^ > 't//:^ -' ^ - II " " so a3AiNn3WV OSANCfUf.,. V ro '^ .-N^ -n i Or ^lOSAKCfUjp^ aOF'CA11F0^^> ^>t£ < s ^lUBRARYO^^ %ojnv3io>' ^OFCAUF0% ^:lOS-ANCn£j:A '^1 iG ^^OJIIVDJO^ F0%, A-OFCAIIFOff^ %. < ea c<. ^10SANCEI% i n to this \-olunK' is SCllOL'l MR ON WILLS I'm KM l-'.i )iri()\ S5. 50 NET. Toj^ctlicr, the) constitut e a com I ilete work on the American Law of Ad- ministration. A TREATISE LAW OF EXECUTORS AND ADMINISTRATORS BY JAMES SCHOULER, LL. D., Propmsor in the Boston University Law School, and Author of Trbatises ON "The Law of Wills," " Domestic Relations," " Bailments," AND " Personal Property " THIRD EDITION BOSTON : BOSTON BOOK COMPANY 1901 \90\ Copyright, 1883, Bv JAMES SCHOULER. Copyright, i88g, Bv JAMES SCHOULER. Copyright, igoi, By JAMES SCHOULER. ii.ECTtoTTrm A!«r> rnixxm nv NOTE TO THIRD EDITION. The author has made use of the latest English and Amer- ican decisions, in the present edition, and has personally revised the entire volume. He avails himself of this opportunity to thank his fellow-members of the profession for their generous appreciation of this work, as well as of the companion volume on the law of Wills, which he issued subsequently to the first edition of the present treatise, and which has passed to a third edition almost simultaneously with this volume. J. S. January i, 1901. PREFACE. The present work completes an investigation of the law of Personal Property, whose results the writer commenced pub- lishing ten years ago ; an investigation pursued far beyond the limits originally proposed, but not without direct encouragement from his professional brethren. Four volumes properly comprehend the main subject, as follows : 1. The Nature, General Incidents, and Leading Classes of Personal Property. Schouler on Personal Prop- erty, Vol. I. 2. Title to Personal Property by Original Acquisition, Gift and Sale. Schouler on Personal Property, Vol. II. ; or, as it might well be styled, Schouler on Gifts and Sales. 3. Title to Personal Property by Bailment. Schouler on Bailments, including Carriers, Innkeepers and Pledge. 4. Title to Personal Property by Death. Schouler on Ex- ecutors and Administrators. Elementary writers discourse further of Title to Personal Property by Judgment and Insolvency ; but the law pertaining to these subjects is greatly controlled at this day by statutes of local application, and, besides, may be found amply discussed in text-books already familiar to the practitioner. A practical experience in the special branch of law which pertains to executors and administrators has been found service- able to the writer in preparing the present volume. The latest published reports, English and American, to the close of the year 1882, have been personally consulted by him, and cited so V \n PREFACE. far as seemed desirable. The American decisions, reported ni the United States Digest, have been carefully studied. What- ever other assistance has been received, from text-books, and especially from the elaborate English work of Williams, on this subjcxrt. is duly acknowledged in the foot-notes." Without in- stituting comparisons with other text-writers on this important branch of the law, the author may fairly claim, as he submits, that no work of a single volume is already before the profes- sional public, i^resenting historically and logically the whole English and American law of executors and administrators, with a due regard for the modern practical needs of such fidu- ciaries and their legal advisers, separating the main subject from those more abstruse topics which pertain to Wills and Testa- mentary Trusts, and giving to the excellent points of our Amer- ican probate practice of this day the prominence justly deserved. He trusts, therefore, that the present work will be found to supply an actual want, in a genuine sense. JAMES SCHOULER. HosTo.s', March 31, 1S83. ' Williams on Executors and Admini.strators, 7th English Edition (with Per- kins's .\nierican Notes), is cited in the present work. Schouler on Wills (a companion volume), was subsequently published. TABLE OF CONTENTS. PART I. INTRODUCTORY CHAPTER. PAGE 1. Estates of Deceased Persons ; how Settled in Modern Practice; The- ory of Judicial Supervision i la. Death Fundamental to Jurisdiction; Survivorship 2 2. Settlement of Estates, Testate or Intestate ; Executors and Adminis- trators, and their Functions ; Administration 2 3. Whether there may be a Will without an Executor 5 4. Devise and Bequest or Legacy distinguished ; whether a Will can operate upon Property afterwards acquired 5 5. Personal Property is administered; whether Real Estate can be ap- plied 7 6. Succession in the Civil Law ; as distinguished from Administration 8 7. Testacy preferred to Intestacy in Civil and Common Law; Former Abuses in English Law where Intestate Estates were administered 10 8. Wills of Real and Personal Property, whether distinguishable of Right ; Modern Statute of Wills 12 9. Ancient Doctrine of the Reasonable Parts of Widow and Children ; Wills of Personal Property affected 13 10. Jurisdiction in the Grant of Letters Testamentary and Administra- tion; English Ecclesiastical Courts 14 11, 12. Probate Jurisdiction in the United States 15, 16 13. The Subject continued; Probate Procedure in the United States . . 17 14. Modern Probate Jurisdiction in England ; New Court of Probate Act. 19 15. Conflict of Laws in Wills and Administration; General Rule of Comity; Authority of Representative is Local; Rule as to Foreign Creditors 21 16. Conflict of Laws; Comity Favors as to Payment of Legacies and Distribution 24 17. Conflict of Laws; Rule as to Excmtion and Validity of Will ... 26 18. Conflict of Laws; Rule as to Accountability of Executor or Admin- istrator 27 19. Conflict of Laws ; Personal and Real Estate contrasted; Situs pre- vails as to Real 27 20. Conflict of Laws ; (General Rules varied by Treaty, Statute, etc. . . 28 vii \iii TABLE OI- CONTENTS. § ri. Last Domicile: what this is ; Residence, Inhabitancy 30 22. Last Domicile ; applied to the Subject of Administration .... 32 23. Last Domicile ; Death while on Transit, etc 23 22a. Local Appointment to Prosecute a Statutory Action for Ton Caus- ing Death 34 24. Locality of Personalty or Bona Nolabilia may confer Jurisdiction, aside from Domicile ; Questions of Double Jurisdiction .... 34 25. The Subject continued : whether Assets brought in may confer Juris- diction 37 25J. The Subject continued; Suits for Assets owing by a Corporation . 38 26. The Subject continued; Right of Action created by Local Statute confers no External Jurisdiction 38 27. Whether Locality of a Decedent's Real Estate may confer Juris- diction 39 2S. Constitutional Points affecting Administration in the United States . 40 29. Probate Jurisdiction exercised by each State separately ; United States Courts should not interfere 40 29 //b. Transactions barred by Lapse of Time .... 358 CHAPTER II. COLLECTION OF THE ASSETS. 269. General Duty of Executor or Administrator to collect the Effects, etc 359 270. Statute Methods for discovering Assets in Aid of the Representa- tive's Pursuit 360 271. Special Statute Proceedings against Intermeddlers with the Assets, etc 361 272. Power of Executor or Administrator to enter Premises, force Locks, etc., in Pursuit of Assets 362 273. Duty to pursue or collect depends upon Means at Representative's Disposal 365 274. Duty to pursue or collect depends also upon Sperate or Desperate Character of the Claims 365 B xviii TABLE OF CONTENTS. PAGE § ::75. Duty to pursue or collect depends also upon Representative's Means of Knowledge 3^6 276. Legatees, Creditors, etc., have no Right to hold against Represen- tative 366 277. Suing to recover Assets; Actions founded in Contract, Duty, etc., survive 3^7 278. Survival of Actions founded in Contract ; E.xceptions to Rule . . 368 279. 2S0. .Vctions founded in an Injury to Person or Property died with the Person at Common Law ; Later Variations of this Rule . 368, 370 2S1. The same Subject; Replevin, Detinue, etc., by the Representative . 372 282. The same Subject ; Modern Statutes affecting the Rule- .... 373 283. The same Subject ; Action for Damages in cau.sing Death . . . 374 254. The same Subject; Actions founded on Wfongs done to Real Es- tate, etc 376 255. Actions upon Covenants Real, etc. ; Whether Representative may sue 377 286. The same Subject ; Breach of Covenant in Deed or Lease . . . 379 287. Action for disturbing Possession; Pew, Lease, etc 379 2S8. In General, Personal Representative sues for Assets of the Estate . 380 289. Suits, whether to be brought by Representative in his own Name or as Representative 380 290. The same Subject ; General Principle as to suing in Representa- tive's Individual or Official Name 381 291. 'ihis Principle appUed in suing for Torts affecting the Property . . 382 292. Suits on Contracts made with the Representative 383 293. Suit by Representative on Promissory Note or Other Negotiable Instrument 384 294. General Conclusion as to Suing upon Contracts in the Individual or Representative Character 385 295. Prosecution of Suits in Equity by the Personal Representative . . 386 296. Proceedings to obtain Possession of Specific Negotiable Instru- ments, etc., belonging to the Estate ; Agency 387 297. Pursuit of Assets where Decedent fraudulently transferred . . . 387 298. Representative's Power to Compromise or Arbitrate 388 299. Effect of Contract or Covenant to the Decedent, which did not name his Executors, Administrators, etc 388 300. The same Subject ; Effect where the Expression " As.signs," " Next of Kin," " Heirs," etc., is used 389 301. Right of Representative to distrain or sue for Rent in Arrears . . 390 302. Rights of Personal Representative upon Conditions made with the Deceased 391 303. Right accruing to Personal Representative by Chattel Remainder, etc 391 304. Right accruing to Personal Representative in his Time and after the Decedent's Death 392 305. Rights of Personal Representative as to Pledge, Collateral Security, etc 393 TABLE OF COXTENTS. XIX I'A'.F. § 306. Collection of Debts with Security; changing or renewing the Se- curity 394 307. Gathering the Crop or Emblements 394 308. Want of Diligence or Good Faith in collecting Assets 395 309. Collection of Interest-bearing Debts ; Usury, etc 396 310. What may be taken in Payment ; Private Arrangements with Debtor, etc 3'/' 311. Liability where Property is taken or Money collerled by Mistake as Assets 397 311a. Effect of Payment, etc 397 . CHAPTER in. CARE, CUSTODY, AND MANAGKMKNT OF THK ASSETS. 312. Care, Custody, and Management of Assets an Important Function . 39S 313. Executor or Administrator how far regarded as a Bailee in Respect of Responsibility, Honesty, etc 398 314. As to Care and Custody; Responsibility of Executor or Adminis- trator like that of the Bailee 3')9 315. The same Subject; Whether this responsibihty is that of a Gratui- tous Bailee or a Bailee with Recompense 400 316. Liability of Personal Representative in the General Management of Estate 40 ' 317. Management of the Estate; Collection of Income, etc. ; Responsi- bility of the Representative 402 317(2. As between Investing Cash or Using it for Payments, Deposits, etc 403 318. Paying Assessments, Discharging Liens, etc., upon Personal Assets 404 319. Personal Representative's Vote upon Stock 405 320. Putting Assets into a Salable Condition, etc. ; Repairing, etc. . . 405 321. Responsibility of Personal Representative for Acts of his own Agent, Attorney, etc 406 322. Duty as to investing Assets or placing the Funds on Interest . . 408 ^2;^, 324. Investments, how to be made, etc. ; Rule of Liability . . . 409,410 325. Liability for placing or leaving Assets in Trade, Speculation, etc. . 412 325a. Closing out Decedent's Business, etc 4 '4 326. 326a. Carrying on a Trade with Assets; Liability, etc. . . . 415, 417 327. Sale, Investment, etc., of Perishable Assets; Cattle, etc 418 328. Rule as to calling in Money already out on Loan or Investment . . 418 329. Rule as to making Unauthorized Loans or Investments .... 419 330. Representative's Acts are for Benefit of those interested in Estate ; Good Faith, etc., required 4-° ■531. .\ssets should be kept distinct from Representative's Own Property 421 332. Liability qualified where Acts are performed under Advice and As- sent of the Parties in Interest 422 XX TABLEOF CONTENTS. PAGE § 2;iy Liability qualified where Acts are performed under Direction of the Court 4-2 334. Rule where Control is taken by Court out of Representative's Hands, 423 335. Directions of a Will as to Investment, etc., may be reasonably fol- lowed; Specific Legacy, etc 424 335^. Lending without Security or on Poor Security 425 336. Summary of Doctrine as to Management and Investment; Devia- tions, when permitted 426 337. .Management, Investment, etc., by E.\ecutor or Administrator simi- lar to that by Guardian, Trustee, etc 427 ^^>i. Election to charge Representative or to accept the Investment . . 427 ClIAI'TKR IV. THE KErKKSE.NTATIVE's POWER TO SELL, TRANSFER, AM) PURCHASE. 339. Representative's Power to dispose of Assets 428 340. Sale or Transfer can only be made while the Representative holds office 428 341. Whether Assets should be sold at Public or Private Sale .... 429 342. Sale of Goods bequeathed for Life with Remainder over .... 429 343. Power of Representative to dispose of C'hattels specifically be- queathed 430 344. Sales of Perishable Assets, etc 430 345. Representative's Sale of his Decedent's Business 430 346. Sales and Transfers of Personal Assets under Probate Direction . 432 347. Authority to sell or transfer or buy as affected by Expressions in the Will 434 348. Consulting Parties in Interest, as to the Time, Manner, etc.. of sale 435 349. Representative may pledge or mortgage Assets instead of selling . 436 350. Bo)i. Vandoren 265 7'. Graffins 256 258 Ansley v. Baker 184, 190 7'. Hubbard 537 Apperson v. Bolton 27, 173. 179 7'. K el lam 515 Applegate v. Cameron 236 7'. Kimball 186 Apple's Estate 16 V. McPherson 85 Apreece v. Apreece 461, 490 XXIX \xx TABLE OF CASES. Section Areson v. Areson 474 Bacon v. Bacon 321 Armstrong 7-. Baker 67 7'. Clark 324, 329. 335 -■. Burnet 381 V. Howard 334 T'. Stovall 262 V. Parker '93 Arnold v. Arnold -4 , 1 70, 482 V. l^omeroy 418 ; . Babbitt 146 V. Thorp 258. 390 ?'. Downing 433 Badenach, Goods of 46 V. Mower 530 Bailey, Goods of 40, 126 V. Sabin 1 1 2 , 115, 270 Bailey 7'. Bailey 59. 465 V. Smith 527 -■. Blanchaid 525 V. Spates 527 7'. Ekins 429 Arrington v. Hair 411 7/. Gould 314 7'. McLemore 58 7J. Hammond 484 Arthur r. Carrie 341 r. Miller 187 Ashburnr'. Ashburn 264 V. Ormsby 277 Ashburnham r'. Thompson 538 V. Scott '55 Ashby V. Ashby 395 7'. Spofford 401 Ashley v. Pocock 426, 437 Bain v. Matteson 407 Ashmore, Goods of 77 V. Saddler 221 Ashurst ■■. Ashurst 430 Bainbridge's Appeal 422 Aspden Z-. Nixon 174, 180 Baines v. McGee 354 Aspinwall v. Queen's Proctor 23. '72 Baird's Case 380 Aston, Goods of 125 Baker v. Baker 448, 451 Astoii's Estate 213 V. Blood '3 Astor V. Hoyt 200, 218 V. Brown 391 Astor, Goods of 57,61,87 7'. Crandall 283 Atcheson -■. Robertson 402 V. Fuller 392 Atkins I'. Kinnan 366, 428 7J. Moor 397 V. Tredgold 389 V. Rust 433 Atkinson v. Barnard 124 Balch V. Hooper 408 V. Christian 141 V. Symes 53 V. Grey 427 Baldwin v. Buford 127, 153 Atkison -■. Henry 217 7'. Carter 496 Atterbury z'. Gill 373 7'. Dougherty 417 Attorney General t.Bouwens 2 4, 117-175 7'. Hatchett 306 V. Dimond 175 7'. Standisli 141 V. Hooker 494 Baldwin's Appeal 179, 180. 181 V. Jesus College 473 Balme's Goods 61 7'. Kohler 117 Bancroft 7'. Andrews 128 T. Partington 130 Bane 7'. Wick 454 7'. Robins 490 Bank of Ireland 7'. McCarthy 490 At well V. Helm '37 Bank v. Dudley 353, 509 Aubuchon v. Lory 509 V. Gibbs 428 Aurand v. Wilt (^3 Bank of Port Gibson v. Baugh 402 Austin V. Austin 141 Bank of Troy v. Topping 258 7'. Lamar 526, 528 Bankhead v. Hiilibard '37 7'. Munro 256, 397 598, App. Banking Co. v. Morehead 258 Ake's Appeal 5-7 Banks v. Sladen 487 Ayling, Goods of 66 Banta v. Moore 165, '73 Ayres v. Clinefelter 46 Bantz 7'. Bantz 526 V. Weed 32,46 Barasien v. Odum 184, 190 Barber 7j. Bush 106 V. Converse 112 B. Barbour v. Robertson 146 Barcalow, Matter of 522 Babbitt ?'. Brown 120 Barcalow, AV 545 Babcock v. Booth '95 Barclay v. Cooper 512a: V. LiUib 428, 433 Barclay's Estate 422 TABLE OF CASES. Bard v. Wood Harden, Goods of Hards 7'. Lamb F^arfield v. King Barker, Ex parte Barker, Goods of Barker v. Barker V. Comins 7). Stanford Barksdale v. Cobb Barnard v. Gregory Barnard v. Pumfrett Barnawell ?'. Smith Barnes, Goods of Barnes v. Brashear V. Hazleton "'. Underwood Barnetl v. Guilford Barney v. Saunders Barrett v. Barrett Barrington v. Tristram Barron v. Burney V. Vandvert : V. Lambert V. Rush Bartel's Estate Bartholomew v. Warner Bartlett v. Fitz V. Hyde V. Slater Barton v. Barton V. Cooke V. Higgins Barwick v. Mullings Bass V. Chambliss Bassett v. Granger Bassett v. McKenna Bate V. Bate Bateman v. Margerison Batson v. Murrell Batton V. Allen Baucus V. Stover Bauquier, Re Baxter v. Baxter V. Buck V. Gray Bay V. Cook Bayard, Goods of Bayard v. Farmers' Bank Bayley v. Bailey Baylis v. Attorney-General Beale v. Hall Beall V. New Mexico Beaman v. Elliott Bean z'. Bumpus 93, 112, 1 Bean v. Chapman V. Smith Bearzoz'. Montgomery Section Section 522 Beasley v. Howell 27 59, 60 Beaston ?'. Farmers' Bank 428 414 Beattie v. Abercrombic 239 39' Beatty v. Dufief 444 109, 160 Beaty v. Gingles 256, 395. 397 112 Beck V. Rebow 227 325 Becker v. Hager 522 79 V. Selover 239 146 Bective v. Hodgson 217 144 Bedell v. Constable 43 186 Beebe, Matter of 270 488 Beebe v. Estabrook 500 438 Beecher v. Buckingham 239, 240 42 Beekman v. Cottrell 370 175 Beene v. Collenberger 346, 361 500 Beer, Goods of 43 496 Beers v. Shannon 24, 170 267 V. Strohecker 265 545 Belcher v. Belcher 407 173 Bell, Goods of 36 480 Bell V. Armstrong 69 184 V. Briggs 422 93, 410, 411 V. Hewitt 368 400 V. Speight 408, 409 397 V. Timiswood 104 70 Bellamy, Goods of •39 361 Bellerjeau v. Koits 532 544 Bellinger v. Ford 194, 195 120 Bellows V. Goodal 189 481 Bells 7A Nichols 173 528 Belton, Re, 244 490 Belvin v. French 398 173. 179 Bemis v. Bemis 419 62 Benlow, Goods of 69 310 Bench v. Biles 5'2 208 Bender v. Diet rick 474 220, 221 Bengough v. Edridge 465 545 Bennett, Ex parte 358 195 Bennett v. Bennett 499 389 71. Hannifin 524 500 V. Ives 184,424 208, 542 Benson v. Benson 427 ZZ V. Maude 478 428 V. Rice 340 288, 293 Bent's Appeal 60, 85, 463 368 Berg V. Radcliff 428 500 Berger v. Duff 268 127 Berkey v. Judd 142, 420 35o> 351 Bermingham v. Wilcox 402 20, 171 Berry v. Bellows 154. 155 38 V. Hamilton 2,1, f> Toif 401 356 160 408 V, 1 an Betts V. Blackwell "^12, Bewacorne v. Carter 46 20, 206, 207 Biddlez/. Wilkins 173 160 Bigelow V. Bigelow 160 359 V. Morong 502 239 V. Paton 204 XX. Ml TABLE OF CASES. Section Billingslea v. Henry 542 Bodley v. McKenney 137, 324, 400 r . Young 510 Bogan V. Camp 341 BQls r. Scott I4«. '54 V. Walter 536 Bingham, AV 53' Bogart V. Van Velsor 229, 323. 329 V. Crenshaw 104, 196 V. Hertell 400 Binionz'. Miller 538 Bogs V. Bard 292 Binnemian f. Weaver 106 Bolingbroke ?■. Kerr 292 410 Birch, AV 393 Bollard v. Spencer 291 Birch V. Dawson 227 Bolton, AV 512/' V. Wright 374 Boltwood v. Miller 362 419 Bird V. Jones i59> 268 Bomgaux v. Bevan 428 Birdsall :■. Hewlett 481 Bonafous v. W' alker 291 Birkett, A\ 484 Bond, Goods of "5 Birkett v. Vandercom 43 Bonds V. Allen 456 Biscoe T'. Moore 310 Boody V. Itmerson 160 Bishop t/. Bishop 41, 227 509 Boofter v. Rogers 63 V. Curphey 21 1 Bookman 7\ Smith 474 7\ Lalonette 91 Boone 7'. Dyke 488 Bizzey v. Flight 62 Boor V. Lowrey 283 370 Black I'. Dressell 509 Booraem v. Wells 358 V. Hurl but 3'7 Booth V. Booth 382 402 7: Whitall 500 v. Radford 424 Blacklx)rough 7\ Davis '03 501 V. Patrick 234 Blackerby T'. llolton 504 Borden v. Jenks 490 Blackington z\ Blackington 453 Borneman v. Sidlinger 219 Blackwell, Goods of 37 Borer 7/. Chapman 446^ Blair v. Murphree 226 Bosie, Estate of 315 Blake z: Blake 220 Bosler v. Exchange Bank 428 V. Dexter 413 Bostic V. Elliott 406 ?'. Griswold 283 Boston V. Boylston 540 V. Knight 69 Boston Packing Co. t. Stevens 385 V. Pegram 402 530 538 Bothamley tj. Sherson 461 V. Ward 528 Bothomly 7'. Fairfax 426 Blakely r. Smock 379 Boughton V. Bradley 91 Blanchard -■. Blanchard 77 V. Flint 525 V. Williamson 420 Boulware v. Hendricks 146 Bland 7: Umstead 253 367 Bourne v. Stevenson 23O' 234 .236 Blank, Matter of 116 Bovey v. Smith '9 Blank's Appeal 443 Bowditch V. Soltyk 487 Blassingame v. Rose 450 Bowdoin v. Holland 1 5, 120, 168 , 186 Blethen --. Towle 227 Bowen v. Montgomery 308 Bligh V. Brent 202 V. Phillips '57 Bliss v. Seaman 409 V. Richardson 403 Blisset, Goods of 127 V. Shay 34' Block, Succession of ICO Bowers v. Bowers 112 Blood V. French 361 V. Keesecker 200 Bloodworth 7'. Stevens 216 V. Smith 473 Bloomer 7\ Bloomer 542 V. Williams 428 Bloomfield v. Ash 140 Bowerson's Appeal 99 Blount V. Davis 358 Bowes, AV 224 Blower v. Morret 490 Bowlby, Goods of '39 Bloxham v. Crane 244 Bowles V. Harvey 23> Blue T. Marshall 386, 387 Bowman 7'. Raineteaux 245 Blydenburgh v. Lowry '73 V. Tallman 256 liob, Succession of '37 V. Wootton 3J . '37 Bolo 7'. Vaiden 148 Boxall V. Boxall 353 Modger 7'. Arch '95 Boycez/. Escofifie 428 Bodlei'. Hulse 403 zi. Grundy 19 TABI.K OF CASES. XXXlll Section Boyd, Re 539 Briscoe V. Tarkington 107 Boyd, Succe.s;>ioii of 155 V. Wickliffe 127 Boyd 7'. Boyd 328, 499 Bristow V. Bristow 480 7'. Hawkins 545 Brockett v. Bush 387 V. Lowry 434 Broderick's Will 28 !•. Uglesby 387 Brodie v. Barry 19 169 Boyd's Appeal 99 Brokaw v. Brokaw 457 Boyle, Goods of 46 V. Hudson 470 Boylstoii V. Carver 2\i,. 215 Bromage v. Lloyd 362 Brackenbury, Goods of "5. '39 Bromley v. Miller 57 Brackenridge v. Holland yy^ Brooks V. Brooks 230 Brackett v. Griswold -«3. 373 V. P'loyd 289 293 Brackett v. Tillotson 422, 509, 542 V. Mastin 410 Bradbury v. Morgan 366, 367 V. Oliver 518 Braddock, Goods of 63 V. Smyser 409 Bradford -'. Felder 120 V. Whitmore 147 Bradley v. Bradley 129 Brooksbank v. Smith 391 V. Brigham 379 Broome v. Monck 377 427 z/. Commonwealth 141 160, 192 Brophy v. Bellamy 475 V. Heath 25s Broughton v. Bradley 153 V. Missouri R. 160 Brown, Ex parte 140 407 V. Norris 390 Brown, Goods of 39 V. Simonds 516 Brown v. Anderson 70 Bradley's Goods 36 V. Armistead 407 Brady v. Shiel 437 V. Benight 186 Brake, Goods of 38 V. Brown 146, 160, 174 490 526 Bramhall v. Ferris 217 V. Campbell 324 Branch v. Branch 289, 291 v. Clark 82 Branch Bank v. Hawkins 418 z>. Dean 284 V. Rhew 420 V. Durbin 184 V. Wade zy V. Evans 251 257 Brandenburg v. Thorndike 456 71. Farndell 492a Brandon v. Brown 527 7'. Finley 297 V. Judah 308 V. Farnham 257 Brant v. Willson 82 V. Gellathy 324 479 Brasfield v. Cardwell 409 V. Gibson 194 Brasheara. Williams 506 r. Hay 102 Brassey v. Chalmers 405 -A Hobson 407 Brassington v. Ault. 403 V. Kelsey 509 Brattle v. Converse 128 -'. Leavitt 189 194 Brazeale v. Brazeale 308, 526 V. Litton 323 Brazen n. Clark 145, 328, 406 V. McCall 545 V. Dean 451 7'. Murdock 148 Breen v. Pangborn 160 V. Porter 419 Brenchley v. Lynn 126 V. Public Administrator 428 V. Still 60 V. Reed 539 Brett V. Brett 66,76 7'. Ryder ^?>S Brewster v. Brewster 389. 543 V. Sullivan 193 V. Kendrick 419 7'. Sumner 434 Brick's Estate 54 5-6, 528 T. Temperly 482 Brier, Re 321 V. Walker 190 Briggs, Goods of 43 V. Weatherby 147 V. Breen 256 Brown's Accounting 402 V. Rochester 23 Brown's Estate 104 V. Wilson 389 Browne v. Cogswell 494 Brigham v. Bush 456 V. Preston 387 V. Maxley 361 Browning, Goods of 99 Bright V. Adams 63 Browning v. Paris 389 XXXIV TABLE OF CASES. Browning v. Reane Brownlee v. Lockwood Brownson, AV Biubaker's Appeal 1 1 1)1 ucf t: Bruce ;■. Griscom Brunk v. Means Brush V. Young Brj-an v. Mulligan v. Kooks -■. Stewart V. Thompson Bryant v. Russell Buchan v. Rinloul Buchoz V. Pray Buck 7: Johnson Buckels -■. Cunningham Buckley t/. Barber V. McGuire Buck's Estate Budd V. Hiler V. Silver Buffalo Loan Co. v. Leonard Buffaloe v. Baugh Buffum ?■. Sparhawk Buie V. Pollock Bulfinch V. Benner Bulkley z: Redmond Bull V. Sibbs Bullock V. Rogers V. Wheatley Bulmer's Case Burbank r. Payne V. Whitney Burch, Goods of /« re Burchmore. Goods of Burd 7'. McGregor Burdett, (Joods of Burdick v. Garrick Burke --. Bishop 7'. Coolidge Burkhead v. Colson Burks i: Bennett Burls 7: Burls Burnet v. 1 1 olden 7'. Mann Burnett t. I'.rian V. Meadows 7\ Nesmith Burnham v. Lasselle Burnley v. Duke Burns 7: Van Loan Burridge v. Bradyle Burroughs v. McLain Burrows v. Walls Burrus :'. Roulhac Burtch V. Elliot 92, 96, 95. Section Section 98 Burton r/. Hintrager 214 413 7'. Tunnell 247 439 <■'. Waples 118 153. 404 Burwell t'. Mandeville 325 16 Butler, Estate of 175 500 Butler z: Butler 341. 346 288 V. Lawson 13 407 Butler's Inventory 234 355 Butler's Succession 170 130 Butson, jRe 24, 202, 211 402 Buxton V. Buxton 328 404 Byde z'. Byde 469 308 Byerly v. Donlin 128 525 Byers v. McAnley 28 434 Byrd, Goods of 77 173 Byrd v. Gibson III 361 Byrn?'. Flemming 161 200 V. Godfrey 204 140 200 226 C. no 491 Cabanne v. Skinker 177 488 Cables v. Prescott 211 451 Cadbury z>. Duval 347 491, 520 Cady V. Bard 173 428 Cagar v. Frisby 361 1,96,153 Caig, £x parte "5 376 Cain V. Haas •15 200 C alder v. Pyfer 410 328 Caldwell v. Caldwell 515 380 Hedges v. 148 362 V. Lockridge 528 464 v. McVicar 310 109 Calhoun v. Calhoun 457 "3 Calhoun's Estate 317. 321 '32 Calkins v. Boulton 329 528 7!. Calkins 324 115. 13' Call V. Ewing 402 391 Callaghan -■. Callaghan 368 204 V. Hill 330 431 Callahan v. Griswoid 116 488 V. Smith 160 13 Calvert v. Marlow 33 ' 84 Camden v. Fletcher 193 426 Cameron v. Cameron 236, 544 501 Camp V. Crocker 464 391 Campanari v. Woodburn 367 23 Campbell, Goods of '34 142, 160 Campbell, Ke 522 285 Campbell v. Booth 187 168. 408 V. Brown 15 153, 160 V. Brueii 533 490 V. Campbell 439 417 71. Johnson 146 393 V. Sheldon 15. 57, 174 , 4. Ray 164, 165 Chadbourn z'. Chadbourn 386, 387 Carnes v. Crandall 428 Chalk V. McAlily 284 Carnochan 7/. Abrahams 196 Challen v. Shippam 322 Carow V. Mowatt 107, 428 Chamberlain v. Dunlop 367 '375 Carpenter 7'. Cameron 36 z'. Williamson 280 V. Denoon 57 Chamberlin v. Wilson 95 V. Fopper 213 Chamber's Appeal 308 7'. Going 190 Chambers z'. Bicknell "3 v. Gray 154 z'. Minchin 402 7'. Jones 112 "5 z: Shaw 460 Carr v. Estabrooke 469 z'. Smith 390 V. Lowe 181 Champion z'. Brown 218 7J. Roberts 277, 300 Chandler zi. Batchelder 477 Carrigan v. Semple 178 z'. Davidson 193 Carrol zf. Bosley 247 z'. Schoonover 352 356 Carroll v. Carroll 55, 88 160 Chapin z>. Hastings 128 V. Connet 43, 236 408 Chaplin z'. Burett 385 V. Stewart 402 Chapman, /Ce 329 Carrollton v. Rhomberg 370 Chapman z'. Esgar 221 Carron Iron Co. v. Maclaren •5 178 z'. Fish 173 Carruthers v. Corbin 428, 441, 541 z'. Holmes 285 Carson v. Carson 485 T. Robertson 19 Carte ?/. Carte 42 zj. Speller 36' Carter z/. Anderson 156 Charles z'. Jacoli 208 z>. Cutting 402 Charlton's Appeal 526 v. Engles 420 Charlton's E.state 308 7'. Pastes 290 Charter v. Charter 14 v. Greenwood 120 Chase v. Fitch 370 ZK Hammet 376 V. Kittredge 77 V. Hinkle 456 z'. Lockerman 214 V. Manufacturer's Bank 349 352 7'. Redding 219 zj. Robbins 1 86 7'. Webster 453 z/. Trueman 408 Cheatham z'. Burfoot 40S Carthey t. Webb 1 II Cheely 7-. Wells 288 Caitwright's Case 132 Cheetham z'. Ward 20S Casez/. Abell 402 Cheever v. Judge '5' Case's Appeal 403 Chelsea Water Works 7'. Cow :)er 476 Casement v. Fulton 77 Cheney v. Cheney 455 Casey v. Gardiner 50 1 12 v. Gleason 284 295 Caskie z'. Harrison 210 325 Chester 7/. Urwick 470 Cason V. Cason 329 Chevallier 7'. Wilson 54' Casoni 7>. Jerome 140 Chew 7/. Chew 157 Caspenson z'. Dunn 485 Chew's Appeal 405 Cassedy z'. Jackson 32 106 Chew's Estate 401 Cassel's Estate 402 Chicago R. z'. Gould 109 Castle V. Warland 322 V. O'Conner 283 TABLE OF CASES. Section Section Child i: Gratiot 109 Clarke -,'. Wells 128 I'. Thorley 402 V. West 146 Childs I'. Monins 258 Clarkington, Goods of 116 V. Updike 387 Classon v. Lawrence 2S8 Childrc-ss v. Bennett 163 167 Claudel v. Palao 45'- 453 Chisholm i: Lee 324 Clauser's Estate 538, 545 Choate -■. Arrington 146 Claussen v. Lufrenz 186 Chouteau i'. Suydam 387 395 V. McCune 420 Christian, Goods of 77 Clay, AV 511 Christian v. Morris 258 Clay V. Guiley 473 Christopher v. Cox 32 V. Willis 217, 221 Christy v. McBride 321 Clayton v. Akin 490 -■. Vest 25 V. Lord Nugent 38 Churchill v. Hobson 322 335 V. Somers 466, 542 <'. Prescott III 174 V. Wardwell 506 Cincinnati R. t'. Heaston 418 Cleaves?'. Dockray 138, 143 Citizens' Bank v. Sharp 176 elements. Hawkins 260 Clack -■. Holland 30S Clement's Appeal 526, 544 Clapp 7'. Fullerton 81 Cleveland ?■. Harrison 362 f. Ingrahani 222 V. Quilt y 1 16, 151, 152 r. Meserole 528 Cleverley 7'. Gladdish '39 V. Stoughton 194 201 Clifton V. Haig 390 V. Walters 385 Cline's Appeal 541 Clare v. Hedges ^33 Clingman v. Hopkie 428 Clark, Estate of 538 Clopton 7'. (jholson 256 Clark, Goods of "5 Clough 7'. Bond 98, 32 1 , 328 336.3.38.496 Clark V. American Surety C 0. 147 V. Dixon 402 V. Goods of "5 Clowes V. Hilliard 5'9 V. Bettelheim 509 Coates V. Coates 470 z>. Blackington 19, 24, 1 75' '79 358 V. Mackey .78 f. Burnside 227 V. Muse 428 V. Carroll 373 Cobb, Estate of 70 V. Clark 98, 402 Cobb V. Beardsley 129 V. Clay 522 V. Brown 120 7'. Clement "''.^ 167 V. Muzzey 509 ?■. Cress 526 V. Newcoml) 100, iii 112, 113,115 7'. Davis 4 JO 434 Cobbett 7'. Clutton 272 7'. Eubank 522 Cobel V. Cobel 2l6 T. Hardman 391 Coburn v. Harris 390^ •■. Knox 538 V. Loomis 526, 530 :•. McClellan 279 Cochran v. Thompson I 20, 40Q, 410 7'. Niles '37 Cochrane v. Robinson ' 476 7'. Pishon 160 '95 Cock V. Carson 262, 516, 410 V. Piatt ^45 7'. Cooke 63 V. Sewell 481 Cocke V. Trotter 395 V. Sw-ift 285 Cockerill -'. Kynaston 291 7'. Taint er 49 Cockleton v. Davidson 173 7'. Wright 84 Cockroft V. Black 439 Clarke v. Alexander 396 Cocks 7'. Haviland 402 7'. Blount 402, 542 Cocks T. Varney 177 7'. Chapin 141, 144 Codding ?'. Newman 50 V. Clarke 32 Coddington t. Bispham 478 7'. Clay 120 Coffee V. Ruffin 43'. 54-: 7'. Hilton 494 7'. Cottle 1 53. 386 7'. Jenkins 402 7'. Talman 375 7'. Ransom 6 ^82 (ohea T. Johnson 407. 4 '3 : . Sinks 508 V. State 142 V. Tuftb 249. 534 Coit V. Conistock 465 1 rABL E F CASES. .X.X.WII Section Section Coke V. Colcroft 367 Conover v. Conover 236 Coker v. Crozier 280 Converse v. Starr 57 Colbert 7j. Daniel 173 520 Conwill V. Conwill 504 Cole V. Dial 153 Cook V. Carr '05 V. Elfe 450 7'.Collingbridge 330 537 V. Miles 400 V. Cook 274 z'. Wooden •34 V. Gregson 221 Coleby t. Coleby 422 V. Holmes 411 Colegrave r'. Dias Santos 227 V. Lanning 481 Coleman 7: Raynor 156 71. Sanders 189 V. Smith -M7 V. Sexton 453 Coles, Goods of 63 ' '5 Cooke V Meeker 479 Coles T'. Trecothick 74 Cool 71. Higgings 422 Colesbeck v. Peck 426 Coombs V. Coombs "5 Colgan's Estate 200 Coope 7). Carter 518 Collamore v. Wilder 251 417 V. Lowerre J 04 Collen 7'. Wright 372 Cooper V. Brockett 77 Collier ?■. Collier 217 z>. Cooper 151, i 54, 157, 3I7CJ, v. Jones 189 493 507 V. Rivaz 20 V. Day 468 Collins V. Bankhead 167 7'. Felter 428 7'. Crouch 427 7'. Hayward 238 7/. Hollier 522 V. Maddox 98 v. Spears 107 V. Thornton 485 V. Tilton 526, 542 V. White 205 Collinson v. Lister 352 7'. Williams 315 Colston z>. Morris 478 Cooper's Goods 85 Colt 7: Lesnier 352 C cover's Appeal 98 Coltart V. Allen 152, 153 Cope V. Cope 132 Colton 7'. Colton 28 Copeland ?'. McCue 310 324 Coltraine v. Spurgin 428 V. Stephens 376 Columbus Ins. Co. v. Humph -ies 335 Copis V. Middleton 427 Colvert z'. Peebles 235 Copp V. Hersey 534 Colvin, A'e 140 Coppin V. Coppin 490 .491 Colvin 7'. Owens 363 Core V. Spencer 69 Colwell 7'. Alger 138 Cordeux ?■. Tra.sler no Commercial Bank t. Slater 434 Cornell v. Gallaher 104 Commissioners, Ex parte 116 Corner v. Shew 257, 396, 397 398 Commissioners v. Greenwood 428 Cornes v. Wilkin 418 Commonwealth v. Blanton 504 Cornish z'. Wilson 146 V. Bryan 230 Cornpropst's Appeal 104 V. Duffield Cornthwaite v. Nat. Bank 258 V. Higert 146 Corsitt V. Bi.scoe 428 433 V. Logan 428 Cortelyou v. Lansing 305 V. Mateer 47 Corwine v. Corwine 5" V. McAUster 329 Cote V. Dequindre 210 V. Taylor 145 Cotham v. Britt 500 Comstock V. Crawford 156 Cotter's Estate "3 V. Hadlyme 73 Courtenay v. Williams, 470, 491 508 Conant v. Kent 502 Cousins V. Jackson 527 Condit V. Winslow 542 582 Cousins, Re If^?, Conger v. Atwood 457 510 Cover V. Cover 412 Conkeyz/. Dickinson 247 Coverdale v. Aldrich 204 Conklin v. Egerton 407 Cowden v. Jacobson 180 Conly V. Conly 282 Cowdin v. Perry 527 Connell v. Chandler 456 Cowell v. Watts 292 Connelly's Appeal -30 316 Cowles 7'. Hayes 414 Conner v. Mclhainc 406 532 Cowley 7'. Kna[i]) 63 xxxvm TABLE OF CASES. Cowling V. Justices Cox, Creditors of Cox V. Cox V. John f. Joseph V. McBurney I/. Morrow Craddock :•. Stewart Crafton :■. Beal Craig :■. Leslie Craig :•. McCehee Craige : . Morris Craigic r . Lewin Crain f. Barnes Crakcr r . Dillon Cram z\ Barnes V. (.Ireen Crandall i'. Shaw Crane v. Guthrie Crapo V. Armstrong Crashin f. Baker Cravath v. Plympton Cravens f. Logan Ciawford -'. Blackburn f. Bloss -'. Elliott V. Graves V. Redus V. Whittal Cray v. Willis Crayton v. Munger Creamer i-. Waller Creath v. Brent Creed v. Creed V. Lancaster Bank Cresse, Matter of Creswick v. Woodhead Cringan, Goods of Crippen r. Dexter Crisman v. Beasley Crispin ?'. Doglioni Crist 7'. Crist Crocker v. Dillon V. Smith Croft 7'. Lyndsey 7'. Williams Crofton Ti. Crofton V. Ilsley Crolly V. Clark Cronan v. Cutting Crook V. Watt Crookenden z'. Fuller Crosby v. Covington V. Crosby V. Gilchrist V. Leavitt J'. Mason CrosH V. Brown 1 6, 17, Section 142 441 427 214 496 361 43 217 53^' 457 '7 481 247 481 520 '35 216 422 193 385 411 346 457*^ 264 173 526 291 488 361 230 128 490 500 •>3 403 41 170 361 167, 169 488 247 509 3'4 402 178 >7 '9 385 498 22 500 ^47 168 91 265 220, 297 Section Crouch V. Davis 469 Crowder -•. Shackelford 544 Crowninshield 7\ Crowninshield 73 Crozier v. Goodwin 134. 141 Crozier, Re '35 Crum V. Bliss 16 Crump V. W' illiams 195. 262 Cubbidge v. Boatwright 409 Cullen V. O'Hara 244 Cummings v. Allen 457 7'. Bramhall 204 V. Cummings 526 Cunningham v. Souza 137, 146 Cureton v. Mills 181 Curie V. Curie 428 V. Moore 173 Curley 7'. Hand 428 Curling v. Thornton 171 Curre 7/. Bowyer 277 Curser, Re 32 106 Curtis V. Bailey 531 V. Brooks 504 7'. Curtis 85 7'. Williams IOC, 115 152 v. Vernon 187 Curtiss V. Beardsley 150 Gushing v. Ayhvin 17 V. Gushing 500 Cutbush V. Cutbush 326 Cutchin V. Wilkinson 130 Cutlar V. Quince 129 Cutler V. Howard 32 '54 Cutliff V. Boyd 491 Cutright V. Stanford 380 Cutter V. Currier 522 z'. Davenport 164 Cutting V. Tower 280 D. Dabney's Appeal Daboll V. Field Dagley v. Tolferry Dale V. Roosevelt Dallmeyer, Re Dalrymple 7'. Gamble Damouth 7'. Klock Daniel v. Hill Dans V. Dabergott Danzey v. Smith 7). Swinney Darden v. Reese Dardier v. Chapman Darke, /;/ re Darke v. Martyn Darling n. Hammer Darston ?'. Lord Oxford 335 520 483 409 499 '53 192, 193 63 112 297, 316 420 456 106 32 322 338 437 TABLE OF CASES. XXXIX D'Arusment v. Jones Davenport v. Congregational ety V. Devenaux V. Irvine V. Sargent David V. Frond Davidson v. Potts Davies, Goods of V. Bush V. Nicliolson V. Parry Davis, Matter of Davis, Re Davis, Succession of Davis V. Chanter V. Chapman V. Cowden V. Davis V. Estey V. French V. Gaines V. Garr V. Harper V. Inscoe V. Lane V. Marcum V. Miller V. Newman V. Rhame V. Shuler V. Smith V. Stevens V. Swearinger V. Vansands V. Wright Davis's Appeal Davone v. Fanning Dawes, Goods of Dawes v. Boylston Day V. Day ^^ean v. Allen V. Biggers V. Dean V. Portis Deane v. Caldwell Dease v. Cooper De Beauvoir, Re Decker v. Elwood Deeks v. Strutt Deering v. Adams De Flechier, Succession of De Haven v. WiUiams Deichman, Goods of Deichman's Appeal Delafield v. Parish De Lane's Case Delaney v. Noble 526, 59. 247, 15. 208, Section 55. 91.92 Soci- 387, 3S8 457 154 481 519 120 99 490 491 439 538 545 137 115 316 528, 533 428, 451 166, 174 254, 397 352 391 522 47. 50 251 356 160 491 288 119 428 118, 119 115, 118 App. 440 532 338 134 194, 195 135. 375. 476 250 70 417 376 453 217 526, 528 521 46 135. 154 401, 402 41 28, 42S 73 153 152 Delorme v. Pease Deming v. Taylor Demond v. Boston Dennis v. Shaner Dennison v. Talmage Denny v. Booker V. Faulkner Denton, Re Denton v. Tyson De Peyster v. Clendining Deraismes v. Deraismes Deranco v. Montgomery De Rosaz, Goods of Despard v. Churchill De Tastet v. Shaw Detwiller v. Hartman De Valengin v. Duffy Devane v. Royal Devaynes v. Noble Devecmon v. Devecmon De Vigny, /« re Devlin v. Commonwealth Devling v. Little De Witt V. Yates Dey V. Dey V. Codman D'Eyncourt v. Gregory Dickenson v. Callahan Dickie v. Dickie Dickinson's Appeal Dickinson v. Dickinson V. Naul V. Seaver Dickson, Re Dietrich's Succession Dillabaugh's Estate Dilliard v. Harris Dillinger v. Kelley Dillon V. Coppin Di Sora v. Phillips Ditchfield, Goods of Diversey v. Smith Dix V. Burford V. Morris Dixon V. Buell V. Dixon V. Ramsay Doak, Estate of Doane v. Walker Dobins v. McGovern Dodson V. Hay V. Samuel V. Simpson Doe V. Clark V. Cross V. David V. Guy V. Hersey Section "118 279 282 430 150 385 175 483 5'5 17 428 .58 38 42 439 465 395. 397 256 379 63 169 91, 92, 160 400 468 490 512^, 539, 542 227 542, 543 504a 76 160 29 341 "6, 153 356 25 358. 509 368 169 124 370 402 509 420 484 194 116 457 145 217 376 359 220 63 243 295 76 xi TABLE OF CASES. 241 544 Doe r. McFarland i: Porter 267, 7: St urges z: Vardill Dolbeer z: Casey Dole z\ Irish Donald v. McWhorter Donaldson, Goods of Donaldson z\ Raborg Donnell z'. Cooke Doogan z'. Elliott Doolittle Z'. Lewis Dorah z-. Dorah Doran :'. Mullen Dorchester z\ Webb Door Z'. Wainwright Dorris V. Miller Dorseit z: Frith Dorsey zk Dorsey Dortch V. Dortch Dost Ali Khan, Goods of Dougherty z: Stephenson Douglas I'. Cooper V. Eraser V. Satterlee V. New York Dowdale's Case Dower r. Leeds Dowling V. Eeeley Downie :■. Knowles Downward v. Dickinson Downs z\ Collins Dowse z: Coxe Dowsett z/. Culver V. Gorton Doyle V. Blake 44, 46, 321, 335, Drake v. Coltraine 7'. Drake z: Greene ^;^, Drayton, /« rf Drayton z'. Grimke Drew's Appeal Drew V. Gordon Drinkwater i*. Drinkwater 212, Driver z: Kiddle Drohan v. Drohan Drubaker's Appeal iJrue t'. Haylie Drury v. Natick V. Smith Drybutter v. Bartholomew Dulx)is' Case Dudley v. Sanlxini 358, 422, z: Warde Duffy V. Buchanan Dufour i>. Dufour Dugan ?'. Ilollins 316, 347, Duhmc v. Young '73 280, 287 488 16 418 120 421 89 128 508 334 15 454 72 403 485 545 190 164 3'7, 322 169 251 169 258 402 116, 146 175 84 146 540 "5 326 395 487 326 402 427 545 154 43 407 104 452, 454 213.509 I 59, 268 353 153 410 37, 464 219 202 428 537, 542 227 522 527 355 '54 Dulaney v. Willis Duncan, /ie V. Dawson V. Duncan z\ Eaton zi. Gainey V. Jaudon V. Watson V. Watts Dunconiniun's Appeal Dunham v. Dunham V. Elford V. Millhouse Dunlap .'. Mitchell Dunn, Ex parte Dunn V. Sargent Dunn V. Deery Dunning v. Ocean Nat. Bank Dupuy V. Wurtz Durffee v. Abbott Durham, Estate of Durkin v. Langley Durnford, Succession of Duryea v. Mackey Du Val V. Marshall Duvall V. Snowdon Duvall's Estate Dwight V. Mudge V. Newell V. Simon Dye, Goods of Dyke v. Walford Dyson, Ke Eagle V. Fox Eames v. Hacon Eans V. Eans Earle v. Karle Eastland v. Lester East Tenn. Co. ?'. Gaskell Eaton V. Benton 7'. Cole z>. Walsh Eberstein v. Camp Echols V. Barrett Eddins v. Graddy Edelen v. I'Melen FMen 7'. Smyth Edgar v. Shields Edmond zk Peake Edmonds, Goods of Edmonds z'. Crenshaw Edmnndvon r-. Roberts Edwards z>. Fi eeman V. Hall '73^ '53, Section 430 '35-370 468 451 5'5 350, 35' 410 490 532 150 488 221 358 454 201 258 214, 408 17, 20 420 347 422 440 414 179 138 490 375 400 154 32 117 5" 292 174, 176 27c 321, 402 200 258 469 386 208 48cS '37, 153 42S 54', 542 470 504 321 66 400, 402 '53 4M5, 499 461 TABLE OF CASES. xli Edwards v. Harben V. McGee V. Smith Egerton v. Egerton Egreniont ?■. Thompson Ehlen v. Ehlen Eidenmuller's Estate Eisenbise v. Eisenbisc 1 20, Ela V. Edwards Elbert v. O'Neil Elder v. Littles Eldridge v. Eldridge Elfe :■. Cole Elgutter r. Missouri R. Ellicoit V. Chamberlain Elliott V. Elliott V. Gurr V. Kemp 244, V. Mayfield 7). Merriman Elliott's Succession Ellis, Ex parte Ellis V. Carlisle V. Davis V. McGee V. Merriam r. Walker V. Witty PLllmaker's Estate Elme V. Da Costa Elmendorf v. Lansing Elmer v. Kechele Elrod V. Alexander Elwes 7'. Maw Elwood ('. Diefendorf Ely V. Horine V. Williams Emerson, Appellant Emerson v. Bowers V. Thompson Emery v. Batchelder Emery v. Berry V. Hildreth England v. Newell V. Prince George's Vestry V. Tredegar English V. Harvey V. Horn V. McNair Enicks v. Powell Enloe V. Sherrill Ennis v. Smith Eno V. Cornish Enohin v. Wylie 19, 164, Epping V. Robinson Eppinger v. Canepa Erwin t'. Branch Bank Eshleman's Appeal Section 186 455 63 219, 542 295 99. 153 305 269, 276 17S, 179 457 189 467 451 160 48 488 98 248, 409 '45 357 423, 424 418 28, 352 187 254 461 141 '35 115 403 104 281 227 401 358 362 545 154 401 490 184, 195 24 402 459 476 538 356 32, 316 148 65 16 442 167, 169 228 545 418 545 132, 104, Eubanks v. Dodds Evans v. Arnold V. Blackiston V. Evans V. Fisher V. Foster V. Gordon V. Halleck 7'. Inglehart 2 V. Roberts V. Tatem V. Tyler Evans, Ke Evansville Ice Co. Evarts v. Nason Evelyn, Ex pcwte Evelyn v. Evelyn Everett v. Avery Event, Matter of Ewer V. Corbet Ewers v. White Ewin, /// re Ewing V. Ewing V. Moses Eynon, Goods of Eyre v. Cox V. Higbee Section 252, 281 73 407 73. 347 49' 490 289, 292, 293 542 324. 479. 480, 506 226 173 2Z 346 19 545 134 103 428 218 343 432, 491 175 24, 169 520 77 519 205 7'. Windsor Fairbairn v. Fisher 33 Fairbanks v. Hill 98 Fairer v. Park 462 Fairfax v. Fairfax 137 389 Fairman's Appeal 422 Faler v. McRae 223 Fallon V. Childester 160 Fambro v. Gault 346 Farnum v. Bascom 461 Farr v. Newman 243. 352 Farrall v. Shea 286, 373 Farrelly v. Ladd 385 Farrow v. Wilson 278 Farwell v. Jacobs 43. 407 527 Faulkner v. Faulkner 400 401 Fawkes v. Gray 478 Fay V. Cheney 214 V. Fay 509 V. Haven 18, 167, 174. 179 181 V. Hollo ran 216 V. Muzzey 227, 408, 409 509 Fellows V. Lewis 178 V. Little 500 7'. Smith 456 Feltz V. Clark 141 Fenlay v. Chirney 280 Fennimore v. Fennimore 402 xlii TABLE OF CASES. Section | Section Feray's Succession 141 Foley V. Bushway 422 Ferebee v. Baxter 409 f^oltz V. Hart 478 Ferguson v. Barnes 189 V. Pro use 154, 216 V. Collins 106 Fontaine r'. Tyler 461 V. Glaze 241 Fonte V. Horton 402 V. Morris 173 Foote, Appellant 461 Ferlay v. Chirney 280 Foote V. Colvin 226 Fernandez, Re 3-7 Forbes v. Peacock 405 Fernie, Jn re 3- r. McHugh 146 Ferrie v. Public Administrator 108, Ross 335 116, 118 Ford V. Exempt Fire Co. 509 Ferrin v. Myrick 398, 422 V. Ford f'5. 543 Ferris v. Ferris '55 V. Russell J 56, 318,349 Ferry v. Laible 256 V. Teagle 84 Fessenden's Appeal 515 V. Westervelt 490 Fetrow v. Fetrow 226 Foreign Missions, /;/ re 128 Field V. Gibson 173. 184 Forney v. Benedict 389 V. Mostin 469 Forniquet v. Forstall 409, 410 I'. Schieffelin 350, 35-- 359 Forsyth v. Burr 230 V. Van Cott 142 V. Ganson 401 Fielder v. Hanger 130, 507 Fosbrook v. Balguy 330 Fields V. Bush 509 Foster's Appeal 84, 214, 217 V. Wheatley 428 Fester v. Bailey 409 Fillyan v. Laverty 419 V. Banbury 76 Finch V. Ragland 233' 439 V. Bates 195 V. Rogers 488 V. Brown 160 Finlay v. Chirney 370 V. Commonwealth 94. 120 Findlay v. Trigg 444 V. Elsley 39 Findley v. Gidney 420 T'. Fifield 200, 451, 507 Finn v. Hempstead 128 409 V. Foster 64, 449 Fiscus 7'. Fiscus 491 V. Starkey 389 Fisher, Ke 82, 122 142 V. Stone 545 V. Bassett 160 Foteaux v. Lepage 216, 509 V. Dixon 227 Fowle V. Thompson 334 V. Mossman 390 Fowler v. Colt 481 Fisk V. Cushman 457 V. James 439 V. Norvell '34 -'. Kell 98 Fite V. Beasley 46s Fowler v. True 390 Fitzgerald's Estate 543 Fox, Matter of 459 Fitzhugh V. Fitzhugh 257 P'ox V. Carr 24,25 Fitzsimmons v. Cassell 405 V. Van Norman 184 F'landers v. Clarke 405 ?"ranklin v. Depriest 142 V. Flanders 357 358 V. Franklin 152 V. Lane 528 V. Low 370 Fleece v. Jones 527 Frary v. Booth 443 Fleming v. Buchanan 222 Eraser, Goods of 36 V. Chunn 216 Frazer, Re 541 Flemings v. Jarrat 186 Frazer v. Fulcher 92 Fletcher v. Ashburner 217 V. Page 494 V. Weir 146 409 Frazier v. Frazier 140, 142, 146 Flintham's Estate 421 Freakley v. Fox 208 Flitner ?■. Hanley 423 Freeman v. Faislee 518 Flood, Matter of 439 V. Kellogg :!>7>^ '37, 154 Flood V. Pilgrim 510 V. Rhodes 522 V. Strong 5" Freemantle v. Taylor 474 Flora V. Mennice '35 Freke v. Lord Carbery 169 Floyd V. Herring '53 French 7'. ("urrier 346 I'Ogg ^- Hoi brook 422 V. French 63 TABLE OF CASES. xl 111 Section Section Fretwell v. Lemore 1 20 165 174 Gates V. Whetstone 308, 316 V. Stacy 490 Gatfield v. Hanson 195 Frew V. Clarke 63 Gatti, Goods of 169 Frey v. Eisenhardt 326, 446^ Gaunt V. Tucker 219 V. Frey 324 Gay V. Lemle 190, 435 Frick's Appeal 109 "5 V. Minot 160 Frisby V. Withers 32 413 Gayle, Succession of 251 Frith V. Lawrence 3'o Gaylord's Appeal 77 Fromberger v. Griener 213 Geddis v. Irvine 403 Fross's Appeal 526 Gee V. \'oung 226 Frost V. Uenmaii 545 Geiger v. Kaigler 387 Frey v. Eisenhaich 326 Genet v. Tallmadge 483 Fry, Goods of 36 George v. Baker 400 Fry's Will 78 V. George 60, 67, 85 Frye z/. Crockett 140 142 143 V. Goldsby 488 V. Kimball 154 V. Watson 23 Fryer v. Ward 461 Georgetown College v. Browne 32, 113 Fuentes v. Gains 59 Gerrish v. Nason 73 Fuguet's Will 74 Gerry, Re, 479 Fuhrer v. State 503 504 Geyer v. Snyder 348 Fuller, Ex parte 160 Ghost V. Waller 321 Fuller V. Redman 426 Gibbens v. Curtis 511 Fulton V. Andrew 85 V. Peeler 297 Fyson v. Chambers 201 Gibblett v. Read zoo V. Westrope 69 Gibbons v. Riley Gibbs, Goods of Gibson v. Bolt 42 66 479 G. V. Farley V. Lowndes 216 263 Gadsden v. Lord 439 V. Maxwell 154 Gage V. Johnson 291, 404 Giddings v. Butler 400 Gaines v. De la Croix 341 V. Crosby 451 V. Del Campo 428 Giessen v. Bridgford 123 (iainey v. Sexton 428 Gilbert, Re, 439 Gale V. Luttrell 229 232 V. Hales 437 V. Nickerson 13 V. Hard wick 408 Gallant v. Bouteflower .".92 V. Little 418 Gallego V. Attorney General 491 V. Welsh 335 Gaily, Goods of 169 Gilbert's Appeal 1>1>^^ 358 Gamble v. Gamble 246 Gilchrist V. Cannon 174 Gann v. Gregory 86 Giles, Re 439 Gans V. Davergott 112 V. Dyson 236 Gardner v. Gnatt 137 488 Gilfillen's Estate 543 V. Gardner 233, 347 525 540 Gilkey v. Hamilton 19s Garesche v. Priest 324 zzz Gill, Goods of lOI Garfield v. Bemis 419 Gillespie v. Alexander 491 V. Williams 285 Gillett V. Needham 112, 118 Garland, Ex parte 325 326 Gilman v. Gilman 21, 164 Garner v. Graves 204 V. Healy 400 V. Lyles 186 V. McArdle 219, 220 Garnett v. Macon Garrett v. Noble 343 406 V. Wilber Gilmore v. Hubbard 325 387 253 V. Silwell 520 Girling v. Lee 221 Garrison v. Cox 112 Girod V. Pargoud 402 Gartshore v. Chalie 467, 478 Gist V. Cockey 443 Garvin v. Stewart 520 Githens v. Goodwin 53° Garwood f. GaiT\ood 525 Gladsoii V. W^hitney 509 Gaskins v. Hammett 409 Glass V. Howell 283 xliv TABLE OF CASES. Section S« ction Gleaton -'. Lewis 186 G rattan ?'. Grattan 500 Glenn v. Glenn 3'o Gratz V. Bayard 326 Globe Ins. Co. v. Gerisch 195 Graves v. Flowers 409 Glover -■. Condell 467 V. Graves 456 V. Glover 308 V. Page 186, 193 V. 1 1 alley 542 V. Spoon 508 Glynn's Estate 542 Gray v. Armistead 362 Godbee v. Sapp 263 V. Gray 67, '54 Godbold z\ Roberts 409 V. Harris 408 tioddard's Estate 114, 1 16 V. Hawkins 251 Goddard r'. (Joddard 99 V. Lynch 308 Godfrey 'o. Getchell 452 V. Swain 209 Godson V. (jood 378 Graysbrook -■. Fox 16c Golf V. Cook 189 Grayson 71. Atkinson 74 Golder v. Chandler 202 Greaves, Ke 417 Gold's Case ^iZ^ 236 Greeley's Will, /// re 72 Goldsworthy v. Crossly 60 Green, Re 346, 347 Goodale v. Mooney 464 Green v. Collins 205 Goodall V. Marshall '5' 174 V. Creighton 387 V. Tucker 179 V. Cut right 226 Goode V. Buford 146 V. Fagan 544 Goodfellow V. Burchett 315 V. Givan 49' Goodhue v. Clark 265 V. Green 22, 210 223 Goodlett V. Anderson 24, 25 V. Hanberry 321 Goodman, Kc 108 V. Howell 500 Goodman v. Walker 289, 292 V. List aw ell 376 Goodman's Trusts, In re 19 V. Rugely 167 Goodrich v. Treat 98 Greene v. 1 )yer 419 Goodwin v. American liar k 349. 352 V. Grimshaw 542 V. Goodwin 358, 526 Greenleaf i'. Allen 375. 376 V. Jones 239, 241 Greenough v. (jreenough 74 V. Milton 195, 218 Gregg V. Bonde 438 Goodyear v. Bloodgood 409 V. Currier 509 Gordon v. Finlay 404 V. Gregg 533 V. Small 476 V. Wilson '54 Gorga.s's Estate 467 Gregory v. Ellis 32 Gosman, Re 117 V. Harrison 408 Gottberg v. U. S. Bank 350 V. Hooker 422 Gottsberger v. Smith 539 Gresham 7'. Pyron 150 V. Taylor 146 Greville v. Browne 5" (iould V. Hayes 520 Grew V. Bieed 380 z. Mathers 405 Grierson, /;/ re 1 12 Gouldsmith zk Coleman 251 Griffin v. Simpson 522 Governor v. Gowan 148 Griffith V. Coleman 97 V. Williams 146 V. Simpson 522 Graff am r-. Kay 398a V. Charlotte R. 280 Graff V. Castleman 352 V. Frazier ^7>l tiraham 7'. Davidson 233 Grigg's Estate 13 (jrande v. Herrera 118 (jrigsby v. Wilkinson 538 (irant, Goods of 43. >28 Grim v. Carr 280 (irant 7<. Rodwell 200, 504^ (jrimes V. Talbert 9' V. Grant 474 Grist V. Hodges 285 V. Hughes 450, 526 Griswold v. Bigelow 390 V. Leslie 37.40 V. Chandler 273, 316, 355.358 510, 7'. Reese 1 74, 236, 270, 542 538 542 (jrant ?'. Spann 36 (Jrote 7'. I'acB i6 (Jranviile v. McXeile 405 Groton v. McDonald 7 4. 79 (irattan v. Appleton •7 V. Ruggles 241 485 TABI.K OF CASES. xlv Groves v. Williams Grundy, Goods of Grymes v. Pendleloii Guldin's Estate Gulick V. Gulick (juUedge z'. Berry (jundry v. Henry Gunn V. Hodge Gunning v. Lockman Gunstan, Kc Gunter ?'. Jones Gusman's Succession Guthrie v. Wheeler Guy T'. Sharp Gwin V. Hicks Gwynn v. Dorsey H. 99. Section 390 129 378 106 177 404 289, 292 523 75 419 y~ 3'7, 3'7'' 468 226 356, 542 Maberman's Appeal 537 Habeshon ?'. Vardon 463 Haddow v. Lundy 13 Hadjiar v. Pitchey •52 Haell %'. Blanchard 145 Hagthorp v. Hook 331 V. Neale 410 Haight V. Brisbin 154 539 V. Hoyt 282, 373 Flaigood v. Wells 157 Hairland v. Trust Co. 434 Hale V. Hale 448, 451 V. Marquette 515 Hall, Goods of 408 Hall, Succession of 78 Hall V. Andrews 507 V. Carter 401 V. Chapman 346 V. Gushing •37 V. Deatly 391 V. Hall 208, 242 525 V. Hallett 358 537 V. Irwin 407 n. Merrill 434 7). Wilson 434 Hall's Appeal 334 Hall's Estate 308 Halleck, Estate of 429 525 Halleck v. Mixer 280 7/. Mass 346 Mallet V. Bassett 21 HallidayT/. Du Bose '•3 Hallowell's Estate 208 Hall's Estate 510 Hakey v. Reed 430 Ham V. Henderson 291 V. Kornegay 409 I [amaker's Estate 53' Haml)erlin v. Terry Hambly v. Trott Hamer 7'. Bethea Hamilton, Matter of Hamilton v. Hamilton 7'. Wilson Hamilton's Estate Hamlin 7'. Mansfield Ilammetl 7'. .Starkweather Hammond, Goods of Hammond 7'. Hammond 7'. Hoffman 7'. Putnam 7'. Wood Hampson v. Physick Hancock 7/. Podmore Handley v. Heflin Handy ?■. Collins Hankey, Kc Hankins v. Kimball Hanover, Re Hapgood V. Houghton -,'. Jeiinison Happiss V. Eskridge Harcourt v. Morgan Hardaway v. Parham Harding v. Evans Hardinge, Goods of Hardy v. Thomas Hare, Goods of Hare v. Nasmyth Harker 7'. Clark V. Whitaker Harkins ?'. Hughes Harlan, Estate of Harley n. Bagshaw Harlow v. Harlow Harness v. Green Harney v. Dutcher Harper v. Archer V. Butler V. Smith 7'. Stroud Harrell 7'. Witherspoon Harrington v. Brown V. Kateltas V. Price V. Stees Harris v. Dillard V. Ely v. Ferguson V. Foster 7'. Harris V. Harrison 7'. Meyer V. Milburn 7'. Parker V. Pue Section 153 217 119 80 285 454 326, 417 418 '3' 466, 525 428, 429 217 32 451 421 476 546 427 212, 509 116 398, 422 545 98 480 '53 256, 397 32, 106 190 66 17 279 374 491 93 87 528 428 408, 410 214, 7fi?> 164 407 433 257 •53. 355. 358 390/; 225 89 154 522 200 543 247 223 >35 644 74 xlvi TABLE OF CASES. Section Section Harris v. Saunders 426 Haugh V. Seabold 452 V. Seals •54 Haven's Appeal 451 V. Stihvell 5-6 Hawes v. Humphrey 76,85 Harrison v. All Persons "5 V. Smith 255 V. Clark '5-. '53 Hawke v. Wedderburne 116 V. Every 60 Hawkes v. Saunders 395 V. Harrison 218 Hawkins v. Day 402, 436, 476 7'. Henderson 47. 439 V. Glass 370 :■. Mahorner 176 7J. Johnson 186 :■. Meadors 504 7'. Ridenbrout 418 7\ Moseley 280 7j. Robinson lOI 7'. Nixon 17 Hawthorne v. Beckwith 506 r'. Perea 545 Hawley v. Botsford 390 ?■. Rowley 193 V. James 509 7\ Sterry •5 Haxall V. Lee "5 r. Turbeville 147 Hayes, Re 454 7'. Vreeland 366 Hayes v. Pratt 28, 31, 174 Harrison's Appeal . 85 Haynes v. Forshaw 239 Hart v. Bostwick 160 V. Haynes 490 V. Coltrain 27 V. Meek •56 V. Hart 357 Haynsworthy v. Frierson 203 V. Jewett 424, 428 Hays V. Doane 227 V. Rust 63, 402 V. Hays 402 V. Smith 128 V. Jackson 250, 494 V. Soward 98 V. Matlock 504 V. Ten Eyck 230 Hays's Estate 486, 541, 546 Harter ?•. Harter 85 Haythorp v. Neale 360 V. Taggart 390 Hazard v. Engs 544 Harth v. Heddlestone 346 Hazelden v. Whitesides •95 Hartnett v. Wandell 36, 41,42 Hazen v. Darling 146 Hartsfield v. Allen 308 Head v. Bridges 402 Hartwell v. Chitters 221 ZK Sutton 206, 213 7: Rice 500 H yager's Executors 441 Hartz's Appeal 146 Heard v. Drake 444, 446 Hartzell 7'. Commonwealth 140 7'. Northington 211 Harvard College v. Amory 324 Hearth 7\ Heddlestone 346 Harvey, Goods of 84 Heath v. Allin 355. 357, 402 Harvey, Re '30 V. Belk 428 Harvey v. Harvey 482 V. Chilton 292, 403 V. Richards 174. 179 7: Wells 390 Har^vood v. Goodright 4 Heatherington 7'. Lewenb urg 479 Hasbrouck v. Hasbrouck 356 Iledderly 7'. Downes 378 Haskell v. Bowen 292 lledrick t. Tuckwiller 33' Haskett, A'c 135 Hedenberg 7'. Hedenberg '73' '79 Haskins v. Miller 118 Heermans v. Hill 72 Hassall v. Smithers 21 1 Hegaity's Appeal 59,85 Hassinger's Appeal "3 Ilegerich 7\ Keddie 283 Hastings, Goods of "5 Heighway v. Pendleton 214 Hastings v. Myers 456 Hellen 7-. Wideman 288 7'. Rider 73 Helm V. Van Vleet 294 Hatch 7'. Hatch 502 Helme 7>. Sanders 170 7'. Proctor 195 Hemphill v. Moody 487 Haschett v. Berney 176 Henderson v. Ayers 439 Hathaway 7'. Sherman 202, 21 1 V. Clarke 120 Hathaway's Appeal 65 V. Henderson 329. 33' Hathornthwaite z/. Russell 33 V. Ilsley 411 Haltatt V. Hattatt 62 7'. Simmons 510, 542 Hauck 7'. Slauffer 509 Ilt-ndrick r'. Gidney 409 TABLE OF CASES. xlvii Hendricks v. Snodgrass 128 7'. Thornton 405 Hendrickson v. Hendrickson 5 '4 Hendrin v. Colgin «30 Hendrix v. Hendrix 510 Hendry v. Cline 3'o Henfrey v. Henfrey 36 ?{engst's Appeal 402 525 Henry v. Estey 418 Henry's Succession 116 Henry ('ounty v. Taylor 387 Henshaw <'. Blood 233 V. Miller 280 Hensley v. Dennis 271 Henson v. Ott 218 Hepburn v. Hepburn 273 Hernandez, Goods of 139 144 Heron, Estate of 104 Heron v. Hoffner 403 Herrick 7'. Wright 470 Herriman i>. Janney 142 Herring v. Whittam 461 Herron v. Marshall 360 Hesson 21. Hesson 403 Hester 7/. Hester 407, 467 506 V. Wesson 255 Hewett V. Bronson 421 Heydock's Appeal 174 Heyer's Appeal 532 Hibbard v. Kent 120 Hickling v. Boyer 381 Hickman :'. Kamp 233 Hicks V. Chouteau 144 Hieschler, AV 451 Higbee v. Bacon 525 Higgins V. Driggs 398" V. Higgins 231 476 V. Rector 428 Hight V. Wilson 75 Hill V. Alspaugh H5 V. Buford 443 V. Cock 217 V. Gomme 476 7;. Henderson .89 190 V. Simpson 349, 350 357 V. Tucker 3 ,42 179 V. Walker 389 Hillman v. Stephens 522 Hilyard's Estate 479 liindman v. State 334 Hindmarsh v. Charlton 77 nines V. Hines 208 Hinton v. Bland 128 7'. Parker 236 Ilirschfield v. Cross 522 Hirst 7'. Smith 410 Hitchcock 7\ Mosher 202 545 Hobart v. Connecticut Turnpike Co. 1 7; Hobbs V. Craige 522 Hobson V. Ewan 25,' 92 llodgdon V. White 389 Hodge's Estate 485 Hodge V. Hodge 408 Hodgman, Re 545 Hodgson V. Fox 491. 508 v. Shaw- 427 Hoffman V. Hoffman 49' V. Wilding 213 Hogan V. De Peyster 324, 335 V. Grosvenor 77 Hoke V. Fleming 400 V. Hoke 316 Holbert, Succession of 421 Holbrook v. Bentley ^37 V. Head 2,2, Holcomb 7'. Holcomb 264, 308 7'. Phelps '5 7'. Sherwood 527 Holcombe v. Beach 289, 293 V. Holcombe 402 Holden v. Blaney 82 V. Fletcher 419 Holladay v. Land Co. 345. 346 Holland v. Hughes 324 V. Prior 519 Hollenbeck v. Pixley 449 451 Hollis V. Smith 291 HolUster v. Attmore 500 Holman 7'. Perry 160 V. St. John 369 Holmes, In re 128 Holmes v. Bridgman 308 V. Holmes 120, 496 7'. Remsen 16 Holt V. Murray 426 Holyoke v. Mutual Life Ins Co. 24 Hone V. Lockman 546 HonyAvood, Goods of 85 Hood, Re 155. 247 Hood V. Lord Harrington 57, 58, 160 Hook V. Payne 538 Hooker 7'. Bancroft 230 Hooper 71. Bryant 418 7'. Goodwin 368 V. Gorham 282 Hooper r'. Moore 170 7'. Olmstead 174 V. Scarborough 128 154 V. Stewart 92 153 V. Summersett 186 187 Hooper's Will 473 Hoover v. Miller 236 Hopkins ?'. Morgan 256 397 V. Towns 186 Hopkinson 7'. I^each 439 Hopper V. Hopper 173 xhiii TABLE OF CASES. Section | .Section Horlock. lie 469 Ilulchings 7'. Bank 376 Hosack V. Rogers 157 llulchins 7'. State Bank 175, 176, 352 Hough r'. Bailey 362 Hutchinson 7\ Lambert 124 r . Harvey 538, 545 V. Owen 310 House V. House 227 V. Priddy 116, '53 Houston, Goods of 139 V. Reed 200 Houston z: Howie 265 Hutchinson's Appeal 535 Houts 7: Shepherd 337 Hutton V. Williams 523 Hover v. Agnew 457 Hyatt z). McBurney 402 Hovey ?-. Hovey 457 7>. Vanneck 489 z'. lilakemaii 402 Hyde v. Neate 470 :■. Newton 375 Hyland v. Baxter 543 f. Page 280 v. Smitli 540 Howard v. Dougherty •35 L f. Howard 518 V. Leavell 420 Idley 7'. Bowen 84 Howcott V. Warren 284 Ikelheimer v. Chapman 346 Howe V. Lord Dartmouth 3-4 Illinois Central R. 7\ Craziij 26, V. Peabody 142 169, 170 Howel V. Price 430 512 Inches rt. Dickinson 376 Howell 7>. Howell 288 Inchiquin v. French 62 V. Metcalfe '35 Ingle V. Jones 413 J'. Reams 427 435 7'. Partridge 323 Howland 7\ Coliin 376 7'. Richards 58, 39' V. Green 473 Iowa Co. V. Ilolderbaun 516 I loxie I'. Hoxie 474 Ipswich Man. Co. v. Story 208 Hubbard f. Alexander 468 Ireland z'. Corse 545 T'. Barcas 98 Irvin V. Ironmonger 478 V. Hubbard 439 Irwin's Appeal 171 Hubbell 7'. P'ogartie 184 187 Isham z>. Gibbons '72 Hudson V. Breeding 420 Israel v. Wolf 89 -'. Hudson 404 Ivens V. Eiwes 428 Huff 7: Thrash 405 Ives V. Allyn 57 7\ Wat kins ^83 370 V. A.shley 358 515 Huger r'. Dawson 435 V. Salisbury 20 Hughes, AV 166 173 Hughes 7\ Turner 60 Huggins 7'. Tole 282 J. Hughes' Estate 431 Huglilett 7\ Hughlett 140 406 Jackson v. Alsop 467 Huldane -■. Eckford 21 7,'. Chase 3'o Hulkes. AV 538 7J. Hill 39' Hullr-. Hull 264 T. Jackson 500 7'. Xeal 28 V. Paulet 41 Humbert v. Wurster '95 7'. Phillips 463, 464 Humphrey 7'. Merritt 226 V. Vaudalfsen 358 Humphreys 7\ Keith 506 V. W^ilson 146 Hunt, Goods of ^^3 Jacob V. Emmett 5.38 Hunt V. Hamilton 140 Jacob's A]ipeal 346 Hunter ?'. Bryson 37.42 Jacoljs 7\ \\'oodside 208 7'. Hunter 403 Jacobus V. Jacobus 218 , 3'7 Hurlburt v. Wheeler 540 Jacomb 77. Ilarwood 404 Hursey v. Coffin 33 Jacques v. Chambers 486 Husband 7'. Pollard 304 James zj. Beesly 509 Huse V. Brown 433 James's Appeal 256,318 Hussey ?'. ("ofiftn ' 54 Jamison v. Lillard 40fi Ilutchenbon v. Pigg 146 Jarvis v. Rogers 370 TABLE OF CASES. xli\ Jeeter v. Durham Jefferson ?■. Beall Jefferson's Estate Jeffersonville R. R. v. Swayne Jelke V. Golsmitli Jemison v. Smith Jenkins, Goods of Jenkins, Will of Jenkins v. French V. Jenkins V. Mitchell V. Smith Jenney v. Jenney Jennings v. Copeland V. Davis V. Newman Jennison v. Hapgood i6, 421, 422, 530, Jerningham v. Herbert Jerroms v. Jerroms Jessup V. Spears Jewett V. Turner Jillett V. Union Nat. Bank Job V. Job Jochumsen v. Suffolk Savings V. Willard Johns V. Johns V. Lawrence V. Norris Johnson v. Arnold V. Ames 7'. Baker V. Belden V. Brady V. Brown V. Corbett V. Cross V. Gushing V. Fuquay V. Henry V. Hogan V. Holliday V. Jackson V. Lawrence V. Longmire V. Molsbee V. Newton V. Parnell V. Patterson V. Pierce V. Richards V. Slawson V. Von Kettler V. Warwick V. Wallis V. Waters 137, 194 404, 42^ 141 Section 428 179 428 91 363 170 133 81 370 417 500 370 281 213 247 395' 397 175. 180, S3«. 547 19 404 433 51 428 315 Bank 91, 160 93 195, 201 545 358 217 205 421 SCO 428 310 444, 446, 45', 542 461 222 . 147, 247 450 408 I 513! 177, 545 506 416 322 510 214 288 527 428 433 194 173 390^ Section Johnson t. Wiseman 227 V. Woods 217 Johnson's W'ill 84 Johnston, Goods of 172 Johnston ?'. Fort 504 V. Morrow 422 V. Tatum 116 V. Union Bank 396 Johnston's Estate 356 Jones, Ex parte 541 Jones, Goods of 37 Jones, Re 326, 535, 54' Jones V. Beytagh 124 t. Bittenger 1 12 V. Boulware 428 V. Carter 374 V. Clark 350 V. Dixon 141 V. Evans 439 V. Foxall 538 V. Gerock 174 V. Gordon 141, 142 V. Habersham 74 V. Hooper 334 V. Irwin 520 V. Jenkins 256 V. Jones 109, 144, 195, 407, 522 V. Jenks 437 V. Letcher 483 V. Lewis 315 V. Littlefield 372 V. Logan 305 V. McLeod 428 V. Moore 39' V. Moseley 67 V. Nicholay 63 V. Richardson 138 V. Ritter 135, 147 V. Simmons 342 V. Stites 324 7'. Thurmond 305 V. Warnock 515 V. Williams 464, 522 V. Walker 326 V. W^ard 316, 542 V. Wightman 213 Jones's Appeal 402, 508, 510 Jordan, Goods of 31 Jordan v. Pollock 288 V. Polk 135 V. Thornton 488 Joslin V. Caughlin 346 Joy V. P'esler 422 Jubber v. Jubber 465 Judge of Probate v. Claggett 140, 146 V. Ellis 3903 V. Heydock 146 Judson V. Connolly 297 TABLE OF CASES. Judson z'. Gibbons Juler z: Jiiler Julian z\ Reynolds Section 5' 494 358 K. Kain v. Fisher 226 Kaminer v. Hope •34, J 35. 506 Kane v. Paul 160 Kansas Pacific K. z'. Cutlei '73 Karr :•. Karr 247 Kavanaugh t. Thompson 154 Keane, Goods of "5 Kearney v. Turner 102, 129 Kearsley z: Oxley 376 Keates v. Burton 49 Keating v. Keating 353 Kee z>. Kee 3'6 Keefer z: Schwartz 407 Keister z: Howe 106 Keith z: Parks 428, 438 z'. Proctor 170 Kellar z\ Beelor 330 Kellbcrg's Appeal '54 Keller's Appeal 308 Kelley z: Riley 280 Kellow z: Central Iowa R. 283 Kelsey v. Kelley 220 V. Smith 409 Kelso V. Vance 36 Kelly v. Davis 49' 508 z'. Kelly 408 v. Richardson 461 z: West 153, 160 53' Kemp z: Waddingham 426 Kendall ?•. Hates 386 387 Kennedy ?■. Kennedy 18 174 Zf. Chapin 296 Kennedy z: Wilson 284 Kent z: Cloyd 520 7'. Dunham 479 481 v. Stiles 247 Kerchner z: McRae 397 Kernochan, iVt- 479 Kernochan ?-. Elevated R. R. Co. 216 Kenv. Dougherty 459 V. Hill 542 z'. Kerr '53 V. Moon 19, 164 '73 7>. Water 402 V. Wimer 428 Kersey v. Bailey 449 45' Kidd's Estate 141 Kidwell z: Kidwell ->3 216 Killam ?■. C'ostley '54 Killigrew v. Killigrew 33 Section Kilpatrick v. Bush '79 Kimball v. Sumner 213, 5'0, 512/. Kimmell v. Burns 430 Kinard v. Riddlehoover 67 King v. Anderson 216 z: Clarke '79 V. Foxwell 21 V. Green 408, 410 V. Jones 285 V. Kinsey 75 V. Lyman 191 V. Morrison 321 V. Shackleford 403 V. Talbert 413. 487 V. Thom 258, 293 V. Whiton 509 King's Estate 160, 478, 481 Kingdom v. Nettle 285 Kingman v. Kingman 45' 453 Kinlay z: Gaddy 389 Kinmonth tj. Brigham 324 Kingsbury v. Scovill 507 Z'. Wilmarth 451 Kingsland v. Scudder 544 Kinnan v. Wight 525 Kinney v. Keplinger 40 Kirby 57. State 331 Kirby's Appeal 500 Kircudbiight v. Kircudbright 498 Kirkman z>. Benham 329 77. Booth 257 326 Kirtlan, Estate of 112 Kittredge J'. Folsom 160 Kyle 7'. Kyle 525 Kline zk Gathart 289 290 7'. Moulton 213 510 Kline's Appeal 504 Kling zi. Hummer 402 Knight 7'. Cunningham 390 7'. Davis 381 z: Gould 400 z'. Haynie 402 z>. Knight 482 490 V. Lasseter 408 7'. Loomis 37. 407 .413 538 7'. Oliver 500 7'. Yarborough 346 Knights 7'. Quarles 2S0 286 366 KnowUon ?'. Johnson 527 Kno.x 7'. Bigelow 292 Kohler <'. Knapp 200 , 216 ,547 Konvalinka z'. Schlegel 457 Koon 7'. Munro 526 Kooystra z: Buyskes 125 Kost's Appeal 541 Krell 7'. Codman 476 Krone z: C;ooper 21 TABLE OF CASES. S action .Section Kurtz V. Saylor 17 Lawrence v. Lawrence V. Parsons V. Wright 173 '35 195 L. Lawrence's Appeal Lawrence's \<'\\\ 515a '53 La bin v. Emigrant Bank 92 Laws V. Thompson 428 Labouchere v. Tupper 326 Lawson v. Hausborough 444 Lacam v. Mertins 427 V. Lawson 292 Lacey v. Davis 3 :o, 324 402 r. Stitch 461 Lackland v. Stevenson 123 Lawson 's Appeal 500 Lacoste v. Splivalo 148 Lawton i\ Fish 487 Lacroix, Goods of 169 Lay V. Lay 43 Lacy V. Stamper 3-4 416 V. Mechanics' Bank 390 Ladd V. Wiggins 201 Laycock v. Oleson 289, 292 293. 403 Lafayette Ins. Co. v. Harris 25 Leach v. Pittsburg 184 Lagarde, Succession of 310 Leake v. Beanes 230 Lahey v. Brady 371 V. Gilchrist 91, ^1?> Laible v. Ferry 326, 446^ V. Leake 324 Laidley 7'. Kline 212 Leavens's Estate 504« Lamb I'. Helm 135 Le Baron v. Long Island Bank V. Lamb 346 352 400, 402 Lambert v. Crafts 418 Ledbetter v. Lofton ■57 Lamine v. Darrell 160 Leddell v. Starr '57 Laming v. Gee 519 Lee V. Chase 277, 278, 297 Lancaster, Goods of 3 I, 60 V. Lee 509 Landers v. Stone 9'- 95. 250 V. Patrick 418 Landis -■. Saxton 537 V. Sedgwick '03 Landry v. Delas 388 Leeds Banking Co., Re 326, 345. 3S0 Lanenville v. Anderson 17 Leese, Goods of 40 Langbein, Re 171 Lees V. Wetmore 27, 91 Langford, Goods of 40 Lefever v. Hasbrouck 324 Langford v. Mahoney 409 Legarde, Succes.sion of 329 Langham v. Baker 390 Legate v. Moulton 284 V. Sanford 494 Lehr v. Turball '54 Langley, Goods of 152 Lehr's Appeal 527 Langley v. Harris 137 Leib V. Wilson 16. 456 V. Hawke :si) Leigh V. Barry 402 V. Lord Oxford 343 Leitch V. Wells 3.39 Lang^vorthy i>. Baker 116 Leland v. Felton 208 Lanier v. Irvine 140, 433 V. Kingsbury 503- 5 Mahoney v. Holt 461 Masten v. Blackwell 378 V. Stewart 430 Masterman, Re 465 Mahon v. Allen 256 Masterman v. Maberly 63 Maidman v. All Persons "5 Mathes v. Bennett 448, 449, 451 Maitland v. Adair 467 Mathews v. Meek 410,413 Malone v. Kelley 335 Matthews v. Brise 321 Malony's Appeal 543 V. Matthews 397, 457 Maltass v. Maltass 20 Mawhorter v. Armstrong 357 Maltby v. Russell 437 Maxwell, Re 50, 122, 142 Mandeville v. Mandeville 33, I ro, 113, Maxwell v. Craft 507 137 V. Maxwell 473 Manly, hi re 36 V. McClintock 525 Mann v. Everts 146, 418 V. Wettenhall 481 V. Lawrence 421, 542 May V. May 258 Manning v. Manning 324, 500 V. Vann 418 Mansfield v. Turpin 173 V. Woodward 378 Manwell z/. Briggs 190, 279, 281, 290 Maychell, Goods of 1 06, 113 Maples V. Milton 226 Mayo V. Bentley 438 Maraman v. Trunnell 258, 260 V. Clancy 526 March v. Russell 491 McAfee v. Phillips 526, 533 Marcy ?'. Marcy 70 McAlpine, Re 544 Margarum v. Orange Co. 245 McArthur v. Scott 460 Markland v. Albes "5 McBeth V. Hunt 100, 113 Marr v. Play 46 V. Smith 410 Marrion v. Titsworth 18, 174 McBride v. McBride 63 Marsden, Re 63 McCabe v. Lewis 153- 415 Marsden v. Kent 348, 355 McCaffrey's Estate 153 Marsh v. Evans 490 McCall, Estate of 538 V. Harrington 406 McCall 7'. Peachy 316, 335 V. People 408 McCalley v. Wilhurn 398^ V. Richardson 520 McCampbell v. Gilbert 146 Marshall v. Broadhurst 253 McCandlish v. Hopkins "5 V. Carson 509 McCartney v. Calhoun 358 V. Hitchcock 527 7'. Osburn 10 V. Halloway V. King 381 McCarty v. Frazer 208 164 120 7'. riail V. Moore 321 McCauley v. Harvey 155 Marston v. Paulding 264 McChord v. Fisher 143 Martin v. Black 376 McClane v. Spence 246 V. Boler 236 McClead 7'. Davis 510 V. Bradley 370 McClellan's Appeal 100, no. 7'. Clapp 270 III, 112, 113 liv TABLE OF CASES. McClellan v. Filson McCloskey 7: Gleason McCord I'. Thompson McCormick -■. ^V right McCorn f. McCorn McCreary -■. Taylor .McCurley t. McCurley McClintock's Appeal McC'lure z: Askew ;■. Hates T. McClure V. Miller J'. Owens McCollum 7'. McCollum McConico 7\ Cannon McConnell 7\ McConnell McCord -'. McKinley ?'. Thompson McCormack t'. Cook McCormick r'. McCormick McCorn 7>. McCorn McCoy 7'. Green 7'. Paine z: Scott McCracken 7>. Graham McColloch V. Dawes McCustian v. Kamey McCutchen 7'. Loggins McDaniel 7'. Johns McDaniels v. McDaniels McDeavman 7-. Maxfield McDonald, £x parte McDonald, Ke McDonald v. King 7\ McDonald McDonnell v. I'rendergast McDonough, Succession of McDowall 7'. McDowall McEldry 71. McKenzie McElroy v. Hatheway V. Story McFadgen v. Council McFarlin 7'. Stinson McFeeley v. Scott McGar 7-. Nixon McGaughey v. Jacoby McGehee v. Polk V. Slater McGhee v. Ragan McGill V. McGill 7'. Monette McGlaughlin v. McGlaughlin McGlinsey's Apjieal McGloin v. Vanderlip McGooch V. McGoocli McGovney 7<. State McGrath 7-. Harnes McGregor -'. McGregor : Section Section 421, 424 McGuire v. Buckley 116 321 McGuinness v. Whalen 410 179 McHardy v. McHardy 544 402 Mcintosh 7'. Humbleton 417 490 McKay v. McDonald '47 '54 McKenzie v. Anderson 33'' 335 370 V. Pendleton 189 428 McKey v. Young 358 491 McKim V. Harwood 230, 522 ■73 McKnight v. Morgan 297 443 McKoy V. Guirkin 488 279 McLane v. Spence 108 430 McLaren v. McMartin 389 347 Mcl-aughlin 7'. Dorsey 284 507 71. Nelms 522 189 V. Newton 439 45' McLead v. Davis 213 179 McLean v. Weeks 220 390 McLenahan?'. McLenahan 512 307 McLendon v. Woodward 316 490 McLeod 7^ Drummond 349. 350. 438 352 357 359 193 V. Johnson 506 2'3 McLoon V. Spaulding 530 528 McMahon v. Allen 408 3S9 V. Harrison 104 107 3" V. Paris 393 29a McMeekin v. Muson 148 307 V. Hynes 190 387 McMurrey v. Hopper 390 238 McNabb v. Pond 227 37 McNair v. Dodge 119 334, 355 McNair's Appeal 335 417 407 McNairy v. Pell 135 526 McNeill 7y. McNeill 265 50 McNulty V. Ihird 428 154 V. Pruden 428 402 McPike V. Wells 212 256 McQueen, Estate of 538 534 McRae v. David 141 255 V. McRae 328 355 154 McWhorter v. Benson 542 256 McWillie v. Van Vacter 236 92, 160 Mead v. Bjington 341, 346, 354. 355. 441 358 543 146 V. Orrery 488 174 Meadows v. Meadows 500 289 Mechlenburgh 7-. Pisseil 153 118 Meech v. Weston 45' 453 253 V. Vanderveer 251 321 McMeekin v. Hynes 190 49' McMillan 7'. Rushing 509 422 McReynold's Estate 448 -56 Meeker v. \'ander\ eer 251 104, 107 Meeks v. Vassault 213 28 Megit V. Johnson 503 2 58, 390 Mellen v. Baldwin 371 . y:,^ 403 Menifee v. Ball 247 TABLE OK CASES. Iv Section Section Menzies v. Pulbrook 69 Missouri Pacific R. v. Jay 160 Mercer v. Mackin 84 Mitchell V. Adams 156 V. Newson 358 V. Cox 15, 166, 174 Merchant, Re 200 V. Kirk 186 Meriden Steam Co. v. Guy 428 V. Lunt 115, 189, 191 Merket v. Smith 247 V. Mitchell 77, 500 Merkle v. Bennington 128 V. Mount 428 Merriam v. Ilemmenw ay 408 V. Warner 285 Merrill v. N. E. Life 1 ns. Co. 163, V. Word 16 .67 175 Mitchelson v. Piper 437 V. Rolston 70 Mix's Appeal 526 Merritt v. Buckman 479 Mockbee v. Gardner 361 V. Dickey 345 Moffat V. Van Millingen 400 V. Merritt 325 Moffatt V. Longhridge 358 V. Seaman 292 Moffett V. Elmendorf 467 Metcalfe, Goods of 134 Mole V. Mole 482 Michel, Succession of 346, 361 Mollan V. Griffith 490 Michener v. Dale 219 Molloy V. Elam 203 Mickle 7'. Miles 223 Monell 7/. Monell 359 402 Middletown v. Robinson 288 Monroe's Estate 358 Midgley v. Midgley 390 Monroe v. Merchant 91 V. Spicer 494 Montague v. Dent 227 Mikell V. Mikell 315 V. Smith 375 Miles V. Boyden 82, 483 Montalvan v. Clover 173 V. Dumford 405 Montgomery v. Armstrong 257 V. Peabody 542 V. Dunning 236 V. Wheeler 355 358 V. Millikin 407 Millard v. Harris 541 Moody 7K Moody 104 Miller, Succession of 116 V. Shaw 257 Miller v. Alexander 408 410 v. Vandyke 407 V. Binion 358 Moore 7). Alexander 135 V. Congdon 478, 481 485 V. Beauchamp 308 V. Donaldson 409 V. Burrows 218 V. Dorsey 389 V. Chapman 142 V. Eastman 120 V. Darrell 171 V. Harrison 417 7'. Dixon 519 V. Henderson 362 V. Dortie 428 V. Janney 435 V. Felkel 322 V. Jones 428 V. Fields 15 173 V. Keith 118 V. Gordon 507 V. Meetch 47. 51 7'. Hamilton 329 V. Miller 60 .453 71. Holmes 230 540 V. Philip 478 V. Lesneur 508 7'. Proctor 335 V. Moore 27, 104 44S 71. Towles 441 V. Ridgeway 137 7'. Umberhower 279 V. Ryers 417 425 V. Williamson 256 352 7>. Smith 91, 92, 160 409 V. Wilson 282 366 V. State 145 Miller's Appeal 500 V. Tandy 402 Mills V. Carter 153 V. Townshend 374 Milner v. Leishman 270 V. Willett 403 Milton V. Hunter 72> Mootrie v. Hunt 135 Mims V. Mims 544 Mordecai 7>. Boylan 42 Miner v. Austin 420 More's Estate 302 Minor v. Mead 234 More V. Bennett 370 Minot V. Taylor 265 Moreland v. Lawrence 119 Minter v. Burnett 512a Morgan, Goods of 60,6 3.87 Missouri Pacific R. v. Bradley 23 Morgan, Re 500 Ivi TABLE OF CASES. Section Section Morgan v. Dodge 47, 13S . I 5.3 '54 156 Murdock v. Raicliff 223 V. Hamlet 390 Murphee v. Singleton 488 V. Locke 160 415 Murphy v. Carter 407 V. Morgan 45' 7'. Creighton 24,93 :■. Rotch 520 7-. Menard 128 "'. Thomas 195 7'. Murphy 127 Morgan's Estate 116 V. V'aughan 430 Moring z\ Inlanders 430 Murphy's Estate 116 Morrell v. Morrell «5 Murray, Estate of 430 Morrice v. Bank of England 437 Murray v. Blatchford 404 Morrill v. Foster 236 7: E. L Co. 293 V. Morrill 186 V. Oliver '55 Morris V. Bienvenu ^2>2, Murrell v. Cox 400 V. Lowe 187 Mu.-iick V. Beebe 526 V. Morris 148, 297, 456 Musselman's Appeal 547 T'. Swaney 84 Musser 7'. Oliver 508 Morrison z\ Smith 187 Musson 71. May 427 Morrow v. I'eyton 542 Mustin's Estate 326 Morse v. Clayton 408 Mutual Benefit Life Ins. Cr . V. Tis- Mortimer v. Paull '34 dale 160 Morton, Goods of 60 Myer v. Cole 397 Morton v. Hatch 178 Myers, Jie 238 7f. Preston 296 Myers v. Daviess 36,37 f. Smith 327. 334- 336 c\ Woodbury 467 Moseley v. Rendell 410 N. V. Taylor 255 Moses V. Julian 160 Nabb 7'. Nixon 236 V. Moses 200, 210, 230, 330, 358 Nancy v. Snell 488 V. Wooster 378 Napier, Goods of '53 Mosher v. Voust 223 Napier v. Wightman 35^^ Mosman v. Bander 292 Nason 7'. Smalley 403 Moss V. Rowland 173 Nass 7'. \'an Swearingen 191 Moule V. Garrett 375 Nation v. Tozer 401 Moultrie V. Hunt '7 171 National Bank 7\ Stanton 148, 160,409 Mountcastle 7'. Mills 357 Navigation Co. v. (Jreen 43 Mountford f. (jibson 190, 193 '95 Nayler v. Blount 5'9 Mousseau's Will 70 Naylor 71. Moffat 160, 164, 165, 173 Mowrey v. Smith 500 V. Moody '73 Mowry v. Adams 254, 261 292 Neal 7\ Baker 190 Moye V. Albritton 435 7\ Charlton 128 V. Kittrell 63 V. Knox R. Co. 218 Moyle V. Moyle 328 V. Lamar 263 Mueller's Estate 403 V. Patten 268 Muirhead v. Muirhead '57 Neale 7\ Hagthorp 239, 240 Muldoon V. Crawford 428 Nease7'. Capehart 190 Mulford V. Mulford 244. 405 Needham v. Gillett 120 Mullanphy v. County Court "5 Neeves ?'. Burrage 264 Mulligan -,■. Leonard 89 Neff's Appeal 308, 310, 316 Mullins V. Varborough ■430 Neighbors v. Hamlin '55 Mumford v Hall 142 Neil ?■. Cunningham 390 Munden v. Bailey 308, 542, 543 Neilley v. Neilley 438 Mundorff v. Wangler 146 Nelson 71. Boynton 48 Munroe v. Holmes 128, 260 531 V. ("arrington 402 V. People 152 V. Cornwell 386, 387 Munsey v. Webster "3- 115 7'. Goree 496 Munteith v. Rahn 346, 362 7'. Hall 335 Muntz 7'. Brown 325 7'. Jaques 522 TABLE OF CASES. Ivii Section Section Nelson .'. Murfee 49' North's Estate, Re 498 V. Russell 428, 4.39 Northampton v. Smith '5' V. Serle 255 Northcut V. Wilkins 389 V. Smith 450, 451 Northey v. Northey 488 V. Stolleinverck 362 Norton v. Dashwood 227 V. Whitfield 84 V. Frecker 389 V. Wyan 500 V. Palmer 173. 181 Nesmith, Re 200 -37 V. Sewall 282 Nesmith v. Dinsmore 500 Norwood V. Harness 322 Nettles V. McCown '3l>^ Nottage, Re 461 Nettleton v. Dinehart 279 282, 373 Nowler v. Coit 164 Newbold, Goods of 99 Noyes v. Barber 67,70 Newcomb v. Goss 435 438 V. Phillips 387 V. Williams 37, 154, 485 Nugent V. Giffard 239, 339 Newcombe v. Beloe "5 Numan's Estate 116 Newell V. Clapp 361 Nunn V. Owens 36, 488 V. Peaslee 174 Nusz V. Grove 99. 104 New England Bank v. St ockhold- Nutting V. Goodridge 282 ers 380 Nyce's E.state 335 New England Trust Co. ?'. Eat on 13 Nye V. Bartlett 459 New England Mutual Life Ins Co. V. Lothrop 431 V. Woodsworth -5' 228 Newhall v. Turney 408 Newman, Succession of 456 0. Newman v. Jenkins 160 New Orleans Canal Co. v. Grayson 144 Oates V. Lilly 258, 390 Newsom v. Jackson 280 O'Brien, Re 104 V. Newsom 413 O'Brien's Estate 99 Newsum v. Newsum 244 O'Byrne, Goods of '39 Newton v. Bronson 268 Oceanic Steam Nav. Co. v. Suther- V. Cocke 47 berry 353 V. Metropolitan R. 194 O'Dee V. McCrate 270 V. Newton 406 Odell V. Odell 465 V. Poole 331 O'Dell V. Rogers 70 V. Seaman's Friend S( jciety 62 Odiorne's Appeal 99 Nicholas v. Jones 256 O'Donnell v. Hermann 420 Nicholls V. Judson 469 O'Dwyer v. Geare 59 V. Nicholls ^1, O'Flynn v. Powers 439« Nichols, Re 525 O'Gara v. Eisenlohr 99 Nicholson v. Elton 370 Ogilvie V. Ogilvie 525. 538 Nicolay v. Fritzchie 410 Oglesby v. Gilmore 289, 292 Nicoll V. Scott 407 V. Howard 308 Nield V. Smith 368 Okeson's Appeal 522 Nimmo v. Commonwealth 542 Oldham v. ColUns 146, 408 Nisbett V. Murray 462 Oliphant, Goods of 37 Noddings, Goods of •44 Oliphant, /;/ re 17 Noel, Goods of 139 Oliver v. Rumford 367 Noonan v. Bradley 179 V. Vance 501 Norbury v. Norbury y~2, Olmsten v. Clark 195 Norcott V. Gordon 490 Olson's Will 23 Norfleet v. Riddick 186 Olwine's Appeal 413 Norman v. Baldry 476 O'Neal V. Tisdale 141 V. Strains 388 O'Neall V. Abney 410 Normand v. Grognard 1 5, 141 166 174 O'Neill V. O'Donnell 544 Norris v. Fristoe 147 Opie V. Castleman 310 V. Thompson 461 Opinion of Justices 13 North V. Walker 418 Oram's Estate 320 North Carolina University .H ugh es 409 Orange County v. Kidder 442 Iviii TABLE OF CASES. Section Orcutt V. Orms 355. 356 Ord V. Fenw-ick 292 Ordinary v. Cooley 142 V. Smith 140 Ordronaux :■. Helie 174 O'Reily v. Hendricks 186 Orr V. Kaines 229, 384, 491 V. Newton 46 V. Orr 33^ Osborn v. Cook 332 Osgood V. Breed 500 Ossipee v. Gafney 309 Ostendorf, Re 115 O'Toole V. Hurley 419 Oughton V. Seppings '94 Outlaw V. Farmer 186, 195 Overfield v. Bullitt 354 Overman v. Grier 438 Owen V. Potter 446^^, 540 Owen V. Curzen 409 V. Miller 24 V. Owen 42 V. State 277 Owens V. Bloomer 422 V. CoUinson 43i'433 V. Cowan 160, 407 Owings V. Bates 106 Oxenham v. Clapp •87, 436 Pace V. Oppenheim 93, 1 20 Pacheco, Estate of 153 Pack 7'. Bathust 222 Packer v. Willson 403 Paff V. Kinney 330, 541 V. Fatten 439 V. Tucker 269 Paice V. Archbishop of Canterbury 421 Paine v. Paulk 44'*^ V. Ulmar 279 Painter v. Henderson 358 Palmer v. Dent 66 V. Palmer 209, 213, 239, 510 V. Pollock 408 V. Stevens 214 Parcher v. Busseli 528 Parham v. Stith 310 I'arker v. Barlow 366, 385 Parker v. Brown 70 V. Cowell 431 V. Day 544 V. Gilliam 352 V. Kuchens 503, 504 V. I^wis 421 V. Nims 502 V. Parker 70, 160, 170, 265 Parker v. Young Parks V. Parks V. Rucker Parris v. Cobb Parry v. Ashley Parr's Estate Parsons v. Lyman V. Mayesden V. Spaulding Partee 7>. Mathews Partington v. Attorney General Partridge v. Court V. Mitchell Paschall v. Davis Pasquier, Succession of Passmore v. Passmore Patchenz'. Wilson 289, Patterson v. Cobb V. Craig V. High V. Pagan V. Patterson V. Wardsworth Patton V. Overton Patten's Appeal Paul?'. WilUs Pauley v. Pauley PauU V. Simpson Payne v. Pusey V. Thompson Peake v. Ledger Peale v. White Pearce v. Cooke V. Savage Pearson v. Darrington 406, V. Pearson Pease v. AlUs V. Walker Peate 7'. Crane Peay v. Fleming Peck V. Bottsford 7'. Ingersoll V. Parrot Peebles v. Overton V. Watts Pelham v. Newton Pendleton v. Pendleton 100, Pengree v. Goodrich Penhallow v. Penhallow V. Dwight Pennington v. Healey Penny v. Brice V. Penny People V. Curry V. Gibbs V. Keyser V. Lott I V. Miller -^93. Section 427 500 236 250 21 I 422 175, 176 46, 195 94 428 18, 174 294 389 408 322 63 290, 291 389 258 120, 130 164, 173 292, 422 274 •73 «53. 250 92 388 186 389 140 403 137, 154 425 400 541, 542 481 76 200 328 356 401 216 201 292, 356 122, 123 61 104, 129 226 457 266 386 39> 5«9 147, 148 370 400 428 146 TABLE OF CASES. lix Section People V. Peck 173 V. Phelps 417, 435 V. Pleas 388 Peoples V. Peoples 146 Percival v. McVoy 423 V. Gale 247 Perkins v. Ladd 186 V. Mathes 461 V. Perkins 21 1 V. Stone 167 V. Sturdivant (Miss.) 226 Perkins's Note 478, 537, 538, App. Perkinson v. Gilford 372 Perrin v. Granger 287 V. Judge 409 Perrine v. Vreeland 323 Perry, Goods of 196 Perry, Trusts 512,518,538,542,543, 544, 545 Perry z'. Campbell 148 V. Carmichael 247 V. Craig 305 V. Cunningham 398'Z V. DeWolf 50 V. Field 419 V. Gill 407 V. Smout 324 V. St. Joseph R. 91 V. Wilson 370 V. Wooten 332 Peter v. Beverly 258, 402, 405 Peter's Appeal 387 Peterkin v. Inloes 91 Peters v. Leader 193 V. Peters i6o V. Public Administrator 28, 112,151 Petersen v. Chemical Bank 173 Pettengill 7/. Abbott 422 Pettingill w. Pettingill 137, 155, 546 Petit V. Petit 509 Phaelon v. Houseal 186 Phelps V. McDonald 200 V. Phelps 453 V. Pond 217 V. Robbins 87 Phillips, Goods of 134 Phillips V. Brazeal 148 V. Chappel 500 V. Everard 376 V. Phillips 403 V. Rogers 146 V. Stewart 137 Phipps V. Steward 518 Piatt V. St. Clair 408 Pick V. Strong 160 Pickering v. Pendexter 104, 109 71. Towers 36 V. Weiting 135 Pico V. De la Guerra Pico's Estate Picot V. Biddle Picquet v. Swan Pierce v. Irish Piester v. Piester Piggot's Case Pike V. Thorp Pike's Estate Pike County v. Rowland Pillgrem v. Pillgrem Pinckard v. Pinckard V. Woods Pinkham v. Grant Pinkney v. Singleton Pinkstaff v. People Pinney v. Barnes V. McGregory 24, 25, 93, V. Pinney Piper V. Piper Piper's Estate Piquet, Appellant Piquet, Re Piscoe V. Moore Pistole V. Sweet Pistorius's Appeal Pitcher v. Armat Pitcher v. Tovey Pitkin V. Pitkin Pitt 7'. Pitt Pitte V. Shipley Pitts V. Melser Place, Re Place V. Oldham 28, Plaisance's Estate Piatt V. Piatt 200, Pleasant's Appeal Pleasants v. Dunkin Plimpton V. Fuller Plowman v. Henderson Plume V. Beale Plumer v. Marchant V. Plumer Plummer v. Brandon Polhemus v. Middleton Pollard V. Pollard V. Sears Pollexfen v. Moore Pollock, Re Ponce V. Wiley Pond 7'. Makepeace i68, 173, Pool, Succession of Poole V. Munday Pope 7'. Boyd V. Curl Porter v. Askew V. Hey dock V. Porter Section 419 108 526 164 533 430 32 438 33 319 326, 345 542 355 477 256 148 413 120, 168 194 451 146 172 141 310 106 422 132 376 265, 325 200 430 58 413. 509 428, 438 3Z 210, 544 335 118 512 114 85 427. 439 227 172 544 490 389 44 200, 525 387 176, 177 274. 346 332 288, 390 205 502 174 500 Ix TABLE OI" CASES. Porter V. Trail 32.57 Porter's Estate 422 Portevant v. Neylans 527 Portis V. Cummings 533 Post V. Caulk iiS Potter V. Titcomb 19. 230 7'. Van Vranken 279. 281,371 V. Smith 408 Poulson V. rrenchtowii Bank 53' v. Johnson 5'i Pound r. Pound 282 Powdrell v. Jones 427 Powel V. Thompson 137 Powell V. Demming 265 V. Evans 328, 384 7'. Graham 367, 368, 397 T. Myers 438 V. Rees 373. 374 f. Stratford 39 V. Stratton '73 Powers V. Littlewood 502 Powis, Goods of 139 Pratt, Jie 461 Pratt V. Pratt 506 V. Swaine '95 Prescott z\ Durfee -7 V. Morse 43 Preston v. Cutter 219, 220 Price V. Dewhurst »5. 165, 169 V, Morgan 370 7'. Morris '73 7'. Moulton 294 7>. Nesbit 340, 346, 488 7<. Strange 498 Prichard v. Thompson 464 Pride v. Watson 456 Priest V. Watkins 195 Priestman v. Tindal 427 Primrose v. Bromley 378 Prince 7>. Nicholson 437 Pringle V. McPherson 253. 297 Prior 7'. Talbot 146, 247 I'ritchard r. Noi-wood 207 Pritchett's Estate, AV 504 Probate Court v. Kent 434 Probate Judge v. Mathes 3-9 Proctor V. Terrill 3'7 7'. Wanmaker "6. 153 Propst V. Meadows 420 Proud V. Turner 498 Pryor v. Davis 544. 545 I'ublic Administrator 7- Burdell -544 7'. Hughes loS 7'. Peters I 16 7'. Ward 270 V. Watts 116 Pucketi 7/. James S07 Pugh V. Russell 428 Pugsley V. Aikin Pulliam V. Byrd 7/. Winston Pulling V. Durfee Pultei ey v. Warren Punchard, Goods of Purdy V. lloyt Purple 7>. Withed Pursel 7'. I'ursel Putnam v. CoUamore Pyke V. Searcy Q- Quain's Appeal (,)ueensbury 7'. Shebbeare Quin V. Moore Quincy 7/. (^uincy 7'. Rogers t)uinn V. Moss Section 376, 395 346 356 455 374 37 527 176, 179 542 265, 473 376 295 283 474 483 R. Radcliffe, AV Radford r-. Radford Radnall, Goods of Radovich's Estate Railroad Co. v. McWherter Railroad v. Harris Raines z' Raines Rainsford 7'. Taynton Rambo ?'. Wyatt Ramsey 7'. Blalock Rand 7,'. Butler 7^. Hubbard Randall v. Rich 7'. Shrader Randle 7'. Carter Raphael 7'. Boehm Rajjpelyea 7'. Russell Rat cliff e z'. Barnes Rathbone's Estate Rattoon 7-. Overacker Rawlins v. Powel Rawlinson v. Shaw V. Stone Rawstone v. Parr Ray V. Doughty 200, Raymond 7'. Eitch Rayner tj. Pearsall Raynor f. Green Rea V. Englesing Read ?'. Truelove Reade v. Livingston Reading v. Weir Reagan v. Long 437 109 116 154, 160 173 358 '33 106, 128 361 465 362 376 98 '54 384 398 69 525 '95 469 5' 362 378 317.409 285 321 46 107 4(. 220 4 28 190 TABLE OF CASES. Ixi Section Reaves v. Garrett 542 Richardson v. Merrill 452 Reavis, Ex parte 456 V. N. Y. Central R. 283 Rebhan v. Mueller 56 Richmond v. Delay 504 Record v. Howard 160 V. White 439 Rector v. Conway 389 Rick V. Gilson 404 Reech v. Kennegal 255 Ricketts v. Lewis 353 Reed, Goods of 139 V. Weaver 285 Reed v. Crocker 322 Riddell v. Sutton 369 V. Gilbert 236 Riddle v. Hill 187 V. Howe no V. Mandeville 359 Reed's Estate 506 Rider v. Wager 470 Reeve's Trusts, Re 494 Ridgley v. People 488 Reeves v. Steele 146 Ridout V. Bristow 255 Refeld v. Belette 488 Rigby, Ex pa7tc 400 Reformed Presb. Church v. Nelson 70 Riggs V. Cragg 478 Rehard v. Long 146 Riley v. Albany Savings Bank 252 Reid, Re 20 V. Kepler 5'5 Reid V. Butt 288 V. Norman 526 V. Porter 453 Rinehart v. Rinehart 112 153 403 Reist V. Heilbrenner 281 Ringgold V. Stone 538 Reitzell v. Miller 386, 387 Ripley v. Sampson 305, 318, 380 430 Remnant v. Brembridge 376 Risdon, Goods of 1 06 Renfro v. White 148 Ritchie v. Rees 231 232 Reno V. Tyson 146 Rittenhouse v. Ammerman 293 Rex V. Netherseal 58 V. Levering 541 V. Simpson 33 Ritter's Appeal 389 442 V. St. Dunstan 227 Roach V. J elks 545 V. Stone 194 Ro Bards v. Lamb 135 414 Rexroad v. Wells 265 Robb's Appeal 216 Reyburn v. Ruggles 412 Robbins, Matter of 230 Reynold v. Torrance 164 Robbins v. Wolcott 346 542 V. Hamilton 401 Roberts v. Calvin 142 V. Kortwright 165 169 V. Nelson 286 Reynolds v. McMullen 19 V. Reynolds 77 V. Reynolds 77, 542 "'. Roberts 547 V. Zink •54 Roberts's Estate 544 Rhea v. Meyers 432 Roberts's Will 171 Rhett V. Mason 518 522 Robertson v. McGloch 50 Rhoad's Appeal 526 V. Picknell '9 Rhodes v. Rhodes 85 Robie's Estate 109 V. Vinson 85 Robinett's Appeal 325, 331 538 Rice, Appellant 378 Robinson v. Adams 73 Rice V. Boston Aid Society 468 T . Bell 187 V. Gordon 352 71. Chairman 508 V. Rice 295 V. Crandall 173 Rich, Re 525 V. Davidson 367 Richards v. Davies 474 V. Epping 200 V. Dutch 174 ?'. Hodge l^ob V. Mills ic6 V. Hodgkin 208 V. Pierce 58 V. Lane 362 V. Richards 461 V. Lowater 511 V. Sweetland 154 509 V. Pett 545 Richardson, Goods of 133 7'. Robinson 328 Richardson, Re 506 V. Steele 523 Richardson v. Horton 426 512 V. Tickell 485 V. Jenkins 427 Robinson's Executor's Case 427 V. Knight ZZZ Rocco 7'. Cicalla 450 V. McLemore 323 . 509 1 Rocke V. Hart 438 538 Ixii TABLE OF CASES. Section S ection Rockham v. Wittkowski 173 Roys V. Roys 271 Rockwell V. Saunders 199 Rozelle v. Harmon 189 V. Young 187, 190 Rubottom V. Morrow 315. 