnet, deceased, could be, by the au- thority of the Orphan's Court, deducted from his wife's distributive share of that estate. The Chief Justice thus expresses himself, " there are cases in which the Orphan's Court must take upon them- selves to decide facts;" and shortly afterwards, " if ne- cessary, facts may be ascertained by a jury, so that 34 JUDGMENT AND APPEAL. [BOOK i. there seems to be no difficulty in surmounting this part of the objection'' if this was said in relation to the principal case, as I apprehend it was, and not laid down as a general proposition, it is perfectly correct because the court in which the judgment was entered against Yoke, had full power under it to direct an is- sue to determine how much was due. That he did not mean to lay it down as a general proposition appears from another part of his opinion when considering the powers of the courts of this state, to insist on a provision for the wife, when the husband applies to get possession of her personal property. " We have, he says, no trace of any such exercise of power by our courts, it must be taken for granted then that they possess no such powers." The same forcible obser- vation applies with equal force to the question direct- ly under consideration. Many other and weighty reasons were urged at the bar against the exercise of such a power: it is not, however, necessary to go more into detail. I have considered the subject with great attention, and some anxiety, on account of the particular situation in which I stand towards one of the parties litigant in this case 5 and have not been able to satisfy my mind that the Orphan's Court have any authority to direct an issue for the trial of disputed facts. I confess I should be afraid to make an innovation in its practice, the con- sequences of which it would be difficult to foresee; and I must say, in the spirit of the earls and barons of former days. " Nolo leges Pennsylvania mutari que udtattf fuerunt et approbate. With great deference for the counsel and the judge who concurred in the above case, the powers of the CHAP, i.] JUDGMENT AND APPEAL. 35 Orphan's Court to determine facts by an issue, was put directly before the Supreme Court, in Yoke v. Barnet for its consideration. That power was denied by the appellants, and affirmed by the appellees and the court. And the Supreme Court has more than once since", recognized the power of the Orphan's Court to direct an issue on disputed facts. In the case of Wal- lace v. Eldei* (a) it reversed the proceedings of the Common Pleas of Dauphin county for informality in making up an issue directed by the Orphan's Court and ordered the record to be remitted, that the issue might be tried again. The Chief Justice who deliv- ered the opinion of the court, said, " these issues by order of the Orphan's Court, are no new things^ they are often directed in cases of disputed wills, but the uniform practice is to institute an action and conduct it in strict form." And though the court erred in say- ing that such issues " are often directed in cases of disputed wills" by the Orphan's Court, if so they meant to say, yet the practice of the Orphan s Court to direct issues, is evident from the unquestioned ex- ercise of the power in this case. In Jldarris case in the Orphan's Court of Philadelphia, (6) in which a question arose with regard to the right to a distribu- tive share of money the proceeds of real estate sold by order of the court, it refused to send an issue to the Common Pleas, alleging its want of power. But on appeal, the Supreme Court declared that the Or- phan's Court might direct an issue, and that the Su- preme Court, after appeal might send the cause to a jury, and it directed an issue accordingly. And in (a) S Sergt. & R. 143. (6) 1819. 36 JUDGMENT AND APPEAL. [BOOK i. case of Finny v. Moore (a) an issue was directed by the Orphan's Court to ascertain whether the former administrator had in his hands any assets of the intes- tate, and whether he was liable to the administrator de bonis non for any property which may have come to his hands as administrator. The parties entered by agreement an amicable action for that purpose, which was tried, and the jury found a verdict for the plaintiff, for a certain sum for which judgment was entered. The Supreme Court determined that the judgment was erroneous because contrary to the agreement of the parties. The matters in issue were to be found, and a certificate transmitted to the Orphan's Court, who would then proceed in the business before them, which had been suspended until the result of the trial in the Court of Common Pleas. From these cases, it would seem that the Orphan's Court have a discretionary power to direct an issue, that the parties pursuant to that direction may, and perhaps ought, by amicable action, to try the case in a court of competent jurisdiction, on which no judgment should be entered by such court, but the finding of the jury should be returned to the Orphan's Court. Whether the Orphan's Court of Philadelphia county could im- pose a duty on the District Court, or could compel it to stay its judgment on the finding of a jury, would ad- mit of much doubt. But that the District Court would willingly aid the Orphan's Court, can admit of none. That an amicable action brought by the parties in the District Court might be made to do all that is ne- cessary is prgtty clear. And if the Orphan's Court (a) 8 Sergt. & R. 345. OHAP. i.] JUDGMENT AND APPEAL. 37 of the city and county of Philadelphia may not direct an issue to the Common Pleas or to the District Court, it is by peculiar circumstances deprived of ad- vantages and privileges which the Orphan's Court in every other part of the state posseses. We say of ad- vantages and privileges, because the inquiry into facts, before a jury has many ad vantages, "and every judge, of sound discretion, feels it a privilege to send a very doubtful question of fact to be determined by twelve men. From the Orphan's Court, an appeal lies to the Supreme Court, on any definitive sentence or judg- ment, on giving the usual security, (a) But an appeal lies upon definitive sentence only. (6) The rule for taking security on appeals is, that, the appellant, if in debt to, or holding money of the other party, should give security for the payment of debt and costs-, in other cases, for costs only, (c) But this rule does not extend to wards against whom, a balance appears on the settlement of the guardian's account, (d) To make an appeal, a copy of the proceedings un- der seal is obtained from the clerk of the Orphan's Court, and filed with the prothonotary of the Supreme Court, with an order from counsel to enter the same of record. But it would seem from the case of Wal- ker's appeal (c) that the regular method of bringing up the record is by certiorari, and that nothing else will stay the proceedings below. a) Act. of 1713. Sm. L. 85. (c) Richards' Case, 6 Serg. & R. . Wilson, 1 Dall. 94. 1 Yeates, 87. 42 WHAT IS A WILL. [BOOK n. But such writing must appear clearly to be of a testamentary character or it will not operate as a will. For where one inclosed securities for debts in an envelop and indorsed on it, " for R G-," and other securities in another envelop endorsed for "the heirs of G Pj" and the securities so enveloped were found in the possession of the deceased, having never been out of her possession; and no communication having been made to any one on the subject, it was held that the indorsements were not testamentary and could not be admitted to probate as a will, (a) So where A, living in Philadelphia, wrote a letter to a sister in Germany, desiring her to send over her son B, and " if he prove obedient and followed all his directions, he should be the heir of his whole estate,' this is not a will of land in favour of B. So also where A executed an instrument under seal, declaring that in consideration of the care and attention shown him by B, he acknowledged himself to be indebted to her, and that his executors or ad- ministrators should pay her a certain sum in one year, after his decease, and he delivered this instrument to B, .it was ruled to be an obligation, and not a testa- ment. (6) So where A being under great obligation to B de- posited a large sum of money in his hands, and fre- quently mentioned his intention of benefiting B or his family at his death j and at his death left a paper in his pocket book, with his signature in these words, " I acknowledge to be indebted to B in the sum of (a') Plumstead's Appeal, 4 Serg. & (6) Shields et Al. v. Irwin et Al. 3 R. 545. Yeates, 389. CHAP, i.] WHAT IS A WILL. 43 S8000 value received of him, Philadelphia, June 15, 1805." This paper was held to be evidence of a debt due from A to B, but not a testament, (a) Real estate being fixed and local in its nature, must be transferred according to the law of the country in which it lies. Consequently a devise of lands in Pennsylvania, made by one resident abroad, must be proved as if made here. But a will of personal pro- perty which is ambulatory in its nature, and attached to the person of the owner, must be executed accord- ing to the laws of the place, of which the testator was a domiciliated inhabitant, at the time of his death, or it will not pass personal property in a foreign country although executed according to the law of that coun- try, (b) This doctrine is drawn from the principle, that the succession to the personal estate of an intes- tate is to be regulated according to the law of the country of which he was a domiciliated inhabitant at the time of his death, (c) II. The unqualified allowance of nuncupative wills having been productive of the greatest frauds, it be- came necessary to subject them to very strict regula- tion. Therefore by the act of 1705, Sects. 3, 4, 5, (d) founded on the statute of frauds, 29 Car. II. the fol- lowing particulars are necessary to establish a nun- cupative will, where the property bequeathed ex- ceeds in value thirty pounds. 1 . The will must be proven by two or more wit- nesses, who were present at the making thereof, and (a) Toner v. Taggert, 5 Binn. 549. (c) 1 Venn. 397. Dessabats v. Ber- (6) Bruce v. Bruce, 2 Bos. & Pul. quier, 1 Binn. 331. 231. Sommerville v. Ld. Somer- (d) I Sm. L. 34. ville, 5 Ves. Jr. 750. 44 WHAT IS A WILL. [BOOK n. were bidden by the testator at the time of pronounc- ing the same, to bear witness, that, that was his will, or words to that effect. 2. It must be made in the testator's last sickness, in his dwelling house, or where he hath been resident ten days or more before the making of such will, un- less he were surprised or taken sick from his home, and died before he returned thereto. 3. It must be proved within six months from the making, unless the substance of the will have been committed to writing within six days after the speak- ing of the testamentary words. 4. Fourteen days after the death of the testator must fully expire, before probate is made of the will; and 5. Process must be issued to call in the widow, and next of kin to the deceased, that she or they may contest the will. A codicil is a supplement to a will, annexed to it by the testator, for the purpose of explaining, altering, adding to, or subtracting from, his former disposi- tions, (a) A codicil may be annexed to a will either actually, or constructively. It may be written on a paper con- taining the will, or on a different one; it may be affix- ed to or folded up with the will, or detached or deposited in a different place. (6) A written codicil must be executed as a will. To a will of personal estate it may be either written or nuncupative; if the latter it should merely supply an omission in the will. (a) Toll. Ex. 5. 2 Bl. Com. 500. (6) Toller, Ex. 5. CHAP, i.] WHO MAY MARE A WILL. 45 Thus the testator may dispose of part of his effects by writing, and the residue by a nuncupative codicil, (a) f SECTION II. Who may make a will. Every person may make a will who is not disquali- fied, I. By the want of legal discretion. II. By the want of liberty or free will. III. By divorce and co- habitation with the adulterer. 1. The disabilities for want of legal discretion are, 1. Nonage; 2. Defective understanding; and 3. Cover- ture. 1. No person under the age of twenty-one years can dispose of lands by will-, but the age of legal dis- cretion for making wills of personal estate is fixed by the ecclesiastical law, whence we have borrowed it, at fourteen in males, and twelve in females, (6) 2. Persons of defective understanding, incompetent to make a will, are idiots, madmen, those born deaf and blind, and those whose intellects are destroyed by age, distemper, or drunkenness, (c) If a testator be subject to insanity, yet if his will be made in a lucid interval, it is legal, and a fortiori a will made by one habitually of a sound mind will not be affected by his subsequent insanity, (d) The presumption of the law is always in favour of mental capacity, and the party alledging mental in- capacity to invalidate a will or deed, must prove it. (e) But if the testator show a general derangement or (o)Com. Dig. Devise, Toller, Ex. 6. (c) Toller, Ex. 9. 2 Black. Com. 497. (6) Off. of Ex. 213. 214. Toller Ex. (. 12 Mod. 471. OHAP. i.] OF THE EXECUTOR DE SON TORT. 91 tor to his retainer of his debt. Nor is the case varied, although in point of fact, no administration were granted at the time of the commencement of such swt, and the defendant without delay relinquished the property to the grantee, (a) If the executor de son tort deliver the effects to the administrator, before such action brought, that is a sufficient defence, and he may give it in evidence under the plea of plene administravit. (b) An executor de son toi*t is liable to the action of the lawful executor or administrator, or to that of a credi- tor; and in the latter case may be charged as executor generally, (c) If there be also a lawful executor, they may be joined in an action by a creditor, or sued severally, but it is otherwise, if there be a lawful ad- ministrator; he cannot be so joined with an executor de son tort, (d) If a creditor take out administration, he may recover his debt against him, who before the grant, was executor de son tort, as well as the goods of the intestate taken and converted previously to the grant, (c) And if a person act under a power of attorney from one of several executors who has prov- ed the will, although he cannot be charged as execu- tor de son tort during the life of such executor, yet if he continue to act after the death of such executor, he may be charged as executor de son tort, though he act under the advice of another of the executors, who has not proved the will. (/) If an executor de son tort commit waste, or any (a) 3 T. Rep. 587. (d) Off. Ex. 176. (ft) 1 Salk. 313. (e) Com. Dig. Adm. C. 3. Str. 34B. (c) Com. Dig adm. C- 1. Off. Ex. (/) 4 Maul & SeJ. 175. 177, 5 Co. 31. 92 OF THE EXECUTOR DE SON TORT. [BOOK in. other species of devastavit; or plead ne unques execu tor, and it be found against him, he shall be charged as another executor de bonis propriis. (a) But in gene- ral he is liable only to the amount of assets which come to his hands. (6) At the common law, executors or administrators were not considered liable for the devastavit of those whom they represented-, because they could not be supposed to know, how the testator or intestate had disposed of his goods 5 and therefore this was esteemed a personal action which died with the person, (c) This inconvenience was removed by the statute, 30 Char. II. c. 7, made perpetual by 4 and 5 W. and M. c. 24. (d) Providing, that all and every, the executors and administrators of any person or persons who as execu- tor or executors in his or their own wrong, or adminis- trators shall waste or convert any goods, chattels, es- tate'or assets of any person deceased, to their own use, shall be liable and chargeable in the same manner as their testator or intestate would have been if he had been living. The words of the statute, 30 Chas. II. not only in- clude executors or administrators of executors in their own wrong, but have been construed to extend to the executors or administrators of rightful executors, (e) and the executors and administrators of rightful ex- ecutors are embraced by the statute 4 and 5, W. and M. ch. 24. (/) But it seems an executor de son tort of an executor de son tort, is not liable for a devastavit committed by (a) Off. Ex. 157. (e) 3 Mod. 113. (b) Dyer 166. b. n. 11. (/) Allen v. Irwin. 1 Sergt. & R, (c) 3 Mod. 113. 554. (d) Rob. Dig. 258. OKA*, i.] POWER OF EXECUTOR, 93 such first executor, either at common law, or by ei- ther of the two last mentioned statutes, (a) SECTION v. Of the power of the executor before probate. The interest of the executor is completely vested by the death of his testator, and he may before pro- bate do almost every act which is incident to his of- fice, (b) He may conduct the funeral; make an in- ventory and possess himself of his testator's effects; (c) enter peaceably into the house of the heir, to take the evidences of the debts due to the deceased, or re- move his goods; (d) he may pay or release debts due from or to the estate of the decedent; (e) he may assent to and pay legacies; he may dispose at his discretion of the chattels of the testator; enter on the testator's terms for years; (/) he may commence actions in right of the testator, as for trespass committed, or goods taken, or on a contract made in the testator's life time; but it is doubtful whether he can declare before pro- bate;^*) he may arrest a debtor, and generally maintain such actions in his own name and as executor, as he. may after probate, (h) On the other hand, if he have elected to administer, he may also before probate, be sued by the creditors of the decedent; who should not be impeded by his delay, and to whom, as executor de jure or de facto he has made himself responsible, (i) (o) Com. Dig. Adra. 13 Toll. Ex. (e) Off. Ex. 34. 474. (/) 11 Vin. ab. 203. (6) Com. Dig. Adm. Bq. Plowd. (g) Bac. ab. tit. Ex. Toll. Ex. 47. 280. 1 T. R. 480. Toll. Ex. 47. Contra, (c) Off. Ex. 34. th) Off. Ex. Toll. Ex. 47. (d)Ib. v )0ff. Ex. 37. 94 ADMINISTRATION WHAT. [BOOK in. If an executor die before probate, he is considered in law as intestate in regard to the executorship, al- though he have made a will and appointed executors-, and although he die after taking the oath, if before the passage of the grant, (a) CHAPTER II. ADMINISTRATION WHAT HOW MANY KINDS WHO MAY BE AN ADMINISTRATOR HOW GRANTED. SECTION I. Administration what. Administration may be defined, the distribution of the estate of an intestate decedent among his credi- tors and representatives according to law. The officer charged with such distribution is called an administra- tor. (6) In England this office belonged originally to the king as the father of his people; by him it was vested in the prelates whose supposed sanctity of morals, and devotion to the duties of humanity, was believed to fit them in a peculiar manner for its exercise. Two thirds of the intestate's estate were allotted to his wi- dow and children, or to his next of kin, and the re- mainder was distributed by the ordinary at his pleasure in pious uses. But the assumption of the clerical cha- racter did not always give honesty or wisdom. The residue was appropriated to the exclusive use of the ordinary, under the pretence of maintaining the (a) Off. Ex. Supp. 74, 76, 182. (b) Toll. Ex. 8 1 . OHAP. ii.] KIND OF ADMINISTRATION. 95 church and the poor, without regard to the rights of the decedent's creditors. The legislature remedied this crying injustice, by compelling the ordinary to appoint the nearest friend of the deceased, to admin- ister his goods, first in the payment of the intestate's debts, and the balance, if any, to the use of his kin- dred, (a) Our forefathers at the settlement of the province had to supply the place of the ordinary: and the pow- er to appoint an officer, to make probate of wills, and grant letters of administration was expressly given to William Penn by the charter of Charles II. We have already shown, in what manner the office for the pro- bate of wills and granting of administration, has been established, in treating of the nature of probate. SECTION II. Of the several kinds Administration is either general or special. Gen- eral when it is unlimited as to duration, and is of the whole of the intestate's estate. Special when limited, either as to time, or as to the quantity of the intestate's estate. \ Limited administrations are, 1. tyiirante minoritate, or during minority; 2. Durante absentia, or during ab- sence; 3. Pendente lite, or pending suit; 4. De bonis non administratis, or of goods not administered, by a prior administrator. 1. Administration during minority, may be, either during the minority of an executor or of an administra- tor. (6) In the former case it continues till the executor (a) Toll. Ex. 82. (6) Toll. Ex. 100. 96 KINDS OF ADMINISTRATION. [BOOK HI. attain the age of seventeen, in the latter, until the ad- ministrator attain the age of twenty-one years: in the former, the powers and duty of the administrator are determined by the will; in the latter by the law. If administration be granted to a guardian for the use of several infants, it ceases on the eldest attaining legal age, to assume the duties of the office, (a) If there be several infant executors, he who first attains the competent age, shall prove the will, and the administration shall cease; (6) but administration granted during the minority of several children will not expire on the marriage of one of them of full age. (c) Nor if an infant be executrix, shall it be deter- mined by her taking a husband who is of age, nor, if there be several infants by the death of one of them. (d) If there be two executors, one of whom has attain- ed the competent age, and the other not, administra- tion shall not be granted during the minority of him who is under age, because the former may execute the will, (e) 2. Administration during absence of the executor, or next of kin may be gran ted ; and it ceases of course on the appearance of the party for whose absence it is granted, and his taking out probate or administra- tion^/) So if the executor named in the will, be unknown or concealed, administration may be granted until he appear and claim probate, (g) () Toll. Ex. 101. (c) 4 Burn. EC. L. 240. 1 Brounl. (6) 4 Burn. EC. L. 218. L. of Test. 46. Toll. Ex. 102. 473, 474. (/) Roll. ab. 907. Lutw. 842. Salk. (c) 3 Pr. Wms. 79. 42. Toll. Ex. 104. (rf) Ib. sed. vid. Com. Dig. Adm. () Roll. ib. 4 Burn. EC. L. 202. (F.)&5Co.29. (b.) OHAP. ii.] KINDS OF ADMINISTRATION. 97 : y 3. Administration pending suit, is granted, where the will, or the right to administration is contested: It ceases on the termination of the suit, (a) But such administration is never granted until a plea in the cause has been given in and admitted. (6) The ad- ministrator has no power to make distribution of the estate 5 but if he distribute it according to law, the court will not compel him to refund, that his succes- sor may pay to the same person, (c) 4. Administration de bonis non or of the goods of o the deceased, left unadministered by the former ex- ecutor or administrator, is granted on the death or dismissal of an executor or administrator; and the grantee becomes the only personal representative of the party originally deceased, (d) By the act of twelfth March, 1800, (e) the admin- istrator de bonis non may execute the powers given by any last will or testament, as fully, as if all the executors named, had joined therein, unless the tes- tator have by his will directed otherwise. And where an administrator sells the estate of the intestate, or any part thereof, under an order of the Orphan's Court, and dies before deed made, the ad- ministrator de bonis non, may convey such estate to the purchaser. (/) And by the act of twelfth March, 1804, (g) he may convey lands and tenements, contracted for, with his decedent, as the executor or administrator in the first (a) 4 Burn. EC- L. 200. (e) 3 Sm. L. 434. (6) Toll. Ex. 103. (/) Act. 2 Apr. 1802. 3 Sm. L (c) 1 Browne R.87. Bradford's case. 500. ( BHAP. ii.] WHO MAY BE ADMINISTRATOR. 1. To the character of next and most lawful friend of the deceased is referred, by some writers, the hus- band's right of exclusive administration to the estate of his deceased wife; by others, his right is said to arise from the marriage contract, and to exist inde- pendently of the statute. However this may be, his right has been long fully established, and is confirm- ed, by the act of twenty-first March, 1772, Sec. 5, (a) which declares, " that nothing in the intestate acts shall be construed to extend to estates of feme coverts that shall die intestate; but, that their husbands may demand and have administration of their rights, cre- dits and personal estates, and recover and enjoy the same, as they might have done before the making of that act." And so completely is this right vested in the hus- band, that if he die before administration, his execu- tors or administrators, and not the wife's next of kin, shall have administration of her estate. (6) But it is necessary for the husband to administer to his wife, only where there is personal property which he has not reduced to possession during her life. w This right of the husband may be controlled or va- ried, by the will or appointment of the wife, where she has power to make one, so far as such will or ap- pointment extends; and administration will be granted to the devisee of the wife or to the .person named by her as executor, (d) But the husband's right to ad- minister to such parts of her estate, as is undisposed of, remains unimpaired, (e) (a.-) \ Sm. L. 390. Baron. & feme H. (6) 3 Salk. 21. 1 Pr. Wms. 378. (d) 4 Burn. EC. L. 232. Strange IV. (c) Co. Litt. 300. Com. Dig, (e) Stra. 391. IV. Great Grand- father's Father. V. Son of the Cousin German. IV. Son of the Nephew or Brother's Grandson. III. Great Grand- son. CHAF. n.J WHO MAY BE ADMINISTRATOR. 103 2. Administration is to be granted to the widow, or next of kin or to both, at the discretion of the regis- ter; and he may grant administration as to part, to the wife, and as to the other part to the next of kin. (a) But the practice in Philadelphia is to grant full ad- ministration to the wife, if she desire it, unless she be incompetent from causes which disqualify all persons to administer. 3. The next of kin are entitled to administration in the order of proximity to the decedent-, and where several in the same degree apply, an election is to be made by the register. Consanguinity or kindred is the connexion, or re- lation of persons descended from the same stock, or common ancestor. It is either lineal or collateral (6) Lineal consanguinity subsists between persons de- scended in a direct line from each other-, as, between gandfather, father, son, and grandson. Each gene- ration in this line constitutes a degree, reckoning up- wards or downwards. Thus the father and son of A is related to him in the first degree, his grandfather and grandson in the second, &c. (c) Collateral consanguinity exits between persons de- scended from the same ancestor, but not the one, from the other, (d) As if A have two sons, who have is- sue; both issues are lineally descended from A, and are collateral kinsmen-, because they are all descend- ed from a common ancestor, and have a portion of his blood in their viens. The degrees of kindred in the collateral line, arc reckoned according to the civil law, by counting up- o) Toll. 87. (c) 2 Bl. Cora. 20S- 6) 2 Bl. Com. 202. (d) Ib. 104 WHO MAY BE ADMINISTRATOR. [BOOK m. wards, from either of the parties related, to the com- mon stock, and downwards, to the other; reckoning a degree for each person, both ascending and descend- ing; or in other words, taking the sum of the degrees in both lines to the common ancestor, (a) Thus, the PROPOSITUS and his cousin german are related in the fourth degree: From him to the father, is one; to the grandfather two; from the grandfather to the un- cle three; and from the uncle to the cousin-german four degrees. (6) The persons entitled to administration, by consan- guinity according to the foregoing rules, and the estab- lished practice,are, 1. The children. 2. The father. 3. The mother, (c) 4. Brothers. 5. Grandfathers. (d) 6. Un- cles or nephews. And seventh and lastly cousins. Males are preferred to famales, in all the clases, (e] but among those of equal degree primogeniture gives no prefer- ence: (/) relations by the father's and mother's side in equal degree of kindred are equally entitled; (g) and the half blood is admitted as the whole, (h) A married woman cannot administer without her husband's permission, as he must give bond, which she cannot do. (i) But if it be shown by affidavit that he is abroad or otherwise incompetent, a stranger may join in such security, in his stead. In either case, the administration is committed to her alone, and not to her jointly with her husband; otherwise if he should survive her, he would be administrator contrary to the meaning of the act. () (a)|2 61. Com. 207,504, Free, in Ch. 593. (/) 1 Phil. Hep. 123. (6) See table. (g) Pr. Wms. 53. (c)2Bl. Cpm. 504. (h) 11 Vin. ab. 91. 1 Vent. (d) 1 1 Vin. ab. 3. Ld . Rayon. 684. 323, 424. 1 Ven. 437. 1 Salk. 38. (i) 61. Rep. 801. (e) 2 81. Com. 505. (fc) 1 Salk. 21. CHAP, rr.] WHO MAY BE ADMINISTRATOR. ]05 If a married woman be the only next of kin and a minor, she may elect her husband her guardian, to take the administration for her use and benefit, during her minority, but the grant ceases on her coming of age, when a new administration may be committed to her. (a) A party though otherwise entitled, may be incapa- ble of the office of administrator, on account of some disqualification in point of law. The incapacities of an administrator, are not con- fined to such as have been enumerated in regard to executors, but comprise attainder of treason or felony, outlawry, imprisonment, bankruptcy, absence beyond sea; and in short almost every species of legal disa- bility: For by the express requisition of the statute, the ordinary is bound to grant administration to the next and most lawful friends of the intestate. (6) But an alien friend or an alien enemy commorant by license, is not disqualified to administer, though he be of the half blood, (c) The right of the next of kin to administer is found- ed in the interest they have in the estate of the dece- dent. Where they have no interest, this right does not exist. For if there be a will, and a residuary lega- tee, and a default of executors, administration will be granted to such legatee; (d) and if there be several legatees entitled to the residue, it may be granted to cither of them; and the others have no claim to a sub- sequent grant in the life time of the grantee, (e) Such (a) Toll. Ex. 92. (J) 1 1 Vin. ab, 90, 94. (6) Ibid. 93. (e) Corom. Dig. Admn. B. 6. 2 (') Toll. Ex. 9i. Jones, 162.- Toll. Ex. 99. 106 WHO MAY BE ADMINISTRATOR. [BOOK in. administration may be also granted, although it be uncertain whether there will be eventually a resi- due or not. (a) If the executor be himself residuary legatee, al- though he refuse or die before probate of the will, in- testate, immediate administration with the will annex- ed is granted to his administrator: if such executor leave a will, his executor shall have administration, and so if he die after probate, (b) If a feme covert executrix die intestate, adminis- tration as to the effects she held in that capacity shall be granted, to the residuary legatee, if any, or to the next of kin of the testator. If she were herself a residuary legatee, the husband may administer, (c) If there be two executors, and one proves and dies, and then the other announces, the executor of the acting executor, has no claim to the administration of the goods unadministered, but the same shall be granted to the next of kin, or residuary legatee of the first testator, (d) If there be two executors, one of whom appoints an executor and dies, and the survivor dies intestate; the executor of the executor, shall not intermeddle with the first testator's effects; for the power of the testator was determined by his death; and the execu- torship vested solely in the other executor as survi- vor, (e) So where an administrator is appointed during the minority of the executor of an executor, he has no au- to) Toll. Ex. 100. (d) Com. Dig. ad. MOD. B. Salk. (6)11 Vin ab. 89. Jonea 225. 311. (c) 11 Vin. ab. 89. 2 P.jWm. 161. 4 (e) Toll. Ex. 119. Burn. Eel. 236. 3 Salkei. OHAP. ii.] WHO MAY BE ADMINISTRATOR. 107 thority to intermeddle with the effects of the original testator, (a) On the renunciation of the widow or next of kin, or their neglect to take out letters of administration, such letters may be granted to a creditor. In such case, the course is for the ordinary to issue a citation for the widow and next of kin in special, and all others in general to accept or refuse letters of admin- istration, or show cause why the same should not be granted, to a creditor. (6) This citation is to be serv- ed on those known to be interested. In default of application by widow, next of kin or creditors, the register will grant administration, to such discreet person as he shall approve, upon ap- plication made in the usual form, (c.) In cases not provided for by the stat. of Edward III. and Henry VIII. it is held that the register may make the grant to whom he pleases; and that he may impose upon the grantee such terms as he thinks rea- sonable, (d) SECTION IV. Administrators how appointed. By the act of nineteenth April, 1794, Sec. l,(e) the register is required upon granting letters of ad- ministration, to take bonds with two or more sure- ties (respect being had to the value of the estate) in the name of the commonwealth, conditioned that the administrator shall make a true and perfect in- (a) 11 Vin. ab. 67. note 83. Qff. 104. Ex.101. (c) 2 BI. Com. 505. (&) 4 Burns. Ex. L. 230, 2 Bl. (rf) Toll. Ex. 105-6. 4 Burns EC. L. Com. 505. Salk. 38. Toll. Ex. (c)3Srn.L. 14 :. [237 108 APPOINTMENT OF ADMINISTRATORS. [BOOKIII. ventory of all the goods, chattels and credits of the deceased, which have or shall come to his hands, or to the hands of any other person for him-, and the same shall exhibit in the register's office, on or before a day given: and faithfully shall administer the goods, chattels, and credits of the deceased, according to law; and shall make a true and just account of his admin- istration, on or before a day given, and all the rest and residue of the said goods, and chattels, and credits, which shall be found remaining upon the said account, the same being first examined and allowed by the Orphan's Court, shall deliver and pay to such per- sons as the said court, by their decree or sentence shall appoint; and, if it shall appear that any last will and testament was made by the deceased, and the ex- ecutor therein named exhibit the same into the regis- ter's office, making request to have it approved and al- lowed that the administrator being thereunto requir- ed, shall deliver and render the letters of administra- tion, such will being first proved in the register's of- fice. On taking out letters of administration the party swears to the death of the decedent, that he made no will as far as the deponent knows or believes, and that he will truly administer the goods and chattels and credits, by paying the deceased's debts as far as the same will extend, and the law charge him, and that he will make a true and perfect inventory of all the goods, chattels and credits and exhibit the same within one month, and adjust and settle his accounts in one year, or when lawfully required, (a) Vppend. No. 15. Toll. Ex 96. CHAP, ii.} APPOINTMENT OF ADMINISTRATORS. 109 Administration is granted at any time after the deatli of the intestate, unless a caveat be entered. But the person applying takes the letters at his peril: for, if one having paramount right apply before the expiration of fourteen days, the register will revoke his grant. If administration be once committed to the proper person, a grant cannot be made to another, though in the same degree of kindred. In the case of execu- tors it is different, one having a right to probate though it have already been taken out by his co-ex- ecutor. (a) Administration may be committed to one, of cer- tain effects, as a term for years, and the rest of the estate to another; or for effects in this county to one, and for effects in that county to another. But several administrations cannot be granted of the same thing. No person having taken out letters of administra- tion, in one county of the state is obliged to take such letters in any other county, wherever the intes- tate's estate may lie. (c) As the powers of the administrator depend altoge- ther upon the appointment of the register, who is the officer of the commonwealth; it follows that an ap- pointment by any other person can have no validity within the state, except so far as the law may have specially permitted. Thus letters of administration, granted by the Archbishop of York in the kingdom of Great Britain are not sufficient authority to main- tain action here.(d) The provisions of the act of 1705, (a) 1 Vent. 318. Toll. Ex. OS. (c) Sm. I,. 135. (&) Toll. Ex. 106. (d) Grxme v. Harris, 1 Dall. 456. 1 10 APPOINTMENT OF ADMINISTRATORS. [BOOK HI. relating to letters of administration granted out of the then province being universally considered not to extend further, than to the provinces in this country at the time the act was passed, (a) But under that act and by force thereof, letters of administration granted in a sister state are sufficient authority to maintain an action in this state; and such has been the practice without regard to the particular intestate laws of the state in which they have been granted. (6) Upon the principle, that the administrator derives his power from the appointment of the register, it is, that, where two are appointed, the office survives to the one, on the death of the other; (c) and that, on the death of a sole administrator, it results to the re- gister to appoint another: On the same principle al- so, the register appoints an administrator, when an executor dies intestate, to his testator, (e?) An administrator has the office and quality of an executor; the interest of the one in the property of the deceased, is in all respects the same as that of the other, (e) The interest of special or limited admin- istrators, is also, during its continuance the same as that of an executor; (/) but their power and authority are not, as we have seen, in all cases the same. Administration is generally granted by writing un- der seal, (g) It may also be committed by entry in (a) M'Cullough v. Young. 1 Binn. 506. Toll. Ex. 114. 63. 4 Ball. 292. (e) Off. Ex. 259. Suppl, 48. 5 Co. (6) Ib. Ib. 83. 1 Pr. Wms. 43. 1 Atk. 460. 2 (c) 4 Barns. EC. L. 241. Cas. tern. Ves. 267. Talb. 127. (/) 2 Fonbl. 388 (d) 4 Burn. EC. L. 241. 2 Bl. Com. (g) Append. 16. OHAP. ii.] APPOINTMENT OF ADMINISTRATORS. 1 1 1 the registry, without letters under seal: but it cannot be granted by parole, (a) Administrations improperly granted, are void or voidable. If void, the acts of the administrator are also void: If voidable only, his acts are valid. (&) The Register's Court, has a right to revoke letters of administration, where they have issued improperly, and to direct to whom new letters shall issue, (c) But if the decision of the court be appealed from, such letters are not revoked pending the appeal, but the administrator may proceed in the recovery of the debts due to his intestate, (d) The following are instances of void administrations: 1. If there be an executor, and administration be granted before probate, or refusal, even though the will were suppressed or its existence were unknown, or it were dubious who was executor, or he was con- cealed, or abroad at the time of granting administra- tion:^) 2. If there be two executors, one of whom proves the will, and the other refuses, and he who proved the will die, and administration be granted be- fore the refusal of the survivor subsequently to the death of his co-executor, even though he refuse after administration granted. (/) 3. If granted on the ground of the executor's bankruptcy, or committed during his minority, where the infant executor had attained the age of seventeen, (g) (a) Toll. Ex. 1 19. 1 1 Vin. ab. 70. 1 R. 202. Show. 408-9. Godolph. 231. Com. (e) Coinm. Dig. Adm. B. 1. 1 1 Vin Dig. Admn. B. 7. ab. 68 2 Lev. 192. ([>) Com. Dig. Adm. B. 10. 2 Lev. (/) Com. Dig. Ad. B. 2. 10. 2 Lev. 181. 3 Bac. ab. 50. 182.Gri(Gth v. Frazer, 8 Crane!.. (c)Toll. 125. StOBver y. Ludwig, 4 9, 21. Sergt. & R. 201. (g-) 11 Vin. ab. 99. 5 Co. 2'J. b. (d) SLauffler ?. Stcerer, 4 Serjt. ft APPEAL FROM REGISTER'S COURT. [BOOK in. Administrations granted in the following cases are voidable only: 1 When granted to a party not the next of kin; (a) 2. Or to one next of kin, with one not next of kin, as to a sister and her husband; (b) 3. Or to the wife's next of kin instead of the husband; (c) 4. Or if granted on the refusal of an executor, who had before administer- ed; (d) 5. Or without citing the necessary parties; (e) 6. Or to a stranger; (/) 7. Or by fraud and misrepre- sentation, though otherwise duly granted; (g) as where the grantee by false suggestions prevented a party in equal degree from applying; 8. Where administra- tion is granted in consequence of the incapacity of the next of kin, and the incapacity ceases; (h) 9. If the grantee shall become non compos mentis, or otherwise incapable; 10. Or if granted to a creditor before the renunciation of the next of kin; (i) 11. If granted to the next of kin, and there be a residuary legatee. But whether the administration be void or voida- ble, a bona fide payment to the administrator, of a debt due to the estate, will be a legal discharge to the debtor, (fe) And if administration be granted and an executor appear, and the administrator have paid debts, legacies, or funeral expenses, he shall be allow- ed such payments. (I) The register is not impowered to repeal letters of administration, at his mere pleasure, but must repeal (a} Salk. 38. 1 Pr. Wms. 42. 4 Serg. (g) Ib. Ib. 114, 117. & II. 202. (A) 1 1 Vin. ab. 115. 1 Sid. 303. (b) Com. Dig. Adm .B. 8. Toll. Ex. (i) Com. Dig. Adra. B. 6. 1 Salk. (d ' Vin. ab. 85. 1 Sid. 409. 38. 4 Burn. EC. L. 249. Stra. 91 1 (/) Com. Dig-, adm. B. 8. Off. Ex.. (fc) 3 Term R. 125. 11 Vin. ab. 117. 40 41. 11 Vin. ab. 115. Finch Rep. 40. (e) Com. Dig. Adm. B. 8. Lev. 305. (/) 3 Bac. ab. 50. Plowd. 282. if) 11 Vin. ab. 95. UHAP. ii.] APPEAL FROM REGISTER'S COURT. 1 13 for cause; (a) which is inquirable into, on appeal, to the Register's Court, and from thence to the Supreme Court, (b) Thus he may not repeal letters on the suit of a party claiming to be the widow of the intestate, after grant of administration to the father-, (c) nor at the in- stance of a brother, when granted, to a sister or mar- ried woman, pending a caveat entered by the brother; (rf) nor where administration was granted to a young- er, in preference to an elder brother; (e) nor when granted to a creditor, at the suit of another creditor, for a larger amount. If administration be committed to a creditor, he may maintain it, against the executor of a will after- wards produced, or the next of kin; and is at liberty to shew cause why it should not be revoked. (/) If the administration be repealed for want of form in the grant, the register must regrant it, to the same party; although there be others in equal degree, (g) So, if it be repealed because inadequate security was taken. (/) Some authorities maintain that if administration be committed to the wrong party, a subsequent grant to the right one, is a repeal of the first, without sentence of revocation; (i) but by others, the contrary is held, (a) 11 Vin. ab. 114.4 Burn. EC. L. (d) II Vin. ab. 115. 1 Lev. 186. 248-9. Com. Dig. Adm. B. 8. 1 (e) Vin. ab. 115. 2 Kebl. 812. ' Pr. Wms. 42. Raym. 93. 3 Salk. (/) Phill. Rep. 173. 22. 11 Vin. ab 115 1 Kebl. 667, (g) 11 Vin. ab. 1 15, 1 Sid. 293. TolJ. 683. 1 Sid. 179. Toll. Ex. 122-3. Ex. (6) Comm. v. Brady. 3 Sergt. & R- (ti) Com. Dig. B. Sid. 293. 309. (t) 11 Vin. ab. 114, 4 Burn. EC. L. (c) Ld. Raym. 93. 249. 114 APPEAL FROM REGISTER'S COURT. [BOOK in. and the practice is, to call in and revoke the first ad- ministration, before the second is granted, (a). By act of Assembly twenty-seventh March 1713, Sec. II. (6) if the register grant letters of administra- tion, and no bond with sureties be given; they are void, and the register and his sureties are made liable to pay all damages accruing to any one, by reason of such grant. And the party to whom the letters are granted; is liable as an executor in his own wrong, and shall be so taken, in any suit brought against him, on account of his administration; and if the re- gister have not taken sufficient sureties, where the administrator may not be able to make good the value of the decedent's estate, the Orphan's Court, is em- powered to cause such administrator to give better security to the register, by bond, under such penalty, and with such sureties, as the court after hearing the creditors and others concerned, may approve. If the administrator, embezzle, waste, or misapply, or suffer to be embezzled, wasted, or misapplied, any part of the decedent's estate,; or if he neglect or refuse to give bond with sureties, according to the order of the court, the court is enjoined forthwith, by its sen- tence to revoke the letters of administration, and the register is required thereupon, to grant letters to such persons having right, as will give proper bonds. And such newly appointed administrator, may have trover for such goods and chattels, as had come to the possession of his predecessor. (a") 11 Via. ab. 115. n. Cro. Eliz. 315. (6) 1 Sm. L. 81. CHAP. HI.] OF CHATTELS REAL. 115 CHAPTER III. OF THE INTEREST OF THE EXECUTOR AtfD ADMINISTRA- TOR, IN THE ESTATE OF THE DECEDENT. SECTION I. Of Chattels real. As every species of property in Pennsylvania is subjected to the payment of the debts of the decedent, and as the executor or administrator is his representa- tive, whose duty is, to collect his property, pay his debts and distribute the balance among those entitled to receive it-, it follows that the executor or adminis- trator must have such an interest in the decedent's estate as will enable him to execute his office effec- tually. The executor or administrator has therefore a full and perfect right to the possession of the personal es- tate of the decedent, such estate being primarily ap- propriated to the payment of debts, (a) and requiring immediate care for its preservation. Personal estate is divided into chattels real and chat- tels personal. Chattels real are such as concern, or savour of, the realty; as terms for years and estates extended for the payment of debts, under the act of 1705, and mort- gages. Terms for years seldom form an important part of the estate of a decedent in Pennsylvania. The con- (o) Tod r. Tod's Exrs. 1 Sergt. & R. 453. 1 16 OF CHATTELS REAL. [BOOK ni. stant mutation of owners of land, rendering long leases inconvenient; and the love of gain greatly active in a community where the death of almost every male adult produces a partition of property, occasioning the rent reserved, to be, generally, of the full value of the property. Improving leases of new lands may per- haps form an exception-, yet the perpetual division of estates and the desire of the distributees to make their portions immediately available, must necessarily limit the number of estates for years in the only cases in Which they are greatly to be desired. Whatever interest, however, the decedent may have had in the lease for years, passes to the executor or administrator, subject to the rent and such other conditions as have been created by the lease, (a) And the value of the term after payment of the rent and other charges is assets. (6) If the decedent have leas- ed for a term shorter than his own, the reversion is assets; (c) and the executor hold the term and pur- chase the reversion in fee, he continues chargeable for the assets in respect to the term, although it be extinguished, (d) So if the executor surrender the lease it shall be considered as assets though the term be extinct, (e) A lease for years determinable on lives is a chattel interest, and shall vest in the personal representative of the lessee. (/) And where A tenant for lives, to him and his heirs, assigned over his whole estate in the premises, by (a) 3 T. Rep. 13. (d) 11 Via. ab. 229. Toll. Ex. 142. (6) 11 Vin. ab. 166. Harg. Co. Lit. (e) Ib. 8. n. 10. Toll. Ex. 141. (/) Toll. Ex. 141. 