407 413 Roderigas r. East River Savings Rucker v. Waddington 442 Bank 92, 96 Ruddy, Goods of ^ZZ Rodman v. Rodman 226 Ruff V. Smith 412 Rodwell z\ I'hillips 226 Ruggles V. Sherman 209 Roe t: Harrison 353 Ruoff's Appeal 63 Rogers, Ex parte 450 Rusling -'. Rusling 396 469 Rogers v. Danvers 426 Russell ?'. Erwin 118 409 V. Fort 394 V. Hartt 57 V. Gooch 289 V. Hoar 124 V. Hand 541 V. Hooker 24 179 V. Hoberlein 160 7'. Hubbard 418 V. King 13, 520 V. Madden t6 V. Paterson 217 V. McDougall 148 V. Rogers 434 Russell's Goods 36 V. Ross 473 Ryan v. Ryan 99 V. State 430 V. Texas Pacific R. 56 V. Traphagen 543 Ryder, Goods of 41 V. Tullos Z^la, 324 Ryno V. Ryno 91 V. Winton 70 V. Zook 362 Rogerson, Goods of 99 S. Rolair v. Darby 428 Rollins V. Rice 4 '3' 483 Saam v. Saam 190 Whipper '53 Sabin v. Gilman •73 Rolhvagen <■. Rollwagen 74 Sacia v. Berthoud 352 Rowig's Appeal 525 Sadler v. Hobbs 335 Rooney, Ke 422 Saeger v. Wilson 508 Roosevelt v. Ellithrope 507 Saffran v. Kennedy 203, 408 Root, Re "3 Saffold V. Banks 258, 412 Root V. Geiger 190, 193 Sain V. Bailey 203 Rose V. Bowler 395 Salmon v. Clagett 352 V. O'Brien 506 V. Hays 126 V. Quick 63 Salter v. Cain 409 V. Winn 142 vSalyer v. State 140 Rosenthal v. McGee 420 Sample v. Liscomb 263 V. Remick 27, 168 Sampson v. Sampson 418 Ross, Goods of 139 V. Shaw 379 Ross V. Barclay 413 Samuel v. Thomas 398, 422 V. Cowden 310 Sanborn's Estate 485 V. Ewer 63 Sanborn v. Goodhue 273 V. Harden 252, 397 Sanders v. Barrett 15 V. Mims 144 V. Blain 404 V. Newman 190 7'. Edwards •47 Ross's Trusts 498 V. Jones '73 Rosser, Goods of 46 V. Loy 528 Rossiter v. Cossit 430 Sanderson, Re 237 Rough V. Womer 272 Sanderson v. Sanderson 308. 439- Roumfort v. McAlarney 441 520, 542 Rowan v. Kirkpatrick 408 Sandford v. Wicks 390 Rowley v. Pair 244 Sanford 7'. Gilman 146 V. Adams 375 V. McCreedy 293 Rownen, Re 392 V. Thorp 527, 537, 542 Roxburgh v. Lambert "5 San Roman v. Watson 128 Roy V. Segrist 70 Sarah 71. Gardner 275 V. VUas 345 Sargent, Re 109, "3 TABLE OF CASES. Ixiii Section Section Sargent v. Fox 112 Scruby v. Fordham 85 V. Kimball 429 Scruggs V. Driver 402 V. Sargent 324. 479 Scurficld v. Howes 402 Sarkie's Appeal 32 Scurrah v. Scurrah 23' Sarle v. Court of Probate •38. 342 Search v. Search '3 Sasscerz/. Walker 200 Searle v. Court of Probate '35 Saunders v. Gatlin 409 V. Lane 426, 436 V. Saunders 403 Sears v. Currier 588, 296 Saunderson v. Stearns 241 V. Dillingham 47. 157 Savage v. Gould 537 V. Mack 505 Sawyer -'. Baldwin 473 V. Wilson 104 V. Concord 279 Seawell v. Buckley 526 V. Mercer 436 Secar v. Atkinson 395 7'. Sawyer 448, 449 Segars v. Segars 369 Saxton V. Chamberlain 538 Seip V. Drach 397, 398 Sayers's Appeal 214 Selleck v. Rusco 194 Sayre v. Sayre 527 Sellero's Appeal 528 Scarborough v. Watkins 308 Seller's Estate 236 Scarce v. Page 116 Sellers v. Licht 190 Scarth v. Bishop of London 25 V. Sellers 265, 522 Schaffner v. Grutzmacher 456 Selman v. Milliken 506 Schaub V. Grififin 508 Selover v. Coe 419. 445 Schenck v. Schenck 522, 532 Seman v. Whitehead 544 Schenkl v. Dana 200 Semmes v. Magruder 389 Schlecht's Estate '55 Senat v. Findley 418 Schmittler v. Simon 398rt Senoir v. Ackerman 137, 211 Schober v. Probate Judge 64 Seaver v. Weston Scholefield v. Eichelberger 326 Sever v. Russell 526, 530 Scholey v. Walton 389 401 Sevier v. Succession of Gordon 531 Schoolfield v. Rudd 205 Sewell V. Slingluff 83, 539, 542 Schouler, Petitioner 463 Seymour v. Seymour 520, 530 Schreiber v. Sharpless 283, 370 Shackelford v. Runyan 408, 409 Schultz V. Dambmann 17 Shaeffer v. Shaeffer 421 V. Pulver >75 308 Shafer v. Grimes 282, 373 Schwartz's Estate 213 Shaffer's Appeal 526 Schwertfegen, Goods of "5 135 Shakespeare v. Fidelity Insurance Scituate Court v. Angell 478 Co. 24, 205 Scofield V. Churchill 146 V. Markham 432 Scott V. Atchison 310 Shallcross v. Wright 431 V. Becher 33 Shaltz V. Dambmann 17 V. Crews 128, 152 , 409 538 Shaker's Appeal 143 V. Fink 82 Shannon v. Shannon 20 V. Fox 43 128 Sharland v. Mildon 186 V. Governor 230 Sharp V. Dye 118 V. Hancock 389 V. Farmer 120 V. Kennedy 523 V. Lush 519 V. Key 395 Sharpe v. Rockwood 324 V. McNeal 160 V. Scarborough 221 V. Monell 543 Sharpe's Appeal '53 V. Searles 352 362 Shaw V. Berry 400 V. Taylor 350 V. Cable 3'o V. Tyler 339 349 V. Hallihan 190 V. West 247 V. Spencer 349. 350 Scott's Case 247 Shawhan v. Loffer 408 Scoville V. Post 184 Shee V. French 221 Scranton v. Demere 120 Sheehan v. Kennelly 403 V. Farmers' Bank 362 Sheet's Estate 485 Scroggs V. Tutt 420 Sheetz n. Kirtley 526 1ai\ TABLE OF CASES. Section Sheen v. Rickie Sheffield r. Lord Coventry Shegoggf. Perkins Sheibley v. HUl Sheldon v. Warner f. Bhss f. Rice 27, 164, 173, 179, 330 V. Sheldon V Woodbridge V. Wright Shelley's Case Shelton f. Homer I'. Rhodes 7: Mouls ■. Houghton ■'. Chase Shephard Shepherd Sheridan Sherman V. Dodge V. Jerome V. Page 18 V. Sherman V. Western R. V. Willett Sherwood r-. Hill z'. Smith Shewen v. X'andenhorst Shewmake ?•. Johnson Shields v. Odell V. Shields Shillaber z'. Wymaii Shindel's Appeal Shipbrook z'. Hinchenbrook Shipley, Ex parte Shipman z\ Butterfield Shirley v. Healds Shirreff v. Hastings Shirt V. Westly Shoenberger ?'. Saving; Shofner 7'. Shofner Shomo's Appeal Shreve v. Joyce Shriver v. State Shropshire v. Withers Shuler v. Millsaps Shumway z\ Cooper T'. Holbrook Shup 7'. Calvert Shurtleff -'. Francis Shuttleworth, Goods of Siboni z'. Kirkman Sibthorp, Goods of Sidle V. Anderson Sieckman ?'. Allen Sigourney v. Sibley Slier z>. Gray Sill 7'. McK night Simmonds -'. liolland Simmons ?■. Hoyd 227 487 15, 181 362 64, 430 ^-33^ 453 >35« 469 358 536 421 405 160, 168 335. 33^ J'3' 183, 204, 346, 194. 84 530 509 488 234 448 391 354 146 500 389 265 208 137 195 526 402 322 118 195 427 481, 490 Institution 194 226 102 389, 401 504^' "3 280, 372 98 56, 59. 94 212, 515 368 85 253. 367 61, 62 -55 247, 258 13. "4 367 33 476 543 Simmons v. Simmons Simms v. Richardson Simonton v. McLane Simpson v. Chapman V. Cook V. Gutteridge Simpson's Appeal Sims V. Boynton z). Lively V. Stillwell Singleton z'. Moore V. Singleton Sitzman v. Pacquette Sivley v. Summers Skiffington v. Budd Skelheimer v. Chapman Skinner v. Wynne Skrine v. Simmons Slack V. Emery V. Slack Slade V. Slade V. Washburn Slagle V. Entrekin Slaney v. Watney Slanning v. Style Slater v. May Slaughter v. Froman Slauter v. Chenowith Slaymaker v. Farmers' Bank Sleake v. Newman Sleech v. Thorington Sleighman z>. Marshall Sleighter r . Harrington Sloan v. Johnson Sloan Slocomb z>. Slocomb Slocum V. Sanford Small z'. Commonwealth Smartt z\ Watterhouse Smethurst v. Tomlin Smiley v. Allen Smilie v. Siler Smith, Goods of Smith z'. Attersoll V. Ayer V. Black T. Blackwell v. Bland 7'. Carrere V. ("hapman -■. Chapman V. Collamer "'. Davis zi. Day z>. Downes 7'. Downey V. Dutton 355. 91. 95. 134 33^ Section 295 430 186 325 37. 160 400 508 91, 291 146 256 508 226 157 131 41C 291 498 357 430 453 538 135 409 44 '37 133 410 173 409 376 480, 490 200 255 409 •73 20 200 140, 142, 146 352 349- 362 33 244 522 43 62 350- 352 522 428 216 408 366 App. 274 533 476 433 43'' 526 TAB LI': ()!• casp:s. Ixv Smith V. Dunwoody 7'. Ellington V. Everett 400, 7: Yield 7'. First Presby. Church 7'. Gillam 7'. Guild 7'. liaskins 7'. Hurd 7>. Hutchinson V. Lambert V. Mayo V. McLaughUn 422, V. Moore V. Morgan V. Munroe 109, V. Pattie V. Phillips V. Pistole V. Pollard V. Porter V. Preston 7J. Sherman 115, 279, 280,282, V. Smith 278, 428, V. Stockbridge V. Thompson V. Tiffany V. Union Bank V. Van Kuren V. Wells V. Whiting V. Wilmington Coal Co V. Young Smithers v. Hooper Smith's Appeal Smyley v. Reese Smyth V. Burns V. Taylor Snead v. Coleman Sneesby 7'. Thorne Snelling's Case Snider v. Croy Snodgrass v. Cabiness V. Snodgrass Snow V. Snow Soldini v. Hyams Solomon ?'. Wixon Somerset, Goods of Somerville v. Somerville Son V. Miner Sorin v. Olinger Sotheran 71. Dening Soutter, Re Southall V. Jones -/. Taylor Southwestern R. 7'. Paulk Soverhill 7>. Suydam 253. 261 104. 412 258, 199' 528, 308, 242 428 404 481 217 430 164 260 308 509 527 431 431 402 427 '13 249 137 135 346 186 367 ^429 500 160 3^3 •73 15 y-7 514 401 254, 367 106 538 544 335 347 398 400 7 291 239 526 288 141 46 135 400 543 82 533 63 356 173 Sowers 7'. Cyrenias Soye V. McCallister Sparhawk 7'. Allen V. Buell Sparks v. White Spaulding 7'. Cook Speelman 7>. Culbertson Speidel's Appeal Spencer v. Cahoon 7^. Rutledge Sperry, Estate of Spinning v. Spinning Spode V. Smith Spooner v. Hilbish Sponsler's Appeal Spraddling 7'. Pippin Springer's Appeal Springfield v. Hurt Springs v. Ii-win Springsteen v. Samson Spruil V. Spruil Squib V. Wyn Squier v. Mayer V. Squier St. Jurgo 71. Dunscomb St. Vrain's Estate Stacy v. Thrasher Stafford v. Buckley Stag 7'. Punter Stahlschmidt v. Lett -Stainton, Goods of Stair 7'. York Nat. Bank Stairley 7'. Babe Stallsworth 7>. Stallsworth Stallworth 7'. Farnham Stamper v. Garnett Stanbrough v. Evans Standifer 7'. Hubbard Stanford 7'. Stanford Stanley 7>. Bernes 7'. Stanley 7'. Whitney Stanwood 7'. Owen Staple's Appeal Staples 7'. Staples Stapleton 7'. Truelock Stark V. Hunton 7'. Parker Starr v. Brewer State '. Adams Baskin Eerning Castleberry Crensbauer Crassley Donegan Farmer Fields .Section 464 340 216 402 ^n 189 362 453 142 409 221, 428 457 476 220 468 167 208, 48 r 513 122 422 48S '3° 227 545 127 500 178, 180 200 421 389. 439 1 10 408, 409, 410 ?)3 241, 247 520 533 361 418 420 17, '7' 495 44 326 44 358 42 316, 390 57 515 48 1 137 305 150 '43 468,478, 481 543 141 148 Ix\'i TABLE 01 Section | State -'. French Co. 146 7\ Gray 532 V. Ilallett 23 7'. Hogan 307 V. Hymai) 406 7'. Johnson 152, 3-9.428, 438 V. King 415 7'. McAleer 508 7'. Mitchell •50 7'. Murray 409 7'- Parrish 522 7'. Piatt 545 7'. Porter 416 V. Price 141, 142 7'. Probate Court 514 V. Purdy 140 7'. Keinhardt 104 7'. Rogers 36, 41 1 v. Stroop 148 V. Watson 37 V. Wilson 526 State Bank 7-. Williams 533 Staunton v. Parker 48 Stayner, AV 526 St earn v. Mills 230 236 Stearns -■. Brown 525 538 r. Biirnham .64 173 r. Fiske • 104 <-■. Stearns 509 526 V. Wright 160 Stebbins 7>. Lathro]) 46, 54 I 12, 122 >i53 7'. Palmer 115 v. Smith 138 Stedman 7'. P^iedler 325 Steel V. Steel 214 Steele 7'. Atkinson 409 V. Morrison 523 7'. I'rice 84,851 v. Steele 257 Steen r. Steen 409 Steger v. Frizzell 200 Stephens v. Harris 431 v. Hotham 376 Stephens, Re 56 Stephens c\ Milnor 335 Taylor 145 Stephens' Appeal 544 Stephenson, Goods of 98 Stephenson v. Stephenson 104, 526 Sterling-Maxwell v. Cartwright 169 Stern's Appeal 325 Sterrett -'. Barker 256 Sterrett's Appeal 525 Stetson V. Bass 530 Stevens, Re 538 Stevens 7\ Bagwell 98 7'. Gage 3'5 7'. Gaylord 1 15, 163, 168, 20S CASES. 32, Section 409, 410 545 524 132 106 200 400 381 76 290, 292 326^7 295. 355. 356, 522 323. 402 175: Stevens v. Goodell 7'. Melcher V. Stevens Stevenson v. Phillips Stewart, Goods of Stewart, In re Stewart v. Chadwick V. Conner V. Denton V. Harriman V. Richey V. Robinson V. Stewart Stickney 7.'. Sewell Stiles's Goods Stillman v. Voung Stinson v. Stinson Stockton 7'. Wilson Slokely's Estate Stoker z\ Kendall Stokes V. Porter V. Stickney Stone V. Gerrish V. Huxford T. Stillwell 7'. vStrong V. Union Savings Bank Stong V. Wilkson Storer v. Blake 7'. Prestage Storms V. Quackenbush Stose V. People Stoudenmeier v. Williamson Stow's Estate Stratton v. Linton Strawn ?■. Strawn Stretch ?■. McCampbell Strever v. Feltman Stromo V. Bissel Stronach v. Stronach Strong's Estate Strong V. Perkins V. Strong 7'. Wilkinson Stronghill v. Anstey Strother v. Hull Stubblefield v. McRaven Studebacker M. Co. z-. Montgomery 258 50 247 216 194 180 153 184 370 368 65 537 512^ 402 146 200 478 403 408 290 318 T02 448, 449 335 403 390 360 160 58 526 538 347 407 160, 408 259. Studholme v. Hodgson Studley v. Willis Stukes 7'. Collins Sturtevant 7'. Tallman Stuyvesant 7'. Hall Styles V. (Juy Suarez 7'. Mayor Suckley, Matter of Sugden v. Crossland Lord St. Leonard.- 473 39. 398 356 526, 530 400 335 402 24 502 537 84, 85 TABLE OF CASES. Ixvii Sweezey v. Willis 214 Swisse V. Lowther 468 Sullivan v. Fosdick 24, 407 V. Holker 410 V. Horner 421 V. Lattimer 244 V. Sullivan 76 V. Winthrop 481 Summers v. Reynolds 317 Sumner v. Crane 89 V. Williams 361,397 V. Powell 378 Sumrall v. Sumrall 526 Sutherland, Goods of 139 Sutherland v. Harrison 430, 512 Sutter V. Ling 218 Sutton V. Sadler 73 Swan V. Swan 100 Swearingen v. Pendleton 177 Sweezey ?'. Willis 103, 214, 501 Sweigart v. Berk 200 Swenarton v. Hancock 11> Swenson v. Walker 420 Swift V. Miles 435 Swilley v. Lyon 239 Swinburn v. Ainslee 227 Swindell v. Bulkeley 366 Syme v. Badger 439 V. Broughton 407 Tabor v. Tabor Taff V. Hosmer Taft V. Stevens Taggard v. Piper Talbert, Succussion of Talbot V. Radnor Taliaferro v. Rob Talmage v. Chapel Tanner v. Mills V. Skinner Tapley v. Kent Tappan v. Tappan Tarbell v. Jewett Tarbox v. Fisher Tarn v. Commercial Bank Tarver v. Torrance Tasker v. Shepherd Tate V. Norton Tatten v. Tallman Tattnall v. Hankey Taylor, Goods of Taylor v. Allen r. Barron V. Brooks V. Clarke 141, 214 73 214, 215 478 112 489 396 173, 179 149 525 63 527 208 454 194 314 367 420 81 60 66 32 17Q 12S 479 213. 132. Section Taylor ■". D'Egville 63 V. Delancey 104 v. Ilaygarth 494, 503 V. Hosick 160 V. Moore 189, '93, '95 V. Mygatt 256 V. Perry 441 <'. Pettus 16, 211 V. Phillips 120 V. Taylor 456, 462, 49', 508 V. Shore 124 V. Tibbatts 50 V. Wright 544 Taynton v. Han nay ^Z^ Teague v. Corbitt 390 z>. Dendy 410 Tebbs V. Carpenter 308, 384 Telford v. Barry 321 Tell Furniture Co. ?'. Stiles 345 Temples v. Cain 27, 9' Teneick v. Flagg 218 Ten F2yck v. Vanderpool 256 Terhune v. Bray 385 Terrell v. McCown 268 Terry v. Ferguson 214 Teschemacher v. The impson 154 Thacher v. Dunham 544 Thayer v. Clark 420 V. HolHs 389 7'. Homer 1>2>^ 47, 154, 156 Thellusson v. Woodford 465, 474 Thorn V. Thom 545 Thomas, Petition of 217 Thomas v. Adams "9 V. Knighton 153 7'. Moore 256 V. Smith 204 V. Stanley 40S V. White 359 V. Wood 43 Thompson v. Bondurant 118 V. Brown 325, 390 V. Buckner 409 V. Davitte 77 V. Dixon 50 7'. Graham 403 V. Holt 13 V. Hucket i'5 152, '53 7'. Johnson 63 V. Knight 161 V. Maugh 258, 259 V. Meek 127 V. Schenck 509 7'. Stanhope 295 • 7'. Tracy 135, 150, 151 7'. Towner 222 V. White 205, 385 V. Wilson 173 Iwni TABLE OF CASES. Thompson x: Winnebago Cc T'. Voungblood Tliomj)son"s Estate Thomson f. Thomson Thorn :■. Tyler Thorncraft i'. Lashmar Thorndike r . Boston Thome t\ Walkins Thornton, Goods of Thornton v. Burch f. Glover v. Mehring -'. Moore 7'. Smiley r-. Winston Thor])e 7'. Jackson Thumb f. Ciresham TiuHston 7'. I )oane Tichborne 7'. Tichborne Ticknor ■:•. Harris Tierman -■. Hinns Tilden, AV Tilley v. Bridges 7\ Trussler Tillman 7\ Walkup Tilsen t\ Haine Tilton 7'. Am. Bible Society Tipping?'. Tipping Titterington 7'. Hooker Tobey ?'. Miller Todd V. Moore -'. Wright Todhunter v. Stewart Tolcher, Goods of Tolputt 7'. W^ells Tnnikies 7\ Reynolds Tompkins 7 . Tompkins Tomlinson z'. Gill Tompkins v. Tompkins 7'. Weeks Tonnele v. Hall Toomy, CJoods of Torrance ?'. McDougald Torre 7'. Castle Torrence 7-. navidson Towle V. Swasey Towne v. Ammidown Townesend's Appeal Townsend v. Gordon V. Ingersoll V. Moore V. Radcliffe V. Tallant V. Townsend Townsend's Succession Townshend t. Windham Tracy v. Card V. Suydam Section Section O. 200 Trattle v. King 267 4«7 Traver v. Schell 467 y. 107, 1-4 Trawick 7>. Trawick 526 230 Treadwell v. Cordis 405, 473 271 Treat -'. Fortune 439 63 Trecothick 7\ Austin 164 173.175.176, 21 205 16 Trevelyan 7'. Trevelyan 85 50 Treves v. Townshend 482 226 Triggs V. Daniel 413. 543 506 Trimble 7\ James 537 223 7'. Marshall 389 13, 114 Trinmier 7'. Jackson 75 290 Triplett 71. Wells "3 44. 46. 50 Trotter v. Trotter 17, 324 .57S V. White 173 91 Troup 7'. Rice 538 200 Trow 7'. Shannon 50 134 Trueman v. Tilden 543 390 Trull V. Trull 352. 363 453 Trust V. Harned 428 526 Tuck 7'. Boone 119 515 Tucker v. Candy 174 104 • V. Green 409 170 V. Harris 118 506 V. Tucker 324, 525, 542 479 v. W^haley 195. 397 225 7'. Whitehead 67 428, 438 V. W'illiams 186 190 Tuggle V. Gilbert 308 358 Tug^vell 7J. Heyman 422 '34 Tullock V. Dunn 389, 401 94 Tunstall v. Pollard 173 66 Turner v. Cameron's Co. 374 437 V. Child 186 329 V. Cox 417 465 V. Hardey 400 255 7-. Linam 173 24, 32.S, 402 7'. Turner 200, 453 417 7'. W^ardle 427 87 7'. Wilkins 155,405,406 37 Tuttle 7'. Robinson 209, 227, 316, 318, 112, 118 422, 430 62 7'. Turner 122 335 Twaddell's Appeal 545 490, 512 Tweedale 7'. 'I'weedale 468 406 Twimble ?-. Dziedzyiki 174 482 Twitty 7'. Houser 315 118 V. Lovelace 512 391 Tyler v. Bell 15 170 Tyndall, Goods of 113. 115 496 Tyrrell 7-. Morris 341. 347 247 70,94 116 U. 222 408 Udny -'. Udny 21, 23 387 Uldrick 7\ .Simpson 46 TABLK OI~ CASES. Ixix Underwood v. Millegaii V. Wing Union Bank t/. McDonough V. Poulson Union Mutual Life Ins. C Lewis V. Stevens United States v. Cutts V. Daniel V. Duncan V. Eggleston 208, V. Fisher V. Fo.x V. McRae V. Ricketts 7/. Walker Upchurch v. Nosworthy Upson V. Badeau Upton V. Lord Ferrers Urquhart v. King Utley V. Rawlins V. Tit comb Utterson v. Mair Vaden v. Hance Vail V. Anderson Vail V. Givan Valcourt v. Sessions Valentine v. Belden V. Jackson Van Bokkelen v. Cook Vance v. Fisher V. Upson Van Dermoor, Re Vandever v. Freeman Van Duzer, Matter of Vane v. Rigdon Van Giesen v. Bridgford Vanhook v. Barnett Van Home v. Fonda Vanmeter v. Jones Vanpelt v. Veghte Van Rensselaer v. Platner Van Schaack 7 . Leonard Van Steenwyck r'. Washburn Van Straubenzee v. Monck Van Vechten 7\ Keator Van W'yck, Matter of Vanzant v. Davies Vardeman v. Ross Vaughan v. Northup Vaughen v. Haldeman Vaughn v. Barret Veach v. Rice Vedder v. Sa.xton Section 256 417 o. V. 116, 173 202, 211 205 205 428 428 428 459 169 43« 408, 409 190 315 225 494 308 468 33 423> Velho V. Leite Venable v. Mitchell Venables v. East India Co Vermilya v. Beatty Vernam v. Spencer Verner, Estate of Verplanck, Re Verret v. Belanger Vick V. Vicksburg Vickers v. Bell Vincent v. Piatt V. Sharp Voelckner v. Hudson Vogel, Succession of Vogel V. Arbogast V. Vogel Von Desen, Goods of Von Ruseck, Goods of Von Schmidt v. Bourn Voorhees v. Stoothoff V. Voorhees Vreeland v. Vreeland Vroom V. Van Horn Vulliamy v. Noble W. "5- Section 42 250 15 •73 63 53« >3 146 122 46 213 203 456 96 236 y- I 16, 117 169 414 317 84 356 175 379 241 500 197 Wade V. Bridges 134 »55 V. Graham 146 147 V. Lobdell 525 323 Wadsworth v. Allcott 216, 226 291 V. Chick 219, 264 >75 Wain V. Warlters 255 509 Wainford v. Barker 521 152 Wakeman v. Hazleton 321 211 Walbridge v. Day 509 419 Walcott V. Hall 491 428 Waldron r'. W^aldron 5'2 349 Walker v. Bradbury 489 6, 56 V. Byers 419, 445 141 V. Cheever 438, 520 46 V. Craig 362 ^~1>1^ 520 V. Drew 120 402 V. Hall 230, 522 376 V. Hardwicke 512 489 7'. Hill 444 457 V. May '95 60 V. Patterson 255 512 v. Symonds 324, 402 156 V. Torrance 154 500 V. Walker 236 407,413 V. Witter 426 •73' 179 V. Woolaston •34 227 Wallace v. Walker 15', 153 24, 164 Waller v. Ray 53' 160 V. Waller 74 456 1 Wallich, Goods of 42 Ixx TABLE OF CASES. .St ction WaUis :■. Wallis 132 Wall's Api^eal 421 543 Wallv :■. Wally 450 451 Waller r. Miller 3«5 ;■. Kaddiffe 389 Walters ?■. Nettleton 279 Walton 7'. Hall 168, 186 422 Walton r . Walton 408, 498 Walworth -■. Abel 120 Wamsley :■. Wamsley 298 Wapple's Appeal '3 Ward, AV lib Ward I'. Hevill 186 V. Jones 422 V. Kitchen 335 V. State 148 V. Turner 219, 362 V. Thompson 98 V. Ward 247 Ware, Ex parte 427 Warfield v. Brand 407, 413. 415 Waring v. Lewis 338 Warren v. Poff 389 Washburn v. Hale 431 Washington v. Blunt 47 157 Waterhouse f. Bourke -IZ Waterman v. Dockray 409 Waters v. Nettleton 370 V. Ogden 437 V. Stickney 56, 152 153' '57 160 Watkins v. Adams 25 128 V. Brent 87 V. Maule 362 V. Romine 422 542 V. Stewart 332 V. State 247 Watson, Re 193 Watson V. Blaine 285 V. Collins 93 z>. Glover 91 7'. McClanahan 542 V. Toone 358 V. Watson 204, 428 525 V. Whitten 146 Watt V. Watt 101 496 V. White 430 Wattles V. Hyde 146 Watt's Estate 510 Watts V. Crooke 501 Watts 526 Way V. Priest 481 Weaver v. Chace 98 V. Penn 133 V. Roth 506 v. Thornton 247 Weaver's P^state 432 Webb. Matter of 15 Webbr. Adkins 194 Webb V. Bellinger 7'. Dietrich 7'. Kirby V. Needham Webb's Estate W' eble V. Fuller Webster z/. Hale 7'. Hammond V. Spencer V. Tibbits . r. Wiggin Weddall v. Nixon Wedderburn 7'. Wedderburn Weed V. Lermond 233, 536, Weeks v. Gibbs V. Jewett V. Love V. Sego V. Sowles Weir V. Mosher V. Tate Welch's Estate W^elch's Succession Welch V. Adams Welchman v. Sturgis W^eldy's Appeal Wellborn v. Rogers Welles's Estate Welles V. Cowles Wells V. Betts 7'. Brook V. Child V. Miller T. Wells Welsh, hi 7-e Welsh V. Brown V. Welsh Wendell v. Wendell Wenham, Ke Wentworth v. Cock Wernse v. Hall W' est V. Bolton 7'. Shuttewoilh V. Waddill 71. Wilby Westerlo v. DeWitt Westley v. Clarke Wet drill V. Wright Wetmore 7-'. Parker Wetzler v. Mtch Wever v. Marvin Weyer v. Second Nat. Bank V. Watt Weyland v. Weyland Whale V. Booth Whaley v. Whaley Wheatley 7'. Badger 7'. l""ellowes Section 317 7>Z^ 137 133 100, 104 422 491 481 428, 438 324 288 489 60 537 537, 53S 190, 246 120 409, 412 118 487 400 3«o 120 322, 195 542 526 174 200, 202, 218 375 99 137 195. 199 24 85 479 220, 297 545 389 367 178 500 463 ■55 1 12 219 402 no, 124 35 43 522 :o2, 341 529 499 339 457 37, 485 460 TABLE OF CASES. Ixxi Section Section Wheatley v. Hathaway 420 Williams TV. Flippin 146 7'. St. Joseph R. 120 Williams's Appeal '53 7'. Wheeler 362, 400 Williams, AV 57 Wheelwright, Goods of 50 Williams v. Breedon 280, 284 Wheelwright v. Wheel wri ght 545 V. Burrell 366, 367 Whicker v. Hume 169 V. Conrad 419 Whit V. Ray 94, 120 7'. Gushing 46 Whitaker v. Whitaker 98, 101 , 1 30, 409 7'. Eaton 430 V. Wright '54 z'. Ely 34(i Whitcomb ?'. Cook 282 V. Haddock 218 White V. Massachusetts Institute 248 V. Heales 376 White, Succession of 361 V. Holmes 506 White V. Brown 152 V. Hopkins 430 V. Ditson 146 V. Jakes "5 V. Donnell 478 V. Kiernan 192 V. Green 490 V. Maitland 317, 402 V. Mann • 184 V. Marshall 358 V. White 488 7J. Mattucks 268 Whitehead v. Taylor 194, 195 V. Nixon 382, 402 Whiteside 7'. Barber 514 V. Penn. R. 173 V. Whiteside 522 V. Petticrew 530. 533 Whitford v. Panama R. 283 V. Powell 482 Whiting V. Whiting 405 V. Price 428 Whitley v. Alexander 320, 358 V. Purdy 439 V. Stevenson 450 V. Saunders 150 Whitmore v. Hamilton 469 v. Skinker 3'o V. San Francisco Savings Union V. Storrs 164 420, 430 V. Wilkins 104 Whitney v. Peddicord 308, 315 V. Williams 174, 295, 316,317, V. Phoenix 402 329. 439> 45' , 464, 465 Whittaker v. Whittaker 377 Williamson, Succession of 98 Whitworth v. Oliver '53 Williamson v. Furbush 116, 119, Wharton 7'. Moragne 340, 346 215,430 Whytez'. Rose .65 V. Morton 362 Wickersham's Appeal '3 V. Walker 36' Wickwire v. Chapman 105, 109 V. Williamson 452, 479 Widger, Goods of 1 12 Willing z/. Perot 133, 172 Widgery v. Tepper 99 Willis V. Farley 419 Wiggin V. Plumer 160 V. Jones 98 V. Swett 194, 195, 408, 478, 526 V. Sharpe 347 Wilbraham v. Ludlow 21 V. Smith 21 3 Wiles V. Gresham 387 V. WilUs 543 Wiley V. Brainerd 154 Willoughby v. McCluer 233. 236 Wiley's Appeal 223 Wills V. Dunn 540 Wilkerson v. Wootten 400 Wilmerding v. McKesson 402 Wilkins 7'. Ellett 24 91. 164, 167, Wilmington v. Sutten 456 173, 176 Wilmot, Goods of 40, 42 V. Fry 375 Wilmot V. Woodhouse 470 V. Harris 33^ '57 Wilson, Re 542 Wilkinson v. Henderson 379 Wilson V. Arrick 408 V. Hunter 412 V. Beddard 74 V. Leland 59 V. Breeding 496 V. Perrin 120 7'. Curtis 41 Willamette Falls Co. 7'. Gordon s8 7'. Dibble 119 Willard v. Hammond 1 5, 164 177,281 7' Doster 352. 362 V. Van Leenwen 430 V. Fielding 221 Willets, Re 545 7'. Frazier '57 Willey 7'. Thompson 439 V. Fridenburg 326 Ixxii TABLE OF CASES, Section Wilson V. Hoes 152, 153 V. Hudson 184 ?'. Kirby 428 ?■. Lady Dunsany 15.426 V. Lineburger 308, 404 7'. Mason 401 V. Moore 357 V. Paul 437 V. Shearer 423 V. Staats 323 ?'. Tucker 366 7: Whitefield '37 I'. Wilson 247. 250, 438, 494 Wind 7'. Jekyl 4 Windeatt 7: Sharland I 12 Windsor v. Bell 43 Winegar v. Newland 417 Wing 7'. Augrave 2 Wingate 7'. I'ool 200, 322, 441, 542 V. Wooten •53. 155 Winn V. Slaughter •93 Winslow 7'. Merchants' Ins. Co. 227 Winsor 7'. I'ratt 74 Winter v. Hite 258 V. Winter 173 Winthrop v. Jarvis 255 Winton's Appeal 13 Wirt V. Pintard 160 Wison V. Fielding 221 Wiswell 7'. Wiswell 238 Withy V. Mangles 103 Witman's Appeal 522, 526 Witsel 7 . l^ierce 118 Wolff V. Schaeffer 142, 148 Wollaston t. Hakewill 376 7'. Wollaston 519 Womack 7'. Boyd 455 Wood. A',' 247 Wood 7'. I'lown 401. 402 V. Chetwood 32 V. Ellis 433 V. Gaynon 227 V. Mathews 58 7'. Matthews '5 V. My rick 322 V. Nelson 241 7'. l^enayre 478. 481 7'. Seaver 467 V. Tunnicliff 387, 396 V. Vandenburgh 490 V. Williams 147. mS V. W^ood '37 Woodley v. Holley 3'7 Wood's Appeal 349. 352 Wood's Estate 345-42 1 Woodbury t. W'K-dbury 44S \N'ooden f. C!o\vlc-s 4.8 Woodfin -'. .VIcNealy 146, 207 Section Woodfolk V. Beatty 120 Woodgate v. FielA 5'9 Woodin V. Bagley 288, 387 Woodman v. Woodman 496 Woodruff V. Cook 265 ?■. Shultz 172 7'. Woodruff 525 Woodruffe v. Cox 106 Woods, Goods of 35 Woods V. Elliott 316 7'. North 355. 361 V. Ridley 251, 257, 258, 259, 542 V. Sullivan 324. 327 Woodward '■. Goulstone 84 Woodyard 7'. Polsley 389 Woodridge v. Bishop 195 Woolfolk V. Beatty 120 Woolfork V. Sullivan 190 Woolley V. Clark 160, 190, 194 195 Wootton 7'. Redd 474 W^organg v. Clipp 146 Warman, Goods of 98 Worth 7'. McAden 43 402 Worthington 7'. Gittings 15' Worthley 7'. Hammond 428 Wray v. Field 468 Wren v. Gayden 247 W light 7'. Gilbert 174 V. Lowe 520 v. McNatt 154 V. Minshall 218 Wright 7'. Mongle 88 7'. Phillips 16 »74 7>. Schmidt 144 V. Tat ham 73 V. Wright 212 V. Wollbaum 160 V. Ware 28 V. Williams 301 7'. Wright 104, 247. 439 ,451 Wyatt 7'. Williams 283 Wyck. Matter of 156 Wyckhoff, Goods of "5 Wyman t. Halstead 24 , 228 7'. Symmes 76 V. Wyman 218 Wyman's Appeal 387 Wyse V. Smith 430 \'arborough 7>. Leggett 386, 387 Yardley 7\ Arnold 421 Yates 7\ (lark 154 ;•. Maddan 487 N'eldell t. Shinholster 244 Verger ?'. Jones 352 TAHLK OF CASES. Ixxiii Yetter's Estate Yingling v. Hesson • York 2'. York Young '•. Alexander V. Holloway V. Kennedy 7: Kimball V. O'Neal Section 504a Young's Appeal 390 456 239 Z. 153 175 Zimmerman v. Anders 408, 457 V. Kinkle 176, 408 V. Zimmerman Section 402 459 364 62 THE LAW EXECUTORS AND ADMINISTRATORS. PART I. INTRODUCTORY CHAPTER. § I . Estates of Deceased Persons ; how Settled in Modern Prac- tice ; Theory of Judicial Supervision. — When a person dies, leav- ing a fair amount of personal property, his estate is usually set apart, in our modern English and American practice, to be set- tled under the immediate supervision of local and usually county tribunals invested with appropriate functions, whose fundamen- tal duty it is to exact a settlement according to law ; and, more- over, with due respect to the last wishes of the deceased, if such wishes were properly expressed by him during his lifetime while of sound and disposing mind. The main objects proposed are these : that the personalty of the deceased be properly collected, preserved, and (together with income and profits) duly accounted for ; that his just debts and the charges consequent upon his death and the administra- tion of his estate be paid and adjusted, with such discrimination only as the law recognizes in case the assets should prove in- sufiticient ; that the immediate necessities of spouse and young children (if there be such surviving) be provided for as the stat- ute may have directed ; that the distribution and division of the residue or surplus of the estate be made among such persons and in such proportions as the will of the deceased, if there be one, otherwise the statute of distribution may have prescribed. I § 2 EXECUTORS AND ADMINISTRATORS. [PART I. Where the deceased left what purports to be a will, the solemn establishment of that will and its public authentication require further attention from such tribunals ; specific or general lega- cies must be paid next after the debts, taking their peculiar priorities, and the balance or residuary fund reckoned up and adjusted accordingly, if not already exhausted. Whether a last will, entitled to probate, be left or not, the management of the estate must be judicially committed to the person or persons rightfully entitled to represent the deceased ; he or they qualif}-ing, by giving bond with or without security, as the case may be, for a faithful performance of the trust, and thereupon receiving letters under the seal and authentication of the court. And this by way of public credentials or a com- mission, to be respected in all other courts throughout the juris- diction of the State or country. All this judicial supervision and direction is exercised, in England and the United States, by peculiar tribunals, whose jurisdiction and powers are in mod- ern times usually defined, if not created, by local statutes. But chancery courts in England have a considerable supervision of such matters besides. § la. Death Fundamental to Jurisdiction ; Survivorship. — The death of the person who is claimed to have left a will or died intestate is fundamental to all jurisdiction in settling his estate; and whatever may have been the occasion of error, letters granted upon the estate of a living person are null and cannot take effect against him." So may the question of actual sur- vivorship be important where one is to inherit from another, whether by testacy or intestacy,^ § Administrators, and their Functions ; Administration. — 1 he estates of deceased persons, it is thus perceived, are well classified as ' §§ 55' 9'' '^>o- 8 H. L. C. 183 ; Alston's Goods, (1892) * lb. Thus where husband and wife P. 142. And see general works on Evi- share some calamity, such as a ship- dence. See also Underwood v. Wing, wreck, and there is no evidence that one 4 DeG. M. & G. 633,661. survived the other. Wing v. Angrave, 2 PART I.] INTRODUCTION. § 2 testate and intestate : the one class embracing all estates to be settled under a will ; the other, all estates for settlement where there was no will. In many respects, such as the collection and preservation of effects, and the payment of debts and charges, there is little or no essential difference found in our modern practice between these two classes. For it is a funda- mental maxim of our common law that all just existing debts shall be paid out of one's property before any further disposition thereof can take effect.' But great differences are perceived when it comes to that further disposition of the dead person's property ; a testate estate being divided and distributed accord- ing to the testamentary directions of the deceased, while that of an intestate goes by the public mandate. The representa- tive follows a private plan and specifications in the one case, but not in the other, so far as he deals with the surplus above debts and charges. This representative under a will, so peculiarly intimate in his relation with the thoughts and wishes of the deceased, is styled an executor in the former instance ; an executor being the per- son who is charged by the testator with the execution or putting in force of his will.^ The corresponding representative, for other cases, is an administrator ; this term applying, not only where the deceased person left no valid will at all, but where the es- tate is testate, and yet, for one reason or another, there is no person found to execute the will whom the testator may be said to have actually designated or selected for the office.^ And hence arises some confusion in legal terms when we seek to dis- tinguish between the representatives of testate and of intestate estates ; though the words executors and administrators are com- monly employed in that connection as though correlative. The common-lavv distinction is, in fact, here founded in con- siderations of privilege attached to the personal choice by the deceased of his own representative, — considerations which in the lapse of time have lost much of their early force. The ex- ecutor was said, by English jurists, to derive his authority from ' Coke, ,2d Inst. 398; Bouv. Diet. ^2 Bl. Com. 503; 3 Atk. Ch. 301. ' Administration." ^ 2 Bl. Com. 494. § 2 EXECUTORS AND ADMINISTRATORS. [PART I, the will, rather than from any judicial appointment at all ; and hence his formal qualification for the office was deemed of sec- ondary consequence ; the English temporal courts showing no great solicitude for upholding that peculiar authority over dece- dents' estates which spiritual tribunals asserted. On the other hand, it was admitted that an administrator's authority was de- rived wholly from the appointment made by such tribunals, though this appointment were in literal jiursuance of the statute." The modern tendency, however, both in England and the United States, is to assimilate the powers and duties of these two classes of legal representatives so far as may be ; to recognize the de- parture of their several functions only so far as the distinction between settling estates testate and intestate fairly produces it ; to require both executors and administrators to take out letters and qualify in the same special court, rendering their accounts upon a like j^lan and under a like supervision ; and to rule that the choice of an executor by the testator gives the one a marked advantage for securing the judicial appointment in pref- erence to others desiring the office, and upon peculiarly favora- ble terms, jjcrhaj^s, as to furnishing security, but not so as to override or dispense with the judicial discretion altogetlier. Nevertheless, executors and adini)iistyators are technically distinguished in our law as before. One selected judicially to settle an estate under a will, not being named in that will, is styled an administrator (not executor), with the will annexed ; and there is no executor, so to speak, apart from some designa- tion under the will of the person who shall officiate in the trust. Consequently, "execution" being a term quite liable to legal misconception, and in probate law confined at all events to the narrower connection, the word "administration " is at the pres- ent day acquiring a broad significance, as more nearly synony- mous with the general management and settlement of a deceased person's estate.' For, as a jurisprudence develojies, which takes in the whole compass of our highly interesting and important 'See 1 Bl. Com. 495; Part II., post, are arranged with reference to such a as to appointment. heading ; though the more common title =■566^.^. Rouv. Diet. " Administra- is still like that of the present volume, lion." Some digests of the present day " Executors and Administrators." PART I.] INTRODUCTION § 4 subject, the necessity becomes felt for a single appropriate and universal term, applicable to estates whether testate or intestate, and to the winding-up of a dead owner's affairs under spiritual or probate supervision ; and such a term the common law does not supply. § 3. "WLether there may be a Will -without an Executor. — The logical distinction between executors and administrators appears to have been more precisely stated in the ancient days of our law than in modern times. For, to quote from Swinburne, " the naming or appointment of an executor is said to be the foundation, the substance, the head, and is indeed the true for- mal cause of the testament, without which a will is no proper testament, and by the which only the will is made a testament."' And other early English authorities are to the same purport.^ Nevertheless, our modern practice proceeds upon quite a differ- ent theory ; and while there can be no executor without some will to name or constitute him, it is certain that a will properly executed may be valid without naming an executor at all, or not- withstanding the executor named dies before probate or from one cause or another becomes disqualified from acting ; in any of which contingencies the probate court will constitute an ad- ministrator with the will annexed.^ § 4. Devise and Bequest or Legacy distinguished; -wrhether a Will can operate upon Property afterwards acquired. — In its lit- eral and technical import the word devise refers only to real estate ; whereas a bequest is a gift by will of personal property. Under a will, to devise is to give real estate to another ; and to bequeath is to give personal property to another."* The term legacy, too, which is a gift by last will, applies more familiarly (as the history of wills at English law indicates) to personal ' Swinb. pt. I, § 3, pi. 19. been a testament had an executor been ^ Godolphin, *pt. i, c. 1, § 2 ; Plowd. named, was considered obligatory upon 185 ; Wms. Exrs. 7. the administrator, under the appellation 'See 2 Chanc. Rep. 112; Appoint- of " codicil." Wms. Exrs. 7. ment, /cjj-/, Part II. Even under the old ■• Bouv. Diet. "Devise," "Bequest," law, an instrument which would have etc. 5 § 4 EXECUTORS AND ADMINISTRATORS. [PART I, property, or to money, goods, and chattels, although sometimes employed with further reference to a charge upon real estate.' In fact, a de\nse of lands, when such dispositions became per- mitted, was seen to be distinguishable in its operation from a will or testament ; for a will or testament operated in general terms upon all the personal property of which the testator might die possessed, save so far as he chose to except particular chat- tels ; whereas a devise of lands was treated in the courts rather as a conveyance by way of appointment of particular lands to a particular devisee.' Upon such a principle of distinction it be- came established in practice that one could devise only lands of which he was seized at the time of its execution ; whereas his will and testament would operate of right upon personal prop- erty before or afterwards acquired, provided only that he died possessed of it.^ The modern extension of testamentary facilities to the dis- position of a testator's whole estate, whether real, personal, or mixed, tends, however, to subvert distinctions of this latter de- scription. In the United States, wills are usually permitted to operate upon real estate and descendible interests of every de- scription ; and local statutes expressly recognize the right of a testator to pass his after-acquired lands and landed estates and interests, giving effect to his manifest intention accordingly. Manifest intention is the rule of guidance correspondingly as to all dispositions of personalty, though presumptions as to that intention may differ; and hence "will and testament" have long been the words popularly used in this country ■♦ as applica- ble to one's property of whatever description which he disposes of with testamentary intention. In England, too, "devise," since the year 1837, has lost much of its special significance; for the statute of wills, i Vict. c. 26, extends the power of dis- posing by one's will duly executed to all such real and personal ' Bouv. Diet. " Legacy." And see " Chancellor Kent observed this pop- post as to the payment of legacies. ular use of words in the United States ' Harwood v. Goodright, Cowp. 90 ; early in the present century. See 4 Kent 4 Kent Com. 502 ; Wms. Exrs. 6, 7. Com. 501. And see Wms. Exrs. 6, 7, > Wind V. Jekyl, 1 1'. Wms. 575; Perkins's «. Wms. Exrs. 6, 7. 6 I'ART I.] INTROni'CTION. § 5 estate (including landed interests) as the testator may be enti- tled to at the time of his death, notwithstanding his title vests subsequently to the execution of his will' § 5 . Personal Property is administered ; -whether Real Estate can be applied. — The management, settlement, or administra- tion of the estates of deceased persons relates primarily and fundamentally to personal property alone ; for with the real es- tate of the testate or intestate decedent, his executor or admin- istrator has at common law no concern.^ This rule is owing partly perhaps to the jealousy with which bishops and their tri- bunals of special jurisdiction over estates of the dead were for- merly regarded ; but we should chiefly ascribe it to that stability of real estate tenure as contrasted with title to personal property, which is at the basis of English policy and English jurispru- dence. An ancestor's lands vested in his descendant at his de- cease without further formality ; the heir-at-law became invested with the dignities and responsibilities pertaining to the founder ; in England a statute of descents was not framed like a statute of distributions. " By the laws of this realm," observes Swin- burne, one of our earliest writers of repute on testamentary law, " as the heir hath not to deal with the goods and chattels of the deceased, no more hath the executor t<^ do with the lands, tene- ments, and hereditaments" ;^ and if the executor as such, not- withstanding the confidence reposed in him, took no interest in the real estate of his testator, still less did an administrator in the lands of his intestate. Debt and charges, nevertheless, re- main obligatory upon the estate, so long as property of the de- ceased may be found for their satisfaction ; and hence, if the personal assets prove insufficient, the lands may be applied to make up the deficiency on license of the court ; modern statutes in England and the United States greatly enlarging all earlier facilities in this respect. Moreover, an executor may have been empowered in fact to deal with real estate under the will of his testator ; who naturally on his part does not bestow the bulk of ' See Stat, i Vict. c. 26, § 3 ; Wm.s. - This subject is considered at length, Exrs. preface ; Schouler Wills. post. 3 Swinb. pt. 6, § 3, pi. 5. § 6 EXECUTORS AND ADMINISTRATORS. [PART 1. his fortune upon those surviving him in these days without con- templating a general disposition of his property, real, personal, and mixed. A schedule of real estate of the deceased is therefore to be included in the inventory which an executor or administrator returns to the court from whose appointment he derives full authority ; the schedule of personal property, howe\'cr, serv- insr alone as the basis of his accounts.' And while such real estate, in the absence of a will making inconsistent provi- sions, may still as formerly be said to vest in the heir at once, upon the owner's decease, an incumbrance or cloud remains on the title until a sufficient period has elapsed for presenting claims against the estate or it otherwise appears clear that the personal representative will not be compelled to resort to the land because the personal assets prove deficient for the purposes of winding up the estate.^ § 6. Succession in the Civil La-wr ; as distinguished from Administration. — Our common-law system of "administration" (using this word in its broadest sense )^ whereby a deceased person's estate becomes sequestered, so to speak, and confided to legal representatives for the purposes we have described, appears to have no precise counterpart in Roman jurisprudence. " Succession " is a general term used by civilians with reference to the status derived from the transmission of the rights and obligations of a deceased person ; but " title by succession " is very different from that representative or trust title to person- alty which one takes at our law as an executor or administrator ; being indeed so complex and abstruse a topic as hardly to deserve our studious attention. The heir stepped into the place vacated by the deceased, enjoying his property rights, and burdened with his property responsibilities ; this was the fundamental principle of succession, the successor himself being called at Roman law liacres, and that to which he succeeded Jiacrcditas. Upon such heir (whose status was somewhat like that of our 'See as to Inventory and Asset.s, ^This subject will be considered at post. length, /cJj-/, §§ 212-218. ^ Supra, § 2. 8 PART 1. 1 INTRODUCTION. § 6 common-law heir to whom real estate descends, when the ances- tor has left no other property) devolved at Roman law the per- sonal duty of discharging legal debts and the incumbrances of the deceased ; and, moreover, if the deceased left a will, of sat- isfying the special testamentary provisions in addition. In this latter respect, it appears that the heir was bound to pay all legacies so far as the property descending to him might suffice, and no farther ; but as to the former, legal consistency for the space of a thousand years in Roman history compelled the suc- cessor to pay all the debts of his deceased predecessor, whether the property obtained from the estate proved sufficient or not ; a harsh but legitimate consequence of the theory, which disap- peared in the age of Justinian, at which era inventories were introduced in order that the estates of heir and decedent might be separated." Religious scruples had all the while prompted the successor of an insolvent to make personal sacrifice ; for religious and temporal duties were blended in the succession ; and the estate of the deceased who died insolvent was stig- matized as damnosa. The heir enjoyed of course the usual privileges of a residuary legatee ; and after the changes intro- duced by Justinian, two classes of heirs were found to have sprung up in Roman practice : the one consisting of those who made no inventory, and bore the ancient burdens of a legal suc- cession ; the other, of those who made an inventory, and, leav- ing the decedent's estate to be honored or dishonored upon its own merits, required creditors to confine their claims to assets available from the estate, not contributing from their own private fortunes to make up a deficiency.^ Thus was the old theory of succession gradually forsaken in the latter days of the Roman empire, the heir becoming more nearly in effect like what we style an executor or administrator, if so he preferred. It is to be presumed that the person who was instituted heir might renounce the succession if he chose, and thus escape all burdensome obligations. And in default of a testamentary succession, — that is, the constitution of the heir 'Hunter Roman Law, 567, 568. In ^Hunter Roman Law, 567, 568, a few instances prior to Justinian tlie 574-576. Praetor allowed a separatio bonortim . II). 9 § 7 EXECUTORS A\n ADMINISTRATORS. [PART I. by a will duly executed in the forms prescribed by law, — or where he renounced the inheritance, a legal succession arose in favor of the nearest relatives of the deceased ; moreover, an irregular succession became established by law in favor of cer- tain persons or of the State in default of heirs either legal or instituted by testament. Such doctrines certainly pertain to the civil law of modern Europe and of American colonies founded by the French and Spanish.' "Administration" and "administrators" are terms not em- ployed, however, by either the ancient or modern civilians, as it would appear, though our "administration " somewhat resembles the bonorum possessio of imperial Rome.^ But, as concerns the settlement of testate estates, while the Roman testator sel- dom committed such functions to other persons than the testa- mentary heir himself, and similar restraints are still imposed in some European localities, modern custom in France greatly fa- vors the special institution of executors, and leaves the testator at liberty to name persons who shall take all or part of the movable property for executing the dispositions under the will confided to their care.^ And thus may one's testamentary dis- positions take effect and be fully executed, notwithstanding the absence, death, or possible misconduct of the testamentary heir, and this by means of representatives whose judgment, integrity, and business qualifications may be weighed without the prepos- sessions of family affection. For freedom in the selection of executors under a will is the surest pledge of the faithful exe- cution of that will according to the interests of all concerned under its provisions. § 7. Testacy preferred to Intestacy in Civil and Common Law ; Former Abuses in English Law where Intestate Estates were ad- ministered. — Under both the civil and common-law traditions, " Domat Civ. Law by Strahan, § 3125 ; land, prevailed in New York, the exe- Bouv. Diet. "Succession." cution of a will devolved upon the "in- " Colquhoun Rom. Civ. Law, § 1413. stituted heir" without issuance of any ' Domat Civ. Law, §§ ZZV^-ZiZ^- I" letters whatever. Van Gieson v. Bridg- our early colonial day.s, when the civil ford, iS Hun (N.Y.) 73. law, as modified by the usages of liol- 10 PART I.] INTROnUCTION. § 7 as it thus appears, a person of fortune has been expected to dispose of his personal estate by a will ; and tracing cither law to its source, we shall find testacy in that respect decidedly preferred to intestacy. Indeed, the contempt of our early Eng- lish law for those who from want of foresight or opportunity died leaving behind them personal property not bequeathed by some last will and testament in a formal manner was strikingly manifested. The intestate came into the category of bastards and other unfortunates. The king, according to the old maxims, might seize upon his goods and chattels as parens patriae ; and for a considerable time the feudal superior or lord of a demesne exercised by delegation the right of administration ; after which this branch of the prerogative passed to the bishop or ordinary in the several dioceses upon a trust to distribute the residue of the intestate's goods in charity to the poor or for what were deemed pious uses. These prelates soon abused a trust for which they were held accountable in truth only to God and their spiritual superiors ; they would take to themselves, in their several jurisdictions, the whole surplus of an intestate's estate after deducting the partes rationabiles ; that is to say, two thirds to which one's wife and children (if he left such) were entitled ; and this without even paying his just debts and law- ful charges. That iniquitous rule Pope Innocent IV. recog- nized as the established common law of Great Britain as early as the middle of the thirteenth century.' Two acts of Parliament put an end to this abuse of spiritual power: (i) the Statute of Westm. II. (declaratory of the com- mon law), which required the ordinary to pay the debts of the intestate so far as his goods extended, in the same manner that executors were bound to do where one died testate ; (2) the Statute 31 Edw. III. c. 11, under whose later provisions the ordinary ceased to be a sort of Jiaercs under an intestate succes- sion, and became obliged to depute administration to the nearest and most lawful friends of the deceased, instead of administer- ing as before in person and without accountability.^ These statutes went far towards altering former hardships and bring- ' 2 Bl. Com. 495, 496. 7th Eng. ed. 401 ; Snelling's Case, 5 ^2 Bl. Com. 495, 496; Wms. Exrs. Rep. 82 b. I I § 8 p:xecutoks and administrators. [part i. ing executors and administrators upon an equivalent footing of legal accountability to all those interested in the estate ; though abuses continued as to surpluses, for which the temporal admin- istrator in his turn deserved reproach, the ecclesiastical courts having endea\'ored in vain to force a proper distribution of in- testate estates by taking bonds from these legal representatives to that intent. At length was enacted the Statute of Distribu- tions, 22 & 23 Car. II. c. 10, and the administrator of an intes- tate estate could no longer administer for his personal benefit," The first American colonies were planted before the date of this last important enactment of the English Parliament ; but positive enactments of a similar character have long prevailed in every State of this Union.' And how much of excellent leg- islation on dry subjects our countries of English origin trace to the reign of that good-natured and dissipated monarch who fol- lowed Cromwell and the Commonwealth, no jurist can ever forget. § 8. Wills of Real and Personal Property, -whether distinguish- able of Right ; Modern Statute of Wills. — From the time of the Norman Conquest until the reign of Henry VIII. an English subject had, strictly speaking, no right to dispose by will of his real estate ; but the land would descend to the heir by force of the law of descents which favored a first-born son above all other children. It was constantly admitted, however, that wills of chattels or personal property might be made ; and the term "chattels," of course, embraced terms for years and other chat- tels real, which, being of less dignity than a freehold, followed necessarily the same general doctrines as chattels personal. ^ But the acts 32 & 34 Henry VIII. sanctioned to a considerable extent the devise of lands, upon the testator's observance of certain formalities which were further set out by the celebrated Statute of Frauds (29 Car. II.). In the United States primogeniture was early abolished with all its attendant privileges, or rather preferences ; and our an- ' Wnis. Exrs. 1484. note (i) by Ilargrave; i Schoul. Pars. * ^ett post as to Distribution. Prop. § 9. ^ VVms. Exrs. i; Co. Litt. in b. 12 PART I.] INTRODUCTION. § Q cestors, from the earliest colonial establishment, appear to have permitted the devise of lands by will under statute regulations based upon these English enactments.' Since our independence of Great Britain, American policy has favored, in the several States, the execution of wills with the same formalities, whether to pass real or personal property, ov both kinds together. The same just doctrine has at length gained a firm footing in Eng- land by operation of the important modern Statute of Wills, i Vict. c. 26 (which affects all English wills made from and after January i, 1838); under whose provisions it is rendered lawful for every person to devise, bequeath, and dispose of all real es- tate and all personal estate which he shall be entitled to at the time of his death, either at law or in equity, provided the will be executed with the formalities therein prescribed.^ § 9- Ancient Doctrine of the Reasonable Parts of "Widow and Children ; Wills of Personal Property affected. — ■ But while the common law permitted one to bequeath his personal property by will, a restriction appears to have prevailed in the reign of Henry II. as to the person who died leaving a wife or issue or both surviving him. In such a case the man's goods and chat- tels, if he left both wife and children, were di\'ided into three equal parts : one went to his heirs or lineal descendants, an- other to his wife, and only the remaining third went according to his own express disposition ; though, if only a wife survived him, or only issue, a moiety went to such wife or such issue, and he might bequeath the other moiety. These shares of wife or children were called their reasonable parts, and the writ de ratio7iabili parte bonorum lay for the recovery of these por- tions. If, however, the testator died. leaving neither widow nor issue, his will might operate so as to dispose absolutely of all his personalty ; and the legal restriction itself, whether of general force, or existing only in certain localities by custom, gradually '4 Kent Com. 504, 505; Part II., the preface to the 6th and later editions ^osi. of Williams's work ; also in Schouler ^Wms. Exrs. 7th ed. 5. This Stat. Wills (1S87), appx. See Part II., c. i, (i Vict. c. 26) is set forth at length in post, as to the appointment of executors. 13 § lO EXECUTORS AND ADMINISTRATORS. [PART I. disappeared, the date of its extinction as well as of its origin being obscure.' § 10. Jurisdiction in the Grant of Letters Testamentary and Administration; English Ecclesiastical Courts. — Jurisdiction over wills and their probate in England belonged, before ecclesiasti- cal functions were exercised in such cases, to the county court or to the court baron of the manor where the testator died ; and before these county tribunals all other matters of civil dispute were determined. This power of the probate existed down to quite a recent period in certain English manors, and so as to preclude the interference of the ordinary. The earl formerly pre- sided over this county court ; though subsequent to the introduc- tion of Christianity the bishop sat with the earl. Soon after the Norman invasion, however, the ecclesiastical and temporal juris- dictions were separated ; and gradually the bishops became in- vested with plenary authority as to matters which pertained to the estates of the dead. Some English writers appear to have regarded this authority as in fact usurped by the ecclesiastics.^ But Blackstone ascribes it rather to the crown's favor to the Church, citing the observation of Perkins that the law consid- ered spiritual men of better conscience than laymen, and thought that they had more knowledge as to what things would conduce to the benefit of the soul of the deceased. ^ And according to our great English commentator, the disposition of intestates' effects once granted in confidence by the crown to the ordi- nary, the probate of wills followed as of course : for it was thought just and natural that the will of the deceased should be proved to the satisfaction of the prelate, whose right of dis- tributing one's chattels for the good of his soul was effectually superseded thereby.-* This ecclesiastical or spiritual jurisdic- tion — attended as it was with flagrant abuses at which the Papacy seems to have connived — doubtless inspired dread and ' Wms. Exrs. 2, 3 ; Co. Litt. 176 b; This doctrine will be noticed again un- 2 Bl. Com. 492. English authorities der the head of Distribution, /^j/. differ upon the question whether the ''Colquhoun Rom. Civ. Law, § 1413. writ de radonabili parte bononim was 'Perkins, § 486; 2 Bl. Com. 494. given by the common law or custom. ■'2 Bl. Com. 494. 14 PART I.] INTRODUCTION. § I I disaffection in the temporal courts and among the English laity ; for restraints were ])ut repeatedly, by statute or judicial construction, upon the ordinary's authority, even in cases where he strove to enforce justice, and the necessity of probating wills was reduced to the narrowest limits.' § 1 1. Probate Jurisdiction in the United States. — The Ameri- can system of jurisdiction over estates of the deceased was always far more simple and symmetrical than that which thus grew up in the mother country. Our early ancestors felt the need of some tribunal whence letters testamentary and of administration should issue ; and at the same time, rejecting the idea of a spir- itual jurisdiction and courts of bishops such as then made part of the British system, they came back to the primitive notion of county courts which should blend probate with common-law functions. From these county courts lay an appeal to the supreme temporal tribunal. But, as population grew, these powers exercised by the inferior courts called once more for a division, without, however, any necessity for placating bishops. New county tribunals were accordingly erected for the trans- action of such business as might pertain to the estates of the dead, testamentary trusts, the guardianship of orphans, and the like. To the old county courts was left their common-law juris- diction, while the supreme court retained control over them all, as alike the tribunal of final resort in matters relating to com- mon law, probate and equity. Such is the general origin of probate jurisdiction in the United States. But the local courts thus clothed with primary authority respecting wills and administration have borne different names and varied as to procedure in many details, in accordance with the local codes. In New England and in most of the Western States whose legislation bears the impress of New England ' Colquhoun observes that the Roman probate jurisdiction) prohibited them law enabled bishops or their superiors from meddling with the probate or reg- to maintain suits for legacies left z«//t;j istry of wills. Colquhoun Rom. Civ. usus, such as the support of the poor, Law, § 141 3. Administration of goods and the redemption of captives ; but at the English law, he further observes, (probably for the sake of correcting resembles in some measure the ^c7«t?;-«w some effort of the ecclesiastics to usurp possessio of the Roman law. lb. 15 § 12 EXECUTORS AND ADMINISTRATORS. [PART I. ideas, each county has its appropriate court and judge of pro- bate ; in New York we find the county surrogate ; in New Jersey an orphans' court or ordinary ; in Pennsylvania and various other States an orphans' court ; while in some parts of this country, and particularly the pioneer region, probate func- tions are still exercised by the general parish or county tribunals.' For convenience we shall in this treatise speak of all such tri- bunals as " courts of probate " (such being perhaps the most familiar designation), and the law pertaining to this jurisdiction over estates of deceased persons as " probate law." All such courts have a judge or surrogate who performs the appropriate judicial duties, and a register who records the wills, letters and accounts, for public inspection, and performs other duties cor- responding more nearly to those of a clerk of courts. Probate courts and their officers constitute a part of the local judiciary system of each State ; yet the functions performed by judge and register are in many respects analogous to those of administra- tive officers. § 12. Probate Jurisdiction in the United States; the Subject continued. — These probate tribunals, or substitutes for the Eng- lish spiritual courts, being of statute creation, their jurisdiction and practice are defined at much length in the several States by legislative enactment. American policy demands that estates of the dead, if not really trivial in character or amount, shall pass through the probate office for the benefit of all parties interested ; that, under the scrutiny of the court, they shall be wound up regularly, expeditiously, and economically, by repre- sentatives whose credentials of authority are procured from the proper county tribunal, and upon the filing of due security ; that wills, whether relating to personal, real, or mixed property, shall be presented for probate as soon after the testator's death as decency permits ; that the rights of all persons interested in a dead person's estate, including creditors, legatees, and next of kin, shall be sedulously protected, whether one died testate or intestate ; and that, so far as may be convenient, testaments, 'See 2 Kent Com, 226, 227; .Smith (Mass.) Prob. Pract. 1-5. 16 PART I.] INTRODUCTION. § 13 inventories, the accounts of executors or administrators, and other essential documents showing the condition and course of settlement of each deceased person's estate shall be preserved for inspection in the county probate files, and made matter of public registry ; though practically, if the representative be duly qualified, and the will or the fact of intestacy clearly placed on record, the bond of the representative affords security to all concerned that any omission to render an inventory and accounts need not work them an injury if private and family considera- tions hinder the pursuit of those full formalities. As the for- tunes of most citizens of consequence may thus be passed in review on their death, the living man's regard for this sort of post-mortem reputation among his surviving relations, neighbors, and acquaintances, imparts a fresh stimulus to acquisition, be- sides imposing a check upon loose and fraudulent transactions ; the muniments of title to property by will and inheritance are well preser\^ed ; and not to mention the gratification of an idler's curiosity, facts may be ascertained at the probate registry of high importance to the public assessor, statistician, and local historian. § 13. The Subject continued ; Probate Procedure in the United States. — As befits an authority which thus pervades the sanctity of a household, crosses the threshold and exposes to pubhc view the chamber of mourning, probate jurisdiction in the United States is exercised with great simplicity of form as well as decorum. Costs and fees are trifling ; the mode of pro- cedure is by a simple petition which states the few facts essen- tial to give the court jurisdiction ; in various counties the need- ful blanks may be obtained from the register ; and of so informal a nature is the hearing before the judge or surrogate that parties appear often without legal counsel, the usual aspect of a probate court-room in the rural counties being that of some executive of- fice where business is summarily disposed of. In many parts of the United States probate courts are pronounced courts of record ; apart from which, to authenticate wills, qualify execu- tors and administrators, and supervise the settlement and dis- tribution of the estates of deceased persons, affords to all such 2 17 13 EXECUTORS AND ADMINISTRATORS. [part I. local tribunals an independent and highly responsible sphere of judicial action, exclusive in the first instance. In the construc- tion of testamentary trusts, and upon various other subjects, probate courts exercise often a concurrent authority with those of equity ; and in general the right of appeal from their decrees to the final state tribunal, though exercised comparatively sel- dom, gives assurance that the delicate discretion reposed in these temporal magistrates will not be seriously abused.' And ' In New Jersey the court of chancery has concurrent jurisdiction with the or- phans' court in the settlement of the accounts of executors and administra- tors, and may assume exclusive juris- diction at any time before decree of allowance; but no interference will be made where the settlement is proceeding regularly in the orphans' court unless special cause is shown. Search v. Search, 27 N. J. Eq. 137. Under New York statutes the jurisdiction of the surrogate to compel an account from the fiduciary is not exclusive, but con- current with the supreme court, and the right to resort to an equity tribunal ap- pears in general peculiarly appropriate where the circumstances of a case are such as to require relief of a nature which the probate or surrogate tribunal cannot afford. Hadow v. Lundy, 59 N. Y. 320 ; Rogers v. King, 8 Paige, 210; Story Eq. Jur. §§ 530-543. Stat- utes relating to probate jurisdiction will not be presumed to divest the usual chancery courts of their equitable juris- diction in the matter of legacies, even though a concurrent jurisdiction be conferred. Catlin v. Wheeler, 49 Wis. 507. And in matters of purely equita- ble cognizance relating to the adminis- tration of estates, the probate court has presumably no jurisdiction, without en- abling acts. Butler xk Lawson, 72 Mo. 227. Such a court must not entertain proceedings beyond its statutory func- tions. Winton's Appeal, ill I'enn. St. 387. But a New York surrogate may construe a will far enough to determine to whom legacies shall be paid. Ver- planck AV, 91 N. Y. 439. And in Mas- sachusetts the probate court, subject to appeal, may consider a question of cap- ital and income in passing upon a trus- tee's account. N. E. Trust Co. v. Eaton, 140 Mass. 532. But with reference to procuring let- ters testamentary or of administration, the probate of wills, and the general supervision of inventories and accounts in connection with the settlement of the estate of a deceased person, the local or county probate tribunal acts in most States with plenary powers in the first place ; an appeal lying to the supreme tribunal of the State, at the instance of any person aggrieved by the decree. As to revising a probate decree which has been once affirmed on appeal, see Gale V. Nickerson, 144 Mass. 415. Rules for the guidance of the county probate courts are in various States left to the supreme judicial court (which is the supreme court of probate) ; and to such rules when made and promulgated each probate court must conform. Baker V. Blood, 128 Mass. 543. The jurisdic- tion of probate tribunals over claims against a solvent estate is not usually exclusive, but, at best, only concurrent with that of the common-law courts, and the creditor may elect to sue in another tribunal. Griggs' Estate, 11 Phila. (Penn.) 23. And see Wapple's Appeal, 74 Penn. .St. 100. On the whole, the doctrines which PART I.] INTRODUCTION. § 14 yet, important as must be the functions of these probate judges, public registry is the prominent feature of our county probate offices, if not of probate jurisdiction ; and for system and care in preserving the public records, the judge, as well as the regis- ter, may be held responsible in a certain ministerial capacity.' § 14. Modern Probate Jurisdiction in England; New^ Court of Probate Act. — This American system — so simple, so frugally administered, so well adapted to its ends, and withal so uniform of application in setthng estates of the dead, and so fully har- monizing with the arrangement of the temporal courts — appears to have gradually impressed Britons as superior to their own. In many branches of jurisprudence, doubtless, American legis- relate to probate jurisdiction should be studied in connection with the general subject of chancery powers. The Eng- lish decisions afford much light on this topic ; yet it should be borne in mind that probate jurisdiction in the United States differs greatly from the English ecclesiastical jurisdiction, as understood prior to the independence of the Amer- ican colonies. Our American probate system is more comprehensive than that of England, and rests more firmly upon separate state enactments and the judi- cial exposition of those state enact- ments. Probate law and practice as concerning the United States, must, in the main, be studied with reference to the judicial system of each particular State. See the authorities cited at great length, under such an arrangement, in U. S. Dig. 1st Series, Courts, II., and Annual Digests (1870 ei seq.), under the same general heading. Some of the more important points of practice will be incidentally noticed under appro- priate heads in the course of the present treatise. See also such practical works upon State probate law as those of Smith (Mass.), Amasa Redfield (New York), and Gaiy (Wisconsin, etc.). ' See e.g. Thompson v. Holt, 52 Ala. 491. The register, in some States, ap- pears capable of exercising some judi- cial functions of a routine character by way of deputy. Wickersham's Appeal, 75 Penn. St. 334; Thornton v. Moore, 61 Ala. 347. But, in general, the reg- ister's duties are ministerial or corre- sponding to those of a clerk of courts and custodian of records. He may be elected by the people, notwithstanding the power to appoint judicial officers is vested by the State constitution in the governor. Opinion of Justices, 117 Mass. 603. And it is within the con- stitutional authority of the legislature, by general law, to change the term of office, or to abolish the office itself, and transfer the powers and duties to an- other; as has sometimes been done, where, for instance, the office of register of "probate and insolvency " was sul> stituted for that of " register of pro- bate." lb. A judge of probate should not grant administration in an estate in which he is personally interested ; and local stat- utes generally provide for all contin- gencies by allowing the judges of dif- ferent counties to hold court for one another. Sigourney v. Sibley, 22 Pick. 507. Or by removal from the county to another court. Burks v. Bennett, 55 Tex. 237. § 14 EXECUTORS AND ADMINISTRATORS. [PART I. lators draw their inspiration from abroad ; but, for probate as well as matrimonial law, the breeze blows fresher from their own side of the Atlantic, and the United States may be regarded as preceptor to the mother country. By the English Statute of 20 & 21 Vict. c. yj (a.d. 1857), that jurisdiction which eccle- siastical courts formerly exercised in Great Britain has been transferred to a new tribunal known as the Court of Probate, and the authority of the ordinary, as well as of the old manorial and other peculiar courts, is entirely superseded. All causes relating to the grant and revocation of probate of wills and of administration within English jurisdiction are, by that enactment, \-ested in the new tribunal — a temporal court whose grants and orders have full effect throughout all England, and in relation to the personal estate in all parts of England of deceased per- sons ; and this court of probate is declared a court of record. All the powers formerly exercised by that supreme ecclesiastical forum, the prerogative court of the archbishop of Canterbury, have been thus transferred ; the new probate court has the power of citation, the power to examine witnesses and require their attendance as well as the production of deeds and documents ; the power to enforce its own orders and to issue execution for costs ; the power to order any instrument produced which pur- ports to be testamentary ; and the power to make rules and orders for regulating procedure. Its general practice is in ac- cordance with the former practice of the prerogative court ; the rules of evidence in common-law courts being applied in the trial of all questions of fact.' Appeal lies from this court of j)robate to the House of Lords : the privy council having formerly exercised the final jurisdiction in causes testamentary. Courts of equity are courts, as l:)efore, for the construction of wills ; and so formerly, in concurrence, were the ecclesiastical courts ; but the new court of probate is expressly forbidden to exercise such jurisdiction ; and no suits for legacies, nor for distribution of a residue, can be brought therein. Bonds, inventories, and accounts are rendered to the court of probate : the i:)lace for depositing wills is under its con- ' Act 20 & .11 Via. c. 77 ; Wms. Exrs. 7th Eng. ed. 290, 294, 312, 323, 344. 20 PART I.] INTRODUCTION. § I 5 trol ; and calendars are kept in its principal registry, district registries being established according to its direction. Applica- tion for probate or administration may be made to the court of probate ; but in small estates the judge of the county where the deceased had his last " fixed place of abode " shall have the con- tentious jurisdiction and authority.' The main purport of this enactment is to supplant the old ecclesiastical tribunals by a temporal court whose law and pro cedure shall be in harmony with the general judicial establish- ment of the realm ; to perfect a uniform system of probate registry ; and to encourage the practice of procuring credentials of authority wherever the estate of a deceased person has to be settled, at the same time increasing the facilities for so doing. The English probate practice, though simplified certainly by this later legislation, is still, however, more costly and burden- some apparently than that of most American States, and is less identified with county tribunals and the local neighborhood of the decedent.^ § 15. Conflict of Laws in Wills and Administration ; General Rule of Comity ; Authority of Representative is Local ; Rule as to Foreign Creditors. — The conflicting laws of various countries give rise to perplexing inquiries incidental to the settlement of an estate which must be solved on the principles of comity. As respects the estate of any deceased person, the general rule is that the law of the place of his last domicile, rather than the law of the place of his birth, or of the place where he happened to die, or of the place where the personal property was situated, " Act 20 & 21 Vict. c. 77, with amend- the costs of both parties should be paid ment, 21 & 22 Vict. c. 98; Wms. Exrs. out of the estate, it was found that the 298, 301, 315, 320, 573. personal estate would not suffice to pay "^ In a recent instance, appeal was the costs. A chancery suit was then taken from the Court of Probate to the instituted to determine whether costs House of Lords on an issue as to the could be enforced out of the real estate; person to whom probate should be but it was held that they could not, the granted. The House of Lords were Court of Probate having jurisdiction evenly divided, so that the order of the only over the personalty. Charter r'. Court of Probate remained unreversed. Charter, L. R. 7 H. L. 364 ; ib. 24 The case having been remitted to the W. R. 874. Court of Probate with directions that 21 § 15 F.XECUTORS AND ADMINISTRATORS. [PART I, shall prevail. And, if all circumstances favor, the sole, or at least the principal grant of letters ought to be taken out and the will proved, in the country, the State, and indeed the very county, where one was a domiciled inhabitant at the time of his death. But local sovereign law does not always give way to the law of the last domicile, where assets belonging to the deceased per- son's estate lie within the local sovereign jurisdiction, and strict compliance with the foreign law would prove detrimental to the local interests. ( I ) It is a principle of English and American law that letters testamentary or of administration granted in the place of last domicile of the deceased confer no authority as such outside the jurisdiction of the State or country in which they were origi- nally issued ; and if the representative is permitted to collect effects, or to sue for assets, in an external jurisdiction, it is be- cause of a favor extended to him, and not his right ; the usual requirement being rather, as local laws frequently provide, that probate of the will (if there be one) shall be made in the juris- diction thus invaded ; and often that there shall be a local quali- fication of some sort and local letters taken out, if not by the principal executor or administrator, by some local person as his attorney or substitute. The due probate of a will in the origi- nal jurisdiction is, to be sure, often respected by the law of other States or countries, as in permitting evidence by exempli- fied copy from the original probate record to suffice for proof.' But as respects mere administration on an assumed intestacy, the fact of local assets, or of some local necessity for conferring a local probate appointment, may serve for invoking the local jurisdiction. Ancillary probate authority will be granted in one State or country under such circumstances, because principal letters testamentary or of administration have been granted elsewhere ; and yet the domestic court docs not necessarily de- fer its own appointment until the will of a non-resident testator has been proved in the State or country of his last domicile, nor, in case of the decedent's supposed intestacy, wait until ad- ' Price V. Dewhurst, 4 M. & Cr. 76, Wood v. Matthews, 73 Mo. 477 ; She- 80; Campbell v. Sheldon, 13 Pick. 8; gogg z/. Perkins, 34 Ark. 117. Campbell v. Wallace, 10 Gray, 162; 22 PART I.] INTRODUCTION. § I 5 ministration has been granted in such State or country ; but the practical convenience of creditors and citizens in its own jurisdiction will be steadily regarded, provided there be assets at hand whose owner has deceased.' In short, the title of the executor or administrator, derived from the grant of administration in the country of the domicile of the deceased, does not extend, as a matter of right, beyond the ter- ritory of the government which grants it and the personal or movable property therein ; as to movables or personal property elsewhere, the title, if acknowledged, is acknowledged only from comity ; and comity yields to the local obligation of protecting domestic rights as against foreign.^ (2) With regard to the administration of foreign assets, the prevailing American doctrine favors the law of the State or country where the assets are situated, over that of the last dom- icile, or at least equally to it, so far as regards creditors of the estate ; it being a rule of public convenience, that property of the deceased within reach of the domestic process shall be applied to the liquidation of debts in consonance with domestic policy. 3 For, it should be observed, the application of one's property to the payment of debts is fairly regulated in every State or country according to a public sense of justice, which overrides all external regulations or legal preferences ; where ' Wms. Exrs. 362, 430 ; Tyler v. Bell, them into the State where action is 2 M. & Cr. 89 ; 2 Kent Com. 434. And brought, the prohibition of the common see Bowdoin v. Holland, 10 Cush. 17; law prevails. See Webb, Matter of, 18 Doolittle V. Lewis, 7 Johns. Ch. 45; N. Y. Supr. 124. On a claim assigned Willard v. Hammond, 21 N. H. 385 ; to the plaintiff by a foreign executor, Sanders v. Barrett, 8 Ired. Eq. 246 ; an action is allowable in a State where Story Confl. Laws, §§ 512, 513, and there has been no probate or admin- numerous cases cited. istration. Campbell v. Brown, 64 ^ Story Confl. Laws, § 512 ; Moore v. Iowa, 425. Fields, 42 Penn. St. 472. Foreign ^Harrison v. Sterry, 5 Cranch, 299; executors and administrators cannot Smith z^. Union Bank, 5 Pet. 523 ; Hol- merely by virtue of their offices, either comb v. Phelps, 16 Conn. 127; Story prosecute or defend actions in the Confl. Laws, §§ 480, 48 1, 524. As to courts of other States. In some in- the English doctrine cf. Wilson v. Lady stances the disability has been removed Dunsany, 18 Beav. 293; Carron Iron by statute ; but where that is not the Co. v. Maclaren, 4 H. L. Cas. 455 ; case, and the representative has not Goodall v. Marshall, 11 N. H. 88. removed the assets or some portion of 23 § l6 EXECUTORS AND ADMINISTRA'm KS. [fAKT i. creditors' rights are to be enforced, there the law of the forum may well be invoked. A State or country, moreover, inclines to uphold its own priorities as to taxes and. other public claims ; though, as among general claimants, in case the estate, as a whole, proves insufficient to pay them in full, comity seeks apparently, in modern times, to so adjust the estate in different jurisdictions as to make a pv rata settlement of claims as a whole, and not expend all in paying claims of domestic citizens to the prejudice of foreign creditors.' The tendency of modern legislation in this last respect, which we gather from local stat- utes, is by no means selfish ; for it is yielding much not to appro- priate local assets to the satisfaction first of local creditors. § 1 6. Conflict of Laws ; Comity Favors as to Payment of Leg- acies and Distribution. — (3) But when it comes to the payment of legacies or the general distribution of the residue of one's personal estate, after debts and claims are satisfied, comity highly respects the law of the last domicile of the deceased.^" For all such dispositions of the surplus being at the sole discretion of a decedent, either as manifested by his last will and testament, if he has left one, or as defined under the will drawn up for him by the legislature of his own last domicile, so to speak, which every intestate may be presumed to have accepted in lieu of other express testamentary provisions on his own part, it is ' Mitchell V. Cox, 22 Ga. 32 ; Nor- of the deceased, there and elsewhere, mand v. Grognard, 14 N. J. L. 425. may receive each an equal share in pro- Some countries and States make various portion to their respective debts. Davis classes, preferring debts on judgments v. Estey, 8 Pick. 475 ; Mass. Gen. Stats, to simple contract debts ; others accord c. loi, §§ 40, 41. no such preference and hence abide as ^ Bruce v. Bruce, 6 Bro. P. C. 566; to local assets by their own system, Crispin v. Doglioni, 3 Sw. & Tr. 98 ; though the deceased were domiciled s. c. L. R. i H. L. 301 ; Holmes v. abroad. Under the provisions of the Remsen, 4 John. Ch. 460 ; Ennis v. MassachxLsetts statute citizens cannot Smith, 14 How. (U. S.) 400 ; Wms. be put to the inconvenience of proving Exrs. 151 5, and Perkins's Am. note; their claims abroad when there are local Jennison v. Hapgood, 10 Pick. 77; assets; nor, on the other hand, can the Crum v. Bliss, 47 Conn. 592; Russell whole estate found there be appropri- v. Madden, 95 111. 485 ; Grote v. Pace, ated to domestic creditors; but the estate 71 Ga. 231 ; 40 N. J. Eq. 14; Apple's found there is to be so far disposed of. Estate, 66 Cal. 432 ; 96 N. C. 139. as far as practicable, that all creditors 24 PART T.] INTRonrCTIDX. S l6 but just to give that express or implied will due effect in every country where the estate of the deceased may happen to be sit- uated. Transmission, therefore, to legatees and distributees, of a decedent's personal estate, is governed exclusively by the law of the decedent's actual domicile at the time of his death, no matter what was the country of his birth or his former domicile, or the actual situs of such property at the time of his death." On the whole, it must be pronounced advantageous as well as just for each independent sovereignty to respect a decedent's disposition of his own surplus of personal estate, and to permit one rule to regulate its beneficial distribution ; and no prejudice to the rights of the sovereignty or its citizens follows the pur- suance of such a course.^ It has been observed, however, that the local law does not, in such instances, give way to the law of the foreign country ; but rather adopts, as part of its own law, the doctrine that dis- tribution of the surplus of personal property shall be according to the law of the owner's last domicile.^ The law of the last domicile, as it stands at the time of an intestate's death, is taken by the local courts ; with a liberal discretion, however, as to the true interpretation of that law, and a disposition to disregard retrospective changes therein tending to thwart an intestate's genuine purpose.'' And the special rights of a widow, too, by way of allowance and the like, should be de- " Mr. Justice Story declares that this Doglioni, 3 Sw. & Tr. 98 ; s. c. L. R. universal doctrine was formerly much i H. L. 301. See Goodman's Trusts, contested. Story Confl. Laws, §481. /« re, L. R. 17 Ch. D. 266, reversing L. ^Lord Hardwicke observes in Thorne R. 14 Ch. D. 619. But confiscation V. Watkins, 2 Ves. Sen. 37, that if the and other laws passed by the govern- rule of distribution were other\vise, it ment of last domicile after the death of would destroy the credit of the public the person cannot on any just principle funds ; for no foreigner would put into of comity be respected in other jurisdic- them if the property was to be distrib- tions ; the law at the time of death fur- uted differently from the laws of his nishing the true criterion. Lynch 7'. own country. Paraguay, L. R. 2 P. & D. 268. The rule of the text apphes as to the ^ Doc v. Vardill, 5 B. & C. 452 ; ascertainment of the person; and laws Wms. Exrs. 1516; Lynch v. Paraguay, of local wAw as to primogeniture yield, L. R. 2 P. & D. 268; Wright v. Phil- where personal property is concerned, lips, 56 Ala. 69; 76 Ala. 441. to the law of the place of last domicile. * lb. Story Confl. Laws, § 481 ; Crispin v. 25 § 17 EXECUTORS AND ADMINISTRATORS. [PAKT 1. termined by the law in force at the death of her husband in the place of his last domicile.' § 1 7. Conflict of Laws ; Rule as to Execution and Validity of "Will. — (4) Furthermore, and from similar considerations, the law of the place of last domicile regulates as to the execution and validity of wills of personal property. Whenever local as- sets may be found, the will of a deceased person, in order to operate thereupon, must have conformed to the law in force where he had his last domicile, and must be there entitled to probate."^ And the law of one's last domicile not only decides what constitutes one's last will, but whether one died testate in point of fact or intestate ; ^ so that execution, with all the for- malities required in the country where the personalty is situated, cannot of itself give one's instrument the force of a valid testa- mentary disposition. All questions as to the forms and solem- nities attending a due execution are therefore to be referred to the place of last domicile.^ As a corollary of our main proposition, it may be stated that, if one makes a will, valid by the law of the place where he is domiciled, and afterwards changes his domicile to a place by whose laws such a will is invalid, and there dies, the will can- not operate.5 Nevertheless, should he move back from the lat- ' Leib V. Wilson, 51 Ind. 550; Mitch- laws are to be proved as facts, and the ell V. Word, 64 Ga. 208; Taylor v. Pet- question of their existence and inter- tus, 52 Ala. 287. pretation devolves in a measure upon *Craigie v. Lewin, 3 Curt. 435 ; Hare the local tribunal, according to the cir- V. Nasmyth, 2 Add. 25 ; Crispin v. cumstances of the case and the proof Doglioni, 3 Sw. & Tr. 96 ; s. c. L. R. accessible. lb.; Wms. Exrs. 372, and I H. L. 301; Grattan v. Appleton, 3 Perkins's note; Story Eq. Jur. § 1068. Story, 755; 4 Kent Com. 513, 514; '' Schultz w. Dambmann, 3 Bradf. Sur. Harrison t/. Nixon, 9 Pet. 483 ; Crofton 379; Story Confl. Laws, § 465. The V. Ilsley, 4 Greenl. 139; Story Confl. authority of the executor named in the Laws, §§ 465-468 ; Stanley z/. Bernes, 3 will must be determined according to Hagg. 374. the law of the testator's last domicile. ^Moultrie v. Hunt, 23 N. Y. 394. Laneuville v. Anderson, 2 Sw. & Tr. But as to regarding foreign rules of 24; Oliphant, in 7e, 30 L. J. N. S. evidence in establishing a will, some Prob. 82. qualification of the rule may be need- ' Dupuy v. Wurtz, 53 N. Y. 556 ; ful. See Story Confl. Laws, §§ 260, Story Confl. Laws, § 473, citing J. Voet 634, 636, and cases cited. Foreign and other continental authorities. 26 PART I.] INTRODUCTION. § 1 9 ter domicile to the former before his death, with his resumption of the domicile where the will was made, the will itself, as it is considered, revives also.' And it would appear that, apart from statute, the validity and effect of a will of personal property must be determined according to the law in force at the time the will becomes operative : that is to say, when the person dies who made that will.'' § 1 8. Conflict of La-ws ; Rule as to Accountability of Executor or Administrator. — (5) In general, the laws of the State or country in which an appointment, principal or ancillary, is made, govern as to the accountability of the executor or administrator for assets therein received, and the faithful or unfaithful dis- charge of his duties.3 § 1 9. Conflict of Laws ; Personal and Real Estate contrasted ; Situs prevails as to Real. — (6) Administration and wills, how- ever, have reference thus to movables or personal property. As concerns the transmission of real estate, and rights and formalities of title thereto, the law of local situation in general prevails instead. Hence, the rule that a will of real estate or of fixed and immovable property must be governed by the law of local situation, and can only operate so far as it conforms to that law."* This local law applies as to formal characteristics * Story Confl. Laws, § 473. Mon. 582. As to the effect of a for- ^ Trotter v. Trotter, 4 Bligh N. S. eign appointment ?,ee post, Part II. 4502 ; Laneuville v. Anderson, 3 Sw. & '' Story Confl. Laws, § 474 ; Bovey v. Tr. 24; Harrison v. Nixon, 9 Pet. 483.; Smith, i Vern. 85; 4 Kent Com. 513; De Peyster?/. Clendining, 9 Paige, 295; Kerr v. Moon, 9 Wheat. 565 ; Potter 7/. Story Confl. Laws, § 479 ; Lawrence v. Titcomb, 22 Me. 303 ; Robertson v. I-lebbard, 1 Bradf. Sur. 252; Cushing Pickrell, 109 U. S. 608; 38 N. J. Eq. V. Aylwin, 12 Met. 169. But see Kurtz 516; Crolly v. Clark, 20 Fla. 849. In V. Saylor, 20 Penn. St. 205, that capac- the title of a mortgage upon land the ity to make a will is determined by the local administrator has been preferred law as it existed when the will was to one appointed in the State where made. And see post as to statute the mortgagee died. Reynolds v. changes, § 20. McMullen, 55 Mich. 568. Cf. 36 Kan. 3 Partington z'. Attorney General, L. 271; Clark z/. Blackington, no Mass. R. 8 H. L. 100, 119; Kennedy v. Ken- 369. The local court claims the right nedy, 8 Ala. 391 ; Fay v. Plaven, 3 to construe a devise of local lands. Met. 109; Lawrence v. Elmendorf, 5 McCartney z/. Osburn, 1 18 111. 403. Barb. 73; Marion v. Titsworth, 18 B. 27 § 20 EXECUTORS AND ADMINISTRATORS. [PART 1. of a will, mode of execution, capacity or incapacity and formal revocation.' And, on the other hand, if there be no will thus operative to transmit the title, the descent of such real estate or immovable property must be in accordance with the law of that local jurisdiction. The court of one State or sovereignty has no inherent power to order lands to be sold in another State or sovereignty or to control the title thereto.^ The law of local situation may determine the character of property in this connection, as being real or personal. ^ Never- theless, comity respects the law of testamentary domicile so far as to enable property to go in the one character or the other, as the testator obviously intended.'' Very embarrassing ques- tions may arise where real and personal estate are so combined in the same will that the laws of different sovereign jurisdic- tions must be applied.^ § 20. Conflict of Laws ; General Rules varied by Treaty, Statute, etc. — (7) The general rules of comity which we have set out may be found varied by treaty stipulations or by pro- visions otherwise so incorporated with the law of the place of last domicile as to introduce a different principle for the case in hand from those above announced. The law of last domicile for instance is to be construed with all its appropriate and just qualifications consistent with the equal dignity of nations. Thus, if an English-born subject dies domiciled in Belgium, and the Belgian law has prescribed a rule of succession for such persons, differing from that of natural-born subjects of Belgium, English courts will give that exception effect if beneficial, even though its consequence be to establish a testamentary disposi- tion, valid in form according to the laws of England, but invalid according to the general law of Belgium ; ^ and on the other ' Evansville Ice Co. I/. Windsor, 148 Brodie w. Barry, 2 Ves. & B. 130, /^r Ind. 682. Sir Wm. Grant. *Boyce v. Grundy, 9 Pet. 275. ^ Collier v. Rivaz, 2 Curt. 855 ; Wms. 'Story Confl. Laws, § 447; Chap- Exrs. 368. And see Maltass?/. Maltass, man v. Robertson, 6 Paige, 630. 3 Curt. 231. The foreign rule in these *Enohin 7f. Wylie, 10 H. L. Cas. 1 ; instances prescribed in effect for Eng- Jerningham r. Herbert, 4 Russ. 388. lish-born subjects domiciled there that 'Story Confl. Laws, §§ 485-489; 28 PART I.] INTRODUCTION. § 20 hand a sovereignty may correct, where opportunity offers, the injustice attempted by another sovereignty towards its own subjects. While, again, the general rule of comity refers, as we have seen, the validity of a last will of personal property and ques- tions of due execution, to the place of last domicile, various modern statutes show more indulgence to the testator, who otherwise might inadvertently by changing his domicile after once making a perfectly valid will render that will inoperative and die literally intestate in consequence." Thus, the P2nglish statute 24 & 25 Vict. c. 114, provides that wills made by Brit- ish subjects out of the kingdom shall be admitted to probate, if made according to the law of the place where made, or where the testator was domiciled or had his domicile of origin.^ So in Massachusetts and some other American States, it is now provided that a will made out of the State, which is valid ac- cording to the laws of the State or the country in which it is made, may be proved and allowed with the same effect as if executed according to the law of the State.^ In further extension of the general right of testamentary dis- position, the Enghsh statute, 24 & 25 Vict. c. 114, enacts that wills made by British subjects within the United Kingdom (what- ever the domicile of such person at the time of such execution or at the date of decease) shall, as regards personal estate, be considered as well executed and admissible to probate, if exe- cuted according to the forms in force for the time being at the place of execution ; and that no will or other testamentary dis- position shall be held to have become invalidated or its construc- tion altered by reason of any subsequent change of the testator's the succession to personal estate should this statute. Bayley v. Bailey, 5 Cash, be governed by English law. 245. And so does a nuncupative will, ' See Dupuy v. Wurtz, 53 N. Y. 556; valid where executed, though invalid if Story Confl. Laws, § 473; supra, § 17. executed in Massachusetts. Slocomb ^ This statute operates upon the z/. Slocomb, 13 Allen, 38. And see in wills of British subjects dying after Vermont as to a will of personalty duly August 6, 1861. Wms. Exrs. 374. probated where one died and left assets, 5 Mass. Pub. Stats, c. 127, § 5. A though the domicile was Vermont, will thus executed, which revokes a Ives v. Salisbury, 56 Vt. 565. former will, comes within protection of 29 § 21 EXECUTORS AND ADMINISTRATORS. [PART I, domicile.' So, in some parts of the United States, it is provided by local statute that a will made and executed in conformity with the law existing at the time of its execution shall be effectual." The legislation of certain States, moreover, in derogation of general rules, expressly or by apparent intendment, permits a will which has been duly executed in another State or country to operate, if effectual at all, upon real estate as well as personal, within the jurisdiction of local situs. '^ §21. Last Domicile : what this is ; Residence, Inhabitancy. — Domicile is a word not easily defined with precision. It would appear that the Roman and civil jurisprudence laid stress upon one's place of business as well as his domestic residence ; but the common law has fixed the domicile mainly from regard to one's home and the place where he exercises political rights. Domicile may be viewed as national or domestic : the one hav- ing reference to the person's country or sovereignty ; the other to a political subdivision thereof, such as the county. It is the latter which determines the taking of jurisdiction as between probate county courts ; but the former, when international rules are under discussion.'* The bias of the courts is found to differ in these two classes of cases ; for, in the latter class, the domes- tic forum of last resort sits as umpire, while in the other there is no umpire, and nothing is yielded except it be in the spirit of comity. Moreover, a change of domicile in the one instance involves conformity to a new and independent system of laws, while in the former it does not. In the United States, the law of domicile develops still greater peq3lexities ; for there is the national domicile, which, however, is little concerned with the estates of deceased persons ; the state domicile, which, for most practical purposes, is sovereign in this connection ; and the do- mestic or county domicile. Domicile may be regarded, in our common-law sense, as the place where one has his true, fixed, and permanent home and 'Act 24 & 25 Vict. c. 114, §§2, 3; 3 gee Mass. Pub. Stats, c. 92, §§ 4-15; Wms. Exrs. 374; Reid, in re, L. R. i Shannon v. Shannon, iii Mass. 331. P. & D. 74. ■♦ 2 Kent Com. 449 ; Story Confl. ^ Mass. Pub. Stats, c. 127, § 4. Laws, §§ 39 et seq., 42. 30 PART I.] INTRODUCTION. § 21 principal establishment, and to which, whenever he is absent, he has the intention of returning.' And one's last domicile — the prime fact upon which turn those legal issues involved in the administration and settlement of his estate — is taken to be his fixed and permanent home at the time of his decease. Every one has a domicile ; and the elements which establish that domi- cile are more easily conceived by the common mind than reduced to a close legal analysis. " No exact definition can be given of domicile," observes Shaw, C. J.; "it depends upon no one fact or combination of circumstances, but, from the whole taken together, it must be determined in each particular case."^ Dom- icile is impressed upon the new-born child by birth, and upon the wife by her marriage ; the domicile of the child follows that of its parents, and the domicile of the wife follows that of her husband. Any person siii jmis, however, may make a bona fide change of domicile at any time. Nevertheless, one's origi- nal domicile continues until another is acquired with a genuine full and free intention of making it one's permanent home.^ Legal residence or inhabitancy is often used in our local leg- islation as though synonymous with domicile ; but these terms are not, strictly speaking, convertible. One may unquestion- ably be absent from his domicile ; and he may reside or inhabit elsewhere for sundry reasons of health, comfort, business, recre- ation, temporary convenience, and the like, without abandoning his former domicile ; for the law, especially in considering the national or sovereign domicile, favors the presumption of an in- tended continuance of the same domicile, and, even if the domi- cile has changed, treats it as revived on an intention to return. But a residence or inhabitancy, originally temporary and in- tended for a limited period, may afterwards become general and unlimited in its character. In all such connections the inten- tion of the person must be studied throughout in the light of consecutive events. Such intention is manifested from conduct and circumstances, and not from words alone ; intention may change ; and when the two things concur, the fact of a changed ' Bouv. Diet. " Domicile." Oilman, 52 Me. 165 ; Story Confl. Laws, ^ Thorndike z/. Boston, i Met. 245. §45; Wms. Exrs. 1517, and Perkins's ^ Bouv. Diet. " Domieile " ; Oilman v. note. 31 § 22 EXECUTORS AND ADMINISTRATORS, [PART I. residence, and the intention of remaining there, or at least of never returning to the former domicile, the domicile is legally changed. This change must, however, have occurred from one's choice and voluntarily." Domicile of origin is the first and fundamental domicile ; though perhaps as against the domicile of choice, more stren- uously insisted upon in English than in American practice, and where the conflict is international than where it is interstate. One may change his domicile of origin by choosing and fixing his domicile elsewhere, with the intention of there continuing and never returning. But while American cases appear to favor a change of domicile according to one's choice, as long as he lives, if it be merely from State to State, or from county to county, the English authorities appear to keep the domicile of origin strongly in view for doubtful emergencies, and to hold that the abandonment of an acquired domicile ipso facto restores the domicile of origin. The application of such a rule, however, appears chiefly confined to cases of natural-born Englishmen, breaking up establishments in a foreign land.^ § 22. Last Domicile; applied to the Subject of Administration. — Were the question of one's domicile raised only while he was living, it would be comparatively easy for his intention to be established ; and in portions of the United States, where a party in interest is allowed to give his own testimony, one's simple statement of his purpose, if not inconsistent with the proven facts, will often remove all doubt on such an issue ; as \Vhere, ' Bouv. Diet. "Domicile"; Udny 7^. from the fact of a man fixing voluntarily Udny, L. R. i H. L. Sc. 458; Story his sole or chief residence in a particu- Confl. Laws, § 45 ; Wilbraham v. Lud- lar place, with an intention of continu- low, 99 Mass. 587 ; Krone v. Cooper, ing to reside there "for an unlimited 43 Ark. 547 ; Huldane v. Eckford, L. time." L. R. i H. L. Sc. 458. And R. 8 Eq. 640. See Colt, J., in Ilallet see King v. Foxwell, L. R. 3 Ch. D. V. Bassett, 100 Mass. 170, that change 518. of domicile does not depend so much - See expressions of Lord Chelmsford, upon the intention to remain in the new Lord Westbury, and others in Udny -■. place for a definite or indefinite period, Udny, L. R. i H. L. Sc. App. 441; a.s upon its being without an intention Wms. Exrs. 1521, note; King v. Fox- to return. But Ix)rd Wesll^ury speaks well, I,. R. 3 Ch. D. 51S, per Jessel, of the inference which the law derives M. R. 32 PART 1.] INTRODUCTION. § 23 for instance, the case relates to taxation. But death leaves the question of last domicile to be chiefly inferred from extraneous facts and circumstances ; each probate tribunal, moreover, which is asked to take jurisdiction upon a dead person's estate, natu- rally inclines to do so, and to construe all legal doubts in its own favor. In such a controversy, the presumption that one domi- cile shall prevail until another has been bona fide and voluntarily acquired in its stead, should be allowed great weight ; and, more especially, if to concede a change thereof is to concede that the person intentionally expatriated himself and fixed his residence in another country, where opposing systems of law must of necessity define the rights of succession. For it is a general maxim that, though one may have two domiciles for certain pur- poses, he can have only one for the purpose of succession.' § 23. Last Domicile ; Death while on Transit, etc. — The rule of last domicile disregards the iocus of death, if the death oc- curred on transit, or otherwise at a distance from one's home. Thus, in case one dies while travelling abroad, the foreign coun- try should take no jurisdiction, unless it be ancillary merely and founded upon the possession of property which he has there.^ In this country it has been held that, where a citizen removed from one State, with his family, to settle in another distant one, and died on the route, his family continuing the journey after- ward, with the property belonging to the estate, letters of ad- ministration might well be granted in the place of destination, or where the family located ; ^ yet, according to the more rea- sonable opinion, unless the person removing had reached his in- tended new domicile, so that the fact of a changed residence and the intention of changing concurred, the status of distribu- tion and of testacy should be rather according to the law of the domicile he left, as the true locus of a last domicile.'* ' Somerville ;/. Somerville, 5 Ves. ^ Burnett v. Meadows, 7 B. Mon. 277. 786; Crookenden 7'. Fuller, i Sw. &Tr. And see George v. Watson, 19 Tex. 441; Green v. Green, 11 Pick. 410; 354; Briggs i^. Rochester, 16 Gray, 337. Wms. Exrs. 1518, and Perkins's note; '•State v. Hallett, 8 Ala. 159, per 2 Kent Com. 431. Ormond, J. Perhaps, if the domicile ^ See Aspinwall v. Queen's Proctor, left were an acquired domicile, the dom- 2 Curt. 241. icile of origin would revive. Thisisthe 3 II § 24 EXECUTORS AND ADMINISTRATORS. [PART I. Questions of this character are, however, seldom raised with reference to administration ; and the courts of a State or coun- try do not appear unwilhng to maintain the domestic sovereign jurisdiction to grant letters upon the estate of a decedent where it appears convenient to do so, provided some claim may be set up that the last domicile or residence was within such limits ; or, if a jurisdiction can be founded upon the locality of as- sets.' Under our statutes relating to administration, the word " domicile ■' is not alone employed; but local jurisdiction may be determined, to use the express words of various local enact- ments, by the last " residence " of the intestate, if he have one (or the place where he was last an "inhabitant"); or, if he have no such residence, etc., then by the place of his death.^ § 2^a. Local Appointment to Prosecute a Statutory Action for Tort Causing Death. — It is a question upon which authorities somewhat differ as yet, as to whether the court of a county where- in a non-resident of the State is killed, may appoint an adminis- trator to prosecute a statutory action for the injury causing such death, when the decedent left no other property in the State but such right of action,^ § 24. Locality of Personalty or Bona Notabilia may confer Jurisdiction, aside from Domicile ; Questions of Double Jurisdic- tion. — Last domicile affords the suitable principal forum for procuring credentials of authority and settling the estate of a deceased person. But inasmuch as the collection of credits and effects, the payment of debts, the distribution of the residue, English theory. See Lyall v. Paton, 25 where the intestate had no residence was L. J. Ch. 746; Udny v. Udny, L. R. i to be determined by the place of his H. L. Sc. 458. In Olson's Will, 63 death or the county wherein his e.state Iowa, 145, a man, after roaming, was or the greatest part thereof might be. held to have settled down where he ^ This right is lately upheld by a died. majority of the court in Missouri Pa- ' As to jurisdiction founded upon cific R. v. Bradley, 51 Neb. 596. See locality of property, see next section. authorities fro and con amply cited ib. ; ' See Burnett v. Meadows, 7 B. Mon. 6S Mich. 33; 36 Conn. 213; 102 Mass. 277,278. Under the Kentucky statute 186; 53 111. 224, etc.; (W//;v7 29 Kan. referred to in this case, administration 420; 26 Ind. 477. 34 PART I.] INTKODUCTION. § 24 and the final settlement of the estate, are of universal conven- ience, the courts of one country or State do not feel compelled to wait until those of another have acted, nor to submit domestic claims to foreign jurisdictions; but, aside from the deceased person's last domicile, and a principal probate appointment, a competent local and ancillary appointment is procurable, on the suggestion that property requiring administration lies within the local jurisdiction. In other words, locality of personalty be- longing to the estate of a deceased person may confer a local probate jurisdiction regardless of the consideration of his last domicile. This general doctrine is amply recognized in the statutes of England and the several United States which relate to probate jurisdiction." So, too, within the same national or sovereign jurisdiction, the locality of personal property may afford in various instances occasion for probate jurisdiction in two or more local courts ; as where one dies intestate, being domiciled abroad, and leaves ef- fects in the county of A and the county of B.^ In England, prior to the enactment of statute 20 & 21 Vict. c. ^j,^ questions of conflicting jurisdiction might arise where one died leaving bona notabilia, or notable goods, of jC'^ value or more, in differ- ent dioceses."* But a convenient rule, sanctioned by statute in some American States, is that when a case lies within the juris- diction of the probate court in two or more counties, the court which first takes cognizance thereof by the commencement of proceedings shall retain the same ; and administration first granted shall extend to all the estate of the deceased in the State, and exclude the jurisdiction of the probate court of every other county.5 Debt's due the deceased may be deemed bona notabilia, i.e., ' See posi, Part II., as to foreign and in H. L. C. i, which are disapproved, ancillary appointments. " The propo- Ewing v. Ewing, 9 App. Cas. 34, 39. sition, that the courts of that country ^ lb. only in which a testator dies domiciled ^ i.e., Probate Court act. See supra, can administer his personal estate, is § 14. without support from any authority," ■• Wms. Exrs. 289, 290. except certain dicta of Lord West bury ' Mass. Gen. Stats, c. 1 17, § 3- 35 § 24 EXECUTORS AND ADMINISTRATORS. [PART I. personalty suitable for conferring a local probate jurisdiction.' And the rule is that judgments are bona notabilia where the record is, specialties where they happen to lie, and simple con- tract debts where the debtor (not the creditor) resides, and where they can be sued upon.- Interest in insurance money is assets, conferring a local jurisdiction to appoint.'' So is any chose in action or money right, this being personal j^roperty and assets. •» Modern kinds of incorporeal j^ersonal property may furnish disputes as to their locahty for such a purpose, which the courts have not as yet clearly settled. But where the personal proj^crty consists of a debt owing upon some security or document of title, which of itself is commonly transferable as possessing a mercantile value, the local situation of such security or docu- ment of title would, in various instances, be well held to confer a probate jurisdiction, as of bona notabilia, apart from the oblig- or's or debtor's place of residence ; as where, for instance, a sa\ings-bank book, coupcjn-bond, certificate of stock, or perhaps a jiromissory note were left lying in another jurisdiction. 5 How- ever this may be (and the inclination of each State or country is to uphold its own jurisdiction), a jurisdiction founded upon the place where the obligation is enforceable is still sustained, whether as concurrent or exclusive ; thus shares of stock are held bona notabilia in the county and State where the stock ' A lioiia Jidc claim of tlie deceased ^ Butson, Ke, 9 L. R. Ir. 21 ; Holyoke will sustain the jurisdiction, even though v. Mutual Life Ins. Co., 29 N. Y. Supr. it should appear after the letters were 75; Wyman v. Halstead, 109 U. S.654. issued that the claim was invalid. Sul- Cf. 100 Tenn. 177. livan V. Fosdick, 17 N. V. Supr. 123. * Murphy ?'. Creighton, 45 Iowa, 179; '^ Attorney General r'. Bouwens, 4 M. P"ox v. Carr, 16 Hun (N. V.) 434. & W. 191 ; Vaughan T'. Barrett, 5 Vt. ' Beers -■. Shannon, 73 N. V. 292. 2,2,Z', I'inney v. McGregory, 102 Mass. As to negotiable notes, see, also, Good- 186, /f;- Gray, J. Negotiable notes are lett z'. Anderson, 7 Lea, 286; but cf. hotia nolahilia in the jurisdiction of last Owen v. Miller, 10 Ohio St. 136. The domicile when left there at the time of rule above cited in the text is a very old the decedent holder's death. Goodlett one that specialty debts are bona nota- 7: Anderson, 7 Lea, 286. As to United /i/titi where the bond or other specialty States Ixjnds deposited for safe keeping is ; the distinction made being that debt by a citizen of another State, upon a upon .simple contract follows the person special certificate of deposit transferable of the debtor. Cro. Eliz. 472; Swinb. by indorsement, see Shakespeare 7: pt. 6, § ii. Fidelity Insurance Co., f)7 Penn. St. 17-5. PART I.] iNrKoni'inioN. § 25 books are kept and dividends paid.' Cash, furniture, and cor- poreal chattels are of course bo)ia notabilia where they lie.- If an assignment be given as collateral security for a debt of the assignor, the debt is the asset, and the assignment only in- cident. If an assignment be absolute, it should be regarded only as a muniment of title which follows the situs of the specialty or other thing assigned. And so, as it is said, of a cor- poreal chattel ; a bill of sale transferring that chattel follows the situs of the chattel as the thing happens to lie.^ Wherever the local statute lias i)rescribed a jurisdiction with- out limitation of value, articles or money rights of trifling con- sequence will uphold the local part of administration.-* But it is assumed that the thing was left or found in the local juris- diction so as to call bona JidcU^x the grant, and has not been brought from elsewhere for the purjjose of giving falsely a col- orable and pretended jurisdiction to the local court. 5 § 25. The Subject continued; whether Assets brought in may confer Jurisdiction. — The rule of strict Construction would seem' to refer the locality of personalty in such cases to the sit/is as existing at the time o{ the deceased owner's or creditor's dcntli. Such an interpretation, however, is too narrow to meet the practical needs of a probate appointment for local purposes in modern times ; an appointment which perhaps may not be in- voked for years after one's death. Hence, for the welfare of creditors and other interested parties, this right of local appoint- ment is more liberally asserted in many of the courts, and local jurisdiction is upheld on the ground that bona notabilia exist when letters are applied for, notwithstanding the goods were ' Arnold v. Arnold, 62 Ga. 627 ; to confer a jurisdiction. 2 Demarest Emery v. Hildreth, 2 Gray, 231 ; Owen (N. Y.) 265. V. Miller, 10 Ohio St. 136; cf. Goodlett ^ Holyoke v. Mutual Life Ins. Co., V. Anderson, 7 Lea, 286. And see, as 29 N. Y. Supr. 75, 77, per Gilbert, J. to a mortgage note where the note and Hee post. Part II., as to foreign and an- its security are enforced in a certain ciliary appointments, jurisdiction, Clark v. Blackington, iio " Emery v. Hildreth, 2 Gray, 231; Mass. 369, 373. As to stock, see Rus- Wilkins v. Ellett, loS U. S. 256. sell V. Hooker, 67 Conn. 24. ^ Wells t/. WelLs, 35 Miss. 638 ; Saurez ^ A folding-chair is property sufficient v. Mayor, 2 Sandf. Ch. 173. 37 § 2$a p:xecutoks and admixistkators. [part i. brought into the country, or the debtor removed thither subse- quently to the death of the owner or creditor ; ' and this seems the better opinion,- unless such bringing in or removal was in bad faith, and with the intention of conferring improperly a col- orable probate jurisdiction. According to the modern current of opinion, moreover, letters of administration issued from a court of competent authority upon the estate of a deceased per- son non-resident, will be presumed in all collateral proceedings to have been properly granted.^ § 25^?. The Subject continued; Suits for Assets owing by a Corporation. — "In the growth of this country," observes a re- cent case, "and the expansions and ramifications of business, and the free commercial intercourse between the States of the Union, it has come to pass that large numbers of life and fire insurance companies and other corporations, established with the accumulated capital and wealth of the richer parts of the country, seek business and contracts in distant States which 'open a large and profitable field. The inconveniences and hard- ships resulting from the necessity on the part of creditors, of going to distant places to bring suits on poUcies and contracts, and from the additional requirement, in case of death, of taking out letters testamentary or of administration at the original domicile of the corporation debtor, in order to sue, has led to the enactment in many States of statutes which enable resident ' See, in Pinney -'. McGregory, 102 assets with him, may, it seems, be held Mass. 186, the learned opinion pro- to account in chancery as a trustee for nounced by Gray, J.; Sir John Nicholl those in interest. Dilliard v. Harris, 2 in Scarth v. Bishop of I^ndon, i Hagg. Tenn. Ch. 196. Ecc. 636. The debtor having volun- ^ Hobson v. Ewan, 62 111. 146; Ap- tarily come to another State for a tem- pointment, Part W., post. porary purpose after the decedent's As a rule there cannot be two valid death, the right to appoint an ancillary grants of administration on the same administrator, and the right of that ad- estate within a State or country (or, in ministrator to sue upon the debt, has other words, within the same general been sustained. Fox v. Carr, 16 llun jurisdiction) at the same time. But see (N. Y.) 434. statute provision for the instance where * But of. Christy v. Vest, 36 Iowa, the assets are removed to another coun- 285 ; Goodlett v. Anderson, 7 Lea, 286. try, etc., after one's appointment. Wat- A foreign representative who comes kins v. Adams, 32 Miss. ;^22- within another jurisdiction, bringing 3« I'AKT I.] INTKoni'CTION. § 2/ creditors to bring suits there against corporations created by the laws of other States." ' The reason why the State which char- ters a corporation is its domicile of other States in reference to debts which it owes, is because there only can it be sued or found for the service of process ; but this is now changed in cases by local statutes ; and federal courts hold that a corpora- tion of one State doing business in another is suable in the fed- eral courts established in the latter State, if the laws of that State so provide, and in the manner those laws provide.^ § 26. The Subject continued ; Right of Action created by Local Statute confers no External Jurisdiction. — A right of action created by statute in one State or country is not to be regarded as property or assets which can confer a local probate jurisdic- tion in another State or country ; as, for instance, where the representative of a person whose death was caused by the wrongful act or negligence of another is permitted contrary to the common-law rule to sue and recover damages.^ If the local statute empowers such action to be brought against a railway or other corporation, it may be said, moreover, that corporations, being local to the State or country which creates them, the right of action against them must be local to the same State or country.'* § 27. Whether Locality of a Decedent's Real Estate may con- fer Jurisdiction. — Locality of real estate may often confer a jurisdiction to appoint an administrator in various American States.5 Thus, it is held in Massachusetts that administration may, upon the petition of a local creditor, be granted on the estate of a person who dies a resident of another State, lea\ang only real estate in Massachusetts ; notwithstanding his general estate is solvent, and an administrator has been appointed in ' Mr. Justice Blatchford in N. E. " lb. See § z^a. Mutual Life Ins. Co. v. Woodworth, ^ Hart v. Coltrain, 19 Wend. 378; III U. S. 138, 144. Apperson v. Bolton, 29 Ark. 418 ; Pres- '^Ib. ; Lafayette Ins. Co. f. Harris, cott z'. Durfee, 113 Mass. 477; Sheldon 12 Wall. 65; 96U. S. 369; 104 U. S. 5. 1/. Rice, 30 Mich. 296; Rosenthal ?■. ' Illinois Central R. v. Crazin, 71 111. Remick, 44 111. 202; Beasleysy. Howell, 177. 117 Ala. 499. 39 § 29 EXECUTORS AND A inilN ISTRATORS. [PART I. the State where he last resided." Achninistratioii ma}-, indeed. be granted upon the basis of real property alone, under suitable circumstances, consistently with the policy of many of our States.- For the local policy is, while granting- letters, as, of course, with a primary reference to settling a decedent's per- sonal estate, to license a sale of real estate in case the person- alty proves insufficient ; and the local appointment simply puts local creditors in a position to thus assert their rights against the real estate, without determining of itself whether the land shall actually be sold or not.^ § 28. Constitutional Points affecting Administration in the United States. — Warious constitutional i)oints have been raised in our several State courts, most of which are referable to familiar principles. Thus it is held that a local act which draws a distinction, in the distribution of the assets of persons dying insolvent, between persons whose deaths occurred before the act went into operation and those who should die afterwards, is not unconstitutional in the sense of " impairing the obligation of contracts " ; and that under such reservations the old rule, according priority to judgment creditors, may well be abolished. •♦ A special act of the legislature, it is also held, may change the administration of an estate from one county to another.^ § 29. Probate Jurisdiction exercised by each State separately; United States Courts should not interfere. — In the United States, each State regulates the settlement of estates in its own juris- diction, and no administration is extra-territorial. In each State, accordingly, estates may be settled and claims ]:)n)ved under the ' Prescott?/. Durfee, supra. And .see ' Wright v. Ware, 50 Ala. 549. And a-s to postponing the right of the for- see Peters ?-. PulMic Administrator, i eign and domiciliary representative to Rradf. Sur. (N. Y.) 200. The repeal of sell, Apperson v. Bolton and Sheldon a law designating a certain official as V. Rice, supra. administrator does not ipso facto revoke ^ Lees V. Wetmore, 58 Iowa, 17c. the letters, but leaves the probate court 3 Temples v. Cain, 60 Miss. 478; to act accordingly. Hull ;■. Neal, 27 Moore v. Moore, 33 Neb. 509. Miss. 424. The law in force when the •• Deichman's Appeal, 2 Whart. 395. representative gave bond is presumed And see Place v. Oldham, 10 B. Mon. to govern as to its prosecution. Mc- 400- (iovney v. State, 20 Ohio, 93. 40 PART I.] INTRO 1)1 •C'lIOX. § 29<7 State laws. No foreign proof of claims can be enforced if the State chooses to require a re-allowance; nor can a foreign judg- ment, however respected as evidence, be enforced as a judgment in the domestic jurisdiction without being established in new legal proceedings. Whatever may be done with the final bal- ance, as between a domiciliary and ancillary jurisdiction, a dead person's estate must be administered under the probate laws and system of the State granting letters, up to the time of distribution, or until adjudication is made as to the final balance. And it would appear that a decree by a federal court cannot affect strangers to the record or interfere with the regular pro- bate settlement of an estate in a State court which has probate jurisdiction.' In fact, it appears well settled that a circuit court of the United States has no jurisdiction to afifirm or set aside a will or the probate thereof, in the proper State forum ; ^ nor can such jurisdiction be taken to disturb or interfere with the due admin- istration of an estate under State probate direction.^ Ikit to some extent an equity jurisdiction, incidental to the enforce- ment of trusts, is here recognized,^ and also for construction of a will, locally established. ^ § 2C)a. Interested Parties only are regarded in Probate Pro- cedure. — It is a fundamental rule, whether in the probate of a will or in the appointment or removal of executors or adminis- trators, or in the general supervision of the administration of estates, that only parties in immediate interest, agreeably to the preferences defined or indicated by local statutes, can be regarded as having a standing to litigate or appeal.^ ' Dickinson v. Seaver, 44 Mich. 624. Fed. 417. ^.^. where the neces.sary di ^ Broderick's Will, 21 Wall. 503; versity of citizen exists, or other con- Ellis z/. Davis, 109 U. S. 485. stitutional ground. And see 61 Fed. ^ Byers v. McAuley, 149 U. S. 608; 423; 134 U. S. 47. 21 Wall. 276; 112 U. S. 294. *" See McCutchen v. Loggias, 109 -• See 58 Fed. 717; Hayes v. Pratt, Ala. 457. This will appear more fully 147 U. S. 557. in the course of our investigation. 5 Colton 7'. Colt on, 127 U. S. 301 ; 52 41 PART II. APPOINTMENT AND QUALIFICATION OF EXECUTORS AND ADMINISTRATORS. CHAPTER I. APPOINTMENT OF EXECUTORS. § 30. Modern Definition of Executor. — While in modem times it cannot be strictly said that the designation of a particular ex- ecutor is essential in order to constitute a will, every executor doubtless derives his authority from such an instrument. An executor should in fact be defined as one to whom the deceased has duly committed the execution or putting in force of his last will and testament ; or, in other words, the settlement of his estate.' In such a connection Jiacirs tcstamentariiis is the usual term of the Roman law as to movables ; and as Lord Hardwicke once observed, "executor " is a barbarous term unknown to that law ; ^ the truth being, however, that the testator seldom com- mitted execution (or perhaps one should say, administration) to any other person than the testamentary heir himself ; whereas, by the codes of modern Europe, the general employment of executors is partly favored, as persons, not necessarily legatees, but rather official representatives of the estate, to carry out the provisions of the will.^ ' 2 Bl. Com. 503 ; i Wms. Exrs. 7th guards for particular legatees and other ed. 226; Bouv. Diet. "Executors"; persons interested in the estate. lb. supra, § 3. Swinburne and other early writers of *3 Atk. 303. our law state other acceptations of the 3 Domat Civ. Law, §§ Zl)Z'^~ZiZ~- word " executor " inclusive of admittis- What we call "executor and residuary trator, but the executor a testatorc consti- legatee " corresponds to this testamen- tuUis, or executor testamentarius is the tary heir of the Roman law, against only one meant in modern English whose knavery it was found necessary speech, i Wms. Exrs. 226. after long experience to extend the safe 42 CHAP. I.] APPOINTMENT OF liXKCUTOKS. § 32 §31. Designation of Executor under a Will ; the Trust may be absolute or qualified. — Whenever the testator nominates an executor, this is enough to make his instrument a will and re- quire its probate as such, even though no legacy be given and no special direction of a testamentary character. Nor is it un- common for one to make his last will and testament for the sole purpose of selecting or nominating the person or persons who shall administer ; meaning that his estate shall be managed and distributed upon his decease as though he had died in- testate.' Furthermore, the interest of every executor in his testator's estate is what the testator may have given him ; and hence a testator may make the trust absolute or qualified respecting his property ; qualifying the trust as to the subject-matter, the place where the trust shall be discharged, and the time when the executor shall begin and continue to act as such." So favorably are regarded a testator's wishes that wherever one commits by will the execution of a trust to the executors named therein, no other person can execute the trust while any of the executors is living and has not declined the office of ex- ecutor nor been shown to be unsuitable.^ § 32. Who are capable of becoming Executors; Rule as to Married Women, Infants, Corporations, Aliens, &c. — All persons, generally speaking, are capable of becoming executors who are capable of making wills.-* The favor of our law extends even further in this respect. For, while a wife, under the old rule of coverture, was held incapable of making contracts or a valid will,^ the husband might concur in the appointment, or, so to speak, perform the trust vested in her as executrix or administratrix ; and only the wife's temporary legal disabihty, and the husband's liability for her acts, obstructed practically her sole performance of such duties under an appointment which the spiritual courts 'Lancaster, Goods of, i Sw. & Tr. ^ Hayes . * See Administration, fosL Badger, 7 Penn. St. 459. ' Wheatley v. Badger, 7 Penn. St. ^ Myers t. Daviess, 10 B. Mon. 394 ; 459. McDonnell, £x parte, 2 Bradf. Surr. 32 ; * Godolph. pt. 2, c. 5, § 3 ; Swinb. pt. 4, State V. Watson, 2 Spears (S. C.) 97. §4, pi. 3; Androvin z/. Poilblanc, 3 Atk. And see Knight v. Loomis, 30 Me. 204 ; 301, per Lord Hardwicke. Simpson v. Cook, 24 Minn. 180, that ^ Grant v. Leslie, 3 Phillim. 116. naming the same person as executor ^ i Wms. Exrs. 240 ; Oliphant, Goods and trustee does not necessarily extend of, i Sw. & Tr. 525. And see Adam- the trusteeship to others who may be son. Goods of, L. R. 3 P. & D. 253. appointed to execute the will. Where the testator bequeathed all his 3 Toomy, Goods of, 3 Sw. & Tr. 562 ; property to his three sisters, or to such Drury 7). Natick, 10 Allen, 174; New- of them as survived him, and appointed comb V. Williams, 9 Met. 533, per either one " his sole executrix," and only 51 § 40 EXECUTORS AND ADMINISTRATORS. [PART II. § 38. The same Subject; Identifying the Executor. — There should be some means of identifying- the person designated by the will to serve as executor, else the designation cannot operate. But an executor who is imperfectly described or designated in the will may, by extrinsic evidence, be identified as the person actually intended by the testator." So an erroneous and ambig- uous description in the will may be corrected by extrinsic evi- dence showing which of twt) persons was really meant. ^ § 39. The same Subject; Suggested Executor; Adviser, etc. — The appointment of a sole or joint executor may be by way of request or suggestion rather than mandate on the testator's part,^ and a probate court may consider its force accordingly. One who is named in the will as though an assistant in the trust, is, by American practice, usually qualified like any co- executor ; ICnglish cases follow often the same rule. But a tes- tator will sometimes name another person besides his actual executor to advise, oversee, or assist the latter in the perform- ance of his duties ; and such a person, not unfrequently encoun- tered in English practice, has, if so the testator obviously in- tended, none of the rights or responsibilities of executor, nor any right to intermeddle, but may advise, complaining to the court if his advice is injuriously neglected.'* A will is not readily con- strued in intent to require peremptorily the employment of any particular person as legal adviser.^ ^ 40. The same Subject; Conditional Appointment; Substitu- tion; Co-executors, etc. — From a will, or the will and codicils taken together, may be deduced various provisional appointments one survived him, held that this was in- - Brake, Goods of, 29 W. R. 744. sufficient designation of her as executrix. ' Brown, Goods of, 25 W. R. 431. Blackwell, Goods of, 25 W. R. 305. Where trustees of a certain lodge are ' In De Rosaz, Goods of, 25 W. R. designated, the appointees may be as- 352, "Perceval of B., Esquire," certained. 2 Dem. (N. V.) 91. was shown to be a friend of the testator, " i Wms. Exrs. 7th ed. 244 ; I'owell ?■. a person whose middle name was " Per- Stratford, cited 3 Phillim. 118:3 I^edf. ceval." And see Wigram, Evid. 4th ed. Wills, 2d ed. 63. 98; Clayton v. Lord Nugent, 13 M. & * Foster v. Elsley, L. R. 19 Ch. Div. W. 207; Baylis v. Attorney General, 2 518; Ogier Re, loi Gal. 381. Atk. 239; Schoul. Wills. 52 CHAP. I.] APPOINTMENT OF EXECUTORS. § 4O of executor. These should be respected according to the testa- tor's manifest intent. Thus, if one be made executor upon con- dition that another will not accept or is dead, the latter, if he prove alive and willing at the time of probate to accept, must be accorded the preference, as the language of the will implies.' An executor by the tenor may be qualified jointly with one ex- pressly nominated.^ Where several executors are named or designated, all may be qualified as co-executors, though all are thus legally regarded as an individual, in place of a sole executor.^ A testator may, how- ever, appoint several executors under his will, substituting one after another in order, so that, if the first cannot act, the next may, and so on ; in which case the question may arise, whether the substitution relates merely to a precedence once and for all at the time the will takes effect, or so as to provide for a successor whenever, prior to a final settlement of the estate, a vacancy may possibly occur in the office.^ The appointment of executors under a will may be revoked by the substitution of others under a codicil,5 or a re-appointment with others may be made instead ;^ and of various persons named as co-executors, he or they who may be alive and willing to accept the trust on the testator's de- cease can alone be deemed qualified for the office. An executor by the tenor may, if the will so intended, receive letters jointly with an executor expressly named.^ And a per- son expressly appointed executor for limited purposes may, by a codicil, receive by implication full general powers.^ There is no legal objection to qualifying one executor for general purposes, ' I Wms. Exrs. 243 ; 2 Cas. temp, sor, when duly appointed, possesses the Lee, 54 ; Swinb. pt. 4, § 4, pi. 6. powers of an executor, and not merely * Grant v. Leslie, 3 Phillim. 116; i those of an administrator «V ^(w/j //^w. Wms. Exrs. 245. Kinney v. Keplinger, 172 111. 449, and ' I Wms. Exrs. 246. cases cited. 1 Langford, Goods of, L. R. i P. & D. = Bailey, Goods of, L. R. i P. & D. 458 ; Wilmot, Goods of, 2 Robert. 579 ; 608. Lighton, Goods of, i Hagg. 235. Where ^ Leese, Goods of, 2 8w. & Tr. 442. the will appoints an executor, naming ^ i Wms. Exrs. 245 ; Grant v. Leslie, another to act in the event of the for- 3 Phillim. 116. mer's death and to discharge such duties " Aird, Goods of, 1 Hagg. 336. as were left unperformed, such succes- 53 § 41 EXECUTORS AND ADMINISTRATORS. [PART II. and another for some limited or special purpose, if such be the testator's manifest intention.' §41. Testator's Delegation of the Powor to name an Executor or Co-executor. — The English ecclesiastical courts were accus- tomed to grant letters testamentary as executors to persons named by those who had a nominating power conferred under the will.- And under the English wills act, this practice is still sanctioned.^ In some parts of the United States also, the tes- tator's right to delegate to some person designated in the will the power to name an executor is likewise upheld.^ And thus may a testator authorize the probate court to appoint as executor a suitable person in the event of the resignation, inability, or re- fusal to act, of the executor named by the testator himself in his will. 5 So too, may he in his will delegate the authority to his legatees, or a majority of them, to name the executor.^ Recent cases have in this manner permitted further a successorship to be maintained, so that of two or more original executors, the survivor or survivors shall fill the vacancy ; ^ all of which, how- ever, should be subject to the court's discretion. A like delega- tion of power may be to one executor, in order that he may name his own associate."^ A person authorized to nominate an exec- utor has sometimes nominated himself, and thus obtained the office.'^ ' Lynch 7'. Bellevv, 3 Phillim. 424 ; i reserving power to himself to deal in- Wms. Exrs. 245. formally hereafter with his will. ^ Cringan, Goods of, i Hagg. 548. ' State v. Rogers, i Houst. (Del.) 569. ' 2 Redf. Wills, 63 ; i Wms. Exrs. Such per.son being hereby " appointed 245-247 ; Jackson v. Paulet, 2 Robert, to be my executor," in the language of 344. the will, it is proper for the court to •• Hartnett v. Wandell, 60 N. Y. 346. grant him letters testamentary instead Here, as in Jacivson v. Paulet, supra, it of letters of administration with the will is maintained that a .statute requirement annexed. lb. that the court shall issue letters to the * Wilson ?'. Curtis, 151 Ind. 471 ; persons named in a will as executors Bishop v. Bishop, 56 Conn. 208. docs not preclude the issue of letters to ^ Deichman, Goods of, 3 Curt. 123 ; one not expressly named but duly desig- Jackson v. Paulet, 2 Robert. 344. nated as such by virtue of such a power. * Hartnett v. Wandell, 60 N. Y. 346. The case is unlike that of a testator's * Ryder, Goods of, 2 Sw. & Tr. 127. 54 CHAT. I.] APPOINTMENT OF EXECUTORS. § 42 § 42. Limited or Conditional Executorship. — From what has been said, the reader will infer that the office of executor is not always conferred absolutely. Wills, we know, are usually drawn, so that A. B. is named executor, or perhaps A, B. and C. D., or A. B., C. D., and E. F. ; and, whether one or more executors, the rights and duties thus devolve upon the person or persons named, fully and immediately upon the testator's death ; so that, if there be a condition precedent at all, it is only such as probate law interposes in order that the will may be duly proved and the executor qualified by letters testamentary. But a testator may, and sometimes does, impose conditions and limitations under the will at his own discretion ; and the old books state numerous instances of the sort. Thus, the execu- tor's appointment may be conditional upon his giving security for paying the debts and legacies,' or so long as he does not in- terfere with M.'s enjoyment of Blackacre,^ or after he has paid such a debt,3 or provided he prove the will within three calendar months after the testator's death ; ** and such condition failing, whether precedent or subsequent, the appointment fails upon the usual principle of a conditional appointment. Again, there may be limitations placed by the testator upon the exercise of the office ; as where one commits the execution of his will in different countries 5 (or even, as the old books lay it down, in different counties ^) to different persons. So it is ' Godolph. pt. 2, c. 2, § 1 ; I Wms. country. This does not entitle the Por- Exrs. 7th ed. 253. The procurement of tuguese executor to letters in England, such security, where prudence requires Velho v. Leite, 3 S\v. & Tr. 456. So it, is an element in modern probate there may be general executors entitled practice, independently of the testator's to letters in England, and hmited exec- directions. See bonds, c. 5,/cj-r. - utors added for India. Wallich, Goods ^ Dyer, 3 b, pi. 8 ; Cro. Ehz. 219. of, 3 Sw. & Tr. 453. As to granting 3 Stapleton v. Truelock, 3 Leon. 2, ancillary letters in a State or jurisdic- pl. 6. tion foreign to the place of the testator's '' Wilmot, Goods of, i Curt. i. Here domicile and place of original probate the day of death was held to be ex- or administration, see c. fost, ancillary eluded in the computation of time. appointments. 5 Hunter v. Bryson, 5 Gill & J. 483; ^ Swinb. pt. 4, § 18, pi. I, 4; i Wms. Mordecai v. Boylan, 6 Jones Eq. 365; Exrs. 251, 252. Such a division of Despard z/. Churchill, 53 N. Y. 192. An localities in one jurisdiction, however, English testator appoints a resident of seems unreasonable in practice. Portugal to be his executor in that 55 § 42 EXECUTORS AND ADMINISTRATORS. [PART II. said that one may divide the duties of executor with reference to the subject-matter : appointing one for the cattle, another for the household stuff, another to grant leases, and another to collect debts ; ' but Lord Hardwicke exposed the absurdity of such a division, inasmuch as executors must act jointly, and each have authority as to the whole estate ; ^ and creditors cer- tainly may sue them in such a case as united in privity, just as though there were only one executor. ^ There may be a postponement of the office, as some proviso by way of succession or the substitution of one executor or set of executors for another. Thus, two persons may be appointed executors with a provision that the one shall not act during the life of the other ; ■» or so that B. shall succeed A. in case of A.'s death, incapacity, or unwillingness to serve.5 So, too, one may be appointed for a definite period of time, or during the minority of a son, or the widowhood of a wife, or until the death or marriage of a son, or the remarriage of a widow, or while the instituted executor is absent from the country.*^ In all such cases, if a vacancy in the office occurs at any time which the will itself does not supply, whether permanent or dur- ing the interval that must elapse between the ending of one ex- ecutorship and the beginning of another, the probate court should grant administration with the will annexed of such tenor as the emergency requires.^ In short, there may be various qualifications imposed by one's will upon the executor or executors therein ai)pointed. Various substitutes may be designated to serve upon one and " Dyer, 4 a; Godolph. pt. 2. c. 3, pi. tioned by Swinburne and other early 2, 3; I Wms. Exrs. 252. writers; as, where the testator appoints ^ Owen V. Owen, i Atk. 495, per one to be his executor at the end of five Lord Hardwicke. years after his death, or at an uncertain ^ Cro. Car. 293; 3 Redf. Wills, 2d time. S-winb. pt. 4, §17, pi. 1-4. Ex- ed. 65. And see Mr. Justice Wayne in cept it be by way of substituting some Hill V. Tucker, 13 How. (U. S.) 466. new executor for a predecessor upon * Wentworth Off. Ex. 13; i Wms. the happening of some event, such ex- Exrs. 250, 251 ; 3 Redf. Wills, 65. ecutorships are seldom created. 5 Lighten, Goods of, i Hagg. 235. ''3 Redf. Wills, 65; Swinb. pt. 4, 'Wms. Exrs. 251; Carte v. Carte, § 17, pi. 2. See c. post as to adminis- 3 Atk. 180; Cro. Eliz. 164; 2 Cas. t. tration \\ith the will annexed. Lee, 371. Other instances are men- 56 CHAP. I.] APPOINTMENT OF EXECUTORS, 8 43 another contingency, and in succession instead of jointly ; exec- utors, moreover, may be appointed having separate and distinct functions to discharge, some full and general, others limited and special, in authority. For, as Mr. Justice Wayne has observed, while the estate of an administrator is only that which the law of his appointment enjoins, an executor's interest in the testator's estate is what the testator gives him. ' But where the authority of the executor is restricted, this should appear in the letters testamentary.^ Nor can a testator appoint one an executor, and at the same time prohibit him from administering the estate ; for this would be to deny him the essential functions of the office.3 § 43. Whether the Executorship passes to an Executor's Rep- resentatives. — An executor cannot assign his executorship, the trust being pronounced in such connection a personal one ; "* nor can the executorship pass upon his death to his legally ap- pointed administrator. 5 If there were several executors, so that one at least still survives in the office, no interest is trans- missible by the deceased executor.^ But by the English law, wherever a sole executor had assumed office under the will, or all co-executors had died, so that no surviving executor or suc- cessor could succeed on his decease by appointment of the will, such executor was. allowed to transmit his office by his own will to his own executor, by way of delegating the confidence orig- inally reposed in him to the person in whom he himself con- fided ; and thus might the executor of an executor pass on the estate in a series of appointments, until intestacy broke the ' Hill z'. Tucker, 13 How. (U. S.) even to an administrator with will an- 466. And see Hartnett v. Wandell, 60 nexed, in the absence of express words N. Y. 346. in the grant. lb. ^ Barnes, Goods of, 7 Jur. N. S. 195 ; ^2 Bl. Com. 506. Otherwise se7tible Gibbons v. Riley, 7 GDI, 81. with an administrator durante minor ^ See Anon. Dyer, 3 b; i Wms. Exrs. (Etate, for such an officer stands in place 250, n., showing some doubt as to the of an executor, i Freem. 287. See effect of such a proviso ; though semble comments of i Wms. Exrs. 7th ed. such an appointment is inoperative. 255, ;/. And see Grant, Goods of, 24 ■•Bedell v. Constable, Vaugh. 182; W. R. 929. Briggs, Goods of, 26 W. R. 535. Not *" i Wms. Exrs. 256, 284. 57 § 44 EXECUTORS AND ADMINISTRATORS. [PART II. chain, or the estate became finally settled and distributed.' But in the American States this rule, which so disregards the testator's kindred and their wishes, is now quite generally changed by statute ; and in consequence, the duties and liabili- ties of the sole executor upon his decease devolve, not upon the executor of the executor as such, but upon an administrator with the will annexed of the estate of the original testator, whose appointment is made by a court upon considerations fav- orable to those interested in such estate.- The executor of an executor cannot take the office, where the will itself provides ex- pressly a different mode for filling vacancies as they occur ; ^ and he may, of course, renounce the trust. ^ § 44. Acceptance and Refusal of the Executorship ; Citation of the Person named, etc. — Having considered how the testator may appoint his executor, we next proceed to the executor's decision to take or not to take the trust. For every appoint- ment to an office there must be two parties at least ; and in the first instance no one is bound to undertake private responsibili- ties which another seeks to fasten upon him. The office of ex- ecutor is a private trust, devolving upon one individual by an- ' 1 Wms. Kxis. 7th ed. 254-256, and statutes of an account presented by the cases cited; Smith, Goods of, 3 Curt, executor of an executor against his tes- 31 ; 2 Bl. Com. 506; (1896) P. 129. tator's estate, see Wetzler z/. Fitch, 52 This rule applied, though the original Cal. 638. In some States the old rule probate was a limited one. Beer, Goods seems to be still followed. Lay v. Lay, of, 2 Robert. 349. A married woman 10 S. C. 208 ; Thomas v. Wood, i Md. as executrix might, so far as her testa- Ch. 296; Crafton v. Beal, i Ga. 322; mentarj' power extended, transmit to Carroll v. Connet, 2 J. J. Marsh. 195; her executor. Birkett v. Vandercom, 20 Fla. 58. See 2 Dem. 327. Where 3 Hagg. 750. But it is essential to such an executor who has neglected to pay transmission that the executor shall a legacy has died, his executor is liable have probated his testator's will before to the legatee if sufificient assets come his own death. Drayton, In re, 4 Mc- to him from the original estate or from Cord, 46; 2 Wms. Exr-s. 255, and cases the estate of the first executor. Wind- cited, sor 7>. Bell, 61 Ga. 671. * See statutes of California, Mass., ^ Navigation Co. v. Green, 3 Dev. L. Vermont, Pennsylvania, etc.; Prescott 434. V. Morse, 64 Me. 422 ; Scott v. Fox, 14 " Worth v. McAden, i Dev. & B. Eq. Md. 388; Farwell v. Jacob.s, 4 Mass. 199. 634. As to jurisdiction under such 58 CHAP. I.] APPOINTMENT OF EXECUTORS. § 44 Other's selection, and not by act of the law ; and hence the office may be accepted or refused at discretion.' The time of acceptance or refusal of an executorship is prop- erly deferred to the date when the will comes into operation ; that is to say, when the testator is dead, and the will ought to be admitted to probate and some one undertake the responsibil- ity of settling the estate. Hence, one's promise during the life- time of the testator to accept such trust will not conclude him.- Possibly circumstances might show a consideration given for such a promise, so as to involve the party refusing in a legal liability to the estate for the breach ; and if a legacy was given him under the will as executor, and in consideration of such service on his part, he must needs forfeit it by his refusal to serve. ^ But every presumption favors a mutual postponement of one's final deci- sion to serve until the contingency of death happens, and the person named as the decedent's executor may fitly make up his mind whether to serve or not, if, indeed, he be the survivor and capable of serving at all. And hence, as a rule, one may re- nounce a trust to which he is nominated under a will without forfeiting any legacy which is left to him simply as an individual, and upon no manifest requirement that he shall serve.^ The executor's acceptance of his appointment is signified by proving the will in court and taking out letters testamentary. 5 How all this should be done will presently appear.*^ But so im- portant is it, in the interests of an estate, that a dead person's will should be placed promptly upon record, if he has left one, and his estate committed for settlement, that from very early times the ordinary was empowered in England to summon any person before him who had been named executor under the will ' Lowry v. Fulton, 9 Sim. 115; -i Pollexfen v. Moore, 3 Atk. 272; Lewin Trusts, 161, 162; i Wms. Exrs. Slaney 7. Watney, L. R. 2Eq. 418. The 274. An executor cannot refuse his right to " renounce " an executorship ex- office in part ; he must refuse entirely ists only before one receives letters tes- or not at all. 2 Roll. Rep. 13?; i tamentary. 3 Uemarest (N. Y.) 164. Wms. Exrs. 282 ; Thornton zf. Winston, See pecuhar right to retract a renunci- 4 Leigh, 152. ation under the New York code. lb. == Doyle V. Blake, 2 Sch. & Lef. 392. ' Lew-in Trusts, 167 ; 3 Redf. Wills, 2d 3 See Slaney v. Watney, L. R. 2 Eq. ed. 529. 418. * See next c. 59 § 46 EXECUTORS AND ADMINISTRATORS. [pART 11. of the deceased, and by summary process compel him to prove or refuse the testament ; punishing him for contempt if he re- fused to appear ; ' an authority which has been transferred to the new courts of probate in that country,- and is exercised gen- erally by courts of similar jurisdiction in the United States.^ It is the policy of such statutes to require the person thus named to decide speedily whether he will accept or decline the trust ; and in the latter event, or where he unreasonably neglects after due citation to appear, the court takes heed that the probate of the will is pursued, and thereupon commits the representation of the testator and the administration of his estate as though no such person had been named executor ; or, if the will ought not to be admitted to probate, proceeds as in other cases of intes- tacy.'* By such procedure, co-executors, or executors in succes- sion, may be passed over, and the associate or substitute may be qualified by the court ; or, instead, an administrator with the will annexed, or a general administrator, as the state of facts and legal consistency may require.^ §45. The same Subject; Death equivalent to a Renunciation. — The death of the sole executor named in the will, before having either taken or renounced probate, leaves a vacancy, whether the death occurred during his testator's life or later, which must be supplied as in case of a formal renunciation.'' § 46. The same subject ; Refusal of Record ; Constructive Re- fusal or Acceptance. — Probate procedure, under statutes such as we have alluded to, ought readily to establish the fact of an ' See Stats. Hen. 8, c. 5, § 8, 1 Edw. ' Where an executor of a deceased e.x- 6, c. 2, cited i Wms. Exrs. 274 ; also ecutor is the rightful representative by Stat. 53 Geo. 3, c. 127, as to punish- law (see supra, §43), he may thus be ment for contempt in the ecclesiastical admitted by reason of the refusal or court. neglect of the co-executor. Lorimer, 'Act of 1857, erecting the court of Goods of, 2 Sw. & Tr. 471 ; Noddings, probate; sup7-a, § 14. Goods of, 2 Sw. & Tr. 15. ^ Supra, % \ I. ^Ib. The executor of the executor * Stat. 21 & 22 Vict. c. 95, § 16. And cannot fill the office as the law usually ^eft post as to probable appointments of stands at this day. Supra, §43. executor or administrator. 60 CHAP. 1.] Ar'POINTMKN'l- OI' FiXKCUTORS. § 46 executor's refusal or acceptance of his office in most instances." The fact, however, should be matter of judicial supervision, and hence of judicial record. A formal renunciation of the trust, signed by the executor named for it and filed of record, will commonly sufifice for that purpose. Such a writing or some judg- ment of record, reciting why the formality was dispensed with, ought, in sound probate practice, to precede the granting of letters testamentary or administration to another.- With such preliminaries now regularly pursued, and the re- moval or resignation of executors, moreover, being more readily procured in modern probate practice than when the distrusted spiritual courts exercised jurisdiction, some of the old English precedents which compelled executors to serve, to the detri- ment of estates, on the theory that one had constructively ac- cepted his office, have passed into oblivion. It was formerly ruled, indeed, that if an executor had once administered at all, the ordinary had no discretion to accept his refusal and appoint another in his stead. ^ But the true theory, for these days, ap- pears to be rather that if the person named as executor under- takes to administer while neglecting to prove the will, to procure his letters, and to quahfy (if so the statute requires) by giving a bond, he ought to be treated as executor only so far as to be held responsible to all interested under the will, and to the court, for his unauthorized and injudicious acts; that otherwise, whether by his renunciation, resignation, or removal, a vacancy, 'Statutes are sometimes quite explicit bins 71. Lathrop, 4 Pick. 33. In English as to form. In New York, for instance, practice, the person renouncing the the writing should be attested by two office takes oath that he has not inter- witnesses and acknowledged or other- meddled with the effects of the de- wise proved and filed. Redf. Sur. Pr. ceased. But no such oath is required 141. But in Massachusetts, and some in parts of the United States, nor does other States, the instrument is more like it appear desirable to obstruct the issue a simple letter to the judge. English of letters to another because of any such practice dispenses, as does the Ameri- omission to make oath. See i Wms. can, in general, with the use of a seal. Exrs. 282; Toller, 41, 42. Neglect to Boyle, Goods of, 3 Sw. & Tr. 426. Re- qualify may be construed under favora- nunciation should be over the party's ble circumstances into a refusal to serve, own signature ; but in extreme cases the Uldrick z/. Simpson, i S. C. 283. writing may be executed by an attorney. ' i Wms. Exrs. 277 ; i Roll. Abr. Rosser, Goods of, 3 Sw. & Tr. 490. Exrs. c. 2 ; i Mod. 213 ; i Leon. 155 ; - Long z'. Symes, 3 Hagg. 776 ; Sicb 1 Salk. 308. 61 § 46 EXECUTORS AND ADMINISTRATORS. [PART II. if desired by himself or desirable on other grounds, should be declared." Yet, if the executor thus administering has acted in good faith, with good excuse and not injuriously, and desires to fully qualify for the ofifice, and protect his acts, this is a differ- ent thing ; we speak only of a constructive acceptance, such as binds one legally to continue in office against his own will and where the court considers it detrimental to the interests of the estate. Renunciation of the trust, according to modern probate practice, is, as nearly as possible, referred to the date of pro- ceedings for probate of the will, and made tantamount to a re- fusal to qualify in the probate court. - One who has intermeddled with the estate of the deceased, like an executor dc son tort, may, however, as it is held, be de- barred at the discretion of the court from renouncing the trust and its responsibilities afterwards, and claiming that he has not intended to serve; for the right to elect on his part, whether to accc])t or refuse the office, may be determined by acts and con- duct on his own part amounting to an estoppel, irrespective of formal proceedings in probate. Hence, the rule, that whatever the executor does with relation to the estate of his testator, showing his intention to assume the trust confided to him, may be alleged as evidence that he had already elected to take upon him the executorship.^ As where he takes possession and con- verts goods of the testator's estate to his own use, claiming that they belong to the estate;-* (otherwise, however, where he has claimed them as his own, since this would show an intention on his ))art inconsistent with administering; 5) and where too he administers on such goods, or under some misapprehension 'On general principles of equity as cancelled. Badenach, Goods of, 3 S\v. well as at law, such a person is liable to & Tr. 465. But the oath of non-inter- others for his acts. Doyle v. Blake, 2 meddling is not part of the renuncia- Sch. & Lef. 237 ; Parsons v. Mayesden, tion in American as in English practice. I Freem. 151 ; Reed z/. Truelove, Ambl. ^i Wms. Exrs. 279; Godolph. pt. 2, 417. And see post as to the executor c. 8, §§ i, 6; Raynor v. Green, 2 Curt. de son tort. But parties aggrieved have 248 ; Van Home v. Fonda, 5 John. Ch. not the security of a bond, etc., to which 388 ; Vickers v. Bell, 4 De G. J. & S. probate law may have entitled them. 274. As to the executor de son tort, ^ Renunciation held invalid in Eng- see c. post. lish practice where one had intermed- '•lb.; Wms. Exrs. 279. died ^^^th the effects, and the record " Bac. Abr. Executors, P2, 10. 62 CHAP. I.] APPOINTMENT OF EXECUTORS. § 47 takes a stranger's goods for that purpose," collects debts, pays claims and legacies, or even represents himself ' as thus pre- pared to act on behalf of the estate. On the other hand, a constructive refusal has sometimes been inferred by acts and omissions of the person named executor. Thus, it is held that the executor's neglect for a long time to take out letters and prove the will, when he might have done so, amounts to refusal.^ And long delay to take such steps ought thus to be construed, in the interest of all concerned, where there has been mean- while no intermeddling with the estate on his part, and he has not suppressed the will. Again, it may be presumed, where the same party was named executor and trustee under the will, and has qualified and acted in the latter capacity but not in the former, that he accepted the one trust and declined the other, and vice versa .'^ § 47. The same Subject ; Constructive Acceptance or Refusal not favored in Modern Probate Practice. — On the whole, how- ever, theories of constructive refusal or acceptance are hardly consistent with our modern probate practice ; they may serve to establish presumptions where public records are lost, or to facil- itate the course of justice in dealing with an intermeddler or an indifferent nominee, according as the interests of creditors and legatees may demand. Under both English and American statutes, at the present day, summary proceedings are available in the court of probate jurisdiction to compel the person named 'Bac. Abr. Executors, E, 10; i Wms. ■* See Williams v. Gushing, 34 Me. Exrs. 279. 370 ; Deering v. Adams, 37 Me. 264. ^ Long V. Symes, 3 Hagg. 771 ; Vick- A judge of probate named as one of the ers V. Bell, 4 De G. J. & S. 274. But executors under a will, shows, by acting assisting a co-executor who has been as judge in admitting the will to probate duly appointed, as any attorney or agent and qualifying the co-executors, that he might do, is not tantamount to electing declines to serve. Ayres v. Weed, 16 to serve as an executor. Orr v. New- Conn. 291. Refusal to act as executor ton, 2 Gox, 274. But cf. i P. Wms. may be imphed without record evidence 241, note to 6th ed., cited in i Wms. or express declaration. Solomon v. Exrs. 280. Wixon, 27 Gonn. 291 ; Thornton v. 3 As for twelve months. Bewacorne Winston, 4 Leigh, 152; Ayres v. Cline- w. Carter, Moore, 273. For twenty years, fetter, 20 111. 465 ; Uldrick z/. Simpson, Marr v. Play, 2 Murph. 85. i S. C. 283. 63 § 48 EXECUTORS ANO ADMINISTRATORS. [I'AKT II. as executor to prove the will and qualify, and in case of his un- reasonable neglect to appear to commit the trust to others just as if he had formally declined.' Such proceedings render acceptance and refusal of an executorship matter of public record, and discourage legal inferences from acts and conduct of the nominee in pais. Responsible as an executor may be for his acts and negligence respecting the trust before he has been duly qualified, modern policy disinclines to force one to serve as executor against his will or regardless of the true welfare of the estate, provided there are others at hand competent and ready to assume the management. Such trusts, in the United States at least, being now compensated, the office of executor becomes far less burdensome than in old times when one was selected to perform these pious duties as a last favor to his dying friend. And while, as a matter of general law, one who has proved the will, received letters testamentary, and fully qualified in court, cannot afterwards renounce the executorship of his own accord or divest himself of its duties,^ our local statutes now provide that executors, as well as administrators, may afterwards resign or be removed from office, when in the discretion of the probate court it appears proper.^ One's renunciation has been accepted in some instances after probate of the will but before qualifica- tion ; •» and if a bond with sureties must be furnished under the local statute, the inconvenience of furnishing a bond such as the court requires may furnish good reason for renouncing at the last moment. § 48. Execvitor's Right to renounce not to be exercised cor- ruptly, nor for Sinister Objects. — An agreement made with per- ' See 21 & 22 Vict. c. 95, § 16; i to resignation and removal of executors Wms. Exrs. 275. and administrators, see c. 6, post. See ^ Sears ?'. Dillingham, 12 Mass. 358 ; also Newton v. Cocke, 10 Ark. 169. Washington v. Blunt, 8 Ired. Eq. 253. "Miller v. Meetch, 8 Penn. St. 417; 3 Thus is it in Massachusetts and Davis v. Inscoe, 84 N. C. 396. The New Hampshire. Thayer v. Homer, particular form of renunciation is not II Met. 104; Morgan v. Dodge, 44 N. important. Commonwealth v. Mateer. H. 258. Nor need the appointment of 16 S. & R. 416. But the New York a successor await the settlement of the statute requires renunciation to be for- outgoing executor's accounts. Har- mally executed in the presence of wit- rison v. Henderson, 7 Heisk. 315. As nesses. 2 N. Y. R. S. § 370. 64 CHAP. I.] appointmp:nt of executors. § 50 sons in interest before a testator's death, and contrary to his expressed wishes, by one named as executor, to renounce the executorship for a stated consideration, is contrary to public pol- icy and void.' Nor has one named as executor any right, by mispleading or acquiescence in the unfounded claim of another, to change the lawful course of substitution or administration in his stead.- In general, any agreement for a consideration to renounce an executorship is illegal, and a court of equity will refuse to enforce it.^ § 49- W'hether au Executor renouncing may exercise a PoTver. — Williams, in his excellent work on executors and administra- tors, doubts whether, where a power is given to executors, they may renounce probate, and, at the same time, exercise the power, unless the power was conferred upon them personally and with- out reference to the office of executor.^ But he admits that some eminent authorities point to the contrary conclusion.^ § 50- Retraction after a Renunciation ; Subsequent Appointment of the Executor. — Where an executor upon his own petition has been excused from the office, and has formally renounced the trust, he cannot, after the issuance of letters to another, retract his renunciation at pleasure. His election once made, is, for the time being, irrevocable.'' But a fresh opportunity may often be afforded him to take the trust, should a vacancy in the office " Staunton v. Parker, 26 N. Y. Supr. may therefore have the power to sell 55. coitferred upon him as something not ^ Nelson v. Boynton, 54 Ala. 368. annexed to the will or his acceptance or ^EUicott z/. Chamberlin, 38 N. J. Eq. declination of the executorship. Mr. 604. Williams's distinction appears, there- "•Wms. Exrs. 286, 287. fore, to this writer a just one in the ' Sugden Powers, 138, 6th ed.; 2 Prest. sense that the testator's intention should Abstr. 264. Perkins, No. 548, suggests be resorted to in such a case, the point of distinction as Mr. Williams * Thornton, Goods of. Add. 273; has taken it. And see Keates v. Bur- Trow v. Shannon, 59 How. (N. Y.) Pr. ton, 14 Yes. 434, /«- Sir Wm. Grant. 214. The old practice was more favor- It should be admitted that one who is able to permitting those who had once executor or administrator under a will refused to come in afterwards and act. has by no means the power of seUing Wms. Exrs. 284 ; 4 M. & Gr. 814, per the testator's real estate, by inference. Tindal, C. J. See Clark t. Tainter, 7 Cush. 567. One 5 65 § 50 EXECUTORS AND ADMINISTRATORS. [PART II. afterwards occur, especially if a new state of things arises. As, where the co-executor named under the will qualified alone and was afterward removed for statute cause, or died ; ' or in case the person renouncing in the first instance was named sole ex- ecutor and sole legatee in the will, and administration with the will annexed had been granted upon his renunciation to one of the next of kin who presently died insolvent and intestate ; ^ or where the appointed person presently absconded.-^ In the first instance, letters of administration never having issued before the executor's retraction took place, letters testamentary would be properly issued to him ; but, in the second, administration has once been granted, and consequently the executor prop- erly takes instead administration de bonis non, with the will annexed. Administration with the will annexed having once been duly granted, in fact, there would be no further opportu- nity left to the renouncing party to qualify as executor ; and yet, under the broad discretion of the court, where a new ad- ministrator upon an unadminislered estate has to be appointed, a sole legatee may well be pronounced in such an exigency the best suitable for the trust, and be appointed to the vacancy ac- cordingly as an administrator.'* In practice, an executor's retraction of his refusal has been treated with considerable indulgence, so long as no other grant of letters supervened. Thus, upon consent of all the parties interested (though not otherwise) an executor who had refused the trust in order to become an admissible witness for sustain- ing the validity of the will, was in the EngHsh spiritual court regularly allowed to withdraw his refusal after the suit was over and receive letters testamentary ; ^ palpable evasion, though this might be, of the rule which forbade interested persons to testify in court. And even supposing letters of administration ' I Robert. 406 ; Codding w. Newman, Wms. Exrs. 283. Cf. Thornton v. Win- 63 N. Y. 639 ; Perry v. DeWolf, 2 R. I. ston, 4 Leigh, 152. 103 ; Maxwell, In re, 3 N. J. Eq. 611; =1 Wms. Exrs. 7th ed. 283 ; McDon- Davis V. Inscoe, 84 N. C. 396. nell v. Prendergast, 3 Ilagg. 212, 216; ^Wheelwright, Goods of, L. R. 3 P. D. Thompson v. Dixon, 3 Add. 272. Re- 71. traction allowed at any time before the 'Siiles's Goods, (1898) P. 12. grant of letters to another. Robertson ' See c. post as to administration ; 1 -■. McGloch, 1 1 Paige, 640. 66 CHAl'. l.J APPOINTMENT OF EXECUTORS. § 5 I to have issued, if this were upon some misapprehension or error deserving correction, or for some temporary purpose not incon- sistent with probate, and before the executor can be said to have refused the trust, this party may have the administraticjn re- voked or superseded and letters testamentary issued to him ; as, for instance, should a will turn up after the grant of letters as upon an intestate's estate, or after a special administration.' This power of retraction within such limits is matter of right, and not of mere privilege.^ § 5 ^ • Renunciation -where Several Executors are named. — Where two or more are named co-executors under a will, all must duly have renounced or have defaulted upon citation to the same result, before the will can be treated as in effect a will without an executor, so as to be properly committed to an administrator with the will annexed. The refusal of one co- executor does not exclude the others, nor prevent succession, substitution, or a sole execution of the trust, as the testator's wishes or the just interests of the estate may require. And although, as we have already indicated,^ a co-executor who has renounced the office may afterwards retract the renunciation so as to succeed to a vacancy should one occur (for, here, the situa- tion of the trust having changed, one does not stultify himself by recalling his refusal), the better practice allows the co-exec- utor's refusal to slumber on unless he chooses to arouse it before the opportunity be past ; * which opportunity closes where other ' Taylor z'. Tibbatts, 13 B. Mon. 177; as such who does not respond to the 2 Wms. Exrs. 283. Under the old and citation, but neglects inexcusably to ap- defective English practice in such mat- pear and perform his duty, as having ters, an executor who had neither actu- forfeited all right to the executorship, ally nor constructively renounced his 21 & 22 Vict. c. 95, § 16. appointment, but had merely defaulted -Casey v. Gardiner, 4 Bradf. 