0) Ib. 1 1 Vin. ab. 240. CHAP, m.] OF CHATTELS REAL. 117 lease and release to B and his heirs, reserving rent to A, his executors and administrators, the rent was held payable to A's executors, and not to his heir-, on the ground .that there was no reversion to the as- signor, and the rent was expressly reserved to the ex- ecutor; and that therefore the proviso for the heir to enter was not material, for the reservation of the rent being to the executor, the heir in case of re-entry would be a trustee for him. (a) If A, have a term in right of his wife as executrix, and he purchases the reversion, the term is extinct as to her, though she survive, but in regard to a stranger it shall be considered assets in her hands. (6) But if terms be created for the purpose of marriage settlements, they are not assets, (c) If the term for years be valueless, still the execu- tor cannot waive it, whilst he has assets. If there be no assets, he may waive the term: But in case there are assets to bear the loss for some years, thougfi not during the whole term, it seems the ex- ecutor is bound to continue tenant till the fund is exhausted, when on giving notice to the lessor, he may waive the possession, (d) The rent in arrear at the time of the lessor's death goes to the executor, (e) Where the chattel concerns corporeal heredita- ments, as leases for years of houses or lands, the ex- ecutor is not deemed to be in possession of them until he has actually entered; if it relate to incorporeal hereditaments, the possession of the executor is ne- (a) 1 P. Wms. 555. (d) Com. Dig. Off. Ex. 120. Toll.Ex. 144. (6) 11 Yin. ab. 236. (e) Off. Ex. 53. Supp. 119. 3 Bac. ab. 63. (c)Toll. Ex. 142-3. 118 OF CHATTELS PERSONAL. [BOOK in. cessarily constructive, because there can be no en- try, (a) SECTION II. Of Chattels Personal. Chattels personal are such things as are annexed to, or attendant on the person of the owner. (6) They are distinguished into animate, vegetable, and inanimate, (c) The animate are divided into wild and tame. The wild are such as have not been subjected to the will of man, as deer, buffalo, rabbits, pigeons, partridges, &c. These admit of a qualified property only. Therefore, unless they be reclaimed, or rendered tame by art, industry and education, or confined, so that they can- not escape, and enjoy their natural liberty, or unless they be incapable from weakness, of flying or run- ning away, they are not regarded in the light of pri- vate property j and consequently cannot pass to repre- sentatives. (d) Those animals which are of a domestic nature, as horses, kine, sheep, hogs, poultry, &c. are the sub- jects of absolute property, and pass like all other personal chattels to the executor, (e) In a word every species of animal, which is capa- ble of being designated, possessed, transferred and en- joyed, passes to the representative of the decedent. (a) Off. Ex. 108-9. 1 1 . Vin. air. 240. Biens. A. 2. (6) Toll. Ex 146. (e] Ibid. (c) 2 BI. Cora. 387-389. (/) Toll. Ex. 147. (d) 2 Bl. Com. 290. Com. Dig. HAF. in.] OF CHATTELS PERSONAL. H9 Personal effects of a vegetable nature are the fruit, or other parts of the plant, or tree, when severed from the body of it, or the whole plant or tree itself when severed from the ground; as apples or pears which are gathered, or fallen, grass which is cut, and trees and their branches which are fallen and lop- ped, (a) And there are various vegetables which are raised annually by labour and manurance which are deemed personal, and go to the executor, although they are affixed to the soil. These are called emblements and include corn growing, hops, saffron, hemp, flax, and as it seems clover, saint-foin, (6) melons, cucum- bers, artichokes, carrots, turnips, and even hops grow- ing from ancient roots, and every other yearly pro- duction in which art and industry must combine with nature, (c) Manure in a heap before it is spread up- on the land is also a personal chattel, (d) Personal chattels inanimate, are household goods, merchandize money, pictures, jewels, garments, pro- perty in the public funds, and every thing not inclu- ded in the former classes, that can be properly put in motion and transferred from place to another, (e) The executor has also an interest in the service of a negro slave, or indented servant. But he has none in an apprentice, the contract for instruction, being merely personal and dies with the master. (/) It is perhaps otherwise, where the covenant extends to ex- ecutors, and administrators. (o) Bl. Com. 389. Off. Ex.59. (} 3 Atk. 21. Chan. 63. 412. 2 Vern. 502. Ca. (c) 2 Bl. Com. 434. Harg. Co. Litt. Tern. Talb. 168. 351. (/) Hargraves, Co. Litt. 351. n. 3. (rf) Roll. ab. 342. OKAP. in.] CHATTELS OF THE WIFE. . 145 In England if the wife's fortune be in chancery, or the aid of that court be required to put the husband in possession of it, he will be compelled to make pro- vision for the wife; (a) but the courts of Pennsylvania have no authority to insist on such provision for her, when he applies for her personal estate. (&) The choses in action of the wife, except the arrears of rent due to her, which are given to the husband by Stat. 32, Hen. VIII, C. 37, go to her representatives. (e) But, in the capacity of her administrator the hus- band may recover such things in action as became due to her, before or during the coverture, (d) And he will hold the property of the wife discharg- ed from the lien of her debts; if the wife die before payment and the husband do not assume her debt, (e) If the right of the wife to a chattel, accrue during the marriage, the husband will be entitled to it, though she die before it be reduced to possession. (/) Thus if a legacy be left to the wife to be paid twelve months after the testator's death, and the wife die within that period, her husband is entitled to it, for an immediate interest was vested in him and subject to his release, before the time of payment, (g) In all cases where property is given generally to the wife, it shall vest in the husband, (/) but, where it is given to the separate use of the wife she is entitled to it, independently of the husband. For, where any thing is settled to the wife's separate use, she is con- () 2 Vez. 669. (/) Tom. Dig-. Baron & Fomme, E. i Yohe v. Barnet, 1 Binn. 365. 3. t Mod. 179. 1 Sid. 337. (c) Toll. Exrs. 224. (g) Com. Dig. Ib 2 Roll. Rep. 134. (rf) 2 Bl Com. 43. ft) i Vern. 261. 2 Vern. 659. (e) Beach v. Lee. 2 Dall. 257. 146 CHATTELS OF THE WIFE. [BOOK in. side red as a feme sole, and may appoint in what man- ner she pleases, and unless the joining of trustees with her, is made necessary, there is no occasion for it. (a) And this separate interest of the wife may arise not only from express gift, in technical words, but from words not technical, or from circumstances, (b) Thus, where an estate was given to the husband for the livelihood of the wife, he was considered as a trustee for her separate use. (c) So where diamonds were given to the wife by the husband's father, on her marriage, it was held that they were a gift to her sep- arate use. (d) And even where a foreigner made the wife a present of trinkets, not expressly for her sepa- rate use, the court seemed to consider them as her separate property, (e) But where a testator devised to his married daugh- ter B " the uses, issue and profits" of his lands and tenements at N. to hold to her, during her natural life, &c. and by codicil reciting the devise in the will, and on " further consideration'' devised the same to C and D " in trust for the use, benefit and behoof of his daughter B, for and during her natural life, they or the survivor to rent out in the best manner so that no waste is made of the timber, and the best care that can be to preserve the land from abuse by extrava- gant tillage she the said B to have all the rente, issues and profits for and during her natural life," and at her decease to her male heirs. It was held that there being no clear intent manifest, that the devise (a) 1 Vez 518. 303. cited in Newlia (c) 3 Atk. 399. Darly v. Darly. v. Newlin, 1 Serg, & R. 275. 1 (c/) Ibid. 393. Bunb. 187. (e) 1 Fonbl. 98. 3 Atk. 393. (b] Toll. Ex. 226. OHAP. in.] CHATTELS OF THE WIFE. 147 was intended for the separate use of B, the husband was entitled to the rents and profits, (a) Gifts from the husband to the wife, if they do not prejudice creditors, are good. Thus where the hus- band transferred one thousand pounds stock in the name of his wife, she was held entitled to it, to her separate use. (6) And so of trinkets given by the hus- band to the wife, (c) And where the husband allowed his wife to make profit of all butter, poultry, fruit and other trivial mat- ters, arising from the farm, beyond what was used in the family, out of which she saved one hundred pounds, which the husband borrowed, on his death the Court of Chancery allowed the agreement as rea- sonable encouragement of the wife's frugality, and ad- mitted her to come in, as a creditor for that sum. (d) But a gift of the whole of the husband's estate whilst he is living, will not be admitted in any case, for that would not be in the nature of a mere provision, which is all she is entitled to. (e) But, if the husband and wife live together, and he provide her with clothes, and other necessaries, and she demand not, but suffer him to receive the rents and profits of her separate estate, or if she accept payments short of what she is entitled to, on his death, neither she nor her representatives, shall have an account of such separate estate, further back than a year; for she shall be presumed to have waived her right to the antecedent produce. (/) Yet if the husband pay the (a) Torbet v. Twining and Al. 1 (d) 3 Pr. Wms. 339. ycates, 432. (e) 3 Atk. 72. (fe) I Atk. 271. 3 Atk. 393. (J\ 2 P. Wms. G2. 340. 3 Pr. Wms. (c) 3 Atk. 393. 355. 2 Vex. 7. 190. 148 OF PARAPHERNALIA. [BOOK in. wife part of what may be due to her and promise to pay the remainder she will be entitled to all the ar- rears, (a) And she will also be entitled to all the ar- rears, if she lived separate from her husband. (6) But if A proposing to give a married woman money for her separate use, and to secure it, give her a note for a certain sum, as received, promising to be accountable, it shall be assets in the hands of the ex- ecutor of the husband. So likewise if a married wo- man deposit money in A's hands to be kept for her separate use it shall be considered as a part of the husband's estate, (c) SECTION v. Of Paraphernalia. In England the wife may also acquire a legal pro- perty in certain effects of the husband, at his death, which shall survive to her, in addition to her jointure or dower, and be transmissable to her personal rep- resentatives, (d) Such effects are styled her paraphernalia^ a term importing her bed and necessary apparel, and such ornaments of her person, as are agreeable to the rank and quality of the husband, (e) The extent of this right is uncertain, but is to be determined on the particular circumstances of each case, by the discre- tion of the court. (/) We can find no traces of judicial recognition of this right in Pennsylvania. Yet, it is by this right, that (a) 1 Atk. 269. Eq. Ca. ab. 140. 178. (6) 3 Atk. 695. 1 Vez. 298. (e) Com. Dig. Baroo and Femme, F. (c) Bnnb. 188. 3. 1 Holl Ab. 911. Toll. Ex.220. (rf) 1 Bl. Com. 435. 3 Bac. ab. 66. (/) Cro. Car. 343. Off. Ex. Sup. 61. 62. 11 Vin. ab. JHAP. in.] OF PARAPHERNALIA. the wife, in all cases retains her apparel and trinkets, without inquiry. There is therefore no reason to be- lieve that this branch of the common law has not been extended to us. Cases may arise in which the value of the jewels of the wife, might be disproportion ately great, when the representatives of the husband might compel her to bring them into account, in the distribution of the estate. In England, her bed is the first enumerated article of her paraphernalia, and is sacred from all but cre- ditors. Here, we believe it is always the practice to inventory the bed of the wife, with the other personal property of the decedent. The husband if inclined to so unhandsome an exer- cise of his power may sell or give away in his life time the paraphernalia of the wife; but he cannot dispose of them by will, (a) In case of deficiency of assets for the payment of debts, the widow is not entitled to her parapher- nalia, though presented to her by the husband before marriage. (6) Nor is she entitled where there are contingent assets, unless such assets arise before the application of the paraphernalia to the payment of debts, (c) But though subject to the debts, the paraphernalia is preferred to the legacies, (d) If the husband pawn them, and die, leaving a sufficient fund to pay all his debts and to redeem the pledges, they shall be re- deemed for her. (e) (a) 2 Bl. Com. 436. 3 Atk. 394. (c) 2 P. Wms. 80. Toll. Ex. 231. (6)2 Bl. Com. 436. 1 P Wm. 730. (d)Toll. Ex. Ib. 2 P. Wm. 544. 3 Atk. 369. (e) 3 Atk. 395. Moore 2 16. 2 Atk. 104. 150 OF DON ATJO CAUSA MORTIS. [BOOK in. If the husband bequeath to the widow her jewels for life, and then over, and she make no election to have them as her paraphernalia her executor shall have no title to demand them, (a) If a woman by marriage articles agree to claim such part only of the effects of the husband, as he shall give her by his will, she is excluded from her para- phernalia. (6) But her necessary apparel shall in all cases be protected, as decency and humanity re- quire, even against the claims of creditors, (c) / SECTION VI. Of donatio causa mortis. There is a species of interest in the personal pro- perty of a decedent, arising from a gift on the approach of death, called donatio causa mortis. It has place, where one in his last illness, apprehen- sive of the approach of death, delivers, or causes to be delivered to, or for, a party the possession of any of his personal effects, to keep in the event of his de- cease; and it is accompanied with the implied trust, that if the donor live, the property shall revert to him; since it is given only in contemplation of death, (d) To substantiate the gift, there must be an actual tradition or delivery of the thing. It must be given into the hands of the donee, either by the donor him- self, or by his order, (e) or' to a third person for the use of the donee; and a delivery to the wife of the do; nor for the use of the donee is valid. (/) But where (a) Clawges v. Albermale, 2 Vern. (d) Toll. Ex. 223. 3 Binn. 370. 246. Wells v. Tucker. (6) 3 Bac. ab. 66. Com. Dig. Baron () 2 Vez. 431. 2 Vez. 111. 1 P. & Femme, F. 3. 2 Vern. 49, 83. Wms. 404, 441. 3 Binn. 370. (c) 2 Bl. Com. 436. 2 Roll. ab. 91 1 . (/) Wells v. Tucker, 3 Binn. 370. QHAP. in.] OF DONATIO CAUSA MORTIS. 151 the subject will not admit of a corporeal delivery, the nearest approach to it, will be admitted. Thus a ship will pass by the delivery of a bill of sale defeasible on the donor's recovery or by other deed or writing-, (a) goods in a warehouse or trunk, by delivery of the key. (6) The delivery of the key and bill is not held symbolical, but as the means of obtaining possession of the property. The gift of a bond or bank notes, though choses in action may be a good donatio causa mortis, for a property is conveyed by the delivery, (c) Bills of exchange, promissory notes, and checks on bankers, are said not to be subjects of this kind of gift. These instruments are distinguished from a bond in this, that the bond is itself the foundation of the de- mand-, the destruction of which destroys the demand; whereas bills and notes are only evidences of the con- tract, (d) This distinction seems more nice than solid. The bond is but an evidence of a contract, essential to be sure on trial, if it have not been lost or destroyed; the former existence of which may be proved by parole. A bill of exchange or promissory note is in the hand of the endorsee more conclusive of the amount due, and affords more ready means of recovering the debt. Simple contract debts, and arrears of rent are in- capable of this species of disposition, because there can be no delivery of them, (e) Whether the delivery of a mortgage deed will (a)3Vez. Jr. 120. Lawson, 1 P. Wms. 44 f . Tatev (&) 2 Vez. 234. Hilbert, 2 Vez. Jun. 11 1, contra, (c) 3 Atk. 214. 2 Vez. 441. 3 Binn. (e) Ward v. Tamer, 2 Vez. 436. 366. Wells v. Tucker. 442. (rf) 2 Vez. 442. sed. vide, Lawson v. 152 OF DONATIO CAUSA MORTIS. [BOOK in. amount to such a gift of the money due on the secu- rity, seems to be an undecided point, (a) A delivery merely symbolical will not operate as such a gift. As where on a deed of gift, not to take place till after the grantor's death, a sixpence was de- livered by way of putting the grantee in possession; the court held such delivery insufficient, and pro- nounced for the instrument as a will. (6) Nor is the delivery of the receipt for stock sufficient-, a transfer of the stock is necessary to make the donation valid. (c) Least of all, shall such donation be effectuated by parole, as merely saying " I give," without any act to transfer the property. (d) Nor where a man consider- ing himself dying took certain property out of an iron chest and wrote the names of two persons on the en- velop containing it, and declared it to be his inten- tion, that they should have such property at his death, and then returned it to the chest, and kept the keys in his own possession, never having made an actual delivery thereof to the parties or trustees for them. w If the donor die, the interest of the donee is com- pletely vested-, nor is it necessary the gift should be proved as part of the will, it operating on the execu- tor as a declaration of trust, and his assent to it is not requisite as in the case of a legacy. (/) But the gift, however regularly made, shall not pre- vail against creditors, (g) (a) 3 P. Wm. 358. 2 Vez. 436. Has- Vez. 120. sel v. Tynte, AmbL318. 11 Vin. (e) Burn v. Markham,! Holt's Rep. ab. 178. 1 P. Wms. 441. 3 P. 352. 7 Taunt. Uep. 224. Wms. 357 Miller v. Miller. (/) 2 Bl. Com. 514. 2 Vez. Jr. 120. (b) 2 Vez. 440. Toll. Ex. 236. (c) 2 Vez. 431. (g) Ib. Ib. Ib. (rf) 2 Vez. 444. Tate v. Hilbert, 2 CHAP, in.] OF EXECUTOR'S INTEREST. 153 SECTION VII. How the effects which the executor takes may become his own. The property of the testator received by the exec- utor may in certain cases become his own. As if the executor mix the money of his testator, with his own, so that it cannot be distinguished; though he be accountable for its value, yet the money can- not be levied on by fi. fa. on judgment against the testator, (a) So if the testator die indebted to the ex- ecutor, or the executor pay a debt of the testator in its proper order with his own money he may elect to take any specific chattels of the value of the money paid, as a compensation. (6) But if the debt due and payable to him from the testator amount to the full value of all his effects in the executor's hands, there is a complete transmutation of the property in favor of the executor, by the mere act and operation of law; in the former case his elec- tion, and in the latter the mere operation of law, shall be equivalent to a judgment and execution, for he is incapable of suing himself, (c) But under the act of 1794, an executor or adminis- trator is not entitled to retain the whole amount of his debt against creditors of equal degree. He can re- tain only pro rata, where there is a deficiency of as- sets, (d) (a] Off. Ex. f>9. Toll. Ex. 238. (c) Plowd. 185. Toll. Ex. 238. (b) Ib. Ib. Id] ExpnrteMcason, 5 Finn. 167. U 154 OF EXECUTOR'S INTEREST. [BOOK in. SECTION VIII. Of the interest of an administrator general and special Of a married woman executrix or administratrix Of the several executors or administrators Of the executor of an executor. The interest of an administrator in the property of the deceased is the same as that of the executor, but the power and authority of special or limited ad- ministrators are not like his. (a) If a married woman be an executrix or administra- trix, the husband has a joint interest with her in the effects of the deceased; such as devolves the whole administration upon him, and enables him to act in it, to all purposes with or without her assent. (&) But the wife has no right to administer without the husband, and her gift or release of the decedent's pro- perty, without his concurrence will be of no validity, (e) In case of the husband's death the interest never having been devested will survive to her; but if she die, leaving the husband, it shall not belong to him, because it belonged to him merely in her right, as representative of the deceased, (d) A wjfe executrix may, without the consent of her husband, make a will and continue the executorship in respect to the pro- perty thus vested in her in auter droit. (e) If she have debts due to her in her own right, and goods and credits as executrix, and she may make a will with- out her husband's assent, appointing an executor, the (a] Toll. Ex.241. Off. of Ex. 259. 801. ib. Suppl. 48. Buckborough v. (c) Salk. 306. Off. Ex. 207. 208. Davis, 1 P. Wrns. 43. Hudson v. Toll. Ex. 242. Hudson, 1 Atk. 460. (d) Off. Ex. 208. Toll. Ex. 242. (6) Yard v. Ld. Raym. 369. Com. (e) Off. Ex. 199. Toll. Ex. ib- Ja- Dig. Admin. D. 1 Salk. 306. Off. comb v. Harwood, 2 Vez. 267. Ex. 199. 4T. R. 616. Bl. Rep. CHAP, iv.] OF THE FUNERAL. 155 will in respect to the effects which she held as exec- utrix is valid, and her executor may prove it in oppo- sition to the husband. But as to the debts due to her in her private capacity, the will is void, and the hus- band may take administration, (a) If there be several executors or administrators, they are regarded in the light of an individual person. They have a joint and entire interest in the testator's effects, which is incapable of being divided (b) and in case of death such interest shall vest in the survivor, (c) So also an executor of an executor, in however re- mote a series, has the same interest in the goods of the first testator, as the first and immediate executor. An administrator de bonis non has also the same interest in such effects as remain unadministered, as was vested in the executor or antecedent adminis- trator. (e) CHAPTER IV. OF THE DUTIES OF AN EXECUTOR OR ADMINISTRATOR FUNERAL INVENTORY - COLLECTING THE EFFECTS - OF THE PAYMENT OF DEBTS OF LEGACIES OF THE DISTRIBUTION OF THE PERSONAL ESTATE. SECTION 1. Of the Funeral. The first duty of an executor is to bury the de- ceased according to his rank and circumstances. (/) (a) Off. Ex. 202. (d) Com. Dig. Ad. G. Ofr. Ex. 259. (b) Com. Dig. Adm. B. 12. Toll. () Toll Ex. 243. Ex. 243. (/ ) OiFey v. Offey, Free, in Chan. fr)9Co. 36. Dy. 160. 2 P. Wms. 27. Com. Dig. "Admin. C. ' 121. 156 OF THE INVENTORY. [BOOK in. He may do this before probate: and if a stranger perform it, he does not thereby become an executor de son tort, (a) But the executor or administrator who pays the expenses, will not be allowed any charges which are extravagant: (b) nor as against creditors, more than is absolutely necessary, (c) Charges for feasts and entertainments are improper, (d.) A breach of these rules will make the executor, or administrator liable to creditors and legatees, (e) SECTION II. Of the Inventory. It is the duty of the executor and administrator to make an inventory of the personal estate of the de- ceased, in the presence of at least two of his creditors or legatees, or next of kin; and in their default or absence, in the presence of two other honest persons-, and to cause the same to be indented, and one part to deliver to the register on oath and the other to re- tain in his own possession, (f ) By the act of the 19th April, 1794, the administra- tor is to give bond, as we have already shown, one of the conditions of which is, that he will file his irivento ry within one month: and the executor is bound by his oath, made at the issuing of the letters testamen- tary, to, return an inventory within one month. The inventory should contain a full, true, and per- fect description and estimate of all the chattels, real and personal, in possession, and in action which be- (a) Toll. Ex. 245. (e) 2 Bl. Cora .508. Godolph. p. 2. c. (6) bl. Com. 508. 26. s. 2. (t) Toll. Ex. 245. (/) 21 Hen. VIII. c. 5. Report of (d) Off Ex. 131. Toll. Ex. 246. Judges. Roberts. Dig. 250. CHAP, iv.] OF THE INVENTORY. 157 long to the deceased: and should distinguish such debts as are sperate from such as are desperate, (a) There is much carelessness with regard to the in- ventory; it is often informally made, frequently never filed, and sometimes never taken. It is however the part of a prudent person who sustains the office of executor or administrator in every case, to have the effects carefully appraised and inventoried, not only because he may be required to produce the inventory, but because a distinct and accurate knowledge of the fund is necessary to direct him, in the safe execution of the trust. Indeed if a party administer without making an inventory, the law will suppose him to have assets for the payment of all the debts and lega- cies, unless he repel the presumption. Whereas if he make an inventory, he shall not be presumed to have more of the effects of the deceased, than are comprised within it, arid the proof of any omission is then thrown on the opposite party. (6) In practice the letter of the statute is not strictly pursued, with regard to the appraisement and inven- tory, (c) The appraisement is made by any two persons of repute, and the inventory obtains credence unless falsified by the opposite party. And where there is no occasion to file an inventory it may be dispensed with altogether. As if there be no debts, or if they have been all paid, and there be but one child of the decedent, or if there be several children and they are all satisfied with the distribution of the effects, (d) (a) 2 Bl. Com. 510. 3 Bac. ab. 47. (c) 4 Burn. EC. L. 252. Toll. Ex. Toll. Ex. 248. 251. (6) Toll. Ex. 250. 4 Burn. EC. L. (d) !b. 4 Burn. Tit. Inventory, s. If) 265, 266. 158 OF THE INVENTORY. [BOOK m. On the other hand, the register may in special ca- ses, at the instance of the party interested, decree an inventory to be exhibited by the executor or admin- istrator, before the issuing of the probate, or letters of administration under seal; and such inventory must also be substantiated by special oath. () Also under particular circumstances before grant of probate or letters x)f administration, the register will on the peti- tion of a party interested, instead of requiring an in- ventory, issue a commission for the appraisement and valuation of the goods, rights and credits^ and inspec- tion of the bonds, leases and other writings relative to the personal estate of the deceased, at his house or elsewhere on a day specified, with such continuation of time and place as may be necessary. (6) In cases of this nature there also issues a monition to the other party in special, and to all others in general, with whom any such effects of the deceased remain, requiring them to exhibit the same to the appraisers, under such commission, at the time and place requi- red for its execution, in order that they may be ap- praised, and inserted in the inventory, (c\ And on such commission being duly executed, the inventory shall be brought in and exhibited, signed by the appraisers, or two of them at the least, but without the oath of the party, (d) In such case also, an inventory is often required on the oath of the executor or administrator, of such goods of the deceased, as have been already disposed (a) 4 Burn. EC. L. 266. 344. Toll. Ex. 252. (6) Ib. 1 Ought. 345. (d) Ib. Jb. Toll. Ex. 253. (c) 4 Burn. EC. L. 266. 1 Ought. CHAP, iv.] OF COLLECTING THE EFFECTS. 159 of. (a) But after an inventory is exhibited a credi- tor cannot impeach it, in the register's office; for the stat. 21. Henry VIII. which requires an executor or administrator to make an inventory, enjoins him only to deliver it, on oath, into the keeping of the ordina- ry; and the ordinary is bound to receive it. (6) But the creditor may state objections to the inventory which the party is bound to answer on oath; but no evidence is admissable to contradict the answer. The executor or administrator is not conclusively bound by the first inventory; if it be erroneous he may file a second correcting the error, (c) And he is at liberty to show that the assets in hands amount to less, than he may have originally stated them. SECTION III. Of collecting the effects. The next duty of the executor or administrator is to collect all the goods and chattels so inventoried. For that purpose, the law invests him with large pow- ers and authority. Within a convenient time after the testator's death, or the grant of administration, he may enter the house descended to the heir, in order to remove the goods, but he must commit no violence, (d) The door must be open and the key must be in it, and this, whether the door of the hall or chamber or parlour, He has a right to take deeds and other writings relating to personal estate out of a chest in the house, if the chest (a) 4 Burn. EC. L. 266. 1 Ought, (r) Cas. of Bradford's Ex. 1 Browne 344. Toll. Ex. 253. 87. 4 Burn. EC. L. 252. 2 Vcz. (6) 4 Burns EC. L. 267. Burr. 1922. 193. 8 Mod. 168.2 Fonb. 418. (eO Harg. Co. Litt. 56. b. 160 OF COLLECTING THE EFFECTS. [BOOK in. be unlocked or the key be in it, but he has no right to break open even the chest. If he cannot take pos- session of the effects without force, he must desist and resort to his action, (a) On the other hand if the ex- ecutor or administrator on his part be remiss in re- moving the goods within a reasonable time the heir may distrain them as damage feasant. (6) The executor or administrator has also a right, on producing his letters at the bank, and causing so much of them as relates to the testator's interests in the se- veral stocks to be entered with the proper offices, to have the stocks transferred to him or to his appointee: and this though the stock may have been specifically bequeathed, and on refusal the bank is subject to an action at his suit, (c) He may sell or otherwise dispose of the effects of the deceased, to raise money for the purposes of the trust, (d) He has power to sell or mortgage terms for years, and effects specifically bequeathed, and may apply them even to satisfy his private debt, (c) He may sue out or assign a mortgage in fee. (/) If he alien the assets a creditor cannot follow them, unless the alienation were voluntary and by collusion with the purchaser; for a purchaser can have no means of knowing the debts of the decedent, (g) The executor or administrator may recover by ac- tion whatever pertains to the ^personal estate, (h) and (a) Off. Ex. 92, 93. 11 Vin. ab. 267. 1 Atk. 463. Toll. Ex- 2.'>G. Toll. Ex. 255. (6)2 P. Wms. 158. 2 Br. Ch. Rep. (6) Off. Ex. 93. Plowd. 280, 281. 438. Vid. Cro. Jac. 204. Hang. Co. (/) Simpson v. Ammon, 1 Bion. Litt. 566. 175. (c) Toll. Ex. 256. (g) I Atk. 463. 3 Atk. 237. Toll.Ex. (d) 2 Bl. Com. 510. Humble v. Bill, 257. 2 Vern. 455. Nugent v. Gifford, (h) Toll. Ex. 158. CHAP, iv.j OF THE PAYMENT OF DEBTS. redeem such chattels as the deceased may have left in pledge. The legislature has been careful to give every fa- cility to the executor and administrator in discharge of their trust, and has preserved to them the right of selling the effects of their decedents free from auction duties, (a) SECTION IV. Of the payment of Debts. The executor or administrator having collected the assets, his next duty is to pay the debts of the deceas- ed. By the act of assembly of nineteenth April, 1794^ Sec. 14,(6) a certain order is prescribed in which these debts are to be paid. And by act of congress, third March, 1797, Sec. 5, it is provided that " when the estate of any deceased debtor in the hands of execu- tors or administrators shall be insufficient to pay all the debts due from the deceased, the debt due to the United States shall be paid first." And this law operates on cases in which the debt had been contracted before its passage, (c) And on argument it was resolved that the act of Congress was constitutional, and that the United States were entitled to a preference and might avail themselves of it, by suit on the administration bond, although the act of Assembly of 1794, which gives the suit, and fixes the order of payment of the debts, does not recognize the preference, (d) (a) Act U Feb. 1730. 1 Sm. L. 179. (c) Commth. v. Lewis. 6 Binn. 266. Act23 Sept. 1789. 1 Sm. L. 510. ((/) Ib. (6)3Sm. L. 148, OF THE PAYMENT OF DEBTS. [BOOK ni. And if the executor pay debts of an inferior order, in preference to those of a superior, he will be per- sonally liable on a deficiency of assets, (a) The order of payment is as follows. 1. Physic, fu- neral" expenses and servant's wages. 2. Rents not ex- ceeding one year. 3. Judgments. 4. Recognizances. 5. Bonds and specialties. 6. All other debts without re- gard to their quality (simple contract debts,) except, 7. Debts due to the commonwealth, which are to be last paid. Of these in their order. And 1st. Of physic, funeral expenses and servants' wages. It is a disputed point whether " physic" includes every bill for medical services, or only, that which was made during the last sickness of the decedent. The doubt it is presumed has arisen from reference to the laws of some of the neighbouring states, (6) in which pre_ ference has been given to the expenses of the last ill- ness only. It certainly cannot arise out of the words or policy of the law. The words are sufficiently com- prehensive to embrace the physic administered dur- ing a whole life; and the true policy of the law, is, that, by providing for the remuneration of medical agents and menial services, the poor might obtain proper aid, in the hour of need, (c) In Bond's case, determined in Philadelphia, the majority of the court, was of opinion that, medicine furnished to the whole of the decedents family was included in this preference. (d) With the same humane design the servants who are preferred for their wages, are the domestics that make (a) 2 Com. 511. Toll. Ex. 258. Boniface v. Scott, 3 Sergt & R. (6) Connecticut, New Hampshire, 352. Bond's case, Mss. Orpb. Ct- Massachusetts, Vermont, New Philada. Hallowell dissentient. Jersey. (d) Mss. Rep. (c)Exparte Meason, 5 Binn. 179, CHAP. iv.J OF THE PAYMENT OF DEBTS. 163 part of the family and are employed to assist in the economy of the house and its appurtenances. Con- sequently workmen and labourers have not this pre- ference, (a) But a bar-keeper is a servant within the meaning of the act. (6) It would seem to have been the intention of the le- gislature to give to the several species of each class of debts, the same preference; and therefore if there should not be assets to pay in full all the claims for funeral expenses, physic and servant's wages they should be paid pro rata, and not in the order in which they are named; as physic, to the exclusion of the funeral expenses and servants' wages. 2. Rents not exceeding one year are next in order. If there be more than one year's rent due, the sur- plus would be payable as specialties, where the lease is under seal; and as simple contract debts, where it is b}^ parole, (c)* But a distinction is to be taken between rent in ar- rear, at the death of the decedent, and such as accrued subsequently to his death. The first is to be paid by the executor in that character, and he can be sued for it in the detinet only, and may plead that he has fully administered, (d) For the subsequent rent he is per- sonally liable so far, as the profits received from the term, (e) which must be appropriated to the payment (a) Exparte, Meason, 3 Binn. 179. Burr. 1384.1 Salk. 326. Toll. Ex. Boniface v. Scott, 3 Sergt. & R. 273. 352. Bond's case, Mss. Orphan's * But qucre whether rent on parole Court, Philada. ITalJowell dissen- lease is not of equal grade with tient. rent on lease under seal. Vide (b) Boniface v. Scott, 3 Sergt. & II. authorities cited above. 352. (rf) I Wilson 4. Com. Dig. Admin. (c) Off. Ex. 146. 2 Bl. Com. 46.1, B. 14. Toll. Ex.279. 511. Com. Dig. Admin. C. 2. 3 (e) 1 Salk. 317. 164 * THE PAYMENT OF DEBTS. [BOOK in. of the rent and cannot be applied to any othef pur- pose, (a) If the profits be insufficient to pay the rent, the executor is chargeable for such proportion of the rent, as shall exceed the profits merely in his capacity of executor; and to an action brought by the lessor against him in the debet and detinet, he must disclose the matter by special pleading, and pray judgment whether he shall be charged otherwise than in the detinet only. (6) Thus the profits of the land are to be applied by the executor, in the first place to the discharge of the rent, and if that fund should prove insufficient, the re- sidue of the rent is payable out of the general assets and stands on the same footing with other debts by specialty, (c) 3. Judgments. In treating of judgments, it is to be remarked, that the order of paying the debts of a de- cedent is according to their nature at the time of his decease; and that a simple contract creditor obtains no preference by a judgment against his executor or ad- ministrator, (d) And though executors and adminis- trators may by their bona fide acts conclusively de- fine the extent of the claims of different creditors, they cannot vary the vested interest of creditors, nor change the order established by statute for the payment of debts, (e) Between conflicting judgment creditors it has been the uniform practice to consider the lands bound by the judgments from their respective dates only. And (a) 1 Salk.317. 483. Scott v. Ramsey, 1 Binn. (6) 1 Salk. 317. Toll. Ex. 26(0. 221.Prevost v. NichoJls, 4 Yeates (e) Toll. Ex.281. 479, (d) Toll. Ex. 265, 266, 267. 1 \Voot- (e) Ib. eringv. Stewart, & al. 2 Yeates, CHAP, iv.] OF THE PAYMENT OF DEBTS. 165 a judgment on a subsequent debt shall have prefer- ence over a judgment on a prior debt, if the former be obtained before the latter, (a) But between judg- ments entered on the same day there is no priority; they are to be paid pro rata. (b) Where there is no real estate, and the personal estate is insufficient to pay the judgments, they are to be paid pro rata and not in the order of their date, (c) But where assets are derived from the sale of real estate the judgments must be paid according to their priority even when such estate is sold under an or- der of the Orphan's Court, (d) Judgments before justices of the peace, when filed in the prothonotary's office, or when made known to the executor or administrator before he has paid away the estate, are on a footing with judgments in a court of record, (e) And it would seem that the ad- ministrator would not be guilty of devasatavit if he paid the estate to creditors of an inferior nature, before he received notice of judgments rendered by justices of the peace, and not filed. ( / ) A recognizance in the Orphan's Court, conditioned for the payment of the distributive share of a child, is in the nature of a judgment and must be paid as such. A judgment in a foreign country or in a sister state is regarded merely as a debt by simple contract, (h) (a) Welsh v. Murray, 4 Dall. 320. 4 (d) 4 Dall. 450. Yeates, 197. (e) Scott v. Ramsey, 1 Binn. 221. (6) Ld. Forchester's case cited, [/) Ibid. Pugh v. Robinson, 1 T. R. 118. (g-) Beatty & Wife v. Smilh, 4 Steele v. Taggert, 1 Browne R. Yeales, 102. 20, note. .Emerick v. Garwood, (h) Off. Ex. 138. 2 Fbnbl. 460. 2 Ib. 20. S. C. cited 1 Dall. 321, Vern. 540. Wright v. Tower, 1 in note. Browne R. App. 1. (c) Scott v. Ramsey, 1 Binn. 221. 166 OF THE PAYMENT OF DEBTS. [BOOK in. The first section of the 4th Art. of the constitution of the United States, provides that full faith and cre- dit shall be given in each state to the public acts, re- cords, and judicial proceedings of every other state: and that Congress may by general laws prescribe the manner in which such acts, records, and proceedings may be proved, and the effect thereof: and Congress have enacted that such " records and judicial proceed- ings shall have such faith and credit given to them within the United States, as they have by law and usage in the courts of the state from whence they may have been taken." Under this article and act of Con- gress it might possibly be doubted, whether a judg- ment entitled to priority of payment in the state in which it was rendered might not be entitled to like priority in this state. But the inconveniences of such construction, are so great, that nothing but the express and unequivo- cal directions of the legislature can justify it. The greatest effect given to judgments rendered in a sis- ter state, is to make them conclusive evidence in some cases of the debt due from a defendant, (a) To entitle them to priority of payment from the assets of a decedent, might compel the executor or adminis- trator to search the records of almost every court in the union, a task almost impossible, and attended with great delay and enormous expense. The president of the Orphan's Court of Philadel- phia county, (Hallowell) however, has intimated an opinion " that all judgment creditors who render their accounts to an executor or administrator within the () Green v. Sarmiento, 1 Browne's Rep. App. 30. Wright v. Tower. Ib. 1 . CHAP, iv.] OF THE PAYMENT OF DEBTS. 167 time prescribed by the act of nineteenth April, 1794, that is, one year after public notice in the newspapers as therein directed, are entitled to the preference assigned them whether their judgments be obtained in any county of the state, or in any other state: that an executor or administrator when administering the personal assets merely, is not bound to search for judgments any where but in the county in which his decedent resided at the time of his death." (a) But suppose a writ of error be brought by plaintiff, and the Supreme Court reverse the judgment, and enter such judgment as the court below should have given, (fe) will not the administrator be required to search the records of the Supreme Court, of the district in which his decedent resided, though the action was originally brought in a county different from that in which he dwelt? And though by the act of twentieth March, 1799, (c) such judgment is a lien on lands only in the county in which it is rendered, yet will it not be considered as constructive notice to the executor, being filed in the prothonotary's office? (d) Indeed until it be otherwise decided by the Supreme Court, the question whether the executor or administrator is not bound to search for judgments in every county in the state, may be considered as open. Undoubtedly when it shall be examined, the arguments drawn from inconvenience and general practice will weigh heavily in the negative. A judgment quod computet in the action of account is not entitled to priority, (e) (a) Bond's case. Mss. Rep. (d) Scott v. Ramsay, 1 Binn. 221. (6) Swearinger v.Pendletoo, 4 Serg. (e) 11 Vin. ab. 297.n. 2 Freem. 103, & R. 396. Toll. Ex. 267. V) 3 8m. L. 358. ]>s OF THE PAYMENT OK DEBTS. L BOOKin - 4. The preference given to recognizances was ne- cessarily productive of an inquiry into the time at which their lien should attach. A recognizance is an obligation of record, which a man enters into before some court of record, or magistrate duly authorized with condition to do some particular act, as to appear at court, to keep the peace, to pay a debt, or the like. (n) From this definition it is evident, that if the re- aizance bound from its caption, or taking, that, monies must be paid, or at least locked up in the hands of the executor or administrator, which may never be payable to the recognizee; because no payment is to be made unless the condition be forfeited. The effect of the recognizance was determined in 1783, in the Common Pleas of Philadelphia county in the case of Campbell v. Richardson. (6) This case arose under the act of 1705, in which a preference is also given to debts due by recognizance, after judg- ments. The defendant had been bail for his brother, who suffering judgment to go against him, a scire facias was issued against the defendant, and in due course judgment thereon. In the interim between the re- cognizance of bail and judgment on the scire facias, several judgments were obtained against the defen- dant by his proper creditors, execution issued, and his real estate was seized and . (c)Ib. (/)4 Yeates, 93. 172 OF THE PAYMENT OF DEBTS. [BOOK IK. 1 . Recognizances have no priority over subsequent judgments; but are postponed in relation thereto. 2. That they do not bind lands until judgment be rendered upon them, or in other words that recogni- zances considered as recognizances merely, are not liens upon lands, unless such as are taken in the Or- phan's Court, to secure the payment of the distribu- tive share of an intestate's real estate. 3. That recognizances, as recognizances, are not entitled to preference in any case unless they be for- feited by breach of the condition for which they were taken, and e converse that when the recognizance is forfeited, it must take precedence in payment accord- ing to the act of Assembly. Under the last rule, recognizances of bail in civil and criminal cases, claim the attention of executors and administrators. For if in the former the bail be fixed, and in the latter the recognizance be forfeited, and unremitted, it must be paid antecedently to bonds, specialties and simple contract debts. It may however be questioned whether the act de- signating the order for the payment of the debts, em- braces recognizances in criminal cases. If it does, there ought to be actual notice to the executor of the existence of the recognizance, and of its forfeiture, for in the office of the clerk of the sessions and of the court of oyer and terminer, there is no index, nor any other ready means by which a knowledge of the for- feiture can be obtained, though it be an act of record. And this is also the case, with regard to recognizan- ces entered into on appeal, conditioned not for the . iv.] OF THE PAYMENT OF DEBTS. 173 payment of money ascertained by judgment or decree in the court below, but for the prosecution of the suit or payment of costs. If recognizances in criminal cases be within the act of 1791, a distinction may be made between those which inure to the commonwealth, and those which are for the use of individuals or corporations, as in the case of the overseers of the poor of the city and county of Philadelphia, who are entitled to the proceeds of forfeited recognizances in cases of forni- cation and bastardy and tippling houses. The claims of the commonwealth will never interfere with those of the citizen, whether on recognizance or otherwise, because, as we have seen, they are to be last paid. But where the recognizance is in the name of the commonwealth, but in reality for the use of a corpora- tion, the rights of such corporation are to be consid- ered and not those of the state. And it would seem, therefore, that such recognizances are to be paid by the executor or administrator, before bonds and spe- cialties, if he have notice that they are forfeited. 4. To these recognizances we may add such as are taken in the courts of the United States. The debts of the United States are to be first paid. Forfeited recog- nizances, are clearly debts, recoverable by suit, and consequently the non payment of them in their order by an executor would subject him to the penalties of a devastavit, at the suit of the United States. 5. The next class in order, is that of bonds and speci- alties. A specialty is an instrument under seal, and a claim against the estate of a person deceased for dam- 174 OF THE PAYMENT OF DEBTS. [BOOK in. ages on account of a breach of articles of agreement under seal, is a debt by specialty within the act. (a) A debt by specialty must be paid before a debt by simple contract, although the bond be not at maturity, for the obligation is a present duty, and the condition is but a defeazance of it. (b) And where there are two bonds, one due and the other not, they are to be paid pro rata. (c) But a contingent security, as a bond to save harm- less, shall not be preferred to a debt by simple con- tract, (d) But where the contingency has taken place, although the debt, consequent upon it, has not been paid, the bond shall be preferred, (e) A mere voluntary bond shall not be preferred to a simple contract debt, which is bona fide owing; but such bond if not to the prejudice of the creditors must be paid by the executor, and always in preference to legacies. (/) And payment of such voluntary bond may be sustained against the claim of dower of the wife, (g) But the executor has no right to pay a bond founded on a base and illegal cause. Such pay- ment will amount to a devastavit as well against lega- tees as creditors, (h) If there be joint and several obligations, an execu- tor of a deceased obligor, may pay the debt as a speci- alty. But if the obligation be joint only, the survivor (a) Frazier v. Tunis, 1 Binn. 254. (c) Cox v. Joseph. 5 T. R. 307. Toll. Ex. 278. (/) Toller Ex. 283. and cases there (6) 1 Vin. ab. 304. Leon. 187. 3 cited. Bac. ab. 81. Cro. Eliz. 315. 3 (g) Killinger v. Redinhauser, 6 Lev. 57. Cro. Car. 362. Ca. Sergt. and R. 531 Temp. Hard, 228. Toll. Ex. 281. (h) 1 1 Vin ab. 307. Brownl. 33. (c) Off. Ex. 143. Toll. Ex. 281. Hob. 157, 1 Vez. 254. Toll. Ex. (d) Laney v. Fairman. 2 Vin. 151. 283. Hawkins v. Day, Ambl. 160. CHAP, iv.] OF THE PAYMENT OF DEBTS. J75 must be charged out of his own estate, and the exec- utors of the deceased obligor are not liable on the in- strument, (a) A mortgage is a debt by specialty and is to be paid out of the personal estate, though there be neither bond nor covenant for the payment of the money, (b) If there be not sufficient assets to discharge the bonds and specialties, the act of 1794, s. 14, declares they shall be averaged, and paid pro rata. 6. Simple contract debts are those which arise on bills and notes not under seal, and agreements, and such as are implied by law. These are to be paidjpro rata by the last recited act of assembly. For determining the pro rata amount of bonds, spe- cialties and other debts of an inferior degree, the above recited act directs the executor or administra- tor to apply to the Orphan's Court, which is authori- zed to appoint three or more auditors to settle and adjust the rates and proportions of the remaining assets due and payable to such respective creditors, whose report thereon, if approved by the court, shall be confirmed, and the executor or administrator must pay such creditors accordingly, (c) And to enable the executor to make an early set- tlement of his accounts, by the same act (d) it is fur- ther provided, that no creditor, who shall neglect to exhibit his account to the executors or administrators, within twelve months after public notice given in one or more of the public news-papers of the state for four (a) 11 Vin. ab. 288. 1 Mod. 165. Wms. 358. Toll. Ex. 285. Frem. 127. (r) 3 Sm. L. 149. (&) 2 Vern. 554. Powel on Mort. (d) Ibid. 813. 1 Pr. Wms. 291, 294. 3 P. 176 OF THE PAYMENT OF DEBTS. [BOOK in. weeks, shall be entitled to demand or receive any dividend of such remaining assets. To give sufficient time to administrators to settle the estate and exhibit their accounts, it is enacted (a) that no administrator shall be compelled to make dis- tribution of the goods of the intestate, until one year be fully expired after the intestate's death. And that a due regard may be had to creditors, each person to whom a distributive share shall be allotted, may be required to give bond with sufficient securities in the Orphan's Court, conditioned, that if any debt owing by the intes- tate, shall be afterwards sued and recovered, he will refund to the administrator his rateable proportion of such debt, thereby to enable such administrator to pay and satisfy the debts so discovered after distribution made. Such bonds are absolutely required, when the distribution is made by the court; but when dis- tribution is made by the administrator it is optional with him to require them, or not. The act of Assembly of 1705, having classed debts in the order in which executors shall be bound to pay them, adds that, nevertheless executors or ad- ministrators shall not be prevented from or damnified for discharging the decedent's just debts, as the same shall come to their knowledge, without regard to the priority of the same in payment, after the expiration of twelve months from the time of the decedent's death. Under this clause it was contended that the executor or administrator could not be sued until af- ter the expiration of twelve months. But the court declared that it would be attended with the most in- (a) Act. 1794. s. 15. 3 Sm. L. 149. HAP. iv.] OF THE PAYMENT OF DEBTS. 177 convenient and pernicious consequences, to determine that a creditor could not compel payment from his debtor's estate, nor even bring suit against the execu- tor for a period of twelve months. That the order of paying debts, obviously respects voluntary and not compulsory payments, (a) This decision was had be- fore the passage of the act of 1794, and as no provision was made by that act to protect the executor or ad- ministrator from suit by the creditor, it may be con- sidered as having received the sanction of the legis- lature, and may be taken as the settled law of the land. With regard to interest on debts, it is to be observ- ed, that interest generally speaking is a legal incident of every judgment-, (b) and the practice since the act of 1700, has always been to ascertain the real debt at the time of the judgment entered, and to calculate in- terest thereon, as on a new principal, and this as well upon writs of scire facias brought to revive judgments, as in actions of debt founded on them, (c) The words of the act of 1700 are, " that lawful interest shall be, allowed to the creditor for the sum or value he ob- tained judgment for, from the time the said judgment was obtained till the time of sale, or till satisfaction he made.' 7 And where a judgment has been revived by repeated writs of scire facias, the plaintiff has a right to charge interest on the aggregate amount of principal and interest, due at the time of rendering judgment on each scire facias, (d) a) Roberts v. Cay's Ex. 2 Dall. 160 (c) Berryhill v. Wells. 5 Binn. 61. (b) Fitzgerald v. Caldwell's Exs. 4 (d) Fries v. Watson, 5 Sergt. aaJ R Dall. 252. 220. 178 OF THE PAYMENT OF DEBTS. [BOOK in. In other cases, interest is payable wherever one man has received the money of another and has retained it without the consent of the owner, as for money had and received: (a) on rent it is payable from the time the rent falls due, unless from the con- duct of the landlord it may be inferred that he meant not to insist upon it-, or unless he acts in an oppres- sive manner by demanding more than is due, where the tenant is willing to do justice, or where there are other equitable circumstances making the charge of interest improper: (b) on an open account, interest is chargeable j 1. Where it is payable by the express agreement of the parties; 2. By general usage-, 3. Where there has been a vexatious and unreasonable delay, (c) 4. Where the express or implied time of credit has elapsed and a demand of payment has been made, (d) Interest is recoverable in assumpsit for money had and received, for work and labour done, and in an action on a policy of insurance; (e). on a parole award from the time of the award-, (/) from the party in pos- session of land under a contract for the unpaid pur- chase money; (g) on promissory notes where a day certain is fixed for the payment, from the day of pay- ment, and where no day is fixed from the time of the demand, (h) As the executor or administrator cannot sue him- (a) Rapelje & al. vs. Emory, 1 Dall. 193. 349. Dilworth v. Sinderling, 1 (c?) Crawford & al. v. 4 Dall. 289. Binn. 488. (e) Obermeyer v. Nichols, 6 Binn. (6) Oberrneyer v. Nichols, 6 Binn. 163. 159. (/) Jones v. Ringold, 1 Yeates, (c) Williams v. Craig-, I Dall. 315, 480- 316. Henry v. Risk, 1 Dall. 265. (#) Shaller v. Brand. 6 Binn. 435. Christie v. Wood, & al. 2 Yeates, Jacobs v. Adams, 1 Dall. 52. 213. Knox & al. v. Jones, 2 Dall. (ft) Jacobs v. Adams, 1 Dall. 52. HAP. iv.] OF THE PAYMENT OF DEBTS. 179 self, he is permitted to retain his debt out of the assets which came to his hands: but he cannot re- tain his own debt against those of a higher degree, for the law places him in the same situation as if he had sued himself, (a) Nor can he retain his whole debt against those of equal degree, unless in case of a judgment having priority by lien on land, where there is a deficiency of assets, (b) There is a distinction between an executor and ad- ministrator, debtor to the estate of the decedent. As a general rule the appointment of a debtor executor is a release and extinguishment of the debt; on the principle that a debt is merely a right to re- cover the amount by way of action-, and as an execu- tor cannot maintain an action against himself, his ap- pointment by the creditor to that office, discharges the action and consequently discharges the legal rem- edy for the debt, (c) But if a debtor take out admin- istration he is not released from the debt, (d) because his appointment is not the act of the creditor. The extinguishment in the case of the executor is not wrought by way of release ,but by way of legacy or gift of the debt by the will, (c) Thus, if the obligor of a bond administer to the obligee, and die, a creditor of the obligee having obtained administration de bonis non may maintain an action for such debt against the executor of the obligor.(/) So if the executrix of an obligee marry the obligor, such marriage is nore- (o) 2 Bl. Com. 511. 3 Bl. Com. 18, (rf) Wankford v. Wankford, 1 Salk. 19. 5 Binn. 167. 302. Abraham v. Cuningham, 1 (ft) Exparte Meason, 5 Binn. 176. Ventr. 303. (c) 8 Co. 136. Harg. Co. Litt. 264. (e) 1 Salk. 302. b. note 1. Toll. Ex. 349. Wank- (/) Lockierv. Smith, Sid. 79. ford v. Wankford, 1 Salk 299. 180 OF THE PAYMENT OF DEBTS. [BOOK in. lease of the debt-, for the testator has done no act to discharge it-, and the husband may pay to the wife in the character of executrix, tf he do not, the reme- dy is suspended merely by the legal effects of the coverture, and on her death the administrator de bo- nis non of the testator will be equally entitled to that debt as to any others outstanding, (a) It seems also, that, the appointment of a debtor executor durante minoritate is no discharge of the debt, since he is only executor in trust for the infant until he comes of age. w But this right of the executor when the debtor of his testator is subject to the following exceptions. 1 . Where the testator has not left a fund sufficient for the payment of his own debts, (c) 2. And though generally such executor shall be preferred to lega- tees, (d) yet such debt shall not be released if the presumption in favor of the executor be rebutted by the express terms of the will, or by strong inferences from its contents (e) As where a testator directed a legacy to be paid out of a debt due to him from the executor. 3. Where such presumption is implied!} rebutted by the gift of a legacy to the executor. As where a testator bequeathed large legacies, and also the residue of his estate to his executors; one of whom was indebted to him, in a bond } \ \ Vin. ab. 400. Ld. Raym. 605. (e) Toll. Ex. 350, 351. Bac. ab.tit. (c) 1 Salk. 302, 306. Bl. Com. 512. Ex. Flud. Rumcey. v. Yelr. 160. CHAP, iv.] OF THE PAYMENT OF LEGACIES. 181 added to the surplus and be divided between both executors, (a) y In all these cases the debt due to the testator is as- sets, and in the first case put above, the executor is trustee for the creditors, and in the others for the le- gatees or next of kin. SECTION v. Of the payment of legacies. Having paid the debts, the next duty of the exec- utor is to discharge the legacies given by the testator. A legacy is the gift or bequest, of personal proper- ty by will. (6) All persons are capable of being legatees. And though a man cannot grant to his wife, he may be- queath any thing to her by will; since that cannot take effect till the coverture be determined by death, (c) A child in his mother's womb may also be a lega- tee, (d) If a legatee be sufficiently described in a will, so that he can be identified, a mistake of his christain name will not make the legacy void: as where a legacy was given " to my namesake Thomas^ the second son of my brother John-" John had no son of the name of Thomas, but his second son's name was William; and he was held entitled, (e) And if a doubt arise with regard to the person to whom the bequest is made, parol evidence may be received to deter- mine it; as that a legacy given to Sam. P. was intend- (a) Brown v. Selwyn, Cas. Tep. 112. Talb 240. 4 Bro. P. C. 180. Bac. () But if the legacy be devised, in case of the infant's dying before he comes of age, the principal it seems shall on no ac- count be subject to such diminution, (c) On the payment of the legacy, the executor may and ought to take bond of the legatee with two suf- ficient sureties in double the amount of the legacy given, conditioned, that if any part or the whole should be wanting at any time thereafter, to discharge any debt or legacy, which the executor shall not have other assets to pay, that the legatee will refund the le- gacy or so much thereof as shall be necessary to pay said debts or a proportionate part of said legacies, (d) A legacy may be adeemed or taken away by the testator. Ademption may be expressed or implied. The implication arises where the testator does some act relative to the legacy or legatee which is incon- sistent with the bequest. As where a father makes provision for a child by will; and after gives to such child, if a daughter, a portion in marriage; or if a son, a sum of money to establish him in life, provided such portion, or sum of money be equal to or greater than the legacy, this is an implied ademption of it; for the law will not intend that the father designed two por- tions for the same child, (e) But this implication will not arise if the provision in the will is created by a (a) Harvey v. Harvey, 2 P. Wm. Sm. L. 384. 21. Toll. Ex. 327. (e) 2 Fonb. 354. note A. Toll. Ex. (6) Barlow v. Grant. 1 Vern. 255; 329 Hartop v. Whitmore. 1 P. (c) Bac. ab. 442. Pre. in Chan. IQo!" Wms. 680. Duffield v. Smith, 2. Toll. Ex. 328. Vern. 257. Farnham v. Phillips, (d) Act 21 March, 1772, s. 4. 1 2 Atk. 216. CHAP, iv.] ADRMPTION OF LEGACIES. 199 bequest of the residue; (a) nor if the provision in the father's life time be subject to a contingency; (6) nor unless it be of the same nature with the legacy, (c) nor if it be expressly in satisfaction of a claim aliunde; nor if the portion be given absolutely, and the legacy under limitations; (d) nor if the testator were a stran- ger; (e) nor if the testator be the uncle of the legatee-, nor if the legatee be an illegitimate child, unless the testator placed himself clearly in loco parentis, (j ) and such implication is always liable to be repelled by evidence, (g) But if the testator by a codicil subse- quent to the apportioning or advancement of the child, ratify and confirm his will, this, although a new pub- lication shall not overturn the presumption, that he meant to adeem the legacy, for such words are merely formal, (/i) In respect to the ademption of a legacy, all the cases concur in the principle, that the intention of the testator must govern; but in the application of that principle or what shall amount to evidence of such an intention they are in many instances incapa- ble of being reconciled, (i) Thus in some cases it has been held, that where a sum of money is bequeathed out of a particular fund, such legacy is, in its nature general, a legatum inuumeratis; and if the testator in his life time receive it, it must be made good to the legatee, (a) 2 Atk. 216. (/) Brown v. Peck. 1 Eden's Rep. (6) Spinks v. Robins. 2 Atk. 491. 140. (c) Grace v. Earl of Salisbury, I (g) 2 Atk. 516. Deheze v. Mann. Bro. Ch. Rep. 425. 2 Bro. G'b. Rep. 165. 519. (d) Toll. Ex. 330. Baugh v. Reed. . (h] Irod v. Hunt. 2 Freem. 224. 3 Bro. Ch. Rep. 192. Tbelluson v. Woodford, 4 Mad. (c) Shordal v. Jekyll. 2 Atk. 516. Rep. 421. Powel v. Clearer, 2 Bro. Ch. (i) Toll. Ex. 330. Rep. 499. 200 ADEMPTION OF LEGACIES. [BOOK HI. out of the general assets; for from that act of the tes- tator no presumption can be raised of his intention to revoke his bounty. () In other cases it has been de- cided that such a legacy under the same circum- stances is adeemed, (b) Some authorities distinguish between the bequest of a sum of money to be satisfi- ed out of a particular fund, and consequently a gene- ral legacy, and a bequest of a specific debt; that the former is not adeemed, while the latter is adeemed by payment to testator, (c) But these last mentioned cases differ in their construction of what shall be the bequest of a general legacy as opposed to that of a specific debt. Some adopt a distinction between the bequest of a certain sum of money due from a particu- lar person, as " five hundred pounds due on a bond from A,'' and a bequest of such debt generally, as of the bond of A; that, in the former instance, the lega- cy is pecuniary, in the latter specific, (d) But accord- ing to other cases, this distinction is too slender to be relied upon, (e) A difference also, has in some in- stances been taken between a compulsory and a vo- luntary payment to the testator of such debt-, in other words where the testator calls in a debt, which he has bequeathed, and where the debtor, unprovoked and without application thinks fit to pay it; that in the for- mer instance, it is the act of the testator, and conse- quently an ademption; in the latter he is merely pas- sive, and cannot be presumed to have changed his (a) 4 Bac. ab. 355 2 Bro. Ch. Rep. (c) Hamblingv. Lister, Ambl. 401. 108. Ashburner v. M'Guire, (d) Rider v. Wager. 2 P. VVms. 330. Pawlet's case, Raym. 335. note r. Att'y. Gen. v. Parkin, (6) 3 Bro. Ch. Rep. 431. 2 Fonbl. Amb. 566. 367. n. f. Badrick v. Stephens, (c) Ashburner v. M'Guire, 2 Bro, 3 Bro. Ch. Rep. 431. Ch. Rep. 11 1. I Eq. Cas. ab. HAP. iv.] ADEMPTION OF LEGACIES. 201 mind, (a) But the doctrine of some cases is, that this distinction has no weight, (b) and of others that it has no existence, (c) and that the case is not varied by the mode of payment. In another class of cases this distinction between a compulsory and a voluntary payment has been recognized as very important, but not as an absolute rule of decision, on the principle, that the testator's calling for payment is not of itself sufficient evidence of an intention to adeem, but an equivocal act requiring explanation, (d) It is however, clear, that if a legacy be of a specific chattel, and the testator alter the form, so as to alter the specification of the subject, as if after giving a gold chain by his will, he convert it into a cup-, or after he has bequeathed wool, he make it into cloth, or a piece of cloth into a garment-, the most obvious conclusion that can be formed in such a case is, that he has changed the intention he had expressed in his will-, therefore in such instances the legacy shall be adeemed, (e) So if he bequeath stock in a particular fund, and sell it out subsequently to the making of the will, this on the same principle amounts to an ademp- tion. (/) But if A bequeath so much stock to B, and after making his will, sell it out, and then buy in again the same quantity of stock, this is no ademption-, for if the selling the stock be evidence of his having al- tered his intention, his buying in again is equally (a) Crockal v. Crockat. 2 P. Wm. (c) Ambl. 566. 2 Bro. Ch. R. 109. 165. 330, n. l.Bronsdon v. BroDS- (d) Urinkwater v. Falconer, 2 Vetf, don. Amb. 57. 623. Hambling v. Lister. Ambl. (6) Earl ofThormond, v. Suffolk, 1 401. P. Wins. 461. Asliton v. Asbton, (e) 3 Bro. Ch. R. 110. 3 P. Wms. 386. 2 P. Wms. 469. (/) Ib. 108. Ford v. Hunting. 2 Strang. 823. CC 202 CUMULATIVE LEGACIES. [BOOK in, strong that he meant the legatee should have it. (a) If the testator, after such bequest of stock, sell out part and die, such sale shall be an ademption pro tanto. (b) Legacies may be also cumulative. They are con- tradistinguished from such as are merely repeated. As where a testator has twice bequeathed a legacy to the same person, it becomes a question whether the legatee be entitled to both or one, and on this point also the intention of the testator is the rule of con- struction, (c) On this head there are three classes of cases. 1. That in which there is no evidence either internal or extrinsic 2. That in which there is external evi- dence, and 3, That in which there is extrinsic evi- dence. Of the first class there are four instances. 1. Where the same specific thing is twice be- queathed to A in the same will, or in the will and again in the codicil; in that case he can claim the benefit only of one legacy, because it could be given no more than once, (d) 2. Where the like quantity is bequeathed to him twice, by one and the same instrument, there also he shall be entitled to one legacy only, (e) 3. Where the bequest to him is of unequal quantities in the same instrument, the one is not merged in the other; but he has a right to them both. (/) (a) Partridg-e v. Partridge, Ca. (<) 1 Bro. Ch. Rep. 392. Toll. Ex. Tern. Talb. 226. 336. Masters v. Masters, 1 Pr. (6) Ib. Cuthbert v. Cuthbert. 4 Wms. 424. Dewit v. Yeates. 10 Yeates. 276. John. Rep 156. (c)Toll. Ex. 334. (/) 1 Bro. Ch. Rep. 392. Coote v. (d) 1 Bro. Ch. Rep. 392. in no-te, 10 Boyd, 2 Bro. Cb. Rep. 521. John. R. 156. Toll. Ex. 336. UHAP. iv.] CUMULATIVE LEGACIES. 203 4. And lastly where the bequest to him is of equal or unequal quantities by different instruments; in that case also, there shall be an accumulation, (a) II. There are likewise cases in which there is inter- nal evidence of the testator's intentions, as where a lat- ter codicil appears to be merely a copy of the former, with the addition of a single legacy, or where both legacies are given for the same cause; they shall not be accumulative, whether given by the same or differ- ent instruments, as they shall be where one is given generally and the other for an express purpose, or where one reason is assigned for the former, and ano- ther for the latter, or where the legacies are not of the same nature, as where an annuity and a sum of money is given, (b) or two annuities of the same amount, the one payable quarterly, and the other half yearly; (c) or two annuities of different amounts, the one given by the will payable out of real estate, the other by a codicil payable out of personal estate, (rf) In like manner it may be collected from the con- text, whether the testator meant a duplication or a mere repetition of a first bequest: and his intention, has been inferred from very slight circumstances, (e) III. Extrinsic evidence is always admissible on this subject. Whether the testator, by giving two lega- cies, did or did not, intend the legatee to take both, is a question of presumption, which will let in every species of proof. Hence if the testator after making (a) 1 Bro. Ch. Rep. 391 - n. 1. Mas- Eden's Rep. 239. ters v. Masters. 1 P. Wins. 423. (e) Toll. Ex. 336. Duke of St. Al- (6) 1 P, Wms. 423. ban's v. Beauclerk, 2 Atk. 640. (c) Currie v. Pye, 17 Vez.jr. 462. Ridges v. Morrison, 1 Bro. Ch, (d) Wright v. Lord Cadogan, 2 Rep. 521. 204 LEGACY PAYMENT OF DEBTS. [BOOK HI. the will and before the date of the codicil, had an in- crease of fortune, that circumstance has been held to prove that he intended an additional bounty, (a) Under certain circumstances, a legacy is regarded in the light of satisfaction of a debt. On this point also the intention of the testator is the criterion. (6) It is a general rule that a legacy given by a debt- or to his creditor, which is equal to or greater than the debt, shall be considered as a satisfaction of it. (c) But this is a mere rule of construction, and the courts in a variety of instances have denied the ap- plication of it, where they have been able to collect from the will circumstances to repel the presumption. (d) As where it contains an express direction for the payment of debts, (e) or if the legacy be less than the debt it has been held not to go in discharge nor even diminution of it. (/) A legacy shall not be considered a satisfaction, if it be conditional or depend on a contingency, for it shall not be supposed that the testator intended an uncer- tain recompense in satisfaction of a certain demand: (g) nor where the legacy is not equally beneficial with the debt in one respect, though it may be more so in another-, as where the legacy is for a greater amount, but the payment of it is postponed for however short a period: (A) Nor unless it be equally beneficial in (a) Toll. Ex. 336. Masters v. Mas- 410. ters, 1 P. Wms. 424. (/) Cranmer's case, Salk. 508. (6) C'ulhbert v. Cuthbert, I Salk. Hawes v., Warner, 2 Vern. 478. 155. 2Foab. 332. Eastwood v. Vinke, 2 P. Wms. (c)lP. Wms. 409. n. 1. Talbot v. 616. Duke of Shrewsbury, Free, in (g-) 2 Fonbl. 331. Prec. Ch. 394. Chan. 394. Sefle v. Wood, 2 P. 2 Salk. 508. Wms. 132. (A) Pre. Cha. 236. 2 Atk. 300. 1 Br- (d\ I Pr. Wms. 409. n. 1. Ch. Rep. 129. (e) Chancey's case, 1 Pr. Wms. CHAP, iv.] LEGACY PAYMENT OF DEBTS. 205 amount, certainty and time of enjoyment, with the thing, contracted for: (a) Nor if the debt were an open or running account, of which the testator could not tell on which side the balance'was; (b) Nor if the debt were contracted after the making of the will in which the legacy is given, (c) Parol declarations by the testator may be given in evidence to repel the presumption of the satisfac- tion of a debt, by the bequest of a legacy of a greater amount, even where such declarations were not con- temporaneous with, but subsequent to the making of the will; and although the expressions in the will may afford an inference in favour of the presumption. But in all cases the legacy shall be construed as a satisfaction in case there be a deficiency of assets, (c) Where a legacy is decreed to be in satisfaction of a debt, the court always give interest from the testator's death. (/) Although generally a devise of land is not a satis- faction or part performance of a debt or agreement to settle money, yet if the contract authorises such a mode of making satisfaction, it will be so decreed though it is not stated in the will to be in satisfation. (g) And if the devisee dispose of the land devised, though by the will which cannot pass real estate, yet it is evidence of the acceptance of the land in satisfac- tion or in part performance, (h) (d) Blandy v. Wedmore, 1 P- Wms. (e) Toll. Ex. 338. 324, 409, n. 1. Toll. Ex. 337. 2 (/) 3 Atk. 99. Fonb. 332, n. o. (g) Bryant v. Hunter, et. al. C. C. (6) IP. Wms. 299. April, 1811. Ms. Rep. Whart. (c) 2 Fonbl. 331-2, 2 Salk. 598. Dig. 1. 611. (d) Wallace v. Pomfret, 11 Vez. (*) Ib.Ib. 612. Jr. 542. 06 LEGACY PAYMENT OF DEBTS. [BOOK m. A testator who was indebted to his sons A and B, in a sum equal to about fourteen hundred dollars, be- queathed to A some small specific legacies, and one- fourth of the residue of his estate, after certain devi- ses and legacies. The will further declared, that " whereas my son B is indebted to me in sundry sums advanced for his benefit, my will is that all his debts to me be cancelled, and I bequeath to him the sum of five hundred dollars and no more." At the time of the testator's death, B was separately indebted to him in the sum of ten thousand dollars and upwards, and had previously received from the testator a gift of stock to the value of six thousand dollars. The testa- tor left real and personal estate to the amount of two hundred and fifty-five thousand, it was held that the bequest was not a satisfaction of the debt due by the testator to his sons, (a) On the other hand if the legacy be left to the tes- tator's debtor the debt shall be deducted from the le- gacy, for the legatee's demand is in respect of the tes- tator's assets without which the executor is not liable, and therefore the legatee in such case is considered to have so much already in hand, as the debt amounts to, and consequently to be satisfied pro tanto. (b) A, who had charge of the affairs of B, and had some accounts with her, borrowed one hundred and fifty pounds: B died after making a will, in which she bequeathed to A two hundred pounds in real specie, provided he brings no account against me and my es- fo) Byrne et al. v. Byrne et al. (&) 2 P. Wms. 128^ 3 Sergt. and R. 54. OHAP. iv.] ABATEMENT OF LEGACIES. 207 tate, &c. It was doubted whether a bequest operated as a release of the bond, (a) If the testator bequeath to his debtor the debt, this being no more than a release by will, operates as a legacy, and is assets subject to the payment of the tes- tator's debts, (b) In case the assets be sufficient to answer the debts and specific legacies, but not the general legacies, they are subject to abatement in equal proportions j but in such case, specific legacies do not abate, (c) And the act of assembly of March 1772, s. 2. (d) in affirmance of the common law, declares, that where there are assets in the hands of any executors or ad- ministrators with the will annexed to discharge all the debts of the testator, with an overplus not suffi- cient to discharge all the legacies which may be given, an abatement shall be made in proportion to the legacies, unless it be otherwise provided by the will. A sum of money bequeathed by the testator, in satisfaction or recompense of an injury done by him, does not abate more than a specific legacy, (e) But a legacy though devised to be paid in the first place, shall abate, if the fund be insufficient for the legacies, (/) unless perhaps it be a provision for the wife, (g) A personal annuity being a legacy of quantity is sub- ject to abatement, (h) If A devise specific and pecuniary legacies, and direct that such pecuniary legacies, shall come out of (a) Massey et al. v. Learning, 4 (e) 2 Fonb. 377. Dall 123. (/)'b. 378. Brown*. Allen, I (b) Ryder v. Wager, 2 P. W m . 332. Vern. 3 1 . (c)2 Fonbl. 374. 2 Black, 513- () 2 Vez. 417. Lewin v Lewin. Clifford . Burt, 1 P. Wins. 679- (A) 3 Atk. 693. 2 Vez. 417. Sed. (d) 1 Sin. L. 383. Vide 1 Vez. 133. 08 ABATEMENT OF LEGACIES. [BOOK in. his personal estate, if there be no other personal estate than the specific legacies, they must be intended to be subject to those that are pecuniary, otherwise the bequest to the pecuniary legatees, would be alto- gether nugatory, (a) In case of a deficiency of general assets, that is to say, of assets to pay debts, specific legacies, although not liable to abate with the general legatees, must abate in proportion among themselves, (b) Where the vendor of an estate would have ab- sorbed the personal assets in payment of his purchase money, which was directed by the will to be paid by the executor, a rateable contribution was decreed, as between the devisee of the estate and the legatees and annuitant, under the will, (c) Where specific legacies are carved out of a specific chattel, and it proves insufficient, such legacies must abate proportionately among themselves." (d) As the specific legatee does not contribute, except in cases of deficiency, for the payment of debts or specific legacies, so, he is not entitled to contribution - 3 and if his legacy be lost, mislaid, or destroyed, he must abide by his misfortune, (e) Where a legacy was bequeathed under the follow- ing restriction, " It is my will and desire, that if the personal estate and the produce arising from the real estate, of which I shall die seized and possessed, shall not be sufficient to answer the several annuities and legacies, they shall not abate in proportion, but the (a) Free. Chan. 390. 1 P. Wm. 265, (c) Headly v. Redhead. Cooper. 422, 462, 675. 2 P. Wms. 25, 296. Rep. 50. (6) 2 Fonb. 377. note q. 2 P. Wins, (d] Vid. 2 Vez. 563. 382. 1 P. Wms. 403. 4 Mass. T. (e) Hinton v. Pink, 2 P. Wras. 540. R. 63,2. CHAP, iv.] ABATEMENT OF LEGACIES. 209 whole of such deficiency, if any there be, shall be de- ducted out of the said sum of fifteen hundred pounds, by me herein before bequeathed, &c." If the estate of the testator is sufficient at his death, but becomes in- sufficient afterwards, on account of the insolvency of the executor, the legacy restrictively bequeathed must be applied to make up the deficiency, the words "the personal and real estate of which I shall die possessed," being equipollent to the words " all my real and personal estate," and therefore fixing no time when the insufficiency is to be tested, that time is when the will is to be carried into execution by an application of the funds to the object, (a) And when a specific pecuniary legacy is given to the same person to whom the residuum is given, and on the same terms, it assumes the character of a re- siduary bequest, and the testator cannot be under- stood as having intended to give it any preference over the residuum, (b) The legatees are not only bound to abate, but if they have been paid their legacies, they are bound to refund them, or a rateable part of them, in all cases of a deficiency of assets for the payment of debts. By the above recited act of 1772, (c) s. 4, it is pro- vided, that no suit shall be maintained for a legacy until reasonable demand of the executor or adminis- trator with the will annexed, and an offer made of two sufficient sureties, who shall become bound in double the sum of the legacy given, where the lega- cy is ascertained by the will, and where not, in dour (a) Silsby et al. v. Young. 3 Cranch. (6) Ib. 264. (c) 1 Sm. L. 3.83. 210 REFUNDING OF LEGACIES. [BOOK HI. ble such sum as the legatee shall claim, with condi- tion, that if any part or the whole thereof, shall at any time after be wanting to discharge any debt or legacies, which there are not other assets to pay, that then the legatee will return his legacy or so much thereof as shall be necessary for the payment of the said debt or proportional part of the said legacies. And if the executor or administrator, will not accept of such bond the legatee must file it with the clerk of the court, before obtaining process against the exe- cutor or administrator. But if the deficiency be known at the time of pay- ment, the payment voluntary, and no bond taken, the executor cannot maintain suit against a legatee for a proportionate return, (a) If the assets were origK" nally deficient, and the executor pay one of the lega- tees either voluntarily or by compulsion, the other le- gatees may make him refund in proportion. But if the executor had at first enough to pay all the lega- cies, and by his subsequent waste, the assets became deficient, such legatee shall not be compelled to re- fund, but shall retain the benefit of his legal dili- gence, in preference to the other legatees who ne- glected to institute their suit in time. (6) Nor is a legatee bound to refund' at the suit of the executor, unless the payment by him were compul- sory; (c) or unless the deficiency were created by debts which did not appear till after the payment of the legacy, (d) In either of which cases, the execu- te) Toll. Ex. 341. 2 Vez. 194. 2 Wms. 446. Toll. Ex. 341. Vern. 205. 1 P. Wms. 495. n. ]. (c/ 2 Vern. 205. 2 P. Wms. 44ff. (rf) ] Ch. ca. 136. (6) Edwards v. "Freeman. 2 P. CHAP, iv.] DISTRIBUTION OF PERSONAL ESTATE. tor as well as creditor, may compel the legatee to refund the legacy; for an executor who pays a debt out of his own purse, stands in the place of a credi- tor, and has the same equity as against such legatee. SECTION VI. Of the Distribution of Personal Estate. When the executor has paid all the debts and all the legacies abovementioned, he must in the last place, pay over the surplus or residuum to the resi- duary legatee; (b) or if he be dead, to his represen- tative. (c) If the residuary estate be devised to jointenants, and one die in the life time of the testator, or after the testator and before severance of the jointenancy, it will survive to the others, (rf) But if it be given to A, B, C, as tenants in common, on the death of one of them in the life time of the testator, his share shall not go to the survivors, but shall devolve on the tes- tator's next of kin, according to the statute of dis- tribution, as so much of the estate remaining undis- posed of by will, (e) So if a third of the residuum be devised to each of three persons, and one of them die in the testator's life time; (f) or if the devise be revoked as to one of such residuary legatees, the consequence shall be the same. (a) 4 Bac. ab. 428. Toll. Ex. 342. (e) Toll. Ex. 343. Bag-well v. Dry, ib) 3 Bl. Com. 514. 4 Bac. ab. 428. 1 P. VVms. 700. Crag v. Willis, (c) Carth 52. Brown v. Farndell. 2 P. Wms. 529. (d) Webster v. Webster. 2 P. Wms. (/) 2 P. Wms. 488. 1 P. Wms. 700. 347. (g>) 6 Bro. P. C. 1 Toll. Ex. 343. DISTRIBUTION OF PERSONAL ESTATE. [BOOK in. If there be no residue, the residuary legatee can claim nothing, (a) and in no case shall the other lega- tees abate, unless there have been a devastavit by the executor, when he shall come in pari passu with the other legatees, (b) If there be no residuary legatee, the residuum shall go to the next of kin of the testator. It was once held, but it seems erroneously, that the execu- tor here as in England, took the undisposed residue beneficially, unless from the will or circumstances he appeared to be a trustee, (c) But it is now the settled law of the state, that the executor is the trus- tee for the next of kin. (d) The executor in all cases, except where he is a debtor of the testator, is looked upon by the law of Pennsylvania in the same light as an administrator, as a mere trustee and agent for the creditors, legatees, and next of kin, who is entitled to compensation for the services which he renders, (e) It is of course, the duty of the adminis- trator to make distribution of the residuum among the next of kin, after payment of the debts of the dece- dent. If there be minor children, it becomes the duty of the executor or administrator, imposed by the act of seventeenth March, 1713, s. 4, to place the money of such minors out upon interest under the direction of the Orphan's Court, upon such security as the court shall allow; and if such security taken bona fide (a) 1 Bro. ch. Rep. 478. 580, 584, 575. (6) 1 P. Wms. 305, 306. note 1 and (d) Wilson v. Wilson, 3 Binn. 557. 2. Act of Ass. 7 Ap. 1807. 4 Sm. L. (c) Boudinot v. Bradford, 2 Dall. 402. 268. Grasses v. Eckart, 5 Binn. (e) Wilson v. Wilson, 3 Binn. 50Q-. CHAP. IT;] DISTRIBUTION OF PERSONAL ESTATE. 213 and without fraud shall prove insufficient, the loss shall be the minor's; but if no person can be found willing to take the money at interest, on such secu- rity, the executors or administrators shall be respon- sible for*the principal only, until it can be so put out at interest, (a) The day of payment of the money so to be put out at interest, at any one time shall not exceed twelve months from the date of the obligation or other secu- rity given for the same, and so toties quoties as the money shall come to the hands of the executor or administrator. (6) And section sixth of the same act provides that the executor or administrator shall not be liable to pay interest, but for the surplusage of the decedent's es- tate in their hands, when the accounts of their admin- istration are, or ought to be settled, (c) The time at which such accounts ought to be set- tled is one year after the granting of the letters of administration, or letters testamentary. This time is fixed for the executor by his oath at the time of pro- bate, and for the administrator by the first Sec. of the intestate Act of 1794, and by the oath he takes on receiving the letters of administration. If after that time the executor or administrator suffer money in their hands to remain unemployed, they are respon- sible for interest: much mbre so, if they use the money for their own purposes, (d) And the law will presume that he has so used it, unless he satisfacto- rily show the contrary, (e) But he cannot be required (a) 1 Sm. L. 81. (d) Fox. v. VVjlcocks, 1 Binn. Rep. (6) Ibid. 194. (c) Ibjd (<) Ibijl. 214 ADVANCEMENT. [BOOK in. to render an account of his disposition of the money upon oath, (a) If the executor or administrator put the money to interest on securities unsanctioned by the court, which fail, he is clearly responsible for its loss. He can find his safety, only in the approbation of the court, as required by the act. If an administrator incur interest and costs, by ne- glecting or refusing to pay a just debt, having assets in his hands, he will be charged interest thereon; or, in other words, he will not be permitted to charge the interest and costs against the estate. (6) SECTION VII. Of Advancement. Before making distribution, it is proper for the ad- ministrator to inquire whether any child of the in- testate have been advanced by the parent. For by the ninth section of the act of 1 794, if any child have any estate by the settlement of the intestate, or be advanced by the intestate in his life time, by portion equal to the share which shall be divided and allot- ed to the other children, and other descendants, whether by lands or personal estate, such person shall have no share of the estate, of which the intes- tate died seized or possessed: and, in case a child have any estate by settlement from, or have been ad- vanced by the intestate in his life time, whether the said portion or advancement be in real or personal property, but not equal to the share which will be due to the other children or descendants, then so much (a) Fox v. Wilcocks. 1 Binn. Rep. (6) Callaghan v. Hall, 1 Serg. & 194. . R. 241. HAP. iv.] ADVANCAMBNT. of the surplusage of the estate of the intestate shall be given to such child, as will make the estate of all the said children or descendants to be equal: except- ing, that where the issue taking, shall not be of equal degree of kindred to the intestate, the several de- scendants taking by representation, to inherit the one person solely, and several persons, as tenants in com- mon in equal parts, such share only as would have descended or been distributed to his, her, or their parent or ancestor, if such parent or ancestor had been then living, (a) The statute does not devest the child of any pro- perty which has thus been given to him, however unequal it may have been, or how much soever it may exceed the residue; he may, if he pleases keep it all: if he be not contented, but would have more, then he must bring what he has before received, as the law expresses it, into hotchpot. (6) In England, the provision in the statute, applies only to the case of actual intestacy; and where there is an executor and consequently a complete will, though the executor may be declared a trustee for the next of kin, they take as if the residue had been actually given to them, and a child advanced by a father in his life time, cannot be called upon to bring her share into hotchpot, (c) And this would seem to be the most equitable course here. For the testamentary distribution of his property by the decedent is either equal or unequal. If it be the former, an equal distribution of the effects (a) 3 Sm. L. 147. (c) Toll. Ex. 376. 14 Vez. Jr. 324, (6) Toll. Ex. 37R. Walton v. Walton. ADVANCEMENT. [BOOK. in. of which he died intestate would be consonant with the spirit of the act; if the latter, it might frequently happen that the child who had received from a parent, the greater portion during his life, would receive under the provisions of the will much the smallest portion of the parent's estate, and yet would be depri- ved of participating in any property, undisposed of by the will, without bringing his share into hotchpot, which could not be required of those who had received by the will, a greater share. Besides there is a strong presumption, that, the de- cedent sanctioned his former gift, since he has not di- rected it to be brought into account, when making an ultimate disposition of his property among his chil- dren. But the letter of the act of 1794, sec. 3, is opposed to this construction; as the same rules for distribution are given for a partial as for general intestacy. Nay, from the terms of the law, the legislature seem to have contemplated specially the case of partial intes- tacy. The words being, " That the remaining part of any lands, tenements and hereditaments and person- al estate, of any person deceased, not sold or disposed of by will, nor otherwise limited by marriage settle- ment, shall be divided and be enjoyed," &c. And therefore the arguments, drawn from expediency and apparent justice, must perhaps give way to the clear expression of the law. To determine what shall be an advancement we must resort to the decisions under the English statute; upon this subject. A provision made for a child by settlement, wheth- CHAP, iv.] ADVANCEMENT. 217 er voluntary or for a good consideration, as marriage, (a) or blood; a charge upon land; (6) the use of fur- niture for life; (c) money; (d) a portion payable in fu- ture; (c) a portion that is contingen , if the contingen- cy is to happen within a reasonable time, (/) are ad- vancements pro tanto. But small inconsiderable sums of money, trivial presents, as a watch or wedding clothes, (g) money expended by the father for the child's maintenance, for putting him an apprentice, or for his education, shall not be deemed an advancement, (h) Nor a pro- vision made by the father, by his will for his child, in a case where a testator dies intestate as to part of his estate, (i) Still less shall property given or bequeath- ed to a child by any other person be considered as an advancement, (k) A child shall bring in his advancement only among the other children, but no benefit shall accrue to the widow. (I) If a child advanced die in his father's life time leaving children, they shall not receive his share unless they bring in his advancement, (m) An advancement in lands or personal estate, is to be estimated according to its value, at the time of the advancement and not at the time of the father's death. () It is only in case of intestacy, that a child ad- (a) Sampson v. Sampson, 1 Sergt. Collier, 3 Atk. 528. & R. 333. 2 P. Wms. 440, 444. (h) 2 P. Wms. 449. (6) I old. 441. (i) Ib. 440. (c) Comm. Dijf. Adm. H. Fitzh. (k) Bac. ab. tit. admin. Swinb. p. 3 : '285. s. 18. ( CHAP, v.] SALE OF REAL ESTATE. 229 brought to assent to the decision. I have no hesita- tion in asserting, that in the counties where I have practised, at least nineteen out of twenty sales under orders of Orphan's Courts would be avoided, should the doctrine be established," and per TILGHMAN C. J. 2 Serg. and R. 7. (a) " I have lately examined the ma- nuscript of judge Smith, who sat with C. J. M'Kean in that cause, and it appears that the court relied not on the non settlement of the administration account,, but on other circumstances, and particularly on this, that before the purchaser under the decree of the court had paid his money, the administrator settled his account, by which it appeared, that there was a surplus in his hands after paying all his debts. So that this case of Larimer v. Irwin, contains nothing to sanction the principle, that the settlement of the administration account is necessary, previous to a de- cree for sale of the intestate's land." In practice, it is not customary to petition the court for an order to sell the real estate for the pay- ment of debts, until the personal assets are exhaust- ed. An account is then settled with the register, and a copy thereof together with a schedule on oath of the debts unpaid, is presented to the Orphan's Court. The account, of course, contains the inventory and appraisement of the estate, which have been filed with the register. But it is frequently convenient, especially in the country, where the terms of the Orphan's Court are held quarterly, to procure an order for the sale of real estate before the personal assets are paid away. (a) Huckie v, Phillips. 