13. Cf. to come in on citation and prove the as to administrators having precedence, will, might at any future time appear to §112. prove the will, obtain letters testamen- ^ Supra, § 50. tary, and have the administration re- •» Judson v. Gibbons, 5 Wend. 224. voked. I Leon. 90; Godolph. pt. 2, c. It was formerly thought that the grant 31, §3. But the policy of later legisla- of administration would be void upon tion is (requiring probate of the will as such a vacancy in the office unless the of course) to treat the executor named executor surviving renounced the trust 67 § 52 EXECUTORS AND ADMINISTRATORS. [I'AKT II. letters are granted.' One of the co-executors having renounced, letters will be granted to the remaining executor/ and, unless it appears to the court imprudent, to him alone. § 52. Executors, how appointed by the Court; Letters Testa- mentary. — This chapter has shown us that executors are ap- pointed, or rather designated, by the testator's will. The full appointment, according to modern English and American prac- tice, comes from the court of probate jurisdiction, which, recog- nizing and confirming the testator's selection, clothes the exec- utor therein named with plenary authority by issuing letters testamentary to him. Letters testamentary are granted usually in connection with decreeing the probate of the will ; and, as our next chapter will show, one's last testament should be presented for probate, whether the executor named be willing to serve and competent for the trust or the reverse. A will is not necessarily executed by an executor, nor dependent for enforcement of its provisions upon any survivor of the deceased. Hence, accord- ing to our present probate procedure, an executor derives his office (i) from a testamentary appointment, which (2) is con- firmed by a decree of the probate court, and the issue of letters testamentary to him accordingly. once more in due form. Bin this super- filing a bond, so tliat the retraction of serviceable regard for a testator's wishes the executor who renounces is filed just is not approved by the later and sounder before the co-executor finally qualifies authorities, which hold that the surviv- and takes his letters, the retraction ing executor must come in, retract his comes too late. Jewett v. Turner, 172 •enunciation, and ask to be appointed Mass. 497. before administration de bonis fion ^Miller v. Meetch, 8 Penn. St. 417. passes the seals, if he would supply An executor who renounces, being a the vacancy, i Robert. 406 ; i Wms. creditor of the estate, is not debarred Exrs. 285 ; Venables z/. East India Co., of the usual remedies of creditor. Raw- 2 Ex. 633. linson v. Shaw, 3 T. R. 557. ' Even though delay should occur in 68 CHAPTER II. PROBATE OF THE WILL. § 5 3. Duty of producing the Will ; Fundamental Importance of determining Testacy or Intestacy, etc. — The first and most pressing duty of every executor nominated as such is to have the will, by virtue of which he claims the rights of representa- tive, admitted to probate. And so fundamental to jurisdiction upon the estate of a deceased person is it to ascertain whether such person has died testate or intestate, and if testate, what was his last will and testament, what instrument, in truth, made and subscribed by him with due formalities while capable and free to exercise the momentous power of testamentary dis- position, embodied his latest wishes ; so important is it to know whether he has chosen in fact to have his property settled and distributed according to his own scheme, or to let the law of intestacy operate, that the personal claim of this or that indi- vidual to execute or administer the estate is but secondary in importance. Hence the will, whoever may be its temporary custodian, should be properly produced in court after the testator's death, in order that its validity may be finally determined, and inci- dentally the rights of all persons claiming a title and interest in the decedent's estate. The executor named in the instrument is the most suitable person for such temporary custody and formal production. But wills are sometimes received, under appropriate statutes, from such as may have chosen during life- time to deposit the same confidentially in the probate registry ; or the instrument is committed to the care of an attorney, or some confidential friend ; or it is lodged among one's effects or business papers, so that some member of the famil)', a partner, or a business clerk, may happen first to light upon it ; or per- chance it may have been carelessly or artfully placed where only accident is likely to discover it, and the finder may prove an 69 i^ 54 EXFXUTORS AM) ADMINISTRATORS. [PART II. Utter Stranger. In any and all of these situations, and under whatever other circumstances the will, or what purports to be the will, of a party deceased may be found, the custodian, come he casually or purposely into possession, is bound to produce and surrender it in such a manner that, in all reasonable expec- tation, it shall duly and speedily be brought before the proper tribunal having probate jurisdiction of the estate. He must not clog the surrender of that instrument with conditions of pe- cuniary reward ; he must not connive with others at its sup- pression or concealment ; he must not act as though the paper belonged to himself, or to any particular person interested in the estate, or even to the executor named himself ; but treat it as a document which involves the rights of all concerned in the estate, should either its validity or invalidity be established, and of those, besides, who should properly manage and settle the estate in one contingency or the other, as an instrument whose possession for the time being casts upon him a perilous respon- sibility. Most custodians may well, doubtless, surrender the paper to the executor named therein ; but the duty does not cease here ; and by fair and seasonable notice, if prudence and good faith so require, to the nearest relatives of the deceased, or others interested, and giving the fact that the instrument has been found due publicity, one should procure what the policy of the law now requires, its production for probate be- fore the proper tribunal.' § 54. Procedure against Persons suspected of secreting, de- stroying, etc., the "Will. — Local statutes in modern times quite generally affix criminal penalties to the intentional suppression, secretion, or destruction of a dead person's will by any one ac- quiring possession thereof.- They provide also for summary proceedings in the jirobate court against an)' jK-rson having or suspected of having, or knowing as to the whereabouts of such an instrument ; such proceedings being in the nature of an in- ' An attorney or solicitor, the cus- Symes, Turn. & Russ. 87. And see 3 todian of a -will, cannot refuse its Redf. Wills, 3d ed. 1,2. surrender for probate upon any claim ' .Smith IMob. Tract. (Mass.) 59; of a lien for unpaid fees. Halch ?■. .Stebbins r. f .athiop, 4 Pick. 33. 70 CIlAl'. 1 1. I PROBATK OF THK WILL. § 55 c|ui.sition, so that one is cited to appear and either surrender the will or purge himself by answering;- under oath such lawful ques- tions as may be propounded in the premises. Independently of such legislation, according to correct reasoning, every court of competent probate jurisdiction has a lawful authority, infer- able from its peculiar functions, to summon parties spontane- ously or upon the petition of any person interested, for the pur- pose of compelling production and investigating the where- abouts of instruments which ought to be offered before such court for probate, and may commit for contempt those who re- fuse to obey its mandate.' Where one is shown to have had the custody of a will, he is presumed to retain it and must clear himself upon oath, or else be held responsible for its non-ap- pearance ; and any person having knowledge as to the existence or place of deposit of the will ought to give his testimony freely.^ §55. Death of Testator ; its Effect upon his Will. — Every instrument purporting to be one's last will and testament has (except in a few special instances stated in the books) but an inchoate, incomplete and ambulatory operation during the life of the person who makes it ; changes may be made by his cod- icil afterwards ; moreover, he may cancel and destroy such instru- ments at pleasure, execute a later will, or conclude to dispense with a will altogether ; provided only that he remains of sound mind and capacity, and exercises his unfettered choice concern- ing the final disposition of his estate. But the moment one dies, the instrument or instruments, if any, which he has left duly executed, constitute his last will and testament, and ac- quire conclusive force and operation as such ; and to prove and establish what purports to be such last will and testament, ' 3 Redf. Wills, 3d ed. 6 ; Cas. temp, case, or to the executors named in the Lee, 158; Swinb. pt. 6, c. 12, pi. 2; -vvill. For neglect to do so, without Brick's Estate, 15 Abb. Pr. 12. reasonable cause after being cited for - A Massachusetts statute requires that purpose, he may be committed to every custodian of a will, within thirty jail, and will be held further liable in days after the notice of the death of damages to any party aggrieved. Mass. the testator, to deliver it into the pro- Gen. Stats, c. 92, § 16. bate court which has jurisdiction of the 71 § 55 EXECUTORS AXD ADMINISTRATORS. [I'ART II. SO that it may fully oj^erate, or, more generally, to ascertain whether, in a legal sense, any last will and testament was left at all, becomes, in the first instance, the peculiar province of the local probate court of his last domicile; and, besides, the full appointment with qualification of the person or persons who, according as he died testate or intestate, may be entitled to manage and settle the estate and represent the deceased.' The fact of the testator's death, superadded to that of last domicile,^ is thus essential to our modern probate jurisdiction. Death is frequently a fact so well known in the neighborhood, that the court requires no proof ; often it is assumed from the allegations of the petitioner for probate and letters ; and famil- iar rules of evidence may be adduced as to presumptions of death after a long absence, or disappearance, without being heard from.^ But presumptions of death are only for conven- ience ; and if the person on behalf of whose estate proceedings were taken had not actually died, probate of the will may be afterwards annulled ; inasmuch as there is no jurisdiction in the court over the projierty of the living,'' nor positive assurance that a particular will embodies the maker's final disposition of his '3 Redf. Wills, 3d ed. i, 2; Wms. ing was simply precautionary against Exrs. 7th ed. 6, 10,319. We have seen loss of the instrument and could not that one's will may be received for de- impair the testator's right to alter or posit under suitable Enghsh and Amer- subsequently revoke. See Swinb. pt.6, ican statutes, at the regi.stry of wills, § 13, pi. i. A Michigan statute which while he is alive. Supra, § 53 ; 2 Wms. attempted to provide for an anle mor- Exrs. 319. Such statutes, of course, only tcin probate was lately pronounced in- provide a convenient place of deposit, operative. Lloyd ?■. Chambers, 56 Mich. The testator, having the right to revoke, 236. may withdraw the will, whenever he de- 'Supra, § 15. sires, from such custody, during his ^See stipra, pt. i ; 2 Greenl. Evid. lifetime. § 278, as to presumptions and proof of The earlier English books, however, death. Death is presumptively estab- make mention of proceedings which a lished as a fact l)y production of the living testator might invoke on his own probate of one's will before a surrogate, petition ; the effect of which was to have and the proceedings had upon such the will duly recorded and registered probate. Carroll v. Carroll, 6 Thomp. among other wills. But proof so ad- & C. 294. As to evidence raising tlie duced had not the effect of probate, nor presumption of death, see (1898) P. 143 ; coxild authentication under .seal issue (1897) P. 17; (1896) P. 8, 151. during the testator's life. The proceed- *D'Anisement z'. Jones, 4 Lea, 251. 72 CHAP, n.] PROBATE OF THE WILL. § 56 property, nor certainty where he may actually reside at the time of his death.' § 56. HoAv soon after the Testator's Death should the Will be presented for Probate. — The time after the testator's death when his will should be presented for probate must depend somewhat upon sound discretion ; distance, the facility of pro- curing witnesses and needful testimony, and the convenience of the executor and parties interested, being circumstances of no little consequence in this connection. Decency requires delay until after the burial has taken place ; but, as a rule, the will of a deceased person should be produced for public custody as soon after the funeral as possible ; whether this be in open court, or by first filing the instrument with the register, in order that citation may issue for probate later at some convenient court day, as in conformity with local practice. The opportunity for a postponement of the judicial hearing for probate will suffice for most purposes of further delay ; production of the instru- ment by its individual possessor affording to the court the need- ful primary pledge of good faith. For delaying production of the instrument is one thing, and delaying proof of the authen- ticity and the issuing of letters another. English and American statutes accord in affording reasonable time and opportunity to all interested in this latter respect ; while, as to the former, dis- couraging every species of delinquency.- But, however late, from one cause or another, probate may ' I Bl. Com. 502. " Nam omne tes- be produced from private custody, and tamentum morte consummatum est ; et forbidding all intemieddling w-ith an es- voluntas testatoris est ambulatoria us- tate without a judicial appointment, all que ad mortem." Co. Litt. 112. tend to hasten the presentment of the ^ English practice requires an explana"- will for probate. The Eng. Stat. 55 tion of the delay where one seeks pro- Geo. III. c. 184, imposes a penalty for bate or administration, after the lapse administering Adthout proving within of three years from the death of the six months, i Wm.s. Exrs. 319. Thirty deceased, i Wms. Exrs. 320. On the days' delay after knowledge of the death other hand, no probate or letters shall in producing the decedent's will is all issue within seven days from the death that the policy of some American stat- of the party deceased. lb. American utes appears to tolerate. Mass. Gen. practice and the tenor of .statutes, Eng- Stats, c. 92, § 16. lish and ./American, requiring a will to 73 § 57 EXECUTORS AM) ADM IMSTRATORS. [PART II. have been delayed, the better practice, in the absence of a posi- tive statute of limitations, is to admit the will on due proof, at any time, to probate ; ' though the authenticity of ancient instru- ments, whose establishment would tend to disturb estates long settled in good faith, ought only to be admitted upon the clear- est testimony. In the absence of positive statute there is no definite limit to the time within which a will may be probated.^ Nor, apparently, does an action lie against one for neglect to probate the will ; the proper remedy for parties in interest being to cite the executor or custodian in the court of probate.^ § 5 7- Primary Probate Jurisdiction depends upon Last Domicile of Deceased ; Foreign Wills. — Jurisdiction over the probate of wills, as over the settlement generally of the estates of those dying testate or intestate, is determined primarily by the last domicile of the person deceased.^ And such jurisdiction being usually entertained by counties, parishes or districts, both in Eng- land and the American States, it follows that the county, parish, or district probate court of the testator's last domicile has ex- clusive original authority to pass upon the validity of instru- ments purporting to constitute his last will, to admit or deny probate of the same, and to grant letters as for testacy or in- testacy. Of foreign executors and administrators, and their powers, we shall have occasion to speak later ; but it should be here observed that the probate jurisdiction, rightfully taken in the proper county or district, has full domestic operation in the State or country of the testator's last domicile, and gives to the ' A will may be probated in Massa- r-. Texas Pacific R., 64 Tex. 239. The chusetts more than twenty years after English rule appears to leave the matter the testator's death, for the purpose of to judicial discretion as to time, but all establishing title to real estate; although the circumstances are taken into con- original administration be confined by sideration. i Jaim. Wills, 218. See 40 statute to twenty years. .Shumway v. N. J. Kq. 3, where a surviving husband Holbrook, i I'ick. 114; V^^aters?'. Stick- did not prove his wife's will and it was ney, 12 Allen, 12. See Van Giesen 7). allowed probate after his death. Bridgford, 18 Ilun (N. Y.) 73. After ^ ]^ebhan r-. Mueller, 114 111. 343. four years from the death of a testator 'Stephens AV, (1898) i Ch. 162. a will, by the Texas rule, may be pro- * Supra, § 15; 3 Redf. Wills, 2d ed. bated for the purpose of perfecting a 12, 13. title although letters cannot issue. Ryan 74 CHAP. II. J PROBATK OF THE WILI,. i^ 58 executor or administrator a corresponding authority to be right- fully exercised. And if foreign letters and authority be needful for facilitating a settlement of the estate, where suit must be brought abroad, or j^art of the property is there situated, the first requisite is to probate the will, if there be one, and procure letters testamentary within the proper domestic jurisdiction. The filing of a copy of the probate of such will, or its duly attested record serves, in the foreign probate registry — with, perhaps, security given or ancillary letters procured besides in the foreign jurisdiction — the purpose needful, according as the foreign statute in question may prescribe." The will of a person domiciled in a certain county and State or country, should be admitted to original probate in the domes- tic jurisdiction, without regard to the place where the will was made or where such person happened to die.^ And the judg- ment of the local court having original jurisdiction ought to be held conclusive as to the probate, unless vacated by proceedings on appeal, or impeached by direct proceedings for setting the probate aside.^ One may make a will designed to operate upon property in one country and another will for property in another country.'^ § 58. Testamentary Papers Ineffectual until after Proper Pro- bate; Probate relates back. — In general, the necessity of a pro- bate is fully sustained by modern practice in England and this country. The production of what purports to be a will can be 'Hood V. Lord Barrington, L. R. 6 abroad at the time of death ; for in such Eq. 218 ; Carpenter 7'. Denoon, 29 Ohio case there should have been original St. 379; Campbell v. Sheldon, 13 Pick, probate here. Stark z^. Parker, 56 N. H. 8; Ives z/. Allyn, 12 Vt. 589; Bromley 481 ; Converse z/. Starr, 23 Ohio St. 491. V. Miller, 2 Thomp. & C. (N. Y.) 575; As to the mode of exemplification of a Porter?^. Trail, 30 N. J. Eq. 106. Local foreign will in New York practice, with domestic statutes usually provide for petition by one as agent or attorney of filing an authenticated copy of one's the foreign executor to receive letters will, for domestic convenience, in case in his stead, see Russell v. Hartt, 81 of a deceased non-resident, the same N. Y. 19. having been duly probated in the State -Converse -,'. .Starr, 23 Ohio St. 491. or country of his la.st domicile. But And see j^z/rr/, § 21. such authentication of a foreign probate ^ Williams, Re, i Lea, 529. is inadmissible if it appears that the tes- •'Astor, doods of, L. R. i P. U. 150; tator was domiciled here instead of (1894) P. 260. 75 § 59 EXECUTORS AND ADMINISTRATORS. [PART II. of no legal force in the courts, however ancient the document, without this i)ublic record and seal of authenticity ; and neither the temporal courts in England, nor the courts of law and equity in the United States, will take cognizance of the testamentary papers, or of the rights dependent on them, until after their proper probate.' Probate, however, having been duly procured, the probate is said to relate back to the time of the testator's death ; and this, apparently, for the convenience of the executor or of the ad- ministrator with the will annexed to whom letters thereupon issue ; in order that his title and rightful authority may be ade- quate for the proper management and settlement of the estate, and so as to protect needful acts on his part prior to the pro- bate. - § 5 9- W'hat Testamentary Papers Require Probate ; Wills of Real and Personal Property. — It is laid down in the older Eng- lish books, that if an instrument be testamentary, and is to operate on personal property, probate must be obtained what- ever its form ; but that a will which clearly respects lands alone ought not to be probated ; while, if the will was a mixed will, concerning both land and personal property, probate is proper, though such probate is without })rejudice to the heirs of the land.^ But such cardinal distinctions, which the English chan- ' Rex V. Netherseal, 4 T. R. 258; 3 ing ejectment. Richards v. Pierce, 44 Redf. Wills, 12; Strong v. Perkins, 3 Mich. 444. N. H. 517; Wood z'. Mathews, 53 Ala. "i Wms. Exrs. 293; 9 Co. 38 a; I ; Pitts V. Melser, 72 Ind. 469. A will Plowd. 281 ; Ingle i'. Richards, 28 Beav. not regularly probated cannot be used 366 ; Hood v. Lord Barrington, L. R. to establish title to lands devised. Wil- 6 Eq. 218, 224. lamette Falls Co. v. Gordon, 6 Oreg. ^i Wms. Exrs. 388, 389; 3 Salk. 22 ; 175. 2 Salk. 553. It is admitted, too, that But in some States, contrary to rule, where executors are nominated in a will it appears to be considered that probate purporting to dispose of lands alone, is not essential to the validity of the the document should be probated, will, and that rights may be protected O'Dwyer v. Geare, i Sw. & Tr. 465 ; by showing its validity in any court. Barden, Goods of, L. R. i P. & D. 325. Arlington v. McLemore, 33 Ark. 759. And so, wherever there is doubt whether The fact that a will has not yet been the will concerns land or not, since pro- proved does not prevent a devisee of bate may be needful in such cases and lands or a party under him from bring- can do no harm, i Phillim. 8, 9. 76 CHAP. II.] PROBATE OF THE WILL. § 59 eery asserted somewhat jealously against the ecclesiastical courts in times past, with the intent of confining the spiritual jurisdic- tion as closely as possible to goods and chattels, is materially done away, under the Court of Probate Act of 1857, which, seeking to prevent the mischief of double trials of proof of the same will, requires heirs, devisees, and parties in interest, to be cited in wherever the formal probate of a will is to affect real estate, and declares that such course having been pursued, the probate decree, establishing the will as valid, shall bind all such parties." In most parts of the United States discrimination between wills of real and of personal property is abolished, and by ap- propriate statute it is expressly provided that no will, whether of real or personal estate, shall be effectual to pass the same, unless it has been duly proved and allowed in the probate court ; and the probate of a will devising real estate shall be conclusive as to its due execution in like manner as of a will of personal estate.^ The uniform practice, moreover, of American probate courts is to issue a citation to all heirs, next of kin and parties interested, before any will is admitted in solemn form to probate, whether the testator's estate consists of real or personal prop- erty or of both together.^ ' I Wms. Exrs. 341, 388; Act 20 & 21 ^ Local peculiarities do not affect the Vict. c. 77, §64 (1857). The effect of general rule in this country. Under the old English practice was to require the law of Louisiana it appears that the the registrar of probate to attend the probate of a will is not conclusive temporal court whenever in a suit in- against parties in possession of property volving title to land proof of a devise which the executor seeks to recover was needful under a mixed will already against them unless they were parties admitted to probate. Chancery regularly litigant in the probate proceeding.s. enforcedsuchproductionfrom the regis- And when the validity of a will is try, though Lord Eldon expressed his brought in question incidentally on a surprise that such a jurisdiction should question of title to property, it is open have been exercised, i W^ms. Exrs. for investigation in any court in which 390, 391 ; I Atk. 628 ; 6 Ves. 134, 802 ; the title may be litigated. Fuentes v. 7 Ves. 292. Gaines, i Woods, 112. InTennesseea * Shumway z/. Holbrook, I Pick. 114; will not sufficiently attested to pass I Wms. Exrs. 293, note by Perkins ; realty may be established as to person- Mass. Pub. Stats, c. 1 27, § 7 ; Wilkin- alty. Davis v. Davis, 6 Lea, 543. See son V. Leland, 2 Pet. 655 ; Bailey v. Hegarty's Appeal, 75 Penn. St. 503. Bailey, 8 Ohio, 245 ; Schoul. Wills, And in the codes of some of our §§ 252-254. States, fewer witnesses are required to 77 § 60 EXECUTORS AND ADMINISTRATORS. [PART II. § 60. Testamentary Papers requiring Probate ; Various Kinds stated; Wills, Codicils, etc. — All codicils ought to be presented for probate, together with the original will ; and this even though a particular codicil contains no disposition of property, but simply revokes all former wills.' Indeed, every testamen- tary paper should be presented at whatever time discovered, whether before or after a regular probate, and whether it merely confirms the will already proved, or, on the other hand, wholly or partially revokes it.^ A paper, it is said, which disposes of no property, has, generally speaking, no testamentary character so as to enable probate thereof to be granted.^ Yet a will might have been executed for the express purpose of designating ex- ecutors, and on that account alone deserve admittance to pro- bate.^ Of two or more conflicting testaments it may be need- ful to determine which one remains in force by way of later revocation, or whether different papers deserve probate as to- gether containing the last will of the deceased.^ And a will may be properly admitted to probate even though it takes ef- fect in certain provisions only, and is void as to others.^ A will which is made in execution of a power requires to be propounded for probate like any other will,7 subject to what we have said concerning wills which relate to real estate only.^ But a paper executed as a last will, which does no more than to name a guardian for one's children, or appoints to a situation a will of personal than one of real * See Barden, Goods of, L. R. i P. property; a will in the testator's own & D. 325; i Wms. Exrs. 227, 389; handwriting being Ukewise 'favored Lancaster, Goods of, i Sw. &Tr. 464; specially as to attestation. Wms. Exrs. Miller 7'. Miller, 32 La. Ann. 437. 67, note by Perkins; Schoul. Wills, ^ See Hughes t'. Turner, 4 Hagg. 30; P^rt III. Morgan, Goods of, L. R. i P. & D. 323! ' Prenchley tj. Still, 2 Robert. 162; ''George v. George, 47 N. H. 27; Laughton f. Atkins, i Pick. 535. Bent's Appeal, 35 Conn. 523 ; 38 Conn. ^ Weddall v. Nixon, 17 Beav. 160. 26. As to the proper steps to be taken for ^ Goldsworthy v. Crossley, 4 Hare, establishing a will later in date found 140 ; Hughes j/. Turner, 4 Hagg. 30; after the decree of probate, see Mar- Tattnall 7: Hankey, 2 Moore. P. C. 342! rison V. Every, 34 L. T. 238. s ^ jj^^gg ^^ . ;^^^^.^^ g ^^ . ^(-houl. ^ Van Straubenzee v. Monck, 3 Sw. Wills, § 209. & Tr. 6. 78 CHAP. 11.] PROBATE OF THE WILL. § 6 1 after one's death,' and neither disposes of property nor desig- nates an executor, is not entitled to probate. § 6 1 . Testamentary Papers requiring a Probate ; Secret Wills ; Extraneous Documents referred to. — Sealed packets, directed by a testator to be delivered by the executor to persons un- opened, cannot, consistently with a rightful settlement of the estate upon a representative's official responsibility, be so deliv- ered ; but the packets may be opened in court and the direc- tions receive probate or not, according to the circumstances; the usual reservation as to a sufficiency of assets applying, of course, if the contents are to go as legacies.^ The civil law ap- pears to have provided a special form of probate for closed tes- taments ; but with us no testamentary disposition can be valid and at the same time secret in the sense of evading successfully the scrutiny of a probate court or a public registration after the testator's death, for the convenience of all parties interested. ^ But extraneous documents may be referred to in a will by way of regulating details in the manner of disposition ; over which documents the testator and his representatives and the court of probate can gain no control. Thus, sole probate may be made of a will which directs a settlement of the estate after the manner of some will probated in a different jurisdiction, or according to the trusts in a certain deed which those entitled to possession refuse to give up or have copied. "♦ ' Morton, Goods of, 3 Sw. & Tr. 422. 'See Swinb. pt. 16, § 14, pi. i; But |7«. whether this holds true in States Goldolph. pt. i, c. 20, § 4. where the probate court has original •* Sibthorp, Goods of, L. R. i P. & jurisdiction in the appointment of guar- D. 106. Where another such will or dians as well as executors. Schoul. document is referred to, it is fair, wher- Wills, § 294 ; 2 Sw. & Tr. 479. ever practicable, to have an authenti- A testator who changes his will from cated copy thereof filed in the registry, time to time during his life, would do without incorporating it in the probate, well to guard against multiplying docu- Astor, Goods of, L. R. i P. & D. 150. ments for presentation to probate. It Here there were found an English will is generally a good rule to make a new and codicils, designed for English prop- instrument, complete in its provisions, erty, and an American will with nine and destroy all previous ones. codicils for disposing of property in ^ Pelham v. Newton, 2 Cas. temp. America. (1896) P. 65. See Schoul. Lee, 46. Wills, § 281. And see also as to a 79 § 63 EXECUTORS AND ADMINISTRATORS. [PART II. § 62. Instruuieuts whicli do not purport to be Testamentary. — Equity will uphold a paper sometimes as a declaration of trust by one deceased, though the same be not entitled to proof as a will.' The memorandum of an intended will not duly ex- ecuted has also been admitted in the English probate out of respect to the testator's manifest intentions.^ But a wiser pol- icy should check any such inclination in the courts ; for under our modern jurisprudence the evil is far less of distributing an estate among kindred as intestate than in curtailing their equal rights under any disposition which falls short of the tastamen- tary attributes. It is held that, in various instances, if a testa- tor refers in his duly executed and attested will to another paper which has already been written out, clearly and distinctly identifying and describing it, so that it may safely be incorpo- rated in so solemn a disposition, that paper should be probated as part of the will itself. But a later or even a contempora- neous writing, having the character of a mere letter of instruc- tions to one's executors, and not being executed and attested as the law requires, can have no testamentary obligation, and should not be admitted to probate ; and, in general, an extra- neous unattested writing, to be incorporated with the will itself, should be reasonably identified by reference as part of it and as existing when the will was executed.^ § 63. Modern Laxity as to Papers of a Testamentary Character corrected by Statutes requiring Attestation, etc. — All papers, however, which one may have executed with the formalities bulky catalogue made part of a Request, due form, i Wms. Exrs. 109, no; Balme's Goods, (1897) P. 261. But an Barwick v. Mullings, 2 Hagg. 225 ; Hat- extraneous writing referred to in a will tatt v. Hattatt, 4 Hagg. 211. need not usually be recorded or pro- ^ Lucas v. Brooks, 1 8 Wall. 436 ; bated with the will itself. Zimmerman v. Zimmerman, 23 Penn. ' Smith V. Attersoll, i Russ. 266; St. 275; Ludlum v. Otis, 15 Hun (N. Inchiquin z/. French, i Cox, i. Y.) 410 ; Sibthorp, Goods of, L. R. i ^ Torre v. Castle, i Curt. 303; s. c. P. & D. 106; Bizzey v. Flight, 3 Ch. D. on appeal, 2 Moore, P. C. 133. But, 269; Schoul. Wills, § 281, cases cited, as Williams has observed, such a paper In Newton v. Seaman's Friend Society, was not regarded as an actual testamen- 130 Mass. 91, the English and American tary disposition, but as fixed and final rule with its qualifications is succinctly instructions which sudden death alone stated by Gray, C. J. prevented the writer from executing in 80 CHAP, II.] PROBATE OF THE WILL. § 63 requisite by the law of his last domicile, and which purport, moreover, to dispose of any or all of his estate upon his decease, ought to be presented to the probate court for such decision as may be proper concerning their testamentary character. And the modern English decisions, prior to statutes of Victoria's reign, show a very liberal, not tg) say lax, course of dealing with wills of personal property in this respect,' the ancient rule hav- ing been comparatively stringent. Thus the intended exercise of a power might legally operate as a will.^ A memorandum of present trust for the use of A. after one's decease, accom- panied by delivery of the property, might be regarded as testa- mentary.' Deeds, bonds, letters, marriage settlements, bills of exchange, promissory notes, and even the endorsement upon a negotiable instrument, might operate to confer a legacy, and, so far as its tenor justified, to establish a last testament.'' And in both England and the United States, it must be considered the rule of the present day, by a great preponderance of authorities, that the form of a will is by no means essential to its testamen- tary character ; for if the writing or writings duly witnessed, es- tablish an intent to operate a disposal, in whole or in part, of one's estate upon the event of his decease, a probate is proper.^ Hence the inference, likewise supported by abundant citations, that even though one may have intended to dispose by some in- strument of a different sort, and not by a will, yet his disposition being incapable of taking effect in the one shape, it might take effect in the other ; for, as the person had, if not the mind to ' "There is nothing that requires so ^ Tapley v. Kent, i Robert. 400. little solemnity as the making of a will ■• See i Wms. Exrs. 104, 105, and of personal estate, according to the ec- numerous cases cited ; i Kedf. Wills, clesiastical laws of this realm ; for there 2d ed. 167; Passmore v. Passmore, i is scarcely any paper writing which they Phillim. 218. That the modern rule is will not admit as such." Per Lord even more dangerously lax with respect Hardwicke in Ross v. Ewer, 3 Atk. 163. to establishing gifts causa mortis of in- Before the operation of Stat, i Vict. c. corporeal personalty, see 2 Schoul. 26, no solemnities were needful for a Pers. Prop. 182. will of personal property. i Wms. ' i Wms. Exrs. 7th ed. 104-107, and Exrs. 7th ed. 66. numerous cases cited ; also Perkins's «. ^ Southall V. Jones, i Sw. & Tr. 298. toib.; Schoul. Wills (1887), Part III.c. i. And so as to a power of attorney. Rose V. Quick, 30 Penn. St. 225. 6 81 §63 EXFXUTOKS AND ADMINISTRATORS. [part II. make a will, the mind, nevertheless, to dispose hi such a man- ner as wills operate, his intention may well be executed.' A will to be valid requires the genuine aiiiniiis tcstandi ; the mind should act freely and understandingly to this intent. - ' I Wms. Exrs. 104-107; Masterman V. Maberly, 2 Hagg. 247 ; Morgan, Goods of, L. R. I P. & D. 214 ; I Redf. Wills, 167. Where one makes a deed to take effect only on his death, this has been sustained sometimes as a deed where insufficiently executed to serve as a will. Moye v. KiUrell, 29 Geo. 677. As to whether an instrument, invalid as a deed, but intended to operate as such, can take effect as a \\-ill, the English rule is very subtle, as our text indicates. Edwards v. Smith, 35 Miss. 197; 2 Strobh. Eq. 34 ; Schoul. Wills, § 270. Papers which are not on their face of a testamentary character require to have the animus tcstandi proved; while a regular paper speaks for itself on that point. Thorncroft v. Lashmar, 2 Sw. & Tr. 794. An instrument manifestly executed as a will is to be admitted to probate without considering its effect. Taylor v. D'Egville, 3 Hagg. 206. Un- der various statutes a paper having all the formalities of a deed, but concluding that the deed shall not go into effect "until after the death of said B." (the grantor) or otherwise having reference to the contingency of death to make it operative, is held testamentary. Bright V. Adams, 51 Ga. 239 ; Frew v. Clarke, 80 Penn. St. 171 ; Daniel v. Hill, 52 Ala. 430. Orders upon savings-banks are held testamentary. Marsden, Re, i Sw. & Tr. 552. An instrument in the form of a letter may be a valid will. Cowley V. Knapp, 42 N. J. L. 297. And see as to various brief and informal instru- ments manifesting the testamentary in- tent, 1 Redf. Wills, 4th ed. 165-181, and ca.ses cited; Schoul. Wills, §§ 265-274, where this subject is treated at lengtli ; Clarke v. Ransom, 50 Cal. 595. In short, the form of a will is un- important ; but any paper of a testamen- tary character, which is executed after the statute formalities, is entitled to pro bate. McBride v. McBride, 26 Gratt. 476. As to a will executed in contempla- tion of a particular casualty which did not happen, and conditional wills gen- erally, see 1 Redf. Wills, 176, 177, and cases cited; French zj. French, 14 W. Va. 45S ; Schoul. Wills, § 285 ^/j^^. and cases cited. The point of inquiry is whether the contingency was the occa- sion of execution simply, or the condi- tion on which the will was to become operative. Notwithstanding the English cases decided before the statute of i Vict. c. 26, which paid so much regard to inten- tional dispositions of personalty infor- mally executed, we may regard it as the settled doctrine of American States that a will must be perfect in the testamen- tary sense at the decease of the testator, or it cannot take effect as a will ; and this because American statutes have long prescribed certain formalities of execution as indispensable, including a due attestation by witnesses. Mere drafts or minutes of a will are therefore inadmissible to probate. See i Redf. Wills, 225; Schoul. Wills, §§ 252, 253; Vernam v. Spencer, 3 Bradf. Sur. lO; Ruoff's Appeal, 26 Penn. St. 219; Aurand v. Wilt, 9 Penn. St. 54 ; Lun- gren v. Swartzwelder, 44 Md. 482 ; Hart V. Ru!^t, 46 Tex. 556. But some of our earlier decisions, made under statutes less explicit, appear to conform to the contemporaneous Knglisli rule. See Boofter r'. Rogers, 9 Gill, 44. - Schoul. Wills, §§ 278, 279. 82 CHAP. II.] PROBATE OF THE WILL. §63 Under the statutes, however, which insist explicitly upon a formal method of execution, — as by acknowledging in the pres- ence of three or more witnesses, such as are rarely found at- testing instruments of other kinds,' — much of this refinement upon the animus tcstandi is dispensed with, and the law of wills becomes restored to its legitimate footing. Orders, bills of ex- change, and papers hastily drawn up may even thus demand judicial recognition as wills ; ^ but the solemnity of an execution with attestation affords a reasonable assurance that the deceased intended thereby a testamentary act with its attendant conse- quences to his estate after death. The witnesses become ' There are great variations (as one may gather from general works on Wills) concerning the number of witnesses re- quired for the due attestation of a will. In England, prior to 1838, a devise of real estate had to conform to the stat- ute of frauds in certain respects which did not apply to wills of personal prop- erty; the latter being, of necessity, re- duced to writing, generally speaking, but under the statute requiring no fur- ther formality ; so that the same will, if professing to dispose of both real and personal estate, might operate in the latter respect, but not in the former. But the new statute, i Vict. c. 26, which took effect in 1838 (permitting wills pre- viously executed to remain valid), abol- ished this mischievous distinction for the future, and superseded the old pro- visions of law by new ones which ex- acted the same formalities of execution, whatever the description of property ; declaring that no will, except those of soldiers and mariners, should be valid unless in writing, executed at the foot by the testator, and acknowledged in the presence of two or more witnesses, i Wms. Exrs. 66, 67. Hence English citations should be distinguished under these two systems by the American prac- titioner of this day who has been accus- tomed to solemn forms of execution under his local law. Our American statutes which are of local origin pre- sent great variety, but on the whole treat real and personal estate alike. Schoul. Wills, Part III., cs. 2, 3. But no particular form of attestation by the witnesses is in general required by English or American statutes. Schoul. Wills, Part III, c. t„ passun. ^ A paper executed, with all due for- malities, such as a bill of exchange, is entitled to probate. Jones v. Nicholay, 2 Rob. 288. So may a deed addressed to one's administrators and executors. Frew V. Clarke, 80 Penn. St. 171. And see, as to a simple order contained in a single sentence. Cock v. Cooke, L. R. 1 P. & D. 241 ; Coles, Goods of, L. R. 2 P. & D. 362. Doubtless an instru- ment formally executed as a will, would, if shown to be done in jest, have no legal operation. Nicholls v. Nicholls, 2 Phillim. 180; Schoul. Wills, § 278. But such jests are too rarely perpe- trated to occasion perplexity. Palpable error in executing may vitiate ; as where two wills were prepared for execution each by A. and B., and through mistake A. executed the will prepared for B. Hunt, Goods of, L. R. 3 P. & M. 250. See Schoul. Wills, §§ 214-218. 83 § 64 EXECUTORS AND ADMINISTRATORS. [PART II. sponsors to the probate court when the maker's own lij)s are silent," There is all the more reason for hedging testaments about with peculiar formalities, inasmuch as our courts i^ermit a testa- mentary disposition of one's estate to be partial as well as total, and in some instances appear even to have ct)nsidered that the same instrument might operate partly /;/ prcesciiti and partly after death ; - so that, except for the safeguards of statute exe- cution, probate would little aid the sound public policy of a gen- eral and equal distribution. Nothing causes such private heart- burnings or so wrecks the peace of families as the ill-considered will of an ancestor, and the bestowal of preferences out of his estate to particular kinsmen or strangers, which they may be suspected of having procured unfairly. § 64. By whom the Will should be propounded for Probate. — The duty of propounding the will for probate devolves nat- urally upon the person or persons designated to execute its pro- visions. Nor ordinarily can the designated executor relieve himself of this duty except by filing his renunciation in due form as of probate record, and discharging himself of custody in a prudent manner. But the executor might be absent or incapacitated for service, when the emergency, so often unfore- seen, of the testator's death arose, or else in culpable default. Probate, and more especially the production of the document for probate custody, is transcendent, however, to all such mis- chances, and the public necessity of clearing titles and placing the dead person's estate in due course of settlement for the ben- efit of creditors and all others interested, paramount to the right of any jmrticular person to execute the trust. When the j^erson entitled renounces or fails to qualify, the court has recourse to the appointment of an administrator with the will annexed ; and in case of protracted contest or inevitable delay from one cause or another, may commit the estate to a temporary or special 'Schoul. Wills, § 279. Thompson ?'. Johnson, 19 Ala. 59. See ^ See Doe z/. Cross, 8 Q. B. 714. But Devecmon r. Devecmon, 43 Md. 335 ; cf. as to whether the same instrument Schoul. Wills, § 270. can operate both as a deed and a will, 84 CHAP. II.] PROBATE OF THE WILL. § 6$ administrator for collection and preservation of the property ; all of which will appear more fully hereafter,' But the will itself must be produced before the court or register, whoever may be its custodian ; and the death having conferred a probate juris- diction, any person interested, or who believes himself inter- ested in the estate of the deceased, may petition for citation to have the will brought into the court. Of a custodian's excuses for delay or non-production under such circumstances the court shall judge.^ § 65. Petition and Proceedings for Probate, etc.; Probate in Common Form and Probate in Solemn Form. — Any one, there- fore, who claims an interest under what purports to be the will of the deceased, or who wishes to discharge himself of its cus- tody, may have the instrument seasonably surrendered into the probate custody. And it is held that, whenever the executors decline to offer an instrument for probate, any one claiming an interest under it, and not a mere intruder, may present it in his stead. ^ Usually, however, the petition for probate embraces that for the appointment of executor or administrator with the will annexed, and is presented by the party claiming the office ; and under the simple probate practice of our American county courts, the petitioner sets forth, in a printed blank, the facts of death and last domicile of the deceased, the names and places of residence of the surviving widow or husband and next of kin, and, alleging that the paper or papers presented constitute 'See c. 4, /(7J-/, as to administration, tain a petition for the allowance of a will '^Godolph. pt. I, c. 20, § 2 ; 3 Redf. wherever the law authorizes him to do Wills, 2d ed. 45 ; 1 Wms. Exrs. 318- so; and it is unimportant that thepeti- 320; Foster v. Foster, 7 Paige, 48. It tioner applies under the wrong statute, is matter of public interest that the will Schober v. Probate Judge, 49 Mich. 323. should be produced. Any one expect- Under some codes the clerk or regis- ing a legacy may thus petition, as the ter may give notice and take all initial old books say, " to the intent that they steps for probate, whenever any one may thereby be certified whether the files the will at his office. 107 Iowa, testator left them a legacy." Godolph. 384. ib. The jurisdiction of the local pro- ^Ford?^. Ford, 7 Humph. 92; luiloe bate court for thus subserving public v. Sherrill, 6 Ired. 212; Stone v. Hu.v- policy is usually detailed by the local ford, 8 Blackf. 452. statute. A probate judge should enter 85 § 66 EXECUTORS AND ADMINISTRATORS. [PART IL the last will and testament of the deceased, prays his appoint- ment, making due reference to the foundation of his claim for the office, and his willingness to qualify according to law.' Probate law recognizes two modes of proving a will: (i) in common form; (2) in solemn form, or, as it is smd, />e7' fesfes, or by form of law. The essential distinction consists in a care- ful establishment of the validity of the will by proof under the latter method, but not under the former ; though the line is not drawn with uniform exactness as respects English and Ameri- can practice on this point. § 66. Probate of Will in Common Form. — (l) As to the first method, probate in common form applies only for convenience, expedition, and the saving of expense where there is appar- ently no question among the parties interested in the estate that the paper propounded is the genuine last will, and as such entitled to probate. For contentious business before the court, probate in common form would be quite unsuitable. According to the EngUsh ecclesiastical practice, in which such probate originated, a will is proved in common form, as the books state, when the executor presents it before the judge, and in the absence of, and without citing, the parties interested, produces more or less proof that the testament exhibited is the true, whole, and last testament of the deceased ; whereupon the judge passes the instrument to probate and issues letters testa- mentary under the official seal.- An important feature of this practice, from the earliest times, has been the oath of the exec- utor who propounds the will for probate as to all the essential facts ; and upon this oath so great reliance has always been laid in England, that by means of it a will purporting to be duly attested by witnesses, undisputed arid apparently regular upon its face, is readily probated. And the Court of Probate Act of 1857 (20 & 21 Vict. c. jy), treats the disposition of all such non-contentious business as so purely formal that j)robatc or ' Smith Prob. Pract. (Ma.ss.) 45. The probate. Hathaway's Appeal, 46 Midi, testamentary capacity of tlie testator 326. need not be alleged ii\ the petition for -Swinb. pt. iG, §14, pi. i; Wms. Kxrs. 325. 86 CHAP. II.] PROBATE OF THK WILL. § 66 letters of administration may in common form be procured from the registrar ; direct application to the court being nevertheless permitted, as parties may prefer.' Where there is no contention, nor reason for contention, English practice leaves the executor to his own choice as be- tween taking probate of the will in common or in solemn form. And it is observable of English probate in common form, not only that the mode of proof is thus made to subserve the ex- ecutor's convenience as far as possible, but that no notice need be given to persons interested in the will, nor opportunity afforded them to object to the proof. The registrar or court, however, is expected to hold the scales impartially, to require sufficient testimony for establishing the paper as prima facie a testamentary one, duly executed, and to admit nothing to pro- bate but what appears entitled thereto. Where probate in common form is sought of an instrument which on the face of it is imperfect, probate will not be granted except upon affidavits stating a case sufficient to establish the will upon solemn proof, and upon the express or implied consent, moreover, of all the parties interested. Neither can the consent of all interested parties procure the grant in common form of an apparently in- valid will ; nor can affidavits establish a doubtful instrument aside from citing in the parties interested or procuring their formal waiver of the doubt." In wills of modern date, requir- ' Wms. Exrs. yth ed. 320-332, citing one person only) to the testator's sig- sections of the above statute, together nature. i Wms. Exrs. 327-330, and with rules and orders of court. To un- cases cited; Brett v. Brett, 3 Add. 224. derstand the English precedents relat- In the latter instance, the rule is, to ad- ing to probate in common form, one mit to probate in common form any must distinguish between wills made will which has a clear attestation clause prior to 1838, when wills of personal upon the executor's oath alone; but if property required no formal attestation the attestation clause does not speak by witnesses, and wills made since, upon clearly and there remains doubt, to re- which statute i Vict. c. 26 [supra, § 63) quire one of the subscribing witnesses operates, requiring two witnesses. In to testify as to regularity; this require- the former instance the will, if attested ment being, however, dispensed with at by two subscribing witnesses, might be discretion, i Wms. Exrs. 330-332, and admitted to probate upon the executor's cases cited ; Hare, Goods of, 3 Curt. 54. oath, if all appeared regular ; or, when * i Wms. Exrs. 329, and cases cited ; not attested at all, by an affidavit of Edmonds, Goods of, i Hagg. 698 ; two persons (or in an extreme case, of Tolcher, Goods of, 2 Add. 16. Where 87 § 67 EXECUTORS AND ADMINISTRATORS. [PART II. ing attestation by two witnesses under the statute i Vict. c. 26, affidavits are called for where there is no regular clause of attes- tation ; and if it thus appears that the will was executed in due compliance with the statute, the informality becomes of no legal consequence ; but, if otherwise, the court rejects the prayer for probate in common form, leaving all interested parties to their own course, whether to propound the will afterwards in solemn form or to proceed as in case of intestacy.' Where executors propound a certain instrument, claiming that another paper, which the testator executed afterwards, is invalid as a will, and such claim appears correct, besides which the persons interested in the late paper, after citation to propound it for probate, de- cline to do so, but assent to the earlier one, probate in common form of the earlier paper would be proper.^ § ^J . Probate of Will in Common Form ; the Subject con- tinued. — The probate of wills in common form is permitted by the local laws of several American States, and, as in England, upon a reasonable assumption that the instrument presented is valid in all respects, and its proof not contested by any of the parties interested. ^ Thus, in New Hampshire, this mode of probate finds distinct statute recognition ; not, however, with a similar reliance upon the executor's oath ; for, American law commonly demanding attestation by witnesses, the judge ap- proves in common form upon the testimony of one of the sub- scribing witnesses alone, without requiring the other wit- nesses to attend ; though approval is given apparently upon ex parte proceedings, as in England, so as to dispense with a cita- tion to persons interested in the estate.'* minors are parties interested, probate 'Thus it is or has been recognized in in common form cannot usually be ob- New Hampshire, North Carolina, South tained of a will which is apparently im- Carolina, Mississippi, etc. Armstrong perfect, since their consent is unobtain- v. Baker, 9 Ired. 109; Kinard v. Rid- able. Gibbs, Goods of, i Hagg. 376. dlehoover, 3 Rich. 258 ; Jones v. Mose- And as to issue born after probate, see ley, 40 Miss. 261; Martin v. Perkins, Taylor, Goods of, i Hagg. 642. 56 Miss. 204. And see as to New Jer- 'Ayling, Goods of, i Curt. 913.... ^^^^sey, 52 N. J. Eq. 319. ^Palmer v. Dent, 2 Robert. 284; i ■'George v. George, 47 N. H. 44; Wms. Exrs. 332. Noyes v. Barber, 4 N. H. 406. 88 CHAP. II.] PROBATE OF THE WILL, § 68 The intent of such probate in common form, granted ex parte, appears to be, that in case contest shall hereafter arise, solemn proof shall be required and the former decree may be set aside accordingly. § 68. The Subject continued ; American Statutes as to Non- Contentious Business. — What in an American State would be called probate in common form may well vary still farther from the English method, as do the statutes in comparative historical sequence, both as respects the needful formalities of wills and probate jurisdiction. Citation, for instance, being simple and inexpensive, or by a county newspaper publication rather than personal summons, and practical distinctions between wills of real and of personal property being quite out of favor, in Ameri- can jurisprudence, the American procedure usually refers pro- bate to the judge, while the register, exercising no such func- tions, receives simple ofificial custody of the so-called will, and upon the petition for probate placed upon his file at any time, orders a citation to be published, that all parties interested ma}- appear before the judge at the next convenient court day. An excellent statute in Massachusetts, to which we shall presently allude again, provides that, when it appears to the court, by the written consent of the heirs-at-law, or other satisfactory evi- dence, that no person interested in the estate intends to object to the probate of the will, the court may grant probate thereof upon the testimony of one only of the subscribing witnesses.' Probate under this statute is not rendered ex parte, or with the inconclusiveness of a strict probate in common form, but stands to all intent as a probate in solemn form, because all the inter- ested parties must have been brought within the scope of a ju- The probate of a will in common form and wthout notice to the heirs, form is effectual and binding until at- and if upon the hearing counsel appear tacked and overturned in direct pro- for the heirs and cross-examine the wit- ceedings. Tucker v. Whitehead, 5S nesses to the will, this does not waive Miss. 762. Probate in solemn form is the probating in solemn form. Gray ta made after all persons whose interests Gray, 60 N. H. 28. may be affected have been duly noti- 'Mass. Gen. Stats, c. 92, § 19; post fied and had an opportunity to be heard. § 70. If a petition is for probate in common 89 § 6g EXECUTORS AND ADMINISTRATORS. [l\AKT It. dicial investigation, and their respective rights fairly protected. For, as we must bear in mind, the essential facts which entitle a paper legally to probate do not differ, whether the probate is contested or not contested. And as between the executor named in a will and a mere subscribing witness, the testimony of the latter is the safer, as a rule, to depend upon in all cases of probate, § 69. Probate of "Will in Solemn Form; English Practice. — (2) As to the second method of proving wills. Probate in solemn form is the only kind suitable where the validity of the will is disputed ; and to accept the English, though not, per- haps, the American, distinction, the only kind which a judge alone, and not a register, is empowered to grant, and which necessarily brings in all interested in the estate as parties to the probate proceedings, so as to be bound by the final decree. The English probate court has established rules for conten- tious business of this description. Thus, an executor may be compelled to prove a will in solemn instead of common form by any one of the next of kin, or a person interested in the will, such person having first filed a caveat in the court which takes jurisdiction of the estate of the deceased, to the intent that notice shall be given him of any application for probate, and af- terwards responding to a notice sent from the registrar accord- ingly.' So, too, after an executor has propounded and proved the will in common form, he may be put to the proof over again, per testes, in solemn form, by any person having an interest, and this (as it has been held) notwithstanding a long lapse of time, like thirty years, and the great inconvenience of procuring proper testimony, which the executor may suffer in consequence.^ ■ 3 Reclf. Wills, 2d ed. 27 )/. ; Rules seems to limit the time of compelling and Orders under 20 & 21 Vict. c. 77, such solemn probate to ten years; but and 21 & 22 Vict. c. 95. Upon the Williams considers this a typographical party answering to his notice, the con- error, i Wms. Exrs. 334, ;/. One who tentious bu.siness is held to commence, lets a long time elapse before requiring and the register enters the cause upon such probate can claim no indulgence the docket accordingly. of the court, and nothing beyond his "2 Wms. Exrs. 334; Godolph. pt. i, legal rights. Blake r. Knight, 3 Curt, c. 20, § 4. Swinburne, pt. 6, § 14, pi. 4. 553. Where no statute fixes the bar- 90 CHAP. II.] PROBATE OF THE WILL. § 69 That the next of kin acquiesced in proving the will in common form does not debar him from insisting afterwards upon the solemn probate ; nor does even his receipt of a legacy under the will, provided he brings the legacy into court before pur- suing his right, that its payment may abide the result of the contest.' The right of the next of kin as such to require proof of the will in solemn form is absolute ; and the same right ex- tends to any party in interest. But some interest, however re- mote, must be shown before the executor can be put to so troublesome a task. A creditor as such has no recognized in- terest in the probate, but only a right to ascertain whether there be assets sufficient to meet the debts.- But as amicus ciiricB and without costs any creditor may contest a will ; and it would appear that whenever the court or registrar finds that probate in common form ought not to be granted, probate in solemn form may be compelled, though the practice is to wait until some interested party opposes the will of his own motion.^ Finally, in English practice, the executor may himself pro- pound the will in solemn form, in the exercise of a rightful dis- cretion."* And manifestly, wherever the executor is not of kin and sole legatee, but other large pecuniary interests are at stake, this must be his only prudent course ; unless it is certain that the will is neither objectionable in itself nor likely to be objected to. In such case, the executor cites the next of kin and all others claiming an interest, to attend the proceedings ; and at the appointed time, the will having been proved by suf- ficient testimony, upon a hearing, and all direct contest, should rier, it is after all uncertain whether ' Cas. temp. Lee, 544 ; Menzies v. any specific time can be set for limiting Pulbrook, supra. The vexatious con- such compulsion. 2 Phillim. 231, note, duct of a party in interest, who compels ' Benbow, Goods of, 2 Sw. &Tr. 448; probate in solemn foiTn, after permit- Core V. Spenser, i Add. 374 ; i Wms. ting probate in common form, affords Exrs. 336, 337. A legatee who has re- reason rather for condemning him in nounced administration with the w!l costs than for denying the right of com- annexed is not debarred from compel- pulsion. See Bell v. Amistrong, i Add. Ung solemn probate. 2 Cas. temp. Lee, 375. 241. * I Wms. Exrs. 335; 3 Redf. Wills, ^ I Cas. temp. Lee, 544 ; Menzies v. 3d ed. 27 «. Pulbrook, 2 Curt. S45 ; i Wms. Exrs. 91 § JO EXECUTORS AND ADMINISTRATORS. [pART II. any arise, and the proceedings in the case terminating in a pro- bate of the will in solemn form, the judgment stands conclusive like other final judgments, unless appealed from.' Citation to all parties in interest is a feature incident to all contentious proceedings for establishing a will. And while English probate practice had reference formerly to wills of per- sonal and not real estate, the Court of Probate Act of 1857 re- quires heirs-at-law and devisees to be cited whenever the valid- ity of a will affecting real estate is disputed, on i)roving it in solemn form, or in any other contentious cause ; and the validity of the will being once solemnly adjudged, the decree binds for- ever all persons thus cited or made parties.^ § 70. Probate of "Will in Solemn Form ; American Practice. — Our American practice being simple and inexpensive by com- parison, less occasion is found than in England for duplicating probates ; and in most States one probate practically concludes all issues. This probate deserves the style of solemn form (though seldom designated as such), and borrows certain fea- tures, including the citation, from the English s]:)iritual })ractice. One rule applying in general, whether the will relate to real or personal estate, or to both,^ the citation which issues from the ' lb. Even though certain next of Thus notice must be mailed to each kin were not regularly cited ; yet their heir or personally served. Bartel's Es- actual cognizance that probate in solemn tate, Myrick (Cal.) 130; Cobb, Estate form was pending through the citation of, 49 Cal. 600. In a suit to contest of others binds them to oppose or be the validity of a will, the legatees and forever barred. Ratcliffe z'. Barne.s, 2 devisees are made indispensable parties Sw. & Tr. 486. in Ohio. Reformed I'resb. Church v. ^ Act 20 & 21 Vict. c. 77, §§ 61, 63; Nelson, 35 Ohio St. 638. But not in Wms. Exrs. 341 ; Fyson v. Westrope, i New \'ork, where they may intervene Sw. & Tr. 279. but need not be cited. 2 Demarest, 160. ^ Such, for instance, is the practicein And see 9 Lea, 571, as to a devisee. Mas.sachusetts, which is similar to that The next of kin has an interest en- of many other States. Smith Prob. titling him to contest the probate of an Pract. 46 ; O'Dell v. Rogers, 44 Wis. alleged will ; so, also, one who by the 136; Parker v. Parker, 11 Cush. 519. probate would be deprived of rights un- In some parts of the United States per- der a former will. Merrill v. Rolston, sonal service or summons is insisted 5 Rtdf. (N. Y.) 220. No appointment upon, and newspaper publication alone of z. guardian ad litem for a minor in- will not give jurisdiction of the parties lerested is necessary. Mousseau's Will, interested sufficient to conclude them. 30 .Minn. 202. Newspaper publication 92 \ CHAP. II.] PROBATE OK THE WILL. § 70 register's office, upon the filing of the will accompanied by one's petition for letters testamentary or of administration, embraces in terms hcirs-at-law, next of kin, and all other i)crsons inter- ested in the estate of the deceased. These arc summoned to appear in court at a day named, and show cause, if any they have, why the will should not be allowed and the petition granted. This citation requires usually no personal service, but simply publication by copy in some designated newspaper which circulates in the county of the testator's last domicile. Sometimes the petitioner is ordered to mail copies to the parties interested besides. Once a week, for three successive weeks, is the rule of publication in many States ; though the form and terms of notice are largely in the discretion of the judge. Formal notice is dispensed with when the heirs-at-law, next of kin, and all others interested in the estate of the deceased ex- press in writing their waiver of notice in favor of the petition, being all sui juris ; otherwise, the petitioner, having served the citation in accordance with the terms prescribed, makes his return of the fact under oath, on or before the day fixed for the hearing. The procedure being thus essentially in solemn form, inas- much as heirs, kindred and all other parties interested are suf- ficiently summoned and made parties to the hearing for probate, to contest then and there the will propounded, if they so de- sire, examine all the witnesses to the will and introduce counter testimony, the judicial hearing, whether upon contest or not, concludes the validity of the will ; subject, of course, to vacat- ing probate on appeal, the submission of issues of fact to a jury, impeachment by direct proceeding, and other rights, such as local statutes and practice may secure. The decision of the county judge of probate is that of the lower tribunal of com- petent original jurisdiction, and concludes, while undisturbed, the common-law courts.' And the only distinction worthy here or personal service upon all parties in- to probate proceedings can make no terested, is permitted at discretion by motion therein. 5 Redf. (N. Y.) 326. many local statutes; but the former Local statutes should be consulted on course is the more convenient. One such points of practice, who has not been formally made a ])arty ' Brown v. Anderson, 13 (leo. 171 ; 93 §7o EXECUTORS AND ADMINISTRATORS. [PART II. of regard is, that while at the probate hearing the propounder of a will, who anticipates a contest, must be prepared to prove his case {subject to any adjournment of the case for good rea- sons), probate where no contention arises, may be granted on the favorable testimony of a single subscribing witness, as the statutes of some States expressly provide." There are States, however, in which the probate in solemn form is distinguished, as in England, from that in common form, and where the due citation of all persons in interest to witness the proceedings and the production of the will in open court, for proof upon testimony which they may fully controvert, becomes appropriate to contentious cases, or else calls for an executor's discretion.- In such States, the law sometimes limits the period within which a probate in common form may rightfully be contested.^ And in various States, as in English practice, an interested party may file a caveat against the probate of a will he means to contest.-* 1 Wms. Kxrs. ^^;i, Perkins's ;/. " We understand a probate in .solemn form to be a probate made by a judge, after all persons whose interests may be affected by the will have been notified and had an opportunity to be heard on the sub- ject." Richardson, C. J., in Noyes z>. Barber, 4 N. H. 409. And see Town- send V. Townsend, 60 Mo. 246 ; Parker V. Parker, 11 Cush. 524; Marcy z'. Marcy, 6 Met. 367. ' Mass. Gen. Stats, c. 92, § 19; Dean V. Dean, 27 Vt. 746; Rogers f. Winton, 2 Humph. 178 (as concerns a will of personal property). Such a statute, in aid of a probate procedure so inexpen- sive as ours, secures the main advan- tage of a probate in common form while avoiding its obvious disadvan- tage. It is very desirable that such en- actment should be general in the United States. In some States the propounder of a will is bound to have all the sub- scribing wtnesses ready to testify (three or more in number, as some States re- quire, for a due attestation), even though the attestation clause should appear perfect and the will regular upon its face, and no one objects to the probate. See Alli.son ?•. Alhson, 46 111. 61 ; 3 Redf. Wills, 37, ;/. This appears a useless formality and expense to an estate. . But even though all parties interested waive objection, as they might do by collusion, the court should not, we ap- prehend, admit a will to probate with- out calling for another witness or better testimony, if the single subscribing wit- ness fails to make satisfactory proof, and the vahdity of the will is not made out as a prima fade case. ^ Brown v. Anderson, 13 Ga. 171 ; supra, § 67. 3 I Wms. Exrs. 335, Perkins's «. ; Parker v. Brown, 6 Gratt. 554 ; Roy v. Segrist, 19 Ala. 8ic ; Martin v. Perkins, 56 Miss. 204. Probate in the common form cannot be pleaded as res judicata in a direct proceeding to determine the validity of a will. Martin v. Perkins, 56 Miss. 204. '17 N. J. Eq. 585; 62 Md. 342. 94 CHAP. II.] PROBATE OF THE WILL. § 73 § 71. Contest over Conflicting Testamentary Papers. — Contest may arise over the probate of contiicting testamentary papers, each of which has been propounded as the instrument truly en- titled to probate. Here the object being to ascertain which, if either or any of them, embodies in testamentary form the last wishes of the deceased, proof of the instrument of latest date comes first in order.' A similar rule applies where the validity of particular codicils is in dispute. § J 2. Agreement of Parties in Interest to conform to an Invalid Will, etc. — Out of respect to the wishes of a deceased person, all parties in interest in his estate may agree to carry out pro- visions of a certain will or codicil, which, for want of due execu- tion or other cause, must be pronounced invalid. To such agreements, all who may be lawfully entitled to share in the es- tate and its benefits (creditors not included) should be made voluntary parties. Such transactions, in fact, stand upon the footing of general dispositions by the rightful owners of prop- erty, and cannot operate to entitle to probate what was not, in the legal sense, a will. But where a pending contest has been adjusted out of court, by all the parties interested, and opposi- tion is withdrawn to the particular will propounded, such will may be passed to probate on prima facie evidence of its valid- ity, leaving private arrangements concerning the distribution of the estate for the parties to prove and enforce in other courts, or carry out amicably among themselves.' § 73- T^6 Proof Needful to establish a Will; Proceedings at the Hearing for Probate. — The party who propounds a will for probate should be prepared to prove affirmatively three things, ' Lister v. Smith, 3 S\v. & Tr. 53. of a will whose admission was contested, 'See Greeley's Will, In re, 15 Abb. to ^\-ithdraw the same from probate; Pr. N. S. 393. Courts of probate have but sttnble not the testimony and pro- no power or discretion to superadd other ceedings on an application for probate, conditions or dispense A\-ith any of those Heermans v. Hill, 4 Thomp. & C. 602 ; emmierated in the statute as necessary Greeley's Will, 15 Abb. Pr. N. S. 393. to admit a will to probate. Doran v. Compromises are permitted by local Mullen, 78 111. 342. A New York sur- statute, rogate has power to allow the proponent 95 § yi EXECUTORS AND ADMINISTRATORS. [PART II. as conformity with the statutes, English or American, at the i:)resent day usually demands : ( i ) that the will was in writing duly signed by the testator, or under his express direction ; (2) that the will was attested and subscribed in presence of the testator by the requisite number of competent witnesses ; (3) that the testator at the time when such execution took place was of sound and disposing mind. In other words, the essentials of a statute execution must be shown as a fact ; and further, that the testator was at the time of such execution in suitable testamentary condition ; which latter essential involves several elements, as we shall presently show, not easily to be com- pressed into a single verbal expression. In the foregoing respects, and in general, to show that the instrument propounded was the testator's last will and testa- ment, the burden of proof rests upon the party who offers the instrument for probate ; and what is here said of a will applies also to each codicil which may be offered with it." And inas- much as the burden of proof rests thus upon the proponent, as to due execution of the alleged testator's competency, he is en- titled to open and close the case where a jury is empanelled.^ But the usual rules of evidence apply to such judicial hear- ings. The proponent is aided by legal presumptions, and the burden of proof may shift from one side to the other in the course of a hearing. By the old rule of the English eccle- siastical courts, one witness could not make full proof of a will in solemn form ; ^ and yet, as we have seen, various American statutes now permit a single satisfactory witness to prove a will which no party in interest objects to,^ while sound modern practice here, as in England, insists that the rules of evidence applicable in common-law tribunals shall be observed in the trial ' 2 Wms. P^xrs. 20, 342; Sutton v. ^Robinson v. Adams, 62 Me. 369; Sadler, 3 C. B. N. S. 87 ; Robinson v. Taff v. Hosmer, 14 Mich. 309. Adams, 62 Me. 369; Crowninshield ^ i Wms. Exrs. 342 ; Evans z/. Evans, V. Crowninshield, 2 Gray, 524 ; Taff v, i Robert. 165. Hosmer, 14 Mich. 309; Delafield v. '^ Sitpra,^ 70. But see requirement Parish, 25 N. V. 9; Comstock v. Had- of a New York statute that all the wit- lyme, 8 Conn. 254 ; Evans v. Arnold, 52 nesses shall be examined, if residents, Ga. 169; Gerrish v. Nason, 22 Me. 438. etc. Swenarton v. Hancock, 22 Hun, 43. 96 CHAP. II.] PROBATE OF THE WILL. § 73 of all questions of fact before the court of probate.' The party who has the burden of establishing a will gives evidence by his subscribing witnesses of such facts as make owl prima facie z. valid testamentary instrument ; showing, as he ought, that the execution was formal and regular, with respect to both signature of the testator and the attestation ; and that the testator ap- peared to be of sound and disposing mind and capacity. The proponent seldom has to go beyond formal proof by the sub- scribing witnesses (who, from their peculiar connection with the testator and his instrument, should be deemed of the first con- sequence in the proof), and possibly one or more of these may be dispensed with. Whether more proof be requisite on his part must depend upon circumstances, and particularly (the instrument itself appearing regular on its face) upon the mode and force of the opposition developed at the hearing. It is for the contestant, after cross-examining the proponent's witnesses, to enter upon proof of alleged incompetency in the testator, or other ground for breaking down the will, before the proponent need put in his whole case, and present affirmatively all he has to offer on such an issue.^ In such a sense, but not more em- phatically, it may be said that when the proponent has proved the due execution of a paper not incompatible in its structure, language, or details, with sanity in the testator, and when, upon such formal testimony, notwithstanding the cross-examination of his own witnesses, it is probable that the will was executed by one at the time in competent testamentary condition, the bur- den of showing the contrary becomes shifted upon the con- ' See English statute 21 & 22 Vict, defence, would, in many cases, be equiv- c- 77> § 7)7, (court of probate act of alent to a denial of justice. For, al- 1857), to this effect, cited i Wms. Exrs. though there would still be a right to 344; Wright V. Tatham, 5 CI. & Fin. give rebutting evidence, this, in the sense 670. And see Hastings v. Rider, 99 in which rebutting evidence must then Mass. 625, per Gray, J. be understood, would be of little value, ^ See Cooley, J., in Taff v. Hosmer, since it must be confined to disproving 14 Mich. 309. " All rules of evidence," facts and circumstances shown by the observes the court, in the lucid opinion defence." here pronounced, " are designed to elicit As to probate of a will and the testi- truth ; and it is obvious that to require mony in such controversies, ?,ee passim, the proponent to anticipate, at his peril, Schoiil. Wills, Part II. the case that would be shown by the 7 97 § 74 EXECUTORS AND ADMINISTRATORS. [PART II. testants of the will. And should the contestants thereupon establish incompetent testamentary condition, or other ground for refusing probate of the will, the burden shifts back to the proponent, who, as the result of the whole hearing, is bound to establish satisfactorily the essentials we have stated. But fraud or undue influence must be proved by those who allege it.' § 74- Proof of the Will ; Instrument to be in "Writing, and signed by the Testator. — The English Statute, I Vict. C. 26, § 9, concerning the execution of wills, does not require literally a signature by the testator himself ; but that the will should be in writing and signed by the testator or by some other person in his presence and by his express direction.'' And such is the expression, likewise, of various American statutes as to any testamentary disposition, whether of real or personal estate, or both.3 Unless a statute expressly provides as to the place of signa- ture, the testator's name need not be signed at the end of the instrument. Thus, where a whole will was in the testator's handwriting, and commenced, " I, A. B., do make," etc., the in- strument was held, in conformity with analogous instances un- der the Statute of Frauds, to have been sufficiently signed. •♦ But the signature, whatever its position, must have been made with the design of authenticating the whole instrument ; and the natural presumption as to a document to which one's signa- ture has not been appended, is that full execution was not meant.5 One signature suffices, especially if it be in its natural place at the end, though the will were contained in several 'See Milton v. Hunter, 13 Bush, ' See for details, Schoul. Wills, and 163; Schoul. Wills, Part II., cs. 9, 10, cases cited, and cases cited. ■'Grayson v. Atkinson. 2 Ves. 454; ^ I Wms. Exrs. 7th ed. 66-68 ; Schoul. Coles v. Trecothick, 9 Ves. 259 ; Adams Wills, part III., c. 2; Bryce, /« r^, 2 v. Field, 21 Vt. 256. See Waller v. Curt. 325. Such is the operation of the Waller, i Gratt. 454. Modern statutes English statute, i Vict. c. 26, that for- do not generally sanction such a signa- mal execution was not essential to wills ture. See i Vict. c. 26 ; Catlett v. Cat- of personalty made in England prior to lett, 55 Mo. 330. January, 1S38. This fact, already re- ' See i Wms. Exrs. 69:1 Redf. Wills, ferred to, should be kept in mind by 4th ed. 197; Schoul. Wills, § 311-313. the reader. 98 CHAP. 11.] PROBATE OK TIIK WILL. § 74 pages or sheets, provided that by the handwriting, the fastening together, the verbal connection of words, or otherwise, it satis- factorily appears that all the pages or sheets were intended by the testator to be embraced by that sufficient signature.' The end of the instrument, preceding the attestation clause (if there be one), is the natural and usual place of signature ; and the Statute of Wills in England and corresponding statutes in some American States now make such subscription imperative.- The testator's name may be written by some other person, if done in his presence and by his express direction, even where the testator does not make his mark, as he often may. This sort of execution, however, in instruments so solemn, is so un- usual and so objectionable on principle, that the fact and reason for such a proceeding as, for instance, that the testator was maimed or paralyzed, ought, in common prudence, to be made clearly known to the subscribing witnesses, and, moreover, might well be expressed in the attestation clause. But where the testator's signature was made by another person guiding his hand with his consent, and he, being evidently clear in mind and free of volition, then acknowledged it, the signing is held to be the testator's act, and sufficient.^ And, of course, the testa- tor's actual consent, and not any alleged reason for signing by another, is the ultimate fact upon which the validity of these un- usual executions must turn.* Wills are usually written out on paper or parchment, and 'And this, though the attestation As to signing by mark, see Schoul. clause, through some inadvertence, in- Wills, §§ 303, 304. dicates that the preceding pages or ^Wilson v. Beddard, 12 Sim. 28; i sheets were severally signed. Winsor Redf. W^ills, 4th ed. 205 ; Schoul. Wills, V. Pratt, 5 Moore, 484. And see Jones §§ 306-308 and cases cited. " A. B. V. Habersham, 63 Ga. 146. Aliter, of for C. D." (C. D. being the testator) course, if upon the whole proof it ap- may thus be shown to be a good sub- pears that there has been some tamper- scription. The evidence should not ing with the sheets or pages ; since only leave the testator's consent in such a that which was intended to be part of case very doubtful ; that the other a will at the time of execution can be wrote at his request will not be pre- probated. sumed. Rollwagen v. Rollwagen, 5 ^ I Wms. Exrs. 67 ; Schoul. Wills, Thomp. & C. 402 ; (Ireenough v. § 312 and cases cited; Stat, i Vict. c. (ireenough, 11 Penn. St. 489. See 26, § 9 ; I Redf. Wills, 226. Schoul. Wills, § 30S. * Jenkins, Will of, 43 Wis. 610. 99 § 75 EXECUTORS ANM) ADMINISTRATORS. [PAKT II. signed in ink ; but a writing and signatures in lead pencil satisfy the statute requirement,' as it has been held, provided that all appears to have been done with a complete testamentary pur- pose, and not by way of mere draft or preliminary minutes. The use of a seal in the execution of a will is now generally dis- pensed with ; some have thought it efficacious in a devise of lands, however, and for the execution of a power specially re- quired to be done under seal it is still essential.- Authorities generally concede that sealing alone 'is not a good execution where the statute calls for a signature.^ § 75. Signing by the Testator; Subject continued ; Publication, etc. — Presumptions favorable to the due execution of a will may be rebutted. As a general rule, however, the subscription and execution of a will in the mode prescribed by law suffi- ciently imports that it speaks the language and wishes of the testator.-* But all proof of a will must consist with a full com- prehension of its contents and an intelligent execution ; and where the testator was blind or could neither read, write, nor speak, there should, according to the safer authorities, be proof not only of \\\q factum of his will, but that the mind of the tes- tator accompanied the execution ; and that he knew and under- stood the contents of the instrument as expressive of his testa- mentary intentions.5 If a testator can read and write, his signature, duly made, imports knowledge of the contents of the paper executed as his will ; in other and peculiar instances, the proof of testamentary knowledge and intent should be clearer, though not necessarily conclusive, nor upon the point of doubt limited to any particular fact or circumstance consistent with making out 2, prima facie case of intelligent execution.'' But the testator's condition and surrounding circumstances must al- ways be considered ; and if, while the testator is feeble, or hardly conscious, or of doubtful capacity or volition, another person 'And especially if the will do not 'i Jarm. Wills, 78; Schoul. Wills, concern real estate. Harris v. Pue, 39 § 309 and cases cited. Md. 535. See Schoul. Wills, § 258. * King v. Kinsey, 74 N. C. 261. *i Redf. Wills, 4th ed. 201, 226; = Schoul. Wills, § 317 and cases cited. Schoul. Wills, § 309. '' lb. 100 CHAP. II.] PROBATE OF THK WILE. § 'jd assumes the functions of spokesman and director before the witnesses at the execution, an adoption, at least, of that person's acts on the testator's behalf must appear.' The testator need not declare in words to the subscribing witnesses that the instrument which they arc called to witness is his will, though it would be wise for him to do so ; but by acts and words he may make it sufficiently clear to his witnesses that he so accepts and regards the instrument.- That the tes- tator need not, and usually does not, make known the contents of his will, at the time of execution, is certain.^ § 76. Proof of the Will; Subscribing Witnesses. — Formerly, in England, as we have seen, no witnesses to the execution or publication of a will of personal property were considered essen- tial, still less any subscribing witness ; formal publication was merely for convenience. Wills of lands were, on the other hand, under the Statute of Frauds, to be attested and subscribed more formally, or, as it was said, " by three or four credible wit- nesses." Acts of Parliament attempted another distinction with reference to stock in the public funds. But, under the act of I Vict. c. 26, § 9, no will executed on and after January i, 1838, ' Schoul. Wills, § 233. to offend such persons as do gape for ^ Some cases justify a testator in con- greater bequests than either they have cealing that the instrument was his will, deserved or the testator is willing to be- 3 Some of our American statutes stow upon them ; lest they, peradven- explicitly sanction an execution without ture, understanding thereof, would not any publication. In i Redf. Wills, 4th suffer him to live in quiet ; or else he ed. 219, 220, such a practice is regarded should overmuch encourage others, to with disfavor. In Trimmer v. Jackson, whom he meant to be more beneficial 4 Bum. Eccl. Law, 9th ed. 102, the than they expected; and so give them testator led his witnesses to believe that occasion to be more negligent husbands the instrument they executed was a or stewards about their own affairs than deed, not a will ; but the execution was otherwise they would have been if they adjudged sufficient. And see Schoul. had not expected such a benefit at the Wills, § 326. It should be observed testator's hands (or for some other con- that Stat. I Vict. c. 26, § 13, declares siderations)." Swinb. pt. i,§ii. All e.xpressly that every ^\■ill executed in the this points, however, rather at disclos- manner prescribed shall be valid with- ing the contents of one's will, than at out any other publication thereof, his recognition of the instrument as Swinburne gives a good reason why the testamentary. Cf. New York and New testator might fail to disclose his true Jersey rule, Schoul. Wills, § 326. purpose, " because the testator is afraid lOI § 'j6 EXECUTORS AND ADMINISTRATORS. [PART II. can be valid, unless the testator's signature is made or acknowl- edged in the presence of two or more witnesses ; and this re- quirement applies to every descri])tion of property, real and personal.' Vm every testamentary disposition of property, two subscribing witnesses are requisite at this day in most parts of the United States ; in Massachusetts and several other States there must be three ; while a few States unwisely discriminate still, as between wills of real and of personal estate.' The old Spanish law which favored holograph wills (or such as a testa- tor writes out in his own hand) impresses the codes of some of our States, so, in some instances, as altogether to dispense with subscribing witnesses for such a will.^ As to witnesses and at- testation, other peculiar provisions, which need not here be specified, are embodied in the legislation of individual States by way of exception to the American rule.'* " Credible witnesses " were required under the Statute of Frauds, and "competent witnesses" (to quote the language of some American codes) must still be employed. ^ Under either form of expression, persons must not prove beneficially inter- ested under the will ; and those called in by a testator to witness an instrument whose contents he keeps to himself may gener- ally assume that he has willed them nothing. A will of free- hold estate attested by persons found to be beneficially inter- ' I Wms. Exrs. 7th eel. 66, 86. ^ See .statutes of Louisiana, North ^ Most New England States now insist Carolina, Mississippi, California, Ar- (or have done so lately) upon three kansas, Tennessee, etc., as to holograph witnesses, as also South Carolina, Flor- wills ; i Wms. Kxrs. 67, 7th ed., note l)y ida and Georgia. In New York two Perkins; Schoul. Wills, § 255. witnesses suffice, and the same may be ■* See i Wms. Exrs. 67, note by Per- said of the Middle and Western States kins. In Pennsylvania, for instance, it quite generally, and such is the later would appear that reducing the will to policy in the majority of the United writing in pursuance of the testator's States as well as in England. Except, directions is sufficient ; that these facts perhaps, for mean and sparsely-settled may be proved by two witnesses ; and neighborhoods, the practice of employ- that formal publication and atte.station ing three witnesses appears the better by subscribing witnesses are unneces- one, for a testamentary instrument be- sary. i Wms. Exrs. ib.; and see Schoul. comes thus readily distinguished from Wills, § 256, etc. other formal writing.s, and there is less ' See i Wms. Exrs. 87 ; Schoul. inducement to fraud. See Schoul. Wills, §§ 350-358. Wills, § 320. 102 CHAP. II.] PROBATE OF THE WILL. § "J^ ested therein was pronounced invalid long ago ; and this not only as to the part which created their interest, but as a whole ; and after much controversy, the English courts appear to have settled down to the theory that credibility was so fundamental to a proper execution, that the release of his interest by such a party at the time of judicial inquiry could not restore his com- petency, nor the sufficiency of the will' Hence, inasmuch as great injustice might thus be done by a witness unconsciously, an act whose provision by extension to wills of both real and personal estate, under i Vict. c. 26, § 15,^ annuls the interest of each attesting witness beneficially interested, and renders him fully competent to prove the validity or invalidity of the will. In American States, correspondingly, the local statute must be the guide.^ Disqualification by reason of interest, that common- law doctrine upon which our later legislation so greatly infringes, has a pecuHar significance in the present connection ; for the public welfare still demands that one's last wishes be authenti- cated by persons who are wholly detached from his estate, and stand, so to speak, between the dead and the living. These witnesses are in a measure judges of the facts attending the ex- ecution of the only kind of instrument which a principal signer cannot possibly take part in estabhshing ; they surround the tes- tator at a critical moment to protect him from frauds which might be practiced upon his infirmity or debility ; and hence they should be kept totally free from every temptation to bias or importu- nity. If a person, called upon to subscribe as such a witness, thinks the testator incapable of making his will, he may and should refuse to attest.'* ■ I Jarm. Wills, 65 ; Doe v. Hersey, ^ Schoul. Wills, §§ 350-358. 4 Burn. Ecc. L. 27. ■♦ See, on this point, Wilde, J., in ^ The ecclesiastical courts had mean- Hawes v. Humphrey, 9 Pick. 356. On time insisted that the statute require- all these points and the general question ment of " credible witnesses " was lim- of competency, see further 2 Greenl. Ev. ited in expression to wills and codicils § 691 ; W^ms. Exrs. 87, n. by Perkins, of real estate, and had no application citing numerous authorities ; Schoul. to personahy, wills of which might be Wills, §§ 350-358. wtnessed by legatees, so as to leave the In the United States, as in England, legacy good. Wms. Exrs. 7th Eng. ed. competency has reference, not to the 1053 ; Brett V. Brett, 3 Add. 210; Fos- time of probate, but to the time when ter V. Banbury, 3 Sim. 40. the will was executed. Schoul. Wills, 103 § 7^ EXECUTORS AXD ADMINISTRATORS. [PART II. ^ yy. Proof of the Will ; Mode of Attestation by Witnesses. — Like the testator himself, the witness may sign by mark, by initial, or by fictitious name, though not by' seal ; his hand may be guided by another if he cannot write ; and the further pre- cautions against fraud correspond in the two cases.' The Eng- lish statute is so construed, however, as to demand a literal "subscription" by the witness, in the testator's presence, and after him, either by name or mark ; not permitting one to adopt or acknowledge a previous signature made by himself or by any other person, as the testator might do ; - which rule most American States follow, but not all.^ Consistent and intelligent execution, taken as a whole, and a fair connection between witnesses and testator in the legal for- malities, should appear under all circumstances.'* § 78. Proof of the Will; Attestation Clause. — A perfect at- testation clause must aid greatly in establishing the regularity of a will, for this affords plain written evidence of a testamen- tary execution, and freshens the memory on points readily for- gotten. The effect of the statement in an attestation clause, that the will was signed by the witnesses in the presence of the testator, and of each other and at his request (or in such other language as the statute may direct), would be to throw the bur- den of proving that it was not so signed, and that the execution §351. A convicted criminal is in some ^ Chase v. Kittredge, 11 Allen, 49, instances held to be disqualified from per Gray, J., where the subject is care- becoming a subscribing witness ; as well fully e.xamined; Schoul. Wills, § 328. as a young child or idiot, i Greenl. ■• As to the position of signatures by Ev. § 373. But one competent at the witnesses, subscribing in one another's time of execution would not become presence, or in the presence of the tes- disqualified because of subsequent crime tator, and other points with regard to or insanity. attestation and subscription, see Schoul. 'i Wms. Exrs. 94, 95; Ashmore, Wills. Part III., c. 3. Doubtless a care- Goods of, 3 Curt. 756; Chri.stian, (}oods ful counsellor will insist, wherever he of, 2 Robert, no; Byrd, Goods of, 3 may, that witnesses and testator .shall Curt. 117; Thomp.son v. Da\?itte, 59 all execute in one another's presence, Ga. 572 ; Schoul. Wills, §§ 331, 332. and at the same time; the te.stator first " I Redf. Wills, 230, 231 ; Hind- writing out his name and acknowledg- marsh w. Charlton, 8 H. L. Cas. 160 ; ing his will, and the witnesses in turn I Wms. Exrs. 95, 96; Eynon, Goods of, suljscribing aftei-wards to a formal at- L. R. 3 1'. & D. 92, testation clause. 104 CHAP. 11.] PROBATE OF THE WILL. § 79 was irregular, upon the opponents of the will, and to discredit any subscribing witness who should undertake so to testify." No particular form of attestation, however, is requisite under the English statute,^ nor probably in most American States ; but a sufficient number of witnesses may subscribe their names with- out any express attestation clause whatever ; in which case cir- cumstantial proof that the attestation itself was proper may be supplied at the probate hearing.^ Recitals of an attestation clause may supply the defect of positive testimony as to what transpired in connection with the signature of the testator and the subscription by his witnesses.* § 79. Proof of the Will ; Suitable Testamentary Condition on the Part of the Testator. — Besides proof of a genuine execution such as the statute may have directed, on the part of both tes- tator and his witnesses, the proponent of the will must be pre- pared to show affirmatively that the testator, at the time of such execution, was in a suitable testamentary condition. Suitable testamentary condition appears to involve three prime elements : (i) That the testator was of sound and disposing mind and memory, capable of understanding the nature of the act he was performing, and the relation in which he stood to the objects of his bounty and to those upon whom the law would have be- stowed his property had he died intestate. (2) That he ex- ecuted the will as his own voluntary act, free from the fraud, coercion, or undue influence of those about him. (3) That he had the testamentary purpose in so executing, and understood the instrument to be his last will and testament. 5 Where the instrument presented for probate appears quite consistent with all requirements in these respects, and executed after the re- quired forms besides, a simple question to the witness as to the ' Schoul. Wills, §§ 346, 347. Want ^ i Wms. Exrs. 93 ; Schoul. Wills, of recollection on the part of the sub- § 346. Thus, as in the case of ordinary scribing witnesses is not enough to writings, the signatures may follow the overcome the presumption arising from word "witness " opposite the principal their certificate that the facts were as signature, or, indeed, there may be no certified. lb. word or clause at all. lb. - Stat. I Vict. c. 26, § 9, is explicit on ■» Riigc; v. Rugg, 83 N. Y. 592. this point. ^ Barker v. Comins, 1 10 Mass. 477. 105 § 79 EXECUTORS AND ADMINISTRATORS. [part 11. testator's apparent soundness of mind may suffice ; not so, how- ever, if by cross-examination of the witness, or otherwise, the proponent's case is shaken ; for although an adult may be pre- sumed to execute a writing while in his senses and free from constraint, the testamentary act is of all acts liable to sinister influences when performed by the sick, the feeble, or the dying. And the burden being accordingly upon the proponent of a will to establish full testamentary condition and capacity in the testator, no mere presumption of sanity and free will can avail as an independent fact to overweigh proof to the contrary ; but the issue in all such contests is, whether the will in question was the free act and will of a competent testator.' Whatever ' Since the first edition of this -work was published, the present author has written a volume upon Wills. Schoul. Wills, Part II., c. 9. The cases are very numerous under the head of testa- mentaiy capacity, and are somewhat conflicting, though the safer conclusions reached appear those of the text. There may be lunatics, not from birth alone, but made such through disease or decay ; persons insane, having lucid intervals ; monomaniacs, or those dis- eased upon one or more subjects and otherwise sound. One difficult subject discussed in connection with testamen- tary capacity is senile detnentia, or that decay which sets in after one's full ma- turity. Schoul. Wills, Part II. ; i Jarm. Wills, 4th Eng. ed. 1 31-144. Drunk- enness, so far as it disorders one's faculties and perverts his judgment as to what he is doing, defeats his will ; but not habitual intemper- ance alone, nor even the actual .stim- ulus of liquor on the particular occasion. Schoul. Wills, Part II., c. 7, and cases cited. As to the effect of religious delusions, modern spiritualism and the like, the rule is not stated with precision, judges themselves having various pre- possessions on issues of religious faith and conscience. Schoul. Wills, § 168. The bearing of the fact of suicide upon the question of testamentary capacity is considered sometimes. Schoul. Wills, § 120. Mental unsoundness, years af- ter the execution of a will, does not alone rebut the usual presumption of sanity. It may be observed generally that, notwithstanding one's sickness or in- firmity, his testamentary disposition may be valid, if, at the time of making it, the testator had sufficient intelligence to comprehend the condition of his prop- erty, his relations to those who were or might naturally be the objects of his bounty, and to understand the provi- sions of the instrument. Testamentary capacity is the normal condition of one of full age. Schoul. Wills, § 68. As to free agency, it is recently ob- served that whatever destroys it and constrains a person to do what is against his will, and what he would not do if left to himself, is undue influence, whether the control be exercised by physical force, threat.s, importunity, or any other species of mental or physical coercion. The state of health and men- tal condition of the alleged testator must be considered. Undue influence is not measured by degree or extent, but by its effect ; if it is sufficient to de- stroy free agency, it is undue even if it lie slight. Schoul. Wills, Part II., 106 CHAP. II.] PROBATE OF THE WILL. § 80 goes to impeach the validity of the instrument offered should be open to the fullest investigation at all contested hearings ; and the simple circumstance that the will is partial and unreasonable in its provisions may, in cases of doubt, cause a preponderance against its admission to probate, especially if the party to be chiefly benefited under it showed an officious and unbecoming zeal in procuring its execution.' And even though courts should rule so cautiously as seemingly to favor an unjust will, made under circumstances of doubtful propriety, a jury rarely sustains such a will ; and, after all, unless the particular will be established, the proponent loses his cause. § 80. Proof of the Will ; Suitable Testamentary Condition as Respects Legal Capacity. — We may add, as a further element of suitable testamentary condition, what in a single phrase is to be styled " legal capacity." The general rule is, that all persons are capable of disposing by will ; yet there are various classes of persons excepted by the law, not only in this respect, but in other instances involving the jus disponendi. Thus, aliens have been restricted by the common law, and particularly in the acquisi- tion and transmission of real estate ; though these restrictions, which, as to lands, are exclusively of State cognizance, have been removed in many modern instances, and seldom extended to dis- positions of personal property.^ Infants, again, are wisely ex- cepted by existing statutes both in England and some of the chief American States, notwithstanding the earlier doctrine, borrowed from the civilians, which permitted males at fourteen and females at twelve to dispose of personal property by a last c. 10; I Jarm. Wills, 4th Eng. ed. or undue influence, is presumed from 131-144. On the other hand, to avoid capacity, and the burden is on those a will on the ground of undue influence, who deny it. Seepassun Schoul. Wills, it must be made to appear that it was Part II., c. 10. obtained by means of influence, amount- 'No such circumstance, by itself, ing to moral coercion, destroying free would suffice. The decisions upon con- agency ; or by importunity which could tests because of fraud, undue influence, not be resisted, so that the testator was or mistake are very numerous, constrained to do that which was against -Co. Litt. 2 b; i Jarm. Wills, ed. his actual will, but which he was unable 1861, 35, 60-64; Schoul. Wills, §§ 34- to refuse or too weak to resist. Free 36. agency or freedom from coercion, fraud, 107 .§ 8 1 EXECUTORS AND ADMINISTRATORS. [PART 11. will' Coverture, on the other hand, operated a lej^al disability at the common law which our modern married women's acts are fast superseding.' Idiots and imbeciles are, of course, incapa- ble ; ^ but not the deaf, dumb, or blind, who make intelligent use of the senses given them.-^ And a long, but, happily, obso- lete, list of disqualified persons is stated in the earlier English books, whose disgrace, in this respect, attended their crime or low condition, less, perhaps, from any consideration of unfitness in the individual than for the sake of enabling the crown to con- fiscate his chattels beyond a peradventure.5 § 8 I . Proof of the Will ; Testimony at the Hearing. — The law confides so greatly in those who were placed round the testator as subscribing witnesses, as to permit them, whenever the tes- tator's sanity is at issue, to give their opinions upon that point ; besides stating fully all material circumstances which attended the execution of the will in question. But, if so testifying, they may be inquired of as to the grounds of their opinion in cross-examination, and other evidence may be put into the case to support or contradict them.^ Any other person may testify as to the appearance of the testator and as to facts from which the state of his mind at the date of execution may be inferred ; but the mere opinions of all such witnesses, who are not experts, are usually pronounced inadmissible. Experts are to be found at this day who are examined on the special subject of insanity ; ' I Vict. c. 26, § 7 ; 20 & 21 Vict. c. villeins, captives, prisoners, traitors, 77 ; 4 Kent. Com. 506, 507 ; i Jarm. felons, heretics, apostates, manifest Wills, 39 ; Schoul. Wills, Part II., c. 2. usurers, incestuous persons, libellers. Local statutes should be consulted on suicides, outlawed persons, excommuni- such points. cated per.sons, etc. Forfeiture of one's - Schoul. Wills, I'art II., c. 3. e.state, even for treason, is, by the more ■* Schoul. Wills, I'art II., c. 5. A per- enlightened rule of modern times, con- son under guardianship as non co7upos fined to the life of the offender. See 2 is presumptively, but not conclusively, Kent Com. 385, 386 ; Schoul. Wills, incapable of making a will. Hamilton Part II., c. i ; U. S. Constitution, Art. V. Hamilton, 10 R. I. 538; Schoul. III., § 3. And .see Wms. Exrs. 435; Wills, § 8. and English stat. 33 & 34 Vict. c. 23, § i . * Schoul. Wills, § 94. ^2 Greenl. Ev. §§ 691, 692; Schoul. 'Swinburne, pt. 3, § 7, enumerates Wills, §§ 196-204 ; Wms. Exrs. 346, and among those legally disqualified from 11. by Perkins, making a last will and testament, slaves, 108 CHAP. II.] PROBATE OF THE WILL. § 82 but an attending physician of regular standing is commonly a good enough expert to give an opinion upon his patient's mental condition, and from facts thus in proof, other experts may draw conclusions." Subscribing witnesses may be summoned into court and examined viva voce ; and the usual rules of evidence which guide the common-law courts will apply with the reserva- tions already stated, to their testimony, and the credit to be given it.^ A will is not to be defeated through the failure of attesting •witnesses to remember the circumstances of attestation. Due execution raises the presumption that all was rightly done ; and not only is the proponent free to aid the will by other compe- tent proof, but (as these were not essentially his own .witnesses) he may rebut the adverse testimony of subscribing witnesses, and even discredit them. As a general rule, one who offers a will must call in all the attesting witnesses, if put to the full proof, provided all are alive, within reach of the process of the court, and still competent. ^ But where the witness is abroad, or disabled from personal attendance, his deposition may be taken ; if he has died or become insane since the attestation, his handwriting may be proved ; and the utter impossibility of pre- senting one's testimony being shown to the court, the proof may go on without him. If the legal execution of a will be clearly established alitnidc, probate thereof may be allowed though all the subscribing witnesses were dead or all should testify ad- versely. The testimony of subscribing witnesses in short is im- portant but neither indispensable nor conclusive.'* § 82. Revocation or Alteration of Wills ; Codicils ; Ne'w Wills, etc. — Every will being revocable during the testator's lifetime, probate should be granted of the instrument or instruments only which constitute his last will. Accordingly, in case of a ' See this subject at length, Schoul. of 1857 on this point, Wms. Exrs. 347 Wills, §§ 204-213. The right to have all the attesting wit. ^ Wms. Exrs. 345, 346; Stats. 17 & nesses produced appears to exist for the 18 Vict. c. 47 ; and 21 & 22 Vict. c. 77 ; benefit of all parties in interest, whether and see Schoul. Wills, Part II., cs. 9, favorable or adverse to the will. But 10. the right has its rational limits. ^ See as to effect of English statute •» Schoul. Wills, §§ 177, 17S. 109 § 82 EXECUTORS AND ADMINISTRATORS. [PART II. contest over two or more wills, issue joins first and most natu- rally on that which was executed latest. Any distinct will pro- pounded for probate, which appears to have been executed as the statute requires and preserved intact, is presumed to express the testator's latest wishes ; but this presumption may be re- butted by the production of a later will, or other evidence of a contradictory nature. Various methods of implied revocation are known to our law ; such, for instance, as the subsequent marriage of a single woman, or in case of an unmarried man, his marriage and the birth of a child.' From other alteration of the testator's circumstances, revocation by parol was formerly presumed ; but parol methods are discouraged by our later English and American legislation, whose aim is to specify clearly what shall constitute the legal revocation of an existing will, and to insist that an actual revocation shall be plainly evinced.^ " To prevent the admission," says Chancellor Kent, " of loose and uncertain testimony, countervailing the operation of an in- strument made with the formalities prescribed, it is provided that the revocation must be by another instrument executed in the same manner, or else by burning, cancelling, tearing, or ob- literating the same by the testator himself, or in his presence and by his direction. This is the language of the English Stat- ute of Frauds, and of the statute law of every part of the United States." 3 We may add that such acts of revocation must be done with corresponding intent, and that under the English statute i Vict, c. 26, § 20, and the latest American legislation, these principles are extended (with literal variance, and saving, perhaps, the ef- fect of marriage, as above stated), so as to embrace wills of real and personal property in the fullest sense.-* The object of revocation may be to substitute another will or to adopt intes- ' Wms. Kxrs. 7th ed. 187-204. Va- ■* Wms. Exrs. 127 and Perkins's note. rious statute changes have occurred in There are variations of expression in this connection. lb. ; and see Schoul. such statutes, which the practitioner is Wills, Part IV., c. i, more fully, with bound to observe in the case before cases cited. him. As to revocation by burning, tear- ^ Wms. Exrs. 187, 201 ; Schoul. Wills, ing, cancelling, or obliterating, see Wms. Part IV., c. I. Exrs. 128-158; Schoul. Wills, Part IV., ^4 Kent Com. 520, 521. c. i. I 10 CHAP. II.] PROBATE OF THE WILL. § 83 tacy as a condition preferable to testacy ; and one may revoke a will by a writing properly attested, which contains no disposi- tion whatever.' Where the former will is not cancelled or destroyed outright contemporaneously with or prior to the execution of another — a course of proceeding highly to be commended in most cases while the testator retains his full mental vigor — it becomes most convenient to make an addition or supplement to such for- mer will, observing the prescribed solemnities of testamentary signing and attestation as carefully as before. These testamen- tary supplements are known as codicils, or " Httle wills " ; and the term "will" in a statute being construed to- include all such instruments, codicils require proof and a probate like any other testament. From a will and its several codicils, like a statute with its later amendments, the maker's full intention is to be gathered ; the latest provisions modifying, or, if need be, annul- ling the earlier. From a codicil distinct reference to the orig- inal instrument is desirable, though not indispensable ; and the effect of a codicil which in terms ratifies, confirms, and repub- lishes a will, is to give the original will the same force as if it had been rewritten, re-executed, and republished at the date of the codicil.^ A new, adequate, and complete will may be held to re- voke all former wills without express words of revocation ; but a codicil only revokes a former will, as far as it so expressly provides or is inconsistent in terms with it ; nor, apparently, should any will be construed as revoking another still extant, except so far as really conflicting with it.^ A codicil intends keeping the former will extant, however, while a new and com- plete will does not. § 83. Rule of Escrow not applicable to Wills. — The reasons ' See Jessell, M. R., in Sotheran v. makes his last will and testament, re- Dening, 20 Ch. D. 99, 104. yoking all other w-ills by him at any ^ See Schoul. Wills, Part IV., c. 2, time heretofore made. And a mere and cases cited. codicil by way of amendment may well 3 Schoul. W^ills, § 437, and cases cited, express that the testator thereby ratifies It is usual and most convenient for a and confirms his will (referred to) in all new will to be drawn up so as to express other respects, on its face that the testator hereby 1 II § 84 EXECUTORS AND ADMINISTRATORS. [PART II. that apply to other instruments on the doctrine of escrow, do not apply to wills, unless possibly in the case of what are termed joint or mutual wills.' A will being the act of the tes- tator alone and requiring the assent of no other person, delivery of the instrument to any one is not necessary, but a due execu- tion completes the testamentary act.^ § 84. Lost Wills ; Republication of "Will ; Informal Alterations, etc. — A will, proved to have been duly executed, which cannot be found after the testator's death, is presumed to have been destroyed by him with the intention of revoking it. But this presumption may be rebutted by evidence. Thus it may be shown that the will was torn up or burned by the testator in some insane freak, or through the coercion of another, or that it was accidentally or fraudulently destroyed, or that, the testa- tor recognizing it to the last, the will must have been lost or else wrongfully suppressed by some one. Those interested un- der such a will do not forfeit their legal rights by the non-pro- duction of the instrument in question, provided its contents and due execution be shown by satisfactory proof, and the absence of the will sufficiently explained.' Where only a part of the contents of a lost will can be proved, that part has been held ad- missible to probate ; though this seems an undesirable rule to extend far.'' If another person was custodian of the will, and ' See as to joint wills in equity, and who have heard it read. Morris v. wills upon consideration in general, I Swaney, 7 Heisk. 591. Or by other Jarm. Wills, 4th Eng. ed. 31 ; Schoul. secondary proof, such as may suffice. Wills, Part V. Schoul. Wills, § 402. Whether proof ^ Sewell V. Slinguff, 57 Md. 537. of a residuary bequest alone will suffice, ^ Idley V. Bowen, 11 Wend. 227; see Woodward z/. Goulstone, comment- Clark V. Wright, 3 Pick. 67; Foster's ing on i P. D. 154; 11 App. 469. Appeal, 87 Penn. St. 67 ; Mercer v- * Sugden v. Lord St. Leonards, L. Mackin, 14 Bush, 434; i Redf. Wills, R. i P. D. 154; Steele v. Price, 5 B. 338-350; Wms. Exrs. 153, 378, 379; Mon. 58. But if wtnesses differ mate- Harvey, Goods of, I Hagg. 595 ; Burls rially as to some of the provisions of the V. Burls, L. R. I P. & D. 472 ; Voor- will, the will cannot be proved. Sheri- heesz/. Voorhees, 39 N. Y. 463; Ford v. dan v. Houghton, 6 Abb. (N. Y.) N. Teagle, 62 Ind. 61 ; Johnson's Will, Cas. 234. Matter of, 40 Conn. 587 ; Nelson v. The suspected custodian of a missing Whitfield, 82 N. C. 46. Contents may will should be cited into the Probate be established by testimony of witnesses Court, as shown supra, §54, and rea- I 12 CHAP. II.] PROBATE OF THE WILL. § 84 the testator had not ready access to it, there appears no pre- sumption that it was destroyed with the intent of revoking. The evidence in all cases of a lost will should be strong, posi- tive, and not uncertain.' Republication revives the will to which it refers, and its ef- fect is to make the whole will as of such later date. A codicil may thus republish an informally executed will, though the act must be done with all the statutory formalities.'' Republication may be either the revival of an instrument already revoked so as to give it full operation, or the re-execution of a will with similar intent.^ Alterations, erasures, and obliterations found in a will should be treated according to circumstances. If they preceded the formal execution, they stand as the final expression of the tes- tator's wishes ; but if made afterwards, the instrument in its altered shape must have been duly attested, or else the altera- tion will fail, and probate be granted as of a valid testament, according to the originally attested expression.'* The effect of obliterating or cancelling should depend as a rule upon the testator's intention ; but partial revocations and changes infor- mally made as to an executed will, our later statutes wholly dis- courage ; nor can there be a valid cancellation without the exercise of a free will and a sound mind.' sonable exertions made to find the ^ i Redf. Wills, 376-379 ; Schoul. original document, according to circum- Wills, Part IV., c. 3 ; Wms. Exrs. 205, stances, before probate can be granted et seq. upon secondary evidence of the con- ^ lb. tents. * Wms. Exrs. 143-153 ; Schoul. Wills, ' Schoul. Wills, § 402. A lost, sup- Part IV., c. 2. pressed, or destroyed will may be pro- ^ While wills of personalty might be bated, no statute prohibiting, or may be informally executed, before the new established by a court of equity. Dower statute of Victoria came into operation V. Seeds, 28 W. Va. 113. The con- in 1838, there were various English tents of such a will may be proved by decisions which permitted a testator to the satisfactory testimony of a single revoke his will /;-^ /r?;/^'^ by striking out person. But the proof of contents particular sentences or paragraphs with- ihoiild be clear. So must suitable no- out other formality. See Wms. Exrs. tice be given to interested parties or 143. Modern legislation treats informal their assent obtained. (1896) P. 289; alterations with disfavor. Schoul. Wills, Schoul. Wills, § 402. §§ 382, 432 ; supra, § 82. 8 113 § 85 EXECUTORS AND ADMINISTRATORS. [PART II. § 85. Probate in Whole or in Part. — It follows from the pre- ceding summary of principles which writers on the law of wills treat at full length, that probate of a will may require a nice judicial discrimination. To identify and record as genuine the last will and testament of the deceased is the peculiar province of the probate court ; and the probate of a will, not appealed from, or confirmed upon appeal, settles all questions as to the formalities of its execution and the capacity of the testator, but not the validity or invalidity of any particular bequest, nor any question of construction." To construe a will duly probated, and define the rights of parties in interest, remains for other tribunals ; they must interpret the charter by which the estate should be settled in case of controversy ; while the probate court, by right purely of probate or ecclesiastical functions, es- tablishes and confirms that charter. But in order to do this, the probate tribunal throws out the false or the superseded will, or the instrument whose execution does not accord with positive statute requirements ; it determines what writing or writings shall constitute the will. Moreover, in numerous instances, the English rule has been, that a will may be in part admitted to probate and in part refused ; as, for example, where some clause has been fraudulently inserted in the will without the testator's knowledge and free consent, or in other instances of illegal and improper alteration, after the will was formally signed and at- tested.- Where the executor was misdescribed or imperfectly described, to ascertain his identity may be incidental to grant- ing the proper letters testamentary.^ The probate tribunal may, from the best proof afforded, gather and set forth the ' Hawes v. Humphrey, 9 Pick. 350. the estate, may be excluded from the And see Schoul. Wills, §§ 223, 248- probate. Ilonywood, Goods of, L. R. 251. As to full or partial probate in 2 P. & D. 251 ; i Robert. 423; Wms. case of error, see ib. §§ 216-219. Exrs. 378. And as to a particular ^ Wms. Exrs. 377, 378; Plume v. bequest procured by undue influence, Beale, i P. Wms. 388; Allen v. Mc- see Fulton v. Andrew, supra; Harri- Pherson, i II. L. Cas. 191 ; Hegarty's son's Appeal, 48 Conn. 202. A word Appeal, 75 Penn. St. 514; Welsh, In mistakenly introduced into a will may re, I Redf. Sur. 238 ; Fulton v. Andrew, be stricken out in the probate. Mor- L. R. 7 H, L. 448. Scnible that in the rell v. Morrell, 7 P. D. 68. And see English probate, scurrilous imputations Schoul. Wills, §§ 248-250. in a will, not affecting the dispo.siiion of ' Shut tleworth. Goods of, i Curt. 911. 114 CHAP. II.] PROBATE OF THE WILL. § 85 items of a will which has been lost or accidentally destroyed, or rendered illegible, so far as the last wishes of the testator may thus be established with certainty." But jurisdiction to sepa- rate the false from the true and except special clauses from pro- bate, is to be exercised with the utmost prudence ; and in Eng- land the spiritual courts could not, even by consent, expunge material passages which the testator intended should make part of his will, nor substitute names, nor identify legatees, nor make the probate an occasion for commentary upon the testator's text ; ^ while in this country the usual tenor of the decisions is to require probate to be granted of a testamentary instrument, as it stood when duly signed and attested, but otherwise with- out ruling out one part of it or another.^ A partial probate assumes that the instrument executed by the testator contained a false part which was so distinct and severable from the true part, from that which was his will, that the rejection of the former does not alter the construction of the true part. But where the rejection of words or a clause necessarily alters the sense of the remainder of the will, the question is more difficult ; for even though the court be con- vinced (to use the words of Lord Blackburn) that the words were improperly introduced, so that if the instrument was inter vivos, they would reform the instrument and order one in dif- ferent words to be executed, they cannot make the dead man execute a new instrument.-* There is no difference, at all events, between the words which a testator himself uses in ' Trevelyan v. Trevelyan, i Phillim. Hegarty's Appeal, 75 Penn. St. 50J. 149 ; Wms. Exrs. 380-382 ; Sugden v. But cf. Welsh, In re, i Redf. (N. \ .) Lord St. Leonards, L. R. i P. D. 154; 238. And as to probate of a lost -will, Rhodes v. Vinson, 9 Gill, 169. of which some parts cannot be proved, ^ Notes of Cas. 278 ; Wnas. Exrs. 378, see Steele v. Price, 5 B. Mon. 58. Pro- 379 ; Curtis v. Curtis, 3 Add. t^t^. bate of a lost ^\-ill should be granted as ^ If a will may take effect in any part, it existed in its integral state if this can it may be admitted to probate although be ascertained. Scruby v. Fordham, i indefinite in other parts. George v. Add. 74. George, 47 N. H. 27. Probate of a ■* See Rhodes v. Rhodes (1882), 7 will which contains illegal and void be- App. Cas. 192, 198. Qticere whether quests may be general, and without res- there is in such a case a valid will within ervation of such parts. Bent's Appeal, the meaning of the statute. lb. 35 Conn. 523; s. C. 38 Conn. 26; § 87 EXECUTORS AND ADMINISTRATORS. [PART II. drawing up his will and the words which are bona fide used by one whom he trusts to draw it up for him ; and the will in either case must be probated and construed as it reads.' And while words or a clause introduced into a will fraudulently, or simply without the testator's knowledge or authority, may be stricken out, the probate admitting of such a severance without doing violence to the rest of the will, partial changes cannot be made in the probate where the testator knew and virtually adopted the words or clause.' In general, a full probate does not insure against a partial failure in effect.^ § 86. Probate in Fac-Simile, or by Translation. — According to English practice under the statute i Vict. c. 26, if a will pre- sented for probate contains upon its face an unattested altera- tion or obliteration, the change must be accounted for ; and if, upon full proof, the will appears to have been executed before the alteration was made, jjrobate may te engrossed as if the change had not occurred, unless it appears likely that the con- struction of the will might be affected by the appearance of the paper, in which case a probate \\\ facsimile is decreed.-* Where a will is written in a foreign language, probate may be granted with an accompanying translation. s § 87. Probate of Two or More Testamentary Papers; Grant to Executors. Probate is not necessaiily confined to a single in- strument ; but several papers may be found to constitute alto- getlier the last will of the deceased, and be entitled to pnjuate ' Rhodes V. Rhodes, 7 App. Cas. letters to the right person. ('oo])er's 192. Goods, (1899) P. 193. == See Harter v. Harter, L. R. 3 P. " Gann v. (Gregory, 3 De G. M. & G. & M. II, 22 ; Schoul. Wills, § 249. 777 ; Wms. E.xrs. 331, 332. 3 P'or probate of an altered will, see ' Wms. Exrs. 386. In such case it also Schoul. WilKs, §§ 434, 435. And seems proper that original and transla- as to probate of joint or mutual wills, tion .should pass to probate together;^ see ib. §§456-459. Where the will gave the original serving as the test, should the wrong surname to the executor, the questions of interpretation arise in other court corrected the probate and issued courts. See L'Fit v. L'Batt, i P. Wms. 526. 116 CHAP. II.] PROBATE OF THE WILL. § 89 accordingly ; ' and letters testamentary may be granted to all the executors named in the several papers.^ Probate granted once at the domicile inures to the benefit of all who may be appointed within the domestic jurisdiction to ex- ecute the will and administer the estate.^ And though differ- ent executors be designated by the will to serve, with distinct powers, or for different periods of time, but one proving of the will is requisite,'' § 88. Decree of Probate entered; Public Custody of the Will. — The general form of decree recites the admission of the will to probate, with perhaps the citation of kindred and procedure under the proponent's petition ; it embraces usually the appoint- ment, besides, of the executor or an administrator with the will annexed. The will having been proved, the original is deposited in the archives of the registry, and a copy entered upon the records ; an attested copy being also delivered to the duly qual- ified executor or administrator with his letters, as constituting the full credentials of his official authority. 5 Where the orig- inal probate was lost, the spiritual court granted no second pro- bate, but furnished an exemplification from the records;^ and in American practice, at this day, certificates under seal are reg- ularly furnished by the registrar of probate as the convenience of individuals may require.^ § 89. Nuncupative Wills. — It remains to speak of nuncupa- tive wills, or those which consist in a verbal disposition by the testator in presence of witnesses. In early times such wills ' Wms. Exrs. 107, and note by Per- ■• Wms. Exrs. 382; i Freem. 313; kins; Harley v. Bagshaw, 2 Phillim. 48 ; Bac. Abr. Exrs. C. 4. Tonnele v. Hall, 4 Comst. 440 ; Phelps ' See Wms. Exrs. 385, 386, as to the V. Robbins, 40 Conn. 250. English practice. '^ Morgan, Goods of, L. R. i P. & D. ^ Wms. Exrs. 386; i Stra. 412. 323. Cf., however, as to the probate ^ As to transcript of the record of where different executors were appointed probate of a will devising land and its for different countries, Astor, Goods of, effect in ejectment, see Allaire v. Allaire, 1 P. D. 150. See also Schoul. Wills, 37 N. J. L. 312. Death of a person § 280. presumptively established by production ^Watkins v. Brent, 7 Sim. 512; of the probate, etc. Carroll 7'. Carroll, Wms. Exrs. 382. 6 Thomp. & C. 294. Where letters 117 § 89^ EXECUTORS AND ADMINISTRATORS, [PART II. were as to personal estate quite efficacious ; but under the Stat- ute of Frauds and the Wills Acts of later date, the privilege has become restricted almost exclusively to soldiers in actual military service and mariners at sea. The unwritten wills of soldiers and sailors, however, have long been distinguished from wills technically nuncupative ; which last, so far as the legisla- tion of any State may still permit of their operation, cannot be held good, under the Statute of Frauds, except for a specified small amount, nor unless made, moreover, in presence of a suf- ficient number of oral witnesses, and usually at home, and moreover, being soon after put in writing.' But the Statute of Frauds expressly excepted the wills of soldiers in actual service and mariners at sea from these formalities ; and hence to such wills the common law applies as it stood before this enactment, allowing great indulgence where men exposed to sudden death so far from home chose to make final disposition of their per- sonal property, whether the last wishes were expressed by some writing, informally executed, or by word of mouth.'' All nun- cupative wills are established in probate by convenient proof of the testator's expressed wishes under appropriate circumstances, and while in testamentary condition, strict proof being re- quired. ^ § 89(7. No Injunction; Effect of Probate. — Such is the exclu- sive jurisdiction of probate courts, in the first instance, over all testamentary were issued and a record Massachusetts, similar to i Vict. c. 26. made of the executor's appointment, the But in some States nuncupative wills appointment is not vitiated by the appear still to be allowed, subject of clerk's failure to record the letters testa- course to statute restrictions borrowed mentary. Wright v. Mongle, 10 Lea, 38. from Stat. 29, Car. II. Schoul. Wills, ' Stat. 29 Car. II. c. 3, §§ 19-23; 2 Part III., c. 4. Bl. Com. 501. I Vict, c 26, § 11, cuts The ground in general, of admitting off the general right of disposing, even nuncupative wills to stand, appears to under restraints, by a nuncupative will, be that the deceased had not time nor ^ As to nuncupative wills, see at length fair opportunity to reduce his will to Schoul. Wills, Part III., c. 4, and cases writing before he died, cited; Wms. Exrs. 116-123,394. The ^i Redf. Wills, 184-201; Schoul. provisions of the English Statute of Wills, § 378; Wms. Exrs. 11 6-1 23. Frauds have been generally re-enacted And see as to "oral wills," Mulligan z/. in American States; and so, too, later Leonard, 46 Iowa, 692. acts are found, as in New York and 118 CriAP. II.] PROBATE OF THK WILL. § Sgn probate of wills, that a court of equity cannot interfere by in- junction to prevent an alleged will from being offered, nor otherwise obstruct the probate court in its primary discretion,' The effect of probate, indeed, aside from the issue of testa- mentary credentials to an executor, is to authenticate the for- mal disposition made by decedent as his last will, with all due formalities. But as to the decedent's title to property, or his right to dispose, as declared by him, or the legal meaning or ef- fect of the instrument itself, the probate decides nothing, but leaves all interested parties to settle such controversies by other proceedings, based upon the fact of such probate.'' ' Israel v. Wolf, loo Ga. 339. See tract to dispose of his property differ- also as to Federal courts, § 29. ently, or that the will offered revokes a ^Sumner v. Crane, 115 Mass. 483, will made upon contract consideration, and cases cited. Hence probate is not See §§ 160, 161 ; Schoul. Wills, §§ 456- to be restrained by the objection that 459. the decedent had bound himself by con- 119 § 90 EXECUTORS AND ADMINISTRATORS. [pART 11. CHAPTER III. APPOINTMENT OF ORIGINAL AND GENERAL ADMINISTRATORS. § 90. Original artd General Administration granted wherever there is no Executor, etc. ; Origin of this Jurisdiction. — The g^rant of original and general administration by a probate court cor- responds to that of letters testamentary issued to an executor ; its application being, however, in cases where a deceased person whose estate should be settled either died wholly intestate or left a will of which, for some reason, no one can be a qualified executor within the jurisdiction. According to the various cases which may arise, there are various special kinds of administra- tion, besides what may be termed " general administration." Anciently, as we have seen, it was regarded in England as a prerogative of the crown to seize upon the goods of one who had died intestate, and dispose of them for the benefit of his creditors and family ; but the prelates, being afterwards intrusted with these functions, appropriated a large part of such estates upon the pretence of pious uses, until Parliament interposed and required them thenceforth to depute administration to " the next and most lawful friends of the dead jierson intestate," who should be held accountable to the ordinaries, and in com- mon-law courts in the same manner as executors.' Hence originated the office of administrator in the modern sense of our law ; and estates testate and intestate becoming thus assimilated, ecclesiastical courts were taught to confine their jurisdiction to issuing the credentials of title and authority in either case under fixed and uniform rules, and to supervise without meddling in the active management of the affairs of the dead. Finally, in Eng- land, as in the several United States, the whole authority as to probate, and the settlement of the estates of deceased per.sons, ' Sit/>ni, § 7 ; Wms. Exrs. 401-404 ; 31 Echv. 3, c. 1 i, § i ; 2 1^1. Com. 495. 120 CHAP. III.] APPOINTMENT OF ADMINISTRATORS. § 9 1 departed from ecclesiastical control and became vested in re- sponsible civil tribunals, known most commonly as courts of probate, and exercising what is usually styled "probate juris- diction." ■ § 91. Intestacy Fundamental to the Grant of General Adminis- tration ; Death and Domicile or Local Assets. — To the grant of general and original administration upon the estate of a de- ceased person, intestacy is a prerequisite ; such allegation should be made in the petition, and the court should have reason to believe the statement true.^ Letters of general administration, granted during the pendency of a contest respecting the probate of a will, or after probate, regardless of the executor, are null and void.^ And local statutes interpose reasonable delay to such grants of administration, in order to give full opportunity for the production of a will, so that the estate may be generally committed, if possible, according to the last expressed wishes of the deceased. Death of the intestate is of course a fundamental require- ment,'' and the grant of administration to any one is prima facie, though by no means conclusive evidence, that the death has actually occurred.^ So, too, as in the probate of a will, primary jurisdiction should be taken in the county where the deceased was domiciled or re- sided at the time of his death. ^ But, inasmuch as public law treats the gathering in of a dead person's property as a matter of mutual convenience to creditors, kindred, and the State or Sovereign, statutes now in force in most civilized States or ■ Part I.; Wms. Exrs. 401-404 ; Eng- ings Bank, 3 Allen, 87 ; Devlin v. Com- llsh Stat. 29 & 21 Vict, c 77 (court of monwealth, loi Penn. St. 273; D'Arus- probate act of 1857). ment v. Jones, 4 Lea, 251. ^ Bulkley v. Redmond, 2 Bradf. Sur. ' Monroe v. Merchant, 26 Barb. 383 ; 281. Simsz/. Boynton, 32 Ala. 353; Peterkin ^Slade V. Washburn, 3 Ired. 557; v. Inloes, 4 Md. 175; Moore v. Smith, Ryno V. Ryno, 27 N. J. Eq. 522; Lan- 11 Rich. 569; § 55. ders z/. Stone, 45 Ind. 404; Watson t/. ^This, if the decedent's domicile be Glover, 77 Ala. 323. But see post, § other^^^se uncertain, is generally as- 135, as to letters of special administra- sumed as in the State or county where lion. he died. Leake v. Gilchrist, 2 I)ev. 73. ■•§ I a; Jochumsen v. Suffolk Sav- 121 § 92 EXECUTORS AND ADMINISTRATORS. [PART ll. countries expressly provide for administration upon the estate of persons who die resident abroad, leavin. v. Scott, 128 Mass. 16; § 160. Swayne, 26 Md. 474; Boughton v. ■• Jochumsenz^. Suffolk Savings Bank, Bradley, 34 Ala. 694 ; sttpra, § 28. 3 Allen, 87 ; Moore v. Smith, 1 1 Rich. Land may be regarded as " assets " un- 569; Hooper t. Stewart, 25 Ala. 408 ; der a statute conferring local jurisdic- D'Arusment z/. Jones, 4 Lea, 251. The tion. Bishop v. Lalonette, 67 Ala. 197 ; person whose estate was committed to Temples v. Cain, 60 Miss. 478; Lees v. administration may claim, if alive, that 122 CHAP. III.] APPOINTMENT OF ADMINISTRATORS. § 93 unless either the deceased was domiciled (or resident) therein, at the time of his decease, or, if a non-resident of the State or country, has left suitable property in the county to be adminis- tered upon.' § 93. Value or Kind of Estate, whether Fundamental. — Under some American statutes a limitation of value is set to the grant of original administration, so that the court cannot grant letters, unless there appears to be estate of the deceased amounting, at all events, to a specified sum, as for instance twenty dollars, or unpaid debts of that value. ^ But apart from express acts of this tenor, no such particular amount appears requisite ; and in Massachusetts, legislation restrains only the grant of adminis- tration dc bonis non in this manner.^ Where there are debts due from the estate, and no personal property but only real estate left by the deceased, there is usually a probate jurisdic- tion, provided the real estate can be made to respond for such debts.'* In general, the existence of assets within the State or country is essential only when the jurisdiction concerns the estate of a non-resident deceased person ; the situation of estate being here the test, but in principal grants simply the last resi- dence or domicile of the deceased. s Administration may be granted for procuring assets by litiga- tion, on behalf of creditors for instance, who seek to set aside a his property was taken wthout due jurisdiction, see supra, § 26. And see process of law. Labin v. Emigrant Paul v. Willis, (Tex.) 7 S. W. 357 ; Bank, 18 Blatchf. i; Burns v. Van Moore z/. Moore, 33 Neb. 509. Loam, 29 La. Ann. 560. Sentence of ^ Bean v. Bumpus, 22 Me. 549; 81 a person to imprisonment for life does Me. 207. not justify the grant of administration ^ Pinney v. McGregory, 102 Mass. 89, upon his estate as of one "civilly /£•;- Gray, J. ; Jochumsen j/. Willard, 3 dead." Frazer v. Fulcher, 17 Ohio, Allen, 87. And see as to estates worth 260; 50 Plun, (N. Y.) 523. Even if le.ss than ^300, Ind. statute referred to the person, in fact aUve, had been absent in Pace &. Oppenheim, 12 Ind. 533. and not heard of for fifteen years, the '' Little v. Sinnett, 7 Iowa, 324 ; Mur- grant of letters is void. Devlin v. phy v. Creighton, 45 Iowa, 179. Commonwealth, loi Penn. St. 273. 'Harlan, Estate of, 24 Cal. 182; And see Scott v. McNeal, 154 U. S. 34, Watson v. Collins, 37 Ala. 587 ; § 24 with citations (1893). snpra. ' .As \o bringing property into the 123 § 94 EXECUTORS AND ADMINISTRATORS. [PART II. conveyance claimed to be fraudulent and voidable.' Trust or partnership property, however, is not estate to be administered, but an individual's own property is the criterion.^ § 94. Time within which Original Administration must be ap- plied for. — Statutes are found which expressly limit the time within which original administration must be applied for. Thus, in Massachusetts, such administration cannot (with a certain reservation) be granted after twenty years from the death of the person whose estate is concerned ; ^ though no such limits are set to the probate of a will.'' English practice requires any delay longer than three years in applying for letters to be satis- factorily explained, whether the application be for letters testa- mentary or of administration. 5 Long acquiescence by persons s/ii juris in an informal distri- ' Nugent's Estate, 77 Mich. 500 ; 148 Mass. 248. = See Shaw's Appeal, 81 Me. 207 ; 4 Mason 16, 29; Johnson v. Ames, 11 Pick. 173. Where the decedent was member of a partnership and the per- sonal property all belongs to the firm, the winding up of the partnership be- longs rather to an equity court than a court of probate, but administration assets should be rather such as defin- itely belong to the individual, whether by an immediate dissolution on his death with a winding up, or otherwise. Shaw's Appeal, supra. 3 Ma.ss. Gen. Stats, c. 94, §§ 3, 4- There is the express reservation that when property accrues to the estate or first comes to the knowledge of a per- son interested after twenty years, ad- ministration may be applied for, as to such property, within five years. lb. See I'ar.sons v. Spaulding, 130 Mass. 83. See also, as to the demurrer that there is no property. Brooks Re, 110 Mich. 8. * Supra, % 56; Shumwayw. Holbrook. 1 Pick. 1 14. 5 Wms. Exrs. 7th ed. 452, 453 ; 3 Hagg. 565. And see Townsend ?'. Townsend, 4 Coldw. 70, which makes exceptions after twenty years in favor of those who were infants or married women when the death occurred. Un- der the Texas act of 1870 no such ad- ministration can be granted after four years have elapsed from the death of the intestate. Lloyd v. Mason, 38 Tex. 212. l!ut in North Carolina an admin- i.strator may be appointed at least ten years after the intestate's death, not- withstanding the next of kin possessed the property meantime. Whit v. Ray, 4 Ired. 14. In Pennsylvania, letters should not be issued after twenty year.s, except under statute qualifications. But as to the effect of so issuing, see Foster 7K Commonwealth, 35 Penn. St. 148. Seven years is the Connecticut limita- tion in intestate estates only. 49 Conn. 411. A reasonable time to apply for letters is in general permitted. Todhunter v. Stewart, 39 Ohio St. 181. 124 CHAP. Ill,] APPOINTMENT OF ADMIN IS IKATORS. § 96 bution of an estate will debar them from seeking administration merely to disturb such settlement, there being no creditors.' § 95. No Original and General Administration granted while Other Letters are in Full Force, etc. ; Double Jurisdiction. — There can be, of course, no grant of original and general administra- tion, while other letters granted and confirmed as of a testate estate or to an original administrator remain in full force within the same general and appropriate jurisdiction.- And hence the rule, convenient where local assets may confer double jurisdic- tion, that when a case is within the jurisdiction of the probate court in two or more counties, the court which first takes cog- nizance thereof by the commencement of proceedings shall re- tain the same, and the competent administration first granted shall extend to all the estate of the deceased in the State, so as to exclude the jurisdiction of every other county.^ But where the court of county of last residence has exclusive jurisdiction in a State, it may properly ignore as void an appointment in another county of the State.'* Real estate, to be appropriated to the payment of a debt of the decedent, may perhaps require a local appointment of ad- ministrator under the rule of situs ; 5 but, notwithstanding such appointment, an administrator, appointed in the local jurisdic- tion where the decedent resided, becomes the principal and primary administrator, and entitled eventually as such to the personal assets.^ § 96. Judicial Inquiry into the Facts Essential to the Grant of Administration. — Letters of administration are issued by the court in many States, upon the mere allegations of the peti- tioner, aided by the public nature of the proceedings, and the requirement of a bond for general security. Where such is the ' Beardslee v. Reeves, 76 Mich. 661 ; ' i^,c& post as to administrator's deal- Ledyard v. Bull, 119 N. Y. 62. ings with real estate; 58 P'ed. 51, 65, ^Landers 7'. Stone, 45 Ind. 404 ; Slade 66, (land claims), t'. Washburn, 3 Ired. L. 557. ^Chamberlin v. Wilson, 45 Iowa, ^Mass. Gen. Stats, c. 117; Smith 149 ; /oj/, as to ancillary administration, Prob. Prac. (Mass.) 6. etc. As to a land claim, see Fletcher ^King's Estate, 105 Iowa, 320. z'. McArthur, 68 Fed. 65. 125 § 97 EXECUTORS AND ADMINISTRATORS. [PART II. practice, the grant itself must needs afford very little proof of the facts essential to jurisdiction, unless those facts were con- troverted ; and the administrator should act accordingly, under a full sense of the perilous responsibilities with which he has been invested. But the probate judge in each case has sound discretion to investigate and determine as to death and other facts fundamental to the grant of administration ; and in some States the judicial nature of the inquiry in the probate court, and the necessity of requiring due proof, appear to be strongly insisted upon.' § 97. Persons to •whom General Administration is granted. — The appointment of administrators, both in England and the United States, is founded upon the statute 31 Edw. III. c. 11 ; local legislation at the present day, however, expressly regulat- ing the whole subject. The policy of this statute in connection with a later one, passed during the reign of Henry VIII.,- both ante-dating the settlement of the American colonies, was to depute administration to those most directly interested in the estate, in case the deceased himself had made no choice by a will. " The next and m.ost lawful friends of the dead person intestate," was the language of the first of these statutes, which took the right of administering away from the clergy, Stat. Hen. VIII. c. 5, § 3, conferred upon the ordinary a right to exercise discretion as between widow and next of kin, and in case various persons equal in degree of kindred should desire the administration.^ The fundamental principle of both English and American enactments now in force on this subject is, that the right to ad- minister, wherever the deceased chose no executor, shall go according to the beneficial interest in the estate ; a principle 'See Roderigas v. East River Sav- administrator, that the appointment was ings Inst., 63 N. Y. 460; Bulkley v. made upon the petitioner's averment Redmond, 2 Bradf. Sur. 281 ; Vogel, that, to his best knowledge, informa- Succession of, 16 La. Ann. 13; Burns tion, and belief, M. was dead, with no V. Van Loan, 29 La. Ann. 560. It is other proof of death. Roderigas v. not enough, in New York State, to give East River Savings Inst., 76 N. Y. 316. the surrogate jurisdiction, so as to ran- ^Stat. 21 Henry VIIT. c. 5, § 3. der the person appointed even a de facto ^ Wms. Exrs. 409, 436. 126 CHAP. HI.] APrOlNTMENT OF ADMINISTRATORS. § 98 which may yield, however, to other considerations of sound policy and convenience. And the grant should be according to the preference at the time, not of the intestate's death, but of the application.' § 98. Husband's Right to Administer upon the Estate of his Deceased Wife. — It was part of the common law which divested the wife of her personal property for her husband's benefit, and merged her status in his, that on her death, leaving a husband surviving, the latter could rightfully administer her estate to the exclusion of all kindred. The foundation of this claim has been variously stated ; some have thought it derived from the statute 31 Edw. III., he being her "next and most lawful friend " ; while others deduce it from the fundamental law of coverture, with whose general scope it fully harmonizes. The right is confirmed, both in England and in many parts of the United States, by modern statutes, and constitutes an exception to the usual rule of administration upon the estate of intestates.^ Often, under the theory of coverture, there was no occasion for a husband to administer upon his deceased wife's estate at all ; her personalty was his if recovered during her life, and he had to respond personally for her debts irrespective of her for- tune ; but administration might be necessary in order to sue or to reduce her cJwses into possession after her death. ^ The modern creation of a^ separate estate on the wife's behalf changes this old rule considerably ; nor can the husband in these days be said to administer so exclusively for his own ben- ' Subject to statute variations, of ^Schoul. Hus. & Wife, § 405. No course. Griffitli v. Coleman, 61 Md. administration was needful to entitle 250. The grant of administration must the husband to that which he already be to the persons in the order and un- possessed, by virtue of his marital rights, der the contingencies provided by the or to confirm his right to choses t>i action local statute. 51 Mich. 29. recoverable without the aid of the courts. ^See Wms. Exrs. 410 ; Schoul. Hus. Whitakcr v. Whitaker, 6 John. 117; & Wife, § 405. This right is not an Clough v. Bond, 6 Jur. 50. ecclesiastical, but a civil, right of the But .see recent Maryland statute re- husband ; a right, however, to be ad- quiring a special order of court to de- ministered in the court of probate. Sir volve the title upon the surviving J. Nicholl in Elliott v. Gurr, 2 Phillim. husband. Wilkinson v. Robertson, 85 19. Md. 447. 127 98 EXECUTORS AND ADMINISTRATORS. [I'ART II. efit as formerly.' And owing to modern facilities for separation and divorce, and to the enlarged capacity given to the wife to act as 2ifcnic sole, and to acquire and dispose of property in her own right, the husband's privilege to administer upon his wife's estate in preference to kindred, whether for his sole benefit or in the interest of others, appears a somewhat precarious one. Thus, in England, where a married woman lives separate from her husband under a protection order giving her the capacity to deal and be dealt with as ts. feme sole, administration will be granted upon her death to her next of kin, exclusive of the husband.^ So may a husband's general misconduct preju- dice his claim to administer as against others interested in the estate.^ And in the United States may be found similar excep- tions, founded in considerations of the husband's misconduct, where others are interested in the estate, and the court has a statute discretion in the matter of appointment. ■♦ ■ Schoul. Hus. & Wife, §§ 408, 409 ; Distribution, post. ^ Worman, Goods of, i Sw. & Tr. 513; Stat. 20 & 21 Vict. c. 85. Such administration appears to be limited to the personal property the wife may have acquired since the husband's de- sertion. Wms. Exrs. 411. Adminis- tration has been granted to a guardian elected by her son, a minor, without citing the husband. Stephenson, Goods of, L. R. I P. & D. 285. M1898), P. 147- ■•See Coover's Appeal, 52 Penn. St. 427; Cooper V. Maddox, 2 Sneed, 135. And see post, as to general incapacity for service as administrator, which may apply to a surviving husband as to any one else; and for limitation of the time within which the right should be as- serted, supra, § 94. Ill most parts of the United States the husband's exclusive preference to administer on his wife's estate is recog- nized by statute. See, upon this point, Hubbard v. Barcas, 38 Md. 175 ; Willis V. Jones, 42 Md. 422 ; J"airbanks7/. Hill, I 3 Lea, 732 ; Shumway v. Cooper, 16 Barb. 556 ; Happiss?'. Eskridge, 2 Ired. Eq. 54 ; Clark v. Clark, 6 W. & S. 85. To deprive him of such right, the stat- ute should be clear and positive in terms. A written agreement for sepa- ration, in contemplation of a divorce, with covenants as to property, will not be presumed to have intended a relin- quishment of the right to administer in case the husband survives, nor will such construction be given, no divorce hav- ing been decreed. Willis v. Jones, 42 Md. 422. Nor will an ante-nuptial set- tlement for the wife's benefit. Hart v. Soward, 12 B. Mon. 391. Nor the fact of non-residence. W' eaver v. Chace, 5 R. I. 356. Nor relinquishment of rights to her property by a post-nuptial con- tract. O'Rear v. Crum, 135 111. 294. But in some States the husband is not entitled to administer to the exclu- sion of the children. Randall v. Shrader, 1 7 Ala. 333 ; Williamson, Succession of, 3 La. Ann. 261 ; Goodrich v. Treat, 3 Col. 40S. This will become further ap- ])nrent when Distribution is considered, 28 CHAP. III.] APPOINTMENT OF ADMINISTRATORS. §98 The wife's will, lawfully made and operating, may control a surviving husband's right to administer." And, in general, that the husband may be preferred in the trust, it is assumed that he is both competent and willing to exercise it. But the mere fact that the husband has no pecuniary interest in his wife's es- tate does not per se deprive him of his common-law right to administer.^ Both in England and the United States, if a marriage were voidable only and not annulled before the wife died, the surviv- ing husband was always entitled to administer ; ^ but if utterly void, or annulled during their joint lives, the man was no sur- viving husband at all, and could claim no rights as such.'* On principle, too, while the husband's right to administer would seem not to be forfeited by a mere decree of judicial separation or divorce from bed and board,^ a divorce absolute, or from the bonds of matrimony, annihilates his right with the marriage re- lation.^ post, and it is perceived that the surviv- ing husband must share the estate with children or other kindred ; for the gen- eral principle is that the right to admin- ister follows the interest in the estate. An ante-nuptial settlement, properly worded, may exclude the husband's marital right in this respect. Ward v. Thompson, 6 Gill & J. 349 ; Fowler v. Kell, 22 Miss. 68; Schoul. Hus. & Wife, § 363. The Massachusetts stat- ute makes express reservation where, by force of a testamentary disposition or otherwise, the wife has made some provision which renders it necessary or proper to appoint some one else to ad- minister. Mass. Pub. Sts. c. 130. ' Wms. Exrs. 415. See Schoul. Wills, Fart II., c. 3, as to the walls of married women in modern practice. The wife's choice of executor under her wall, it rightfully made in conformity with rules of equity or a modern statute, is to be respected. As to the effect of her will 9 I naming no executor, etc., see post, ad- ministration with the -will annexed. But the wife's will, if limited in opera- tion, calls for a limited probate, and ad- ministration of the rest should be granted to her husband. Wms. Exrs. 415 ; Stevens v. Bag\vell, 15 Ves. 139. Administration gianted upon the estate of a married woman as though she were single may be revoked for er- ror. (1893) P. 16. ^ O'Rear 7'. Crum, 135 111. 294, and other cases supra. 3 Schoul. Hus. & Wife, § 13; Wms- Exrs. 411; Elliott v. Gurr, 2 Phillim. 19. ■• lb. ; Browning v. Reane, 2 Phillim. 69. 5 Schoul. Hus. & Wife, § 563 ; 2 Bish. Mar. & Div. 5th ed. § 739 ; Clark V. Clark, 6 W. & S. 85. *' Schoul. Hus. & Wife, § 559 ; 2 Bish. Mar. & Div. 5th ed. § 725 ; Altemus's Case, I Ashm. 49. 29 § 99 EXECUTORS AND ADMINISTRATORS. [PART II. S 99. Widow's Right to Administer upon the Estate of her Deceased Husband. — The surviving wife's right to administer on her husband's estate is not, under most statutes which regulate the grant of general administration, co-extensive with the right of a surviving husband. The husband in the one instance is preferred to all others ; but in the other (to quote from statute 21 Hen. VIII, c. 5, § 3), administration shall be granted at the court's discretion, " to the widow or the next of kin or to both," so that kindred and the widow stand apparently upon an equal footing, though not unfrequently parties adverse in point of fact. Such is the rule of England ; ' and it prevails in most parts of the United States.^ As we shall see hereafter, the division of interests as between widow and kindred is its basis. The widow must be actually and bona fide such, and the surviving wife, in order to be entitled to administer upon the estate of an intestate. The partner of a void marriage, or the survivor of a conjugal pair, absolutely and finally divorced by a competent tribunal, can assert no such claim. ^ Divorce from bed and board, however, or a marriage simply voidable, works no forfeiture of the widow's statute right to administer ; nor would voluntary separation of the pair ; ^ yet the discretion of the court, here permitted, as between widow and kindred, may suffice to exclude the former whenever her past misconduct has rendered her unworthy of the trust, or from other cause her appointment is obviously unsuitable.^ Marriage settlements, ' Wms. Exrs. 416; Browning, Goods the widow was held to be competent, of, 2 Sw. & Tr. 634; Grundy, Goods of, Boyd's Appeal, 38 Penn. St. 246. L. R. I P. & D. 459; Widgery v. Tep- * See Schoul. Hus. & Wife, §§ 13, per, 5 Ch. D. 516. 563; Wms. Exrs. 418; 3 Hagg. 217 ^ 2 Kent Com. 410, 411, and notes. 556; 2 Bish. Mar. & Div. 5th ed. § 725 But see next section. A non-resident One may leave a lawful widow, by re- widow may be objectionable even marrying after a divorce. Ryan z'. Ryan, though a statute imposes no absolute 2 Phillim. 332. See also Nusz 7'. Grove limitation upon her. O'Brien's Estate, 27 Md. 391 ; Odiorne's Appeal, 54 Penn 63 Iowa, 622; Ehlen z/. Ehlen, 64 Md. St. 175. 360. * And see as to the husband under ^ O'Gara v. Eisenlohr, 38 N. Y. 296 ; corresponding circumstances, § 98. Schoul. Hus. & Wife, § 559; 2 Bish. Administration refused to a wife Mar. & Div. 5th ed. § 739. But where divorced from bed and board because a decree of division had been vacated of her adultery. Davies, Goods of, 2 and annulled after the husband's death, f'urt. 628; Wms. Exrs. 418. Refused 130 CHAP. III.] APPOINTMENT OF ADMINISTRATORS. § I GO too, may exclude the rights of one surviving spouse as well as the other.' And we here consider, of course, simply the estate of a husband who dies intestate, leaving a widow mentally and otherwise competent, when we speak of her right to administer. Notwithstanding the statute expression, English courts in modern practice select the widow to administer, in preference to the next of kin, unless good reason appears for appointing differently.^ As against next of kin of remote degree or cred- itors, the wife deserves the strongest consideration ; and even children should respect a surviving parent. Administration may doubtless be granted to both widow and next of kin ; but a sole and harmonious administration is always preferred in practice to a joint and divided one.^ Where letters are issued to the widow and one of the next of kin jointly, it is desirable that the other next of kin should consent to the co-appointment. •♦ § 1 00. Widow's Right to Administer ; The Subject continued. — The American rule as to the choice for administration between widow and kindred must be gathered from a variety of acts ap- plicable in different States. There is, perhaps, on the whole, more disposition than in England to construe the statute liter- ally ; balancing the preference of widow and kindred more evenly, and according to the merits of each case, and granting adminis- tration to one or the other or jointly to both ; regarding, more- over, that personal suitableness for the trust which we shall presently consider in its wider bearings.^ A preference of the widow to children and other kindred is, however, expressly ac- corded by the statutes of New York and certain other States.^' to a wife dissipated and an eloper. Stev- ^ Wms. Exrs. 417; i Salk. 36. ens's Goods, (1898) P. 126. Stat. 20 & " Newbold, Goods of, L. R. i P. & 21 Vict. c. 77, § 73, permits the refusal D. 285. of administration to the widow under ' See McClellan's Appeal, 16 Penn. " special circumstances." See Wells z/. St. no; Smith's Probate Practice Brook, 25 W. R. 463. (Mass.) 70. ■ Schoul. Hus. & Wife, § 363 ; 2 Gas. ^ Pendleton v. Pendleton, 6 Sm. & M. temp. Lee, 560. 448; Lathrop v. Smith, 24 N. Y. 417; = Goddardz/. Goddard, 3 PhilHm.638; McBeth v. Hunt, 2 Strobh. 335 ; Curtis Wms. Exrs. 417. But %vith ancillary v. Williams, t,}, Ala. 570. Illiteracy administration it might be otherwise, and poverty or old age do not deprive a Rogerson, Goods of, 2 Curt. 656. widow of her statutory preferred right i3i J § lOI EXECUIOKS AND ADMINISTRATORS. [PART II. Where there are no children or descendants of children, the widow's distributive interest in the surplus of the estate may render her all the more preferable to kindred.' English courts have held that the re-marriage of the widow is/>crsr no valid objection to her claim to administer;' but if children unite in their choice as against her, under such circum- stances, it seems j^roper that they should at least have a co- administrator appointed. 3 Both in England and the United States, where the widow is heir and distributee, and for aught that is known the only one, she will be appointed in preference to any stranger.-* § I O I . Right of the Next of Kin to Administer ; Consanguinity. — Subject to the possible claims of surviving husband or widow, as already noticed, the right of an intestate's next of kin to ad- minister, as well as to take the residue of the personalty by way of distribution after settling all claims, is paramount. These "next of kin," or "next and most lawful friends" of the de- ceased (to use the language of the old statute 5) Lord Coke de- fines as " the next of blood who are not attainted of treason, felony, or have any other disability." ^ In general, no one comes within the term "next of kin " who is not included in the provisions of the statutes of distribution hereafter to be detailed. And, as we have stated, the funda- mental principle in the award of administration is that the right to administer upon the estate of an intestate follows llic interest or right of property therein." Hence precedents under the one head may serve to establish a rule under the other. In most American States the statutes of distribution fix the order of preference among kindred with much precision."* And the gen- in Pennsylvania, if her mind and judg- ^ See ib. ment are good; Bowersox's Appeal, I oo * Cobb v. Newcomb, ig I^ick. 336; Penn. St. 434; 108 Penn. St. 567. Block, Succession of, 6 La. Ann. 810. ' In Tennessee, and in various other ' 31 Edw. 3, c. 11. States (see Di.stribution,/>(?.f/), the widow * 9 Co. Rep. 39 b. in such a case is entitled to the whole '' 3 Atk. 422, per Sir John Nicholl ; surplus of the personal estate after pay- Gill, Goods of, i Hagg. 342; Wms. ment of the debts. Swan v. Swan, 3 Exrs. 7th Eng. ed. 419, and notebyPer- Head, 163. kins. * Webb f . Xeedham, i .Xdd. jo}- " See/i. Howe, 3 Ind. 268; Ferguson any such sense as to set up the rule of v. Collins, 8 Ark. 241 ; Pistole?'. Street, primogeniture. 5 Port. (Ala.) 64. 3 Hill's Case, 55 N. J. Eq. 764. ' Dowty v. Hall, 83 Ala. 165. ■* 2 N. V. Rev. Stat. 74, § 28 ; Owings * Stewart, In re, 56 Me. 300 ; Binner- V. Bates, 9 Gill, 463. This preference man v. Weaver, 8 Md. 517 ; Wms. Exrs. applies where the intestate leaves two 450; Schoul. Hus. & Wife, appendix, daughters, one of whom is married and A w'oman appointed administratrix the other is not. Smith t. ^'oung, 5 whik' sole is permitted by some codes 140 CHAP. III.] APPOINTMENT OF ADMINISTRATORS. § I07 haps without it;' and provision is made for the husband's joinder in his wife's official bond.-' If the wife be executrix or administratrix, and dies intestate, administration de bonis jwn as to such estate is proper ; and l^arties in interest have the right to be considered for the new appointment, rather than lier surviving husband.' The same effect is sometimes given by statute to the marriage of a single woman. "• § 107. Unsuitableness as to Insane Persons; Infants; Corpora- tions, etc. — Insane persons are doubtless unsuitable for the personal trust of administrator, and, indeed, incompetent to serve. 5 So, too, are infants.'' A corporation cannot lawfully be appointed, unless the right to administer has been expressly conferred in its charter.^ In general a cestui que trust, if nat- ural and competent, is entitled rather than his trustee."^ The usual disqualifications of an executor extend to administrators ; and other disqualifications are sometimes annexed.'' In the case of a sole next of kin who is insane and incapable, to resign her trust on her marriage. And .see New York statute construed in Rambo v. Wyatt, 32 Ala. 363. McMahon v. Harrison, 6 N. Y. 443. 'Administration granted to a wife * See /(7j^, § 132, as to administration living apart from her husband under a during minority. And see Carow v. deed of separation. Hardinge, Goods Mowatt, 2 Edw. (N. Y.) 57 ; Collins 7j. of, 2 Curt. 640. And see Maychell, Spears, i Miss. 310. That the minor is Goods of, 26 W. R. 439. married does not qualify her. Briscoe ^ Airhart ?-. Murphy, 32 Tex. 131 ; v. Tarkington, 5 La. Ann. 692. Nor Cassedy T/. Jackson, 45 Miss. 397. that there is no other next of kin capa- 33 Salk. 21; Wms. Exrs. 416. See ble to administer. Rea v. Englesing, Risdon, Goods of, L. R. i P. & D. 637. 56 Miss. 463. ^ See Mass. Gen. Stats, c. loi, § i, ^Thompson's Estate, 2,t^ Barb. 334. which specifies, as a proper case for See § 114. granting administration de bonis non, ^ lb. that of the marriage of a single woman ' i Wms. Exrs. 449 mentions attain- who is sole executrix, etc. And see der of treason or felony, outlawry, etc. next chapter as to administration de The statute of New York enumerates bonis non. A married daughter's right among other special disqualifications, to administer her father's estate, if not the conviction of an infamous crime, unfit, is conceded in Guldin's Estate, 81 See McMahon v. Harrison, 6 N. V. 443. Penn. St. 362. And.see Stat. ;i2, & 34 Vict. c. 23 ; Wms. 5 McGooch V. McGooch, 4 Mass. 348. Exrs. 435. 141 § I09 EXECUTORS AND ADMINISTRATORS. [PART II. his duly appointed guardian may be allowed to administer in his stead.' § 1 08. Illegitimate Children and their Right to Administer. — As to illegitimacy, the peculiar rules of distribution, as defined by statute, must be applied for determining the right to admin- ister ; whether the case be one of an illegitimate decedent or of illegitimate relationship to a decedent.^ § 1 09. Whether Non-residence disqualifies. — Non-residence is an objection to the appointment ; ^ but in practice not usually a decisive one, especially as between residents in different parts of the United States. But it is sometimes said that a non- resident ought only to be appointed under special justifying circumstances ; and some States treat such appointments as quite impolitic' Some States permit the non-resident ne.xt of kin to serve as administrator upon duly qualifying with resi- dent sureties ; and in Massachusetts such an administrator must further appoint a resident attorney who shall accept ser- vice on his behalf and in general represent him. 5 So might the resident nominee of a non-resident kinsman be taken where no suitable kinsman within the State desired to administer.*^ Alien- age is considered no incapacity in England as concerns personal estate ; but some American statutes exclude or restrict the right of aliens, and particularly non-resident aliens, to administer.^ As among next of kin, some resident and some non-resident, those resident, if otherwise suitable, or their nominee, would seem worthy of a preference.^ Where in fact several i)crsons are of ' (1894) P. 160; Mowry f. Latham, 17 Frick's Appeal, 1 14 Penn. St. 29. Cf. R. I. 4S0. 44 Hun (N. Y.) 67. 2SeePul)!ic Administrator 7'. Hughes, 5 Mass. Public Stat. c. 132, § S; I Bradf. 125 ; Pico's Estate, 56 Cal. 513 ; Robie's Estate, Myrick (Cal.) 226. And Ferrie z/. Public Administrator, 3 Bradf. see Barker, Ex parte. 2 Leigh, 719; 249; Schoul. Dom. Relations, § 276; Jones v. Jones, 12 Rich. 623. Wms. Exrs. 433 ; Goodman, Re, L. R. *Smith v. Munroe, i Ired. L. 345. 17 Ch. D. 266. See/^j^S 116, to Public Administrator. 3 Child z/. Gratiot, 41 111. 357; Rad- ' Wms. Exrs. 449 ; New York Stats., ford V. Radford, 5 Dana, 156; Wick- cited Redf. Surr. Pract. 138; 4 Dem. wire V. Chapman, 15 Barb. 302. (N. Y.) 33. * Chicago R. v. Gould, 64 Iowa, 343; «5 Dem. (N. Y.) 292 ; (1898) P. 11. Sargent, Re, 62 Wis. 130; 63 Cal. 45S; 142 CHAP. III.] APPOINTMENT OF ADMINISTRATORS. § IIO the same degree of kindred to the deceased, one living out of the State is not entitled to administration as of right ; but in case those living in the State are unsuitable, upon stronger grounds the non-resident may, at the discretion of the court, be ap- pointed upon the non-residence terms.' English practice recog- nizes the grant of administration to the attorney of next of kin residing abroad.'' § IIO. other Considerations for determining the Choice of Ad- ministrator. — One determining consideration between next of kin, in cases of doubt, may be their relative extent of interest.^ But another important one is, the confidence reposed by kin- dred ; and hence, in cases of conflict, it is not unfrequent to appoint the one upon whom a majority of the parties in interest agree.'' The wishes of the party or parties having the largest amount of interest may in other respects preponderate in the selection of administrator.5 The party first seeking the appoint- ment has some claim to preference.^ These, and the other considerations already set forth, which touch rather upon per- sonal suitableness or competency for the trust, the court taking jurisdiction should duly weigh, where controversy has arisen, and grant the administration to such party or parties in the pre- ferred class as shall seem most proper.