30 SALE OF REAL ESTATE. [BOOK nr, In such case, the letter of the act will be strictly pur- sued by laying before the court, the inventory and appraisement (made upon oath) and a statement (also upon oath) of all the debts of the intestate, which shall have come to the knowledge of the administrator. Upon a petition (a) containing a description of the property intended to be sold, and an account of the circumstances of the estate, supported by the forego- ing vouchers, (b) the court will decree the sale of such estate, or so much thereof as it may deem ne- cessary, and will direct the place where, and the time when, (not less than ten days after public notice,) the estate shall be exposed to sale, and will direct the administrator to make return of his proceedings therein, at the next stated Orphan's Court. In prac- tice the time and place of sale is most generally agreed upon between the party applying and the clerk of the court, and notice thereof is given by ad- vertisements put up in the most public places of the county and published in one or more newspapers nearest to the premises ordered to be sold, (c) A copy of the order signed by the clerk, under the seal of the court, is delivered to the administrator. If the order of the court be not adhered to, with respect to the time and place of sale, and the notice directed to be given, it will be error, and the sale will be set aside if application be made to the court before confirmation. The sale having been made pursuant to the or- der, the administrator makes his return to the court in writing, stating that, in pursuance of the order, he (a) Appendix No. 17. (c) Appendix No. 1Q. (6) Appendix No. 18. CHAP, v.] SALE OF REAL ESTATE. has sold the estate to A B for dollars, he be- ing the highest and best bidder, and that the high- est and best price bidden for it; and prays that the sale so made should be confirmed, (a) And though the return should be regularly made at the next court after sale-, yet if returned to another court, it seems to be good. Rahm v. North, 2 Ye?tes. 1 18. Whereupon if there appear no objection, the court confirms the sale nisi: that is unless exceptions be filed, on or before the next stated Orphan's Court day, thus giving to all interested ample time to make objections if any exist. If for want of buyers, or any other cause, the pro- perty be not sold at the time and place mentioned, the administrator may adjourn the sale, but not beyond the day of the succeeding court. (6) If it be not then sold, report of the proceedings are to be made to the Court; and if it be intended to make further trial to sell, a new order is procured. A practice prevails in the first judicial district, re- lative to the sale of real estates by executors, admin- istrators and guardians; concerning the legality of which, there are many doubts. If at the sale an ade- quate price, in the opinion of the executor, &c. be not bidden for the property, he bids above the last offer and it is stricken off to him: who considering himself as trustee for the estate, does not hold this to be a purchase of the property, but a bidding in, or a refusal to sell at the price bidden. This bidding upon the principles laid down by the Court, in the case of Guier v. Kelly, (b) must be at the (a) Appendix No. 20. (c) 2 Bian. 299, 300. (b) Rahm r. North, 2 Yeates 117. SALE OF REAL ESTATE. [BOOK m. risk of the executor. He will be chargeable for any loss sustained. For if a trustee purchase an estate entrusted to him to sell, his purchase will be decla- red void and a new sale ordered, (a) If the second sale produce more than the first, he must account for it, but if less he is chargeable with the difference. He is not suffered to say that the estate was not worth what he agreed to give for it, (6) having perhaps prevented some one else from purchasing. But there is this distinction between the case above put, and that of Guier v. Kelly: in the former the ex- ecutor or administrator, buys expressly for the estate, and in the latter the executor bought avowedly for himself. And it would be dealing hardly with a trustee, who, in the exercise of his best discretion to benefit the trust, does it an unintended and fortuitous injury, to hold him responsible. On the other hand, however, it may be urged, that when the biddings for an estate are about its value, which value is best ascer- tained in an open market, it is the folly of an execu- tor to place an extraordinary value thereon, and by set- ting up his own judgment against that of others, to in- duce a loss to the estate: and that if the biddings be be- neath its worth yet the loss will not be the executor's. Losses have frequently been sustained by refusal of the executor or administrator to sell at a price bid- den, but they will bear no comparison with those which must have been incurred, had the executors sold, at all times, at the highest price offered. It would therefore seem to be the true policy of the law, in this as in other cases, to hold the trustee answera- ble for honesty and sound discretion only. (a) 2 Yeates 1 17. 2 Binn. 300. (6) Guier v. Kelly. 2 Bian. 299. 300.. CHAP, v.] SALE OF REAL ESTATE. 233 The law is clearly settled, that a person entrusted to make a sale of property, cannot become a pur- chaser, without the consent of the parties for whom he is interested, (a) And consequently, an executor or administrator cannot sell to Jhimself. There are two decisions however, in our courts, which seem to militate against this principle. In Rham v. ./Vorf/i, (6) the court intimates, that the exe- cutor might derive a title through the intervention of a third person-, that is, as I understand it, that had the title been made to A, and from him to the adminis- trator it would have been good. In the case of Eickelberger v. Barnitz, (c) which was a sale by three executors to certain persons who were trustees of a company, of which one of the executors was a partner; the court held, " that where two or more executors sell lands openly and fairly, and a stranger purchase for one of them at a full price, such sale is not necessarily void. That there was a solid distinction in reason, between this case, and a purchase made by a single executor. That there were proper checks on the coexecutor and it was not in his power to conceal a fraud if one was intended. The coexecutor having become a purchaser, was mat- ter of evidence respecting a fraud, but not merely of itself a fraud to vacate the contract. The fraud must be judged of by a fair contrast of all the circum stances, and it is seldom indeed, that two cases ex- actly agree." (a) Rham v. North, 2 Yeates, 117. La- (6) 2 Yeates, 17. zarusv. Brysen, 3 Binn. 54. Provost (r) 1 Yeates, 307. v. Gratz, 1 Pet. Rep. 368. 234 SALE OF REAL ESTATE. DBOOK HI. From these cases it may be inferred, that a sale by an executor or administrator to himself, by the in- tervention of a third person would not, be ipso facto void, but that its validity would rest upon the cir- cumstances attending it; that, if the circumstances were fair and honest, the sale would be good. Yet the weight of authority and principle is against this deduction. But whatever may be the effect of such sale be- tween the trustee and his cestuy qui tritst, it is clear, that it shall not be disturbed to the prejudice of a subsequent bona fide purchaser-, (a) as where the de- fendant in ejectment made title under a judgment against A, upon which judgment the land was sold by venditioni exponas, and was conveyed by the sheriff to B, the agent of the sheriff, who soon after reconveyed to the sheriff for the price at which he B bought it, and was by the sheriff sold to C, a bona Jide purchaser for a valuable consideration and with^ out notice of any secret agreement between B and the sheriff It was held, that though this sale was void, as between the representatives of the debtor and the sheriff, where he was purchaser without the debtor's consent, yet it could not be disturbed to the prejudice of the subsequent bona Jide purchaser without notice, (b) What was the effect of a sale of the lands of an intestate, by order of the Orphan's Court, upon the lien of his debts, appears to have been first mooted in the case of Graff v. Smith's exrs. I Dall. 481. Certain estates of the intestate had been sold for (a) Lazarus v. Dry-son, 3 Dion. 54. (6) Ibid. OHAP.V.J SALE OF REAL ESTATE. 235 the payment of debts, and the proceeds had been wasted by the administrator: actions were subsequent- ly brought by the creditors of the intestate, judgments obtained, and executions issued, which were levied upon the lands not sold by order of the court. And one of the questions in the case was, whether the purchasers under the order of the Orphan's Court were bound to contribute. The administrator who was also the eldest son of the intestate, had sold a portion of the lands which had been allotted to him in distribution. Shippen President, in delivering the opinion of the court, said, " These purchasers/I acknowledge, ap- pear to me to stand in very different light from the voluntary purchasers from the eldest son. The law for the benefit of the families and creditors of per- sons dying intestate, has vested the Orphan's Court with power to direct the sale of certain parts of the intestate's real estate for the payment of his debts. The same law has directed the means of information to be given to the court, to prevent imposition, and dismemberment of the real estate. The power given to the Orphan's Court by this act is very great, and ought to be discreetly exercised; but when the sale is made under their order, it is certainly a good one. The administrator is vested with as complete a pow- er to sell the specified part of the real estate, as he has by the common law, to sell the personal; and the purchasers from him ought to hold as securely in the one case as the other. To say, that because the ad- ministrator is to exhibit upon oath an account of the debts, therefore the purchasers are to look to the 236 SALE OF REAL ESTATE. [BOOK in. payment of those debts, is in effect, saying that the purchasers are to look to the legal exercise of the power vested in the Orphan's Court, who. may, un- questionably, impose such terms upon the adminis- trator, as are necessary to secure to the creditors and children, the consideration money arising from the sales; and such security has in fact, been required in many instances by the Orphan's Courts in Pennsyl- vania. Besides, if the purchaser is to look to the payment of the debts, he must likewise look to the other objects for which the land is to be sold; that is, the education and maintenance of the children, and the proper improvement of the residue of the estate ; which no law founded in reason could require." B^ the twenty-first section of the act of 1794, the law laid down in this case was confirmed and estab- lished, so far as it relates to the discharge of the lien of the testator's debts, from lands sold by order of the Orphan's Court, yet a question afterwards arose, whether the act of 1794, embraced the lien of judg- ments rendered against the testator in his life time. This was considered and settled in the case of Mo- liere's lessees v. JVoe. 4 Dall. 450, in which C. J. Tilghman remarked, " That if we consider the plain meaning of these words, (the 2 1st sec. act 1794) the lands thus sold are discharged of the lien of judg- ments. I think no man learned or unlearned would un- derstand the word debts as excluding judgments. The counsel for the plaintiffs do not contend so; but they argue that although a judgment is a debt, (taking the word debt in* its largest signification,) yet to avoid great injustice and inconvenience, the legislature CHAP, v.] SALE OF REAL ESTATE. must be supposed to have intended only those debts which were not a lien in the life of the intestate. The avoidance of injustice and inconvenience is a most de- sirable object, and the court will always strive to attain it. But they must not overleap the bounds of their duty. They have power to construe laws, but not to make or alter them, and where the meaning of the legislature is plain, the court have no right to re- gard inconveniences. General expressions have sometimes been construed so as to be restrained to particular cases; but to authorise such construction it must appear, that the use of the words in their gene- ral sense would produce absurdity, contradiction, or such flagrant injustice, as it could not be supposed the legislature meant to sanction. Upon a careful ex- amination of the act in question, I cannot see that the discharge of the lands from the lien of the judgment in the hands of the purchaser, will produce any such con- sequences. No inconvenience will result if the Or- phan s Court and the administrator do their duty. The land will certainly sell better, for being discharged from liens, and it makes no odds to the judgment creditors by what person they are sold-, provided they are sold fairly, and the proceeds are faithfully applied. I am clearly of the opinion that they must be applied to the payment in the first place of the liens which existed in the life time of the intestate according to their res- pective priority. There is no intimation in any part of the act to the contrary, and to say that judgment creditors should not have a preference in the applu cation of such proceeds would produce this monstrous injustice that those creditors would preserve the ben- 238 SALE OF REAL ESTATE. [BOOK in. efit of their lien in case a man made a will, but lose it if he happened to die intestate. Before I dismiss this subject I will give my opinion concerning debts due by mortgage, which were men- tioned in the course of the argument. I conceive them to stand on a different fooling from judgments, because the mortgagee is strictly speaking, the own- er of the land and may recover it in ejectment. The mortgagor, has no more than an equity of redemption: Nor have the Orphan's Court power to sell a great- er estate than he is lawfully possessed of. It will be seen that in the 14th section of the act where the or- der in which debts are paid is designated, there is no mention of mortgages, which evidently shows that the mortgagee looked to the land for his security. The question now decided is important to the pub- lic; particularly as different opinions have been en- tertained concerning it. As it must henceforth be considered as settled, I make no doubt but the Orphan's Courts in the several counties will use proper vigilance to prevent injury to j udgment creditors. They have full power to see that sales are made fairly and with due notice, and to exact security from the administrator in proportion to the increased funds which may come to his hands. These precautions assisted by the attention of the creditors to their own interest, will tend, I flatter myself, to produce sales to the greatest advantage, and the faithful application of the proceeds." This decision so far as it relates to the effect of judg- ments, after sale by order of Orphan's Court, is un- questionably in unison with the spirit and letter of CHAP, v.] SALE OF REAL ESTATE. 239 the act of 1794. But, with great deference to the authority of the court, it may be questioned whether its opinion as to the tenacity of the mortgage is free from objection. The lien of the mortgage after such sale was not a point in the case, and though the court volunteered its opinion it is possible it was not fully argued. Originally the mortgagee may have been deem ed the legal owner of the estate at common law. But equity and law have long considered, the mort- gage a pledge for the payment of money, or the per- formance of some specific act. And though the mortgagee obtain possession he is but a trustee for the mortgagor, and must account with him for the profits of the debt and interest. This debt therefore is but a lien, and the deed of mortgage the evidence of its existence. The ordinary remedy, and perhaps the oiily one contemplated by the legislature, is that by scire facias, judgment and execution, on which he obtains his money from the pledge, in case purchasers cannot be found, he may obtain an exclu- sive and absolute title to the pledge itself. A mortgage then being but a debt, secured by the pledge of land, why should not the land be re- leased when sold by an order of the Orphan's Court. The mortgage can bind only the interest of the mort- gagor in the land; if there be a prior judgment, it may be sold under it, and be released from the mort- gage, (a) Why then should not this be the ease on a sale for the payment of debts? Is there any reason (a) Febiger v. Craighard, 2 Yeates 42. act of Assembly, 1705. sec.. 4. 1 bin. L. 59. Carkliuffv. Anderson, 3 Binn. 5. 240 SALE OF REAL ESTATE. [BOOK in. why the mortgage should stay or incumber a sale for the payment of debts at the instance of the debtor's representatives, when it has no such operation where the sale is at the instance of the creditor? Is it, that the pledge will be taken out of the hands of the lender, by such a sale? So it is, by a sale by virtue of an ex- ecution on a prior judgment, or on sci. fa. on the mortgage. But if the pledge be taken away the value of it, or the sum for which it was given, is returned to the lendor, and by becoming a purchaser, Jie may hold the pledge still, whether it be really worth more than he loaned on it, or less. The words of the act of 1794, are sufficiently gene- ral, and without straining, embrace debts due on mortgage. " No lands, tenements and hereditaments so as aforesaid sold by order of the Orphan's Court, shall be liable in the hands of the purchaser for the debts of the intestate. 5 ' The meaning of the word " debts'' cannot be mistaken; it is the incumbrance which fetters the property. What is the object of the law? to free the intestate's estate from the bur- den of his debts, in the hands of the purchaser to enable the administrator to sell the estate with great- er facility, and on better terms, and to pay more speedily the intestate's debts. And as the whole va- lue of the estate comes into his hands, and the debts are to be paid according to their priority, the mort- gage creditor and every other creditor are in precise- ly the same situation, as if the estate had been sold under the first judgment or mortgage. Any other construction of the act must fetter the alienation of property, which the genius of our , government ab- hors. CHAP, v.] SALE OF REAL ESTATE. 241 The vigilance which the supreme court presumed the Orphan's Courts would exercise over the sales of real estate, and the conduct of administrators, by ex- acting proper security, is now made a duty by statute passed twenty-sixth of March, 1808, (a) which pro- vides, that, " Where the Orphan's Court of any county hath heretofore decreed or hereafter may decree a sale of an intestates real estate, or part thereof by the ad- ministrators, the said court is hereby authorized to re- quire and take sufficient sureties from such adminis- trators, conditioned for the faithful execution of the powers committed to them in making such sale, and truly to account for and pay over the proceeds there- of in such manner as the said court shall legally de- cree." The terms of this act do not extend to the case of executors selling under the authority of the Orphan's Court, because until the first of April, 1811, that court had no power to decree the sale of the lands of a deceased testator. But the reason of the law extends to the case of an executor. For though he be not called upon to give security in ordinary cases, be- cause his appointment is evidence of the trust and confidence of the testator j yet as the sale of real es- tate by the order of the court, is in cases only where the power to sell has not been delegated by the testa- tor, the testator is pro tanto, an administrator, an agent selected by the law, and not by the decedent. On these principles the court of the first district have established a rule which compels executors (a) 4 Sm. L. 517. H h 242 SALE OF REAL ESTATE. [BOOK ui. selling lands by its order, to give security in like manner as administrators. By rule of June 1818, of that court, executors and administrators are to give bond with surety, in the amount of the property sold, and one-third, in addition thereto, conditioned as is required by the above reci- ted act. SECTION v. Of sale for payment of debts after final settlement of account of Executor or Administrator. The fourth case in which the representatives of the decedent have power to sell his real estate, arises under the act of first of April, 1811, section second, (a) which declares, that " whereas it frequently happens, that on the final settlement of the accounts of the es- tates of testates and intestates, the personal assets are found to be deficient, and the balance is decreed to be and remain chargeable on the real estate of the testator or intestate. It is therefore provided, that, " In all cases after the final settlement of any ad- ministration account in the Orphan's Court, if it shall appear that there are not sufficient assets to pay and sa- tisfy the balance appearing to be due and owing from the estate of tjie deceased, it shall be lawful for the said court, on the application of the executors or administrators, or any others interested therein, to make an order, that so much of the real estate of which the deceased was seized or possessed at the time of his decease, shall be sold by the executors or administrators, as in the judgment of the court, shall (a) 5 Sm. L. 258. CHAP. v.J SALE OF REAL ESTATE. 43 be sufficient to satisfy such balance; and the said court shall likewise decree in such cases, what contribution shall be made by the heirs or devisees respectively towards the payment of any debts chargeable on the real estate of any testator, either generally in the first instance, or where the land agreed to be sold, shall have been in any manner devised to any heir or devisee, after any such sale being made: and all such sales shall be had, made, and conducted, as in other cases of sales made under the decree of the Orphan's Court by the existing laws." The order to sell real estate under this act, is made only on a final settlement of the administration ac- count, exhibiting a balance due and owing from the estate. A final settlement is that which contains the dispo- sition of all the personal estate of the decedent. And when it is intended as a foundation for an order of sale, it is most generally and with great propriety ac- companied by a schedule of the debts due from the estate. This settlement is made before the register, and after due notice is sent by him to the Orphan's Court, for confirmation and allowance on some stated Or- phan's Court day, when it is confirmed nisi; that is, unless exceptions thereto be filed on or before the next stated Orphan's Court day, at which time if no exceptions have been filed, application is made by petition for an order of sale. The petition (a) should set forth, that the account of the administration of the estate has been finally (a) Appendix. No. 21. 244 SALE OF REAL ESTATE. [BOOK in. settled 5 and should refer to it, as filed in the Orphan's Court, or should be accompanied by such account, that the court may see for themselves the basis of their order, and prevent the abuses which sometimes are practised under this law, by the sale of large es- tates for small balances, that the executor or admi- nistrator may get the proceeds into his hands. The right to apply for an order of sale under this act, is not confined to the executor or administrator-, any person interested, as a creditor for instance, may make such application with the view of obtaining pay- ment of his debt. The sales of estates under this act, are conducted as under the act of 1794, the court appointing time and place. And they may be made by one adminis- trator, though there are several. The object of the law beiiig to procure a sale of the real estate to sa- tisfy the debts due from the deceased 5 it is immate- rial to the attainment of that object whether the sale was made by one or all of the administrators. The words executors or administrators, are expressions pointing out the persons to whom in general the au- thority is to be given, without intending that the court shall at all events, commit the authority to the whole of them, (a) It sometimes happens, that administrators who sell real estates of intestates pursuant to an order of the Orphan's Court, die before conveyance is made. From hence flow inconveniences, for remedy of which it is provided by the act of second April, 1802, section first, (b) that, (a) Bickle r. Young, 3 Serg. and R. 234. (6) 3 Sm. L. 500, OHAP. v.] SALE OF REAL ESTATE. " In all cases hereafter, where a sale shall be duly made by virtue of an order of Orphan's Court, ena- bling; the administrator of any intestate, to make sale of the real estate of such intestate, or any part there- of; and the administrator selling the same under such order, shall happen to die before a deed of convey- ance is made to the purchaser or purchasers, it shall be lawful, to and for an administrator, de bonis non of such intestate, when such administration shall be granted, to and for the executor or administrator of the person or persons so dying, to make and execute to the purchaser or purchasers of any such estate, a deed or deeds of conveyance for the same." And by section third; " In all cases where any administrator or adminis- trators having sold lands by order of the Orphan's Court shall die intestate, not having executed a con- veyance thereof, and no person shall within three months thereafter, be appointed administrator de bo- nis non, or apply and be appointed to administer the estate of such administrator or administrators so dying as aforesaid, it shall be the duty of the Orphan's Court of the proper county, on petition to be pre- sented by the purchaser, setting forth the original proceedings under the order of court, to direct the sheriff of the county, for the time being, to make and execute the necessary deed or deeds of conveyance to such petitioner." And by section fourth; " Every deed made in pursuance of, and agreeably to the provisions of this act, shall vest the property therein described, in the grantee, as fully and effec- tually as if the same had been made by the person or 946 CONVEYANCES BY ADMINISTRATORS. [BOOK in. persons who have sold any such estate, circumstanced as aforesaid." The letter of this act does not reach the case of a sale under the Orphan's Court, by an executor dying after sale and before deed made. And at the time of its passage, executors had no authority to sell by order of the Orphan's Court. Yet, there can be no good reason against the validity of a deed, for land so sold by an executor, made by his executor or adminis- trator, except, that, the law is not thus written. The same reasons of convenience apply to the case of the executor, as to that of the administrator, and call for legislative remedy. SECTION VI. Conveyance by Executors, #c., on the contracts of de- cedents. Executors and adminjftrators may not only sell lands in the cases above stated, but by the authority of the act of assembly thirty -first March, 1792, they may convey the premises contracted to be sold by their decedents, and bring suit for the consideration money, (a) By section first, " If any person have a written contract, or written evidence of a contract, whereby a decedent has covenanted to convey any lands to any one whom such person may represent, which contract had not been complied with, in the life time of the deceased, and no sufficient provision for the performance thereof, having been made in his life time, shall either in his own right, or as attorney, (a) 3 Sm. L. 96. CHAP, v.] CONVEYANCES BY ADMINISTRATORS. 247 agent, trustee, or guardian for another, before bring- ing action against the executors or administrators of the deceased, cause the contract to be proved in the supreme court, or in the court of common pleas of the county in which the lands contracted for shall lie: and the probate being adjudged by the court to be sufficient, the prothonotary shall endorse on or annex the same to the contract or to a copy of the evidence thereof, and certify the same, under his hand, and seal of the court; whereupon the same shall be recorded in the Roll's office of the common- wealth, or in the office for the recording of deeds of the county wherein the lands lie. Whereupon the executors or administrators or the survivors or sur- vivor of them, may present a petition to such courts respectively, praying leave to make and execute a deed conveying to the purchaser or his heirs or as- signs, the said lands contracted for, according to the true intent and meaning of the said contract: and the court having considered the prayer of the said peti- tion and the contract or evidence of contract, upon which it is founded, and having adjudged the same to be obligatory between the parties, shall make an or- der authorizing the petitioners to make such convey- ance as aforesaid, and the same being made and exe- cuted, and proved or acknowledged according to law, shall be of the same force and effect, to pass and vest the estate intended, as if the same had been execut- ed by the decedent himself in his life time." And by section second, " It shall and may be lawful for the executors or administrators of any such decedent, having a coun- 248 CONVEYANCES BY ADMINISTRATORS [BOOK in. terpart of such contract or evidence of contract for the payment of the consideration of money, for any lands or tenements agreed to be sold, but not con- veyed by the decedent, in his life time, to cause the same to be proved, and to present a petition in man- ner aforesaid; whereupon the same proceedings shall be had, and with the same force and effect, as is here- in above directed, where the purchaser or his repre- sentative shall procure such contract to be proved. But no deed shall discharge the lands and tenements therein conveyed, from the lien of the consideration money, until it be actually paid or secured according to the terms of the contract." And by section third, " If any person shall commence or prosecute an action against the executors or administrators of any person deceased; upon such contract, without first causing the same to be proved and recorded in man- ner aforesaid, and giving notice thereof to the de- fendant, and allowing him time, until six weeks after the next succeeding court, to apply for leave to exe- cute a deed for the specific performance of the con- tract, in manner afore said j such plaintiff shall not be entitled to recover damages and costs, for the non performance of such contract, if the defendant shall plead and upon the trial prove, that he was always ready, on reasonable notice to perform the same, and shall before the trial produce in court a deed of con- ve} r ance pursuant to the contract duly made and exe- cuted according to the forms required by the act." In the case of Young v. Pleasants, administrator of Pembert&n, (a) it has been decided that a party can- Co) 3 Yeates, 317. OHAP. v.] LIEN OF PURCHASE MONEY. 249 not maintain suit against the administrator or execu- tor, without first proving the contract in court, and putting it on record; though the defendant shall not have pleaded that he was always ready on reasonable notice to perform the contract-, and, that an adminis- trator with the best intentions, when the contract has been ever so fairly executed by the vendee and his intestate, who has sold, has it not in his power to make the conveyance, unless the vendee puts it in his power by proceeding regularly. SECTION VIT. Of the lien of Purchase Money. It behoves the vendee of the grantee of an ad- ministrator to look well to the payment of the pur- chase money, on the sale from the administrator. For in two cases at least, of conveyances made by administrators, a lien is attached to the land for the unpaid purchase money. According to the views of the judges of the supreme court, in the case of Kaufelt and otliers, judgment creditors of Triechler vs. Bower, these two cases are anomalous, in the law of Pennsylvania, (a) The first, is under the second section of the act of second of April, 1804, (6) by which the court is authorized to decree the estate in the premises so sold, to be transferred and vested in the pur- chaser, as fully as the intestate held the same at his decease, subject and liable to the payment of the pur- chase money, according to the terms prescribed by the court in the order of sale. , (a) 7 Sergt. & R. 64. (6) 4 Sm. L. 1 84. i i 250 EFFECT OF THE ORDER OF SALE. [BOOK in. The second is under the second section of the above recited act of 1792, by which it is declared that no deed shall discharge the lands and tenements from the lien of the consideration money, until it be actually paid or secured according to the terms of the contract, (a) This recognition of the lien of the purchase money, in these two cases by the legislature, would seem to show that the doctrine of such lien, has not been so foreign nor so odious to the public, as the court have presumed, in the case of Triechler vs. Bower, above mentioned. SECTION VIII. Of the effect of the order of sale. The system by which the real estates of decedents are sold, and title made to the purchaser, and by which they are converted into assets for the payment of debts, has been, by continued labour and care, wrought up with a considerable degree of perfection. And it is to be regretted that, the purchasers under the decrees of the Orphan's Court, are not as secure, as purchasers under the judgments of the other courts. By the ninth section of the act of 1 705, entitled, " An act for taking lands in execution for payment of debts, it is provided, that if the judgment warrant- ing an execution whereupon any lands, tenements or hereditaments have been sold, shall be reversed for any error, the lands, &c., shall not be restored, nor the sheriff's sale, and delivery thereof, avoided, (b) The propriety and justice of this rule have not been sufficient to support the sale of real estate made by (a) 3 Sm. L. 67. (6) 1 Sm. L. 7. CHAP, v.] EFFECT OF THE ORDER OF SALE. 251 the Orphan's Court, against inquiries into the pro- ceedings antecedent to the decree, and recove- ries in ejectment, in consequence of errors in such proceedings. Nor does the reason usually given for the distinction between the effect of a decree of the Orphan's Court, and of a judgment of the court of Common Pleas, seem satisfactory. The reason given is, that much irregularity and carelessness have prevail- ed in the proceedings of the Orphan's Court. But the judges of the Orphan's Court and of the court of Common Pleas are the same; and the judges who would be careless, and suffer irregularity in the one, would scarce be vigilant and regular in the other. The first reported case on this subject is that of Messinger vs. Kintner ', (a) in which the valid- ity of the decree of an Orphan's Court, unreversed by appeal, is considered. This was the case of an estate decreed to one of the parties in distribution, at an ap- praisement by four men, appointed by the court with- out the consent of parties. The party to whom the es- tate had been decreed, had married a daughter of the decedent; there was a minor son, and other minor children who were not represented; the land was ap- praised by the acre, without survey of the quantity, which was stated to be one hundred and seventy- three acres, but was in fact two hundred and seventy acres;" the plaintiff in the action defendant below, to whom the lands were decreed, had sold part to other persons, and ejectment was brought against him and his vendees. The counsel of the plaintiff in error contended, f 4 Binn. 104. 252 EFFECT OF THE ORDER OF SALE, BOOK 111. that the decree though erroneous, ought to stand, un- til reversed by the regular course of appeal, and ought not to be questioned in this collateral way. C. J. Tilghman said, " if that question was open I should think it well worthy of consideration But after the frequent decisions by which the decrees of Or- phan's Courts have been called into question in ac- tions of ejectment, I am bound to consider the law as settled. I have in my hands a manuscript note of the case of the lessee of Larimer and wife v. /new, tried before the late Chief Justice M'Kean, in the year 1798. It was then decided, that a decree of the Orphan's Court, ordering lands to be sold for the payment of debts was void, because at the time of the decree, no administration account was settled, and it appeared before the sale took place, that the intestate's personal estate w^as more than sufficient to pay the debts, and the court very properly laid it down, that it behooves the purchaser at a sale of this kind, to see that the proceedings were so far regular as to authorise the sale." Nor is the vendee of a purchaser under an order of the Orphan's Court in a better situation than his vendor. For the chief justice continues, " It has been strongly urged, that whatever may be the case as to Messinger, those persons who purchased of him and have made improvements, ought not to be dis- turbed in their possession. But their case is not to be distinguished from Messingers^ because they are purchasers with notice. Every man is bound to take notice of a record, which is the foundation of his title. If they looked into the title at all, the decree of the v HAP. v.] EFFECT OF THE ORDER OF SALE. 53 Orphan's Court, stared them in the face at the first step, and seeing the decree, they must take notice, at their peril, of the proceedings on which it was founded." Yeates J. appears to have been disposed to put the decision of this case upon its particular circum- stances; and in the case of Snyder v. Snyder, he comes forth, distinctly in favour of the conclusiveness of the decree of the Orphan's C ourt. He observed in Messin- ger v. Kintner, " it was also contended, that the de- cree of the Orphan's Court was reversible by appeal only, and not collaterally in a different suit. This may be correct as a general proposition, but its application is denied here. The defendant in error, either by him- self or guardians, was no party before the court, or heard by them, and consequently was not bound by their order. It was res inter alias acta. Frequent cases occur where objections have been brought by a child, on the valuation and confirmation of lands to another child; and so, where lands have been sold for pay- ment of the father's debts, by an administrator under an order of the Orphan's Court. It has not been deemed necessary in the first instance, to appeal to this court to reverse the decree." In the case of the lessee of Snyder v. Snyder, (a) the very point came in question and was decided by Tilghman C. J. and Brackenridge, Yeates dis- senting. The court below charged the jury, that, sale hav- ing been made by order of the Orphan's Court, and afterwards confirmed, could not be questioned in (a) 6 Binn. 490. 254 EFFECT OF THE ORDER OF SALE. [BOOK in. ejectment, but stood good until reversed upon appeal. The chief justice, said, " The law is clearly not so. The Orphan's Court is not a court of general jurisdiction, and with respect to the sale of lands they have no other power than is conferred by act of assem- bly. It might be more convenient, and render the law more uniform, if those proceedings were rever- sible only on an appeal; but after the long practice which has prevailed of inquiring into these proceed- ings in actions of ejectment, it is too late to attempt an alteration. It is unnecessary to dilate on this sub- ject, as we delivered our opinions explicitly in the case of Messinger v. Kintner. I think it, however, proper to remark, that although the proceedings of the Orphan's Court may be reversed in an ejectment, yet, as much property depends on these proceedings, great allowance should be made for the informal manner in which they have been conducted, especi- ally where the titles acquired under them hare been accompanied with long possession." Yeates J. said, " upon the fullest reflection, I do not feel disposed to retract any part of the opinion which I delivered in Messinger et al. v. Kintner. I consider the general remark to be correct, that the decree of the Orphan's Court in a case within their jurisdic- tion, is reversible by appeal only, and not collate- rally in another suit. The settled rule is, that the merits of a judgment can never be contested by any original suit, either at law or in equity, 2 Burr 1009, 1 H. Black. Rep. 294. The maxim is de fide et qfficio judicis non recipitur questio. Hard. 127. But in Messinger v. Kintner the defendant in error, a minor CHAP, v.] EFFECT OF THE ORDER OF SALE. 55 somewhat about nine years of age, was attempted to be bound by proceedings unsanctioned by law or jus- tice, to which neither he, his guardian nor next friend were parties. It was res inter alios acta, and no pre- sumption could be formed in favour of what was done. I assimilate the present case to a sheriff's selling land, which he has taken into execution by the process of law. The judgment concludes all irregularities in -the previous proceedings, except where the plaintiff in the execution becomes the purchaser, Goodyer v. Junce, Yelv. 179. But the sale must be fair, and just in itself, uninfluenced by threats or violence. The officer cannot sell to himself. Fraud mil vitiate any act whatever. The true merits of the case rest on the honesty and fairness of the public sale, and may be fully contested in the present suit." (a) If the decree of any court authorising the sale of property, should protect the purchaser from inquiry into the proceedings antecedent to the judgment, it would seem to be that of the Orphan's Court. For the right and the expediency to sell the very estate, are the points determined by the judgments of the court, and its judgment is given, pursuant to the au- thority specially conferred by statute. It is conceded, that, it would be more convenient, and render the law more uniform, if these proceedings were reversi- ble only on an appeal, and that if the question were open, it were well worthy of consideration: All the evils which flow from uncertainty and doubt, in title to real estate are caused by the law as it is now set- tled, if it may be considered as settled, by a divided court. Whatever doubts may exist upon the subject (a) 6 Binn. 499. 256 EFFECT OF THE ORDER OF SALE. [BOOK m. would be well terminated by an act of assembly putting the purchaser under the order of the Orphan's Court in the same situation as a purchaser at sheriff's sale.* If the proceedings antecedent and preparatory to an order for the sale of real estate, by the Orphan's Court have been regular, but the record thereof be defective, the record may be amended, by entering upon it, the matter which has been omitted. This was determined in the case of Kennedy v. Wachsmutli, Phi- ladelphia, December, 1823, Mss. Rep. It was an action on the case Tor the recovery of damages, for the non-performance of a contract for the purchase of certain lots of ground in the cdunty of Philadelphia. By the contract, the plaintiff was to make to the defendant a valid and legal title to the lots, and the defendant alledged that such title was not offered him by the plaintiff. The plaintiff's title was derived as follows: John C. Wells died intestate in the year 1812 sei- zed in fee simple of the said lots, leaving a widow and five children. Letters of administration were grant- ed to William I^evis and Mary Wells his widow. On the sixteenth of July, 1812, the administrators peti- tioned the Orphan's Court of the county of Philadel- phia, for an order to sell the real estate, and at the same time, exhibited an account certified by the Re- gister to have been settled before him, and attested by the affirmations of the administrators; which account included in one item the amount of the appraised in- * The author is informed, that the Supreme Court have lately reconsid- ered the question of the conclusiveness of the decree of the Orphan's Court for the sale of real estate, and have prepared an opinion, affirmatLvf of its conclusiveness. If this opinion can be obtained in time, it will be pub- lished jn this work. CHAP, v.] SALE OF REAL ESTATE. 57 ventory, and shewed a balance in favour of the estate in their hands of six hundred and forty-seven dollars and twelve cents, and also an inventory and appraise- ment of all the intestate's personal estate, together with an account of all the debts due to and from the estate, leaving a balance due from the estate of ten thousand six hundred and seventy-five dollars and eighty-seven cents. The inventory was not affirmed or sworn to, but the appraisement annexed was affir- med to, before'the register, by one of the appraisers on the fifteenth of July, 1813, the other appraiser being then dead. The facts set forth in the petition for sale, were not verified by oath or affirmation, nor was the account of the debts so verified when the petition was presented. On the sixteenth of July, 1813, an order of sale was made by the Orphan's Court pursuant to the prayer of the petition, the usual and regular noti- ces of sale were given, and on the twentieth of Au- gust following, the administrators reported that they had sold the lots. This sale was confirmed, but af- terwards set aside by the Orphan's Court. A second order of sale having been made, the administrators reported on the fifteenth of October, 1813, that they had sold the property to Robert Kennedy and Conrad Carpenter. The sale was confirmed and a deed made to the purchasers accordingly. By sundry conveyances from Carpenter, the whole property was vested in the plaintiff. Subsequently to these proceedings the following entries were made on the records of the Orphan's Court. Kk * ~ "*' 258 SALE OF REAL ESTATE. [Bo6K m. Nineteenth March, 1822, on motion of John Pur- don, Esq. ordered by the court that the record of the proceedings to the sale of the real estate of John C. Wells, deceased, be amended by adding to the exhib- ited account of all the intestate's debts, filed by the administrators of the said John C. Wells, the affirma- tion of William Levis one of the said administrators, as taken in court by the said William Levis, at the time of exhibiting the said account and before any order of sale made thereon " that the same is a just and true account of all the intestate's debts which had then . come to the knowledge of the said administrators. 3 ' Pursuant to this order the said William Levis, on the second of April, 1822, in open court, made and subscribed the following affirmation, which was enter- ed of record, and also on the said account, " William Levis the administrator above named, on his solemn affirmation to him administered, says, that at the time of exhibiting, the foregoing account of the intestate John C. Wells' debts to the Orphan's Court, and be- fore any allowance or order was made by the said court for the sale of the said intestate's lands; he did in open court make the above mentioned affirmation before the said Orphan's Court, viz: " William Levis (late William Levis, Jr.) one of the administrators of John C. Wells, deceased, being affirmed, according to law, on his solemn affirmation, saith, that the fore- going is a just and true account of all the intes- tate's debts, which have come to the knowledge of the said administrator. And he doth further say, that the foregoing account is a just and true account of all the intestate's debts which had then come, or at CHAP, v.] SALE OF REAL ESTATE. 