^ ' Pickering z'. Pendexter, 46 N. H. 69. 'In English practice, it is said, a sole ^Wms. Exrs. 439 ; Burch, Goods of, administration is preferable, fosi, c. 6, as to effect of appoint- ministrators appear to be alike favored ment, etc. in New York as under the English rule. * Arnold v. Sabin, i Cush. 525. Casey v. Gardiner, 4 Bradf. (N. Y.) 13. 5 Rinehait v. Rinehart, 27 N. J. Eq. Cf. § 50. 475; McClellan's Appeal, 16 Penn. St. The law will not sanction an agree- no. It is held in England that where ment whose con.sideration is the relin- a party entitled to administer has re- quishment of the right to administration nounced, such renunciation may be re- by one party to the other. Bowers v. tracted at any time before the adminis- Bowers, 26 Penn. St. 74. tration has passed the seal. West 7'. ''49 Neb. 8. 146 CHAP. III.] APPOINTMENT OF ADMINISTRATORS. § 113 widow does not give her the right to nominate another person to the exchision of the next of kin.' Nor can kindred who waive the right to serve dictate the selection of a stranger.^ But in Kentucky, the court, in granting administration to the widow, may, at her request, associate with her a stranger in blood to the intestate, although the blood relatives object.^ And in New York, where a widow renounced her right to adminis- ter her husband's estate, and recommended another person, all the children being minors, the appointment of her nominee was considered proper.^ Even granting, as we must, that the court is not bound by the nomination made by a widow or the kin- dred first entitled to administer, yet the wishes and preferences of those having the greatest interest in preserving the estate are entitled to great weight. 5 And hence the appointment, at the court's discretion, of any suitable person upon whom the next of kin entitled to the office, or a majority of them, may agree, is highly favored in American practice;^ the rights of more remote kindred, creditors and all strangers in interest be- ing postponed to their expressed choice accordingly. Where the next of kin reside abroad, their resident nominee may re- ceive the appointment -^ any such attorney, so called, however, being responsible to all parties in interest.^ And where widow 'Cobb V. Newconib, 19 Pick. 332. lied. L. 345 ; Wms. Exrs. 439 ; Cotter's And see Triplett v. Wells, Litt. (Ky.) Estate, 54 Cal. 215; 93 Cal. 611. But Sel. Cas. 49. Under Maryland statutes in other cases except for the "special the right of administration cannot be circumstances," etc., under recent stat- delegated. Georgetown College -'. utes, the right to select a third person Browne, 34 Md. 450. And as to Cali- appears not to be favored in English fornia, see Shiels, Re, 120 Cal. 347. practice. See Wms. Exrs. 446, 447 ; ^Cresse, Matter of, 28 N. J. Eq. 236 ; Stat. 20 & 21 Vict. c. 77, § 73. Unless Root, Ke, I Redf. 257. it be some one related to the family. 3 Shropshire z/. Withers, 5 J. J. Marsh. Tyndall, Goods of, 30 W. R. 231. An 210. impartial stranger may be preferable to ••Sheldon v. Wright, 5 N. Y. 497. widow or kindred where these are un- And this without citing kindred. lb. suitable. Hassinger's Appeal, 10 Penn. 5 McBeth V. Hunt, 2 Strobh. (S. C.) St. 454. 335; McClellan's Appeal, 16 Penn. St. * Chambers v. Bicknell, 2 Hare, 536. 1 10. But the court \s\\\ not grant administra- ^Mandeville v. Mandeville, 35 Ga. tion to the attorney-in-fact, where the 243 ; Munsey v. Webster, 24 N. H. 126 ; party himself is resident in the jurisdic- Halhday v. Du Bose, 59 Ga. 268. tion, and able to take it himself. Burch, ''Supra, §109; Smith v. Munroe, t /;/ ;r, 2 Sw. & Tr. 139. Where the sole § 114 EXECUTORS AND ADMINISTRATORS. [PARTII. and next of kin unite in their request for some other suitable third person, their nomination should be strongly regarded.' One who rightfully requests the appointment of another may revoke such nomination at any time before the court has acted upon it.'' Inasmuch as the regular administration of estates, whether testate or intestate, is so highly favored at the present day, the selection of third persons of integrity, experience, and sagacity for such responsible duties must often be most desirable. And if a testator makes such a selection, or associates others with his next of kin or legatees in the trust, for reasons admittedly sound, there seems no good reason why the next of kin them- selves, if the estate be intestate, should not exercise a correspond- ing discretion and nominate some trustworthy friend rather than forfeit all claim to administer by failing to qualifying personally for the office.^ § 114. Unsuitableness of a Judge of Probate, Corporation, etc., for the Appointment. — A judge of probate would be an unsuit- able person to receive the appointment from his own hands or within his own jurisdiction ; and delicacy, moreover, ought to prevent any judge from serving as administrator in an adjoining county, or at least where he might sometimes be called upon to hold a court ; though probate judges in this country are not al- ways found so scrupulous about taking advantage of their ofificial position, to emulate the example of the early English bishops. Legislation should curb such temptations, and keep local judges of probate from throwing estates and probate business into one an- other's hands. Probably, for a judge to appoint himself admin- istrator would be void, as against public policy.'* But as to the next of kill was a married woman living residents. Supra, §109: Sargent, /vV, apart from her husband, whose ad- 62 Wis. 130; Muer.sing. AV, 103 Cal. dress was unknown, administration was 585. granted with her consent to the trustees ' See Swart 's Estate, 189 Penn. St. 7 1. of her marriage settlement. Maychell, ^ Shiels Re, 120 Cal. 347. Goods of, 26 W. R. 439. The nomina- ^ As to nominee of guardians of a tion of a non-resident is not to be fa- widow, there being no issue, see (1892) vored where the policy of the law dis- P. 50. courages the appointment of non ' A judge of probate interested in the 148 CHAP. III.] APPOINTMENT OF ADMINISTRATORS. § I '5 appointment of his own son by a judge of probate, it is recently held, that, although manifestly improper and even voidable, such appointment is not void.' A trust company or other corporation in New York expressly empowered to administer may not be appointed on the request of those entitled to administer so as to take priority even of a public administrator.- Yet, all other things being equal, certain corporations chartered recently in England and American States are expressly empowered to serve as executor or administrator, as well as in other specified trusts.^ § 115- Right of Creditor or Stranger to be appointed in Default of Kindred, etc. — A creditor having a right of action against the deceased is in most States the party entitled to administration on the intestate's estate, where the husband or widow and next of kin refuse or neglect to apply, or are incompetent.'* The New York statute specifies as to creditors, that the creditor first apply- ing, if otherwise competent, shall have the preference.^ The largest creditor, or some principal creditor of the deceased, takes priority, according to the expression of other local codes.^' By Enghsh practice, too, a creditor may take out administration on an intestate estate, if none of the next of kin or others in legal priority do so ; this rule resting in custom and not statute law, and the court frequently selecting a larger creditor instead of the creditor applying.^ In Texas, however, such " proper per- son " as will accept and qualify is designated, and it is held that a creditor as such has no special claim to the appointment over estate has no right to grant administra- creditor has a strong claim. Lentz v. tion. Sigourney v. Sibley, 22 Pick. Pilert, 60 Md. 296. But a party claim- 507. And see Thornton v. Moore, 61 ing as trustee and not in his individual Ala. 347. capacity, is not entitled as " largest ' Plowman v. Henderson, 59 Ala. 559 ; creditor." 74 Md. 234. Nor is the 79 Ala. 505. president of a corporation, where the ^ Goddard's Estate, 94 N. Y. 544. latter is a creditor. 95 Ga. 3S3. ^ See Hunt's Goods, (1896) P. 288. ' Wms. Exrs. 7th ed. 440-442; 2 Bl. ■* Mitchell V. Lunt, 4 Mass. 654 ; Com. 505 ; 2 Cas. temp. Lee, 324, 502 ; Stebbins v. Palmer, i Pick. 71. Maidman v. All Persons, i Phillim. 53. ^ New York Laws, 1867, c. 782, § 6- The applicant must makeaffidavh as to *" Curtis V. Williams, 33 Ala. 570. As the amount, etc., of his debt, and that to nomination of a third person by he has cited in the kindred. \'on Uesen, creditors, see Long v. Easly, 13 Ala- Goods of, 43 L. T. 532. 239. A relative who becomes sole 149 §115 EXECUTORS AND ADMINISTRATORS. [p ART II. a confidant of the deceased not interested." Administration cannot in general be granted to a creditor or stranger until after the lapse of the time allowed for the application of the widow, next of kin, and others previously entitled and suitable, nor ex- cept upon their failure to pursue their rights, notwithstanding a due citation.- The reason why a creditor has usually been selected under such circumstances, is in order that his claim may not be lost for want of administration upon the estate.^ He is a person in interest. The amount of one's claim seems not essential, except it be for preferring the principal creditor.^ But it ought to be a claim which survives by law. 5 The creditor should make affi- davit or be prepared to prove his claim before the probate court, as a prereciuisite to obtaining the appointment.'' Administration may be committed to one or more creditors ; but one is preferred by the court where the estate is small and easily managed. ^ A creditor having ample security, which he could enforce without an administration at all, appears not to have been favored for the trust in the English ecclesiastical practice, lest simple contract creditors should receive detriment ;'^ and administration is regu- larly refused to one who buys up a debt after the death of the deceased, and so becomes a creditor.'^ Policy, however, not principle, seems to have dictated this rule of refusal, for there ' Cain 7J. Haas, i8 Tex. 616. And as Brackenbury, Goods of, 25 W. R. 698; to Virginia, see McCanlish 7a Hopkins, Stevens v. Gaylord, 11 Mass. 256. 2 Leigh, 267. ■» Arnold v. Sabin, i Cush. 525. ^ Mullanpliy 7-. County Court, 6 Mo. 'Slebbins v. Palmer, i Pick. 71; 563; Ha.xall v. Lee, 2 Leigh, 267; Smith z'. Sherman, 4 Cush. 408. That Wms. Exrs. 440, 441. Thirty days is the claim would be barred, if the statute the period allowed in some States to of limitations were pleaded, is held no the widow and next of kin, before a objection. Caig, Jix pailc, T. U. P. .stranger can apply. Munsey z/. Web- Charlt. (Ga.) 159; Coombs?'. Coombs, ster, 24 N. H. 126; Cobb v. Newcomb, L. R. i P. & D. 288. 19 Pick. 336; 32 Neb. 480. vSix months' ^ Wms. Exrs. 442 ; Aitkin v. Ford, 3 delay imports renunciation of priority Hagg. 193. But a formal filing of in North Carolina. Hill 7/. Alspaugh, claim is not requisite. 32 Neb. 480. 72 N. C. 402; 95 N. C. 353. For the ^ Wms. Exrs. 442; Harrison v. All peculiar limitation in Alabama, see Person.s, 2 Phillim. 249. Davis?'. Swearingen, 56 Ala. 539. And ^Roxburgh v. Lambert, 2 Hagg. 557. see Frick's Appeal, 114 Penn. St. 29. 'Cole.s, Goods of, 3 Sw. & Tr. 181 ; ^Elme V. Da Costa, i I'hillim. 177; Wms. Exrs. 443. 150 CHAP. III.] APPOINTMENT OF ADMINISTRATORS. § ^^5 are admitted exceptions ; ' and not only has a creditor's assignee in bankruptcy been permitted to apply in his stead ; ^ but like- wise a surety who, after the death of his principal, has cancelled an obligation ; ^ one, too, like an undertaker, whose claim accrues after the death in all strictness, and yet in connection with rendering last offices to the deceased, such as a preferred claim upon the estate may well be based upon, independently of ad- ministration.'' The creditor should, of course, be a suitable and competent person for the trust, as in other cases, and he should give security to administer ratably, or otherwise comply with the statute requirements as to qualifying for the office.^ If there is no husband, widow, next of kin, or creditor, willing and competent to the trust, administration may be granted to such other person as the court deems fit. Such has long been the English practice,^ and statutes confirm or enlarge this judi- cial discretion both in England and the United States.^ Distant kindred, having no legal interest in the distribution, may thus receive letters of administration ; or an entire stranger in point of blood and interest.^ But a stranger who has been hastily and without reason appointed, has no status in court to object to the ' lb. ; Downward v. Dickinson, 3 Sw. Wms. Exrs. 446, 447. " Special circum- & Tr. 564. stances " are recognized, under tliis ' Wms. Exrs. 443 ; Schwertfegen, English act, as affording ground for de- Goods of, 24 W. R. 298 ; and see Bur- parture from the rule of priority, dett, Goods of, 45 L. J. 71. * lb. ; Keane, Goods of, i Hagg. 692 ; 3 Williams v. Jakes, 35 L. J. P. M. & Wyckhoff, Goods of, 3 Sw. & Tr. 20. A. 60. We have already seen that in some of * Newcombe z'. Beloe, L. R. i P. & D. the United States all kindred in order, 314. and not simply "next of kin," in dis- 5 Brackenbury, Goods of, 25 W. R. tribution, may have a legal right to 698. The largest creditor may in the administer. In case of a lunatic next court's discretion be preferred to one of kin, a stranger was appointed, with requested by the majority of the credit- the consent of the lunatic's guardian ors and by the intestate's widow besides, and own next of kin. Hastings, Goods O-stendorff, /?e, 17 S. C. 22. of, 47 L. J. P. D. A. 30. As to "spec- ' Wms. Exrs. 445;. Davis 7'. Chanter ial circumstances," see, further, Clark, 14 Sim. 212. Goods of, 25 W. R. 82 ; Tyndall, Goods ^ Mass. Pub. Stats, c. 130, § i ; of, 30 W. R. 231. Guardians or trus- Thompson v. Hucket, 2 Hill (S. C.) tees are thus substituted. Bond, Goods 347; Enghsh ProViate Act of 1857 of, I.. T. 33 N. S. 71. (Stat. 20 & 21 Vict. c. 77, § 73) ; cited § Il6 EXECUTORS AND ADMINISTRATORS. [PART II. grant of letters to the suitable next of kin, nor to the revoca- tion of his own letters." A creditor entitled to administer may, like parties prior in right, renounce the trust, or fail to respond when cited in.^ § I l6. Public Administrator or other OfBcial appointed in Cer- tain Cases. — In English practice, administration by a public officer on behalf of absentee or non-resident parties in interest is not clearly provided for. That discretion of the court, to which we alluded in the last section, and which may be exercised in default of competent creditors and next of kin, fastens upon kindred more distantly related, the guardian or agent of an in- competent distributee, and other persons having a remote in- terest, if such may be had. But as to an utter stranger, or the mere appointee of the court invested with authority, in the total absence of kindred, it has been deemed that letters of ad- ministration should only be granted for such special purposes as collecting and preserving the effects, and doing what must be strictly beneficial to the estate.^ The Court of Probate Act of 1857 enlarged that jurisdiction which the modern .spiritual courts had so cautiously exercised, conferring upon the new tribunal the power under " special circumstances " to pass over the per- son or persons who might otherwise be entitled to the grant of administration, and appoint such person as the court in its dis- cretion should think fit ; ^ a discretion which is usually exercised in favor of more distant kindred, family connections, or the 'Neidig's Estate, 183 Penn. St. 492. ^-Wms. Exrs. 445, 446; Radnall, ^Carpenter ?'. Jone.s, 44 Md. 625. Goods of, 2 Add. 232; Clarkington, Such appointment of a suital:)le person Goods of, 2 Sw. & Tr. 380. being discretionary with the judge, and * Act 20 & 21 Vict. c. 77, § 73. This the time having expired within which authority appears to be quite strictly the next of kin or creditors might have constnied by the tribunal in question, appeared, the fact of their inconipe- which declines to make arbitrary use of tency or unwillingness need not be its discretion. The section is held not alleged by the petitioner for appoint- to apply where there is no absence of ment. 21 Neb. 663. persons entitled to administration, etc., The expiration of a certain time for and no insolvency — insolvency of the those having prior right bears upon this estate being referred to as one of the practice. Markland v. Albes, 81 .\la. "special circumstances" alluded to by 433. the statute. See Hawke v. Wedder- 152 CHAP. III.] APPOINTMENT OF ADMINISTRATORS. § Il6 fiduciary or agent of the person beneficially entitled. In our next section this subject will be further examined.' But the wise policy of the legislature has been, in several of the United States, to commit administration to a designated pub- lic officer wherever those survivors are wanting whose vigilance should protect distribution and the general interests of the dead person's estate. To a mere stranger the temptation in such a case would be to appropriate all to himself ; debtors would of choice continue indebted ; and even a creditor who administered in his partial interest might plunder the estate under pretext of asserting a legal claim. A probate court cannot readily keep vigilance over a miscellaneous throng of administrators watched by no private persons in interest, nor see that the security one has given remains good and ample. There may be urgent need of an immediate administration, notwithstanding the absence of a known husband, widow, or kindred ; these, if wanting at first, may present themselves afterwards ; and, in final default of such priority, the State falls heir to the final balance of the es- tate. Hence, the modern creation of an office, known usually as that of public administrator. The public administrator, re- ceiving letters in any and all proper cases of intestacy, collects and preserves the estate, adjusts all claims upon it, charges it with such compensation for his service as the court may approve, corresponds with the non-resident or absent husband, widow, or next of kin, should such be found out, and finally distributes the residue according to law, turning it into the State treasury when the administration is completed, unless the rightful claimant has meantime taken the trust into his own charge or established a title to the surplus as distributee. Such an officer is subject to the double scrutiny of the probate court and the State Execu- tive ; creditors and all others in interest may always inquire into the sufficiency of his bonds ; his accounts are regularly returned burne, L. R. i P. & D. 594, and other to appear to a citation by advertisement, cases cited in Wms. Exrs. 447. he must make affidavit that service was Where a creditor seeks administra- attempted and failed, and that the next tion in default of appearance of next of of kin have no known agent in England, kin — as where the latter are abroad or Von Desen, Goods of, 43 L. T. 532. have no known address — and they fail ' See § 117, post. § Il6 EXECUTORS AND ADMINISTRATORS. [PART II. and recorded under special safeguards created by law against fraud, embezzlement, and concealment ; while his general official bond, if such be furnished by him, dispenses with all necessity of finding special bondsmen for numerous petty estates, and so facilitates an economical settlement. The public administrator performs the usual functions and is subject to the usual rules which pertain to ordinary administration ; he holds, moreover, a public trust, — insignificant, perhaps, but honorable. He is, in a sense, representative and attorney of the presumed heir and distributee, namely, the State ; and, more than this, he is charged with the concerns of all private persons interested in the estate, whoever and wherever they may be ; winding up the affairs of the deceased on behalf of creditors and absent kindred accord- ing to their respective rights, if any such there be. Intruder, as such an official must seem to sly pilferers, exorbitant claim- ants, skulking debtors, and the whole swarm of meddlesome friends and spurious relatives that gather about the corpse of him who has left property accessible, but none to represent the title, the public administrator, rightly viewed, is next friend of all who may be legally concerned, and his authority should befit the peculiar exigencies under which the law, with sound wisdom, invokes it ; requiring him to act always with energy, usually upon his sole personal responsibility, and often in the face of a bitter, if not superstitious, opposition.' ' The Massachusetts statute provides the right of administering, or requests that if the deceased leaves no known the appointment of some other suitable widow, husband, or next of kin in the person, if such husband, widow, heir. State, administration shall be granted or other person accepts the trust and to a public administrator in preference gives proper bond ; and such husband, to creditors. In each county one or widow, heir, or other person may be ap- more public administrators are appointed pointed after letters of administration by the governor, and it is the duty of have been granted to a public adminis- such administrator, upon the foregoing tratorand before the final settlement of state of facts, to administer upon the the estate. So may a will be proved estate of any person who dies intestate and allowed after his letters are granted, within his county, or dies elsewhere Upon such appointment of a successor leaving property in such county to be and his qualification, the public admin- administered. But administration will istrator shall surrender his own letters, not be granted to the public adminis- with an account of his doings, and his trator when the husband, widow, or an power over the estate shall cease. Mass. heir of the deceased claims in writinf; I'ub. Stats, c. 131. What aids in dis 154 CHAP. IIl.j APPOINTMENT OP' ADMINISTRATORS. § Il6 A public administrator is usually permitted by legislation to tinguishing this officer as one invested with plenary powers, and not the mere appointee, in fact, of the probate court, is a further provision that as to estates under twenty dollars in value, he shall proceed summarily without procuring letters of administration at all, convert- ing assets into cash, and accounting di- rectly with the State treasurer for the proceeds. lb. § i8. Public administrators are appointed in other States with peculiar functions prescribed by statute ; as in New York, Louisiana, Missouri, Illinois, and Cali- fornia ; such administration being found chiefly useful at the large centres of wealth and population. The reported cases are few which relate to such offi- cers ; and this is well, for the estates which reach their hands are usually too small to bear litigation, and require a prudent management, consisting at most of a few thousand dollars, and more frequently of a few hundred or less. The public administrator's duties in New York are defined by statute ; and by virtue of his office, and without a special delegation of powers by letters of appointment from the probate court, such administrator may settle small estates (as e.g., where the value does not exceed $ioo), and in general per- fonn the functions of collector or spe- cial administrator before procuring a formal grant of administration. Redf. Surr. Pract. 175-180. See Union Mu- tual Life Ins. Co. v. Lewis, 97 U. S. Supr. 682. As to Alabama, see Mc- Guire v. Buckley, 58 Ala. 120. In Cal- ifornia the status of the public admin- istrator at the time administration is granted him, determines his compe- tency. 100 Cal. 78; McLaughlin He, 103 Cal. 429. And legislation requires the issue of letters to the guardian of incompetent kindred in preference. 103 Cal. 429. A resident devisee under a will probated abroad is also preferred to a public administrator. 100 Cal. 376. The public administrator in New York city is entitled to administer where next of kin is not in the State or is othenvise disqualified to admini.ster. Public Ad- ministrator V. Watts, I Paige, 357 ; 4 Dem. 33. But cf. Public Admini.strator V. Peters, i Bradf. 100, preferring rela- tives in the statute order named. Pub- lic administrator is preferred in cases of illegitimacy. Ferrie v. Public Ad- ministrator, 3 Bradf. 249. The city of New \'ork is, under the statute, responsible for the application of all moneys received by the public administrator " according to law " ; but not for effects unlaw^fuUy taken by him as belonging to an intestate, but, in fact, belonging to another. Douglass V. New York, 56 How. (N. Y.) Pr. 178. Grart of administration to a public ad- ministrator should only be upon due citation. Proctor v. Wanmaker, i Barb. Ch. 302. But see 5 Dem. 259, as to irregularities not fatal on his part in procuring the grant. In Illinois, contrary to the usual policy, a creditor is preferred to the public administrator. 108 111. 128, 444. Expressed wish of decedent or next of kin may be disregarded in California. Morgan's Estate, 53 Cal. 243. Public administrator preferable, in court's dis- cretion, to the nominee of a non-resident executor in that State. Murphy's Es- tate, Myrick (Cal.) 185; 119 Cal. 663. And preferred to nominee of non-resi- dent next of kin. 57 Cal. 81 ; 103 Cal. 585. Or to a creditor. 64 Cal. 226, 228. As to preferring the public ad- ministrator to kindred who are not " next of kin," the language and prac- tice under the statutes of appointment must determine. .See Langworthy v. Baker, 23 111. 484; supra, § in. And 55 § ii6 EXECUTORS And administrators. [PAkT It, administer upon estate within his county of any decedent, re- gardless of the place of the latter's death or last residence.' see Hanover, AV, 3 Redf. (N. Y.) 91. Administration granted to the attorney of a foreign administrator, however, as matter of comity, saving certain rights of a public administrator. Hanover, Re, 3 Redf. 91. See c. post as to foreign and ancillary appointments. Prior right of pubUc administrator over attorney for disqualified next of kin. Blank, Matter of, 2 Redf. (N. Y.) 443. But the public administrator's right exists only in case of intestacy. Nunan's Es- tate, Myrick, 238. As to conflict with creditor, see Doak, Estate of, 46 Cal. 573. Senible that if no one else can be found for the trust, the public adminis- trator must serve. Calahan v. Griswold, 9 Mo. 784 ; Johnston v. Tatum, 20 Ga. 775. In Louisiana the public adminis- trator is postponed to the attorney-in- fact of an heir. Henry's Succession, 31 La. Ann. 555. And otherwise limited as to contests. Miller, Succession of, 27 La. Ann. 574. As to citing in a widow present in the State, see Dietrich's Suc- cession, 32 La. Ann. 364. In Louisiana a public administrator may be appointed where the executor is under duress for the murder of the testatrix. Townsend's Succession, 36 La. Ann. 535. As to a trust company, see Goddard's Estate, 94 N. Y. 544. The language of some local statutes requires not only that the public admin- istrator shall yield to the claim of any one of foreign next of kin to administer, but also to any suitable nominee of such a kinsman. However this may be, the writer thinks that a non-resident next of kin should not be permitted to nomi- nate another non-resident to the utter exclusion of the resident public admin- istrator and resident creditors. These points may be noted as to the official authority of a pulilic administra- ' See 120 156 tor. (i) Jurisdiction may be claimed by him on the ground that the last domicile or residence of the intestate was in the county (or simply perhaps that the intestate died there), or because the intestate left property in the county to be administered, no matter where he died or resided ; the facilities for admin- istration being extended as far as possi- ble to all such cases on a simple show- ing of one's death, leaving assets. But property to be administered, or some occasion for granting administration, should exist in either case. (2) This public officer is preferred to creditors, distant kindred, unauthorized strangers, and absent and non-resident next of kin, as the person on the whole most suita- ble for managing and settling an estate when there is no known husband, widow, or next of kin to the deceased within the State. (3) But the priority of surviving husband, widow, and next of kin claim- ing to administer is fully preserved, and at any time before the estate is settled, should any such, even if non-resident, appear, such a person's wishes and claim to administer or choice will be respected, and the public administrator must give way ; and so, too, should a will be probated. (4) Nevertheless, the non-resident husband, widow, or next of kin of an intestate may permit the public administrator to take or con- tinue in the trust ; such officer being a most fit representative of non-residents interested who are poor and ignorant, if the estate will not bear great expense. (5) The public administrator, further- more, has an interest, from his official character, to oppose the claims of all pretended kindred or spouses ; and as atniais airice, and acting on behalf of the State and absentees, heshoulil take heed, as a public officer, that no false Cal. 344. CHAP. III.] APPOINTMENT OI" A DM IM.STKATOKS. § 117 § 117. English Rule in Cases Analogous to Those which call for a Public Administrator. — Public administration is thus seen to apply most especially to estates which, in default of nearer known distributees, are likely to go to the State, subject to the further assertion of any such claims upon the treasury. The estate administered may, however, be that of a person leaving a non-resident spouse or kindred, or of one, resident or non-res- ident, whose kindred and family are unknown or appear to have died out. In English practice, when a foreigner dies intestate within the British dominions, administration appears to be granted to the persons entitled to the effects of the deceased ac- cording to the law of his own country, unless a question of Brit- ish domicile is raised." If the intestate was domiciled abroad or out of English jurisdiction, leaving assets in England, there should be an administration taken in England as well as in the country of domicile.^ Where a party entitled to administration is resident abroad, due diligence must be used to give him no- tice of the application, before administration will be granted to claimant procures the estate or its sur- plus, and that no one administers at all without furnishing to the court an ad- equate bond, in order that the rights of all interested in the estate may be prop- erly protected. And it is only when a person shown lawfully entitled to ad- minister, or perhaps his resident nomi- nee, or an executor who has proved a bona fide last will, qualifies locally by furnishing a sufficient bond, that the prudent vigilance of this officer should cease. The legislation regarding public ad- ministrators, and particularly that of Massachusetts, appears to justify the foregoing statement ; though judicial exposition, of course, is wanting, and may long be. Mass. Pub. Stats, c. 131 ; ib. c. 130, § I ; Cleveland v. Quilty, 128 Mass. 578. In various States the sheriff of the county or the clerk of the county courts is designated as virtual public adminis- trator, and if no one else can be found 15 competent or willing, may be even com- pelled to take the trust. Johnson v. Tatum, 20 Ga. 775 ; Scarce v. Page, 12 B. Mon. (Ky.) 311 ; Williamson v. Fur- bush, 31 Ark. 539 ; Hutcheson v. Priddy, 12 Graft. 85. A grant to the sheriff expires with his term of office. 71 Ala. 504. But a public administrator who takes out letters is a general adminis- trator of the estate. 2 Dem. 650. In New York the commissioners of emigra- tion are also empowered to act in cer- tain cases where foreigners die intestate on the passage. Commissioners, Ex parte, I Bradf. (N. Y.) 259. And, out- side of the city of New York, the county treasurers may exercise func- tions. Ward, Re, i Redf. (N. Y.) 254. ' Wms. Exrs. 429, 430; i Add. 340; Von Desen, Goods of, 43 L. T. 532. See generally, as to foreign and ancil- lary administration, etc., c. post. - Wms. Exrs. 430 ; Attorney-General r'. Bouwens, 4 M. & W. 193. 7 § Il8 EXECUTORS AND ADMINISTRATORS. [PART II. another party not of his selection.' Stat. 24 and 25 Vict. c. 121, § 4, provides with reference to all countries which reciprocate by treaty, that when a subject of a foreign country shall die within the British dominions, leaving no person present who is rightfully entitled to administer the estate, the foreign consul may administer on procuring letters from the proper court. ^ But in the case of a bastard, or of any other person dying intes- tate without leaving lawful kindred, husband or wife, the Eng- lish sovereign is entitled to the surj^lus as last heir ; and the English practice has been to transfer by letters patent the royal claim, with the reservation of a tenth part, whereupon the court usually grants letters of administration to the patentee as nom- inee of the crown. But whoever may be appointed to the trust, the right of the crown by way of distribution is not impaired.^ Under the modern statute 15 Vict. c. 3, administration similar to that of a public administrator is recognized, though within narrow bounds ; for this act provides that administration of the personal estate of intestates, where the crown is entitled, may be granted to the solicitor of the treasury as the crown's nomi- nee. Such administrator need not give bonds, but in other re- spects he is subject to the usual obligations and has the usual rights and duties of an administrator.-' § 1 1 8. Method and Form of granting Letters of Administration. — The method of procuring letters of administraticn is quite similar to that pursued by executors in obtaining letters testa- mentary, but dispensing with a probate. The person claiming administration must apply by petition in writing to the probate court having jurisdiction of the case. Such petition is usually ' Wms. Exrs. 429; 3 Phillim. 637. * Attorney-General z'. Kohler, 9 H. ^ Wms. Exrs. 430. L. Cas. 654; Wms. Exis. 434, 435; 3 Wms. Exrs. 433, 434 ; Dyke v. Wal- Canning, Goods of, 28 W. R. 278. ford, 5 Moore, P. C. 434 ; 2 Cas. temp. When money of an estate has been paid Lee, 394-397. A similar course appears to the solicitor of the treasury in de- to have been pursued in case of for- fault of next of kin, and afterwards an feiture to the crown, as for treason, fel- applicant establishes his right to the ony, or /e/o de se. By Stat. T^-i^ & 34 money as next of kin, he is entitled to Vict. c. 23, § I, such forfeiture is abol- the balance, together with accruing in- ished ; and in this country it is not al- terest. Gosman, Re, 49 L. J. Ch. 590, lowed. 158 CHAP. III.] APPOINTMENT OP ADMINISTRATORS. § Il8 filed with the register in the first instance, whereupon a citation issues, unless the petitioner, by the written assent or renuncia- tion of all others equal or prior in interest, can show an undoubted right to his immediate appointment ; the citation, made return- able at a convenient court day, serves to notify all persons inter- ested of the proceedings pending. At the hearing any person interested in the estate may appear and show cause for or against the appointment of the person named in the petition, who should on his part be prepared to show the facts essential to the grant of letters.' One petitions for his own appointment and cites in others accordingly. The English rule is that parties contesting the right to administration, before any grant, must proceed pati passu and propound their several interests.^ But probate procedure is quite simple in most parts of the United States. The surro- gate, ordinary, or judge of the probate or orphans' court, who- ever exercises jurisdiction in such matters, passes upon the petition in which citation was issued, and upon such adverse petitions besides as may be drawn up later to suit the occasion ; making the appointment after a summary hearing of all persons interested. There is strictly neither plaintiff nor defendant; but, of applicants, some may withdraw and others come in at any time while the case is in progress.^ When a petitioner for administration withdraws his petition in the probate court, he ' The petition in American States is creditor, stranger, public administrator, drawn up after a regular form approved etc., as well as in the various kinds of by the court, and usually contained in a administration to be considered here- printed blank. In an original petition after. See Smith's Prob. Pract. 75. for general administration, it is proper As to informalities in the petition to set forth the fact of the death of the considered immaterial, see Abel?'. Love, person who deceased intestate, the time 17 Cal. 233; Townsend v. Gordon, 19 of the death, the place of last residence, Cal. 188. A petition not showing on the name and residence of the spouse, its face that it is made by a person in- if any, and the names, residences, and terested as the statute requires should degree of kindred of his next of kin. be dismissed. Shipman v. Butterfield, If the next of kin are minors, this fact 47 Mich. 487. should be stated. Other grounds on ^ i Phillim. 459 ; Wms. Exrs. 425. which the petitioner bases his right to ^ Delorme v. Pease, 19 Ga. 220. Ap- administer should be alleged; and local plicant who is resisted, allowed to open statutes will suggest what such state- and close. Weeks v. Sego, 9 Ga. 199. ments should be, in the various cases of Objection to a grant, on the ground that § Il8 EXECUTORS AND ADMINISTRATORS. [PART II. ceases to be a party to the record.' If contest arises as to the essential facts, such as pedigree, the case may be adjourned from time to time; and witnesses are summoned or a commis- sion issued to take depositions as convenience may require.^ Affidavits, which in probate proceedings are much used, precede the grant of administration both in England and American States ; as, for instance, an oath by the petitioner to the essen- tial facts of death and intestacy of the deceased, to the right or relationship of the claimant, the value of the estate, or the proper service of the citation.' As a prerequisite to the grant of administration, a satisfactory bond, in modern practice, must usually be furnished by the per- son selected for the trust ; which bond having been approved and filed in the registry as the law directs, letters of administra- tion issue to the person appointed, who may proceed forthwith in the execution of his trust unless an appeal is taken from the probate court." Administration should never be granted by parol, but entered as of judicial record, and preserved at the registry of probate where the bond and other papers relative to the case are kept ; letters duly authenticated under the seal of there are other kindred preferred, can- qualifications of the person appointed not be taken by a stranger. Burtons, over the contesting applicant. Uavis <-■. Waples, 4 Harr. 73; 56 Ga. 146. Swearingen, 56 Ala. 31. As to the form ' Miller v. Keith, 26 Miss. 166. of letters, see Witsel v. Pierce, 22 Ga. ^ See Ferrie z'. Public Administrator, 112; Wms. Exrs. 452; Smith's Prob. 3 Bradf. 151. Prac. (Mass.) Appendix. "Administra- 3 See Wms. Exrs. 454, as to the ad- tion on the estate of A. granted to B., ministrator's oath. And see Torrance he giving bond," is an unconditional V. McDougald, 12 Ga. 526; Gillett ?'. grant of administration, the bond being Needham, 37 Mich. 143. filed as of the same date. Haskins 2\ * Probate bonds, as well as appeals Miller, 2 Dev. L. 360; Tucker z/. Ilar- from the probate court, are considered ris, 13 Ga. i. And see further, Post ?-. in c. <■), post. Letters should usually be Caulk, 3 Mo. 35 ; Davis v. Stevens, 10 granted at the next term of the court La. Ann. 496; Pleasants v. Dunkin, 47 succeeding the publication of the cita- Tex. 343. tion, unless the petition is regularly con- In cases of certain officials, such as tinued. McGhee ?■. Ragan, 9 Ga. 135. public administrator, a general bond is As to issuing letters in term time, see given ; and an order to administer will 67 Iowa, 316. sometimes issue by way of a sufficiently A grant of administration is prima valid appointment, though this mode is facie evidence of all precedent facts es- not usual. See Thompson f. Bondu sential to jurisdiction; and the record rant, 15 Ala. 346; Russell v. Erwin, 41 need not affirmatively show the superior .Ma. 292. 160 CHAP. III.] APPOINTMENT OF ADMINISTRATORS. § 119 the court being furnished to the qualified administrator, and certificates of the appointment supplied by the register, from time to time as occasion may require." § 119. Administrator as Such must be appointed ; Credentials of Authority. — No one is ex officio administrator of a deceased person's estate ; but the appointment must in each case be made and letters issued by the probate court, before one can lawfully assume the rights and duties of the trust. This general rule applies to a sheriff, coroner, police ofificer, or whoever else may come into the charge and temporary custody of the effects of a deceased person;^ and, subject to statute quahfications already noted, the same holds true of public administrators.^ The proper evidence that one is an administrator is the letters of administration, or a certified copy thereof, under the seal of the court.'' And the possession of such letters by the person in intimation is that only upon formal ap- proval of the bond, whereupon letters under seal issue, shall the appointment take full effect. The rule is to date decree, bond, and letters all on the same day. See c. as to qualifying by bond ; also preceding note. A grant which includes two estates under one administration is held not to be void. Grande v. Herrera, 15 Tex. 533. But such a grant would certainly be thought irregular and highly objec- tionable in probate practice. Letters of administration are not void because the seal of the court is affixed in the wrong place. Sharpe v. Dye, 64 Cal. 9. ^ Wilson V. Dibble, 16 Fla. 782 ; V^^il- Uam.son v. Furbush, 31 Ark. 539. 3 Supra, § 117 ; Hamilton, Matter of, 34 Cal. 464; Thomas v. Adams, 10 111. 3i9-_ "Davis 7'. Shuler, 14 Fla. 43S ; Al- bright V. Cobb, 30 Mich. 355 ; Davis v. Stevens, 10 La. Ann. 496; Tuck v. Boone, 8 Gill, 187; Moreland v. Law- rence, 23 Minn. 84. ' Wms. Exrs. 452. In this country, the person appointed administrator sometimes leaves his letters Ipng in the registry, having no occasion to exhibit them as credentials. If he has been duly appointed and qualified, however, the probate records show this, and the grant of administration doubtless takes effect w-ithout delivery of the letters from the registry. If the law has prescribed no specific form in which the appointments of ad- ministrators are to be made, effect must be given to the act of the probate judge who signs a certificate of appointment, although it may not be expressed in the usual form and manner. Carlon, Suc- cession of, 26 La. Ann. 329. As to dispensing with the judge's signature, _^see 85 N. C. 258. The decree of the probate court is often expressed as ap- pointing the applicant, " he giving bond with sufficient sureties," etc. The effect of this appears to be that the signing of such decree does not per se complete the appointment ; but the condition must first be complied with, and the u 16 § 120 EXECUTORS AND ADMINISTRATORS. [PART II. whose fav'or the grant runs is prima facie proof that they were duly granted and delivered." § I 20. In V7hat Cases Administration may be dispensed 'with. — Subject to convenient rules of limitation as to time, such as we have already noticed, administration is always desirable for the settlement of intestate estates not trivial in amount. Nor does American policy so much dispense with the judicial formali- ties as it renders the judicial procedure simple and inexpensive so far as possible. The custody of the law must, in this in- stance, be regarded as a custody for the benefit of all parties interested ; and whether citizen or stranger, the estate of every person who dies capable of acquiring and transmitting property should be subjected to this process, for a due collection of ef- fects, settlement and distribution. In no legal sense can heir, next of kin, or creditor, be regarded as the representative of the deceased or successor in title, unless administration has been duly committed.'' Nor can one portion of the kindred sue another portion in matters pertaining to an intestate's estate, without the medium of an administrator for the court to recog- nize.' Creditors of the deceased intestate who have occasion to press their claims or to re-open the transactions of his life; parties in interest, too, who may wish to collect a claim or quiet a title on behalf of the estate ; these all need administration as a step preliminary to invoking legal process in other courts.* A person exclusively entitled to the estate must get such cre- dentials of authority before he can sue others for what belongs to the estate.5 Distributees cannot obtain their distributive shares, nor ascertain what those shares should be, without such a representative ; and it is against sound policy to permit an action to be sustained upon any promise to settle and pay over the distributive shares without taking out letters." Where, in ' McNair v. Dodge, 7 Mo. 479. ' Bradford v. Felder, 2 McCord ^ Bartlett v. Hyde, 3 Mo. 490; Alex- (S. C.) Ch. 168; Cochran v. Thomp- ander v, Bai-field, 6 Tex. 400. son, 18 Tex. 652. 3 Davidson v. Potts, 7 Ired. Eq. 272! * Marshall v. King, 24 Miss. 85; Miller z/. Eatman, 11 Ala. 609. Allen v. Simons, i Curtis, i24;\^Sharp * See Bowdoin v. Holland, 10 Cush. v. Farmer, 2 Dev. & B. 122/) There 17. being no legal administrator, a creditor 162 CHAP. Ill,] APPOINTMENT OF ADMINISTRATORS. S 120 fact, the next of kin and heirs-at-law have taken possession of the estate of a deceased person and held it for many years, dividing it and exercising other acts of ownership, they may nevertheless be held accountable for the whole property to an administrator regularly appointed afterwards; and a court of equity will not, at their instance, restrain him from recovering the assets in an action at law." There are, however, as we have observed, statute limitations to the grant of original administration ; the bounds set being, on sound principle, those usually fixed for quieting titles and check- ing litigation.- So there may be limitations of value, lest tri- fling estates be frittered away in the course of a needless settle- ment.^ Moreover, it is held competent for all the heirs and of the intestate cannot ask a court of equity to appoint a receiver to adminis- ter. Walker v. Drew, 20 Fla. 908. ' Whit V. Ray, 4 Ired. 14 ; Carter v\ Greenwood, 5 Jones Eq. 410; Echols V. Barrett, 6 Geo. 443 ;""Eisenbise v. Eisenbise, 4 Watts, 134. And see Weeks v. Jewett, 45 N. H. 540; Wil- kinson V. Perrin, 7 Monr. 217. Rarely, if ever, can exception be as- serted at this day because of incapacity in the intestate. American law recog- nizes neither slaves nor outlaws ; but all may acquire and transmit title to per- sonal property. As to free persons of color, see Scranton v. Demere, 6 Ga. 92. But as to a deceased Indian not taxed, see Dole v. Irish, 2 Barb. 639. An infant may die entitled to property in his own right, so that administration of the estate becomes requisite. Miller V. Eastman, 1 1 Ala. 609 ; Wheeler v. St. Joseph R., 31 Kan. 640. Cf. Cobbz'. Brown, Speer's Eq. 564 ; 1 50 Mass. 234. And although the status of the wife at common law forbade her to acquire personal property in her own right, and the husband has been said to adminis- ter for his own benefit, if he administers at all, the modern tendency is to require administration in all cases where a mar- ried woman having a separate estate 163 dies intestate. Schoul. Hus. & Wife, §§ 408, 409 ; Holmes v. Holmes, 28 Vt. 765 jlPatterson v. High, 8 Ired. Eq. 52 ; supra, § 98.J But some States, even where no real necessity exists for ad- ministration upon a wife's estate, require instead an order of the court to devolve legal title upon the husband. Wilkinson V. Robertson, 85 Md. 447. ^ Supra, § 94. Cf. Foster v. Com- monwealth, 35 Penn. St. 148; Pinney V. McGregory, 102 Mass. 89. Twenty years is the Massachusetts limit. lb. After a long adverse possession of per- sonalty, equity will presume a former administration, to protect the rights of bona fide purchasers. Woodfolk v. Beatly, 18 Ga. 520. ^ Estates less than twenty dollars need not, in Maine, be administered upon. Bean v. Bumpus, 22 Me. 549. In Massachusetts no such general limit of value is placed; Pinney ». McGregor, 102 Mass. 89; but public administrators are empowered to collect and pay over to the State treasurer without taking out letters for estates so small. Pub. Stats. Mass. c. 131, § 18. In Indiana, estates worth less than ^300 are to be invento- ried, appraised, and settled without an administrator. Pace v. Oppenheim, 12 Ind. s ;^. .'Should an estate turn out to § I JO KXECUTOKS AND ADMINISTRATORS. [PART II. kindred of a deceased person, if they be of age, to settle and pay the debts of the estate, and divide the property fairly amoni; themselves, without the intervention of an administrator ; for in such a case the rights of no one are prejudiced.' Such set- tlement and division would not, however, be in strict compliance with the law, and, if made unfairly, or in disregard of the rights of some party in interest, it might be avoided afterwards through the intervention of a legal administrator.- Other instances are found where courts disincline to appoint an administrator un- necessaril)', or to permit one already appointed to overthrow the reasonable transactions of distributees with reference to the estate, for the mere sake of asserting his own lawful authority.^ Administration is granted on an estate because there is some oc- casion for such a grant ; and where there is no occasion, no sub- stantial object to be gained by the issue of letters, the grant should be withheld. •• Statutes specially dispense with letters of administration in various instances ; and particularly where the balance of jxiy due some public servant is to be settled by government, or the bounties, prize-money, or pensions of soldiers and sailors remain to be adjusted. For the public interest is often thought to be best subser\ed in such cases by dealing directly witli widows, be of the full statute value, letters ought by the widow and kindred, where he afterwards to be procured. could not show debts or any good cause ' Taylor 7'. Phillips, 30 Vt. 238; Bab- for re-opening the transaction. Wal- bil 7'. Brown, 32 Vt. 437 ; Henderson 7'. worth 7-. Abel, 52 Penn. St. 370. For Clarke, 27 Miss. 436 ; Needham v. Gil- an administrator can proceed both pru- lett, 39 Mich. 574. Under the peculiar dently and with delicacy by charging off practice of Louisiana, this course is the proceeds to the shares of widow and sometimes followed. 29 La. Ann. 347 ; kindred in his accounts. Welch's Succession, 36 La. Ann. 702. ■* Ciraves's Succes.sion, 50 La. Ann. 2 Hibbard v. Kent, 15 N. H. 516; 435; 82 Md. 383. It does not follow Clarke v. Clay, 31 N. IL 393. that because another party is in posses- ^ Thus, in Alabama, a court of equity sion of a decea.sed person's chattels he may decree distribution direct, when should be made to surrender them, re- administration, if granted, could be for gardless of a necessity of settling debts, no other ))urpose. P>etwell v. Mc- or making just distribution. People v. Lemore, 52 Ala. 124. See akso 94 Ala. Abbott, 105 111. 588; P'ort v. Fitts, 66 479; 45 S. C 17. And, in Pennsyl- Tex. 593. Partial intestacy under a vania, an administrator was not per- will affords no occasion ''or granting ad- mitted to disturb a sale of personal ministration. See § 250. property made before his appointment 164 CHAP. III.] APPOINTMENT OF ADMINISTRATORS. ^ 1 20 orphans, and other next of kin, through the Executive ; to the utter exclusion, if need be, of the intestate's creditors, and the avoidance of controversies in probate court over the locus of as- sets or of the decedent's last domicile.' ' For English statutes concerning ad- navy acts make frequent provisions for ministration of the effects of intestate a peculiar distribution and settlement seamen, marines, and soldiers, see Wms. through the auditors of the treasury. Exrs. 455-460. United States armv and 165 § 122 executors' AND AUiMlIslSTRATOKS. [PAKTIL CHAPTER IV. APPOINTMENT OF ADMINISTRATORS NOT ORIGINAL AND GENERAL. §12 1. Administration is not al'ways Original or General. — Since administration in our law fulfils every purpose of settling- estates where no executor serves, it follows that the grant can- not always be both original and general, as considered in the preceding chapter. On the contrary, there remain several kinds of administration, all of a special and limited nature, to be stated, and all fully recognized in probate practice, English and Amer- ican. These may be enumerated in order, as chiefly: (i) ad- ministration with the will annexed {cum tcstanicnto anjicxo) ; (2) administration of personalty not already administered {de bonis non) ; (3) temporary administration, as for instance, during minority {durante minorc estate) ; (4) and special administration for limited and special purposes {ad colligcndnm, etc.). The Latin idiom admits of othef names and classes ; not to speak of ancillary administration, whose discussion belongs to a later chapter, as contrasted with the principal or domiciliary adminis- tration. § 122. Administration ■with the Will annexed (cum testamento annexo) ; When granted and how. — In \arious instances adniin- istration should be granted of testate estates ; as where the de- cedent omitted in his will to name an executor, or where the executor or executors named are all found dead or incompetent to act when the will is to be presented for probate, or where the executor refuses the trust, or has disappeared, or neglects to appear and qualify as the statute directs. Here the court must grant an administration, while giving the will its due operation 166 CHAP. IV. j APPOINTMENT OK ADMINISTRATORS. § 1 23 as far as possible, and admitting it to probate ; and this sort of grant is known as administration with the will annexed." The will should, of course, be presented for probate, even though there be no executor to serve under it ; and, in default of an executor, the person applying to be appointed administra- tor with, the will anne.xed takes usually the burden of probate, petitioning after the same form as an executor, but alleging the special circumstances, besides, under which he claims the ap- pointment. Letters of administration with the will annexed should not be granted unless the exigency is made apparent ; executors, if alive and competent, should have full opportunity to take or renounce the trust ; any renunciation on their part should be made in proper form ; and if, out of several executors named, one is willing and competent to serve, such administra- tion is not to be granted.- When granted upon proof of the will in common form, such administrator may be called upon, like any executor, to prove the will afterwards in solemn form ; and renunciation of this trust in one's favor is not necessarily renunciation of the right to contest probate.^ Pending an ap- peal from probate of the will, a petition for such administration cannot be allowed.'' § 123. Administration Tvith the Will annexed; Functions of the Office. — The functions of administrator with the will an- nexed are, in general, those of executor ; for the probate court makes him pilot by substitution, to steer like an executor by the ' See 2 Inst.; Mass. Gen. Stats, c. 94, nexed can be granted, i Roll. Abr. §§6, 7; Wms. Exrs. 461; Peebles v. 907, pi. 6. But as to Mississippi prac- Watt.s, 9 Dana (Ky.) 102 ; Vick z/. Vicks- tice, when the executor named was a burg, 2 Miss. 379 ; Tuttle v. Turner, 8 non-resident and did not seasonably o]> Jones L. 403 ; Crawshay's Goods, (1893) J^c'^ ^'^ such a grant, see Cox v. Cox, 16 P. 108. Miss. 292. Where an executor was For a Umited grant of administration bodily incapacitated by illness, letters under a %\ill, see Butler's Goods, (1898) with the will annexed were granted to a P. 9. residuaiy legatee for the use of the ex- ^ Wms. Exrs. 281, 283, 461 ; Stebbins ecutor until his recovery. Ponsonby's V. Lathrop, 4 Pick. 33; Maxwell, Re, 3 Goods, (1895) P. 287. And see § 134. N. J. Eq. 611 ; mpra, §44; Springs v. ^Wms. Exrs. 337; 2 Cas. temp. Lee, Irwin, 6 Ired. L. 27. If there are sev- 241. eral executors, all must duly renounce ■'Fisher, Re, 15 Wis. 511. before administration with the will an- 167 § 124 EXECUTORS AND ADMINISTRATORS. [PAKT II. chart which the deceased has left behind. His letters are worded to fit the case ; but he qualifies substantially as an ad- ministrator.' A will is not vitiated by the failure of executors, to carry out its provisions ; and the full appointment of an ad- ministrator with the will annexed assumes, though not perhaps conclusively, that the court has in point of fact, admitted the will to probate.^ § I 24. Administration with the Will annexed ; to whom granted ; Residuary Legatee. — The rule, when uncontrolled by statute, is to grant administration with the will annexed to the claimant having the greatest interest under the will, for which reason the residuary legatee is preferred to mere next of kin. And stat- ute 21, Hen. Vni. has accordingly been construed, in English courts, as admitting of such an exception to the rule of admin- istration, forasmuch as that statute conforms, in its spirit, to the presumed last wishes of the deceased. ^ Of two or more residu- ary legatees, any of them may be taken as the court may see fit to select.'* And though the estate be such that the residu- ary legatee is not likely to have a residue, or by the terms of the will must hold that residue with limitations, the presumption of the testator's favor upholds his claim, nevertheless, to be ap- pointed.5 He is preferred, not only to next of kin, but to all other legatees under the will besides ; and if he die after the testator, and before obtaining letters, his personal representative ' Wms. Exrs. 470; next c. By the bet- to be made. 5 Dem. (N. Y.) 128; 4 ter practice, the judicial record should Dem. 168. The testator's expressed show that there was cause for granting wish as between two persons having such administration. But see Peebles equal rights is entitled to some weight. V. Watts, 9 Dana, 202. See also Gies- 5 Dem. (N. Y.) 281. Under the New sen V. Bridgford, 83 N. Y. 348. York statute, such letters must be issued ^Lackland v. Stevenson, 54 Mo. 108. to the guardian of any infant who, but ^i Ventr. 219, per curiam: Wms. for his infancy, would be entitled to Exrs. 463, 464 ; Atkinson v. Barnard, them. 4 Dem. 297. 2 Phillim. 318. 5 Hutchinson v. Lambert, 3 Add. 27 ; •• Taylor z/. Shore, 2 Jones, 162. See Atkinson ?'. Barnard, 2 Phillim. 316; Wms. Exrs. 467. All who are immedi- Mallory's Appeal, 62 Conn. 218 (adminis- ately and ultimately interested in the U3.\.\ov\ Jc donis iiou). But where one is fund created by the will may be classed made a mere trustee of the re.sidue it is together as " principal or specified lega- other^vise. 2 Cas. temp. Lee, 243, 294, tees," from whom the statute choice is 327 ; Ditchfield, Goods of, L. R. 2 P. 168 CHAT. IV. J APPOINTMENT OF ADMINISTRATORS. § 126 takes precedence in his right to the fullest extent." If one is not only sole residuary legatee but sole beneficiary under the will, still stronger becomes his claim for appointment where an executor is wanting.^ v^ I 2 5 . Administration with the Will annexed ; Appointment of Next of Kin. — So far, however, from having any legal right to the grant of such letters, the residuary legatee could not com- pel the selection of himself by mandamus ; and the English spiritual court thus proceeded at its own discretion.^ But if the residuary legatee was also next of kin (saving the rights of hus- band or widow surviving) practice and statute united in his favor, and the court could not pass him over.'' Upon the refusal or inability of the residuary legatee to fill the vacancy under the will, administration with the will annexed has been granted most commonly to the next of kin ; though the English prac- tice is to refuse such administration where the next of kin takes under the will no beneficial interest. ^ Administration may be granted to next of kin where the will contains no clear disposi- tion of the residue.'' Where residuary estate is held in trust, the beneficiary of the trust should be preferred to the trustee.^ § 1 26. Administration •w^ith the Will annexed ; Surviving Spouse's Right considered. — Where a wife makes a lawful will, but appoints no executor, or names one without any right to do so, her surviving husband's right has been variously construed ; & D. 152. Where a residuary legacy liffe's Goods, (1895) P- ^9°' ^ convent is given to a trustee to be paid over, the was residuary legatee, and letters were cestui que trust, not the trustee, should granted to the Mother Superior, be appointed. Thompson's Estate, 33 ^Crawshay's Goods, (1893) P- '°^- Barb. 334. And see Campion's Goods, (1900) P. ' Wms. Exrs. 464, 465 ; Jones v. Bey- 13, (grant to assignees of the residuary tagh, 3 Phillim. 635 ; Wetdrill^'. Wright, legatee). 2 Phillim. 243 ; 6 Notes of Gas. 44 ; '2 Stra. 956 ; Wms. Exrs. 465. Booraem's Estate, 55 N. J. Eq. 459. ''Gas. temp. Lee, 414. Aliter, as suggested above, where the ' Wms. Exrs. 466 ; Kooystra v. so-called residuary legatee is a mere Buyskes, 3 Phillim. 531. trustee under the will. Hutchinson 7'. * Aston, Goods of, L. R. 6 P. D. 203. Lambert, 3 Add. 27; Ditchfield, Goods '5 Dem. (N. V.) 523. The next of of, L. R. 2 P. & D. 152. In M'Au- kin has a preference over any creditor. 169 § 12/ EXECUTORS AND ADMINISTRATORS. [PART 11. but it would appear that the grant of letters is discretionary in the court according to the circumstances. One of these cir- cumstances is the lawful interest acquired under such a will ; another, whether, apart from such interest, the wife had a right to constitute any executor other than her husband.' As to the wife's partial disposition rightfully made, the rule appears to be to respect her wishes, or those of the parties in interest, and to grant an administration with the will annexed accordingly, where there can be no executor ; but limiting the grant thus, to decree an administration cceteroruni bonoriini to her husband.^ On the whole, the husband's right to administer is favored in England and the United States, save so far as the wife may have lawfully controlled it by her own testamentary disposition.^ What has been said of the widow's general right to adminis- ter on the estate of her deceased husband may suffice for estab- lishing her precedence over the next of kin, or statute equaUty with them, wherever occasion arises for granting administration with the will annexed, of such estate. ■♦ Where under the will the largest or the residuary beneficiary is the surviving spouse, all the greater becomes the right to be appointed. 5 § 127. Administration with the Will annexed; Executor's Rights. — If there be an executor living and competent, his para- mount rights must be respected. And any order of court which Little V. Berry, 94 N. C. 433. The case tatrix long before her death and had of a non-resident testator who leaves not since been heard from. (1894)?. 23. local property is not within the statute. '■Supra, § 99. Semble, by English 49 Conn. 411. A claimant under a practice, that, following the intent of contract with executoris not a " creditor" the will, administration " during widow- in the statute sense, i Dem. (N. Y.) hood " may be the proper limitation. 240. Wms. Exrs. 463, n. ; 7 Notes of Cas. ' Ur. Lushington in Brenchley t. 6S4. Lynd, 2 Robert. 441 ; Bailey, Goods of, 'See Long t. liuggin.s, 72 Ga. 776. 2 Sw. & Tr. 135; Salmon ?'. Hays, 4 Where hu.sband and wife executed Hagg. 386. corresponding wills, each appointing '2 Cas. temp. Lee, 537. the other universal legatee and .sole ex- 5 Wms. Exrs. 415, 416; Schoul. IIus. ecutor, and both perished together in a & W^ife, §§ 457-470, passim; supra, shipwreck, with no evidence that either §98; Schoul. Wills, Part II., c. 3. Son of them survived the other, administra- appointed as trustee for beneficiaries tion with the will annexed of the estate where the husband had deserted the te'^ of each was granted to next of kin as 170 CHAP. IV.] APPOINTMENT OF ADMINISTRATORS. § 128 grants administration with the will annexed to another before the executor has formally renounced the trust is voidable upon his application made in due time.' Logically speaking, an ex- ecutor ought not to be allowed to take out administration with the will annexed ; - but there are cases in which an individual may be considered entitled to such grant, after renouncing the claim of executor. Thus, it is held in Missouri that an executor, whose appointment as such was avoided by his being an attest- ing witness, may nevertheless be appointed administrator with the will annexed. 3 In England, recently, a similar grant was made to a husband who was made sole executor and universal legatee under his wife's will, and who, after having renounced in the probate, desired afterwards to prove the will.-* And a widow appointed sole executrix has been permitted to decline that responsible trust, and afterwards serve as administratrix with the will annexed, in connection with another administrator.' When an executor resides abroad, rules of non-residence ap- ply, such as we have already considered ; non-residence does not essentially disqualify, but in English practice the executor, by a power of attorney revocable at pleasure, may have another ap- pointed administrator with the will annexed.^ § 128. Administration of Personalty not already adminis- tered (de bonis non) ; when granted, etc. — The general principle incase of intestacy. Alston's Goods, annexed. See Stat. 20 & 21 Vict. c. 77, (1892) P. 142. § 79, to the effect that where one re- ' Baldwin v. Buford, 4 Yerg. 16; nounces probate his right in respect of Thompson v. Meek, 7 Leigh, 419. But the executorship shall wholly cease, and the executor cannot formally renounce, administration be committed as if he and claim his right after administration had not been appointed, with the will annexed has been granted. ' Briscoe v. Wickliffe, 6 Dana, 1 57. Wms. Exrs. 284 ; Add. 273. ^ Supra § 109 ; i Cas. temp. Lee, 402 ; ^ Wms. Exrs. 470, citing English Bayard, Goods of, i Robert. 768 ; Wms. rules of court, which preclude a person Exrs. 468. Administration with will entitled to a grant in a superior charac- annexed may be granted to the attor- ter from taking it in an inferior. ney of the foreign executor in some ' Murphy v. Murphy, 24 Mo. 526. States. St. Jurgo v. Dunscomb, 2 ■• Bhsset, Goods of, 44 L. T. 816. Bradf. (N. Y.) 105. Or the non-resident Having renounced probate in his capac- executor empowers a resident attorney ity of executor, his interest, neverthe- to accept service of process, etc. Mass. less, as universal legatee, supported the Pub. Stats, c. 132. grant of admini.stration with the will 171 § 128 EXECUTORS AND ADMINISTRATORS. [PART II. of administration dc bonis nou is that this grant shall be made where a vacancy must be filled by the court while the estate re- mains incompletely settled. Hence the grant is made under either of two aspects : (i) where there was a will, or (2) where there was no will. In the former instance letters testamentary, as we have seen, hold good so long as one of two or more execu- tors survives to fulfil the trust, and holds his office ; and where, on the other hand, there was no executor at the time of probate, the original appointment becomes that of administrator with the will annexed. In the latter instance the vacancy created is that of sole original administrator. Failing the original office, there- fore, under a will, administration dc bonis non with the will an- nexed is proper ; but failing the original office, where there was no will, administration dc bonis non simply. In modern prac- tice, to render any grant dc bonis non valid, the original office must be vacant at the time by the death, resignation, or removal of the sole executor or original administrator." Where the sole executor, whose functions cease, has not com- pleted the administration of the estate, where he has not paid all the legacies, satisfied all the lawful claims, and delivered over the balance in his hands to the persons entitled thereto, an ad- ministrator dc bonis non with the will annexed may be rightfully appointed.' And the Massachusetts statute is quite explicit in declaring that when a sole executor or administrator with the will annexed dies after entering upon the duties of his trust and before it is discharged, or is removed by the court or resigns, administration dc bonis non with the will annexed may be granted ;' there being, of course, occasion for the appointment, such as unsettled debts or unadministered estate, and something ■ See Ramlx) r-. Wyatt, 32 Ala. 363 ; of coverture. Supra, § 32 ; Schoul. Wms. Exrs. 7th ed. 471 ; Crealh v. IIus. & Wife, §§ 163, 460. Brent, 3 Dana, 129. Under Massachu- ^ Alexander v. Stewart, 8 Gill & J. setts statutes, administration de bonis 226; Brattle 7a Converse, i Root (Conn.) 7wn (with or without the will annexed, 174. The old common law rule may as the case may be) is proper whenever have stopped somewhat short of this an unmarried woman, being sole execu- conclusion, but according to the tenor tor or administrator, marries; the trust of modern legislation the rule is sub- terminating accordingly, instead of vest- stantially that stated above. Chamber- ing in her husband, as under thecjlcllaw lin, Ke, 70 Conn. 363. ' Mass. Cen. Stats, c. loi, § i. 172 CHAP. IV.] APPOINTMENT OF ADMINISTRATORS. § I-^S remaining to be performed in execution of the will. English practice regards, by way of exception, the right of a sole executor to transmit the office to his own executor ; ' but that distinction, we have seen, is not upheld in most of the United States. - So, correspondingly, is it with the administration of an intes- tate estate. If a sole administrator dies before completing the trust committed to him, or is removed by the court or re- signs, administration dc bonis non will be granted, provided there is personal property left unadministered or debts remain- ing due from the estate.^ As with co-executors, however, so in joint administration, the survivor becomes sole administrator, and the original office does not lapse so long as one remains to '^ Supra, §43; Wms. Exrs. 471-473. See Grant, Goods of, 24 W. R. 929 ; (1896) P. 129. Such a rule involves a very nice inquiry as to the necessity of administration de bonis non when there is an administration durante tninoritate of an executor of an executor. Wms. Exrs. 473. ^ Stipra, § 43 ; I Dem. (N. Y.) 353. But see Hart v. Smith, 20 Fla. 58. That rule cannot, at all events, apply when the testator named the successor by his will. See § 40. 3 Mass. Gen. Stats, c. 101, § i ; 2 Bl. Com. 506; Scott V. Fox, 14 Md. 388; Hendricks v. Snodgrass, i Miss. 86 ; Wms. Exrs. 474. " Debt " construed not to include " legacy." Chapin t. Hastings, 2 Pick. 361. Statute restrictions are imposed, how- ever, on this grant. In Massachusetts un- administered estate or unsettled debts, upon the lapse of sole executorship or sole administratorship, must be left to the amount of at least twenty dollars. Mass. Gen. Stats, c. loi, § i. This is for the purpose evidently of checking litigious proceedings, and dispensing with multiplied offices for trifling es- tates. Administration de bonis tion is often granted with the view of over- hauling the acts and conduct of some I predecessor, and making him, his bonds- men, and his personal representatives answerable to dissatisfied parties in in- terest. If the tnist has been essentially fulfilled under the original grant, it is thought better to suffer the administra- tion to expire. Notwithstanding statute limitations concerning original administration, it is held that administration de bonis non may be granted after the lapse of twenty years from the death of the former ad- ministrator. Bancroft r-. Andrews, 6 Cush. 493 ; Holmes, In re, 33 Me. 577. But long lapse of time and other cir- cumstances favor a presumption that the estate has been fully settled. Mur- phy V. Menard, 14 Tex. 62. And see San Roman v. Watson, 54 Tex. 254. But the question is not merely whether debts remain unpaid, but whether the estate has been wholly settled and the trust closed. Protection of the rights of distributees may give occasion for the appointment ; as where the final settlement of a deceased administrator is set aside by the courts. Scott v. Crews, 72 Mo. 261 ; Byerly v. Donlin, 72 Mo. 270. And see Neal v. Charlton, 52 Md. 495. Local statute may some- what affect the consideration. 70 Conn. 363. 73 § 128 EXECUTORS AND ADMINISTRATORS. [['ART II. fill it.' The goods of an intestate do not go to the legal repre- sentative of a deceased administrator, nor has such representa- tive any preferred right to the successorship.- The administra- tor de bonis no?i " is appointed," it has been said, to " finish a business already commenced ; and this makes the ease different from that of a full and immediate administrator, whether tempo- rary or other\vise, since the present one is entitled to all the personalty which the former executor or administrator has not converted."^ It is held that where, in consequence of the death of a quali- fied executor pending proceedings to test the validity of the will, there is no legal representative of an estate, the probate court may grant letters of administration de bonis non, even while an appeal from that cause is pending.'* But it would have been better to defer such grant, and as a general rule, there cannot be two valid grants of administration subsisting at the same time in one jurisdiction upon one estate; but wherever there is an executor or administrator still in office, with powers not limited as to objects or time, even though he ought to be removed, the appointment of an administrator de bonis non is a nulhty.s Where the county court of competent jurisdiction in a State has granted probate and letters testamentary, or admin- istration of an estate, the same court has jurisdiction to grant administration de bonis nojiJ^ And the American doctrine is ' \Vms. Exrs. 474; 2 Vein. 514; 62 nington, 68 Mich. 133. Administration Tex. 54. But as to a co-administrator de bonis non may be needful to perfect where one resigns, under some codes, some one's title to assets. 25 Fla. 980. see 131 U. S. 315. ■* Finn 7'. Hempstead, 24 Ark. iii. M See Taylor t'. Brooks, 4 Dev. & B. L.^ ^ Creath v. Brent, 3 Dana, 129; 139 ; Donaldson ^'. Raborg, 26 Md. 312 Hooper v. Scarborough, 57 Ala. 510. 3 Hinton v. Bland, 81 Va. 588, 595; Under Mississippi statutes, however, 5 Rand, 51 ; Clarke v. Wells, 6 Gratt. peculiar provision is made for a new 475. Wherever money is to be paid to grant of letters in the county to which the decedent's estate, an administrator the administrator moves or to which lie bonis lion is a necessary party. 81 the property is removed. Watkins z^. Va. ib. And see 4 Dem. 487. An ad- Adams, 32 Miss, t^t^i- ^^ to what con- ministrator refused to bring a suit on a stitutes removal from office, resignation, certain cause of action, resigned and etc., see c. post. was discharged; and administration de ^ Lyons, £x parte, 2 Leigh, 761. bonis non was granted. Merkle v. Ben- CHAP. IV.] APPOINTMENT OF ADMINI.STRATORS. § I 29 thai the administrator dc bonis non derives his title from the deceased, and not from his predecessor in office.' v^ 1 29. Administration de bonis non ; to vyhom committed. — Administration dc bonis non is usually committed according to the rules already laid down concerning the original grant of let- ters. Thus, for administration dc bonis non with the will annexed, administration with the will annexed furnishes the criterion of preference.^ And for administration de bonis non on an intestate estate, the ecclesiastical rule, sanctioned likewise by courts of common law, has been that there is no distinc- tion in the choice between this and original administration.^ But while these rules prevail in pLngland, they differ in the United States.^ Thus the New York statute provides that let- ters shall be granted "to the widow, next of kin, or creditors" of the deceased "in the same manner as thereinbefore directed in relation to original letters of administration," but without prescribing the order of preference as between the classes named.5 But in other States, Massachusetts for instance, it is provided that where a sole executor or administrator dies before he has fully administered the estate, the next of kin of the de- ' Foreign Missions, /;/ re, 27 Conn. ^ Wms. Exrs. 7th ed. 472 ; § 124. 344. The reduction of tlie assets to ^ Wms. Exrs. 474, 475 ; 2 Hagg. Ap- casli is not necessarily a full settlement pendix, 169, 170. See §§ 97-1 11. of the estate, so as to dispense with ad- '• If creditors of an estate declared ministration de bonis non. Donaldson insolvent fail to nominate, the court V. Raborg, 26 Md. 312. And such ad- may appoint an administrator dc bonis ministration may be proper where the non at discretion. Long v. Easly, 13 executor has advanced for debts and Ala. 239. A female first cousin on the distribution from his own funds, but has father's side takes precedence of a male not had an opportunity to reimburse first cousin on the mother's side under himself. Munroe z/. Holmes, 13 Allen, the Maryland code. Kearney v. Tur- 109. ner, 28 Md. 40S. The widow's prefer- Every administrator after the first is ence is considered in Pendleton v. Pen- an administrator de bonis non in fact, dleton, 14 Miss. 448. The creditor for and it is not needful that this should so the greatest amount will be appointed appear of record. Veach v. Rice, 131 administrator ^^ ^o««> «o«, other things U. S. 293, 315. That such administra- being equal. ( Cutlarz/. Quince, 2 Hay\v. J tion may be granted because of debts (N. C.) 60. reported desperate by the former repre- ' Bradley v. Bradley, 3 Redf. (N. Y.) sentative, which prove later collectible, 512. This statute is construed to see 62 Conn. 218. give the residuary legatee preference as i75 § 130 EXECUTORS AND ADMINISTRATORS. [PART II. ceased have no right to claim administration dc bonis non, but the judge of probate may grant it to any suitable person.' The grant of administration dc bonis non regards, according to the better reasoning, the interest of the original estate, rather "than of those representing the original appointee, whose man- agement, indeed, may require a close investigation, after his death, removal, or resignation ;^ and hence it seems better still that the court should have power to appoint at discretion some third person committed to neither interest, but impartial be- tween them, as well as energetic and prudent. So, too, in de- termining here the right of kindred to administer, the status at the death of the person who left the estate, and not the status at the time the trust became vacant, should be regarded ; ^ for thus does the appointment go by the beneficial interest. § 1 30. Death of Surviving Spouse pending Settlement of De- ceased Spouse's Estate. — If the husband dies pending the settle- ment of his deceased intestate v/ife's estate, the interest will de- volve upon his next of kin. This is the English rule, and it applies in this country wherever, certainly, the right to administer for a husband's own benefit prevails. But by the old ecclesiastical prac- tice in England, the course of administration was irregular. If the husband died before his appointment, administration was granted to the wife's next of kin and not the husband's ; such administrator, however, being treated in equity as trustee for the husband's legatees or next of kin.'' But thus to pass over against the widow, where the sole exec- i P. & D. 459 ; and see L. R. i P. & D. utor dies, in like manner as if he had 450, 538. renounced. lb. And see Cobb v. If a married woman be executrix or Beardsley, 37 Barb. 192; sjtpra, § 99. administratrix and dies, those interested ' Neither widow nor next of kin have, in the estate, rather than her surviving therefore, a right to claim administra- husband, should be taken for the suc- tion de bonis fion in Massachusetts, cession. Wms. Exrs. 416. The mar- Russell V. Hoar, 3 Met. (Mass.) 187. riage of a woman, serving in such a ca- '^ Under the English Stat. 20 & 21 pacity, is by some codes made to termi- Vict. c. 77, authorizing a disregard of nate the trust so that administration de the usual priority under " special cir- /lonis non would be proper. Mass. Gen. cumstances," etc., joint grant of admin- Stats, c. loi, § i. And see supra, § 128. istration de bonis non has been made to ^ Wms. Exrs. 475, 476; i Cas. temp, a next of kin and a person entitled in Lee, 179. distribution. Grundy, Goods of, L. K. 'Schoul. Hus. & Wife, § 415; Wms. 176 CHAP. IV.] APPOINTMENT OF ADMINISTRATORS. § '3' those beneficially interested for strangers pro forma, who might be hostile, seemed so contrary to sound principle, that the hus- band's representatives were afterwards preferred in a case of administration de bonis non, and it was held that administration ought to go with the interest, whether the husband had taken out letters on his wife's estate before his own death or not.' In fine, the more rational rule has been established, both in Eng- land and the United States, that administration on the wife's estate shall be granted, in case of the husband's death pending its settlement, to the husband's representatives ; unless indeed (as under a marriage settlement or some peculiar statute) the wife's next of kin are entitled to the beneficial interest ; the grant in either case following the interest.'' § 131- Administration de bonis non ; Miscellaneous Points. — Where a statute order of preference is preserved in the grant of administration dc bonis non, the citation, which is always a proper preliminary to the grant of such letters, may be found indispensable for concluding those in priority ; ^ otherwise, how- ever, where the statute dispenses with such precedence and leaves the court to its own unfettered choice.-* Letters of administration de bonis non issue in due form as in other cases ; following, however, the peculiar style appro- priate to the grant ; and the probate record or judicial order Exrs. 412; Squib, v. Wyn, i P. Wms. Paige, 87. But cf. Harvey, iV^, 3 Redf. 378; 2 Hagg. Appendix, 169. (N. Y.) 214. ' Fielder v. Hanger, 3 Hagg. 769 ; See as to a preference, likewise ac- Attorney-General v. Partington, 3 H. & cording to the interest, where a widow C. 193; Wms. Exrs. 413, 414. died before having fully administered ^ Fielder v. Hanger, stipra ; Hendrin her husband's estate, and collateral V. Colgin, 4 Munf. 231 ; Whitaker tj. kindred on her side and on the hus- Whitaker, 6 Johns. 112; Bryan t. band's side both desired letters, Cutchin Rooks, 25 Ga. 622; Harvey, /^c, 3 z>. Wilkinson, 1 Call (Va.) i. Redf. (N. Y.) 214 ;f Patterson v. High, ^ Wms. Exrs. 477, 478; i Hagg. 699; 8 Ired. Eq. 52 \ Schoul. Hus. & Wife, 2 Hagg. 626. §415. See statute in New York spe- ■'See Sivley v. Summers, 57 Miss- cially providing that the husband's ad- 512. In English practice the grant of ministrators and executors may take administration de bonis non may be lim- the property, so as to dispense with ad- ited to a particular interest, as that of a ministration de bonis non on the wife's sole creditor. Burdett, Goods of, L. J. estate. Lockwood v. Stockholm, 11 45, P. D. A. 71. 12 177 §132 EXECUTORS AND ADMINISTRATORS. [PART II. makes due reference to the former grant and the manner of its termination. The administrator thus appointed makes oath and quaUfies after the manner of a general administrator, mutatis imitandis^ This sort of administration is usually to be regarded as a general grant ; but under exceptional circumstances it may be limited.^ § 132. Temporary Administration; Administration during Mi- nority (durante minore aetate). — Temporary administration de- serves attention among the peculiar classes enumerated in the present chapter. Unlike those already described, this adminis- tration is of a limited or circumscribed character, in being con- fined to a particular extent of time, though the administrator has the powers of an ordinary administrator for the time being. To this class belongs what is known as administration during minority. Administration during minority {durante uiinorc (Ctatc) may be granted where the person who was constituted sole executor under a will, or who has the right of precedence to ad- minister an intestate estate, is under age, and therefore legally incapable of serving for the time being. In the one instance, administration during minority with the will annexed may be properly committed to another ; in the other, administration simply, with the like quahfication. English practice deals with this administration more fully than American ; ^^ but it is recog- nized more or less clearly in parts of the United States, where, however, the policy is to avoid such grants limited in terms as much as possible. ■* If there are several executors, and one of ' See Wms. Exrs. 478, 479. Barron, 35 N. II. 4S4, 493, pe7- Bell, J. ^In English practice it has been lim- And see Mass. Gen. Stats, c. 93, § 7, as ited in certain instances. See Ham- to committing administration with the mond, Goods of, L. R. 6 P. D. 104. So will annexed where the executor namtJ American statutes provide, too, where in the will of the deceased is a minor, this administration is taken out after In North Carolina, the court may a;) twenty years, as to property, etc., ascer- point an administrator durante miuoii tained afterwards. Mass. Pub. Stats, late, where the widow is under twenty- c. loi. one years of age, and give the adminis- ^Wms. Exrs. 479-495 ; Copez'. Cope, tration to her on her attaining full ago, L. R. 16 Ch. D. 49. or the office may be filled by such per- * Pitcher z/. Armat, 6 Miss. 288; Ell- son as she .shall nominate. Wallis &. maker's Estate, 4 Watt.s, 34; Taylo; v. >^v\\\<,, i Wins. (N. C.) 78. ) 178 CHAP. IV.] APPOINTMENT OF ADMINISTRATORS. § 133 them is of full age and capacity, administration during minority need not be granted, because the person of full age may serve, notwithstanding the nonage of others.' The usage of the English courts has been to grant adminis- tration during minority to the child's guardian ; but this rule is not invariable ; and next of kin and guardians alike may be passed by ; for after all this sort of administration is a grant discretionary with the court.^ An administrator durante niinore (State has the functions of an ordinary administrator so long as his authority lasts. ^ It was formerly held that an infant execu- tor was capable of serving at seventeen, but the confusion of legal rights and responsibilities thereby entailed upon the ad- ministration of estates ended with the prohibition of statute 38 Geo. III. c. S;.-* Where there are several executors, all under age, and admin- istration during minority is granted in consequence, it will cease upon any one of the executors coming of age.5 § 133- Temporary Administration; Administration durante ab- sentia. — We have elsewhere seen how executors and adminis- ■ Wms. Exrs. 479. See Cartwright's & M. 244. And see Burchmore, Goods Case, I Freem. 258. The Massachu- of, L. R. 3 P. & D. 139. setts statute provides that in such a case ^Cope v. Cope, L. R. 16 Ch. D. 49. the other executor shall administer un- But formerly the opinion prevailed that til the minor arrives at full age, when, such administrator had scarcely more upon giving bond and qualifying, the than a bailiff's or servant's authority, latter may be admitted as joint executor See Wms. Exrs. 553, 554, showing how with him. Mass. Gen. Stats, c. 93, § 7- the functions were very gradually ad- .\s to administration, American prac- mitted by judicial precedents, tice usually passes over those in minority, ''Section 6 of this act, reciting the and selects, without any punctilious inconvenience of grants to infants under regard for their right of choice, some the age of legal majority, enacts that suitable administrator invested with gen- "where an infant is sole executor, ad- eral powers as in other cases. ministration with the will annexed shall ^ Wms. Exrs. 481, 482, and cases be granted to the guardian of such in- cited; I Hagg. 381. The English Pro- fant, or to such other person as the bate Act, § 73, enlarges the discretion spiritual court shall think fit, until such of the courts. See its application under infant shall have attained the full age a will making the daughter sole execu- of twenty-one years, at which period, tor, where limited administration was and not before, probate of the will shall granted to the trustees, but probate was be granted to him." Wms. Exrs. 485. refused. Stewart, Goods of. L. R. 3 P. '4 Burn Eccl. Law, 228 ; 3 Redf. Wills, 107. 179 § 133 KXECLTOKS AND ADMINISTRATORS. [rAKTII. tralors out of the jurisdiction may substitute their nominees; and what general statute provisions arc made for the case of non-residence, as by taking out letters and having a resident attorney authorized to accept service.' But in English ecclesias- tical practice, if probate had not been obtained, and the sole executor named in the will was out of the kingdom, a limited administration durante absentia might be granted, limited in time correspondingly ; and so, too, where the next of kin was abroad, and letters of ordinary administration had not been granted.' Similar grants arc found in our earlier American l)ractice.^ But the more usual course in the United States at present is (subject of course to local variations in accordance with statute direction on the subject), for the court to appoint some one the general administrator of the estate, either with or without the will annexed, according as one may have died testate or intestate, treating this official as the general and responsible representative of the estate ; the case admitting, perhaps, of what we term a special administration, if the emergency be pressing and likely to be temporary only ; while here the rights of next of kin, as such, to dictate administration, are more lightly weighed than in England, under all circumstances.'* Lord Holt has observed that it was reasonable there should be an administrator durante absentia, and that this administra- tion stood upon the same reason as an administration durante mi no re ceiate of an executor, viz. : that there should be a person to manage the estate of the testator till the person appointed by liim is able.' But while both grants are of the temporary ' Supra, §§ 109, 127. a case perhaps for removal from office ^ Wms. Exrs. 502-512; Clare r-. in some States. The Louisiana code Hedges, i Lutw. 342; .s. c. cited in 2 in the case of an "absentee " requires a r. Wms. 579. This case was misre- curator ad hoc appointed to defend cer- ported in 4 Mod. 14, as is shown in tain suits. Morris 7a Bienvenu, 30 La. Slater v. May, 2 Ld. Raym. 1071. Ann. 878; Weaver z'. Penn, 27 La. Ann. 3 Willing V. Perot, 5 Rawle, 264. 1 29. Good security will be reqxiired of ■* See § 135, /'^'j/, as to special admin- an absentee, who, under some local istration. Various local statutes may statute.s, must appoint an attorney au- be found to meet the case of non-resi- thorized to accept process, etc., on his dence or absence. Prolonged absence, Ixihalf. detrimental (o the interests of an estate, ' Slater v. May, 2 Ld. Raym. 1071. and involving negligence, might present 180 CHAP. IV.] APPOINTMENT OF ADMINISTRATORS. § I 33 administration sort, it is not certain that they confer commen- surate authority.' Administration durante absentia was formerly available only where original letters testamentary or of administration had not issued ; in other words it was for the preliminary convenience of the estate alone. When probate had once been granted, and the executor afterwards went abroad, the spiritual courts would not grant new administration.' This produced inconvenience; for, while a power of attorney might answer all ordinary pur- poses on the absentee's behalf, there are special cases where the demand for a personal representative within the jurisdiction is indispensable. Hence the statute 38 George III. c. 87, was passed, which, in connection with still later acts, permits the grant of special administration whenever the ordinary executor or administrator goes and remains abroad out of the reach of process ; the special appointee having been at first intended simply to represent the estate in proceedings in equity, though limited grants are now permitted in a much wider sense.^ The appointment of a mere attorney may terminate by the death of the absent fiduciary who conferred it ; but no such effect attends the grant of limited administration under these statutes.'' The limited purpose of the grant, as for pending proceedings in court, is likewise protected by the same means. But, aside from leg- ' Thus it is observed that an admin- extended tlie operation of this statute istrator dtirante absentia may assign the to the case of absent administrators, leaseholds and other property of de- And by the statute 21 & 22 Vict. c. 95, ceased. Webb v. Kirby, 3 Sm. & G. § 18, a general scope was given to these T,-},T^. acts, " whether it be or be not intended ^ In South Carolina administration to institute proceedings in the court of durante absentia cannot be granted after chancery." Limited grants are now probate of the will and letters testamen- accordingly made as the convenience of tary are granted. Griffith v. f'razier, 8 an estate may require. Ruddy, Goods Cranch, 9. of, L. R. 2 P. &D. 330; Jenkins, Goods ' Wms. Exrs. 503-509, citing these of, 28 W. R. 431 ; Richardson, Goods of, .statutes and numerous decisions. The 35 L. T. 767. Where next of kin are act 38 Geo. III. c. 87 (known as Mr. in a distant country and immediate Simeon's act), had only this limited ap- necessity arises, the resident agent or phcation to proceedings in equity. It bookkeeper of the intestate may be was passed, moreover, with reference to temporarily appointed. (1897) P. 82. executors only. The Court of Probate " Wms. Exrs. 509 ; Taynton v. Han- Act, 20 & 21 Vict. c. 77, § 74 (1857), nav 3 B. & P. 26. 181 § 134 EXECUTORS AND ADMINISTRATORS. [PART 11. islation, and as concerning the appointment durante absentia preliminary to probate ox to the grant of ordinary administra- tion, of which the court took earlier cognizance, it is said that such administration is at an end the moment the absentee re- turns.' § 134. Other Temporary Administrations; Administration pen- dente Lite, etc. — English probate practice recognizes other tem- porary administrations ; usually limited, however, in purpose as well as time. Administration pendente lite is of this descrip- tion ; a grant long since allowable where controversy arose touch- ing the right of administration, and afterwards equally permitted in contests over the probate of wills and letters of executorship.^ Administrators /f;/(fr;//'d' lite are virtually appointees of the pro- bate court, corresponding nearly to receivers in chancery, so far as the occasion for an appointment may be regarded, and they are assumed to be indifferent between the contending parties.^ No one should be appointed by the court to this trust who stands committed as to the choice of one contestant against the other ; nor should the decedent's estate be subjected to the cost and encumbrance of such an administration, where a rightful execu- tor or administrator can discharge the duties of his office, whose appointment is not questioned.^ Administration pendente lite is recognized in parts of the United States under various quali- fications, though statutes of more extensive scope are found to include this case under what is rather to be termed special ad- ' Raiiisford 7\ Taynton, 7 Ves. 466 ; jurisdiction as to controversies touching Wms. Exrs. 509. the validity of a \s\\\ or for obtaining, ^ See Wms. Exrs. 496-501, and cases recalling, or revoking any probate or any cited passim. Formerly the English grant of administration. Act 20 & 21 spiritual court would not appoint an ad- Vict. c. 77, § 70. And see the later act, ministrator/^«a'ir;/^. (1897) i Ch. 866. Norvell, 9 Te.x. 13. And see Slade z'.) ^ Stats. 20 & 21 Vict. c. 77, §72; Washburn, 3 Ired. L. 557. \ 21 & 22 Vict. c. 95, §21 ; Wms. Exrs. ^Statutes 20 & 21 Vict. c. 77, §§ 70, 71 ; 496. Wms. Exrs. 496, 497 ; Dawes, Goods ""Cole v. Wooden, 18 N. J. L. 15. of, L. R. 2 P. & D. 147 ; Tichborne v. = wieland v. Bird, (1894) P. 262. Tichborne, L. R. 2 P. & D. 41. An Hiodolph. pi. 2, c. 30, §5; Wms. administrator /^wif^w^^ lite cannot, in I'",.\rs. 513. 183 § 135 EXECUTORS AM) ADMINISTRATORS. [PART 11. gency of an immediate appointment.' Administration, too, ap- pears by the Englisli rule to be well granted where a sole executor or administrator becomes insane and incapable of dis- charging his official functions ; - or perhaps out of regard to a beneficiary or person entitled ordinarily to take the office ; so that a vacancy shall be filled by some one as for the use and benefit of the insane person,^ such grants running as during such incapacity. § 135. Special Administration, for Limited and Special Pur- poses, etc. — While the English probate practice accords so many varieties of temporary administration, it also limits fre- quently the grant to specific purposes ; the prime object being a temporary protection of the estate and all parties in interest. And thus administration may be granted in exigencies such as we have just considered, limited in terms to the purpose of some particular litigation. ■♦ In an exceptional case (though not with- out strong reason), administration may be granted so as to be limited to certain specified chattels, while the general adminis- tration goes elsewhere ; ^ or administration may be revived for the performance of some particular act.*" The result of all this should be to discourage any specific enumeration of limited or special administrations of various 'Metcalfe, Goods of, i Add. 343; known relatives, the English court, on Campbell, Goods of, 2 Hagg. 555 ; 2 the ground that expense was incurred Add. 351 ; (1893) P. 21. daily, and the value of the estate depre- ^ Phillips, Goods of, 2 Add. 336; i elating, granted a.dmm\stTa.t\on acf co/li- Salk. 36; Wms. Exrs. 518. And see genda bona ^'lih power to sell at once, as to physical incapacity by illness. Schwertfegen, Goods of, 24 W. R. 298. Ponsonby's Goods, (1895) P. 287. And see Bolton's Goods, (1899) P. 186, 'lb. ; Evelyn, Ex parte, 2 M. & K. 4. where the next of kin were in a distant * See Howell v. Metcalfe, 2 Add. 348, continent, and it was necessary to sell 351, note, which was limited to answer- the good will of a business at once, ing a specified suit in chancery ; also We have seen that administration I Hagg. 93 ; 2 Sw. & Tr. 6r4. ilurante minorc (rtate is essentially a ' Harris v. Milburn, 2 Hagg. 62 ; general or full admini.stration while it Somerset, Goods of, L. R. i P. & D. lasts ; and so in order to be efficacious, 350; Wms. Exrs. 520-528. As to ad- should administration during the lunacy ministration in different countries, see of an executor, etc. See sections pre- c. 7, post, ancillary administration. ceding. * Where A. died intestate, without 184 CHAP. IV.] APPOINTMENT Ol" ADM IN ISTK.V TOR.S. § I 35 kinds, as at English law ; whose real force and effect, as in the kinds pendente lite, and durante absejitia, it is not easy to de- fine. The vital elements in all such grants are two : limitation of time, and limitation of purpose ; and these limitations fre- quently, but not always, subsist together. In the United States, legislation directs, as it may, the whole matter, and American policy appears to be to regard general or full administration, on the one hand, whether original or de bonis non, and whether as to estates testate or intestate, as (together with appointing ex- ecutors) the usual and normal grant of authority ; ' and discour- aging on the other hand limited grants under strange names upon mere judicial discretion, but rather, facilitating removals and the creation of vacancies in an emergency, to provide by way of substitute for the miscellaneous kinds of limited admin- istration, what may be termed a special administration. This special administration is temporary by inference, because wholly superseded by the grant of general administration or letters tes- tamentary ; and it is limited in scope to the necessities of the situation. Legislation defines this scope ; and special adminis- tration thus becomes a clearly understood grant, well adapted to the various exigencies likely to arise for invoking it. Its chief purpose is ad colligendum, or rather the collection and preservation of the decedent's effects ; and the statute which creates the office explains sufficiently its purpose and incidents. Two general administrations cannot, we all admit, subsist at the same time ; nor, as a rule, can a special and general grant. For in this latter instance the special grant necessarily precedes a general, being made to suit a temporary exigency ; an exigency which may precede either the original appointment or the filling of some vacancy created by an appointee's death, removal, or resignation.^ ' Lyon, Ex parte, 60 Ala. 650. As burn, 3 Ired. L. 557. Where the pro- between the words " special " and " gen bate of a wall has been in Htigation, the eral " in a grant of administration, see power and functions of an administra- Jones V. Ritter, 56 Ala. 270. tor pendente lite are ended when the ''Mass. Pub. Stat. c. 130, §§ 10-17. contest is entirely over, the will duly Letters of general administration issued admitted, and the executor qualified, during the pendency of a contest over Ro Bards v. Lamb, 89 Mo. 303 ; Bald- a will would be null. Slade v. Wash- win v. Mitchell, 86 Md. 379. But if 185 § 135 EXECUTORS AND ADMINISTRATORS. [PART II. Special administration is well developed in the Massachu- setts probate practice. When (as the statutes of that State ex- pressly provide) by reason of a suit concerning the proof of a will, 07' from any other cause, there is a delay in granting letters testamentary or of administration, the probate court may ap- point a special administrator to collect and preserve the effects of the deceased. The paramount duty of this special adminis- trator is to collect all the personal estate of the deceased, and preserve the same for the general executor or administrator, when appointed. For this purpose he may commence and main- tain suits, though creditors of the estate are not to bring actions against him ; and he may sell such perishable property and other goods as the judge shall order to be sold. In suitable cases the judge may authorize him to take charge of the real estate, collect rents, and do all that may be needful for the pres- ervation of the property." Such an administration may readily be shaped by the legislature to meet the usual exigencies of a temporary appointment for limited purposes ; thereby dispensing with the cumbrous classification of administration pendente lite, durante absejitia, and so on. In various States express provision is made for this special or temporary administrator who shall collect and preserve the estate for the permanent and general appointee. A disinter- ested person, not a litigant, is to be selected ; nor are the rights of widow and next of kin, or legatees, so strictly regarded in the choice as they would be in a general administration ; but rather the sound discretion of the court, aided by the common consent and confidence of litigants and all who may be interested in the permanent appointment, directs the selection. Further- more, it is the general rule that this officer may be removed or superseded in his functions by the court, and that his powers there be an appeal from the decree of over the will not in the nature of an im- probate, the executor though qualified mediate appeal. In Moore v. Alexan- has no authority to act, and the power der, 8i Ala. 509, an administrator with and functions of the temporary admin- full power was required, not one ad istrator last until the determination of /ite?n. Cf. (1894) P. 262. the appeal. Brown v. Ryder, 42 N. J. ' Mass. Pub. Stats, c. 130, §§ 10-17 ; Eq. 356; Crozier, A'c, 65 Cal. 332. But 141 Mo. 642. cf. 63 Tex. 220, as to a later litigation I 86 CHAP. IV.] APPOINTMENT OF ADMINISTRATORS. § 1 35 shall cease whenever general letters testamentary or of admin- istration are granted, and due qualification follows, whether gen- eral letters be original or dc bonis non ; but that meantime, be- ing an officer of the court, as it were, litigant parties cannot obstruct the exercise of his functions nor hinder him by friv- olous appeals from the judge. For a trust must not be kept in abeyance which the law intends should be filled at once.' This special administration appointment is preliminary to a general one, according to the usual American practice, lasts for an emergency undefined as to time, and cannot be granted while a general appointee holds office, nor so that the special ap- pointee shall fulfil all the functions of general executor or ad- ministrator. There are States, however, whose code clearly extends this appointment to the temporary necessities of minor- ity, durante minorc estate ; ^ though it should be observed that here the exigency lasts for a definite or definable temporary period, like a guardianship, and that the appointment, to be ef- ficacious at all, ought frequently to confer full general functions, as we have seen the English appointment does.^ As for the ' A "special collector " is thus recog- After a removal from office, the special nized in New York practice, wherever, administrator may be appointed. De by reason of contest or other cause, Flechier, Succession of, i La. Ann. 20. there is likely to be delay in the general Pending the appeal of an executrix or grant. Mootrie v. Hunt, 4 Bradf. (N. administratrix upon the question of Y.) 173; Lawrence z>. Parsons, 27 How. bonds, etc., the probate court may ap- (N. Y.) Pr. 26; Crandall z/. Shaw, 2 point a special admini.strator. Searlee/. Redf. (N. Y.) 100. If a will is con- Court of Probate, 7 R. L 270. And tested, the executor named ought not, see Thompson v. Tracy, 60 N. Y. 174. when objected to, to receive the special Contest over an administration with appointment. Howard v. Dougherty, will annexed is to be included among 3 Redf. (N. Y.) 535. But this depends the exigencies calHng for a special ap- on circumstances. 2 Dem. 286 ; 4 Dem. pointment. Lamb z'. Helm, 56 Mo. 137. An executor who is charged with 420. And see State codes as to such undue influence in proving the will is local legislation. certainly not suitable, i Dem. i. That - Wagn. (Mo.) Stat. 72, § 13, referred a widow or next of kin has no preference to in Lamb 7/. Helm, 56 Mo. 420. in the choice of special or " temporary " ' ow/ra, § 133. Except as the stat- administrator, see Lamb v. Helm, 56 ute may have provided, a probate court Mo. 420. The administrator ad colli- has no power to direct a special admin- getidum is the mere agent or officer of istrator or " collector " to pay debts, the court, and may be compelled at any legacies, or distributive shares. Haskett, time to ^ve way to an admini.strator-in- Re, 1 Redf. (N. Y.) 165; 2 Dem. 292. chief. Flora v. Mennice, 12 Ala. 836. Nor should such administrator, nor an 187 § 135 EXECUTORS AND ADMINISTRATORS. [PART 11. departure of a general executor or administrator for foreign parts, after his appointment, to remain long absent, or his sub- sequent incapacity, by reason of insanity, to the plain detriment of the interests of the unsettled estate, American practice seems to prefer to the vague and limited grants of administration, usual in English practice, that a vacancy shall be made in the office, and that vacancy filled in the usual way ; ' unless the ap- pointment of attorney to accept service obviates all objections. - Every special administrator, or temporary appointee pcndoitc lite, should, when his authority ceases, pay over what he may have received, and transmit the estate to the general appointee, or do otherwise with it, as the probate court shall direct ; render- ing a proper account of his doings and retaining a proper com- pensation for his services ; whereupon his responsibility comes to an end, if his duties have been faithfully performed.^ administrator pendente lite, do such Humph. 205 ; Jordan v. Polk, i Sneed, acts. Kaminer v. Hope, 9 S. C. 253; 430. Ellmaker's Estate, 4 Watts, 34. Ob- As to appointing a special adminis- serve statute directions on this point. trator under the Iowa code, see Picker- ' Upon a general application for ad- ing v. Weiting, 47 Iowa, 242. ministration, a special grant may, in this - See Mass. Pub. Stats, c. 132, §§ 8- State, be made. Dean v. Biggers, 27 13, whose provisions fit the case of an Ga. 73. In Tennessee, where the Eng- executor or administrator removing or lish system appears to be more closely residing out of the State after his ap- followed than in most other States, pointment. it is held that a special administration ^ See Ellmaker's Estate, 4 Watts, 36. may be granted, with powers to be ex- As to the special administrator's com- ercised in a limited manner, or upon a pensation, see Duncan, Re, 3 Redf. part of the estate merely, or for the per- (N. Y.) 153. Notice in court of his formance of a single act. McNairy v. settlement with the general executor or Bell, 6 Yerg. 302; Smith v. Pistole, 10 administrator is not necessary. 89 Mo. 303- 1; CIIAF. V.J BONDS Ol KXECUTOKS AND ADMIN 1STKAT0K.S. ^ I 37 CHAPTER V. THE BONDS OF EXECUTORS AND ADMINISTRATORS. § 1 36. Necessity of Qualifying before Appointment ; Security required by the Court. — 111 modern probate practice, as we un- derstand it in the United States, an executor or administrator is required to qualify by giving bonds before letters conferring the appointment can issue to him. This bond is expressed in such sum as the probate court may see fit to order ; its form is estab- lished by the court after the statute requirements ; it is made payable to the judge or his successors in office ; its conditions recite the essential duties of the trust reposed in the appointee ; and, filed in the probate registry, it serves as legal security furnished by the executor or administrator for the benefit of all persons who may be interested in the estate, and in case of maladministration may be sued upon accordingly. Sometimes sureties are required on these bonds ; and sometimes sureties are dispensed with. This subject we now examine in detail, with separate refer- ence to the bonds of executors and of administrators ; observing throughout this chapter the distinctions which obtain in English and American practice. § 137. Bonds: When and Ho-w required from an Executor. — In English practice, the spiritual court exerted, from early times, so little authority over an executor, whose credentials were thought to be derived rather from his testator's selection than the ordinary, that bonds could not be required from such fiduciaries. But chancery stretched its arms for the better pro- tection of widows and orphans while the ordinary was thus powerless, and it became a rule that an insolvent or bankrupt executor could not only be restrained by the appointment of a 189 § 137 EXECUTORS AND ADMINISTRATORS. [P ART II. receiver, but compelled in chancery, like any other trustee, to furnish security before entering actively upon his trust.' The American rule, both as to the appointment and qualifica- tion of executors, is far more consonant to justice and impartial, and brings administrators and executors more nearly under one system of rules. The qualification of executors is not left to the interposition of equity, but is confided in the first instance by legislation to the discretion of the court most competent to exercise it ; so that the probate court now passes upon the bond in connection with the appointment, withholding letters testa- mentary unless the executor complies with the judge's prudent requirement. Local statute prescribes the form and manner of giving this bond, as well as indicating the extent of security. Thus, in certain States, the executor, before letters testamen- tary issue to him, must give bond with condition to return his inventory to the probate court wnthin the time fixed by statute ; to administer, according to law and the will of the testator, all the personal estate and the proceeds of all real estate sold for the payment of debts and legacies ; and to render upon oath a just and true account of his administration within one year and at any other time when required by the court. "" If a person appointed executor refuses or neglects unreasonably to give the statute bond as required, letters testamentary will be granted to the other executors if there be any such capable and willing ; otherwise, administration with the will annexed. In other words, qualification by bond is a prerequisite to receiving letters testa- mentary ; the executor derives his office only under a testamen- tary appointment which has afterwards been confirmed by a decree of the probate court and the grant of letters ; nor is one entitled to exercise any power as executor until he has been duly qualified. Such is the rule of most American States, as prescribed by the legislature.^ ' Wms. Exrs. 7th ed. 237; Holt, 310; Echols v. Barrett, 6 Ga. 443; Hall v. I Eq. Cas. Abr. 238, pi. 21 ; 2 Vern. Gushing, g Pick. 395; P'airfax z/. Fair- 249 ; Slanning v. Style, 3 P. Wms. 336. fax, 7 Gratt. 36 ; Holbrook v. Bentley, ^ Smith Prob. Pract. (Mass.) 60-64 ; 2,- Comi. 502 ; Webb v. Dietrich, 7 Mass. Gen. Stats, c. 93. Watts & S. 401 ; Pettingill v. Pettingill, 3 Gardner v. Gnatt, 19 Ala. 666; 60 Me. 411; Bankhead z/. Hubbard, 14 190 CHAP. V.j BONDS OF EXECUTORS AND ADMINISTRATORS. § I 3/ As to furnishing a bond with surety or sureties, however, the executor is still favored above administrators in American prac- tice. Our rule appears to be that the executor shall give bond "With sufficient surety or sureties."' But executors are ex- empted from furnishing a surety or sureties (as such statutes frequently direct) when the testator has ordered or requested such exemption, or when all the persons interested in the estate certify their consent, or, upon being cited in, offer no objection. Even thus, the judge is still to regard the interests of the estate, according to the preferable practice, and may, at or after the granting of letters testamentary, require a bond with sufficient surety or sureties, if he thinks this desirable because of some ( hange in the situation or circumstances of the executor or for other sufficient cause.^ Nor is even the testator's request for such an exemption to be taken otherwise than as the expression of his confidence in the person he himself designated; and hence, if that person renounces or is found incapable, the re- quest cannot operate for the benefit of others appointed by the court to administer.3 In some States the court cannot dispense with security even should the will direct otherwise.'* But in others, once more, the testator's request appears to be more of Ark. 298. One named as executor in a published citation after the usual form, a will has no authority to act without incorporating notice of the request to qualifying after probate, and his acts be exempted from furnishing sureties without qualifying are void. Moore v. with that of the pending probate and Ridgeway, i B. Mon. 234. And where application for letters testamentary, will a testator appointed two persons as suffice. Wells v. Child, 12 Allen, 330. executors of his will, only one of whom In some States upon a creditor's objec- qualifies, that one has all the authority tion, sureties may be required of the under the will which both would have executor. Smith v. Phillips, 54 Ala. 8. had if both had qualified. Bodley ?'. If there are infants concerned, the court McKinney, 17 Miss. 339; Phillips v. must look carefully to their interests. Stewart, 59 Mo. 491. Johns v. Johns, 23 Ga. 31. Executors ' Mass. Gen. Stats, c. 93, § i ; Wms. pecuniarily irresponsible required to give Exrs. 529, n. by Perkins. security notwithstanding the testator's '^ See Mass. Gen. Stats, c. 129; Smith request, knowing such irresponsibility. V. Phillips, 54 Ala. 8; Clark v. Niles, Freeman v. Kellogg, 4 Redf. (N. Y.) 42 Miss. 460; Atwell v. Helm, 7 Bush, 218. 504. In Massachusetts only persons of ^ Fairfax v. Fairfax, 7 Gratt. 36 ; full age and legal capacity need certify Langley v. Harris, 23 Tex. 564. their assent ; as to creditors and the "■ Bankhead v. Hubbard, 14 Ark. 298- guardian of any minor interested therein, 191 § 138 EXECUTORS AND ADMINISTRATORS. [PART II. a criterion in this regard than the rule of common prudence would allow.' A few States, conforming more nearly to English procedure, appear to treat executors differently from administrators, re- quiring bonds from one of the former class only when his cir- cumstances are precarious or the interests of the estate render such security necessary. In each State, however, the legisla- ture prescribes the course to be pursued and furnishes a rule for judicial action, by no means constant and uniform.^ But the bond, however given, and whether with or without sureties, contemplates commonly a due administration of the estate to the full extent of paying all debts and legacies, distributing the residue properly, and rendering an inventory and accounts to the court.' § 138- Bonds required from an Executor; Residuary Legatee's Bond. — Statutes are found to dispense with the usual bond when the' executor is residuary legatee, and it appears that so extensive a security is not needful for the protection of any per- son interested in the estate. In such a case the executor may, at his option, give a bond with condition merely to pay all debts, and legacies, and the statute allowances to widow and minors."* ' Wilson -■. Whitefiekl, 38 Ga. 269 ; tameiitary executor domiciled out of the Bowman v. Wootton, 8 B. Mon. 67. State is not entitled to letters without ^ Mandeville v. Mandeville, 8 Paige, giving security as is required from da- 475. As to the bond required in New tive testamentary executors. Davis, York from an executor, see Senior v. Succession of, 12 La. Ann. 399; Bobb, Ackerman, 2 Redf. (N. V.) 156; Red- Succession of, 27 La. Ann. 344. iield's Surr. Courts, 145; Freeman v. The South Carolina Act of 1839 con- Kellogg, 4 Redf. 218; Shields z/. Shields, templates a bond to be given by an ex- 60 Barb. 56. An executor about to ecutor for purchases made by him at his leave the State should give security, own sale of his testator's projjerty. Wood V. Wood, 4 Paige, 299. And as State v. Baskin, i Strobh. 35. to the husband of the executrix who ^ See Cunningham v. Souza, i Redf. misconducts himself, see South Carolina Sur. 462. It must be in statute form ; case of Powel v. Thompson, 4 Desau. else it has no effect except as a common 162. law bond. 77 Me. 157; § \i,o,post. In Louisiana an executor should be ■'Mass. Gen. Stats, c. 93; Duvall v. required on the expiration of his year to Snowden, 7 Gill & J. 430; Morgan ?•. give security, or in default thereof dis- Dodge, 44 N. H. 255. "As many per missed and a dative executor appointed, sons have been ruined by giving bonds Peale z/. White, 7 La. Ann. 449. A tes in this form, we think it the duty of 192 CHAP, v.] BONDS OF EXECUTORS AND ADMIX ISTKATOKS. § 139 The advantage of such a bond is in saving him the labor and expense of an inventory, reducing the penal sum to the minimum of satisfymg these claimants and reserving all evidence of assets to himself ; and the law thus indulges the residuary legatee, in- asmuch as it is no concern of others what may be the bulk of the fortune he acquires, provided their demands arc satisfied. But the disadvantage is that such a bond conclusively admits assets sufficient for the payment of all debts, legacies, and al- lowance in full, binding the executor and his sureties absolutely in the penal sum, to pay accordingly, even though the estate should prove insolvent ; and hence an executor who does not feel certain when he qualifies that the assets are ample for all such demands, should qualify in common form, so as to limit his liability by the inventory, as returned to the court, and the actual assets.' § 139- Bonds required from an Administrator; English Rule. — The practice of taking bonds from administrators, as distinguished judges of probate always to discourage this kind of security, and to take special care that no such bond is received in any case where it is not beyond doubt that the estate is solvent." Per curiam in Morgan v. Dodge, ib. And see Wms. Exrs. 543; 2 Stra. 1137. ' Stebbins v. Smith, 4 Pick. 97 ; Col- well V. Alger, 5 Gray, 67 ; Duvall v. Snowden, 7 Gill & J. 430. Where the bond to pay legacies, etc., is given, and one sues to recover a legacy, the plain- tiff need give no proof except this bond that the executor has assets sufficient in his hands. Jones v. Richardson, 5 Met. 247. Such a bond binds sureties as well as principal to the full penal sum named, regardless of the amount of assets in the estate. Kreamer v. Kreamer, 52 Kan. 97. And notwith- standing some controversy, it seems the better opinion that the giving of such a bond does not vest the assets in the re- siduary legatee or close the administra- tion, in any such sense as to prejudice 13 IC legatees and creditors. Ib. : Lafferty v. Savings Bank, 76 Mich. 35. Nor can such a bond be cancelled or surrendered by the executor and the bond in com- mon form substituted, long after it was time, in the ordinary course, to file an inventory. Alger v. Colwell, 2 Gray, 404. The giving of bond to pay debts and legacies does not, as a rule, dis- charge the lien on the testator's real estate for payment of debts, as the Mas- sachusetts statute provides. Mass. Gen. Stats, c. 93, § 4. And see Moody v. Davis, 67 N. H. 300. See Cleaves v. Dockray, 67 Me. 1 18, as to the effect of a bond given, of this character, but not in proper conformity to the statute. A bond given by an executrix who takes a life interest in the personal prop- erty administered upon is no continuing security to those entitled in remainder for their interest in the property ; but on due settlement of the estate and final account in the probate court, with dis- tribution, the condition of the bond is § 139 EXECUTORS AND ADMINISTRATORS. [PART II, from executors, must have prevailed in the English spiritual courts long before the first English colony was planted in America. For the statute 21 Hen. VIII. c. 5, § 3, directs the ordinary to take surety on granting administration.' Before the transfer of this spiritual jurisdiction to the new courts of pro- bate in England, statute 22 & 23 Car. II. c. 10, served from 167 1, and for nearly two centuries, to fully detail what should be the form and condition of this administration bond ; the ordinary being directed to take " sufficient bonds with two or more able sureties, respect being had to the value of the estate, in the name of the ordinary." The condition herein imposed upon the administrator was, to return a true inventory to the court at or before a specified date ; to administer the estate well and truly ; to make a true and just account of his administration ; to de- liver and pay the residue as the judge should appoint ; and to render up the letters in court, should a will afterwards be pre- sented.- Under the new court of probate act, 20 & 21 Vict. c. j'jy every person to whom administration is granted must give bond to the probate judge, in a penal sum double the amount under which the estate and effects shall be sworn ; but a wider judicial discretion is allowed than under the former statute, so that the penal sum may be reduced, and the responsibility of sureties divided ; moreover, the requirement of a surety or sure- ties, as well as the general form and condition of the bond, are matters likewise confided to this court. ^ satisfied. Saile v. Court of Probate, C. D., and E. F. (the administrator and 7 R. I. 270. his sureties) bind themselves jointly and ' Wms. Exrs. 7th Eng. ed. 529. severally unto G. H., the judge of the ^ Wms. Exrs. 529, 530, citing the Ian- court of probate, in the penal sum guage of this act. named, to be paid to the said G. H., 'Act 20 & 21 Vict. c. 77, §§80-82; or to the judge of the said court, for the Wms. Exrs. 531-533. The form of ad- time being; "for which payment well ministration bond required by the pres- and truly to be made, we bind ourselves ent rules of the English probate court and of us for the whole, our may be seen in Wms. Evs- 53-- The heirs, executors, and administrators bond is expressed after the usual form firmly by these presents. Sealed with of bonds, beginning "Know all men by our seals. Dated the day of , these presents," etc.; expressing the A. D. 18 ." The condition then fol- date ; stating first the penal sum to be lows, preceding the execution ; this con- paid and then the condition, and being dition being in substance for the most signed and sealed at the end. A. B., part like that prescribed in statute 22 & 194 CHAP, v.] BONDS OF EXECUTORS AND ADMINISTRATORS. § I 39 The English court of probate act, it is perceived, does not in- sist upon sureties in an administration ; and there are instances in which the court has accordingly dispensed with them ; though only by way of exception to the rule, and at all events so as to insist still upon a bond.' Where the administrator is out of England, the sureties must usually be resident ; a rule relaxed latterly, however.^ If the husband of a married woman refuses to execute the administration bond with her, the court will al- low administration to her and permit the bond to be executed by a third person ; ^ and in other instances a third person may intervene and furnish security.* Under a grant of limited ad- ministration, a bond is sometimes taken in a penal sum merely nominal.5 Letters of administration will not issue to a creditor except on condition of his entering into a bond to administer ratably ; '' and as to a stranger appointed, the court will require special security, according to circumstances.^ Where there has been an administration pendente lite, and the minor on coming of age takes upon himself the trust, he must give security as would 23 Car. II. c. 10, supra, but worded vice in the case of non-residents. As differently, and varying in some material to the justification of securities to the respects. As usual in bonds, this por- administration bond, this is at the tion begins, " The condition of this ob- court's discretion, but with qualifica- ligation is such that if the above-named tions stated in Wms. Exrs. 545. A A. B. (reciting A. B. as administrator husband residing abroad, and adminis- on the estate of I. J. in addition) do " tering on his deceased wife's estate, has according to the condition next stated been required at the instance of cred- in detail, "then this obligation to be itors to give resident security. Noel, void and of none effect, or else to re- Goods of, 4 Hagg. 207. main in full force and virtue." ^Sutherland, Goods of, 31 L. J., P. 'Cleverly v. Gladdish, 2 Sw. & Tr. M. & A. 126. 335 ; Po-wis, Goods of, 34 L. J., P. M. * See Ross, Goods of, L. R. 2 P. D. & A. 55. The court allows a bond with 274, where the bond was thus increased one surety under some circumstances, while the administrator had gone Bellamy, Goods of, L. T. 33 N. S. 71. abroad. ^ Cf. O'Byrne, Goods of, i Hagg. 316 ; ' Bowlby, Goods of, 45 L. J., P. D. A. Hernandez, Goods of, L. R. 4 P. D. lOO. 229 ; Houston, Goods of, L. R. i P. & '" Brackenbury, Goods of, 25 W. R. D. 85 ; with Reed, Goods of, 3 Sw. & 698 ; Wms. Exrs. 443. Tr. 439 ; Wms. Exrs. 544. The reason '' Act 20 & 21 Vict. c. 77, § 73 ; Wms. of this change is that common-law prac- Exrs. 446, 447. tice now permits of a substituted sei- § I40 EXECUTORS AND ADMINISTRATORS. [PART II. the administrator in the first instance.' In cases of administra- tion not within the statute 21 Hen. VIII., or where the de- ceased died testate, a bond is conditioned for the due payment of debts and legacies;- and under statute 20 & 21 Vict. c. ^y, rules of court provide for framing peculiar bonds appropriate to the grant poidoitc lite, and other limited or special administra- tions ; two sureties being here required, as elsewhere, in double the amount of propert}' to be administered upon. The registrar inquires into the responsibility of the sureties offered by an ad- ministrator, and attests the bond in token of its sufficiency.^ § 1 40. Bonds required from aii Administrator ; American Prac- tice. — American practice in respect of probate bonds is based upon English requirements under the earlier statutes cited in the preceding section ; and while, in all or most States, the form of bond is carefully prescribed, as seems quite appropriate to our statute tribunals which a legislature invests with probate jurisdiction, Stat. 22 & 23 Car. II. c. 10, appears to have sup- plied the model. Thus, in Massachusetts, the bond of an original administrator, or of an administrator with the will an- nexed, binds him to return an inventory within the time desig- nated by law ; to administer according to law all the personal estate and the proceeds of all real estate sold for the payment of debts ; to render regular accounts of his administration ; to pay any balance remaining in his hands upon the settlement of his accounts to such persons as the court shall direct, and to deliver his letters of administration into the probate court in case any will of the deceased is hereafter proved and allowed.'* For administrators with the will annexed, and likewise adminis- trators dc bonis non with the will annexed, a similar form is prescribed, but with apj^-opriate allusions added to the payment of "legacies." 5 A special administrator's bond is conditioned to return an inventory within the specified time ; to account on ' Wms. Exrs, 545 ; Abbott v. Abbott, "^ lb. See Casoni v. Jerome, 58 N. Y. 2 Phillim. 578. 315. The bond of such administrators ^2 Stra. 1 137. must conform to the peculiar conditions 3 Wms. Exrs. 548, citing rules of of a will, otherwise legatees may lose English probate court. their rights to sue upon it. Small v. ■* Mass. Gen. Stats, c. 94. Commonwealth, S I'enn. St. loi ; Fra- 196 CHAP, v.] BONDS OF EXECUTORS AND ADMINISTRATORS. § 1 40 oath whenever required for all the personal property of the de- ceased that shall be received by him in such capacity ; and to deliver the same to whoever shall be appointed executor or administrator of the deceased, or to such other person as shall be lawfully entitled to receive the same.' In most of our States, local statutes relative to administration will be found to suggest the varying forms appropriate to different kinds of administration, even though no precise form be specified ; and probate tribunals should see that all probate bonds conform to law, and are correctly expressed.^ Bonds limited in expression are not favored in the United States, any more than limited grants of administration. But as administrators do not ex officio dispose of real estate, it is sometimes provided that an adminis- trator may be exempted from giving bonds for the proceeds of such property, except where authorized to make such sales.^ The public administrator has the option in some States either to furnish a separate bond for every estate which he may be called upon to administer, or a general bond for the faithful administration of all estates on which administration is granted zier ?'. Frazier, 2 Leigh, 642. But cf. "administer the estate according to Judge of Probate v. Claggett, 36 N. H. law" has been construed to include ad 381. ministration according to a will already 'lb. § 7. Administrators poidente admitted to probate. Judge of Probate lite usually give bonds, and the legal v. Claggett, 36 N. H. 381. But see validity of such bonds is beyond doubt. §146, /(«/*. i^t? Colvin, 3 Md. Ch. 278 ; Bloomfield z/. ^ Where a statute was precise with Ash, 4 N. J. L. 314. Notwithstanding respect to the several forms of bond the exemption of executors favored in and the bond used in the probate office New York, whoever administers with contained omissions or additions of im- will annexed must give bond, whether portance, it was pronounced fatally de- legatee, next of kin, widow, or creditor, fective as a statute bond. Frye ?■. Brown, Ex parte, 2 Bradf. (N. Y.) 22. Crockett, 77 Me. 157. A bond which As to construing statute provisions re- does not conform to statute cannot be specting the several conditions of an sued against the surety of the executor administrator's bond, see Lanier v. or administrator in the name of the Irvine, 21 Minn. 447 ; Hartzell v. Com- successor of the judge to whom it was monwealth, 42 Penn. St. 453; Ordinary given. lb. 7'. Smith, 14 N. J. L. 479. As to the ^ Mas.s. Gen. Stats, c. 94, §6; Hugh- condition to surrender the letters in case lett z*. Hughlett, 5 Humph. 453. And a will shall be proved, etc., see Hunt v. see Salyer v. State, 5 Ind. 202. Hamilton, 9 Dana, 90. A condition to 197 § HI EXECUTORS AND ADMINISTRATORS. [part II. to him ; and in either case with conditions expressed appropriate to his peculiar functions.' § 141. Probate Bonds; How Taken. — Administration bonds, as American codes usually provide, must be given by the ad- ministrator, with at least two sufficient sureties, in such penal sum as the court shall direct ; double the estimated value of the estate to be administered serving as the usual basis for fixing the amount.^ In this and various other respects, the same holds generally true of executors' bonds. A discretion as broad as that conferred on the new probate court of England by Par- liament is not usually exercised by the probate courts in this country as to administration bonds. The register or clerk in some States attends to the qualification by bond ; more com- monly, however, the judge, as to the main particulars of security, his approval being written at the foot of the bond in token that the administrator has fully qualified, and the letters being mean- ' Mass. Gen. Stats, c. 95, § 7. See Buckley v. McGuire, 58 Ala. 226 ; State V. Purdy, 67 Mo. 89. In Alabama the official bond of the sheriff becomes an administration bond, when the adminis- tration of an estate is committed to him ex officio, and he and his sureties are rendered liable accordingly. Payne v. Thompson, 48 Ala. 535. - See local codes ; Clarke v. Chapin, 7 Allen (Mass.) 425 ; Tappan v. Tap- pan, 4 Fost. (N. H.) 400; Bradley v. Commonwealth, 31 Penn. St. 522; At- kinson V. Christian, 3 Graft. 448 ; Kidd's Estate, Myrick (Cal.) 239. And see, as to Louisiana rule, Soldini v. Hyams, 15 La. Ann. 551 ; Ferray's Succession, 31 La. Ann. 727. There are circum- stances (as in ancillary administration for some particular purpose) where a small penal sum is appropriate. Piquet, Ke, 5 Pick. 65. The security required should be for no more property than that on which administration is granted in the State. Normand 71. Grognard, 17 N. J. Eq. 425. In administration Je botiis no)t double the amount of un administered estate is the proper sum. Oakey's Goods, (1896) P. 7. See as to taking a bond without sureties, Jones v. Gordon, 2 Jones Eq. 352. A disputed claim not probably enforceable may be ignored in fixing the amount. 3 Dem. 427. Or property transferred by the decedent fraudiilently or otherwise. 3 Dem. 548. Where a will gives the executor full power to deal with real as well as personal estate, the penalty of his bond should be reckoned accord- ingly. EUis V. Witty, 63 Miss. 117. The local statute sometimes permits the penalties to be reduced under an administration bond [e. g. with will an- nexed) if the interested parties assent. Or even so that sureties may be dis- pensed with. See 3 Dem. 53 ; supra (as to executors), § 137. In some States the court or register is liable in damages if he neglects to take a bond according as the statute directs. McRae v. David, 5 Rich. (S. C.) Eq. 475; Penn. Act, March 15, 1832, § 27. 198 CHAr. v.] BOXns OI- KXFX IT^KS and ADMIXISTKATORS. § I42 while withheld by the register.' The bond of an administrator or executor runs in some States to the State ; in others, to the judge of probate and his successors, as in the statute 22 Car. II. c. 10.^ If one who has applied to administer does not qualify with sureties within a reasonable time, it is the duty of the court to appoint another ; ^ and the office of administrator is not filled until the bond is given.-* But where the administrator fully qualifies, giving bond according to law, the decree of the court may be considered his sufificient appointment whether he receives his formal letters or not ; for the letters issue as of the same date, and if not actually delivered, are to be deemed ready for delivery.5 A probate bond which divides up the penal sum among the sureties is not void ; but this form of bond appears to be re- garded with disfavor by American courts in the absence of legislation which expressly sanctions it, like the English act now in force.^ § 142. Probate Bonds; Irregularities, etc., attending Execution, How far Available. — Courts disincline to treat a probate bond ' Mass. Gen. Stats, c. loi ; Austin v. chusetts not void for that cause, but Austin, 50 Me. 74; supra, § 118. Ap- binding on the obligors and sufficient to proval in writing is not an essential in give effect to the executor's acts. Bald- all States. Jones z/. Dixon, 21 Mo. 538. win v. Standish, 7 Cush. 207. But the ^Johnson v. Fuquay, i Dana, 514; court further intimated that, had appeal Vanhook v. Barnett, 4 Dev. L. 268. been made from the decree of the judge In Missouri the approval of the court is of probate approving the bond in that not indispensable to the validity of an fonn, such a departure from the usual administration bond. State v. Farmer, course of proceeding would not have 54 Mo. 539. been sanctioned. lb. With the in- ^ Crozier v. Goodwin, i Lea, 125. creasing wealth of this country, and the '• Feltzz/. Clark, 4 Humph. 79 ; O'Neal growing value of estates brought neces- V. Tisdale, 12 Tex. 40. sarily into the probate court for settle- ' States. Price, 21 Mo. 434. A judge ment, it .seems to this writer desirable cannot reject arbitrarily the bond of- that bonds of this character should be fered, but he may require sureties to authorized, as they now so frequently justify if there is reasonable doiibt of are in the case of public officials. One their responsibility. 48 Mich. 31S. should not be asked to risk utter ruin * Act 20 & 21 Vict. c. 77, cited supra, for the sake of a friend. Companies Hence, an executor's bond, approved by organized for this surety business are the judge, in which the sureties are each desirable, and may now (1899) be em- bound in half the sum for which the ployed in place of private sureties, principal is bound, was held in Massa- 199 § 142 EXECUTORS AND ADMINISTRATORS. [PART II. as void, to the detriment of an estate, by reason of informalities and omissions attending its execution, provided a regular execu- tion was obviously intended ' by principal and sureties. Thus, inserting the name of the intestate in a blank, where that of the administrator should be, has been treated as a mistake apparent on the face of the instrument ; and omissions of this sort are sometimes supplied in the blank by construing the de- cree of appointment and the bond together.^ Even where the principal and his sureties executed a blank bond, the qualifica- tion thereon and appointment are held good until revocation of the letters; 3 and though the executor's or administrator's bond were accepted without sureties or upon ill compliance with the statute, the appointment itself may be valid, as made de facto and voidable only.-* An administration bond is not void because its condition varies from that required by statute, when it was voluntarily given, and is not made void by statute, and prescribes no more than the law requires ;5 though the omission of suitable conditions therein may rule out remedies for a corresponding breach, especially as against the sureties.^ Obligors on a pro- bate bond who have executed it and suffered the bond to go upon record, may, on general principles, be estopped from after- wards denying its validity or availing themselves of irregulari- ties, or setting up their private arrangements as to the manner * Moore v. Chapman, 2 Stew. (Ala.) is quite common ; nor does this course 466. See also Luster z/. Middlecoff, 8 appear objectionable. Gratt. 54. "• Jones v. Gordon, 2 Jones (N. C.) ^ State V. Price, 15 Mo. 375. But Eq. 352; Mumford v. Hall, 25 Minn, judgment at law upon a blank bond is 347; lierriman ?'. Janney, 31 La. Ann. refused. Cowling v. Justices, 6 Rand. 276 ; Maxwell, /vV, 37 Ala. 362. For a 349. probate bond is only the " several " obli- ^ Spencer v. Cahoon, 4 Dev. L. 225. gation of sureties and hence not binding For sureties to execute for a blank on them where the principal did not amount imports an authority to the sign. See loi Cal. 125. principal, to whose care they confide ' Ordinary ?-. C'ooley, 30 N. J. L. 179. the bond, to fill in such a penal sum as '' See Small 71. Commonwealth, S the court may require. Such a practice, Penn. St. loi ; Frazier v. Frazier, 2 however, is exceedingly careless, and no Leigh, 642 ; Roberts v. Calvin, 3 Gratt. probate court should sanction it. Leav- 358; Rose 7/. Winn, 51 Tex. 545; Bur- ing the date of the bond blank, however, nett v. Nesmith, 62 Ala. 261; Frye z/ in order that the principal may fill it up Crockett, 77 Me. 157 ; § 140. according to the date of prol)ate decree, 200 CHAP. V.J BONDS OF EXECUTORS AXD ADMINISTRATORS. in which the bond should be filled out and used, to the injury of innocent interested parties who were led to rely upon the security, ' especially where they themselves had not been misled to their own injury. - But alterations after execution, and irregularities of injurious effect, to which the bondsmen themselves were not privy, but rather they to whom the security was given, and which the bonds- men cannot be said to have adopted by open acts or inexcusable silence, may release them from responsibility. And in such connection a judge or register is greatly to be blamed who changes in material respects or mutilates the bond submitted to him, without the knowledge of all the parties executing it ; ^ or who, without assent of the sureties, directs that the bond one gives as special administrator of an estate shall stand over for his bond as ' Franklin v. Depriest, 13 Gratt. 257 ; Cohea v. State, 34 Miss. 1 79 ; Field v. Van Cott, s Daly (N. Y.) 308 ; Wolff v. Schaeffer, 74 Mo. 154. One who signs the probate bond may retract, if others intended do not sign, or the principal fails to make good his promises, but he must do so before the bond is returned and the court and innocent parties have placed reliance upon it. 4 La. Ann. 545, 10 La. Ann. 612. Not even a surety's allegation that he signed on condition that another surety should be procured, and that the judge of probate was so informed, can avail him, where there is no evidence that the bond was delivered as an escrow. Wolff v. Schaeffer. 74 Mo. 154. And still less, where the judge was not informed. Berkey v. Judd, 34 Minn. 393. But qu. whether, in States where two sureties to a probate bond are requisite, the surety may not presume that the judge will not accept the bond unless another surety executes. It is plain, however, that one who executes as surety a probate bond, without ascertaining in what manner blanks are filled, or what other signa- tures added before the bond becomes approved and filed, trusts his principal, in many instances, farther than prudence 20 warrants. Sureties on a public admin- istrator's bond cannot set up that his appointment was irregular. 16 Leai 321. In Louisiana, where the amount is left blank in the bond, it is fixed by the code at one-fourth over the inven- tory, bad debts deducted. 35 La. Ann. 920. A bond with one surety where the law required two is not void. 68 Ala. 107. ^ Veach v. Rice, 131 U. S. 293. ^ In Howe v. Peabody, 2 Gray, 556, a probate bond executed by a principal and two sureties was altered by the judge of probate so as to increase the penal sum. After this alteration, which was made with the knowledge of the principal, but not of the sureties, the same bond was executed by two addi- tional sureties, who did not know the circumstances of the alteration, and was then approved by the judge. It was held that the bond was binding upon the principal, but not upon any of the sureties. Howe v. Peabody, 2 Gray, 556. Otherwise where supposed sure- ties were added, who cannot legally be held, but upon whom the original sure- ties themselves had placed no reliance. Veach v. Rice, 131 U. S. 293. § 144 EXECUTORS AND ADMINISTRATORS. [PART II. general administrator." It follows that a bond may, under pe- culiar circumstances, bind the principal but not the sureties;^ also that the judge in whose name the bond runs should regard himself as obligee in the interest and for the protection of all parties interested in the estate, and sanction nothing, out of complaisance to his appointee, to impair the security required in their behalf. And furthermore the judge should see that the bond conforms to the law in its provisions. § 143. "Whether a Probate Bond may bind as a Common-la'w Bond. — It has been ruled that, though the appointment of an administrator be void for want of jurisdiction, inasmuch as the intestate neither resided nor left assets within the county at the time of death, a bond given by the administrator, while deriving no validity from the statute, may be good, nevertheless, at com- mon law. 3 And the fact, that one who was improperly appointed acts under the letters granted to him, is held to render him and his sureties liable on their bond to the parties interested in the estate, on general princiijle."* § 144. Sufficiency of Probate Bonds, as to the Security and the Parties offered. — It is not of itself a sufficient objection to sure- ties offered, that they do not reside in the count}^ where letters are applied for.' Non-residents, moreover, may, in some parts of the United States, be taken as sureties, the court exercising its own discretion as to their sufficiency ; ^ though the codes elsewhere expressly require that the indispensable sureties shall be inhabitants of the State ; ^ and the question, whether local practice of the common-law courts permits of a substituted ser- vice or not, in the case of non-residence, may be thought matc- ' Fisher, Re, 15 Wis. 511. good as a voluntary bond. .State v. =^Howe V. Peabody, 2 Gray, 556. Creusbauer, 68 Mo. 254. ^McChord v. Fisher, 13 B. Mon. 193. ^ Barksdale v. Cobb, 16 Ga. 13. * Shaker's Appeal, 43 Penn. St. 83; ''Jones v. Jones, 12 Rich. L. 623. Cleaves z/. Dockray, 67 Me. 118. And 'Mass. Gen. Stats, c. loi, § 12. There see Frye v. Crockett, 77 Me. 157. An may be a third person, an inhabitant of administrator's bond, though not ap- another State, if two sureties are resi- proved by the probate court, may be dent. Clarke v. Chapin, 7 Allen, 425. 202 CHAP, v.] BONDS OF EXECUTORS AND ADMINISTRATORS. § 1 45 rial in this connection.' There are local statutes which prohibit certain parties — attorneys, and counsel, for instance — from be- ing sureties on administration bonds : a provision, however, held merely directory, and so as not to vitiate a bond, approved by the court, upon which one of the prohibited class is placed, nor to justify a party so executing in pleading exemption.^ Sureties are usually permitted to prove their sufficiency under their own oath, as in the qualifying of bail ; and it then devolves upon the opponent to show the insufficiency by cross-examination or evi- dence produced aliunde^' In American practice, sureties, to save themselves trouble, frequently execute a probate bond in anticipation of the execu- tor's or administrator's appointment ; their principal holding the instrument until ready to qualify. Such a bond should be drawn up with an ample penal sum, and the principal should come pre- pared to establish its sufficiency to the satisfaction of the court ; and care should be taken, moreover, that no material change is made in the bond without reference anew to all the sureties.-* § 145- Co-Executors and Co- Administrators ; Joint and Separate Bonds. — On a joint probate bond, co-executors or co-administra- tors become, as a rule, jointly liable as sureties for the acts and defaults of one another ;5 and jointly as principals, moreover, to indemnify the surety who has been subjected to liability for the default of one of them during the continuance of the joint of- fice.^ And though one or more of the co-executors or co- administrators should die, it is to be presumed that the bond remains a security for the performance of duty by the other, unless proper steps are taken to have the bond made inoperative ' See Wms. Exrs. 544 ; Hernandez, * A person who writes to the probate Goods of, L. R. 4 P. D. 229. judge that he will become surety if ^ Hicks V. Chouteau, 12 Mo. 341; A. B. is appointed, is not so hable un- \V right V. Schmidt, 47 Iowa, 233. less he e.xecutes the bond. New Or- ^Rossz/. Mims, 15 Miss. 121. leans Cttnal Co. v. Grayson, 4 La. Ann. Fidelity insurance companies, prop- 511. erly chartered, are expressly allowed in ' Litterdale v. Robinson, 2 Brock, these later times (1899) to act as sure- 159; Brazer z/. Clark, 5 Pick. 96; Moore ties on fiduciary bonds as well as indi- v. State, 49 Ind. 558 ; 76 Va. 85. viduals. See Hunt's Goods, (1896) ''Dobyns z/. McGovern, 15 Mo. 662 ; P. 288. 54 Kan. 793. 203 § 146 EXECUTORS AND ADMINISTRATORS. [PART II. for future defaults." But as to the sureties in a joint adminis- tration bond, it is held that they are not liable to one adminis- trator for the defaults of the other. - The real tenor of the bond must, however, determine greatly its legal effect, on the usual theory of principal and surety, though not without reference to the law in pursuance of which it was made. In Massachusetts and some other States, the statute authorizes the court, in case joint executors or adminis- trators are appointed, to take either a separate bond with sure- ties from each, or a joint bond with sureties from all.^ § 146. Probate Bond; What Property is covered ; "What Func- tions included, etc. — The liability of a surety on an executor's or administrator's bond is limited to the assets which rightfully come, or ought to have come, to the principal's hands in the State or country in which he was appointed and quaUfied.'' This will be better understood, when, in the course of the pres- ent treatise, the subject of administration assets is hereafter dis- cussed. The proceeds of such assets, arising out of sales, conversions, change of investment, and transfers in general, also profit and interest, are properly thus included. ^ So, too, effects left in the executor's or administrator's hands, and prop- erty which has come to his possession or knowledge and remains unaccounted for ; '^ and this even though he received the prop- erty before his appointment ; since the liability extends to assets received before as well as after the execution of the bond.'' Failure to perform the duties recited in the bond, such as re- turning an inventory or rendering an account, is also a breach for which principal and sureties are liable, even though the dam- ' Stephens v. Taylor, 62 Ala. 269 ; show whether both sets are liable or Dobyns z/. McGovern, 15 Mo. 662. l^ut which set. 65 Tex. 152. cf. Brazer v. Clark, 5 Pick. 96; Com- ■♦ Fletcher j-. Weir, 7 Dana, 345; Gov- monwealth v. Taylor, 4 Phil. (Pa.) 270 ; ernor v. Williams, 3 Ired. L. 152. Lancaster v. Lewis, 93 Ga. 727. ^ Watson v. Whitten, 3 Rich. (S. C.) ^ Haell V. Blanchard, 4 Desau. 21. 224; Verret z*. Belanger, 6 La. Ann. 109. See Elliott ?'. Mayfield, 4 Ala. 417. * Poulware v. Hendricks, 23 Tex. 667. * Mass. Gen. Stats, c. loi, § 14. Two ' Gottsberger v. Taylor, 19 N. Y. 150; setsof sureties are properly made parties Goode t>. Kuford, 14 La. .A.nn. 102; to one suit, where it is necessary to Choate z*. Arrington, 116 Mass. 552. 204 CHAP, v.] BONDS OF EXFX-UTOKS AND ADMIMSTKATOKS. § 1 46 age sustained may prove but nominal' If an executor or ad- ministrator is able to pay a debt due by him personally to the estate, his sureties will be liable with him, unless he discharges it.^ Ordinarily, as will be seen hereafter, administration does not extend to the real estate of the deceased ; and hence rents received after the death (^f an intestate may not be thus included, nor the proceeds of lands sold,^ for which last an administrator usually procures a license and gives a special bond. But stat- utes regulate this whole subject, and ultimately, according to the modern tendency, an administrator or executor may incur an official responsibility for rents and profits or for the proceeds of real estate, so as to involve the sureties on his general bond for his default ; '^ bonds in general being, furthermore, construed according to their particular tenor. Probate bonds in these days are usually so worded as to em- brace all the general functions which the executor or adminis- trator may be required to perform in pursuance of his trust ; both towards the court, and with respect of the creditors, lega- ' Forbes f. McHugh, 152 Mass. 412; 83 Wis. 394 ; § 230. ^Piper's Estate, 15 Penn. 533. And see McGaughey v. Jacoby, 54 Ohio St. 487, where the executor was insolvent when appointed. Money set down in the inventory as part of the estate must in some way be accounted for. Goode V. Buford, 14 La. Ann. 102 ; Wattles v. Hyde, 9 Conn. 10. ^Cornish v. Wilson, 6 Gill, 299; Hartz's Appeal, 2 Grant (Pa.) 83 ; Com- monwealth V. Higert, 55 Penn. St. 236 ; Hutchenson v. Pigg, 8 Gratt. 220 ; Reno V. Tyson, 24 Ind. 56 ; Oldham v. Col- lins, 2 J. J. Marsh. 49 ; Brown v. Brown, 2 Harr. (Del.) 51. ^Phillips V. Rogers, 12 Met. (Mass.) 405; Wade V. Graham, 4 Ohio, 126; Stong ?'. Wilkson, 14 Mo. 116; Judge of Probate r. Heydock, 8 N. H. 491. An executor receiving the residue in trust for charities, but giving no bond as trustee nor turning it over to the trust, his bondsmen are liable for it. White V. Ditson, 140 Mass. 351. And see 14 R. I. 495. As to liability for proceeds of real estate sold, see ib. See, also, Dowling v. Feeley, 72 Ga. 557 ; Reherd v. Long, 77 Va. 839 ; Mann 7'. Everts, 64 Wis. 372 ; 78 Va. 720. Liability may arise for the proceeds of life insurance policies not used in pay- ing debts. 16 Lea, 321. The surety on the bond of an insolvent executor who owed his testator is not liable for that debt. Lyonw. Osgood, 58 Vt. 707. Unless it could have been realized with due diligence. 85 Tenn. 486. Where one was induced fraudulently to become a surety in such a case, all the stronger is his defence. Campbell f. Johnson, 41 Ohio St. 588. The surety on an ad- ministrator's replevin bond has a right against the sureties on the administra- tion bond. 77 Mo. 175. 205 § H6 EXECUTORS AND ADMINISTRATORS. [part II. tees, distributees, and all others interested.' So, too, may a general administration bond be held to cover all the duties of an administrator, as well in the sale of land, where occasion arises for the court's license, as in the settlement of the personalty. - But if an administration bond contains no clause securing the interest of distributees, the sureties, as some States hold, will not be liable for failure or refusal to distribute.^ The sureties are not usually liable for the acts of an executor or administra- tor in meddling with property to which he has or acquires no official right ; ■♦ nor for any mere breach by him of a personal duty ; 5 nor with respect to property held or acts done by him in some other distinct capacity.*' In general, liability on the ' Woodfin V. McNealy, 6 Fla. 256 ; People V. Miller, 2 111. 83 ; Hazen -o. Darling, 2 N. J. Eq. 133. • Clarke v. West, 5 Ala. 117. But a bond expressly confined to personal property does not extend to rents and profits derived from the decedent's real estate. Worgang v. Clipp, 21 Ind. 1 19 ; 121 Ind. 92. Nor are sureties liable for proceeds of real estate not turned over to heirs where the latter made the con- veyance as of their own property. loi Ga. 6S7. Money belonging to an estate received by one who is subsequently appointed executor or administrator becomes assets for which his bond is security. 90 Me. 505. ^ Arnold v. Babbitt, 5 J. J. Marsh. 665. The condition to " well and truly administer according to law " has re- lation to the interest of creditors and not of distributees. Barbour v. Rob- ertson, I Litt. 93. And correspondingly as to "legatees," in a bond taken for ad- ministration under a will, see Small v. Commonwealth, 8 Penn. St. loi ; Fra- zier V. Frazier, 2 Leigh, 642. But cf. Peoples V. Peoples, 4 Dev. & B. L. 9 ; Judge of Probate v. Claggett, 36 N. H. 381. "Due administration of the es- tate" includes the payment of the bal- ance to the persons entitled. Cunning- ham V. Souza, I Redf. (N. Y.) 462. And see Sanford v. Oilman, 44 Conn. 46 1 . Statutes are differently construed. It was the English rule of construction, under the statute 22 & 23 Car. II. c. 10, that the condition to "well and truly administer according to law," did not include the neglect or refusal to distrib- ute; though it would be a breach that the administrator had converted the assets to his own use. Wms. Exrs. 540, 541. A condition prescribed by New York statutes requires the fiduci- ary to "obey all orders of the surrogate touching the administration of the es- tate." This clause is construed in Sco- field?'. Churchill, 72 N. Y. 565. ■* McCampbell v. Gilbert, 6 J. J. Marsh. 592. And see Douglass v. New York, 56 How. (N. Y.) Pr. 178; Jackson v. Wilson, 117 Ala. 432. '" loi Ga. 46; 37 S. C. 174. * Barker v. Stanford, 53 Cal. 451 ; Sims V. Lively, 14 B. Mon. 433 ; Reeves V. Steele, 2 Head, 647. As to the same person being guardian or trustee and administrator, see § 247, post ; Schoul. Dom. Rel. § 324. Where an executor is named trustee under the will, he is chargeable as executor on his bond as such until he has given bond as trustee, and charged himself with the property as trustee, administration being the 206 CHAP, v.] BONDS OF EXECUTORS AND ADMINISTRATORS. § 1 47 fiduciary bond is limited to such damages as are equitably due to the party or parties for whose benefit the action is brought, and the penal sum named marks only a final limit.' Sureties cannot avoid their liability under the bond, because of fraud in the executor or administrator in procuring their ex- ecution, where the beneficiaries of the estate, in whose interest the liability is to be enforced, were themselves innocent of the fraud.^ Sureties on a probate bond, it is held, are liable for defaults of the principal occurring after their own death, especially if they expressly bind in terms their own executors and adminis- trators. ^ § 147. Release or Discharge of Sureties. — American statutes frequently provide that the surety to a probate bond may, upon his petition, be discharged from all further responsibility, if the court deems it reasonable or proper, after due notice to all per- sons interested ; •♦ whereupon other security will be required of the executor or administrator, in default of which his letters prior duty. See § 247. Where one is ^Mundoriff z'. Wangler, 44 N. Y. both executor and trustee under a will, Super. 495 ; 2 Dem. 469. he should, of course, give separate bonds ''Mass. Gen. Stats, c. loi, § 16; for each trust. 85 Ind. 312. Astolia- Lewis z/. Watson, 3 Redf. (N. Y.) 43; bility of sureties where the executor or Valcourt v. Sessions, 30 Ark. 515 ; John- administrator dies and his personal son v. Fuquay, i Dana, 514 ; Norris 7/. representative settles the accounts, see Fristoe, 3 La. Ann. 646; McKay v. Mc- Williamsf. Flippin, 68 Miss. 6S0. For Donald, 8 Rich. 331 ; Harrison v. Tur- waste or misapplication by the repre- beville, 2 Humph. 241 ; Jones v. Ritter, sentative himself, such sureties need not 56 Ala. 270 ; 2 Dem. 201,251. As to respond. lb. citation in such a case, see Stevens v. ' State V. French, 60 Conn. 478. One Stevens, 3 Redf. (N. Y.) 507 ; 27 La. who has no beneficial interest in the Ann. 344. The statute discretion of estate, even though a next of kin, can- the court to discharge a surety from not maintain an action as for breach of liability (unlike that of requiring new the fiduciary bond. 62 N. H. 228. and additional security) appears to be ^ As where the executor was in fact strictly construed. Jones v. Ritter, 56 insolvent when appointed. McGaughey Ala. 270; Wood v. WilUams, 61 Mo. V. Jacoby, 54 Ohio St. 487. 63 ; People v. Curry, 59 111. 35. Such As for the expenses of an administra- proceedings are summary, and the rec- tion (^e bonis ttott made needful by the ord should show the essential facts. i6 executor's carelessness, see t66 Mass. La. 652 ; 63 Md. 14. 569- 207 § 148 EXECUTORS AND ADMINISTRATORS. [PART II. may be revoked.' The principal's failure to perform duties as the bond prescribes is good ground for presenting such petition.^ Release of the sureties on the bond, must, however, be a judicial act regularly performed. Often before such release is permitted the principal may have to settle his balances or else furnish new sureties, as various codes require. And where an executor's or administrator's bond has been delivered into pro- bate custody and duly accepted, the subsequent erasure of their names found upon the bond will not release the sureties.^ But the intention of the court to discharge an old bond and take a new one by way of substitute will take due effect. "♦ The local statutory provisions for such release must be duly complied with by the court. 5 § 148. Nevw or Additional Bonds; when and how required. — A new bond will be required of an executor or administrator, not only (as local acts often provide) when a former surety is discharged upon his request, leaving the probate security inade- quate, but in general wherever it appears that the sureties are insufficient or the penal sum, under existing circumstances. The court, in conformity with statute, may at any time, on the petition of any person interested in the estate, require of the representative a new bond with a surety or sureties, and in such ])enal sum as shall appear just." And a decree requiring an ad- ditional bond is held to be within the jurisdiction of the court of probate, even though no petition to that effect was first pre- sented.^ Sureties, themselves, according to the practice of cer- tain States, may, instead of petitioning to be discharged, ask for ' lb. it is shown that the aggregate property ^ Sanders v. Edwards, 29 La. Ann. of the sureties is not equal to that of 696. the personal estate in the hands of the ^ Brown-'. Weatherby, 71 Mo. 152. administrator. Renfro v. White, 23 •• Brooks V. Whitmore, 139 Ma.ss. 356. Ark. 195. Or that one or more of the ^A court cannot waive statute per- sureties has died. State v. Stroop, 22 requisites to such releasev Clark v- Ark. 328. American Surety Co., 171 111. 235. And 'Ward 7'. State, 40 Miss. 108; Gov- the surety is the proper parly to apply ; ernor v. Gowan, 3 Ired. L. 342. Stat- not the administrator. lb. utcs may well confer authority upon the ''Mass. (ien. Stats, c. loi, § 15; Lor- court to require new or additional se- ing V. Bacon, 3 Cush. 465. As where curity at the court's own instance. 208 CHAP, v.] BONDS OF KXECUTOKS AND ADMINISTRATORS. § 1 48 what is termed counter-security.' If the principal fails to give the new or additional bond within such reasonable time as the court may have ordered, he will be removed, and some other l)erson who can qualify appointed in his stead. ^ It is quite desir- able that the discretion of the probate court iti requiring bonds should extend to all changes of circumstances as to the repre- sentative himself, the sureties, or the amount of the estate. Whenever a new bond has been required of the executor or administrator, by way of substitution, the sureties in the prior bond are usually treated as liable for all breaches of condition committed by him before the new bond is executed and accepted !))• the court ; ^ but as released and exempt from liability for his defaults committed afterwards. ■♦ Where, however, a new ad- ditional bond is given by the executor or administrator for the performance of his trust, the second bond is cumulative and re- lates back, so that the sureties on the new and original bonds shall all be regarded as parties to a common undertaking. To distributees and other parties protected thereby, they become responsible to the extent of, and as among themselves, in propor- tion to the penalties of their respective bonds ;= and they will all share the benefit of counter-securities given to one or more of them, unless it was originally agreed that such securities should ' Caldwell ?'. Hedges, 2 J. J. Marsh, the surety petitioned for further secu- 485 ; Brown ?-, Murdock, 16 Md. 521 ; rity, see Bobo r/. Vaiden, 20 S. C. 271. Russell V. McDougall, 3 Sm. & M. 234. ''State v. Stroop, 22 Ark. 328; Lin- ^Mass. Gen. Stats, c loi, § 17; Na- gle v. Cook, 32 Gratt. 262; Russell z/. tional Bank v. Stanton, 116 Mass. 435. McDougall, 3 Sm. & M. 234 ; State v. :\\\ order requiring the administrator to Field.s, 53 Mo. 474 ; Perry v. Campbell, give a new bond affects his right to ad- 10 W. Va. 228 ; 68 Ala. 7, 21 ; 36 La. minister, and his appeal therefrom with- Ann. 414. As to the presumption on out a bond does not suspend the order, lapse of time that a default occurred Bills V. Scott, 49 Tex. 430. after the substitution, see Phillips v. ^Mass. Gen. Stats, c. loi, § 18 ; Mc- Brazeal, 14 Ala. 746. For as to the lia- Meeken v. Huson, 3 Strobh. 327. It is bilityof sureties in the second or substi- held that in case of release and substi- tuted bond, the gravamen of the breach tution the second set of sureties become may be, not a prior misapplication, but principally Hable to the extent of their the failure to pay over. Pinkstaff v. l)ond; and then if they prove insuffi- People, 59 111. 148; Morris i'. Morris, 9 cient, the first set to the date of their Heisk. 814. release. Morris z/. Morris, 9 Heisk. 814. ^ Loring v. Bacon, 3 Cush. 465; As to an error of balance shown where Enicks v. Powell, 2 Strobh. Eq. 196. 14 209 § 149 EXECUTORS AND ADMINISTRATORS. [PART II. operate for some exclusive benefit.' Co-sureties may stand liable together towards the court and those for whose benefit the obli- gation was taken, but as among themselves unequally responsible. Where it is not clear that the new bond was properly taken by the court in lieu of the former one, and so intended, the legal effect must be to furnish additional securities for the perform- ance of the principal's duties under his original obligation.^ New bonds may be needful sometimes to cover newly discovered property of the decedent.^ § 149. Lost and Missing Probate Bonds. — Since probate bonds are usually copied into the probate records, in American practice, the record may serve as secondary evidence for all needful purposes where the original bond is missing from the files. Local acts provide, in some instances, for a substitution, by judicial decree, where the official bond together with the record thereof has been lost or destroyed.'' Thus is it held as to a cause of action ministrator held cumulative, and not to arising between the giving of the two discharge the old sureties. 10 Mo. bonds. Lingle v. Cook, 32 Gratt. 262. App. 95. The remedies for breach of ' Enicks z'. I'owell, 2 Strobh. Eq. 196 ; an executor's or administrator's bond Wood V. Williams, 61 Mo. 63 ; Wolff will be discussed hereafter. And see V. Schaeffer, 74 Mo. 154. general works on bonds, and the rela- ^ Wood V. Williams, 61 Mo. 63 ; Peo- tion of principal and surety. pie V. Curry, 59 111. 35; Lacoste v. ^ 36 La. Ann. 414. Sphvalo, 64 Cal. 35. " See Tanner v. Mills, 50 Ala. 356. A new bond given by a public ad 210 CHAP. VI.] REVOCATION OF LETTERS, ETC. § '50 CHAPTER VI. APPEAL, REVOCATION ; NEW APPOINTMENT, ETC. § 150. Appeal from Decree of Probate Court; Mandamus, etc. - — Appeal from the decree of the county or district probate court is regulated, in England and the United States, by local statutes, varying from time to time, which need not be exam- ined here at length. While the spiritual jurisdiction obtained, as to probate and administration, in the mother country, appeal lay, through the ecclesiastical hierarchs, to what was known as the court of delegates, but afterwards, instead, to the judicial committee of the privy council." Since that jurisdiction has be- come temporal in its nature, however, under the Court of Pro- bate Act of 1857,^ the right of final appeal from a decree of the court of probate has been transferred to the House of Lords.^ In most American States the supreme judicial court of com- mon law is also the supreme court of probate and equity, and hence, a ready appeal is taken from the county probate court, by any one aggrieved by its decree. Indeed, in certain matters pertaining to the estates of deceased persons, especially where the probate of a will involving some considerable property is con- tested, the decree of the surrogate or county judge of probate appears often procured /w /(?;';«« only, the full trial being had on appeal, where a jury may better be empanelled, and the case finally determined upon the law and evidence before a more august tribunal, as seems befitting to the gravity of the contro- versy. •♦ To such higher tribunal, therefore, intermediate or final, any ' Wms. Exrs. 571, 572, citing stats. ^ Supra, § 1. Tliis right to appeal, 24 Hen. VIII. c. 12; 25 Hen. VIII. c. being a statutory right, can only be '9! 3 & 4 Wm. IV. c. 92. secured by a strict compliance with the ^ 20 & 21 Vict. c. 77. statute conditions. Dennison v. Tal- 3 Wms. Exrs. 574. mage, 29 Ohio St. 433. 