259 any time since have come, to the knowledge of the said administrator." The question for the opinion of the court, on the case thus stated, was, whether the foregoing proceed- ings so vested in the said Robert Kennedy the title of the said John C. Wells to the lots in question, as that the said John G. Wachsmuth, should, under his said contract with the plaintiff, have completed his pur- chase. The case was argued by Purdon for the plaintiff, and Scott for the defendant. For the defendant it was objected, that the title of the plaintiff was not good, inasmuch as the requisites of the law respecting sales of land by administrators under an order of the Orphan's Court had not been complied with. The act of nineteenth April, 1794, section eight, Purd. Dig. 292, provides, that no Or- phan's Court shall allow or order any intestate's lands or tenements to be sold, before the administrator or administrators requesting the same, shall exhibit a true and perfect inventory of all the intestate's per- sonal estate whatsoever, as also a just and true account upon his, her, or their solemn oath or affirmation of all the intestate's debts, which shall be then come to his, her, or their knowledge; yet, no such account was filed before the order of sale in the present case was granted. The Orphan's Court is a court of limi- ted jurisdiction, and must conform to the directions of the act in its proceedings, or they are liable to be examined and set aside in a collateral suit. In Mes~ singer v. Kintner, 4 Binn. 97, it was held, that an un- 260 SALE OF REAL ESTATE. [BOOK in. authorized decree of an Orphan's Court for the sale of lands, will not stand until reversed in a regular course of appeal, but may be questioned in a colla- teral suit, by or against a person, claiming under that decree. If the decree in the present case was unau- thorized, the objection may at any time hereafter, be taken in a suit for the land by the defendant, and the land wholly lost. The amendment allowed by the Orr phan's Court, does not remove the objection. Sup- posing the court had power to receive the affidavit, it came too late: the act forbids any order of sale of the lands, unless the affidavit be filed before such order is made. It is a further ground of objection to the title, that if the affirmation of Mr. I^evis be considered correct in point of time, it is the affirmation of only one of the administrators; whereas the spirit of the act of 1794 is, that where Jthere are several adminis- trators who request an order of sale, all should join in the oath or affirmation. For the plaintiff it was answered, that it substan- tially appeared by the record, that there was not suf- ficient personal estate to pay the debts, and that was sufficient. Great allowances are always made for want of form in cases of sales by order of the Or- phan's Court. Snyder lessee v. Snyder, 6 Binn. 497. Bickle v. Young, 3 Serg. and Rawle, 235. Price v. Johnson, 4 Yeates, 528. 2 Yeates, 1 18. Huckle v. Phillips, 2 Serg. and Rawle 7. But if a defect ever existed in the record, it has been completely cured by the order of the Orphan's Court in 1822, which contains every thing required by the act. That or- der allows the proceedings to be amended, by add- QHAP. v.] SALE OF REAL ESTATE. 261 ing the requisite affidavit to the exhibited account. The account so amended is then the record: and the truth of the records of the Orphan's Court, concerning matters within their jurisdiction, cannot be disputed. Selin v. Snyder, 7 Serg. and Rawle, 172. As to the objection, that only one administrator has made the affirmation, that, was overruled by this court in the case of Snyder s lessee v. Snyder, 6 Binn. 497. Per Cur. The question in this case, is, whether a sale of the real estate of John C. Wells, Esq. deceased, made by order of the Orphan's Court of Philadelphia, was valid. It is contended, on the part of the defend- ant, that the Orphan's Court had no power to make the order for sale, because the administrators of John C. Wells did not, previous to the said order, exhibit an account upon oath, of all the intestate's debts which had then come to their knowledge, as is required, by the act of nineteenth April, 1794, section twentieth. On inspecting the record of the Orphan's Court, we find, that on the fourteenth of January, 1813, the ad- ministrators of Wells, ( Win. Levis and Mary Wells,} petitioned for an order of sale of the real estate, which was granted, and in pursuance thereof the estate was sold, and the sale confirmed by the court. At that time, no account of the debts of the intestate, verified by the oath of the administrator, appeared upon the record. But on the nineteenth of March, 1822, the Orphan's Court made an order, " that th. a , record should be amended, by adding to the account exhibit- ed by the administrators of John C. Wells, of all the intestate's debts, the affirmation of Wm. Levis, one of the administrators, as taken in court by the said Levis, SALE OF REAL ESTATE. [BOOK in. at the time of exhibiting the said account, and before any order of sale, that the same is a just and true ac- count of all the intestate's debts, which had then come to the knowledge oj the said administrator" It cannot be doubted, that the court had power to order this amendment. The affirmation ought to have been recorded, at the time it was made, and the not enter- ing it of record, was no more than a clerical omission. So long ago as the year 1650, an amendment was permitted, by causing judgment to be entered on a verdict, which the prothonotary had omitted, and this too after an execution had been issued, and ex- ception taken to the proceeding, (a) In considering the record before us, therefore, we must now take it, that the affirmation of Levis was made previous to the order of sale. Thus all is right, for the record cannot be contradicted. The orders, or decrees, of the Or- phan's Court, \vhere it exceeds its jurisdiction, may be controverted. But where it is acting within its jurisdiction, the truth of what is asserted on record, cannot be denied. This was decided in the case of Selin and others v. Snyder (7 S. & R. 172.) But it is objected, that granting the affirmation in this case, to have been made by Wm. Levis, according to the amended record, still it is defective, for want of the oath or affirmation of Mary Wells, the co-administra- trix. The very same objection was taken, and over- ruled by this court, in the lessee of Snyder v. Snyder, 6 Bin. 497. It is the opinion of the court, therefore, that the proceedings in the Orphan's Court were ac- cording to law, and the sale of the real estate of John (a) Style's Rep. 229. CHAP, vi.] OF DEVASTAVIT. 263 C. Wells, was valid. Judgment is to be entered for the plaintiff." In ejectment, evidence may be given of a sale by order of the Orphan's Court, on the petition of an administrator, without producing the letters of admin- istration if their loss be shewn, (a) But before the proceedings of the court on such petition can be given in evidence, title must be proven in the intestate, (b) If there be any surplus of the proceeds of lands sold by order of the Orphan's Court for the payment of debts of an intestate, it is distributable as real es- tate, (c) A the widow of B, to whom a part of the proceeds of the sale of real estate sold by order of the Orphan's Court, had been decreed by said court, intermarried with C, having children by her first husband B. A and C both dying, the children of C, claimed the money as personal property vested in him by the intermarriage absolutely; the children of B insisted that they alone were entitled thereto, as it proceeded from the sale of lands decreed for special purposes, and that the surplus should return to the heirs of B. The Court without argument declared their unani- mous opinion, that this money must be taken as real property, and was subject to distribution as such. CHAPTER VI. SECTION I. Of Devastavit. If the executor or administrator- embezzle or mis- (a) Buckle r. Phillips, 2 Sergt. and and R. 473. R. 4. (c) Diller v. Young. 2 Yeates, 261. (6) M' Donald v. Campbell, 2 Sergt. act 1794, Dec. 20, 3 Sm. L. 151. 264 OF DEVASTAV1T. [BOOK in. apply the assets, or if they suffer any loss or deterio- ration by his negligence, he is guilty of a devastavit and is personally responsible, (a) A devastavit may arise either by acts committed or omitted. By commission as giving away, embezzling or con- suming the property; (6) by extravagant expenses at the funeral; (c) by the payment of debts out of their legal order, to the prejudice of such as are su- perior, or by assenting to, or payment of, a legacy, when the fund is insufficient for the payment of creditors; (d) by releasing or cancelling a bond, or delivery of it to the obligor without payment; (e) or by the release of a cause of action accrued in the right of the testator; (/) by taking an obligation in his own name for a debt due by simple contract, to his decedent; (g) by commencing an action in which he has a right to recover, and afterwards agreeing with the defendant to receive a specific sum -at a fu- ture day as a compensation, and the party fail to pay it. (/i) By omission, if having assets he delay the payment of a debt and suffer interest and costs to accrue thereon, (i) if he lose any of the decedent's chattels; (k) if he neglect to bring suit on bond, he shall be charged with the amount; (I) if he delay to bring suit for any other debt, by which the creditor is ena- (o) Toll. Ex, 424. (A) 2 Lev. 199. 2 Jon. 8H. S. C. 1 (6) Ibid. Vcru.474. (c) Ibid. 2 Bl. Com. 508. (i) Callaghan v. Hall, 1 Sergt. $ R. (rf)Off. of Ex. 158. 241. (e) Ib. 159. (k) 2 Vern. 299. (/) Off. of Ex. 71. 159. (/) 2 Bro.Ch. Rep 156. () Yelv. 10. 2 Lev. 189. CHAP, iv.] OF DEVASTAVIT. 265 bled to plead the statute of limitation; (a) if he ap- point an iniquitous agent and he embezzle the goods of the decedent; (b) if he neglect to put out money at interest-, (c) if he permit rent to run in arrears, and it is lost through his negligence; (d) if he delay dispo- sing of the testator's goods, by which they are injured; (e) if he neglect to bring an action against him who takes the goods of the testator from his possession; (/) if he lend money on personal security, (g) If he lay out the assets on private securities all the benefit made thereby shall accrue to the estate, but he shall answer all the deficiency, (h) If he sell the decedent's goods at under value, though it be an ap- praised value, he shall be answerable, (i) If, without any imputation on him, the goods are ta- ken from his possession, although he recover not such damages as the goods were really worth, he shall be responsible for no more than he really re- covers, (fc) If the goods be perishable and on his part there have been neither neglect in keeping nor de- lay in selling them, he shall not be answerable for any injury they may sustain. (/) If an executor merely give a receipt for so much due on a bond, as he in fact receives, he shall not be charged with a devastavit for the residue, (wi) If there be arrears of rent on lease, and on the tenants becoming insolvent, the executor release the (a) 12 Mod. 573. 11 Vin. ab. 309. (k) 1 Cox. Rep. 24. 1 Sergt. and IL (6) 6 Mod. 93. 24 K (c) 2 Fonbl. 184. n. p. 1 Sm. L. 83. (i) Off. Ex. 158. (d) 1 Madd. Rep. 290. (&) 6 Mod. 181. (e)OlT. Ex. 158. (/) Ibid. (/) 6 Mod. 181. (m) Off. Es. 159. (g) Coop. Rep. 6. 2 Cox's Rep. 1. L 1 266 OF DEVASTAVIT. [BOOK in. arrears and give him a sum of money to quit posses- sion j if he have acted thus for the benefit of the estate he shall be allowed both, (a) An executor is not bound to plead the statute of limitations to an action commenced against him by a creditor of the decedent, (b) If the husband of an executrix commit a devastamt, in case the executorship commenced before the mar- riage, the husband and wife shall be both chargeable. If it commenced subsequently to the marriage, the husband is liable alone. If an executrix commit a de- vastavit and afterwards marry, the husband as well as the wife, is responsible during the coverture, (c) A devastavit by one executor shall not charge his companion-, (d) and if there be several executors or administrators, each shall be liable only for what he receives, (e) provided he hath not intentionally or oth- erwise contributed to the devastavit of the other. (/) But an executor administering, having once receiv- ed money, assets of his testator, cannot discharge him- self under the plea of plenc adminislravit, to an ac- tion, by a bond creditor of his testator, by shewing, that he paid the money to his co-executor, even for the purpose of satisfying the bond creditor, who had applied for payment to such co-executor, if the co-ex- ecutor afterwards misapply the money, by retaining it to satisfy his own simple contract debt, (g) But where one executor had received money be- longing to the estate of the testator, and paid it over (a) 3 P. Wms. 38 1 . 358, 359. (6) Toll. Ex. 429. 1 Kq. Ca. ab. 305. (d] Off. Ex. 161, 162, Toll. Ex. 430 Castleton v. Fan&haw, Prec- Ch. (e) Barnes 440. 100. (f) Toll. Ex. 430. (c) 2 Bro. Ch. Rep. 323. Toll. Ex. (g] 1 East. 241. CHAP. iv. J OF DEVASTAVIT. 267 to his co-executor, who became insolvent it was held that though he would be chargeable, if there were creditors and a deficiency of assets to satisfy them, yet that he was not answerable to the legatees, (a) Formerly the executor of an executor could not be charged by a devastavit committed by the first execu- tor, for it was held a twt^ and therefore to die with the party. But by the stat. 4 and 5, W. and M. c. 24, s. 12, an executor of an executor shall be liable on a devastavit committed by his testator in the same manner as he would have been if living, (b) Although an executor have no notice of a claim, yet the exhausting of assets even after the expiration of a year, in the payment of legacies, or distributive shares in prejudice of a creditor (without requiring refunding bonds,) would be a devastavit. (c) (a) Brown's Appeal. 1 Dall. 311. (c) Swearingen v. Pendleton, 4 (6) Toll. Ex. 430. Serg. et R. 394. THE LAW OF DECEDENTS. BOOK IV. OF REMEDIES FOR, AND AGAINST EXECUTORS AND ADMINISTRATORS. CHAPTER I. OF THE CAUSES FOR WHICH AN EXECUTOR OR ADMINIS- TRATOR MAY MAINTAIN SUIT OF SUITS BY EXECU- TOR OR ADMINISTRATOR. SECTION I. Of the causes for which an Executor or Administrator may maintain suit. The executor or administrator represents the tes- tator in respect to all his personal contracts and may maintain an action, to enforce them, and for all inju- ries relating to his personal estate, such as might have been maintained by the decedent himself, (a) He may have an action for breach of contract re- lating to the realty, if broken in the life time of the decedent; (6) and the executor or administrator shall recover damages therein, though he be not expressly named; and an action will lie for him for cutting and (a) Toll. ex. 431. 3 Bac. ab. 50, 91. (6) Cora. Dig. admin. B 13. Cove- Cro. Eliz. 377. Latch. 167. Roll. nant B 1. 3 Bac. ab. 91. 2 Leo. ab. 912. Off. Ex. 65. 26. Vent. 175. Off. Ex.65. CHAP, i.] SUIT BY EXECUTORS. 269 carrying away corn, though growing on the freehold lands of his decedent, (a) He may have an action against the sheriff for not returning his writ and paying money levied on a fieri facias; (6) or for a false return, stating that he had not levied the debt, when in truth he had. (c) He may also have an action against the sheriff, for the escape of a party in execution on a judgment obtain- ed by the decedent, even where the escape happen- ed in the decedent's life time, (d) The executor or administrator, or his assignee may bring ejectment on a mortgage to his decedent, (e) And as executor or administrator, he may have writ of error. (/) But an executor cannot bring suit for an injury to the person of his testator; as for battery, imprison- ment or the like; nor for a breach of promise of mar- riage, where no special damage is alleged: (g) nor for a prejudice to the freehold, simply, of his dece- dent. (K) SECTION II. Of suits by Executors or Administrators. An executor may hold a defendant to bail without swearing positively to a subsisting debt; an affidavit of his belief of the existence of the debt is sufficient, for the nature of his situation will not admit of his be- ing more positive, (i) (a) 1 Vent. 187. (/) Latch. 167. (6) IRoll. ab. 913. Cro. Car. 297. (g) 2 Maul and Sel. 408. Toller (c) 4 Mod. 404. 1 Salk. 12. Ex. 436. ((/) Com. Di. Admin, B 13. Cro. (A) Off. Ex. 67, 68. far. 297. Dyer 322. (?) Com. Dig. pleader, 2 D. 1. 3 (e) Less, of Simpson v. Ammons. 1 Leon. 212. Binn. 176. 270 SUIT BY EXECUTORS. [BOOK iv. If there be several executors or administrators, they ought all to join, though some be under the age of seventeen years, or have not proved the will, or have even refused before the register, (a) But ad- vantage can be taken of the nonjoinder of all the exe- cutors or administrators, only by pleading in abate- ment, after oyer of the probate or letters of administra- tion, that the other executor or administrator therein- mentioned is alive and not joined in the action. (6) If one or more of the executors or administrators die, the right devolves to the survivor or survivors: (c) and if all die, to the executor de bonis non. Executors or administrators may be substituted for their decedents in actions already commenced, under the eighth section of the act of thirteenth April, 1791, (d) which provides that, " Where any suit shall be depending in any court of this commonwealth, and either of the parties shall die before final judgment, the executor or adminis- trator of such deceased, who was plaintiff, petitioner, or defendant, in case the cause of action doth by law survive, shall have full power to prosecute or defend such action until final judgment, and the defendant or defendants are hereby obliged to answer thereto accordingly; and the court, before whom such cause may be depending, is hereby empowered and direct- ed to hear and determine the same, and to render judgment for or against the executor or administra- tor, as the case may require; and if such executor or administrator having been duly served with a scire (a) 9 Co. 37. f*. T. R. 558. 1 Saund. (c) 3 Bac. ab. 56. 2 Vern. 514. 11 291. g. 2 Saund. 209, 212. Vin. ab. 69. (6) 1 Saund. 291 g. 1 Chilt. P. 14. (<*) 3 Sm. L. 30. OHAP. i.J SUIT BY EXECUTORS. 071 facias or citation from the office of the clerk of the court where such suit is depending, sixty days be- fore the meeting thereof, shall neglect or refuse to become a party to the suit, the court may render judgment against the estate of the deceased party, in the same manner, as if the executor or administrator had voluntarily made himself a party to the suit; and the executor or administrator who shall become a party as aforesaid, shall, upon motion to the court where the suit is depending, be entitled to a continu- ance of the same until the next term. Where the suit has been continued under this act and no decla- ration was filed in the plaintiff's life time, the decla- ration must be filed in the name of the original party, as it refers to the first term when the suit was com- menced, (a) The executor may commence actions in right of the testator, although he cannot declare before pro- bate. (6) And in an action at the suit of an executor or ad- ministrator, a projert of the letters testamentary or of administration should be made; (c) but the omission of profert is now aided, unless the defendant demur specially for the defect, (d) When the testator became surety for one by bond, upon which a suit was brought against his executor, as administrator, and the executor confessed judg- ment and payed the debt, he may recover the same (a) Clow et al. v. Brown, 1 Yeates, (c) Bac. ab. Tit Ex. Chit. Plead. 324. 400. (6) 1 1 Vin. ab. 202. Com. Dig. Ad- (d) Ibid. min. B 9. Off. Ex, 36. SUIT BY EXECUTORS. [BOOK iv. against the principal, without naming himself in his representative character, (a) When an acknowledgment or promise has been made by, or to an executor, it should be declared upon accordingly, in a special count, (b) In an action by an executor or administrator, the count may conclude " to the damage" of the plaintiff, without saying as executor, (c) A declaration in an action by an administrator, cum testamento annexo, during the absence of the execu- tor, must aver that the executor continued to be ab- sent at the time of bringing the action, and the omis- sion of such averment will be fatal, (d) If the de- fendant in such case put in a plea to the merits, the error is cured; but it is not cured by a judgment for want of an affidavit of defence, nor by the act of twenty-first of March, 1806. (e) It is not necessary, under the pleas of non assump- sit and payment for the plaintiff's executors to pro- duce the letters testamentary. (/) So in an action by an executor or administrator, on a cause of action arising in the life time of the deceased, where the defendant pleads the general issue, the plaintiff need not produce the probate or letters of administration: nor will the defendant be permitted to show, that they do not exist, (g) Where the plaintiff dies after final judgment and before execution, his executor or administrator shall (a) O'Brian v. Coskrey, 4 Yeates, (e) Lewis v. Ewing, 3 Serg. & R. 105. 44. (b) Jones v. Moore, 5 Binn. 573. (/) M'Kim et al. v. Riddle, 2 Dall. (c) Martin v. Smith. 5 Binn. 16. 100. (d) Lewis v. Evving, 3 Serg. & R. (s-) Axers v. Mussleman, 2 Browne, 44. " 115. CHAP, i.] SUIT BY EXECUTORS. 273 sue execution by scire facias, (a) If after a fieri fa- cias sued out, the plaintiff die, the sheriff deriving authority from the writ may levy the mone}% and pay it to the executor; or in case the plaintiff died intes- tate it shall be brought into court, and remain there until administration be committed, when the adminis- trator on producing the grant, shall receive it. (b) So if under a fieri facias, the goods are seized and the plaintiff die before sale, and then the goods are sold, the executor or administrator shall have the money; nor shall it be a sufficient return to state the plaintiff is dead; for that is no abatement of the writ, (c) At common law the death of the plaintiff at any time before final judgment abated the suit; but by stat. .17, car. 2, c. 8, (d) if either party die be- tween verdict and judgment, his death shall not be alleged for error, so the judgment be entered within two terms after the verdict. The judgment on this statute is entered as if the part}' were alive, (e) and it must be entered or at least signed, within two terms after the verdict. (/) But there must be a scire facias to revive it before execution can be taken out-, (g) and such scire facias pursuing the form of the judgment, should be general, as on a judgment re- covered by or against the party himself, (/i) And by stat. 8 and 9, Wm 3, c. 11, s. 6, if the plaintiff die after interlocutory, and before final judg- ment the action shall not abate, if such action might (a) Tidd's Prac/1056. (e] Salk. 42^ (&) 6 Mod. 27. Tidd's Prac. 842. (/) 1 Sid. 385. Beames 201. (c) 6 Mod. 297. Cro. Ca. 459. 1 Sid. () 1 Wils. 30>>. 29. (A) 2 Ld. Ravm. (rf) Rob. Dig. 369. M m 274 SUIT BY EXECUTORS. [BOOK iv. have originally been sued by his executor or admi- nistrator; but the executor or administrator may have a scire facias against the defendant; or if he die after such interlocutory judgment against his executor or administrator. And if the defendant, his executor or administrator, appear, and show no cause to arrest the final judgment, or on a scire fed or two nihils make default, a writ of inquiry shall go, and being executed and returned, final judgment shall be given against the defendant, or against his executor or ad- ministrator. This statute has been held not to ex- tend to cases where the party dies before interlocu- tory judgment, although it be after the expiration of the rule to plead, (a) Where either party dies after interlocutory judg- ment, and before the execution of the writ of inquiry, the scire facias on this statute ought to be for the de- fendant, or his executor or administrator to shew cause why the damages should not be assessed and recover- ed against him, (b) and to hear the judgment of the court thereupon, (c) But where the death happens after the writ of inquiry is executed, and before the return, the scire facias must be to shew cause why the damages assessed by the jury should not be ad- judged to the plaintiff, or his executor or administra- tor, (d) The judgment on this statute is not entered for or against the party himself, as on the stat. 1 7, Car. 2, but for or against his executor or administrator, (e) And where the defendant dies after interlocutory and be- () Tidd's Prac. 105f>. (d) Toll. Ex. 444. (6) Lib. Entr. 6-11. (e) 1 Salk. 42. O)6 Mod. 141. GHAP. i.] SUIT BY EXECUTORS. fore final judgment, two writs of scire facias must be sued out, before he can have execution: and before the final judgment is signed in order to make the ex- ecutor or administrator a party to the record-, the other after final judgment is signed, in order to give him an opportunity of pleading no assets, or any other matter of defence; for it were unreasonable that the situation of the executor or administrator should be worse where the party deceased died before the final judgment was signed, than it would have been ? had his death been subsequent, (a) An infant at the age of seventeen being capable of taking out probate, may maintain an action as execu- tor-, but during his minority he must sue by guardian or prochein amy\ and cannot sue by attorney. (&) If A and B be appointed executors, and A refuse to join in such action, B may commence the action in the names of both: then on summoning A, there shall be judgment of severance-, that is to say that B shall sue alone; or on A's default on the summons there shall be the same judgment, and B may then proceed in the action, and recover in his own name only; otherwise a co-executor by collusion with the debtor might prevent his being sued for the debt, (e) By the death of the party severed, the writ shall not abate, (d) Nor if he live till judgment, can he sue out execution, because the recovery is in the name of the other executor alone, (e) By the stat. 25, E. 3. c. 5, the executor of an ex- (a) Toll. Ex. 444 (d) Cm. Eli/,. 652. Co. Litt. 139. (6) Toll. Ex. 445. (e} Off. Ex. 105-6. (r)Off. Ex. 93, 99. Toll. 446. 276 SUIT BY EXECUTORS. [BOOK. iv. ecutor, is put on the same footing in regard to the bringing of actions, as an immediate executor, (a) If an administrator darante minoritate bring an ac- tion and recover, and then his administration deter- mine by the executor's coming of age, such executor may have a scire facias on the judgment (b) So if such administrator obtain judgment, he may bring scire facias against the bail*, nor can they object, that the executor has attained the age of twenty-one years-, for the recognizance is to the administrator himself by name, (c) But it seems to be a question whether in such case he or the executor shall sue out execution on the judgment, (d) By the stat. of 1 7, Car. 2,*c. 8. the administrator de bonis non is entitled to sue out a scire facias and take out execution on such judgment. If the executor or administrator die after suing out the writ of execution, and before the return of it, the administrator de bonis non is by the equity of that statute permitted to per- fect the execution thus commenced, for the right is devolved upon him. (e) And in such case, if the she- riff return a seizure of goods to the value but that they remain in his hands for want of buyers, the ad- ministrators de bonis non may sue out a venditioni ex- ponas, or a distfmgas, to the late sheriff, (f) If at the time of the death of the executor or administrator the money be levied it shall be brought into court, and the administrator dc bonis non on producing the let- O) Off Ex. 257. Godb. 2G2. Rob. (e} 1 Salk. 322. Com. Dig-. Admin. Dig. 249. G. 6. Mod. 290. 2 Ld. Raym. (b) 3 Bac. ab. 18, 1 Roll. ab. 888, 1072. 889. Cro. Car. 127. (/) 1 Salk. 3!J3. 6 Mod. 295-7-8-9, (c) 3 Bac. ab. 18. 2 Lev. 37. 2 Ld. Raym. 1074. (d) 2 Lev. 37. CHAP, i.] SUIT BY EXECUTORS. 77 ters of administration shall be entitled to receive it. (a) But if an executor bring a scirc facias on a judgment or recognizance, and getjudgment&at he may obtain execution, and die intestate, the administrator de bonis non must bring a scire facias on the final judg- ment, and cannot proceed upon the judgment on the scire facias, (b) The statute extends only to judgments after verdict, (c) On any .other judgment obtained by the executor or administrator; the administrator de bonis non shall not have a scire facias for want *of privity, but must resort to his remedy at common law, by an action of debt de novo for the same de- mand as administrator to the first testator or intestate. (d) Yet even on a judgment by default, if the execu- tor or administrator sue out execution and die when the goods are in the hands of the sheriff, and conse- quently the writ is completely executed, the adminis- trator de bonis non, shall have the money brought in- to court, and on showing the grant it shall be paid over to him. (e) Or if the judgment by default be for goods taken out of the executor's or administrator's own possession his executor or administrator shall have a scire facias upon it, and account for them to the administrator de bonis non. (/) In case a party died seized of rent, the common law afforded no remedy to recover the arrears due at the time when the owner of such rents died. It was therefore enacted by the Stat. 32, H. 8, c. 37, (g) (a) 6 Mod. 299. 300. 2 Ld. Raym. 1 19. 1074. (e) 6 Mod. 299, 300. (fe) Tidd'sPrac. 1058. (/) Yclv. 33. (c) 6 Mod. 296. () Kob. Dig. 254. (d) Com. Dig. Admin. G. Toll. Ex. 278 SUIT BY EXECUTORS. [BOOK iv. that the executors and administrators of tenants in fee, fee tail, or for life, of such rents may have an action of debt for all such arrears, or may distrain for the same upon the lands chargeable, so long as they re- main in the possession of the tenant who ought to have paid the rents; or of any other person claiming under him by purchase^ gift, or descent. The sta- tute also proviaes, that a tenant per auter vie, his exe- cutors and administrates, may after the death of ces- tifi que vie have an action of debt, or may distrain for such arrears incurred in the life of cestui que vie. It has been adjudged, that this statute being re- medial, applies to the executors of all tenants for life j not merely to such executors, as previously to the statute, had no remedy whatever, but also to those who were entitled to an action of debt, to whom, therefore, it gives merely the additional remedy of distress, (a) But the statute does not extend to the executor of the gaurantee of a rent charge, for a term of years, if he so long live. (6) But the executor of an executor is held to be with- in this statute, (r) If a married woman be executrix, the husband cannot sue in right of the testator, without the wife, (d) (ct) Ilnrg. Co.Litl.162, b. n. 4. Glib. (b) L. of Ni. Pr. 57. L. of Distress, 3 ed. 33. I Ld. (c) Off. Ex. 258. Ravm. 172. Toll. Ex 452. 102. (. T t 330 SUIT AGAINST EXECUTORS. [BOOK iv. case. What we are in want of, is a mode for raising a sum of money out of land. This may be done by an action demanding the money, and not the land, by virtue of which, the land may be sold. But this can- not be done by ejectment. For what is the legatee to do, after he has recovered possession of the land in ejectment? He has no title to the fee; he has no right to sell; he only holds the land as security for the le- gacy. Is he to keep an account of the profits, and hold only until he receives satisfaction for the legacy and interest? This is involving him in a most inconvenient transaction, and not answering the intention of the testator, which was that the legatee should have the money and not the land." " We have had occasion to consider this matter, in the case of Brown, &c. v. Furer &c. (a); and although the point was not absolutely decided, yet the court strongly intimated its opinion, that when a legacy was charged upon the land, the legatee might support an action against the executor, and terre-tenant, the judgment in which might be executed on the land without affecting the persons of the defendants. In the argument of that case, a precedent was cited of an action brought by a legatee, against the executor and terre-tenant, in the case of Patterson v. M'Ccvusley's executors, &c. in the court of Common Pleas of Lan- caster county, and the declaration was said to have been drawn by Mr. Burd, the late prothonotary of this court. It would seem proper that the executor should be made a party to the suit, or at least should have notice, with liberty to appear and plead, that the (- ties adjoining, of which a partition or valuation is in- tended to be made, and thereupon it shall and may be lawful for the said sheriff to summon an inquest, according to law, to divide or value the said lands, in ?, Sm. L. 1.">2. 348 OF DISTRIBUTION. [BOOK v. the same manner as if the whole were within his baili- wic, and upon the return thereof to the Orphan's Court, out of which such writ issued, the said court may further proceed thereon, as if all the said lands were in the county and within the jurisdiction of said court, and to decree partition thereof, and to allot the whole to any one of the heirs, according as the inqui- sition may be returned to them, as fully and as amply as they now may or can do, where real estate is whol- ly in any one county, and any recognizance or recog- nizances taken by them, in pursuance of such pro- ceeding, shall be valid and effectual to all intents and purposes, and the final decree of such court thereon shall have the same operation to vest the title of f?uch estate, in the heir or heirs who may accept of the same, as any decree of any Orphan's Court in any county within their jurisdiction heretofore has had. Provided that an exemplification of the proceedings, which may at any time hereafter be had, shall with- in twenty days after the final decree therein be deli- vered to the clerk, or clerks of the Orphan's Court, in such adjoining county or counties, in which the appli- cation shall not have been made, and in which any parts of the said lands are, or may be situated, which clerk or clerks shall enter the same of record on the Orphan's Court docket of his proper county, at the joint expenses of all parties concerned therein, (a) And by section 8th of the act of 4th April 1797, (6) the like proceedings may be had where the intestate leaves no children, or their legal representatives, both in making partition, or where the estate cannot be di- (a) 4 Sm. L. 24. (f>) 3 Stn. L. 299. CHAKJI.] OF DISTRIBUTION. 349 vided without prejudicing or spoiling the whole, by directing an appraisement, and ordering the whole to the eldest brother or his issue, if any of such issue shall then be of full age, if he or she shall accept, or to any other of the brothers or their issue succes- sively, if any such issue shall then be of full age, upon the refusal by the eldest brother or his issue, or if there be no brothers or their issue, or they all neglect or refuse, then to the eldest sister or her issue, if any such issue shall then be of full age, in the manner and on the conditions directed by the act, to which this is supplementary, with respect to the children of an intestate; and the same mode of dividing, assigning, and appraising estates, shall be observed in all cases, whereby this act, or the act to which this is supple- mentary, estates are to be vested in several persons as tenants in common. Under these acts, provision was made for the par- tition of the estates of intestates, among the represen- tatives in the remotest degree. But in case the estate could not be devided, and the heirs refused to take at the valuation, the parties were constrained either to await the mutual consent of each other to dispose of the estate, or to sell out by undivided interests, at great disadvantage. For remedy whereof, It was enacted by an act passed second April. 1804. that when any person hath died, or may hereafter die intestate, seized of real estate in this commonwealth, subject to partition or valuation, as prescribed by the act to which this is a supplement, which real es- tate cannot be divided, but hath been or shall be ap- praised, and none of the children or other legal re- 350 OF DISTRIBUTION. [BQOKV. presentatives, to grant a rule upon all the heirs or other persons interested in such estate to shew cause on the first day of the next regular session of the said court, why the estate of the intestate should not be sold. Provided, a copy of such rule be served on such of the heirs and representatives interested as reside in the county, where the estate lies, by deli- vering it to the person, if of age, or his or her guar- dian, if a minor, or by leaving a copy thereof at the usual place of abode, at least twenty days before the time of holding the court, as aforesaid, and that notice shall be given to such of the heirs, or other legal re- presentatives as live out of the county in which the estate lies, by publishing a copy of the said rule, cer- tified by the clerk of the Orphan's Court, in the news- paper printed in the county, if any be there printed, and if not, in the newspaper published nearest to such county, at least four weeks previous to the court; and if cause be not shewn to the said court according to the said rule, it shall, and may be lawful for the said . court, and they are hereby enjoined and required, on due proof of notice of the aforesaid rule being given, to make an order or decree commanding the execu- tor or executors, administrator or administrators, (as the case may be) to expose the real estate of the in- testate to public sale, on the premises, on a day cer- tain, upon such terms as the court may think proper to direct, of all which ,the executor or executors, ad- ministrator or administrators shall give at least ten day's notice, by advertisement in the newspaper printed in such county, if any there be , and if none CHAP, w.} OF DISTRIBUTION. 351 then in that nearest to the county where the land lies, (a) And by section 6 of the act of seventh April 1807; " When partition is made of an intestate's real estate, and a part is allotted to each of his children or repre- sentatives, in case there be a widow of the intestate living and entitled to a part of the said real estate du- ring her life, it shall be the duty of the inquest or re- ferees making partition to estimate the value of the said part, and to apportion the same among the re- spective shares of the children or representatives; and upon confirmation thereof by the Orphan's Court, the same shall remain as a charge upon the said shares, and the interest thereof shall be annually and regu- larly paid to such widow, and may be recovered by action of debt, or by distress, as rents are usually re- covered in this commonwealth: and where the estate of the intestate is divided into fewer parts than there are children or representatives, the same proceedings shall be had to estimate and apportion the widow's part among the said parts, which shall remain a charge thereon, and the interest thereof shall be paid and may be recovered as aforesaid j and upon the decease of any such widow, the whole value of the said pur- part shall be distributed among all the said children or representatives in proportion to their respective shares according to law. (b) And by the 7th section of the same act, " Where the estate of an intestate is divided into a fewer num- ber of parts than there are children or representa- t ives, and any one or all of the said parts is, or are refused to be taken by the children or represents - (<0 4 Sm. L. 1R4. . (1)} 4 Sin. L. 400. 352 OF DISTRIBUTION. [BOOKV. tives, the like proceedings shall be had to sell the part so refused, as is directed in case of an appraise- ment of the whole, in and by an act passed the second day of April 1804, entitled " A further supplement to the act entitled " An act directing the descent of intestate's real estates, and distribution of their per- sonal estates, and for other purposes therein men- tioned; and any such sale or sales heretofore made by the decree of any Orphan's Court is, and are hereby ratified and confirmed, (a) And by the 8th section, in order to give the younger children or representatives of an intestate an opportunity of accepting or refusing the estate of the intestate in case of an appraisement or partition into fewer parts than there are children or representa- tives, the Orphan's Court of the different counties of this commonwealth are authorised upon application, to grant a rule upon any of the children or repre- sentatives, to come into court within a certain time, and to accept or refuse the same: a copy whereof shall be served on the parties personally ten days before the return thereof, in case he, she, or they re- side within the county, or if the}' reside out of the county a copy of the rule shall be printed in at least one newspaper printed in the proper county, or if there be none therein, then in some adjacent county, and in one daily newspaper of the city of Philadel- phia, for the space of one month before the return thereof; and in case he, she, or they do not come in according to the said rule, and accept or refuse, the court shall, and may direct the same to be offered to the next child or representative in order, (b) (fl)4S. L. 400. (6) Ibid. 401. CHAP, n.] OF DISTRIBUTION. 353 And by section 9th, " where any person shall die intestate, leaving lands or tenements in more than one county in this commonwealth, if after inquisition held, any of the legal representatives of such intestate shall accept of the real estate upon the valuation thereof, in any one county, such person shall not have the right of preference, or elect to take the real es- tate, or any part thereof in any other county, until all the other heirs or legal representatives shall refuse to take the same at such valuation, (a) And by the 2d section of the act of 26th March, 1808, " the publication of the notice required in and by the 8th section of the foregoing act after an ap- praisement or partition of an intestate's estate, shall be deemed sufficient if published in at least one news- paper printed in the proper county, or if there be none therein, then in the county nearest thereto wherein a newspaper may be published, and at least once a week for four weeks successively prior to the return thereof, in one daily newspaper in the city of Philadelphia. And on any application for a valuation or partition of an intestate's estate, where any of the children or legal representatives reside out of the county wherein the lands lie, notice in like manner may be given where personal notice cannot be given as required by the said section, of the time and place of executing the order of the court, and taking the inquisition thereon. And if upon the return of any such inquisition, all the children or legal representa- tives of the intestate shall appear in court personally or by guardian, or attorney in fact, duly constituted, ()4S. L. 401. Y y 354 OF DISTRIBUTION. [BOOK v. and refuse to accept of the estate, or any part there- of if divided, at the valuation thereof, and shall unan- imously desire the same, or any part thereof, to be sold by the order of the court, the said court may or- der or decree the sale thereof without granting any rule to shew cause why the said estate or part thereof should not be sold, any practice to the contrary not- withstanding; and to remove doubts, all proceedings heretofore had, and decrees made in the Orphan's Court, in pursuance of the act entitled " A further supplement to the act entitled " an act directing the descent of intestate's real estate, and distribution of their personal estates, and for other purposes therein mentioned,'' passed April 2d, 1804, or of the act which is hereby amended, where notice has been giv- en in the newspapers of the application for a parti- tion or valuation, or whereby the consent of the le- gal representatives, a rule to shew cause has been waved, if otherwise legal, are thereby declared to be valid, (a) SECTION II. Of ilie Inquest for Partition. Under the foregoing acts of assembly, parties in- terested in the estate of an intestate, may apply to the Orphan's Court by joint petition, or any one of them may apply separately. The joint petition is usually adopted when the parties have agreed upon seven persons to make partition or appraisement of the estate ; and the prayer of the petition is, that the court will appoint the persons named in the petition, (6)4S.L. 519. CHAP, it.] OF DISTRIBUTION. 355 to make partition of the estate of the decedent, to, and among his representatives, according to law; and if it cannot be divided, to make valuation there- of. The petition by one of the parties is resorted to, where it is inconvenient to obtain the assent of all the parties to the appointment of seven persons, or where the parties refuse to join in the petition. In this case, the prayer of the petition is, that the court will award an inquest to make partition, &c. It would seem to have been the intention of the le- gislature to empower the Orphan's Court to make par- tition among the parties in interest in all cases of in- testacy. But the Supreme Court have doubted whe- ther the words of the act embrace the case of an in- testate dying without issue, leaving a widow, and fa- ther, and collateral heirs. This doubt arose in the case of Young v. Bickell, (a) which was as follows: " Henry Bickell died intestate and without issue seized ot real estate in fee simple, leaving a widow, Sarah, now the wife of John Young, a father, John Bickell, one bro- ther, and one sister. John Young petitioned the Or- phan's Court of Dauphin county for a partition of the real estate of Henry Bickell, between himself in right of his wife, and the representatives of the said Henry Bickell. In pursuance of an order of the Orphan's Court, an inquisition was held, and the real estate di- vided into two parts, (said to be equal) one of which was assigned to the said John Young in right of his wife, and the other to John Bickell. the father. This % partition was confirmed by decree of the Orphan's Court, from which an appeal was made to the Sn- (a) 1 S. & R. 467. 356" OF DISTRIBUTION. [BOOK v. preme Court. By the deposition accompanying the record, it appeared that the value of the property as- signed to the widow was about -16QOJ., and the value of that assigned to the father was 5001. but the rents they yielded were equal. C. J. Tilghman gave the following opinion: " Se- veral reasons have been assigned for the reversal of this decree; but there are two which have been prin- cipally relied upon. One, that the partition was ma- nifestly unequal; the other, that the court had no au- thority to order a partition. The property assigned to Young and wife is of three times the value of that assigned to John Bickell. This is admitted by the Orphan's Court. But as the two parts produce at this time nearly an equal rent, the value of the fee simple, is supposed to be an immaterial circumstance; it be- ing taken for granted, that the brother and sister of the intestate, who are entitled to the reversion in fee, can be no way affected by this partition. If they are af- fected the injustice would be so great, that it is not pretended that the partition can be supported. Sup- posing then that our acts of assembly authorized the Orphan's Court to make the partition, it must be go- verned altogether by these acts, and I can find no pro- vision in any of them, by which the portion of land assigned to a widow can be taken from her during life. The English statute 32 Hen. 8, which gives a writ of partition between joint tenants and tenants in common, for years or for life, expressly provides, that it shall not affect the interests of reversioners or re- mainder men. But that statute has no effect on these proceedings. Now, it being conceded that Young's CHAP, ii.] OF DISTRIBUTION. 357 part is twice as valuable as the remaining part, it fol- lows that if Mrs. Y. survives J. B. the reversioners will be greatly injured, because instead of coming into possession of one-half of the estate of their bro- ther Henry Bickell, according to their right, they will not have more than a fourth part. The partition therefore ought not to stand. With respect to the powers of the Orphan's Court I do not wish to say any- thing very decided. The acts of assembly respect- ing intestates, contain expressions of large import in favour of partition. And I suppose there was a ge- neral intention of authorising a partition in all cases where real estate descended to several persons. Yet I foresee difficulties in the present case, where the whole estate goes in the first instance to tenants for life. It was therefore to be wished that these par- ties could affect a partition amicably between them- selves, or that, before another partition is made un- der the authority of the court, the subject should be brought before the legislature, who might make some provision for the safety of the reversioner; for I am satisfied that this exact case did not occur to those who drew the several intestate laws, or they would have made particular provision for it." In a petition for valuation and partition of an in- testate estate all material circumstances should be mentioned. If there are infants concerned, it should be so stated in order that the court may appoint guar- dians to take charge of their interests. A petition to the Orphan's Court for a valuation is not like an ad- versary suit at common law where an infant defend- ant must appear by guardian or it is error. But the want of a guardian is certainly an important circum- 358 OF DISTRIBUTION. [BOOKV. stance, which makes it incumbent on the court to look well to the proceedings, and to lend a ready ear to the complaint of the infant, who thinks himself ag- grieved. Yet the want of a guardian will not of itself render the proceedings void, if it appears that the in- fant was represented in fact at the time of the valua- tion as where the interests of the infant are superin- tended by a grandfather, who was present at the ta- king of the inquisition, (a) The petition should set forth the names of all the persons entitled to shares and the purparty of each, and in this respect should pursue the form of a decla- ration in partition; but the proceedings are not rever- sible on account of an omission in this particular, (b) And it should also bring into the view of the court the whole real estate of the intestate, as there cannot be several inquisitions of it by parcels. Any omis- sion of the real estate of the decedent however in- considerable the value, will be fatal on appeal, unless such omission should be cured by the return of the inquest embracing the estate omitted in the peti- tion, (c) The presenting of a petition has generally been followed by an award of an inquest as a matter of course, without further inquiry on the part of the court. This practice has been reproved by C. J. Tilghman, in delivering his opinion in the case of Rex v. Rex, 3 S. & R. 535. " The Orphan's Court," says he, " award an inquest on the petition of George Rex, without notice to the widow, or other children. It apjpears that a very irregular practice has crept into (a) Elliot v. Elliot, 5 Binn. I. (c) Rex r. Rex, 3 S. & R. 533. 6) Walton v. Willis, 1 Dall. 352. CHAP, ii.] OF DISTRIBUTION. 359 the Orphan's Court. They generally award an in- quest as a matter of course. The act of assembly di- rects, that upon the petition of the widow, or any child, the court shall appoint seven or more persons to make partition; or where the parties cannot agree, to award an inquest to make partition. The courts in many of the counties have considered the exhibition of a petition for an inquest, amounting to a dissent of the choice of seven or more persons. And as any one of the parties may dissent to a choice, and insist on an inquest, the court, in order to save time, have thought themselves justified in awarding an inquest immediately. It certainly would be more analogous to the rules almost universally established in judicial proceedings, either in law or equity, to call the par- ties into court in the first instance. And if that were done, I doubt not but they would often agree in the choice of men, and thus some expense would be saved. But as I do not know that substantial injus- tice has been done, and many titles must depend on the proceedings, which have taken place under the act of 19th April, 1794, I should not think myself warranted in disturbing them. I understand that on the return of the inquest every exception is open, which might have been made before it was awarded. Nevertheless, as the Orphan's Court may alter their practice in future without affecting any thing which has passed, T cannot help expressing a wish, that they would call all the family before them prior to the award of an inquest. I am satisfied that good would of- ten arise from it." This opinion, from so highly respec- table a source, ought to regulate the future practice of the Orphan's Courts. '360 OF DISTRIBUTION. , [BOOKV. The Orphan's Court is not precluded from enter- taining a petition for partition, in case of intestacy by the pendency of an action of partition in a court of common law. The proceedings in the two courts are essentially different. The act of assembly ex- pressly provides for partition in these cases, and it shall not be in the power of any party to defeat the act, by recurring to a writ of partition at common law. It would in fact be to repeal the act as far as respects partition, (a) SECTION III. Of the order and writ of inquest. Pursuant to the prayer of the petition, the court directs an ordei* or writ of inquest to issue. The order of inquest is directed to the persons named in the petition, and reciting the death of the decedent, his intestacy, the parties interested in the estate, the description of the property, commands them, (due notice having been given to all concerned) to inquire, 1st. whether the premises with the ap- purtenances can be conveniently parted and divided among the children or representatives of the dece- dent without prejudice to, or spoiling the whole, and if they can, to part and divide the same accordingly-. 2nd. If the estate can be so divided, to inquire how many of the children or representatives it will ac- commodate, and to divide the same accordingly, and to make a valuation of their several parts. 3d. If they should be of the opinion that the estate cannot be advantageously divided so as to accommo- (a) Rex r. Rex, 3 S. R. 536. 9HAP.H.J OF DISTRIBUTION. 361 date the widow and all the children and representa- tives, nor more than one of them, they are then to make a valuation thereof. This order being made by consent, and for the ac- commodation of the parties, is not returnable on a day certain: but a report is directed to be made on the next stated Orphan's Court day, after the division or valuation shall have been made. The writ of inquest is directed to the sheriff, and af- ter recital of the material facts, in the petition, com- mands him, to take with him a proper jury, and by their oaths and affirmations, to make partition of the premises therein described, among the heirs and re- presentatives of the intestate according to law, if such partition can be made, without injury to or spoil- ing the whole, &c. The directions being substantial- ly the same as those given by the order. The inquest should be composed of persons who are without bias in favour of any of the parties: for if there be upon it persons connected with either party, by blood or affi- nity, it may vitiate the proceedings of the jury, (a) By the order and writ, notice of the partition is di- rected to be given to all the parties in interest. Where the parties reside within the county in which the lands lie, personal notice must be served upon them at least ten days before the execution of the or- der or taking of the inquest, of the time and place of executing the order or taking the inquest. (6) If any of the parties live out of the county, such notice must be published in at least one newspaper printed in the proper county, or if there be none therein, in the (a) I. S. & R. 470. Young v - Bickcl. (b) Act 7. A p. 1807 sec. 7. Act 26. Mar. 1808 Sec. 11. Z Z 362 OF DISTRIBUTION. [BOOK v, county nearest thereto, wherein a newspaper may be published, and at least once a-week, for four weeks successively, prior to the execution of the order or taking of the inquest, (a) When a writ of partition is issued, the sheriff must summon the parties to attend; and if they do attend, the partition must be made in their presence. It is not necessary, yet it is the better practice to set out the fact in the return, that all the parties had notice: But where in the proceedings of the court, a party in interest has not been made a party to the decree, the presumption of the law is, that he was neither present nor summoned, (b) Of the due service of such notice in case of an inquest, the return of the sheriff is con- sidered as conclusive evidence: in case of an order, proof of the service of notice, and of publication in the newspapers, when requisite, should be made before the court. In execution of the order or writ, the commission- ers, or the jurors, in the latter case, accompanied by the sheriff, go personally on the premises, and make the partition or valuation, (c) In many cases where the real estate of the intes- tate is susceptible of division, a partition and a valua- tion of the several parts is agreed upon by his heirs or representatives; and, the commissioners or jury only give a legal sanction to the act of the parties. Where partition is made, the return to the order or writ, should contain an accurate description of each (a) Act. 7 Ap. 1807. sec. 7, Act 26 Messinger v. Kintner. 4 Binn. 97. Mar. 1808, Sec. 11. (c) Litt. 248. 1 lost. 164. V Walton v. Willis. 1 Dall. 353. CHAP, ii.] OF DISTRIBUTION. 363 part, and be accompanied by a draught or map of the premises as divided; and if the value of the several parts is not the same, the value of each part should be distinctly set forth, in order that the parties taking the more valuable parts, may account with the others for the difference. It is not the practice, however, to make partition of an estate, if its value will be the least impaired thereby, unless at the instance of all the parties interested, but to appraise it, and return, that it cannot be divided without spoiling or injuring the whole. As the law gives to the heirs, first in the male and then in the female line, in the order of se- niority, the right to take the estate at the valuation, most juries consider an advantage to be given to the eldest heir-, to prevent which, they appraise the estate at the highest value, which frequently induces a pub- lic sale, at which all the heirs have an opportunity to purchase at the market value. The return to the writ or order being made, is confirmed nisi: that is, unless exceptions be filed there- to, on or before the next Orphan's Oourt day. An opportunity is thus given to the parties in interest, to review the proceedings, and to make their objections,, if any, to the court. Any departure from the essential provisions of the act, will vitiate the proceedings: Such as the want of notice to the parties, of the time and place at which the commission or inquest is to be held: (a) or the valuation of the estate in gross, under the supposition, that if it could not be divided into as many parts as (a) Walton v. Willis. 1 Dall. 353. OF DISTRIBUTION. [BOOKY. there were children, the jury had not power to di- vide it into a less number: (a) So if the estate be clearly and manifestly undervalued. (6) But this should be a clear case. The jury are entrusted by law with the valuation, and they act under oath. Besides it is generally to be supposed, that they are better judges of this matter than the court. Great regard should therefore, be paid to their opinion: Sometimes, however, it happens, that they may mistake, and the court be able to trace the cause of it. So if the jury neglect to make provision for a tenant by the curte- sey, (c) and by consequence for a widow: or if there be infants interested in partition, and they are not re- presented: (d) or if the share assigned to one of the "parties be disproportionate; (e) or if a will of ihe dece- dent be discovered, subsequently to the proceedings, though the validity of the will had not been tried by an issue from the register's court, and though a reco- very in ejectment was had in opposition to such as- serted will. (./) And in case an infant be affected by error, in the proceedings concerning partition and valuation of his parents' estate, he is not concluded from showing the error, by his own or his guardian's acceptance of the sum, at which his purpart, was va- lued, nor by his own acceptance of the purpart after he came of age-, if he were then ignorant of the wrong done him, provided, he petitions for redress as soon as the circumstances are made known to him. (g) (a) Rex v. Rex. 3 S. &R. 533. (e) Bickel v. Young. 1 S. & R. 407. (6) Ibid. (/) Spaogler v. Rambler. 4. S. &R. (c) Walton v. Willis. 1 Ball. 353. 192. (a) M .-ssinger v. Kintner. 4 Binn. (g) Elliot v. Elliot. 5 Binn. 1. 97. Elliot v. Ellliot. 5 Bino. 1. CHAP, ii.] OF DISTRIBUTION. 365 But, it is not a valid objection against confirming the return of the inquest, that the return does not mention certain valuable appurtenances to the estate, if the inquest took them into view on their valua- tion; (a) nor that on the petition of one of the children, an inquest was awarded, without notice to the other children, or to the widow, (b) The exceptions to the return should be verified on oath, or affirmation before they are filed, with the clerk of the court. They are taken up by the court for argument, on some stated court day, or other day fixed by the court. And the return is either confirm- ed or set aside. In the latter case, it is the practice for the parties to commence anew. It would seem from what fell from the C. Justice at the close of his opi- nion in the case of Elliot v. Elliot, as if the Orphan's Court in case of an error in the return, in relation to the quantity of the land, might, on the petition of a party, many years after confirmation, direct a re-sur- vey, and charge the party who took the lands, at the valuation with any additional quantity, which should be made to appear, at the rate of the valuation, (c) From the final decree of the court, confirming or setting aside the return, an appeal lies to the Supreme Court, at any time-, no time having been prescrib- ed, as in the case of the accounts of executors, \fithin which an appeal must be made. If the heirs or representatives are satisfied with the partition, after the decree of confirmation abso*- lute, each obtains from the clerk an exemplification (a) Elliot v. Elliot. 5 Binn. 1. (c) 5 Binn. 11. fb] Rex v. Rex. 3 3. & R. 533. 366 OF DISTRIBUTION. [BOOK v. of the proceeding, under the seal of the court, which is evidence of his title. SECTION IV. Of the return and confirmation. The return to the order or writ is, 1st. That the estate can be divided among all the heirs or represen- tatives in equal or in unequal parts; in the latter case, a value is put on the several parts: or 2ndly. That the estate can be divided so as to accommodate some of the heirs or representatives-, in this case, also a va- luation is returned of each part: or 3dly. That the premises cannot be divided, and that they are valued at a sum certain. We will consider these reports in their order. I. Where the division of the estate is among all the heirs in equal proportions, if the parties in inter- est are satisfied, the confirmation is of course, and no. thing further remains to be done. If the division be into unequal parts, those who take the larger pay to those who have the smaller shares the difference in cash, or they secure the pay- ment, to be made at such time as the court shall fix, generally in one year, by bonds, and mortgage of the premises, or by recognizance. Sometimes, under pe- culiaj circumstances, as where the estate is small, the parties many, whose mortgages would produce almost interminable incumbrances, and sometimes with con- sent of parties, bonds, with personal surety instead of mortgages are directed to be taken, to secure the pay- ment of the several purparts and dividends. Where the purparts are of considerable value, the securities OHAI-. ii.] OF DISTRIBUTION. 367 are usually given to the parties themselves; but where they are of small amount, and there are many parties it is the practice in some counties to make the secu- rities to the president, in others, to the Common- wealth, and in others to the clerk of the Orphan's Court, in trust for all concerned, (a) II. Where the estate is divided into a less number of shares than there are heirs or representatives, a valuation of each part is distinctly set forth. After confirmation, a rule is to be taken by petition to the court, under the act of seventh April 1807, upon the heirs or representatives of the intestate, to come into court at a day given, and accept or refuse the parts as divided at the valuation. (6) The service of this rule in case the parties reside within the county must be personal and made ten days before its return; and when the party lives out of the county, a copy of it must be published in at least one newspaper printed in the proper county, or if there be none therein, then in the county nearest thereto, wherein a news- paper may be published, and at least once a week for four weeks successively, in one daily newspaper in the city of Philadelphia. When it is known or presumed that none of the heirs or representatives will take the estate so divi- ded at the valuation, it is usual to obtain a rule pur- suant to the act of the s ond April, 1804, section 1, (c) upon all the heirs, or other persons interested in the estate to show cause on the first day of the next regu- lar session of the Orphan's Court, why the estate of the intestate should not be sold. The service of this (a Ke n v. Franklin, 5 S. & R. 497. (t) 4 Sm. L. 184. (b) Act of April 1807, sec. 7. 368 OF DISTRIBUTION. [BOOK v. rule is to be made where the heirs or persons inter- ested reside in the county where the estate lies, by delivering it to the person, if of age, or to his or her guardian, if a minor; or by leaving a copy thereof, at the usual place of abode, at least twenty days before the time of holding the court; and where the heirs or other representatives live out of the county, by pub- lishing a copy certified by the clerk of the Orphan's Court, in a newspaper printed in the county, if any be there .printed, and if not, then in the newspaper published nearest to such county. It would seem that the legislature intended this latter rule to issue, after the return of the former. For, by the section that gives the rule, it is provided, that where any person has died intestate, seized of real estate, subject to partition or valuation, and none of the children or other legal representatives will take it at the valuation then such rule shall be grant- ed. But as there are many advantages besides the saving of time in uniting the rules, and as they may be made conformably to the acts regulating each; the practice has been in the first judicial dis- trict to serve the rules together. The service of the united rules must therefore be made on the par- ties residing in the county, by delivering notice per- sonally to the party, if of age, or to his guardian, if a minor, or by leaving a copy thereof at his usual place of abode, at least twenty days before the return day; and where the party resides out of the county, by publishing an office-copy in the newspaper print- ed in the county, if any be there printed, and if not, in the newspaper nearest to such county, at least four weeks previously to the return day, and at least CHAP, n.] OF DISTRIBUTION. 369 once a week for four weeks successively, in one daily newspaper of the city of Philadelphia. On the return of the rule, if there be no excep- tions filed, nor objections made in open court, the heirs or representatives first in the male line, and after in the female line, in the order of primogeniture, ex- ercise the right of election to take or refuse the es- tate at the valuation. This right of election descends to the heirs according to the rules of the common law, and the eldest son of the eldest son f an in- testate is entitled to an estate, which cannot be divi- ded, at the valuation, in the same manner as his fa- ther; and this, whether the son died before or after the intestate. For, though the main intent of the intes- tate acts be, that real estates should be divided among the children or representatives of an intestate, and not descend to the heir at common law, yet a secon- dary and the next object seems to have been, to pre- vent the division of estates into many parts, to their manifest prejudice. This reason, which directed the estate to the eldest son or heir-at-law, where it could not be divided, is much stronger in the case of a grand- son, as the distributive shares in such case will pro- bably be more numerous. And the grand-child heir- at-law may exercise this right in exclusion of his bix> thers and sisters, as well as his uncles and aunts, (a) But it seems that the guardian of the children of the heir-at-law may claim the right of election for his wards jointly, where the estate is divided into seve- ral parts as incident to the interest which descended to them. (6) In this case, it is to be observed, that the heir-at-law, made no claim of an exclusive right, Co) Walton v. Wallis, 1 Dall. 351. (6) Hersha r. Brenneman, 6 S. & F. 2. 3 A 370 OF DISTRIBUTION. f BOOK v. which on the authority of Walton v. Willis, would have been decreed to him. This right of election of the heir-at-law, and of the other children, is transferable. The ownership of the interest carries with it every incident which would have attached to it, in the hands of the per- sons represented, (a) But if the heir or representa- tive make several assignments of his interest to se- veral persons, who do not unite in a choice, the right is lost to the original holder and his as- signees, and passes to the heir or representative next in order, (b) As where A died intestate, seized in fee of three tracts of land, and leaving one son and five daughters. By virtue of an execution against the son, his undivided sixth part of one of the tracts was sold to B by the sheriff. The son afterwards conveyed to C all his estate in trust for the support of his wife and children, and finally was discharged by the in- solvent law, and assigned all his property to D and C for fhe benefit of his creditors. Proceedings were then had in the Orphan's Court, by which the estate of A was divided into three parts, of which each of the three tracts made one, and each was valued for the purpose of election according to the act of assem- bly. B and C presented separate petitions, each praying to be allowed to elect in right of the son, but electing different tracts. D did not interfere. The Orphan's Court rejected both petitions, and deter- mined that the right of election had passed to the old- est daughter. And the Supreme Court on appeal confirmed their decision, (c) (a) Kline v. Grayson, 4 Binn. 225- (6) Kline v. Grayson, 4 Birm. 225. Hersha v. Brenneman, 6 S. & R. (c) Ibid. CHAP, n.] OF DISTRIBUTION. No child or children of an intestate can by their acts defeat the operation of the law as to the ap- praisement of the lands of the ancestor, when they cannot be divided without prejudice to, or spoiling th whole. By their deeds they can transfer no more than their qualified interests in the land, and their as- signees held them precisely in the same manner as they themselves held them, subject to an eventual appraisement. It is evident, that in the first instance, the lands are subjected to the payment of the parent's debts, and the purparts of each of the children are bound by judgments had against them respectively. When the real estate is transmuted into per c onalty, under the operation of the law, by approved security being given in the Orphan's Court, for the amount of the appraisement, the former incumbrances on the children's undivided shares of the land cease, and are transferred into liens on their respective purparts of the valuation. The creditors by mortgage and judg- ment still retain a legal preference as to their de- mands to a proportion of the appraisement corres- ponding with the children's interest in the land, (a) Where there is a balance due to the administrator, or judgments unsatisfied against the intestate, the shares of the several children in the appraisement must necessarily be diminished in proportion thereto. The liens of the respective judgment creditors against the different children must also be deducted from their purparts. Under such circumstances the chil- dren would not be entitled to their shares of the va- luation unless they gave refunding bonds, (a) Diamond v. Robinson, 2 Yeates, 326. 372 OF DISTRIBUTION. [BOOK v. The heirs or representatives may accept or refuse the several parts of the estate, by appearing person- ally in court, and declaring their intentions viva voce, or they may make their declarations in writing. The latter is the better mode, as it provides against mis- takes and omissions of clerks. Or their refusal may be declared by an attorney duly authorized. The re- fusal by attorney is provided for by section 2nd of the act of 26th March 1808, (a) which declares, " If upon the return of the inquisition all the children or legal representatives of the intestate shall appear in court personally, or by guardian, or attorney, in fact duly constituted, and refuse to accept the estate, or any part thereof, if divided, at the valuation thereof, and shall unanimously desire the same or any part there- of to be sold by order of the court, the said court may order or decree the sale thereof without granting any rule to shew cause why the said estate or any part thereof should not be sold, any practice to the contrary notwithstanding; and to remove doubts, all proceedings heretofore had, and decrees made in the Orphans Court in pursuance of the act entitled " A further supplement to the act entitled an act direct- ing the descent of intestate's real estate, and distribu- tion of their personal estates, and for other purposes therein mentioned," passed April 2nd 1304, or of the act which is hereby amended, where notice has been given in the newspapers of the application for a par- tition or valuation, or where by the consent of the le- gal representatives, a rule to shew cause has been (a)4ra. L. 519. OHAP. 11.3 OF DISTRIBUTION. 373 waved, if otherwise legal, are hereby declared to be valid.'' When the acceptance or refusal of the estate is de- clared by an attorney in fact, the instrument by which he is appointed should be as formal and opera- tive as that empowering him to make conveyance of an estate; and the consent offemmes coverts should be certified in the same way as is used, in making a deed. Such attorney may represent, one or more of the heirs or representatives, and where the guardian of minor parties cannot attend personally, it is presumed that he also may constitute an attorney. The decla- ration of the attorney in fact should be in writing sta- ting his authority, and his letter of attorney, and such declaration should be filed of record in the court. In electing to take a part of the estate, the heir having the right is uncontrolled in his choice, but he cannot have more than one choice, and cannot have more than one piece of property, (a) And where an intestate has left real estate in more than one county, if after inquisition held, any of his legal representa- tives shall accept of the real estate in one county, such person* shall not have the right to elect to take the real estate, or any part thereof, in any other county, until all the other representatives shall have refused to take the same at the valuation. (6) It is scarce necessary to state that where the estate is divided into fewer parts than there are heirs, those who take such parts become indebted to those who have none, and those who have the larger shares to (a) Kline v. Grayson, 4 Binn. 225. (6) Act 7th April 1807, 4 Sm. L. 400. 374 OF DISTRIBUTION. [BOOK v. those who have the smaller. In such cases payment should be made, or secured to be made, according to the act of assembly. The following case will illustrate the manner in which an estate, divided into fewer parts than there are heirs, is to be settled. A died intestate, leaving the following real estate, and issue five children, B, C, D, E, F. A house valued at S 3000 A farm valued at 10 000 A lot valued at 2000 15,000 This sum divided by the number of heirs gives to each S3000 as his portion. But B takes the house va- lued at 83000, C takes the farm, valued at 810,000, and D the lot at $2000. B has therefore received his full proportion of the estate of his father, and D two-thirds of his portion. But C has much more than his share, and must pay or secure to D 1000 E 3000 F 3000 7000 The order of the court is, that the estates ac- cepted by the parties respectively be adjudged to them at the valuation, they paying or securing to be paid to the other children or representatives of the intestate, their respective parts of the value thereof, to be held by the said parties their heirs and assigns, OHAP. ii.] OF DISTRIBUTION. 375 forever in like manner as the same was holden by the intestate. III. Where the return of the commissioners or in- quest is, that the estate cannot be divided, and that it is valued at a specific sum, it is either accepted or refused by the male, and next in the female line in the order of primogeniture. If the heirs appear in person they may accept or refuse as in the case where the estate is divided into fewer parts than there are heirs. If the eldest heir, having the right to elect, or in case of his refusal, the other heirs on whom the right devolves, do not appear on the return of the commissioner or inquest, a rule is to be taken as in the foregoing division, and as provided" by section 8 of the act of 7th April 1807, and section 2nd of act 2d of March, 1808, on the heirs to appear on a day given, and to elect or refuse to take at the valuation. To this rule is generally joined, that given by the act of 2nd April 1804, section 1, requiring them to shew cause why the estate should not be sold. In case of the acceptance of the estate by the el- dest, or other heir, the purparts or shares of the rest are to be paid, or secured to be paid, in some reason- able time, not exceeding twelve months, as the Or- phan's Court may limit and appoint. The security in many of the counties, is by recognizance pursuant to the recommendation of the Supreme Court, in the case of Walton v. Willis, (a) in the course of the ar- gument, of which the C. J. said, that the practice of taking bonds for the security of the purparts was illegal and improper; for the Orphan's Court ought, (a) 1 Dall, 365. 376 OF DISTRIBUTION. [BOOKV. instead of bonds, which are mere personal security, to take recognizances, by which the lands themselves would be bound for the payment of the distributive shares. And such recognizance is a legal, not an equitable lien, upon such lands from its date, (a) and is in the nature of a judgment, and cannot be reduced by claims arising anterior to it. (b) It may be taken in the name of the President of the Orphan's Court, and his successor, and may be sued in the name of the President of the Orphan's Court, for the time being, (c) Jf in the recognizance, principal and surety jointly and severally acknowledge themselves firmly bound, &c. in a sum certain; which sum the principal willeth and granteth to be levied on the said tract of land, the security is personally bound, and an action of debt may be maintained against him upon the recog- nizance. The practice of the Orphan's Court of the city and county of Philadelphia, is to require bonds secured by mortgages upon the premises. This mode has the advantage of the recognizance in binding the lands, and if the mortgage be recorded, it gives more certain notice of the incuinbrance to purchasers. And the mortgage being a transferable and market- able security, is more convenient to all parties. But the legislature in framing the act of 1794, did not adopt the suggestion of the C. J. as to recognizances, though it must have been known to them. That act requires only that the party accepting the estate should give " good security" fur the payment of the (a) Kean v. Franklin, 5 S. R. 147. (c) Kean v. Franklin, 5 S. & R. 147. (6) Beatty al. v. Smith, 4 Yeates, Taggart v. Cooper, 1 S. ? R. 497. 102. CHAP, ii.] OF DISTRIBUTION. 377 shares and dividends." The court are thus enabled to adapt the security to the circumstances of the es- tate, and the wishes of the parties. The decree of the court should set forth the amount of each share, or pur part of the valuation money spe- cifically, and the time fixed for their payment, (a) The case of Walton v. Willis has settled an im- portant principle as it regards the title of the heir taking the estate at the valuation. Neither his elec- tion, nor the adjudication of the court, give him title. These make an inchoate right to be perfected by the payment, or securing the payment of the pur- chase money. The condition on which the adjudica- tion is made must be complied with. For the fee in the premises cannot be vested until the valuation money be paid or secured to be paid. (6) It was formerly the practice of many counties of the state to charge interest on the purparts unpaid, only from the time fixed by the Orphan's Court for the payment of such purparts to the heirs or repre- sentatives. But this practice is fundamentally wrong, and the children or representatives ought to receive interest on their respective shares from the time of the acceptance of the real estate by any of the heirs, (c) The bonds given by the heir or representative accepting the estate, for the purpart of the other heirs, are not in the nature of real estate, but are personal property. In the case of Fo/te v. Barnet, (d) the jquestion was, whether a debt due from the hus- (n) Walton v. Willis, 1 Dall. 354. (c) Hublejr v. Hamilton, 1 Yeates, (6) Ibid. , , 392. (rf) 1 Binn. 358. 3 B 378 OF DISTRIBUTION. [BOOK v. band to the estate of the wife's father might be charged against the wife's distributive share of the valuation money. The question arose on the petition of the administrators of the intestate, to each of whom a part of the real estate was ordered to the Orphan's Court, that the money which by virtue of the inquest and valuation accrued to Yoke, (the husband) in right of his wife might be made payable to them as administrators, in satisfaction -of Yokes debt, or that it might be secured in some other way for the bene- fit of Barnefs estate. The Orphan's Court decreed against the petition, and the Circuit Court upon ap- peal, reversed their decree, and ordered the distri- butive share of Yoke, in right of his wife, to be de- ducted from the sum due on the judgment, and that giving him credit therefor should be deemed a full payment to him in right of the wife. An appeal was made to the Supreme. Court, and the appellants made two points. 1st. That the Orphan's Court had no jurisdiction to act upon the matter of the petition. 2nd. That it was unjust to deduct the husband's debt from the wife's share of her father's real estate. Tilghman C. J. delivered the opinion of the court. " In supporting the first point it was urged, that the Orphan's Court had no authority but what they de- rived from the act of assembly directing them to make partition of the intestate's estate, and that in case of a dispute they have no mode of ascertaining the amount of a debt. But there are cases in which the Orphan's Court must take upon themselves to decide fticts incidental to the partition of an estate. For in- OHAP. if.] OP DISTRIBUTION. 379 stance, if a dispute should arise concerning the amount of an advancement made by the intestate in his life- time to one of his children, partition cannot be com- pleted till this amount be ascertained. If necessary, facts may be ascertained by a jury, so that there seems to be no difficulty in surmounting this part of the ob- jection. If instead of a debt due from Yohe to his father-in-law, he had received from his father-in law an advance in part of his wife's share of the estate, there is no doubt but the Orphan's Court could, and must have deducted the amount of the advance. The case of a debt, to be sure, is not quite the same, al- though in fact, this debt has drawn as much from the estate of Henry Barnet into the hands of his son-in- law, as if it had been an actual advance. But in- asmuch as Yohe cannot come at his wife's share without the aid of the Orphan's Court, I see no rea- son why that court may not deduct what appears to be due from him to the other heirs in a case like the present, where if he once gets hold of the money on the bond there is reason to fear that paj'ment of his debt will never be obtained. I speak now, taking it for granted, that Yolie is entitled to receive the amount of his wife's share, which is the second point for consideration " The Orphan's Court have ordered that a bond should be given to Yohe in right of his wife, for the amount of her share*. It is said, and not without plausibility, that this bond being given in lieu of land, ought to be considered as the property of the wife; that if the bond was passed immediately to her, and ehe should survive her husband, it would be her ab- 380 OF DISTRIBUTION. [BOOK v. solute property, and that it is hard to deprive her of this chance. There certainly may be hardships in cases of the kind, which probably the legislature were not aware of, when they directed the mode of parti- tion. But we must take the law as we find it written. There is no ground for saying that the share thus di- rected to be paid in money remains for any intent or purpose of the nature of real estate. It is converted completely into personal property. The bond would be altogether in the power of the husband. He might release it, assign it, or dispose of it in any way he thought proper. It is to be regretted that the courts in this state are not vested with the power exercised by the courts of Chancery in England, of insisting on sme provision for the wife when the husband applies to them for the purpose of getting possession of her personal property. But we have no trace of any such exercise of power by our courts. It must be taken for granted, then, that they possess no such power. That being the case, Jacob fofie appears to be sub- stantially the owner of his wife's share. If it was paya- ble in cash, he would have a right to demand it-, and being in fact no more than money to be secured by bond payable in a time to be fixed by the Orphan's Court, not exceeding twelve months from the par- tition, I am constrained to consider it as his property. I am therefore of the opinion that the equity of this case demands that the balance due on the judgment against Jacob Yoke should be deducted from his wife's share, and that the judgment of the Circuit Court be confirmed." But the real estate is not converted into personal, CHAP, ii.] OF DISTRIBUTION. 381 until it has been actually sold, and the sale has been confirmed by the Orphan's Court. This was decided in the case ofFerree v. Commonwealth, (a) The opinion of the court was delivered by Gib- son J. Joseph Ferree, the intestate, left a widow, a brother, and the issue of two sisters By an inquisi- tion taken on the real estate, for the purpose of ma- king partition, it was found that the property could not be divided, without injury to the whole, and it was appraised according to the intestate laws. The heirs severally appeared, and refused to take at the valuation, and an order of sale was obtained and re- newed from time to time, till the property, after the lapse of a few years, was sold. In the meanwhile, David Ferrer, the brother of the intestate, had died; and Hannah, one of his children, had intermarried with the plaintiff, and had also died a short time be- fore the sale: so that the question is, whether her in- terest in her father's portion of the estate, was real or personal at her death? If personal, the plaintiff would be entitled to the whole, as her administrator: if real, he would be tenant by the curtesy of the mo- ney, and entitled only to the interest; the principal having descended to the heirs before it was turned into money. " This is a plain case, and one about which little need be said. The counsel for the plaintiff, rest the argument on a supposed analogy between it, and the case of land stipulated to be turned into money, which, in equity, is always to be taken as money. But there is no point in which the analogy holds. In the first place, there is no stipulation in the case, (a)8S.&R. 312. 382 OF DISTRIBUTION. [BOOK v, there being no contract with a purchaser: and in the second, the matter is not to be considered as in equity at all: and if it were, it would be so much the worse for the plaintiff's pretensions. If he were claiming the aid of a chancellor exercising his powers in the ordinary mode, he would not be suffered to touch even the personal estate of the wife, without an adequate settlement-, but he would not be assisted on any terms, in turning her land into money. No one more highly appreciates the policy and general effect of our intes- tate laws than I do; yet the frequent transmutation of the real estate of married women into personalty, is one of the oppressive consequences of their operation, and of our want of the specific powers of a Court of Chancery, which every jurist mustregret Itnever was an object with the legislature, to transfer the real estate of the wife to the husband, as if it were personal, for in breaking on the common law rules of descent, care is taken in other parts of those laws, to prevent the estate from passing to those who are not of the blood of the first purchaser j and those of the half blood are suffered to inherit in preference to the more remote kindred, only where the estate has been acquired by the in- testate himself. Had it been foreseen that a contra- ry result would be produced by turning a wife's land into money, it would doubtless have been prevented. For myself, I shall never consent to give effect to a claim by the husband, or those in his stead, to what was at any time the wife's real estate, where it is possible to defeat it by any construction, however forced. Here, however, the husband is pursuing a supposed legal right, without a particle of equity; to CHAP, ii.] OF DISTRIBUTION. 383 support which, would require a violent and unnatural construction the other way. The order of sale could not have the effect of changing the nature of the estate of those entitled, unless it had, at the same time, the effect of divesting their interest in the land-, and that can not be pretended j for it would be monstrous to say, they should not maintain an action for an injury to the freehold, committed after the order was made, for no one else could. It is clear their interest would be bound by a judgment-, and that they would be sub- ject to a payment of taxes, and every other incident of ownership. Why, therefore, should not the land be subject to the rules of descent? I take it, then, that persons entitled under the intestate acts, are, in every respect, and for every purpose, complete owners of the land, till their interest is divested by a sale and confirmation: for till that takes place, the proceedings are but m fieri" If in the partition of the lands of the intestate a part is allotted to a married woman, and her husband pay no money to equalize the partition, the land be- longs to the wife^ the husband has only a life estate therein, and after his death it cannot be sold for his debts. These points were established by the case of Blo- cher . Carmony, administrator of //ess, (a) in which Tilghman C. J. delivered the following opinion of the court. 'This is an appeal from a decrefe of the Orphan's Court of Dauphin county, confirming the sale of a tract of land supposed to be the property of George (a) 1 S. & R. 460. 384 OF DISTRIBUTION. [BOOKV. Hess deceased, made by his administrator by order of the said court. Matthias Blacker, the appellant, who married the widow of George Hees, contends that the sale ought not to have been made, because the land was the property of Hess's widow. It ap- pears from the facts stated on the record that the land in question, was part of the real estate of William Palm deceased, who died intestate, leaving a widow and three children, Catharine, the wife of Joseph Carmony, Mary, formerly the wife of the said George Hess, now of Matthias Blocher, and Elizabeth, the wife of George Moore. On a petition to the said Orphan's Court for the partition of the said Palm's estate, it was divided into three parts, one of which was assigned to each of the husbands in right of their respective wives, the daughters of Palm. The parts assigned to each were not exactly equal, and Hess's being the least valuable, he was entitled to receive a sum of money to make his wife's share equal. It is now contended by the appellant, that George Hess had an absolute estate in fee simple in his wife's land. Upon consideration of the act of assembly of the 19th April, 1794, under which the petition was made, I can perceive nothing which countenances such a pre- tension. The Orphan's Court is authorized to have a partition made in the manner directed by the act between .the widows and children. But in case the land will not admit division into as many parts as will be sufficient to assign one portion to each, the court may either assign the whole to one child, or to several of the children, as circumstances require; and in such case the whole estate is to be appraised; those chiHjl CHAP.U.J OF DISTRIBUTION. 385 dren who get no land are to receive their shares in money; and the widow is to receive during her life the annual interest of one-third of the value of the whole land in lieu of dower. There may be cases of hardship or difficulty under the complicated system of our intestate laws, where large sums of money are paid by husbands on account of their wives, who receive their portion in land, to their brothers and sisters, who take their part in money. It will be re- membered that the opinion now given, is confined to the case now before the court, where each child had part of the land, and the wife of Hess, intead of pay- ing was entitled to receive money in order to equalize the partition. In such case there is no more reason for the husband's taking the fee simple, than if he had obtained judgment in a writ of partition in a court of common law. No such right is given by the act of assembly, nor is there any equitable circumstance on which he can found it. I am therefore of opinion, that the Orphan's Court had no right to order a sale of this land, as the property of George Hess. He had an interest as long as he lived, in right of his wife, and if he had survived her, he would have been te- nant by the curtesy. But on his death all his right was extinguished. The decree must therefore be re- versed/' The doctrine of this case was confirmed by the case of Fogelsonger v. Somermlle & al. (a) in which it was determined, that when the estate of an intestate has been valued in the manner prescribed by the intes- tate laws, and the husband of a female heir agrees (a) 6 S. & R. 2C7. 3 c 386 OF DISTRIBUTION. [BOOK v. to take it at the valuation, the Orphan's Court have no power to vest in him for his own use, his wife's" share of the estate; and if the court decree the es- tate to him in fee, on giving recognizance for the payment of the shares of the other heirs, the de- cree as it respects his wife's proportion, is void-, and on her death, without having had issue, and without having done any thing to divest her title, her share descends to her heirs-, and that a bona fide purchaser for a valuable consideration from the husband, is in no better situation than the husband himself. This case also determined a point of much impor- tance under the intestate laws, which had not before been decided. Where the husband takes the real es- tate of which his wife is an heir and has paid or se- cured to be paid to the other parties in interest their proportions of the appraised value, he may hold in his own right as much as he has paid for. But with re- spect to his wife's share he has no greater interest than in any other part of her real estate. The same point was decided in the case of btoolfoos and al. v. Jenkins and wife, (a) In the latter case, John tlub- ley, Esq. who had been four years in the office of Ed- ward Shippen, Esq. the clerk of the Orphan's Court of Lancaster county prior to the revolution, when JWr. Hubley was himself appointed to that office, and filled it until the year 1800, and who practiced in the Orphan's Court both before and after his appoint- ment, and was familiarly acquainted with the proceed- ings of that court during the whole of those periods, certified " that it was the common usage for husbands to petition the Orphan's Court in the right of their (a)8S. &JR. 174. UHAP. ii.] OF DISTRIBUTION. 387 wives, for the partition or appraisement of their wives' estate, and to ask for, and obtain confirmation of them in fee to the husband, upon giving security for paying to the other children, their shares of the valuation money." But to the argument drawn from this usage Duncan J. delivering the opinion of the court, replied, " That usage can never be a good one which takes away the land of one, and gives it to ano- ther without warrant of law. Usage against a statute is an oppression of those concerned, and not an expo- sition of the law. Vaughan, 169, 383, 1 Doll 178. This is not a mere matter of practice, but a question of right, and such usage cannot supersede positive law . A misconception of the Orphan's Court of their powers cann6t be set up against the law itself; and this Court cannot be referred to the practice of that very court, to learn what the law is by which they are to proceed. An unbroken general usage where a con- struction is doubtful, and much property depends upon it, I would not disturb-, but where the law is quite clear, and will not admit of doubt, precedents, which have passed sub silentio, ought not to prevail. In Sommer- vttle's case, decided by this court, the first case ever brought into judgment, the court refused to sustain this practice." The last case reported on this subject, is that of M'Cullough v. Elders' executws, (a) in which the prin- ciples of the preceding cases are confirmed. But the title which the husband obtains under the Orphan's Court, accompanied with possession of the whole of the land, will enable him, after the death of the wife, (a)8S. &R. 181. 388 OF DISTRIBUTION. [BOOK v. to recover the whole against one who has entered without better title. (6) If any one of the heirs taking land at the valua- tion, have claims on the others for advances made for the benefit of the whole, he must have such claims adjusted and allowed in the settlement of the several shares and purparts. It is too late after bond given for such shares and purparts. This was determined in the case of Beatty and Wife v. Smith, (a) which was debt on recognizance, in the Orphan's Court, plea, pay- ment, with leave to give the special matters in evi- dence. The facts were these. " Samuel Smith, the father of plaintiff's wife, and of the defendant, died in 1 763, intestate, seized of a tract of 408 acres of land, leaving a widow, four daughters* and one son, his youngest child, then aged six years. The family were brought up together, and lived on the land un- til the daughters were severally married in 1778. The defendant occupied the lands afterwards for his own use. On the fourth September, 1797, the plaintiff applied for a partition or valuation. The jury did not divide but valued the land, which was accepted by the defendant, who entered into recognizances for the payment of the distributive shares of his sis- ters on the 27th November." " The defendant gave notice of several matters for which he claimed sett-offs. 1st. That the improve- ments on the land made since the death of the intes- tate until the time of the valuation being appraised with the land, he claimed to be allowed an equivalent therefor proportioned to each child s share. 2nd. He also claimed an allowance for taxes paid on the real (a) 4 Jfeates, 102. (6) S. & R. 181. OHAP. n.J OF DISTRIBUTION. estate from 1780 to 1797. 3d. Likewise, for his trouble, costs, and expenses, in defending an eject- ment brought against him by a family agreement, on which there was a subsequent eviction in 1 7 89, of for- ty-seven acres, part of the lands appraised; and 4th. for the taxes paid by him on these forty-seven acres." " On the defendants' offering to give evidence of these sett-offs, the plaintiff's counsel excepted there- to. And after argument the court said, " Unquestionably the recognizance in the Orphan's Court is in the nature of a judgment. The interests of minors, as well as persons of full age, would be strangely affected, if a doctrine should prevail, that while they were divested of the interests in the land, their distributive shares of the valuation should not be placed on a secure and permanent footing. If they are liable to have their dividends reduced by cir- cumstances or considerations which have occurred anterior to the recognizance solemnly given, they will be but badly protected by the law. Why was not this defence set up by the son in the Orphan's Court previous to their decree, and his subsequent recog- nizance? Can any good reason be assigned for it. We cannot presume that the inquest have appraised valuable permanent improvements made at the son's expense, as the property whereof, the father died seized." " The testimony as to the two first items must be over-ruled; as to the two last items which have hap- pened since the valuation, as it is said, under the agreement of the family, evidence applicable to them may be given." 390 OF DISTRIBUTION. (TBOOK v. If the decree in partition in the Orphan's Court, in which a minor is interested be erroneous, he is not concluded by his own, or his guardian's acceptance of the sum at which his interest in the estate is valued, provided, as soon as practicable after his arrival at lawful age he take the necessary step to question the proceedings. Nor is he concluded, though he ac- cepted the purpart after his coming of age, if he were then ignorant of the wrong done him. (a) SECTION v. Of the sale of the real estate where the parties refuse to take at the valuation. By the act of 1794, the heirs or representatives of the real estate weje compelled to accede to the par- tition, or take at the valuation settled by the Or- phan's Court. In case the estate was not divided, some one must have taken it at the valuation, though the weight of the purchase should render him unable to hold it. So if the estate were divided into fewer parts than there were heirs, the parts must have been taken by some one of the heirs, with the burden of paying to others their purparts: Or, in case of the refusal of all the heirs to take, the whole proceeding in the Orphan's Court must have been abortive. These inconveniences were remedied, by the acts 12th April, 1804, (b) and 26th March, 1808. (c) We have already spoken of the rules upon the heirs to come in, and take at the valuation, and to shew cause why the estate should not be sold, and of the refusal of the heirs and petition for sale. (a) Elliot v. Elliot, 5 Binn. 1. (cj4 Sm. L. 519. (6) 4 Sm. L. 185. CHAP, ii.] OF DISTRIBUTION. 391 Upon the petition of one, and the refusal of all the heirs to take at the valuation, an order of sale is of course. In the execution of which the following points are to be attended to. 1. The sale must be on the premises. 2. It must be on a day certain, to be ascertained by the court. 3. Ten days notice must be given by the adminis- trator, by advertisement, in the newspaper printed in the county, if any there be, and if there be none, then in that nearest to the county wherein the land lies. 4. The terms on which the estate is to be sold must be fixed by the court: or as the practice more frequently but not more wisely, is, must be approved by them after sale made. In the city and county of Philadelphia, it is the practice to hold the sale at the Merchant's Coffee House, notwithstanding, the act of assembly express- ly requires it to be held on the premises. The de- viation from the words of the law is certainly attend- ed with many advantages to the vendors of the estate. The sale being held at a more convenient hour, among men of business, in a central situation, in the midst of the money market. Upon the sale being made and return thereof to the. court, they are required on motion of the pur- chaser to confirm it, and to decree the estate in the premises so sold, to be transferred and vested in the purchaser, as fully as the intestate held the same at his decease: subject and liable to the payment of the purchase money according to the terms prescribed 392 O*' DISTRIBUTION. [BOOKV. by the court, in the order of sale: And they may order the proceeds of such sales to be distributed in such manner as according to law and justice may be proper. The power thus to distribute the proceeds, draws with it, that of deciding upon the interests of the several parties; such as, title, quantum of interest, advancement, unsettled accounts, and in a word upon every thing necessary to make a just and equitable settlement of the estate. Upon the return of the order of sale the confirma- tion is made nisi; and an opportunity is thus given to the parties interested to take exceptions to the sale. If exceptions be taken, they are heard and disposed of, as in other cases of sale, by order of the Orphan's Court and an appeal lies from a final decree to the Supreme Court. CHAPTER III. SECTION I. Of the Widow's Dower. The widow's right of dower at common law has always existed in Pennsylvania. This right extends to one-third part of all the lands and tenements whereof the husband was seized at any time during the coverture, to hold to herself during her natural life, (a) This part is to be assigned to her by the heir, or any person in possession of the land, who has not such possession by her fraud or covin. (b) In default of assignment she has an action of dower either by writ of dower unde nihil habet; or if a partial assign - fa) 2 B1. Com. 129. (6) Bac. Ab. title dower D. OHAP. in.] OF DOWER. 393 ment have been made to her, by a writ of right of dower, which is a more gejie,ral remedy extending to a part or the whole, (a) On the determination of the right of the widow, the jury which tries it, apportions the dower, and she is put into pos- session by the sheriff. The same jury also gives damages for the mesne profits, from the death of the husband, for which execution issues. (6) Besides the right of dower properly so called, the widow has her quarantine; which is the privilege of continuing in the capital messuage, or mansion-house, or some other house whereof she is dowable, forty days after her husband's death; (whereof the day of his death is accounted one,) and during that time to be provided with all necessaries at the expense of the heir, and' before the end thereof, to have her dower assigned to her. This privilege is given by the statute of 9th Henry III. c. 7, which is so far in force in Pennsylvania, (c) The right of dower attaches on the death of the husband, and the widow may be endowed temporari- ly, though there be a deficiency of personal assets to pay debts, and though upon a sale of part .of the lands her dower will decrease in proportion, (d) A died intestate, leaving a widow and a sister, his heir-at-law. By an amicable action the yearly value of the widow's dower, or rather her share under the intestate laws was settled at 1 50/. which was agreed to be paid her annually. The first annual payment was duly made, but was afterwards stopped on notice (a) 3 Com. 183. (c) Report of Judges, Robert's Dig. (6) Ibid. (d) Price &ex. v. Johnston, 5 Teates, 516. 3 D i 394 OF DOWER. [BOOKV. given of debts due from the intestate. An action was brought to recover the. sjims subsequently due, and the reference to whom it was submitted, reported that there was no money due to the plaintiffs, as the whole estate was consumed by the payment of debts by the defendant, which were due from the deceased at his death. Exceptions were taken to this report, on the ground that the referees had erred in point of law, by making the widow, who had but a life-estate in the moiety of the intestate's lands, contribute to the heir one-half of the decedent's debts remaining un- paid after the exhaustion of the personal assets, out of the annuity awarded to her in lieu of dower. The re- port was set aside by C. J. Tilghman, sitting at a Cir- cuit Court, from whose judgment an appeal was made, for the following reasons: 1st. A widow is not entitled by the laws of Penn- sylvania, to dower, until the debts are paid. 2nd. The estate, which is the foundation of the wi- dow's claim is subject to execution, and may by law be delivered to creditors for the payment of their debts. Yeafes J. in delivering the opinion of the court said, " The debts due from the intestate are chargeable on his lands, on a deficiency of personal assets, but until the creditors have proceeded to a sale, the right of the widow to the profits of her share stands on the same footing as the right of the heir to his share. If the heir pay debts, he can come in as a creditor pro tanto. " It is true, the widow's ultimate right of dower CHAP. HI.] OF DOWER. 395 must depend on the state of her husband's lands after payment of his debts-, but it is not true, that she cannot receive a temporary share until that object is accom- plished. She, cannot compel the creditors to com- mence suit, and without funds she cannot discharge the debts. When any part of the lands is sold by le- gal process, the share of the widow must proportional- ly decrease: but as between her and the heir, she was / entitled to one moiety of all the lands until such sale. It may be another question, which, however, cannot take place here, whether if upon a sale of all the lands, there should be a deficiency of assets, both the heir and widow might not be eventually responsible to creditors. So far from the widow's claim of dower beinoj discouraged bv our laws, she derives an interest \j from the valuation of mere woodland in a state of na- ture, where the same cannot be divided with pro- priety. ' ' The erroneous principle on which the referees have proceeded will be readily perceived, by con- sidering the plaintiff's demand to the annuity of 150Z. That sum was fixed on by the first award, in lieu of the widow's right of dower, and is the interest arising out of a principal of 25001. for one year. It follows of course, that the first set of referees must have va- lued all the lands of the intestate at 50UO/. or as pro- ductive of 300/. annually in net profits. Now, if those lands are resorted to by a creditor for the payment of a debt of 20001. due from the intestate, or if any one on behalf of the heir-at-law should pay that sum, and look to the lands for remuneration, the conse- quence as to the widow must be, that the principal, 396 OF DOWER. [BOOK v. out of which her annuity would thenceforth accrue, would be decreased from 2500 to 1 500J. and her an- nuity in future would be 90J. and not 150/. This re- duces the matter to a mathematical certainty, but by the account of the referees which accompanied the report, they assume the principle, that in the case already put, the widow would be chargeable with the payment of WOOL the one full half of the whole debt, which is palpably unjust. I have, therefore, no hesitation in saying, that the report was set aside on the most just grounds." But the widow cannot enter upon the lands until her portion be assigned and set out to her either by the heir, terre-tenant, or sheriff, in certainty, and even if she recover dower of the land, she cannot enter before execution issued (a) And though she may have entered into possession, the heir or devisee may recover against her without assigning her dower, (b) If the husband sell the estate, and it be improved by the purchaser, the widow shall take no advantage of the improvements, but throwing them out of the estimate, she shall be endowed according to the value at the time of assigning the dower, (c) But if the improvements be made by the heir, the widow shall be endowed of one-third part of the estate, according to its value at the time dower is assigned to her; be- cause it was the folly of the heir to make improve- ments on land which he knew to be subject to dower, (d) (a) Less, of Eyfos r. Webb, 1 c) Thompson ?. Morrow, 5 S. & R. Yeates, 424. 290. (&) Ibid. (d) Ibid. OBAP. HI.] OF DOWER. 397 A woman is entitled to dower in all the lands of the husband: but he must have been seized in fact, or in law of the freehold, as well as of the estate of in- heritance during the coverture. Therefore dower cannot be demanded of an estate, the remainder in fee of which was vested in the husband subject to a life-estate in a third person, which remainder the husband had aliened during coverture, (a) She is also endqwable of a trust estate, (6) but not of the estate held by the trustee, (c) And it has been held, that the widow was not dowable of lands held by warrant, because, under the customs, and estab- lished practice of the country, lands warranted, and even surveyed, were considered in early times as chattel interests, and sold as such in the course of ad- ministration, (d) But this has been overruled, and she is now dowable of lands held by improvement rights alone. This was determined in the case of Kelly and wife v. Mohan, (e) in which the court said, " we have gone too far into the improvement doctrine, to exclude a widow from her claim of dower of lands, held under such equitable, though imperfect title, so frequently recognized by the laws and usages of this state. Ejectments have been frequently supported under such rights, and it has been determined that a prior improvement under Pennsylvania, shall prevail against a Virginia certificate, under the compact be- tween the two states. The sale of improved lands for payment of debts by an administrator in modern (a) Shoemaker v. Walker, 2 S. & R. S. 6. 556. (d) 2 Yeates, 168, Dodson v. Davis. (6) Ibid. ( e ) Ibid. 515. (e) Bac. Ab. Tit. uses and trusts B 398 OF DOWER. [BOOKV. times, without an order of Orphan's Court, has also been declared by us to be void. With what propri- ety then, can we consider lands held by settlement and improvement as real estates sanctified by law and custom as to all other purposes, except the solitary instance of the dower of the widow, who has in most cases been highly instrumental in building up the title." The widow is also dowable of a rent charge, (a) If the husband seized of lands in fee, exchange them for other lands, and die, the widow may elect to be endowed, either of the lands given or taken in exchange, because the husband was seized of both during the coverture, but she cannot have dower of both. (6) If the husband convey his lands, reserving rent, the wife may be endowed of the lands, freed from the rent, or she may be endowed of the rent, but not of both, (c) There cannot be dower of an estate in dower, where the tenant of whose estate dower is last claimed, is in by continued desjcentj but it is otherwise where the descent is broken from the tenant of whose estate the first estate of dower is had. As if there be grandfather, father, and son, and the grandmother be endowed, the mother shall not be endowed of the grandmother's thirds after her de- cease, because the grandmother's dower defeats the descent to the father, and the father w r as seized of no more than two-thirds of that land (d) But if the grandfather had enfeoffed the father of the whole (a) Bac. Ab. Dower, B. (c) Ibid. (b) Ibid. E. (d) Bac. Ab. ib. 4 Co. Litt. 122. CHAP, ni.] OF DOWER. 399 land, and died, and the grandmother had been en- dowed either by recovery or assignment, there the mother should be endowed of the grandmother's third after her decease; because by the conveyance the father was seized of the whole estate. And if there be grandfather, father, and son, and the two first die, and the mother is endowed by the son of a third part of the whole, and the grandmother brings a writ of dower against the mother and recovers, she leaves the reversion in her: for the dower was vested in the mother by the assignment or recovery, and is defeat- ed during the life only of the grandmother, whose es- tate as to the mother is less than her own estate, (a) The wife cannot be endowed of an estate in join- tenancy, (6) nor of a mere descendible freehold; therefore, if a man make lease for life, rendering rent to him and his heirs, and after marry and die, his wife shall not be endowed of this rent, because it is but a descendible portion, nor of the land, because not seized during coverture, (c) The husband must have the freehold in him simul et semel, otherwise the wife shall not be endowed; therefore, if lands are given to the husband for life; remainder to B in tail, remainder to the husband in fee or in tail, and he dies leaving B or any of his is- sue his wife shall not be endowed, (d) Nor shall the wife be endowed of a mortgage es- tate; for if the money be paid at any time, equity will relieve against the claim of dower, by the widow of the mortgagee, (e) . (a) Co. Litt. 31, 42. (d] Ibid. f l>) Hac. Ah. Dower, B. 3. (e) Ib. note. (c) Ibid. 400 OF DOWER. [BOOK v; The tenant in dower is prohibited by the law from committing waste, by altering or deteriorating the estate, (a) But it has been decided, that she may clear woodland assigned her in dower, without being guilty of waste, provided she does not exceed the re- lative proportion of cleared land, considered as to the_ whole land. (6) SECTION n. How the dower of the wife may be barred. The wife may be barred of dower, 1st. By the re- covery of the estate against the husband. 2d. By jointure. 3d. By devise in lieu of dower. 4th. Elope- ment with an adulterer. 5th. By divorce. 6th. By alienage. 7th. By joining in the conveyance of the estate of the husband. 8th. By mortgage made by the husband and sale of his estate for the payment of debts. I. If the husband have no title to the estate, it is obvious that a recovery against him ought to bar the dower of the wife, as her title is based upon his es- tate of inheritance. But the recovery against the husband must be bona fide, and not by covin or collu- sion, and the wife may at all times, by action against the terre-tenant, compel him to shew title, (c) This action is given by 13 Edw. 1, which is in force with us. (d) II. Jointure in bar of dower is a competent liveli- hood of freehold for the wife, of lands and tenements, to take effect in profit or possession, presently after (a) Co. Litt. 53. a. b. 54. A- (cj 2 Insl. 349. (bj Hastings et al. v. Crunkelton, (d) Robert's Dig. 182. 3 Yeates, 261. c HAP. in. j OF DOWER. 401 the death of the husband, for the life of the wife at least, (a) Jointures for the purpose of barring the dower of the wife were introduced prior to, and con- firmed by the enactment of the stat 27, Hen. 8, c. 10. The 6, 7, and 9th sections of which have been adopted in Pennsylvania (ft) In creating the jointures, these four requisites must be punctually observed. 1st. It must take effect im- mediately on the death of the husband, (c) 2d. It must be made to the wife herself, and to no other in trust for her. (d) 3d. It must be for her life at least-, (e) and 4th. must be in satisfaction of her whole dower, and not of any particular part of it; and it should be so expressed in the deed, though it may be averred to be so. (/) If the jointure be made after marriage, she has the election after the death of the husband to accept or to refuse it, and to betake herself to her dower at common law; for she is not capable of consenting to it during coverture, (g) The great advantage of a jointure is, that the wife may enter upon her estate immediately after the de- cease of the husband; whereas much trouble, and a tedious process is necessary, to compel a legal as- signment of dower. And the British writers add another: viz. that a jointure is not forfeited by the adultery of the wife, (h) A jointure made before marriage is equally bind- (a)llnst. 36. ICh. Ca. 181. (6) Rep. of Judf. Rob. Digest. 408. (g) 2 Com. 188. Shaw v Boyd, 5. (e)4Co. 3. S . &R. 311. 1 Dall. 417. (d) \ Inst. 36. b. (h) Cox P. Wms. 277, Jac. L.aw (e) Crok. Eliz. 128, Owen 33. Diet. Dower. (f) Inst. 36, b. 4 Rep. 3. Dyer, 220. S E ; 402 OF ROWER f ing upon the wife, whether she were an infant, or of full age-, and concludes her not only as to her dow- er in her husband's lands, but also as to her claims under the statute of distribution on his personal pro- perty, (a) This principle was recognized here by the case of Shaw v. Boyd, (b) in which it was determined that a naked contract by an infant in expectation of mar- riage made with the consent of her parent and guar- dian is not sufficient to bar her dower. The case was this: A female infant in contemplation of marriage made with the consent of her parent and guardian, gave her bond in consideration of five hundred dol- lars, to be paid to her by her intended husband's exe- cutors or administrators after his decease, engaging to release her dower in the lands of which he should die seized. After the death of the husband, the five hundred dollars were paid to her, and she by deed, (being still a minor) released her dower to the heirs and representatives of her deceased husband, and the money was appropriated by her second hus- band to his own use. It was held, that she was not barred from her right of dower, but that she might recover in an action of dower, without refunding or tendering the money she had received. Because there was in fact no settlement by the husband, he having executed no agreement nor bound himself or his representatives, and that the bond of the wife did not operate as as an implied covenant of the husband. And though the definition of a jointure under the (a) Buckingham v. Drury, Bro. P. C. (b^S S. & R. 311. tit. Dower, Ca. 4. 2 Eden's, Rep. 39. .j OF DOWER. 403 stat. of 27 H. 8. be a " competent livelihood of freehold for the wife," yet it is fully settled that her dower may be barred by a settlement of personal estate. () III. If the husband devise to his wife a portion of his estate in lieu of dower, and she accept it, she will be barred from her dower. Before the passage of the act of 4th April, 1797, (6) the intention of the husband to bar the dower must have been very clear from the words of the will; it could not be inferred from its silence, or presumed upon conjecture. For no devise to a wife, even of an estate in fee simple, although ten times more valuable than her dower, would of itself have barred her dower; but it would have been considered as a benevolence, and she would have been entitled to both, (c) The will itself imports consideration, and the devisee is to be con- sidered a purchaser. And dower cannot be barred by a collateral recompense, (d) Where the devise to the wife was not declared in the will to be in lieu of dower, the law would inter- pose against the wife's claim of dower only in the following cases. 1st. Where the implication of the in- terest of the testator that she shall not have both the devise and the dower is strong and necessary. 2nd. Where the devise is entirely inconsistent with the claim of dower; and Sdly, where it would prevent the whole will from taking effect; that is, where the claim of dower would overturn the will altoge- ther, (e) (a) Drury v. Drury, 5 Bro. P. C. Webb. 570. Williams v. Chitty, 3 Ves. (d) I Dall. 418, & cases there cited. 545. (e) 1 Dall. 418. Hamilton v. Buck- (6) 3 Sm. L. 300. waiter, 2 Yeates,3tf'J. M'CoIlough (c) Kennedy v. Nedrow Sf ux. 1 v. Allen, 3 Yeates, 10. Addis. Dall. 418.1 Yeates 425. Evans v. 35 1 . 404 OF DOWER. [BOOK v. But by the above recited act it is provided, that " if any testator after the passing of this act, shall de- vise or bequeath to his wife any portion of his estate, such devise or bequest shall be deemed and taken to be in lieu and bar of her dower, out of the estate of her deceased husband, in like manner as if the same were so expressed, unless such testator shall by his last will and testament declare otherwise, any law, usage or custom of this commonwealth to the contra- ry notwithstanding: Provided always, that nothing in this section contained, shall deprive the widow of her choice, either to dower or to the estate so be- queathed (a) Many inconveniences arising from the want of a prescribed time and mode, at, and by which such choice" of the widow should be made; the act of 1st April, 1811, was enacted, providing, that " in all cases of devises or bequests to widows, which by force of any last will or testament, or by operation of law, will bar such widow of her dower, subject to her right of election; the Orphan's Court on the applica- tion of any person interested, at any time after twelve months, after the testator's death, may issue a citation to the widow, to appear at a certain time, not less than one month thereafter, before it, to make her election, either to accept of such devise or bequest in lieu of her dower, or waive the same, and take her dower; of which election, a record shall be made, which shall be conclusive to all parties: But the re- fusal or neglect of the widow to appear on due proof (a) 3 Sm. L. 300. JHAP. in.] OF DOWER. 405 of the service of the citation, shall be deemed an ac- ceptance of the devise or bequest, and a bar of dower, of which a record shall be made, which shall be conclusive to all parties concerned, (a) IV. At common law, elopement was no bar to dow- er, although a divorce from bed and board for adul- tery had been obtained. But by the Stat. 13 Edw. 1. c. 35, which so far as it relates to this subject is in force here; (6) it is provided, " that if a wife willingly leave her husband and go away, and continue with her advouterer, she shall be barred forever of action to demand her dower, that she ought to have of her husband's lands, if she be convicted thereupon; ex- cept that her husband willingly, (and without coer- cion) reconcile her, and suffer her to dwell with him." Under this statute it has been decided, that if the wife be forcibly carried away, but remain willingly with the adulterer, or willingly elope, but do not re- side with him, she forfeits her dower, (c) V. By our laws divorce a vinculo matrimonii, is al lowed for causes, antecedent and subsequent to the marriage. The causes antecedent, are impotency, prior marriage, consanguinity, or affinity within the degrees prohibited by law. (d) To which may be added the common law disabilities of nonage and ^ want of reason, (e) The causes subsequent are, adultery, wilful and malicious desertion and ab- sence without cause for two years, and for cruelty of the husband towards the wife. (/) In cases (a) 5 Sm. L. 257. 345. Act 2 Ap. 1804. (6) Rep. of Judges. Rob. Dig. 186. (e) 1 Bl. Com. 436, et seq. (c) 4 Inst. 433. (/) 6 St. L. 286. Read's continUa. (m. L. 345. Rep. 29. I OHAP. 111.3 OF DOWER. 407 But can the alien wife of a citizen be endowed? This question it is also presumed may be answered affirmatively, provided the estate in dower does not exceed five thousand acres of land. Because where the law allows an alien to purchase an estate of in- heritance to that extent, it cannot be supposed to forbid the purchase of an estate not of inheritance. Omnis majus in se continet minus. And a title by mar- riage is a title by purchase, (a) VII. A woman may be barred of her dower by joining her husband in a deed of conveyance of the land. This bar to dower grows out of the custom of Pennsylvania, by which the husband and wife by joint deed of conveyance were permitted to transfer even the estate of the wife, and a fortiori, to extin- guish her claim to dower, in the lands of the husband. (fe) Originally such deeds were held valid, without the acknowledgment or separate examination of the wife before a judicial officer; (c) though such ac- knowledgment and examination were sometimes had. But doubts arising from this variance in the practice, as to the validity of such conveyance, the act 24th February, 1 7 70, (d) was passed to quiet dis- putes, and establish a mode by which husband and wife might thereafter convey the estate of the wife. The 2d section of this act provides, that where any husband and wife shall incline to dispose and convey the estate of the wife, or her right of, in or to any lands, tenements, or hereditaments, whatsoever; it (a) Bl. Com. 241. (c) Lloyd's less. v. Taylor, 1 DalU (b) Davy & Ux. v. Turner, 1 Dall. 17, decided in 1768. 11 Rob. Dig. 196. (d) 1 Sm. L. 307. 408 OF DOWER. BOOK v. shall be lawful for the said husband and wife to make, seal, deliver and execute any grant, bargain and sale, lease, release, feoffment, deed, conveyance, or assur- ance, in law whatsoever, for the lands, tenements, and hereditaments, intended to be by them passed and con- veyed, and after such execution to appear before one of the judges of the Supreme Court,or before one of the justices of the county court of Common Pleas, of and for the county, where such lands, tenements, and hereditaments may lie, and to acknowledge the said deed of conveyance; which judge or justice shall take such acknowledgment, in doing whereof he shall ex- amine the wife separate, and apart from her husband, and shall read or otherwise make known, the full contents of such deed or conveyance to the wife, and if upon such separate examination, she shall declare, she did voluntarily, and of her own free will and ac- cord, seal, and as her act and deed, deliver the said deed or conveyance, without any coercion, or com- pulsion of her said husband, every such deed or con- veyance shall be, and the same is declared to be good and valid in law to all intents and purposes, as if the said wife had been sole, and not covert, at the time of such sealing and delivery. By subsequent acts of assembly, the judges of the Supreme Court, and of the Court of Common Pleas, the justices of the peace of the several counties, and the mayor and recorder, of the city of Philadelphia, may take acknowledgments, and probates of deeds, and conveyances, touching or concerning any lands, tenements, or hereditaments, lying in any part of the state. HAP. HI.J OF DOWER. 409 But as the justice of the peace can do no official act nor exercise any judicial function out of his pro- per district or county, an acknowledgment of a deed by a. feme covert, taken in one county, before a justice of the peace of another county, for lands lying in the county for which he is a justice, is void, (a) In other words, a justice cannot take the acknowledgment of a deed, when he is not in his proper district. But if such feme covert, after the death of her hus- band do any thing directly or indirectly, in affir- mance of the deed she will be barred of her dower. As if she join as executor, in a suit to recover the purchase money, for the lands conveyed by such deed, the invalidity of the deed is no objection to the plaintiff's recovery, for having affirmed the deed by the suit, for the purchase money, she has made her election, and will be forever barred by the re- covery from claiming her dower, (b) This perhaps is as strong a case as can be put, as the widow con- sidered in that character could not be an actor in the suit, and could bring it merely as the representative of her husband. In order therefore to bar the dower of the wife, she being of full age must join in the conveyance with the husband, and before the proper authority; being separate and apart from her husband examined; and having the full contents of the deed made known to her by the person taking the acknowledgment, must declare that she did voluntarily and of her own (a) Sharp & A I. v. Anderson's '6) Sharp & Al. v. Anderson's Exrs. 7 S. & R. 43. Act 22 freb. Exrs. 7 S, & R. 43. 1802. sec. ). 410 OF DOWER. [BOOKV free will and accord, seal, and as her act and deed deliver the deed, or conveyance, without any coer- cion or compulsion of her husband, (a) These substantial requisites by which the interests of married women were intended to be protected, must appear on the face of the acknowledgment to have been pursued, or the wife will not be barred of her dower, (fe) The first case upon this subject was that of Watson v. Bailey. This was a bargain and sale of the wife's land executed by husband and wife, who on the day the deed was executed appeared before a judge of the Common Pleas, who indorsed upon the deed the following certificate: " Lancaster county, ss. Per- sonally appeared before me the subscriber, one of the justices of the Court of Common Pleas, for the county aforesaid, the within named James Mercer, and Mar- garette his wife, and acknowledged the above written indenture to be their act and deed, and desired the same might be recorded. She, the said Margarette, being of full age, and by me examined apart. In tes- timony, &c." This certificate was held to be de- ficient, in not stating that the contents of the convey- ance were made known to the wife, and that she voluntarily consented thereto: The court decided that the conveyance thus acknowledged, did not pass the estate of the wife, and refused to admit parol evidence of her declarations, that she had exe- cuted the deed voluntarily, and that if it was not suf- ficient, she would execute and acknowledge it over again, or do any other act to make the deed valid. (a] Evans v. Commth. 4 S. & R. (6) Watson v. Bailey. 1 Binn. 470. 272 Kirk v. Dean. 2 Binn. 341. OIIAP. in.] OF DOWER. 41 1 So where a certificate merely stated, that the wife was of full age, and separate and apart from her hus- band examined, and the contents of the deed made known to her, without stating that she declared, that she executed the deed voluntarily, it was held to be insufficient. In the case of Kirk v Dean (a) the husband and wife by deed, conveyed the estate of the husband, but the wife never acknowledged the deed, it was re- solved that the right of dower of the wife was unim- paired by the deed, which she did not acknowledge. So where husband and wife executed and acknow- ledged a deed of the lands of the husband, but it did not appear by the certificate of acknowledgment that she was privately examined by the justice of the peace, the supreme court unhesitatingly overruled the decision of the court below, that the wife had barred her dower, (b) The case ofM'lntire and Ward (c) determined that it is not essential to use the words of the act in relation to the acknowledgments of femes covert if its di- rections were substantially complied with. In this case it was contended, on the authority of Watson v. Bailey, that a certificate of the acknowledgment must set forth that the contents of the deed were made known to the wife. But the court said if it appears from the whole certificate that the contents of the deed were known to the wife it is as effectual as if the magistrate had certified that he had read or otherwise made them known to her. Hence, if it is said that she acknow- (a) 2 Binn. 341. (c) 5 Binn. 296. (6) Thompson v. Morrow. 5 S. &B. 289. 412 OF DOWER. [BOOK v. ledged the premises " within mentioned," or the like, to be the right, &c. of the grantee, it is good, (a) So where a certificate was given, that, " the said M and E his wife came before the subscriber, a justice, &c. and acknowledged the indenture to be their act and deed, and desired that the same might be recorded as such-, the said E being by me separately and apart examined from her husband, she being of full age, Icnouing the contents, and freely consenting thereto," was held to be sufficient. (6) So where a deed was acknowledged before a judge of the common pleas, for Dauphin county, who endorsed his certificate on the deed that the grantors personally appeared before him, " and severally acknowledged the said indenture, as their act and deed and desired that the same might be recorded as such; she the said Catherine being of full age, separate and apart from her said husband by me examined and the full contents made known to her voluntarily consenting thereto" In this last case the court said, It is not straining the expressions " volun- tarily consenting thereto," too far, to say that the wife executed the deed voluntarily, and that is sufficient, for, if the execution were voluntary it was without coercion or compulsion, (c) In the case of Watson v. Mercer (d) which was, in all respects, similar to that of Watson v. Bailey the latter case was re-examined and confirmed. And Gib- son, J. who delivered the opinion of the court, repro- bated the decision in JITJntire and Ward, as a de- parture from the principle established by Watson v. !a) 5 Binn. 296 (c) Shaller v. Brand. 6 Binn. 435 b) Lesse of Talhot. v. Simpson. 1 . (rf) 6 S. & R. 49. Peters, Rep. 188. HAP. in.] OF DOWER. 413 Bailey, namely, " that the requisites of the acknow- ledgment, contemplated by the act of assembly should appear on the face of the certificate, to have been substantially complied with." It must therefore now be considered as settled law, that the declarations of the wife that she voluntarily consented to the con- veyance, must appear upon the certificate. On this principle was the subsequent case of Fowler v. M' Clung decided, (a) Although the certificate of acknowledgment should state that the wife was of full age, yet this is not re- quired by the act of assembly and is not indispensa- bly. If the certificate do not state that the feme covert was of full age, the presumption is that she was, and the contrary must be proven, (fc) VIII. And lastly, a woman may be barred of dower by a mortgage made by the husband, and by the sale of his estate for the payment of debts. By acts of assem- bly of 1700 and 1705, (c) lands were made equally liable with chattels to the payment of debts-, and judgment and execution were given against the debt- or, his heirs, executors, or administrators. Thus a lien was created which fastened upon the debtor's lands, and adhered to them after his death, to the ex- clusion of all inchoate rights, derived from himself. The widow's dower being but an inchoate right, to be perfected by the death of the husband, would not take precedence of the debts which had already at- tached. Since the passage of these acts, the under- standing appears to have been uniform, that the de- cedent's debts take precedence of dower. (a) 6 S. & R. 142. (c) l Sm. &L. 7. 57. (6) Talfaot r. Simmons. 1 Peters, Rep. 188. OF DOWER. [BOOKV, The first judicial notice of this construction, is found in the case of Graff v. Smith's administrators, deter- mined in 1789. President Shippen there says, a widow's right of dower commences with her marriage: it is held so sacred a right, that no judgment, recog- nizance, mortgage, or any incumbrance whatever? made % the husband after marriage, can at common law affect her right of dower-, 'even the king's debt cannot affect her. Yet it has been held under our act of assembly, for making lands, chattels for the pay- ment of debts, that as to lands taken in execution af- ter the death of the debtor, the widow is barred of her dower, (a) In Scott v. Crosdale (6) an attempt was made to discriminate between the effect of a sale of land un- der afi.Ja. and a levari facias on a mortgage, execut- ed by the husband alone after marriage. This was an action of dower against the defendant, who had purchased lands sold by the sheriff under a judg- ment on a scire facias on a mortgage. But the court declared, that the point had been too long settled to be stirred then, and that judgment must be for the defendant, (c) In support of the general principle, that the widow is entitled to dower in the clear re- sidue only, of the husband's estate, in the argument of the foregoing case, the case of Howel v. Leacock was cited, in which a sale of mortgaged lands by ex- ecutors, for the payment of debts, under a power in the will, and with the consent of the mortgagee, was determined to bar the widow's dower. And in con- formity with this principle, is the spirit of the statutes (a) J Dall. 489. (c) Ibid . (b) 1 Dall. 127. 1 Yeates, 75. CHAP, in.] OF DOWER. 415 of distribution, which we shall presently consider in relation to this subject. But though dower be barred by the sale of lands, for the payment of debts under a judgment, by the directions of a will, and by an order of the Orphan's Court, yet an assignment of his estate by the husband to trustees for the benefit of his creditors, does not so operate. For where one in insolvent circumstances, conveyed all his estate to trustees for the benefit of his creditors, and the trustees sold the real estate, and applied the proceeds to the payment of the debts of the insolvent, and afterwards the insolvent executed an obligation to the trustees for the payment of mo- ney, and died intestate, having judgments unsatisfied against Him, it was held, that the widow was not bar- red by the assignment, and might recover her dower in an action against the vendee of the trustees of the husband, (a) The court said they saw no difference between the present conveyance, and one given for a money consideration, where the vendor with the amount of the sales, pays off his judgments and other debts. That under sales by execution and by order of the Orphan's Court, the purchasers come in by act of law, and there, positive institutions exclude her from dower. And where a husband was seized during marriage of lands in tail, which were sold under judgments obtained against him, the wife was not barred of her dower, because the interest of the husband only could be sold, which was a life estate merely. Nor did his suffering a common recovery, to which the wife was (a) Keller v. Michael. Yeates, 300. 416 OF DOWER. [BOOK v 5 not a party bar her, because her concurrence in the recovery was not necessary to that effect, (a) But if the husband give a fraudulent mortgage to defeat the wife's right of dower, it is void, as to that right, and as to creditors. And she may defend her- self in the suit brought by scire facias on the mort- gage against the husband's representatives, (b) A fraudulent judgment, or a fictitious debt, are within the reason of the law, and consequently subjected to the same rule. SECTION III. Of the rights of the widow under the Intestate Laivs. In cases oT intestacy, the rights of the wife in the estate of the husband, are subjected to many regula- tions, inconsistent with the estate in dower at the common law, and are greatly enlarged if the hus- band die without issue. In all cases except one, the corporeal estate of the wife is changed into an incor- poreal one-, her right of possession to the land being converted into a right of receiving an ascertained annual interest thereupon. This will be fully under- stood, by a view of the several parts of the intestate laws relating thereto. By the 3rd section of the act of 19th April, 1794. the remaining part of any land, tenements, and here- ditaments, and personal estate of any decedent, not sold or disposed of by will, nor otherwise limited by marriage settlement shall be divided and enjoyed in manner following, &c. If the intestate leave a widow (a) Sharp v. Petit. 1 Yeates- 389. (b) Killinger v. Redenliaur. 8 b. fc R. 531 CHAP. in.] "RIGHTS OF WIDOW. 417 and lawful issue, the widow shall be entitled to one- third part of the real estate, during her life, and to one third of the personal estate absolutely. And by the 4th section of the same act, if the in- testate leave a widow, and no lawful issue, the wi- dow shall have one moiety, or half part of the real estate, including the mansion-house, during her life; except in cases where, in the judgment of the Or- phan's Court, the estate cannot with propriety be di- vided: in that case she shall have the rents and profits of one moiety of the real estate, during life, and one moiety of the personal estate absolutely. And by the 13th section, the share of the estate of the intestate, in this act directed to be allotted to the widow, is declared to be in lieu of her dower at com- mon law. The three foregoing sections determine the w conversion of real to personal, and vice versa 122 INDEX. Ixv Child posthumous 62, 181, 340 Children entitled to distribution 337, et seq. children of, and their representatives ibid. ibid. Chose in action 123, 144, et seq. Citation '-of executor to prove the will - 82, (see summons.) of widow, or next of kin, to contest a nuncupative will - 44 of next of .kin to accept or refuse administra- tion, or shew cause why it should not be granted to a creditor - 107 to produce an inventory - - 158 suit by 16, 21 first, when issued 16 , second, when issued - - - 18, 21 against guardians executors and administra- tors trustees widow executrix - 16, 308 when and how served - - 16, 22 return to 21, 22 contempt of - - 17, 20 Codicildefinition of 44 how annexed - ib. how executed - ib. operation of - ib. revocation of will by - 60 Go-executors, and have joint and entire interest 155 action by 270, 275 power of, in selling land - 220, et seq. infant 270, 291 Coffin shroud and dead clothes, in whom property of, - 121 Commission of rebellion - 21 to make appraisement or valuation - 158 to receive nomination of minor Commissioners of sequestration 20, 22, 23 Condition interest vested in executor, by 125 Contempt of court - 14, 17, 18, 19, 20, 21, 24, 25, 86 Consanguinity lineal and collateral - - 103, 104 Construction of wills - - - 50,51 Contingent interests 59, 81, 138, 186, 128 9 Ixvi INDEX. Copy of a will proved abroad . . .66, 67 of administration bond by register . . 319 of notice to creditors . . . 317 of proceedings in distribution . . 348, 365 Corporation aggregate or sole may be executor . ' _ 79 Costs . 286, Addenda No. 5. Creditor administration granted to . . . 107 may apply for sale of real estate of decedent 244 may compel executor, or administrator, to give security ... 12, 85, 86, 114 notice to, of presentation of accounts of execu- tors and administrators, for confirmation 178 by specialty, may have action against heir 133 neglecting to exhibit his accounts to executors, 8jf. 175 Cumulative legacies ..... 202 Curtesy tenant by the .... 364 Custom in regard to way going crop . . 135, 136 Damages when assets . . . 123, 124, 125, 265 Debts received by executor assets . . \ 23 remedies against executors for . . 279 & seq. real and personal estate liable for . . 279 lien on real estate of decedent . . 280 effect of sale by order of orphan's court, upon such lien . ... . . . 234 in what order payable by executor . 161, 162 due the United States . . . 161, 173 for physic, funeral expenses, and servant's wages 162 rents .... 162, 163 judgments . . . ib. 164 & seq. recognizances ... ib. 168 & seq. bonds and specialties . . ib. 173&sey- simple contract . . ib. 175 due the Commonwealth . . ib. how paid, twelve months from decedent's death . 176 suit for, may be commenced, before twelve months from death of decedent . . . 176,177 interest on ... . . . 177 audit to determine pro rata amount of . 175 INEDX. Ixvii Debts must be exhibited to executor within twelve months after notice . . . . .175 to administrator or executor, may be retained by him 153, 179 due from executor . . . 179, 186, 181 executor paying, out of his own purse . - 153 executor compounding, shall have no benefit 126 appearing, after payment of legacies . 209, 210 devise of lands for payment of . . . 220 legacy in satisfaction of, ... 204 due to the testator, sperate and desperate 157 payment of, to executor, what shall be . 264 under a forged will . . 77, 78 \ to administrator under a void adminis- tration . . . 112 when executor delays receipt of . . . 264 due from administrator . . . 179 from intestate's estate, note of, when to be filed in prothonotary's office. .... 280 Debtor when released, being appointed executor 179, 180 Decree of orphan's court . . . . 24, 25 how far conclusive 250 & seq. Appendix No. 2 how enforced . . 24, 25 Declaration on issue from register's court . 71, 72 rule for .... 72 in suit where executor or administrator is substi- tuted . . . .271 by executors or administrators . . 272 Deed of woman divorced and living with her adulterer 47, 48 Default . . . . . . .14 Descents English law of, never fully in force here . 335 early laws of . , . . 336 present law of . . . . 335,536 common law relating to, when in force . 340 Devastavit .... 263, 267, 176 by commission, .... 264 omission .... ib. 265 what shall not amount to 265 Ixviii INDEX. Devastavit by one of several executors . . 266 by husband, where executrix marries after testa- tor's death . . . 266 where she marries before commence- ment of executorship . . 266 executor of executor, answerable for . . ibid \ executor de son tort liable for . . 92 executor may be held to bail, in case of . 285 return of, by sheriff . . . 286, 287 Devise of lands, how made ... 39, 49 of the several kinds of estate by . . 53 of lands to be sold .... 220 executed or executory . . 581 Devisee right of* to chattels annexed to freehold . 153 lands devised to, bound by debts of decedent 281 when entitled to contribution . . .281 Distress right of widow, to make . . 346,351 of executor or administrator . 277, 278 Distributee remedy for, against executors or administrators 326 proceedings for, to obtain distribution . 344 bonds required of, when . . ' .176 Distribution ..... 211,335 of personal estate . . 211,343,377 administrator may make, how . 218,219 decree of orphan's court for . . ibid refunding bond required in . 127, ibid, 377 remedy to obtain .... 326 of real estate . . . 335 & seq. persons entitled to . . . 335 & seq. in cases only embraced by intestate laws 336, 341 powers of orphan's court to make . 344 proceedings to obtain . . . ibid petition for inquest 344, 354, 355, 357, 358, 360 writ or order of inquest 359, 360 & seq. return to writ for . . 363, 366 to 376 where lands cannot be divided among children or widow and children . . 344, 345 INDEX. Ixix Distribution where intestate leaves a widow, father, and collateral heirs .... 355 where the real estate will accommodate more than one child or representative . 346, 347 where land lies partly in two counties 347, 348 where intestate leaves no children or their re- presentatives . . . 348, 349 error in proceedings for . . 363 exception to . . . . 365 confirmation of . . 363, 365, 374 rights of election in . . . 369, 372 rule upon the heirs to accept 352, 353, 375 ^ acceptance by heir . . 372, 373 acceptance by heir of lands in one county 353 rights of infants entitled to . 364, 390 resurvey in distribution . . 377 appeal from decree in orphan's court in 365 exemplification of proceedings in . ibid real estate in, converted into personal 377, 371, 377 but not until sold . .380 lien of creditors upon . . 371 husband acting on right of wife, in 383 & seq. claims of parties in, against each other, when they should be adjusted . . 388, 389 widow's share in . . . . 346 transfer of shares in, effect of .* . . 371 sale of real estate where distributees refuse at the valuation . . . . 390 Distringas against corporations . . .26 Divorce bars dower .... 400, 405 does not effect wife's right to recognizance for her lands . . . . 141 Domicil of testator. . . . 43 Donatio mortis causa definition of . . .150 what shall constitute , . . ibid what shall not . . 151, 152 quere whether mortgage may be 151 not proved with the will . . 152 Ixx INDEX. Donatio mortis causa executors assent to, not necessary 15S not good against creditors . ibid Dower widow's right of . . . . 392 assignment of, how obtained , . 392, 393 may be assigned temporarily . . 393, 394 though debts be not paid . ibid widow cannot enter on, till assignment . . 396 of an estate improved by purchaser . . ibid by heir . . , ibid seizin in law, or fact by husband necessary . 397 not of a remainder .... 399 may be *of trust estate . . . 397 of estate held by warrant . . ibid of an improvement right . . ibid, 398 of a rent charge . . . ibid of exchanged lands . . . ibid of lands conveyed by husband reserving rent .... ibid cannot be, of dower, unless descent be. bro- ken .. . . 398, 399 of jointenancy . . ibid tenant cannot commit waste, may clear wood- land ..... 400 widow must elect, between dower and de- vise . . . .14, 404 how barred . . 400 by recovery of estate against the hus- band .... ibid jointure .... ibid by acceptance of devise . . 403 by elopement and adultery . . 405 by divorce .... 405 by alienage . . 406 by conveyance . . . 407 by the debts of husband . . 41 3 Election of widow between dower and devise . -14, 404 of shares in distribution . 352, 353, 367 & seq. Emblements i'fi . . 134, 135, 137, 138, 142 INDEX. Ixxi Error in proceedings for distribution . . 363 writ of, by executor .... 269 Escape action for by executor , . . ibid Estate for life sequestered, how discharged . . 25 Evidence of the service of citation . . . 17 to prove a will .... 40, 41 of nuncupative will .... 43 parole admitted of intention as to revocation of will . . ' . . 60 before register's court ... 70 oh an issue devisavit vel non . . 72, 73 of ademption of legacy . . . 199 Execution of judgments of orphan's court . . 27 signed after death of defendant 289 tested first day of term . . . ibid after defendant's death . . ibid on judgment against executor . . 286 Executor definition of . . . ^ 79 derives his authority from will . . 79, 92 who may be . . . . . 79, 80 appointment of . 80, 79, 81 express or implied . 80, 81 exclusive or in common with others 80, 81 absolutely or qualified . ib. ib sole or jointly . . .81 when of age to act . . . 275 acts of before termination of his office, good 81 acceptance and refusal by 82 cannot assign his office . . . ibid power of, before probate . . . 93, 271 may be cited to prove will . . . ibid neglecting to prove will, administration granted 82 may renounce in person or by proxy . . ibid must refuse entirely . . . ibid effect of renunciation by . . . ibid several, renunciation of part not conclusive 83, 99 must all renounce . ib. ib. acceptance by .... 82, 93 Ixxii INDEX. i Executor may be dismissed, after examination of the trust 83, 84 letters of, may be revoked . . 84, 85 when executrix having minors is mar- ried . . . 11, 84 when, like to prove insolvent ib. 85 he wastes or mismanages the es- tate . . ib. ib. notice to, to give security . . 86 security may be required of . . 184&eg f . death of, intestate , . .94, 97, 98 minority of . . . .95 of deceased co-executor . . . 106 surviving co-executor dying intestate . ibid not ascertained or concealed . 96 interest of, in chattels real . . .115 what so denominated . . ibid when they relate to incorporeal here- ditaments . . . 117 possesssion of, of corporeal and incorporeal here- ditaments . . . .117 interest of in chattels personal . . 118 & seq. in apprentice and servant . 119, 120 when the interest in the property is vested in 10, 121 interest of in patent . . .120 interest in deeds and writings . . 121 fraudulent gift by . . ibid interest of, in chattels personal changed to real 122 interest of, in choses in action where the cause . of action accrued before testator's death . 123 where the cause of action accrued af- ter testator's death . 125 _ by condition . . . ibid in things in pledge . . 126 by remainder and increase . ibid in a trade . . . 127, 265 by assignment . . . 127 by limitation . . 128 by election . . . 130 INDEX. Ixxiii Executor when entitled to legacy to testator . 129 when not ... . 129, 130 cannot take rent of real estate . ISO, 131 entitled to emblements . . 135, 137, 138 to way going crop . ibid 136, 137 of tenant for life, entitled to an apportioned part of rent, when . 13 how effects he takes, may become his own . 153 interest of married woman executrix . . 154 of joint executors . . . 155,109 of surviving executors . . . 155 of executor . . . 155, 275, 276 when entitled to administration . 106 duty of ..... 155 must bury deceased, . . 93, 135, 156 according to his circumstan- i ces ... 156 must make an inventory . . 156 & seq. may show assets to be less than inventoried . 159 must collect the effects . . . 159 powers of, for that pur- pose . 159 & seq. may transfer stock at bank . . . 160 may sell effects .... ib. mortgage terms for years . . ib. assign mortgage in fee . . ib. effects aliened by cannot be followed by creditor 160 may recover the property by action, . 160, 161 sell effects by auction free of duty . 161 must pay debts . . . . 161 order of payment . . .161 to the United States 161, 173 physic, funeral expenses, and servants' wages 162 rents . . 163 judgments . .164 recognizance . 1 68 bonds and specialties . 173 10 ixxiv INDEX. simple contract debts 174 Executor paying debts of inferior order before those of su- perior . . . . - 162 may retain his own debt . . - 179 notice by to creditors . . . 175, 176 compounding debts due from testator . . 126 debtor appointed, extinguishes debt 179, 180, 334 exceptions 180 legacy to ..... 179 must pay legacies . . . 181 & stq. legatee ..... 180, 191 distribute personal estate . . . 211 pay residuum . . . . ,211 if no residuary legatee, to next of kin 212 must put minor's money to interest, under direc- tion of Orphans' Court 212, 213 & (see adden- da. No. II. must pay interest if he do not . . 213 when liable for loss .... 214 incurring interest and costs, by non payment of a just debt . . . . 214 power of, over real estate . . . 219 may sell lands devised to be sold . . 219 on a final settlement of adminis- tration account . . 220 purchase by .... 233 ay execute contracts of decedent relative to real estate . . . 246, 247, 248, 249 devastavit by by commission . . . 264 by omission . . 264, 265 what shall not amount to . 265 by one of several executors . . 266 by husband of executrix . ib. by executor of ... 267 not liable for devastavit of co-executor . 266 in case of devastavit may be held to bail . 285 INDEX. Ixxv Executor proceedings against, on devastavit returned by sheriff ..... 286-7 not compellable to make distribution until after one year ..... 176 may be sued within twelve months . . 176 may require btfnd from distributees . . 176 not bound to plead statute of limitations . 266 infant, . . . . . 80, 96 durante minoritate . . . .81 acts of co- executors . . . 155 de son tort, ..... 87 what acts make one . . 87, 91 what not . . 87, 88 cannot be where rightful executor 88, 89 can maintain no action in right of de- cedent ... 89, 90 whether, is a conclusion of law 89 his wrong qualified by administration ibid may be compelled to pay debts, as far as he has assets . ibid what acts of, binding . . . . ibid may plead plene administravit to an action by creditor ..... ibid has no defence against rightful representative of decedent ..... ibid payments by, may be deducted from damages ibid can derive no advantage from his assumed cha- racter ..... 90 cannot retain in satisfaction of his debt . ibid. cannot protect himself against action brought 91 in action by creditor may be joined lawful execu- tor or administrator .... ibid. action against .... ibid. liable for waste . . . 91, 92 for false pleas . . ib* for assets which have come to his hands. . . . ibid. Ixxvi INDEX. Executor executors of, liable for waste 'or conversion by their decedent ... 92 of, not liable for devastavit by first executor ibid. actions by . . 268 & seg. 128, 124, 125 on personal contracts . . 268 on promise to . . 272, 315 breach of contracts relating to realty 268, ' 124,125 against sheriff ... 269 ejectment on mortgage . ibid for injury to person of testator . . ibid* may hold to bail without positive affidavit 269 if several, should all join . . 270 advantage of non-joinder of, must be taken by plea in abatement . ibid how substituted for testator . ibid should make profert of letters testamen- tary . . . 271,272 omission how aided . . ib. of surety, paying debt, may recover against prin- cipal . . 272 acknowledgement to executor, should be declared upon specially . . . ibid must proceed by scire facias on death of testator after final judgment . . 273 may direct sheriff to levy may receive money if fifa issued [before death of testator . . ibid may have scifa after interlocutory judgment refusal of co-executors to join in action . 275 summons and severance . . . ibid death of executor severed . . ibid severed, cannot sue out execution . . ibid coming of age, may have sci fa on judgment by administrator durante minoritate . . 276 for rent due at death of testator . . 277 husband of executrix must join the wife . 278 debts and damages recovered by, assets 124, 125 action against, when it lies . . 279, 282, & seq. when to be brought . . .. 176 INDEX. Ixxvii Executor on promise by ... 272, 315 to what extent liable . . . 283 in case of devastavit . . ibid false pleading . * . 284 on a promise to pay . . 284, 315 what an admission of assets by . 285 not generally held to bail . . ibid when held to bail . . . ibid proceedings against .... ibid judgment against proceedings upon . 286 & seq. when chargeable de bonis propriis . 286 & seq. sci. fa. against, when testator dies after final judg- ment ..... 289 when several, how action should be brought 290 confession of judgment by shall not bind co-ex- ecutors ..... ibid admission of assets by . . 334 distinct pleas by several . . . 291 executor of. plea of plene administravit by . 291 of deceased partner, cannot be sued jointly with surviving partner . 1 . 292 having assets, bound to maintain apprentice ibid may be compelled to account by orphan's court 10 but not by register 71 to give security . 11, 12, 309 foreign attachment will not lie against . 292 proceedings against sureties of . .311 accounts of, submitted to orphan's court 315 & seq. preceedings thrreon . 316 & seq. balance due by, made a lien on real estate, how 325 suit against, before justice of peace . . 328 trustee for next of kin . . . .212 compounding debts of decedent . . 127 action against for rent, accrued before and after death of testator . . . .163,164 renouncing, may execute a power in a will to sell lands ..... 225 aeV'ng estate of decedent by order of orphan's court, must give security . . . 241 xxxviii INDEX. Executor infant, how he must sue . . . 291 feme covert executrix . . 290 entitled to, compensation for services . 21 1 .may extinguish ground rents, when and how Addenda. No. 4. when liable for costs . . Addenda. No. 5. Estates created by will .... 53 in fee simple ... 54 fee tail . . . 54, 55 for life . . . . 53,54 for years . . . . 54, 58 real and personal, liable for debts . . 279 Estate tail sold under a judgment for legacy charged thereon ...... 329 how created by will . . . 65, 56 how barred .... 56 Exemplification of probate . . . .66 of proceedings in partition . 348 Fee limited after a fee . . . . 50 Father share in distribution of personal est. . . 343 of real estate . . . 337, 339 estate coming from . . 338 Felon . . . . 49, 105 Felo de se ..... 48 Feme covert will of, . < 46, 47, 154, 155 executrix . . . . 80, 154 cannot act without husband's per- mission . . .80 where she is an infant . ib. having minors of her own . . 84 cannot administer without husband's permis- sion ..... 104 except when he is abroad or otherwise in- competent .... ibid. must take administration alone . . ibid. her interest devolves on her husband . 154 cannot administer without his consent ibid- INDEX. Ixxix Feme covert action against, executrix . , 290 share of intestate's estate allotted to husband 383 legatee . . . . .193 powers of attorney by, to elect, or refuse estate of intestate . . 373 acknowledegment of deed by . . 407, et seq. takes whole estate of deceased husband, when .... 422 may be deprived of personal estate of husband by will .... ibid. Fraud ....... 74 Foreign attachment will not lie against executors . . 292 Funds investments in, by executors, administrators, and guardians .... Addenda. No. 2. Funeral expences . . . .12, 162, 155, 56 Grand children. ..... 307 Great grand children .... 337 Guardian compellable by Orphan's Court to account 10, 450 chosen by minors or appointed by Orphan's Court . . . . . 12 for old soldiers appointed by Orphan's Court 14 administration granted to, for infants 96 what ..... 424 how many kinds . . . 425 by nature .... ibid. for nurture . . . . ibid* in socage ... ib. 426 testamentary . ib. 431 statutory . . ib. 430, 433 ad litem ..... 435 who may be . . . 436 how appointed . . . 437 petition for . . ibid, dedimus potestatem to receive nomination of minor ..... 438 powers, duties, and liabilities of guardian 439 of the person ibid. Ixxx INDEX. Guardian must assent to apprenticeship of minor . 439 cannot bind his ward as a servant . 440 of the estate ... . 440,443 all his acts must be for benefit of ward .... 440 must put money of ward to interest 440, 441 Addenda. No. 2. when responsible for loss . . 441 may pay oft' incumbrances on real estate . 443 cannot employ ward's personal estate in the purchase of lands . . . 444 may receive rents and profits of real estate ibid. must keep such estate in repair . ibid. may make leases . . . ibid. taking bond for rent . . . ibid. will be allowed reasonable expences in discharge of trust ibid. may sell real estate of ward, when and how 444, 445 petition of, for order of sale . - 445 auditors on . . ibid. bond by . . 446 liable for waste .... ibid. compensation of ibid' may accept for his ward a purpart in distribution . . . 449 remedies of ward against . . 447 compellable to give security . 447, et seq. surety of, remedy for . . 448 may be dismissed, when . . ibid. may be removed by Orphan's Court, on cause shown, . . 85, 86, 449 accounts of, how settled 442, 448, 450, 452, 453 how confirmed . . ibid. appeal from judgment of Orphan's Court thereon ..... 450 not compellable by Orphan's Court to pay balance on accounts, to ward . . ibid. action by ward will not lie against, during guar- dianship ..... 451 INDEX. Ixxxi Guardian com pellable, when removed to, pay over ward's estate to his successor . . . 451 his office, how determined . . ibid. by marriage . . . ibid. by limitation in will . 451, 452 by arrival of" ward at the age of four- teen years . . . 452 by majority . . . ibid. by resignation . . ibid. agreements between guardian and ward . . . 453 Half-blood, admitted as the whole to administration - 104 interest of, in distribution - 339 Heir looms leaning of modern times, against - 134 Heir, lands descended to liable for debts 280, 281 if aggrieved by execution, his remedy - 281 if he lose his lands, when entitled to contribution 281, 282 at common law, when entitled to estate ,* - 340, et seq. interest of, in chattels real 311 rents receive'd by - 131, et seq. Hotch-pot child advanced, must bring advancement into 215, et seq. (see advancement) Husband and wife relation of 139 of executrix 80, 106, 154 interest of in the chattels real of the wife 139, et seq. power of, over the estate of wife - 139, et seq. must administer to wife to obtain chattels not vested r 101, 142 of tenant in dower, entitled to rent - 142 arrears of, after death of wife ibid. entitled to emblements - - ibid- choses in action of wife, when vested in 142 how extinguished by him 14 11 Ixxxii INDEX. Husband and wife when he must sue jointly with wife 143 when representative of, entitled to choses in action of wife 144, 145 as representative of wife, may recover her choses in action - ibid. will hold property of wife, at her death, freed from her debts - - - ibid. entitled to chatties of wife accrued during mar- riage - ibid. grant of administration to 101 how controlled or varied ibid. executor or administrator of - 101, 144 taking purpart of wife in intestate's estate 383, et seq. paying no money 384 paying money for ow- elty of partition 386 when entitled to whole real estate of deceased wife - 423 may deprive, wife of his personal estate by will - 422 Wife recognizance for wife's share of land, survives to 141 when judgment will survive to - 143 will or appointment of - 101 propertyto separate use of wife, 146, 147, 148 gift from husband to, when good 147" parapharnalia of 148, 149, 150 when property given generally to wife vests in - 145 administrator of trustee for husband 142 courts of Pennsylvania cannot make provision for, out of her own estate 145 wife creditor to estate of husband, when - 147 INDEX. Ixxxiii Wife gift by wife, administratrix or executrix, of dece- dent's property - - 154 Incapacity mental - 45 disqualifies to make a will - /// presumption of law against - ib disqualifies for executor - 80 Increase of wife's estate, when she may bequeath it - 47 interest vested in executor by - - 126 Indictment for forging a will pending dispute on probate 78 Infant executor may take probate where one executor is and the other is not 96 administration granted to guardian of iB. where several executors - 96 marriage of, after administration granted, durante minoritate - - ifi. executor must sue and appear by guardian 275, 912 maintenance of - - 197 Intention of testator, when controlled 50 Interest of debts 177, et seq. when recoverable - - 178 payable by executor 213, 214 on legacies - - 191,197 on purparts in distribution - - 377 Interrogatories to party claiming property sequestered 24 Intestacy distribution in case of 355 Inventory 10, 156 how made - - - 156, 157 to be filed with register within one month 156 effect of, - 157 when dispensed with - ibid. when decreed before probate or administration 158 commission of appraisement on - ibid. cannot be impeached in Register's Office - 159 first, not conclusive upon executor or administrator ibid, Issue birth of, revocation of will - - - 65 Ixxxiv INDEX. Issue from Orphan's Courts to Common Pleas - 27, et seq. no judgment on such issue 36 from Register's Court to Common Pleas - 71, 72 verdict on, conclusive, when 74 may be sent at the request of a party, or at the in- stance of the court - - 71 not sent, when the legality of the execution of will is disputed - - - ib. declaration in such .... 72. how treated in Common Pleas - ib. evidence on - 46, 72, 73 removed by certiorari to Supreme Court - 72 writ of error lies on - ib. new trial, may be ordered by Common Pleas, not by Register's Court - - - ib. plaintiff cannot enter won pros - - - ib. plaintiff executor cannot be a witness in - 72 Jointenancy, in chattels 121 Judgment of Orphan's Court - - - 26 in Courts of Record - - 164 in what order paid from decedent's estate - - - - 164 obtained before death of decedent 164, 237 against his representatives 164 no priority between, on same day 165 paid pro rata from personal estate ibid. paid according to date from / proceeds of real estate - 165 before justice of peace, paid as other judgments - - ibid. recognizance for payment of distributive share must be paid as a judgment - 165 in a foreign country, or sister state 165, 166> 167 quod computet - - ibid. death of party after verdict, and before - 273 after interlocutory and before final - ibid. for or against, executors or administrators 274, et seq. INDEX. Ixxxv Judgment relates to first day of term 289 quando acciderunt - 290 on administration-bond - - 293 interest allowed on revival of 177 confession of, an admission of assets 334 Justice of the peace, judgment before - 165 probate of will before 68 Land chattels for payment of debts - 170 settlement of, on a child, is an advancement - 214 bound by debts of decedent - 280 how distributed in case of intestacy 335, et seq. will of, 39, 40 purchased after making of will 64 legacy charged on 129, et seq. 192, 329, et seq. Lease for years - - - - 58,116 Letters testamentary when issued - 78 Legacy what, - 181 who may take 181,182 to children and grand-children- - - 182 general or specific 183, et seq. vested or lapsed 186, et seq. 129, 130 assent of executor, to - 189, 190 interest of legatee, in - 190 when payable - - 191, 192 to whom payable 192, 193, 195, 197 interest payable on - 191, 192, 195, 196, 197, 129 payable at discretion of executor 193 when payable to husband 193, 194 in what currency - 194 evidence relating to - - - ibid. to a child, when interest applicable to his main- tenance - 197 principal of, when broken in upon - ibid. on payment of, bond to be given by legatee 198 ademptionof, - 198,200 may be accumulative - - 202 when payment of debt - 20*4 when given to debtor of testator 206 Ixxxvi 1NEDX. Legacy abatement of 207 refunding bond, for - 209 action for, will not lie, when probate of will is suspended - 329 action for, when charged on land, against devisee and tenant - ifcid, judgment for, in such action must charge land only ibid. estate tail sold for payment of 329 how far chargeable on lands of testator - 331 . executor promising to pay, personally bound - 333 when payable out of personal, when out of real estate 129, 130 to executor 191 payable out of land - 192 interest on legacies - 195, 196, 197 action for, by legatee - - 327 Legatee who may be - 181 description of 181 cannot take legacy without assent of executor 189 where executor is 191 residuary 105, 106, 21 1, 212, 98 several, residuary 211 may compel executor to give security, when 11, 12, 84 remedies for - 327, 828 special, has lien upon assets and may follow them 191 not concluded by settlement in Orphan's Court to which he is not a party - 195 remedy for legatee - 327 Letters testamentary when issued - 78 Limitation executor not bound to plead stat. of 266 to suits on administration bonds 312, et seq. to lien of debts of decedent 280 of chattels as inheritances - 50 Lien of purchase money - 249, 250, 377 on estates of executors, administrator, and guardians 325, 326 of debts of decedent - ... 280 INDEX. Ixxxrii Lien limitation to 280, 281 Maintenance money expended for child's, no advance- ment 217 Marriage settlement lands contained in not to be sold- when - 224 terms created for 1 17 Marriage revocation of will, when - 63 Minors - 12, 13, 18, 70 Money on sequestration not usually paid to plaintiff 23 Mortgage money due on chose in action - 144 husband entitled to mortgage to wife - ibid. not discharged by sale under Orphan's Court 236, et seq. is a specialty and payable out of the personal estate though there be neither bond nor cove- nant for the payment of money - 175 for distributive shares - - 376 Mother share of, in distribution 337, 338, 339, 343 Notice to executor or administrator to give security - 12 to parties, to appear to action, in Orphan's Court 21, 22 to creditors to exhibit accounts to executors or administrators - 175 to parties in distribution (see distribution) of sale by administrator for payment of debts and maintenance of minor children - - 225 to guardian of order to give security 448, 449 Nuncupative will (see will) - -43 Oath of executor, on taking out probate . 82, 156 of witnesses on probate - - 68 on taking administration . JQS on making inventory . 156, 153 on appeal from Register's Court - 75 Old soldiers - - - - . - 14 Orphans . JQ Orphan's Court when first established - - 9 a court of record ' - - - JQ how organized - 1Q, 14, 15 when holden - " .'. 15 general powers of, - ' >'<* & 9, 16 INDEX. Orphan's Court to compel obedience to its warrants, &c. 19, 14 to compel guardians, tutors, trustees, exe- cutors and administrators, to account 10, 12 to cause register to transmit copies of bonds, inventories, &c. 10 to order payment of fees and reasonable expences - ib. to certify the misbehaviour of guardians, executors, and other officers ib. to revoke letters of administration 11, 12, 114 to compel executrix about to be married, and executors, guardians, trustees, and tutors, to secure minors 11 to compel suspended executor to deliver up estate of decedent - 12 to make distribution and compel its obser- vance - ib. to admit minors to make choice of guar- dians or tutors - - ib. to appoint guardians next friends or tutors for minors - . *& to bind minors apprentices - - ib. , to make partition of real estate of intes- tate decedents 1 3, 326, 327 to appoint administrators cum testamento annexo - - - 94 to order sale of real estate of decedent 13 for the payment of debts and maintenance of minor children 243 after final settlement of administration accounts 13,242 for the maintenance and education of a minor 13, 444, 445 when heirs refuse to take at valua- '* tion - 13, 349, 351, 390, et seq. to rule widow, to elect, devise, or dower - - - 404 INDEX. Ixxxi Orphan's Court, power of, to appoint guardians for old soldiers 14 to compel the settlement of their accounts ib. to settle accounts of persons speci- ally authorized to sell lands 14 suit and process in 16 summons, or citation, petition for 16, 20 when issued on special order ib, against guardians, trustees, widow, executrix, executors and adminis- trators - ib. when and how served - ib. attachment - 18, 19 attachment with proclamation - 20 sequestration 20, 22 commission of rebellion 20 judgments of - 26 may send an issue to Common Pleas - 27 appeal from 37 lies on definitive sentence only - ib. security on, how and by whom taken ib. on proceeding, below how staid ib, must be from judgment given after investigation 38 on, Supreme Court, will rectify er- rors in account - ib. proceedings of, viewed with indulgence ib. 227 may appoint administrators cum testa- mento annexo in what cases 99 sale of lands by (see sale) - 227 settlement of accounts of adminis- trator previous to 229 practice relating to, in, 229, 230 petition for ib. ib. accompanying vouchers , 230 ordfef for - ''** - " c ibid. report of sale, by order of - 230, 231 12 Ic INDEX. Orphan's Court confirmation of sale by 4jj 231 adjournment of sale ibid. purchase by administrator 231, 232, 233, 234 cannot be disturbed to the prejudice of a subsequent bonaf.de purchaser 234 effect of sale of lands, by order of - ibid. as to debts of decedents 235, 236 judgment - - 236, 237 mortgages 236, 237, 238, 239, 240 may require security from adminis- trators selling real estate 241 from executors 241, 242 proceeding to obtain order of sale by, after final settlement of ac- counts by executors and adminis- trators 243, 244 proceedings in, against executors and ad- ministrators - - - 315 citation from to .executor and adminis- trator 316 confirmation of accounts by 318 may send accounts to auditors 319 decree of, on report of auditors - 320 appeal from decree of, on report of audi- tors - 321 effect of confirmation of accounts by 321, et seq. Appendix. ' may compel distribution 326, 327 cannot receive payment of a legacy for the use of a legatee 195 power of, to determine interest of parties in proceeds of sale - - 392 confirmation of sale by - ibid. will direct share of widow's, share of in- testate's estate to remain charged there- on, when sold 421 may compel guardian to give security 447, et seq. may remove guardian 449 INDEX. xci Paraphernalia of the wife . . . .148 necessary apparel . . 149, 152 bed .... ibid. jewels . . ibid. husband may sell or give away - 149 wife not entitled td, on deficiency of assets ibid. preferred to legacies . . ibid. pawned by husband . . ibid. jewels bequeathed by husband to wife, and then over .... 150 wife excluded from, by her agreement . ibid. Partition of real estate of intestate . 13, 335, et seq. (and see distribution) Partnerpartnership on the death of one, his interest vests in executor 122, 127 but the remedy at law survives . . 123 surviving, liable to action of account by executor ibid. executor of deceased partner, action against 292 Patent interest of executor in . . 120 Pawns goods in ..... 121 executor redeeming goods in ... 126 wife's paraphernalia in pawn . . . 149 Payment of debts, order of . . . 162,163 bonafide to administrator . 112 Petition for citation . . . . 16 for order of sale . . 230, 243, 391 by representatives to make conveyance according 437 to the contract of decedent . 247 for inquest .... 354 for appointment of guardian Perpetuity what ..... 50 Pendente lite ...... 97 Physic ...... 162 Portion payable in future, an advancement . . 217 contingent, advancement , . ibid. charged on land when vested, when not . 130 Presumptions ..... 38, 45, 82 xcii INDEX. Process in Orphan's Court . . . . 16 summons or citation . . ib. when issued . . ib. how and when served . i&. second citation when issued 18 attachment . . ib. Probate of wills . . . J 65, 66 before whom made . . 66, 68 of wills made abroad , . 66 how made ; . '. .68 when to be made ... 82 exemplification of . . 67 . before register not indispensable . 68 sufficient, if made in any one county . ib. when according to the laws of a foreign country .... ib. when according to that, of testator's do- micil . . . . . ib. one, sufficient though several executors ib. new probate not requisite for executor of executor . . . .69 where will is lost ... ib. when will is in foreign language . ib. caveat against . . . ib. effect*>f . . .77 conclusive as to personalty when confirm- ed by Register's Court . . ib. admission of by plea . . 291 power of executor before . .93 appeal from, granted by Register 69, et seq. within what time to be made . . 70 letters testamentary granted on . 78 Real estate see judgments, lands, distribution, sale of in sequestration . . . 22 proceeds of, distributable as real estate 226, 263 Recognizance for distributive share in nature of judg- ment . . . 165,171,375 in what order paid . . 162,168,171 from what time binding . . 168, 170 INDEX. xciii to secure distributive share . 171, 168 when forfeited, take precedence of simple contract debts . . . 171 in criminal cases . , .172 to individuals or corporations . 175 to the United States . . , ibid. for wife's share of land, taken in name of husband and wife . . 141 Refunding of legacies, bond for . . . 210 distributive shares, bond for . . 176 Refusal of the office of executor ... 82 administrator . . 107 of estate at valuation . . . 352, 353 Register . . . . . . 10, 65 what and how appointed . . .65, 66 in each county . . . . 66 power of . . . ib. security given by . 67 may appoint deputy - ib. must deliver record to successors - ib. cannot compel executors and administrators to settle accounts - is judge of the proper time to prove will Register authority of, to grant letters of administration cum testamento annexo - 99 must cite widow and next of kin, when - 107 power of, to grant administration, 107, (see Ad- ministration.) cannot revoke letters of administration, at plea- sure 112, US appeal from - - - 113 must transmit copy of administration bonds - 10 may settle accounts of executors, administrators and guardians - 317 must send such accounts to orphan's court for confirmation and allowance - - ibid. must give notice - . - ibid. accounts how settled with - 319 ** xciv INDEX. Register may grant new letters of administration when for- mer are revoked by orphan's court - 11 may repeal letters of administration, when 112, 113 Register's court how constituted - 69 powers of, limited - - 70, 71 appeal to, must be within two years - 70 exceptions ib. proceedings before error to - - - - 71 issue from, to common pleas 71, (and see Addenda, No. 1) evidence in, - 72 & seq. appeal from - - 74, 75 oath on - .- - ib. what proceedings of, conclusive 75 & seq. appeal from, does not prejudice executor giving security - 75 may revoke letters, issued improperly - 111 Relations devise to generally - 52 Release of debts by will - - 179 by executor 264 Remainder what ... 58 interest of executor by - 126 Remedies for executors and administrators, (see Executors and Administrators.) against executors and administrators, (see Execu- tors and Administrators.) for ward against guardian - 447 Rent reserved to executor - 117 received by heir - 131, 132 & seq. in arrear at lessor's death 117, 163, 276, 277 received from estate of decedent, not assets - 131,132 assets in hands of heir for payment of specialties 133 how paid- from estate of decedent - 163 in arrear at death of lessee 163 by executor - 163, 164 distress for, by executor .or administrator - 277, 278 Rent charge widow dowable of - - 398 granted by husband out of wife's term - 140 INDEX. XCT may be extinguished by executor, administrator, or guardian (Addenda, No. 4) Renunciation, (see Executor.) Republication of a will 63, 64 effect of, on after purchased lands ibid. Residue undisposed of - 211 distributable by orphan's court - 12 Residuary legatee, (see Legatee.) Retainer by, executor for his debt, (see Executor.) Revocation of letters testamentary - 83 ot letters of administration by orphan's court 11, 12 by register 112, 113, 114 register's court 76 of wills . 59, and see Wills. Sale of decedent's estate of real estate devised to be sold 13, 14, 220 for payment of debts 13, 243 effect of, on lien - 334 for support of minor children ibid. estate after final settlement of adminis- tration accounts 13, 391, 392, 354 when refused by heirs 13, 349, 351, 352, 390 and seq. on petition of guardian 13, 444 effect of sale by orphan's court 250, 25 1, and seq. Append. if proceedings for sale of real estate be re- gular, but the record defective, record may be amended - 256 & seq. petition for 230 order for, by orphan's court - - ibid. return to order ibid. purchaser not bound to look to payment of debts - 236 confirmation of, by orphan's court - 392 Scire fieri inquiry 287, 299, 300 Scire facias to substitute executors or administrators, for their decedents - - - 271 xcvi INDEX. Scire facias on death of plaintiff or defendant after final judgment, and before execution - 272, 289 on death of plaintiff or defendant between ver- dict and judgment 275 after interlocutory and before final judgment 274, 275 after interlocutory judgment and before ex- cuting writ of inquiry 274 executor may have, on judgment obtained by administrator, durante minoritate 276 against bail, by such administrator - 276 by administrator, de fronts non - 276, 277 against executor, to revive judgment - 281 on judgment on official bond - 293, 295, 309 on judgment, executor cannot plead that there are two tenants whose lands are bound by judgment - - 281 for wife, on judgment by husband and wife 143 Sealing not necessary to will - 41 Servant indented interest of executor in 119 Sequestration of lands and goods 19, 21, 22, 24, 25 writ of 20 when issued - 20, 24 motion for Ql how executed - - - 22 money on, how disposed of 23 fraudulent conveyance, no bar to - id. person claiming estate under, may apply to court - ib. proceedings on such application - 24 sale of goods on . . . ib. real estate cannot be sold on . 25 discharge of . . . 24, 25 serves as^/a . . .27 when property under, will be sold and pro- ceeds delivered to plaintiff . . ib. Sequestrators officers of court . . . .22 accountable to it . ib. INDEX. xcvii Sequestrators their duty . ' . . .23 plaintiff never responsible for . . ib. compensation to . . ib. Sergeant at arms . . . . . 21 ( Sheriff action against by executor . . . 269 to execute deed for lands sold by order of Orphan's Court, when .... 245' Simple contract debts, in what order paid . .175 rate of payment, where estate is in- solvent . . . ibid. how determined . . .175 Specialty debts in what order paid . . . 173 when contingent . . . .174- voluntary bond . . . ibid. joint and several bond . . . . . ibid. joint bond . . . ibid. mortgage is a . . .175 when paid pro rata . . . 176 auditors on ... 175 claim for breach of agreement under seal is a 173 Suits in the Orphan's Court . . (see Orphan's Court) by executor and administrators . . 268, et seq. against executors and administrators . 279, et seq. Suicide . . . . . . .48 Summons and severance of executors or administrators . 275 Surrender of lease by executor . . .116 Survivorship ..... 122 Surviving executor .... 106, 155 Summons subpoena . . (see citation) Syndics, appointed by corporation, executor . . 79 Tenant for life, executor of, . . 135, 277, 278, 138 lessee of, . . . 138 Terms for years, vested in executor by entry before probate 93,115,116 cannot be waived by executor when he has assets . . . .117 determinate on lives . . 16 , created for marriage settlements . 17 IS INDEX. Terretenant execution against . . . 281 remedy for ... ibid. Trade generally not transmissable to executor . 127 where he may carry it on . . ibid, executor liable for loss in . . ibid, profit of, for the benefit of estate . ibid, Transmutation of property in favor of executor . 371, 377 Trespass action of, cannot be brought by executor 124, 269 sed quere . . . 124 by tenant for way going crop 137 Trustee proceedings against in Orphan's Court to compel to account . . . . 10, 14 executor for next of kin . . . 212 cannot purchase , 233 Tutors . . . . . . 10, 11 Venire sa mere child in, may be executor . . 80 legatee . . . 181 Wages of servants entitled to priority in payment . 162 Waste by administrators ..... 10 Way going crop, tenant entitled to . . 137 Widow entitled to administration . . .103 citable to elect, between devise and dower 14, 404 not entitled to dower, when . . 345, 351 not entitled to the principal sum at which her share is valued but to the interest thereon 345, 351 may recover the interest by distress . 346,351 quarantine of . 393 (see dower) citation to, to administer . . . 107 rights of, under the intestate laws . . 416 share of intestate's real estate, may be charged on the estate when sold . 421 when she takes the whole estate of deceased husband ..... 422 l of real or personal estate , . . 39, 40, 49, 50, (see Addenda. No. 1.) of real estate must be in writing . . . . 40 written or nuncupative . 40 INDEX. Will written, how proved . . . 40,41 sealing by, or signature of, testator not necessary . . . 41 writing must be of a testamentary cha- racter . . . .42 of real estate, according to the law of the country in which it lies . . 43, 49 of personal estate . . .49 personal estate, by the law of the domicil of testator . . .43, 49 Nuncupative . ... 43 when and how proven . . . 43, 44 widow and next of kin must be cited that they may contest . . 44 codicil to, .... ib. who may make, who may not . . 45 for want of legal discretion . ib. nonage . . . .45 defective understanding . 45, 46 coverture . . . ib. ib. want of liberty . . 45, 47 for divorce and living with adulte- rer ib. ib. not avoided by treason, felony, suicide, alienage 48 of alien . 48, 49 of non-residents . . . .49 estates devisable by . . ib. of lands, of which testator is disseized . ib. devise to relations ... 53 to heir at law . . . ib. uncertain . . . . ib. proper words to create the several species of estates by . . . ib. estates which may be created by . . 54 construction of . . 50, et seq. evidence on . . .51 revocation of ... 59, et seq. c INDEX. Will revocation of, evidence with regard to 62, 64 express . . ib. by codicil . . . . 60 partial ... . ib. implied . . . .62 must be intentional . . 60, 62 by marriage . . 62, 63 birth of issue . . ibid. must be in writing, when . 59, 63 by ademption . .64 first will revived, when . 61 republication of ... 63, 64 effect of . 64 probate of . . 65 before whom made . . 65, 68 when made abroad . . 66 how made . . , 68 exemplification of ... 67 sufficient, in any one county . 68 when according to the laws of a foreign country . . . ib. when according to that of testator's do- micil .... 68 one probate sufficient . . 68, 69 when lost, or illegible . .69 when in a foreign language . . ib. admission of by plea . . 291 caveat against '. 69 effect of .... 77 letters testamentary on . 78 Witness executor cannot be, when ... 72 subscribing to a will ... 73 declaration of ... ib. on feigned issue from Register . . ib. THE END. ** wn . - . . ^ . JAN 2 H991 *PR07 THERN REGIONAL LIBRARY 'FACILITY