21 I § I50 EXECUTORS AND ADMINISTRATORS. [PART II. person aggrieved by the order, sentence, decree, or denial of the court or judge taking primary jurisdiction of the case, may appeal. This appeal has sole reference, however, to the order or decree in question, as, for instance, in admitting such a will to probate and issuing such letters testamentary, or in granting such letters of administration ; though interlocutory orders may thus be considered as well as the final decree complained of. The appeal, in fact, gives the appellate court no jurisdiction to proceed further in the settlement of the estate ; but its judg- ment on appeal being upon such decree, order, sentence, or denial of the court below, it is certified to that tribunal, where further proceedings are had accordingly, or stopped, as if it had made no decision. The judgment of the appellate tribunal is to be carried into effect by the probate court, whose jurisdiction over the cause and the parties is not taken away by the appeal.' Mandamus from the superior temporal courts was a remedy formerly invoked against courts spiritual in English practice ; as, for instance, to compel probate of a will or a particular grant of administration, or in case of an impro}Xir appointment or repeal. - But by modern practice, in the United States at least, since the whole jurisdiction vests in the temporal courts, appeal has be- come the regular mode of procedure before a higher tribunal, wherever the grievance was based upon a decree of the probate court; 3 though mandamus or prohibition might still lie if the probate judge refused to entertain a proper petition or to decide at all upon the case, or if he obstructed an appeal from his de- cision.^ ' Metcalf, J., in Ounliani 7-. Dunham, aj^point any one else, except for the 16 Gray, 577; Curtiss v. Beardsley, 15 special and temporary exigency. §§134, Conn. 523. Where, upon reversing on 135. appeal the decree of the surrogate ad- ^ Wms. Exrs. 235, 387, 435, and cases mitting a will to probate, the case is cited; 2 Sid. 114; i Stra. 552. In case sent back for a re-trial of a question of of an undue grant of administration, fact, the powers of executors continue which had not already passed the seals, until a final determination of such issue a i)rohibition issued instead, i P'reem. and a revocation by the surrogate of the 372 ; Wms. Exrs. 585. probate. Thompson v. Tracy, 60 N. V. ^ State v. Mitchell, 3 Brev. (S. C.) 520. 174. The probate court cannot re- ^ State v. Castleberry, 23 Ala. 85; voice its decree of appointment penrl- Gresham v. Pyron, 17 Geo. 263 ; Wil- ing an appeal. ^-^ X. J. Eq. 764. \or liams -■. Saunders, 5 Coldw. 60. 212 CHAP. VI.] REVOCATION OF LETTERS, ETC. § 15^ § 151. Appeal from Decree of Probate ; Subject continued. — The right to appeal depends upon the relation of the appellant to the subject-matter of the probate decree or order. A person is aggrieved, within the meaning of our practice acts, when his rights are concluded or in some way affected by such decree or order ; nor is it essential that he was directly connected with the proceedings below. A legatee or distributee, a surety on the bond, another administrator, a guardian or a trustee, a cred- itor, any and all of them may, under various circumstances, ex- ercise the right to appeal from the probate of a will or the issue of letters to a particular appointee.' Appeal, according to the practice of some States, as fully detailed by the local statute, should be claimed in writing, and notice given at the probate office, together with the reasons of appeal, within a specified brief time (such as thirty days) after the decree complained of ; copy being served meanwhile on the appointee and adverse party. The appeal should be entered at the next convenient rule day of the supreme court (or in about sixty days). The supreme court may exercise a further discretion in revising the matter, within a much longer period (such as one or two years) where the petitioner was abroad at the time of the decree, or where the omission to seasonably claim and prosecute an ap- peal was otherwise excusable. After an appeal is claimed and notice given at the probate registry, all proceedings in pur- suance of the order or decree appealed from will cease until the determination of the supreme court is had ; but if the appellant in writing waives his appeal before entry of the same, proceed- ings may be had in the probate court, and the appointment or probate may stand as if no appeal had been taken. Where, however, an appellant fails to enter and prosecute his appeal, the supreme court may, at the instance of any person interested, affirm the former sentence, or make such other order as law and ' See Livermore v. Bemis, 2 Allen, 578. The designated executor, vested 394 ; Northampton v. Smith, 1 1 Met. with discretion, may appeal from a re- 390. Where an appeals fails merely fusal of probate, notwithstanding the because the appellant cannot prove that opposition of the beneficiaries who have he is a party entitled to appeal, the pro- made a private settlement. Cheeverz/. bate decree stands as if not appealed Judge, 45 Mich. 6. from. Cleveland v. (guilty, 128 Mass. 213 § 152 EXECUTORS AND ADMINISTRATORS. [PART II. justice require. On appeal, issues of fact, such as the due ex- ecution of a will, may be tried by a jury." Appeal to a higher tribunal to reverse the sentence by which letters or a probate had been granted offers thus a ready means of revocation, where the grant or the probate was improper.^ But appeal may be thus taken not upon facts alone, but upon some point of law in- volved in the decree or order rendered below.^ A supreme court of equity has sometimes taken jurisdiction to set aside letters of administration or a probate fraudulently procured. •♦ § 152. Revocation by Proceedings in the Probate Court. — The probate court has always exercised a plenary jurisdiction in re- voking or vacating its own decrees improperly rendered ; thereby correcting errors such as arise out of fraud or mistake, cancel- ling letters which had been issued without jurisdiction, revoking an appointment granted to the wrong party, and admitting a subsequent will or codicil notwithstanding the improper probate of an earlier one. Such jurisdiction is available after the time of appealing from the decree is past. " This power," observes Gray, J., "does not make the decree of a court of probate less conclusive in any other court, or in any way impair the probate jurisdiction, but renders that jurisdiction more complete and effectual, and b}' enabling a court of probate to correct mistakes ' Mass. Gen. Stats, c. 117 ; Peters v. ^ From the nature and necessities of Public Admini.strator, i Bradf. (N. V.) the case, however, it is usually provided 200; supra, Part I. ; Thompson v. Tracy, that in case of an appeal from a decree 6c X. \'. 174; Wnrthingto)! 7'. Gittings, appointing a special administrator he 56 Md. 542. The practitioner should shall proceed in the execution of his consult the local statute and procedure duties until the supreme court directs of his own Stateon this general subject, otherwise. Mass. Gen. Stats, c. 94. English rules of court, regulating ap- ^ (1893) ^^- '^• peals from probate court, may be com- *■ Thus, in Georgia, a court of equity pared in Wms. Exrs. 574. The discre- has entertained jurisdiction to set aside tion of the judge below, notwithstand- letters of administration procured on ing a claim of appeal, appears by these fraudulent representation of intestacy, rules to be more favorably considered, and to compel the wrongful administra- Ib. tor and his sureties to account with the An appeal is usually restricted to lawful executor. Wallace v. Walker, the matters stated as cause for such ap- 37 Ga. 265. But see Cooper v. Cooper, peal. 165 Mass. 240. 5 N. J. Eq. i. 214 CHAP. VI.] REVOCATION OF LETTERS, ETC. § 152 and supply defects in its own decrees, better entitles them to be deemed conclusive upon other courts. There is no reason to apprehend that such a power may be unjustly exercised. It is vested in the same court which is intrusted with the original jurisdiction over all probates and instruments." ' Moreover, proceedings for such revocation or change in the probate decree are conducted upon the same principle as the original petition ; notice issues as before to all parties in interest, and the execu- tor or administrator is cited before the judge, to show cause why the original probate or administration should not be re- voked and his letters surrendered accordingly. And from the decree thus rendered, an aggrieved party may take an appeal, as in other instances.^ Due course of procedure before the probate court requires that the court shall revoke the old probate or administration be- fore or simultaneously with granting a new one. This has us- ually been the practice in the English ecclesiastical courts ; ^ though numerous authorities, English and American, have maintained that if administration was committed to the wrong party and then to the right, the latter grant repealed the former without any formal decree of revocation ; "^ a prime reason for such contention being, of course, the practical justice of permit- ting the later decree to stand effectual. But which is to be styled the wrong party and which the right, we may ask, unless the probate record shows in some way that, as between the two grants, such an issue was joined ? And if not joined, by such ■ Waters v. Stickney, 12 Allen, 15, first appointed disappears and cannot and cases cited ; Vance v. Upson, 64 be served with a citation should not fa- Tex. 266. tally obstruct the revocation of an im- ^ lb. And see Wms. Exrs. 571; proper grant and the issue of new letters Curtis v. Williams, 23 Ala. 570; 8 to the rightful person. Langley, Goods Blackf. 203; Thompson v. Hucket, 2 of, 2 Robert. 407. Hill (S. C.) 347 ; Wilson v. Hoes, 3 -* Wms. Exrs. 574; Owen, 50; Vance Humph. 142 ; State v. Johnson, 7 v. Upson, 64 Tex. 266. Blackf. 529; Cleveland v. Quilty, 128 Where letters were granted in the Mass. 578 ; Scott v. Crews, 72 Mo. 261 ; wrong county, by reason of a last resi- Munroe v. People, 102 111. 406; Harri- dence of decedent in another county of son V. Clark, 87 N. Y. 572. the same State, the court of rightful 3 Wms. Exrs. 574, 575 ; Cro. EHz. jurisdiction should require a revocation 315; Toller, 126; White z/. Brown, 7 T. of the fomier letters before granting B. Monr. 446. The fact that the party letters. Coltart v. Allen, 40 Ala. 155. 215 § 153 EXECUTORS AND ADMINISTRATORS. [PART It. a showing, and passed upon, the readier presumption is that the court made the latter grant imprudently, unmindful that the former was outstanding. In all cases, however, where the first administration is revoked, the second stands good, though granted after the grant of the first and before the repeal of it.' In case an administrator is irregularly appointed, because of a will presented for probate, the appointment stands until revoked by at least a definitely inconsistent grant ;^ and so with an ex- ecutor duly appointed, though there may be a later will not yet offered in probate.^ § 153. Grounds upon wMcli Revocation is Proper. — Among the grounds upon which revocation is proper, may be stated the following : That the letters testamentary or of administra- tion were issued without jurisdiction, inasmuch as the party was still living, or his last residence and situs of property con- ferred the whole jurisdiction elsewhere.'' That the will was probated through fraud or error, or that some later will or codi- cil should be admitted. ^ That general administration was granted, whereas the deceased died testate.'' That adminis- tration with will annexed was granted regardless of the execu- tor's rights.7 That administration was granted earlier than the statute permits to one of a class not preferred therein ; or that it was granted to another person than the widow or the next of kin, regardless of the legal priorities.*^ That administration was ' Com. Dig. Administrator B; Wms. v. Stewart, 25 Ala. 408; Harrington v. Exrs. 575. Under the New Jersey stat- Brown, 5 Pick. 519, 522; Burns v. Van ute, where letters of administration are Loan, 29 La. Ann. 560. See Coltart v. revoked for informality or illegality, Allen, 40 Ala. 155. new letters may be granted to the same ' Wms. Exrs. 576 ; Waters v. Stick- person, where such grant is proper, ney, 12 Allen, 4; Hamberlin t^. Terry, i without a new application or notice. Sm. & M. Ch. 589. But see 64 Tex. Uelany v. Noble, 3 N. J. Eq. 559. 266. * Franklin v. Franklin, 91 Tenn. 119. ^ Edelen v. Edelen, 10 Md. 52 ; Bulk- A mere order for probate without an ley t/. Redmond, 2 Bradf. (N. Y.) 281 ; actual grant of probate or letters testa- 77 Ala. 323 ; Dalrymple v. Gamble, 66 mentary is insufficient. Hadjiar v. Md. 298. Pitchey, (1894) A. C. 437. ' Thomas v. Knighton, 23 Mo. 318; ^ 50 N. J. Eq. 295. Patton's Appeal, 51 Penn. St. 465; ■• Morgan v. Dodge, 44 N. H. 255; Baldwin v. Buford, 4 Yerg. 16. Napier, Goods of, i Phillim,83; Hooper ^ Mills v. Carter, 8 Blackf. 203; Wil- 216 CHAP. VI.] REVOCATION OF LETTERS, ETC. § ^53 granted to a disqualified person or one not entitled at all.' That the preferred party's renunciation was forged or fraudulently pro- cured.' That the judge of probate who granted the letters was an interested party.^ That the party having a right to inter- vene was not cited in nor cognizant of the proceedings.* That grant upon the estate of a married woman was made as though she were single.^ In general, that there was essential fraud, error, or mistake in the original decree and appointment,'' or that the appointment was without authority of law.^ If the grant may be considered voidable rather than void, revocation becomes eminentl)^ proper in such cases. It would appear that a county probate court may, of its own motion, institute and carry on proceedings to revoke its irregu- lar decrees. Yet, as a rule, the private party who, as of right, seeks revocation of an appointment, because some preferred party was passed over, should be of that class himself, and in a position to profit by such revocation.** That the letters testa- mentary or of administration have irregularly issued without the liams' Appeal, 7 Penn. St. 259 ; Thomp- '' Haniberlin v. Terry, i Sm. & M. son V. Hucket, 2 Hill (S. C.) 347; Ch. 589 ; Com. Dig. Administrator B; Wms. Exrs. 578; Stebbins v. Lathrop, Proctor 7-. Wanmaker, i Barb. Ch. 302 ; 4 Pick. T,2 ; Pacheco, Estate of, 23 Cal. Broughton v. Bradley, 34 Ala. 694. 476; Rollin V. Whipper, 17 S. C. 32 ; Special causes of revocation are sug- 40 N. J. Eq. 184. gested by local statutes. 4 Dem. 394. 'Thomas v. Knighton, 23 Md. 318; Where probate of a will has been Harrison v. Clark, 87 N. Y. 572 ; 13 granted in common form, the executor Phila. 296. may be aftenvards cited to prove it in -Thomas v. Knighton, 33 Md. 318; solemn form; and if he cannot suffi- Wilson V. Hoes, 3 Humph. 142. And ciently prove it, the probate will be re- see as to renunciation upon a condition voked. Wms. Exrs. 575 ; supra, § 66. not fulfilled, Rinehart v. Rinehart, 27 •' But see Floyd v. Herring, 64 N. C. 409.N N. J. Eq. 475. ^ McCabe v. Lewis, 76 Mo. 296. 'Coffin V. Cottle, 5 Pick. 480;/- ' Mecklenburgh v. Bissell, 2 Jones"^ Echols V. Barrett, 6 Ga. 443. It is held ( (N. C.) L. 387 ; Edmundson v. Roberts," that an administrator may accept the i How. (Miss.) 217; De Lane's Case, office of probate judge without vacating 2 Brev. 167. And see Hardaway v. the trust of administrator. Whitworth Parham., 27 Miss. 103 ; Kelly v. West, V. Oliver, 39 Ala. 286. But semble he 80 N. Y. 139. A debtor cannot thus should resign or be removed if the trust proceed, i Dem. 163. Where admin- is within the same county jurisdiction, ist ration was granted in the belief that and remains unfulfilled. there was no will, revocation may be •• Young J-. Holloway, (1S95) !'• ^7 ex fnero mottt. 77 Ala. 323. ' (1893) P- 16. 217 § 153 EXECUTORS AND ADMINISTRATORS. [PART II. notice or citation of proper parties, as required by law, is a cause for revoking or vacating the decree, on the appUcation of those entitled to such notice. And the same holds true where a will is admitted to solemn probate, in similar disregard of statute formalities.' It should, however, be borne in mind that the right to be cited in does not necessarily render an appearance indispensable ; and that in granting administration, the failure of one entitled to the trust in preference may often be con- cluded by his waiver or the failure to seasonably apply or to qualify.^ A regular appointment should not be revoked because parties in priority, once concluded by their own acts or laches, seek without special good reason to assert such priority after- wards.^ A judge may select one or more from the class primarily entitled ; but having exercised his discretion, he ought not to revoke without good cause. ■♦ That the occasion for a limited or special administration has ceased to exist is good cause for revocation or supersedure.s The failure to quahfy by bond in the first instance appears in some States to be regarded as cause for revocation ; '^ but ' his is only for convenience, and the more correct view is, that the condition precedent failing, there is no appointment to be re- voked, but rather a supplementary decree of suitable tenor to be entered.7 ' Wms. Exrs. 578; i Lev. 305; Fitz- 163. And see Ehlen v. Ehlen, 64 Md. gib. 303; Kerr v. Kerr, 41 N. Y. 272; 360. This becomes often a matter of Lawrence's Will, 3 Halst. Ch. 215; statute construction. See Dietrich's Waters v. Stickney, 12 Allen, 15; Wal- Succession, 32 La. Ann. 127. lace z/. Walker, 37 Ga. 365; McCaf- " Brubaker's Appeal, 98 Penn. St. 21. fray's Estate, 38 Penn. St. 331 ; Morgan ^ Morgan v. Dodge, 44 N. \l. 260; V. Dodge, 44 N. H. 260. 54 Md. 359. ^ = Stoker v. Kendall, Busb. (N. C.)"^ * See Wingate v. Wooten, 5 Sm. & (l. 242 ; Cold V. Dial, 12 Tex. 100; and M. 245. see supra, § 112. The jurisdiction to ^ But it might happen that the court revoke in such cases held discretionary had imprudently and irregularly issued under the code in Hutchinson v. Priddy, the letters without waiting for a proper 12 Gratt. 85. bond, in which case revocation or va- ^ lb. Nor where letters issued to a eating the appointment would be suita- competent person will they be revoked ble, new letters issuing when the requi- upon the subsequent claim of a person site bond was filed. See Bell, C. J., in who was incompetent at the time of the Morgan 7'. Dodge, 44 N. II. 261. Re- grant. Sharpe's Appeal, 87 Penn. St. moval may sometimes reach this case. 218 CHAP. VI.] REVOCATION OF LETTERS, ETC. § 1 54 § 154. Removal of Executor or Administrator. — Under stat- utes now in force in most of the United States, the probate court is empowered to make a vacancy in the fiduciary offtcefor sundry good causes specified, and to appoint a successor. Thus, in Massachusetts, if an executor or administrator becomes in- sane, or proves otherwise incapable of discharging his trust, or for any reason " evidently unsuitable " therefor, he may be re- moved, notice of such proceedings having been given to him and to all parties interested.' Moreover, inasmuch as no one can be appointed without first qualifying by furnishing a suitable bond, provision is made for the summary removal of an executor or ad- ministrator who, upon being ordered by the probate court to give a new bond, does not seasonably comply with the order.^ And inexcusable negligence to file an inventory or settle his accounts in court, after having been duly cited, is sometimes specified as proper cause for removal. ^ It is perceived that statutes of this character confer upon the court, and most appropriately too, a broad discretion as to the various instances which may justify removal. Whenever, from any cause, the executor or administrator becomes unable to perform properly the substantial duties of his office, he may be regarded as "evidently unsuitable." •♦ Unsuitableness may be inferred also from wilful misconduct, or even from obstinate persistency in a course plainly injurious to the interests of the estate, and impairing its value ; and in fact, as a rule, any unfaithful or in- competent administration, which will sustain an action on one's probate bond, should be sufificient cause for his removal. 5 Causes See lo La. Ann. 94 ; 95 N. C. 353 ;J Under the Texas act of 1876, a probate § 155. judge may of his own motion remove 'Mass. Gen. Stats, c. loi, § 2; c. one for faiUng "to obey any order con- 100, § 8. See 72 Cal. 335. sistent with this act," etc. Wright v. ^ Mass. Gen. Stats, c. loi, § 17; McNatt, 49 Tex. 425. As to insanity, Morgan v. Dodge, 44 N. H. 261 ; De see 68 Cal. 281 ; 4 Dem. 81. Flechier, Succession of, i La. Ann. 20; ^ As where, the estate being insol- Davenport v. Irvine, 4 J. J. Marsh. 60; vent, the executor or administrator re- oIcFadgen v. Council, 81 N. C.195) fuses to take steps for recovering prop- Bills V. Scott, 49 Tex. 430. erty fraudulently conveyed, when the ^ See Mass. Gen. Stats, c. loi, § 2; creditors offer to indemnify him. An- c. 99, § 26. drews v. Tucker, 7 Pick. 250. Or for ^ See Thayer v. Homer, 11 Met. 104. his fraud and corrupt dealings. 28 La. 219 § 154 EXECUTORS AND ADMINISTRATORS. [part II. of unsuitableness, operating at the time of the appointment, but disclosed more fully in the course of administration, and upon experiment, may afford the ground of one's subsequent removal from office ; the point here being, not that the unsuitableness aid heirs or others outside the Hne of his official duty. Richards v. Sweet- land, 6 Cush. 324. Nor that doubtful claims are not prosecuted, especially if the estate be small. Myrick Prob. 97. Nor that he makes no returns, when there is nothing to return. Harris v. Seals, 29 Ga. 585. Nor where his de- lays are satisfactorily explained. An- drews V. Carr, 2 R. I. 117. Nor, as ruled, simply that he cannot read or write (cf. supra, § 104) ; Gregg v. Wil- son, 24 Ind. 227. And see i Dem. 577. Opportunity to file accounts and inven- tory should be given if this be the griev- ance alleged ; the court ordering him to account. 28 La. Ann. 800. Cf. 77 N. C. 360. As to his bankruptcy, or insolvency, see Dwight v. Simon, 4 La. Ann. 490 ; Cooper v. Cooper, 5 N. J. Eq. 9; §§ 33, 104; Gibson v. Maxwell, 85 Ga. 235. As to transactions by the executor or administrator, not perhaps justifiable, but held insufficient cause for his removal, see Carpenter v. Gray. 32 N. J. Eq. 692 ; 18 S. C. 396; Killam V. Costley, 52 Ala. 85. Conflicting in- terest will not furnish ground for re- moval except in a clear and extreme case. Randle ?-. Carter, 62 Ala. 95. For failing to sell his testator's land, where the time of sale was left to his discretion, and where he has tried in good faith to sell, an executor should not be removed. Haight v. Brisbin, 96 N. Y. 132. Nor for apprehended in- solvency where the estate is well pro- tected. 14 Phila. 317. Nor upon a mere citation to appear and settle his accounts. 108 111. 403. An order re- quiring another bond does not oust a court of its jurisdiction to remove. 38 N. J. Eq. 490. Ann. 784. Or where he gives an un- authorized and final preference in pay- ing or distributing (though this, semble, should be a case of gross injustice, and not where some reasonable favor was bestowed at discretion). Foltz z/. Prouse, 17 111. 487. Or where he is ignorant of his duties and liable to be imposed upon. Emerson v. Bowers, 14 Barb. 658. Or where he has other interests in positive conflict with the official trust. Thayer v. Homer, 1 1 Met. 104 ; Hussey V. Coffin, I Allen, 354; 148 Mass. 248. Waste, negligence and mismanagement are good grounds for removal as well as fraud. 3 Nev. 93. Or habitual drunkenness. 83 Ind. 501. Or mis- conduct. 104 N. Y. 103. And see Peale v. White, 7 La. Ann. 449 ; Reyn- olds V. Zink, 27 Gratt. 29 ; 64 Md. 399 ; 4 Dem. 227. So is the unwarranted refusal to prosecute claims on behalf of the estate, especially if the office was obtained by inducing those in interest to believe that he would prosecute. Kellberg's Appeal, 86 Penn. St. 129. Or for squandering the estate. New- comb V. Williams, 9 Met. 525. As to removing an executor for " improvi- dence " under the New York code, see Freeman v. Kellogg, 4 Redf. (N. Y.) 218. And see 40 Hun, 291 ; Gray v. Gray, 39 N. J. Eq. 332. Refusal to bring a suit which may reasonably be supposed to bring in assets for creditors has been treated as ground for remov- ing an administrator. 137 Mass. 547. And as to misconduct with regard to his bond, see 3 Dem. 542 ; 63 Tex. 396. So where one fraudulently induces his ben- eficiary to sell out to him. 37 N. J. Eq- 535- But it is no cause for removal that the executor or administrator declines to 220 CHAP. VI.] REVOCATION OF LETTERS, ETC. § '55 operated when the appointment was made, but that it operates at the time of the complaint.' Non-residence or the permanent absence of an executor or administrator is made a specific cause of removal by our local statutes under various circumstances ; as where such fiduciary neglects, on citation, to render his accounts and settle the es- tate ; or where one moves out of the State without having settled his accounts, or without appointing an attorney, or, as held in some States, if he be a non-resident at all.^ On the marriage of a sole executrix or administratrix, her authority as such ceases ; and our statutes provide for the grant of administration dc bonis non in such a case.^ But removal from the jurisdiction does not ipso facto operate a revocation of letters ; for due proceedings for making a vacancy should be instituted. •♦ §155- Procedure in Case of Revocation of Appointment or Re- moval from Office. — Where one has been regularly appointed, he is not bound to propound his interest in such proceedings until the party calling it in question has established his own posi- tion. 5 And the first duty of the appellant from a decree in pro- bate is to show affirmatively his right to appeal ; for, until this is ' Drake v. Green, lo Allen, 124. 38 Ark. 393. See Berry v. Bellows, 30 Cf. Lehr v. Turball, 3 Miss. 905. Ark. 198. As to suspension, under lo- ^ Mass. Gen. Stats, c. loi, § 2 ; Har- cal statute, see 122 Cal. 379. ris z^. Dillard, 31 Ala. 191 ; local codes. ^ Mass. Gen. Stats, c. loi, §§ i, 4; One temporarily absent may often dele- Whitaker v. Wright, 35 Ark. 511 ; gate his trust by power of attorney ; Duhme v. Young, 3 Bush, 343 ; Kava- yet temporary absence to the detriment naugh v. Thompson, 16 Ala. 817 ; of the estate might furnish cause for Teschemacher v. Thompson, 18 Cal. removal. Mere non-residence or ab- 211. But as to the effect at common sence is not necessarily a disqualifica- law of joining her husband in the trust, tion /fr j-i?, or cause for removal, unless see Schoul. Hus. & Wife, § 163. A the statute so provides. Walker z-. Tor- formal revocation of authority or re- rance, 12 Ga. 604; McDonogh, Succes- moval from office is in some States re- sion of, 7 La. Ann. 472 ; 4 Dem. 492 ; Wi- quired before the wfe ceases to be the ley V. Brainerd, 11 Vt. 107; Cutler v. de facto and de jure incumbent of the Howard, 9 Wis. 309. And though ab- office. Fryef. Kimball, 16 Mo. 9; Yates sence from the State mayor may not be v. Clark, 56 Miss. 212 ; 70 Cal. 343 ; 94 cause for removal, the administration is Cal. 357. not meantime vacant, and a new ap- '' Railroad Co. v. McWherter, 59 pointment cannot be made until the va- Kan. 345 ; and see § 160. cancy is made. Hooper v. Scarbor- ^ Phillim. 155, 166. ough, 57 Ala. 510; McCreary v. Taylor, 32J § 155 EXECUTORS AND ADMINISTRATORS. [part II. done, or the right admitted by the opposite side, the merits of the appeal will not be entertained.' An executor or administrator is entitled to notice and a reasonable opportunity to appear and defend himself in all cases of complaint before he can be prop- erly removed or his letters revoked ; ^ and if his failure to file a bond or increase his security be the cause of removal, it should appear that he was allowed fair time to comply with the order of the court and failed to do so.^ At the hearing for his re- moval, as well as for the revocation of a probate decree, both petitioner and respondent may offer evidence pertinent to the issue ; and either party may appeal from the decree of the court making or refusing to make the removal. •» An executor or administrator removed from office should set- tle his accounts in court and turn over the estate to his succes- sor without delay ; otherwise, he and his sureties may be pur- sued.-^ Discharge from office relieves from further responsibility. ' Pettingill 7'. Pettingill, 60 Me. 419. Statutes concerning removal sometimes require the petitioner to show an inter- est in like manner. Vail v. Givan, 55 Ind. 59. ^ Murray v. Oliver, 3 B. Mon. 1. But the executor or administrator may waive notice by his voluntary appearance. Ferris z/. Ferris, 89 111. 452. * Wingate v. Wooten, 5 .Sni. & M. 245. ■• See Smith (Mass.) Prob. Pract. 99 ; Bailey v. Scott, 13 Wis. 618. Concern- ing the method of applying for the revo- cation of letters or probate, or for the removal of an executor, administrator, or other probate functionary, numerous late decisions are found. The local statute usually enters fully into the de- tails of such proceedings. Removal cannot be demanded by way of opposi- tion, but if at all it must be by direct proceedings with petition and citation. Boyd, Succession of, 12 La. Ann. 611. But as to allegations in the petition, see < Neighbors v. Hamlin, 78 N. C. 42. > Implied revocation of one's authority 22 by such judicial acts as a new appoint- ment is in some States permitted, even though the reason for revocation or re- moval arose subsequently to the ap- pointment. Berry v. Bellows, 30 Ark. 198 ; Bailey r-. Scott, 13 Wis. 618. But the more correct practice discounte- nances implied revocations. See supra, § 152. As to superseding a general administrator by the simple probate of a will, and the appointment of executor or administrator with the will annexed without a removal, etc., see McCauley V. Harvey, 49 Cal. 497. An incumbent administrator's acceptance of a grant of administration de bonis 71011 jointly with another, held equivalent to resigning the former trust. Turner v. Wilkins, 56 Ala. 173. ' See Aldridge v. McClelland, 34 N. J. Eq. 237; West v. Waddill, ^t, Ark. 575 ; Schlecht's Estate, 2 Brews. (Pa.) 397 ; Hood Re, 104 N. Y. 103. The court may settle the accounts of a removed fiduciary, at discretion, with- out appointing a successor. 68 Hun, (N. Y.) 114. 2 CHAP. VI.] REVOCATION OF LETTERS, ETC. § 1 56 but not from the consequences of malfeasance and neglect while in office. One discharged for pressing cause, such as the in- solvency of himself and his sureties (which, properly speaking, constitutes ground for removal), is not relieved from the obliga- tion to account ; while the interests of an estate may, of course, require one to be thus discharged, or, in general, removed, be- fore any accounting at all.' § 156. Resignation of Executor or Administrator. — Removal without cause shown, or by way of favor to the incumbent, would be improper. For such cases, and as a gentler means of vacating an office unsuitably filled, our statutes further provide the opportunity for a fiduciary officer to resign. Thus, in Mas- sachusetts, it is enacted that, upon the request of an executor or administrator, the probate court may, in its discretion, allow him to resign his trust ; but the party applying for leave to re- sign should present his administration account to the court with his petition ; nor will his request be allowed until his accounts are settled, after such notice to the parties interested as circum- stances may require." An executor or administrator who has already qualified has, however, been permitted to terminate his trust before he has taken actual possession of the assets or at- tempted to exercise any control whatever over the estate ; in which case, the acceptance of his resignation may be followed, as usual, by the appointment of a successor.^ The correct settlement of one's accounts, and transfer of the balance as the court may direct, is the usual condition upon which resignation is permitted. And where there is a personal trust reposed in an executor under the will, he should not be discharged until he has performed that duty ; ^ nor, in general, 'Union Bank v. Poulson, 31 N. J. In English practice an executor is per- Eq. 239. See 64 Ala. 545. mitted to renounce probate even after * Mass. Gen. Stats, c. loi, § 5 ; Thayer he has taken the oath of office, if he has V. Homer, 11 Met. 144. See also local not already taken possession or control, codes; Haynes v. Meek, 10 Cal. no; 3 Hagg. 216; Wms. Exrs. 276, 281. Carter z'. Anderson, 4 Ga. 516; Cole- And see Mitchell tA Adams, i Ired. 298. man v. Raynor, 3 Cold. (Tenn.) 25; -t Lott 57. Meacham, 4 Fla. 144; Van Morgan v. Dodge, 44 N. H. 258. Wyck, Matter of, i Barb. Ch. 565. ^Comstock V. Crawford, 3 Wall. 396. 223 §157 EXECUTORS AND ADMINISTRATORS. [PART II. ought one's resignation to be accepted regardless of the detri- ment which the estate may suffer in consequence.' v5 I 5 7. Jurisdiction, in general, as to Revocation, Removal, and Accepting a Resignation. — Revocation of letters or a probate ap- pears to be a different thing from the creation of a vacancy in the office by death, removal, or resignation, though the books do not keep this distinction clear. As a general rule, where the probate court has once regularly conferred the appointment, it cannot remove the incumbent afterwards except for causes de- fined by statute.- Nor, if precedents may be trusted, can an e.xecutor or administrator, who has once fully accepted and en- tered upon his trust, resign it unless the statute permits him to ; for the English rule always discountenanced such a practice, as to these and similar fiduciaries. ^ Other courts, therefore, having equity powers, must incline to exercise them in restraint of the probate appointment, where the probate courts have no plenary jurisdiction to remove or accept the resignation of an executor or administrator ; appointing, it may be, a receiver of their own, and temporarily restraining the authority of an executor, in an emergency.^ So, too, English practice appears to enlarge the right of revocation, in default of the power to remove ; for, as the books say, administration may be revoked if a next of kin to whom it has been committed becomes non compos or otherwise ■4Dem. 162. See 14 Atl. 808. M Ventr. 335; Wms. Exrs. 281; = Muirhead v. Muirhead, 6 Sm. & M. Haigood v. Wells, i Hill (S. C.) Ch. 451. Citation or notice of proceedings 59; Sears r'. Dillingham, 12 Mass. 358 ; to interested parties ought to be a pre- Sitzman v. Pacquette, 13 Wis. 291 ; liminary to discharging one who wnshes^ Washington v. Blunt, 8 Ired. Eq. 253. ) to resign. 50 Mich. 22; 67 Ga. 227; As to guardians, see Schoul. Dom. Kel. 37 N. J. Eq. 521. And only for cause § 315- and after notice and opportunity to be * Long v. Wortham, 4 Tex. 381 ; Led- heard should one be removed. Levering dell ?'. Starr, 4 C. E. Green, 159. See z/. Levering, 64 Md. 399. But a decree of Cooper 7/. Cooper, 5 N. J. Eq. 9;\W^il- discharge regular and legal on its face kins v. Harris, i Wms. (N. C.) Eq. 4TN and never challenged is not to be set As to restraining an executor who aside after twenty years merely because has become bankrupt since his appoinl- some interested party was a minor when ment, see Bower v. Phillips, (1897) i the decree was rendered. 102 Penn. Ch. 174. St. 258. And see 63 Cal. 473. 224 CHAP. VI.] REVOCATION OF LETTERS, ETC. § 1 59 incapable, and perhaps, too, if he goes beyond sea.' But in our later American practice the court of original probate jurisdic- tion is the most suitable tribunal in the first instance for revok- ing such appointments, for removing or accepting resignations, and, in general, for regulating the succession in the office of executor or administrator ; and to such courts the statute au- thority chiefly relates.^ § 1 5 8. Natural Termination of an Executor's or Administrator's Authority. — The death of an executor or administrator, leav- ing his trust unperformed, gives occasion, of course, to the appointment of a successor ; and death in any event terminates his own functions ; his estate continuing liable for any mal- administration on his part while in office. It is not usual to discharge such an officer formally, even though his trust be fully performed ; but on the approval of his final account, no appeal being taken, and the final distribution of the estate, it may at all events be presumed that his functions have reached their •natural end.^ § 1 5 9. Delegation of Authority does not relieve ; but Super- aedure does. — An executor or administrator cannot, by delega- tion of his own authority, avoid any of the liabilities imposed on ' Bac. Abr. Exrs. etc. E ; Wms. Exrs. ^See Waters z'. Stickney, 12 Allen, 579. And yet revocation, so called, 15; iLedbetter v. Lofton, i Murph.) appears to involve in probate the idea (N. C.) 224; Hosack z/. Rogers, n of vacating that which was originally Paige, 603 ; Chew v. Chew, 3 Grant void or voidable and clogged at the out- (Pa.) 289 ; Wilson v. Frazier, 2 Humph, set. Thus, the appointment of one al- 30. In New Jersey, where chancery ready non compos, like the probate of a courts exercise similar powers with those will which was not really the last one, of England, it is held that the court of is based upon some fundamental error; probate alone can remove an executor; the decree never should have been en- but that chancery may intervene, as to tered. But if an appointment be regu- the functions of trustee, where these are larly made, while one is sane and com- exercised also by the executor, and also petent, his subsequent incompetency enjoin the executor from acting where does not invalidate the original decree he is likely to abuse his authority. Led- more than his subsequent misconduct; dell v. Starr, 4 C. E. Green, 159. the decree was good, but the case calls ^ See post as to distribution and ac- later for removal from office. See post, counts. Under the Louisiana code of effect of revocation. 1808, the office of testamentary executor 15 225 § l60 EXECUTORS AND ADMINISTRATORS. [PART II. him by law.' But it is otherwise, where a court having jurisdic- tion supersedes his authority, and vests the new appointee with his functions. § I 6q. The Effect of Probate Decrees ; Collateral Attack, etc. — Concerning the legal effect of the revocation of probate or letters on the intermediate acts of the former executor or ad- ministrator, a distinction is made in the books between grants void and voidable. A grant utterly void and without jurisdic- tion, as in the case of admmistration upon the estate of a living person, gives no shelter to the acts of the appointee ; and revo- cation in such case appears to be only for the sake of correcting the records and preventing further mischief.- The grant of administration on the estate of a decedent, while a will was in existence, being for a time concealed, is treated as void with similar consequences ; ^ and so, too, is it, we may presume, where the grant was under a certain will, and a later will came to light afterwards, conferring the executorship elsewhere, and making a different disposition of the estate.'* The sale or collection of one's property under such circumstances, by the wrongful rep- resentative, may (subject to the usual exceptions in favor of bona fide third parties, and negotiable instruments) be avoided by the living person who was supposed dead, or, as the case may expired at the end of the year, unless ^ See English case of Graysbrook v. the will expressed otherwise or the term Fox, Plowd. 276 ; V\'ms. Exrs. 586, 587. of ofifice was prolonged by the judge. Not necessarily, however, where the will Deranco ?'. Montgomery, 13 La. Ann. was foreign, and local jurisdiction arose 513. because of local assets. Shephard 7'. 'Driver v. Riddle, 8 Port. (Ala.) Rhodes, 60 111. 301. See ne.xt page. 343; Bird V. Jones, 5 La. Ann. 645. " Woolley v. Clark, 5 B. & Aid. 744. ^In Jochumsen v. Suffolk Savings A similar fatal consequence has been Bank, 3 Allen, 87, the living depositor held to attend the grant of letters by an was allowed to sue for his deposit, not- interested judge. Gayz/. Minot, 3 Cush. withstanding an administration had been 352. Scd i/ii., unless a statute is explicit granted on due presumption of his death, on this point. See Aldrich, Appellant, and payment was made to such admin- no Mass. 193; Moses v. Julian, 45 istrator. And see Burns v. Van Loan, N. II. 52. Where a will admitted to 29 La. Ann. 560 ; Moore v. Smith, 1 1 probate is declared void on appeal, let- Rich. 569 ; Devlin v. Commonwealth, ters under the will cannot issue prop- 101 Penn. .St. 273; Scott v. McNeal, erly. ( Smith 7/. Stockbridge, 39 Md. 154 U. S. 34. 640; 3 Ired. 557. J 226 CHAP. VI.] REVOCATION OF LETTERS, ETC. § 1 6o be, by the rightful representative of his estate duly appointed ; trover or detinue for the property may be maintained, or as- sumpsit for the money produced (the tort being waived), as so much money received to the use of the rightful party.' Nor is it certain how far the defendant thus sued shall be permitted to recoup, by way of offset, payments made in due course of ad- ministration, or for debts which were lawfully due from the sup- posed decedent or his estate ; though, doubtless, such recoup- ment is to some extent proper.- Where, however, the grant was voidable only, as in case letters of administration are issued by a competent court to a party not entitled to priority, and without citation of those so entitled or their renunciation, all the lawful and usual acts of the appointee performed meanwhile, and not inconsistent with his grant, shall stand good until the authority is revoked.^ If, after adminis- tration has been granted, a will is produced for probate, acts performed under the grant in good faith and beneficially are sometimes held valid.'' It has been laid down, and quite broadly, that a payment bona fide made to 2iX\y de facto executor or administrator, ap- pointed by a court of competent jurisdiction, will discharge the debtor.5 This rule has been applied to the case of a probate which was afterwards declared null, because of a forged will ; and upon the sensible reasoning that the debtor cannot contro- vert the title of the executor, who presses him, so long as the probate remains unrepealed, nor possess himself of the means of procuring such repeal.^ Statutes now in force confirm and ' Lamine v. Dorrell, 2 Ld. Raym. qualified by giving the statute bond is 1 216; Woolley V. Clark, 5 B. & Aid. void. Bradley v. Commonwealth. 31 744 ; Dickinson v. Naul, 4 B. & Ad. Penn. St. 522. In such case the ap- 638; Wms. Exrs. 587. pointment perhaps was never completed, ^ In Graysbrook v. Fox, Plowd. 276, properly speaking. Supra, § 153. it was ruled that if the sale had been ^ Wms. Exrs. 588, and cases cited; made to discharge funeral expenses or Kelly z/. West, 80 N. Y. 139; Pick v. debts which the executor or adminis- Strong, 26 Minn. 303. trator was compelled to pay, the sale >■ Kittredge v. Folsom, 8 N. H. 98; would have been indefeasible forever. Kane v. Paul, 14 Pet. t^i; Bigelow z/. But cf. Woolley v. Clark, 5 B. & Aid. Bigelow, 4 Ohio, 138. 744; Wms. Exrs. 271, 588. And see ' Wms. Exrs. 590, and cases cited. post as to executors de son tort, c. 8. '' Allen v. Dundas, 3 T. R. 125 ; Best, A grant of letters to one who has not J. in Woolley v. Clark, 5 B. & Aid. 746. 227 § l60 EXECUTORS AND ADMINISTRATORS. [PART II. enlarge the validity of payments made bona fide to any executor or administrator, under a i:)robate or administration afterwards revoked, if made before revocation; declaring such pa)ment to be a legal discharge to the person making it.' After revocation or the removal of an executor or adminis- trator from office, or the acceptance of his resignation, he can- not complete a sale which he had been negotiating on behalf of the estate;^ nor collect assets;^ nor carry on or defend a suit in his official capacity ; •♦ nor in general exercise the functions of his late office. English and American statutes in modern times aim to cor- rect the legal mischief of overturning acts performed in good faith and pursuant to a probate or letters of appointment after- wards set aside for cause. Apart from any right to recoup for funeral and other lawful debts of the deceased, it is expressly provided by the English Act 20 & 21 Vict. c. 'jj, that the executor or administrator who shall have acted under a revoked probate or administration may retain and reimburse himself in respect of any ])aymcnts made by him which the person to whom probate or letters of administration are afterwards granted might have lawfully made. American legislation is also found provid- ing for the relief of the parties affected, in cases where the appointment of an executor or administrator shall be vacated or declared void afterwards. 5 And the rule to be favored at the present day is, that all acts done in the due and legal course of administration are valid and binding on all interested, even though the letters issued by the court be afterwards re- ' Stat. 20 & 21 Vict. c. 77; Wms. Exrs. 592. Judgment cannot be ren- Exrs. 591, 592 ; Hood 7a Barn ngton, L. dered against a displaced executor or R. 6 Eq. 222. administrator. Wms. Exrs. 594; Wig- ^ Owens V. Cowan, 7 B. Mon. 152. gin v. Plummer, 31 N. H. 251 ; National ' Stubblefield v. McRaven, 5 Sm. & Bank v. Stanton, 116 Mass. 435; 26 M. 130. He may be enjoined from do- Tex. 530. But removal from a trustee- ing so by a court of chancery. Stub- ship is not necessarily a removal from blefield v. McRaven, ib. the executorship. 22 Hun, 86. Stat- * P'ormerly such a suit would have utes control this subject which regard abated, unless judgment had been ob- the interests of the estate. Ib. 'ained by such executor or administra- ^ Wms. Exrs. 592; McFeely z/. Scott, tor, but modern practice acts avoid such 128 Mass. 16. And see 3 Wash. C. C. inconvenience to the estate. Wms. 122. 228 CHAP. VI.] REVOCATION* OF I.?:TTERS, ETC. § l6o voked or the incumbent discharged from his trust.' And although one's appointment as executor or administrator may have been erroneous, or voidable, the safer doctrine is, that the letters and grant issued from the probate court shall not be at- tacked collaterally where the court had jurisdiction at all, and least of all by common-law courts;- and that the acts of the representative de facto shall bind the estate and innocent third parties. Statutes extend this principle to cases where there was no jurisdiction, provided no want of jurisdiction appear of record ; ^ thus, in fine, discouraging collateral issues of fact upon a grant of authorit}- which appears regular on its face, and mak- ing such decrees voidable, in effect, until vacated, and not utterly void, if at all events there was a dead person's estate. And a similar rule applies to the probate decree which discharges an appointee or revokes his appointment. ■♦ But the grant of letters by a local probate court, having no jurisdiction of the person or subject-matter, will not bind the competent probate tribunal ; which latter tribunal may proceed to grant letters, though the void grant by the former tribunal be not revoked. 5 So, administration granted upon the estate ' Foster v. Brown, i Bailey (S. C.) 9 Leigh, 119; Morgan v. Locke, 28 La. 221; Brown v. Brown, 7 Oreg. 285: Ann. 806; Taylor v. Hosick, 13 Kan. Shephard z/. Rhodes, 60 111. 301. As to 518; Hart v. Bostwick, 14 Fla. 162; a public administrator whose office has Burnett v. Xesmith, 62 Ala. 261 ; Pick expired, see Rogers v. Hoberlein. 1 1 v. Strong, 26 Minn. 303 ; Wright v. Cal. 120; Beale -■. Hall, 22 Ga. 431. Wallbaiim, 39 111. 554 ; 59 Kan. 345; As between revocation of an appoint- Bradley v. Missouri R., 51 Neb. 653; ment and the creation of a vacancy by Strong's Estate, 119 Cal. 663; 51 Neb. death, removal, or resignation, it would 596. And especially not by a person appear on principle that, in the former not "interested" in legal contempla- instance. further proceedings are de tion. Taylor v. Hosick, 13 Kan. 518. novo, giving rise to an original appoint- Nor by a debtor sued. 107 Iowa, 384. ment by new letters ; while, in the lat- In collateral proceedings a probate court ter, there arises successorship, and the may disincline to treat the letters issued proper appointment for the vacancy as void on merely defective recitals, should be by letters de bonis non. See 146 111. 40. Callahan v. Smith, T. U. P. Charlt. ^ ^IcFeely v. Scott, 128 Mass. 16; (Ga.) 149. Record v. Howard, 58 Me. 225. ^ Peters z/. Peters, 8 Cush. 542; Wms. * Simpson z-. Cook, 24 Minn. 180; Exrs. 549; 2 Vem. 76; 3 T. R. 125; Bean 7/. Chapman, 62 Ala. 58. Boody V. Emerson, 17 N. H. 577; ' Barker, Ex parte. 2 Leigh, 719: Clark V. Pishon, 31 Me. 503; Naylor v. King's Estate, 105 Iowa, 320. Moffatt. 29 Mo. 1 26 ; Fisher v. Bassett, 229 § l6o EXECUTORS AND ADMINISTRATORS. [PART II. of a person actuall}' alive, no matter upon what bona fide suppo- sition of his death, may be treated by him as utterly void, and the disposition of his property overturned.' And doubtless the appointment of an administrator may be attacked collaterally by a party sued where the record on its face discloses an entire want of jurisdiction by the county court to act in the premises.^ The conclusiveness of probate decrees is deducible from such exclusive jurisdiction as may be conferred upon probate courts to decide on the validity of wills, to grant administration, and to supervise the settlement of the estates of deceased persons. And according as the local statute may extend or limit this special jurisdiction, so must the effect of such decrees be de- termined. Probate courts are usually made courts of' record, and treated as courts of general jurisdiction on all subjects per- taining to their peculiar functions. ^ Formerly, in the English ecclesiastical practice, probate did not authenticate a will of real estate;'' but in England and most American States, at the present day, the statute jurisdic- tion of courts of probate extends to wills of both real and per- sonal property without distinction. ^ The decision of such a court is final, unless appealed from in plenary jM'oceedings re- ■ Scott V. McNeal, 154 U. S. 34 and the want of jurisdiction in the court cases cited ; § 92. But a decree of dis- which issued them. And no one can tribution made in case of a fairly pre- intervene in the affairs of an estate un- sumed death may protect a representa- less he is either personally interested or tive. 84 Md. 557. else authorized to do so by law. Breen ^ Elgutter V. Missouri R., 53 Neb. v. Pangborn, 51 Mich. 29. 748. One sued by an administrator is not 3 Waters v. Stickney, 12 Allen, 3; authorized to petition the probate court Stearns v. Wright, 51 N. H. 609, and to revoke the plaintiff's letters. Mis- cases cited; Veach v. Rice, 131 U. S. souri Pacific R. v. Jay, 53 Neb. 747. 293. That the administrator appointed Nor can he set up collaterally that such was not a citizen is not good ground of administrator was a minor, hence im- collateral attack, 67 Ga. 103; nor gen- properly appointed. Davis v. Miller, erally, if the judge has acted within his 109 Ala. 589 ; Railway Co. v. McWher- jurisdiction as to subject-matter, can ter, 59 Kan. 345. the validity of the letters be thus im- ■• 2 Campb. 389 ; Carroll v. Carroll, peached. And see 12 Or. 108. The 60 N. Y. 125. Michigan rule is that whatever may be ' See English Court of Probate Act, the immunity of letters of administra- 1857, 20 & 21 Vict. c. 77; supra, § 8; tion against attacks from strangers, Parker 7/. Parker, 11 Cush. 525. parties interested may always object to 230 CHAP. VI.] REVOCATION' OF LETTERS, ETC. § l6l lating to a will's validity.' The probate or grant is conclusive upon all persons interested, whether infants, persons insane, or absentees ; provided citation was duly granted in the prem- ises.^ But the probate of a will, while stamping it as authentic and originally valid, does not interpret the document.^ Probate and letters furnish no proof of death for the suits of strangers ;■♦ though to dispute thus an executor's or administrator's author- ity, in his own suit, should require appropriate pleading, an admission of his authority being admission of the death essen- tial to such authority, so as to dispense with other proof.5 Nor does the legal conclusiveness attaching to probate decrees pre- vent proof, in a collateral suit, that the pretended decree in question was a forgery, or that the alleged appointment has been revoked; for this is to affirm what is of genuine probate record.'' § l6l. Effect of an Appeal from Decree. — The usual effect of an appeal from probate, or from one's appointment as executor or administrator, is to suspend the authority conferred by such appointment ; and pending such appeal, and until termination of the controversy, it is a special administrator, if any appointee, ' 86 Md. 623 (caveat proceedings). Benefit Life Ins. Co. v. Tisdale, 91 U. S. ^ Wms. Exrs. 565. Supr. 238 ; Carroll v. Carroll, 60 N. Y. ^ Holman zk Perry, 4 Met. 492, 497; 121. Fallon v. Chidester, 46 Iowa, 588. The ' Lloyd t. Finlayson, 2 Esp. 564 ; probate ascertains nothing but the orig- Newman v. Jenkins, 10 Pick. 515. The inal validity of the will as such, and that fact that one is executor or administra- the instrument, in fact, is what it pur- tormay be traversed in pleading. Wms. ports on its face to be. Fuller, Ex Exrs. 560, 561 ; Plowd. 282. parte, 2 Story, 332. ^i Stra. 671 ; Wms. Exrs. 563. "• The death of the deceased is a fact The judgment of a probate court may not usually passed carefully upon in be impeached for fraud, in a court of granting letters, but is rather assumed equity in a proper case. Anderson v. by the probate court upon very slight Anderson, 178 111. 160. prima facte evidence or the petitioner's There must be an order for letters to allegation. Hence, it is held, in suits issue, signed by the judge or clerk; between strangers, as where the -widow otherwise the letters are void. Wirt v. sues upon an insurance policy on the Pintard, (La.) 4 So. 14. For a void de- life of her husband, that letters of ad- cree which did not specify the estate, ministration issued upon his estate fur- see (Tex.) 7 S. W. 789. nish no proof of his death. Mutual 2^1 § l6l EXECUTORS AND ADMINISTRATORS. [PART 11. who should protect the estate.' An appeal by the executor or administrator from a decree revoking his authority, leaves him, of course, without authority and suspended in his functions.^ The appeal should conform to objections raised below.^ ■ Wms. Exrs. 588. But an executor estate only. Byrn v. Fleming, 3 Head, duly qualified upon probate of a will in 658. common form may continue to act, not- ^ Thompson v. Knight, 23 Ga. 399 ; withstanding an issue joined afterwards 86 Cal. 72. testing the validity of the will as to real ^ See 131 N. Y. 587. 232 CHAP. VII. J FOREIGN AND ANCILLARY APPOINTMENTS. § 1 63 CHAPTER VII. FOREIGN AND ANCILLARY APPOINTMENTS. §162. The Subject of Foreign and Ancillary Appointments con- sidered frequently in the United States but not in England. — The subject of foreign and ancillary appointments is considered fre- quently, in connection with administration of the estates of de- ceased persons, in the United States ; but seldom, comparatively speaking, in England. There probate jurisdiction is always do- mestic, save as to colonies and foreign countries ; but here it is strictly domestic only in pertaining to some particular State. A person may be domiciled in one State jurisdiction at the time of his death, and yet leave property which another State can reach by its own independent process, under circumstances jus- tifying its own territorial grant of administration ; and cases may arise, though in practice more rarely, by comparison, where there are found local assets of some foreigner who died testate or intestate, leaving an estate in his own country to be admin- istered. Domestic probate jurisdiction is here internal, in other words, either as respects other States in the same federal Union, or other countries.' § 163. What is Ancillary Administration. — We have seen that original letters of administration may be taken out upon the estate of a foreigner, on the ground that local assets are within the jurisdiction and there is occasion for such appointment ; and further, that the non-existence of known kindred will not debar the local probate court from granting these letters. Such a grant, however, is founded usually upon ignorance of any last will of the deceased, or of any probate or principal administra- ^ Supra, §§ 15-20, on the subject of conflict of laws. § 164 EXECUTORS AND ADMINISTRATORS. [PART II. tion duly granted in the courts of his last domicile ; ' hence, the administration is looked upon as sufficiently a principal one for the convenience of the court and of the sovereign authority which exercises jurisdiction in the premises. But were such a foreign will or a foreign appointment of executor or principal administrator known to exist, the case would be properly treated, in England and the United States, on the principles of comity ; international, or inter-State comity, as the case might be. And regarding the fundamental rules of comity, principal adminis- tration is properly that of the country or State only where the deceased person had his last domicile ; administration taken out elsewhere, in the country or State where assets were locally sit- uate, being known as aiicillary (that is to say, auxiliary or sub- ordinate) administration. In the course of this treatise it will be seen that one who actually officiates as ancillary administra- tor observes somewhat peculiar rules as to managing and set- tling the estate. And in the j^resent chapter we shall first observe that peculiar rules guide the court with respect to the character and method of making the ancillary appointment.^ § 164. Letters Testamentary or of Administration have no Extra-territorial Force. — The first proposition to be laid down, with reference to foreign and domestic, principal and ancillary administration, is that, according to the recognized law both of England and the United States, letters granted abroad confer, as such, no authority to sue or be sued, or to exercise the func- tions of the office in another jurisdiction ; though they may af- ford ground for specially conferring a probate authority within such other jurisdiction ; and the same person sometimes quali- fies as principal and ancillary representative. Hence, letters testamentary granted to an executor in one State or country have no extra-territorial force. ^ And an administrator has no au- ^ Supra, §§ 15-20. 3 Q. B. 507 ; Wms. Exrs. 7th Eng. ed. ^Stevens v. Gaylord, 11 Mass. 256; 362; Kerr v. Moon, 9 Wheat. 565; Merrill v. N. E. Mut. Life Ins. Co., 103 Stearns v. Burnham, 5 Greenl. (Me.) Mass. 245 ; Clark v. Clement, 33 N. H. 261 ; Harper v. Butler, 2 Pet. 239; Tre- 567; Childress z'. Bennett, 10 Ala. 751. cothick v. Austin, 4 Mas. 16; Patter- 'Enohin v. Wylie, 10 H. L. Cas. 19, son v. Pajan, 18 S. C. 584; Reynold v. per Lord Cranworth ; 2 CI. & Fin. 84 ; Torrance, 2 Brev. 59 ; Naylor?'. Moffat t, ^34 CHAP. VII.] FOREIGN AND ANCILLARY APPOINTMENTS. § 1 65 thority beyond the limits of the State or country in which he was appointed.' In either case, one must be confirmed in his authority by the courts of the State or country in which prop- erty is situated or debts are owing before he can effectually ad- minister the property or collect the debts there. For the rights of citizens in the local jurisdiction must be protected, and one is incapable of suing outside the jurisdiction which appointed him.^ § 165. Each Sovereignty competent to confer a Probate au- thority within its own Jurisdiction. — A second proposition (which may be regarded as the correlative of the preceding, and uni- versally recognized both in England and the United States) is, that each independent sovereignty considers itself competent to confer, whenever there is occasion, a probate authority, whether by letters testamentary or of administration, which shall operate exclusively and universally within its own sovereign jurisdiction, there being property of the deceased person, or lawful debts ow- ing, within reach of its own mandate and judicial process.^ Such sovereign jurisdiction is not national, of necessity ; for in the United States, agreeably to the limitations of our federal consti- tution, it applies as between the several States. 29 Mo. 126; Oilman v. Gilman, 54 Me. ^ See Wilkins z/. Ellett, 108 U. S. 256, 453; supra, §15. A dictum of Lord 258. West bury, in Enohin v. Wylie, supra, ^ Banta v. Moore, 15 N. J. Eq. 97; to the effect that only the courts of that Naylor v. Moffatt, 29 Mo. 1 26. Thus, country in which a testator dies domi- in England, one having an English ap- ciled can administer his personal prop- pointment as executor is permitted to erty is erroneous. 6 App. Cas. 34, 39. sue there in respect of foreign assets, so ■ Picquet v. Swan, 3 Mas. 469 ; Ma- far as local courts can be of service to son r. Nutt, i9La. Ann. 41; Cutter za him. Whyte v. Rose, 3 Q. B. 493. Davenport, i Pick. 81 ; Dorsey v. Dor- And see Reynolds v. Kortwright, 18 sey, 5 J. J. Marsh. 280; Williams v. Beav. 417; Price v. Dewhurst, 4 M. & Storrs, 6 Johns. Ch. 353 ; Vaughn v. Cr. 76. And whether the local prop- Barret, 5 Vt. 333 ; Willardz/. Hammond, erty shall be remitted abroad is matter 21N. H. 382; McCarty z/. Hall, 13 Mo. of local discretion. Fretwell z/. Lemore, 480; Smith V. Guild, 34 Me. 443; 52 Ala. 124; Mackey z-. Co.xe, 18 How. -Nowlerz/. Coit, 1 Ohio, 519; Carmichael (U. S.) 100; Carmichael v. Ray, 5 Ired!) V. Ray, I Rich. 116; Sheldon v. Rice, Eq. 365 ; Hughes, Re, 95 N. Y. 55. 30 Mich. 296. v^ 167 EXECUTORS AND ADMINISTRATORS. PART II. v^ 166. Local Sovereignty recognizes Limitatious grounded in Comity, Good Policy, and Natural Justice. — But we may remark, again, that, competent as each sovereign jurisdiction regards it- self, in this matter, Hmitations are nevertheless placed to the exercise of such authority, out of respect to comity, good policy, and natural justice ; which limitations we shall find respected h}' local legislatures and the local courts of England and the United States. And hence our third proposition : that in prac- tice, the local sovereignty, State or national, permits letters to issue upon the estates of deceased non-residents, mainly for the puqDose of conveniently subjecting such assets to the claims of creditors entitled to sue in the local courts, and for appropriat- ing whatever balance may remain to the State or sovereign, by way of distribution, in default of known legatees or kindred. If, therefore, the non-resident proves to have left legatees and a will whose probate may be established, or kindred lawfully en- titled to distribution, or foreign creditors, the rights of all par- ties thus interested should be respected ; and, subject to local demands upon the estate, the local administration and settle- ment of the estate will be regulated accordingly.' ^5 167. Administration in the last Domicile is the Principal; other Administrations are Ancillary. - Our fourth proposition is, that regarding this subject from an international standpoint, wherever authority to administer the estate of one deceased, testate or intestate, is granted in two or more competent juris- dicti(jns, the i)rincipal administration or appointment must be that where the deceased had his last domicile ; and that admin- istration, or an appointment granted elsewhere, or because of local property or assets, is ancillary merely.' And this chiefly because, as an international doctrine, it is usually conceded that the law of the domicile of the owner of personal property gov- ' See post as to distribution in cases 245; Childress v. Bennett, 10 Ala. 751 ; of ancillary administration; Davis v. Perkins z*. Stone, 18 Conn. 270; Adams Estey, 8 Pici<. 475; Mitchell v. Cox, 22 v. Adams, 11 B. Mon. 77; Spraddling Ga. 32; Normand £». Grognard, 14 X. v. Pippin, 15 Mo. 117; Clark z/. Clem- J. L. 425. ent, T)Tf N. H. 563; Collins v. Bank- ^ Fay z/. Haven, 3 Met. (Mass.) 109; head, i Strobh. (S. C.) 25; Green v. Merrill v. N. E. Life Ins. Co., 103 Mass. Rugely, 23 Tex. 539. 236 CHAP. VII.] FOREIGN AND ANCILLARY APPOINTMENTS. § 1 68 erns in regard to the right of succession, whether such owner die testate or intestate ; ' or to cite the broader fundamental maxim, mobilia scqiinntnr personam.^ § 1 68. Principal Letters need not precede the Ancillary. — But, fifth, since each local sovereignty may act independently of all others in conferring the local grant, out of regard to local con- venience, and since what might otherwise be or become ancillary may stand alone, it is not necessary that principal and ancillary administration should be committed in consecutive order. Thus, the will of a non-resident testator need not be proved in the State or country of his last domicile, before the domestic State can grant valid letters upon his estate situated within its local confines ; ^ though, if it were shown after the domestic State had granted letters as upon an intestate estate, that the deceased left a will which was duly probated in his last and foreign domi- cile, the domestic domicile should revoke the grant and proceed to appoint as in case of testacy.^ And if a resident of a State dies testate, leaving property in another State upon which the will can act, it may be probated in that other State, and the State of residence will give such probate due faith and credit. 5 Nor is it essential that administration be granted on an intestate estate, in the place of the domicile of the deceased, before an administrator is appointed in another State or country, where, agreeably to local law, administration is proper.^' And once more, administration granted in one State, on property there situated of a resident of another State, is not impaired or abridged by the previous grant of administration in such other State ; ^ though the distribution and final disi)osition of proceeds may be affected in consequence. 'See Sir Cresswell Cresswell in Cris- " See Shepard -'. Rhodes, 60 111. 301. pin V. Doglioni, 9 Jur. N. S. 653 ; s. c. ' Walton v. Hall, 66 Vt. 455. L. R. I H. L. 301; Enohin v. Wylie, * Stevens v. Gaylord, 11 Mas.s. 256; 10 H. L. Cas. I ; Wilkins v. EUett, 108 Pinney v. McGiegory, 102 Mass. 192 ; U. S. 256. Rosenthal v. Remick, 44 111. 202., ^ Movables follow the person. "Crosby v. Gilchrist, 7 Dana, 206; 'Bowdoin v. Holland, 10 Gush. 17 ; Pond -'. Makepeace, 2 Met. 114. Burnley v. Duke, i Rand. (Va.) io8. ■2-n § 169 EXECUTORS AND ADMINISTRATORS. [PART II. § 169. Foreign and Domestic Probate and Letters Testamen- tary; English Doctrine. — The foregoing are the propositions mainly to be considered in the present connection ; and now to apply them to the probate of wills and the grant of letters tes- tamentary. In England, the last domicile of the deceased is firmly respected, in all matters of administration as to personalty. " All questions of testacy or intestacy," observes Lord Chan- cellor Cranworth, in a modern case,' "belong to the judge of the domicile. It is the right and duty of that judge to consti- tute the personal representative of the deceased. To the court of the domicile belong the interpretation and construction of the will of the testator.^ To determine who are the next of kin or heirs of the personal estate of the testator, is the prerogative of the judge of the domicile. In short, the court of domicile is X\\Q. forum coucursHs to which the legatees, under the will of the testator, or the parties entitled to the distribution of the estate of an intestate, are required to resort." And hence, as between testacy or intestacy, it is held that the courts of the last domi- cile must determine ; and that, so far as personalty is concerned, a will must be executed according to the law of the country where the testator was domiciled at the time of his death. ^ An English court of probate jurisdiction may, doubtless, ascertain what was in fact the last domicile of the party whose will has been presented for probate ; but if probate be judicially granted, the conclusive inference is, that the will must have been exe- cuted according to the law of testator's last domicile.^ We here refer to wills of personalty, in strictness ; for, with respect to real property, the descent, devise, or conveyance thereof, and ' Enohin v. Wylie, 10 H. L. Cas. i, States v. McRae, L. R. 3 Ch. 86. And cited by Sir Cresswell Cresswell in Cris- see in general Story Confl. Laws, § 638 ; pin V. Doglioni, L. R. i H. L. 301. supra, §§ 15, 17. ^This statement is subject to qualifi- ^ Whicker?'. Hume, 7 II. L. Cas. 124; cation. Domestic courts incline to Douglas v. Cooper, 3 Myl. & K. 378. weigh the foreign proofs and e.xplana- * i Redf. Wills. 398 ; Whicker v. tions procurable, but with such extra- Hume, 7 H. L. Cas. 124. But where neous assistance to interpret the instru- the transcript of foreign probate fails to ment upon domestic principles of con- show an adjudication by the court, but siniction. See Wms. Exrs. 370, 371, that the clerk issued the letters on his and Perkins's ti. ; Di Sora v. Phillipps, own authority, this is a ministerial act 10 H. L. Cas. 633, 639, 640; United on the face, and the domestic court may 238 CHAP. VII.] FOREIGN AM) ANCILLARY APPOINTMENTS. § 1 69 Other general incidents affecting its title and transfer, the law of local situation appears to have constantly prevailed in English law.' Accordingly, the will, so far at least as personalty is concerned, must conform to the place of the testator's last domicile ; and the law of this last domicile decides, as to one domiciled abroad, what was his last will, how and by whom such will is to be exe- cuted, and in general, all questions of one's testacy, testamen- tary capacity, and disposing power.* Modern statutes and modern probate practice provide for the authentication of foreign wills where local and domestic convenience requires it. An official copy of the probate, or act of recognition of the will by the court of such foreign domicile, should be produced before the local probate tribunal, with a translation or a re-translation of the will, as may be deemed suitable.^ Under a will of this character thus exemplified, the foreign executor is respected in the English courts. If the executor, constituted under a foreign will, finds occasion to institute a suit in English jurisdiction for the jDurpose of recovering local assets, he must prove his will before the English probate tribunal, and procure local authority or constitute some personal ancillary rep- resentative, as by virtue of his foreign appointment. And so, too, where it is intended that the foreign will shall operate upon local property. ■♦ Without an English grant he cannot sue or exercise general authority as to English assets of the estate. Rut the probate tribunals of England will, in such cases, follow the grant of the court of that foreign country where the de- ceased died domiciled ; and the last will sanctioning his appoint- ment having been authenticated abroad and proved by exempli- fied copy in the proper English probate court, the latter court inquire collaterally into the sufficiency regardless of the character of the prop- of the grant. Illinois Central R. 7'. erty to be transmitted. Supra, %?>. Crazin, 71 111. 177. ^i Hagg. Ec. 373, 498 ; Price z'. Dew- ' I Vern. 85 ; Brodie v. Barry, 2 V. hurst, 4 M. & Cr. 76, 82 ; Wms. Exrs. & B. 131 ; Freke v. Lord Carbery, L. R. 366. 16 Eq. 461. See act 24 & 25 Vict. ^ pg Vigny, /« r^, 1 3 L. T. N. S. 246 ; c. 114; the new English wills act. L'Fit z/. L'Batt, i P. Wms. 526. Modern jurisprudence favors the execu- * Wms. Exrs. 362. tion of wills with the same formalities, § I 70 EXECUTORS AND ADMINISTRATORS. [PART II. will clothe him with the needful ancillary authority to enable him to execute his local functions.' As to the probate tribunal and the general mode of administration, and to a certain extent in the construction of the will, the law of the place where the personal estate is situated, and where ancillary letters are sought, must prevail.^ § I 70. The same Subject ; American Doctrine. — In the United States the same general rules prevail as to probate and executors, subject, however, to much statute regulation. Probate and admin- istration are local, and the foreign executor has no authority as such which local tribunals are bound to obey.' It has been re- garded as not indispensable to the proof of a foreign will, in the courts of another place than that of the testator's domicile, that the foreign probate should be recorded in the domestic probate court ; though it must be shown in evidence that the will has been duly admitted to probate in the proper tribunal of the tes- tator's domicile.'* But it is now the American practice, fortified by local legislation, for the executor or other person interested " Wms. Exrs. 370; Enohin z'. Wylie, Gatti, Goods of, 27 W. R. 323. See as 10 H. L. Gas. 14. The duly appointed to Scotch assets, Sterling-Maxwell v. attorney of the person in interest may Gartwright, L. R. 9 Gh. D. 173; L. R. be selected to administer under the will 1 1 Gh. D. 522 ; Wms. Exrs. 363. Eng- upon the usual piinciples. Dost Ali lish courts have jurisdiction to adn\inis- Khan, Goods of, L. R. 6 P. D. 6. The ter trusts of a will as to the whole es- Enghsh statute 24 & 25 Vict. c. 114, t ate, both Scotch and English, though provides as to wills made by British the testator be domiciled in Scotland, subjects dying after August 6, 1861, that Ewing v. Ewing, 9 App. Gas. 34. every such will made out of the king- ^ Price v. Dewhurst, 4 M. & Cr. 76; dom shall, as regards personal estate, Reynolds v. Kortwright, 18 Beav. 417; be held to be well executed, if made ac- j«/;'rt, §§ 15-17. As to the will of a cording to the law of the place where it foreigner made in England, according was made, or where a testator w"as then to English law, see Lacroix, Goods of, domiciled, or where he had his domicile L. R. 2 P. D. 97 ; Gaily, Goods of, 24 of origin. See Wms. Exrs. 374. This W. R. 1018. changes much of the law previously in 'See supra, § 164. A court of one force in that country on the subject. State need not recognize the removal of Apart from such legislation (which does an e.xecutor there appointed, which the not apply to aliens) the will of a for- court of another State orders. Tillman eigner executed abroad with English v. Walkup, 7 S. G. 60. fomialities is not on that consideration ^Townsend z'. Moore, 8 Jones Eaw, entitled to English probate. Von Ru- 187; Jemison z/. Smith, 37 Ala. 185. seek, Goods of, L. R. 6 P. D. 211 ; 240 CHAP. VII.] FOREIGN AND ANCILLAKV APPOl.XTMENTS. § I?! in a will, which has been proved and allowed in any other of the United States or in a foreign country, to produce a copy of the will and of the probate thereof, duly authenticated, to the pro- bate court in any county of the domestic State in which there is any estate real or personal upon which the will may operate, or assets ; and upon his petition, after due citation and a hear- ing, the court orders the copy to be filed and recorded. This gives the will the same effect as if it had been originally proved and allowed in such domestic State. After the will is so al- lowed and ordered to be recorded, the court grants letters tes- tamentary or of administration with the will annexed, with a (jualification as circumstances may require, and proceeds to the settlement of the estate which may be found in such State.' §171. Whether Will, to be operative, must conform to the Lavv of Last Domicile. — Aside from Statute, a will to be operative must, according to the better authority, conform to the law of the place of the testator's last domicile.^ But, by statute, it is now quite frequently provided that a will executed out of the local jurisdiction, in conformity with the law of the place where made, shall effectually prevail within such local jurisdiction. The formal probate of such a will is the same as that usually pursued ; the testator's soundness of mind, capacity, and dispos- ' See Beers v. Shannon, 73 N. Y. 292 ; mine, see Loring v. Oakey, 98 Mass. Mass. Gen. Stats, c. 92 ; Parker v. 267. As to a foreign transcript indi- Parker, 11 Cush. 519; Leland z*. Man- eating no adjudication, see Illinois Cen- ning, 4 Hun (N. Y.) 7; Arnold v. Ar- tral R. v. Crazin, 71 111. 177. nold, 62 Ga. 627 ; Butler's Succession, An executor appointed in the State 30 La. Ann. 887 ; 66 Vt. 455. The copy where the testator was domiciled may of the will and of the decree of the accept the office in such State, and re- court of original jurisdiction are con- nounce it in the State of local assets, elusive, in the absence of fraud, of all\ Hooper v. Moore, 5 Jones L. 13c. ^ the facts necessary to the establishment The executor who applies for ancil- of the will, the regularity of the pro- lary letters testamentary is not reheved ceedings, etc. Crippen v. De.xter, 13 from giving bond with sureties as the Gray, 330. The object is to furnish ancillary court may require, notwith- genuine documentary proof of the orig- standing the testator's request nor the ex- inal probate. Helme v. Sanders, 3 emption allowed by the domiciliary court Hawks, 566. That the court of local of probate. Keith z/. Proctor, 114 Ala. assets is not to meddle with the domi- 676. And see §19. ciliary probate, or raise issues which - Story Confl. Laws, § 468 ; i Binn. properly belong to that forum to deter- 336; Stanley v. Bernes, 3 Hagg. 373 ; 16 241 § 1/2 EXECUTORS AND ADMINISTRATORS. [PART II. ing intent should appear ; and though the particular facts to be proved must depend upon requirements of the local law in which the will was executed, the same certainty of proof is essential as if the will had been made in the place of local jurisdiction.' There has been much conflict, and among continental jurists es- pecially, as to whether a will executed in accordance with the law, both of the place where made and of the testator's domicile at the time of its execution, shall be inoperative merely for not conforming with the law of the place of the testator's domicile at the time of his death ; ^ but even here the general rule ob- tains, requiring conformity to the law of last domicile under all circumstances ; w^hich rule, however, has been reversed by leg- islation as to personal property, if not as to property whether real or personal.^ A will need not have been executed according to the law of the State in which ancillary letters are desired, except that a will of real property must conform to the law of local situation.'' §172. Foreign and Domestic Administration. — Next, as to administration and the estates of intestates. Administration must be taken out in the State or country where there are as- sets to be administered, as well as in the country of the intes- tate's last domicile ; for, as we have seen, a local appointment can alone confer local authorit}'.^ Administration, whether prin- cipal or ancillary, aims in theory to distribute according to the law of the country in which the deceased had his last domicile ; and the right of ap])()intmcnt might well follow the interest ac- cordingly ; *" nevertheless, statutes in force at the place where jurisdiction is taken, practically control the subject. ^ Under, Moore v. Darrell, 4 Hagg. 346. But cf. -'^ Supra, § 22. Roberts's Will, 8 Paige, 519; Curling z/. ^ Wms. Exrs. 430 ; lohiistor, Goods Thornton, 2 Add. 6, 10. of, 4 Hagg. 182. A party who applies ' See Bayley v. Bailey, 5 Cush. 245. as agent of a non-resident entitled to * Moultrie v. Hunt, 23 N. V. 394 ; administer must exhibit proper author- In\-in's Appeal, 33 Conn. 128; Story ity. i Hagg. 93. Domiciliary admin- Confl. Laws, § 473. istrator may appeal from local grant. ^English act 24 & 25 Vict. c. 114; 17 N. E. 310. Bayley v. Bailey, 5 Cush. 245 ; supra, ' This subject receives consideration § 169. in c. 3, supra. It would appear that a * Langbein Re, i Demaiest, 448. foreign consul has no right, on ])rinciple 242 CHAP. VII.] FOREIGN AND ANCILLARY APPOINTMENTS. § 1 73 or independently of statute provisions, the rule generally obtains in England and our several States, that whenever an intestate foreigner or non-resident dies leaving estate to be administered in the local jurisdiction, administration of such estate may therein be granted ; such administration, in case of a grant in the jurisdiction where the intestate had his last domicile, be- coming ancillary to the principal grant. The law of the local situation of the personalty governs the grant of administration.' And the local statute may apply in general terms to those who die without the State, leaving property within the same to be administered upon, whether the deceased were alien or citizen.^ § 173- Foreign Appointment of Executors or Administrators Unavailable in Domestic Jurisdiction ; Local Letters required ; Ex- ceptions. — The executor or administrator appointed in one State or country has, therefore, no right of control, as such, over property in another State or country. As to external assets, he cannot interfere. He has no power to collect debts or incor- poreal personalty in such other State or country ; nor, perhaps, to discharge.^ He cannot control lands so situated.'* Nor can he be sued or defend a suit as executor or administrator in one State or country by reason of an appointment conferred in of mere comity, to take possession of a 190; Willing v. Peiot, 5 Rawle, 264; deceased foreigner's estate in a particu- Woodruff v. Schultz, 49 Iowa, 430. lar local jurisdiction. Local statutes, ^ Piquet, Appellant, 5 Pick. 65. which vest the right in a public adminis- ^ Supra, § 164; U. S. Digest, ist trator, or other local functionary, are series, Executors and Administrators, decisive of the local controversy. See As- 4432-4455; Sanders v. Jones, 8 Ired."" pinwall 7'. Queen's Proctor, 2 Curt. 241. Eq. 246; People z-. Peck, 4 111. 118; The Enghsh statute 24 & 25 Vict. c. Pond v. Makepeace, 2 Met. 114; Bea- 121, provides that the consul of a for- man v. Elliot, 10 Cush. 172; Chap- eign State may administer in English man v. Fish, 6 Hill, 555 ; McClure v. jurisdiction, where reciprocal rights are Bates, 12 Iowa, 77 ; Sabin v. Gilman, i secured by convention in such foreign N. H. 193; Cockleton v. Davidson, 1 State to British consuls. Wms. E.xrs. Brev. 15; Doe z/. McFarland, 9 Cranch, 430. But the nature of probate juris- 151; Kerr v. Moon, 9 Wheat. 556; diction in our several States forbids, Mansfield z>. Turpin, 32 Ga. 260; apparently, any treaty stipulation of this Union Mutual life Ins. Co. z'. Lewis, 97 kind on the part of the United States U. S. Supr. 682 ; Ferguson v. Morris, government. 67 Ala. 389. ' Isham 7'. Gibbons, i Bradf. (N. Y.) " Apperson v. Bolton, 29 Ark. 418; 60. Plummer v. Brandon, 5 Ired. Eq. ^3 § I 73 EXECUTORS AND ADMINISTRATORS. [PART II. another.' The well-settled rule is that administration operates of right only in the State or country where it was granted, and there may operate exclusively of all foreign appointment ; and that, before one can be recognized in a jurisdiction as personal representative of the deceased, he must be clothed with the cor- respondent probate authority which the sovereignty of that juris- diction is competent to confer, or at least to conform to require- ments which the local law sees fit to impose.'' To this rule, however, are exceptions, grounded in comity or favor. Some American States permit a foreign executor or ad- ministrator qualified abroad to sue for local assets belonging to the estate of the deceased, without qualifying under a local pro- bate appointment ; which permission, however, being in deroga- tion of sovereign right, the statutes which prescribe the terms of such suits, as by record, or otherwise, must be strictly fol- lowed. If qualified locally according to the laws of that particular State, by probate appointment or otherwise, he may sue and col- lect, of course.^ So have statutes permitted the non-resident executor or administrator to defend local suits on similar terms ; * or made him subject to suits by attachment 5 or otherwise, at least when the cause of action arose in the local forum.'' Foreign Sheldon v. Rice, 30 Mich. 296 ; 16 Neb. ."^tate administration granted upon bona 418. iiotabilia may enable the administrator ' Allsup 7'. Allsup, 10 Yerg. 2S3 ; to recover assets in the District of Curie 7'. Moore, i Dana, 445 ; Winter Columbia. Blydenburgh v. Lowry, 4 V. Winter, i Miss. (Walk.) 21 1; Ver- Cranch, C. C. 368. But the appointee milya v. Beatty, 6 Barb. 429 ; Norton v. of the District has the usual immunities. Palmer, 7 Cush. 523; Kerr v. Moon, Vaughan ;■. Northup, 15 Pet. i. The 9 Wheat. 565 ; Hedenberg v. Heden- foreign appointee on the estate of a berg, 46 Conn. 30 ; Patterson 7-. Pagan, domiciled citizen is not likely to be 8 S. C. 584; Sloan v. Sloan, 21 Fla. recognized in the domiciliary jurisdic- 589. A court of chancery cannot decree tion as having the right to sue or col- against a foreign administrator as such. lect. Southwestern R. v. Paulk, z.\ Ga. Sparks v. White, 7 Humph. 86. 356. * Turner v. Linam, 56 Ga. 253 ; Bells ^ Ilobart v. Connecticut Turnpike V. Nichols, 38 Ala. 678 ; Kansas Pacific Co., 15 Conn. 145 ; Crawford 7'. Graves, R. .'. Cutler, 16 Kan. 568; Moore v. 15 La. Ann. 243; Naylor v. Moffatt, 29 Fields, 42 Penn. St. 467 ; Price v. Mor- Mo. 126 ; Banta v. Moore, 15 N. J. Eq. ris, 5 McLean, 4 ; Naylor 7'. Moody, 2 97 ; 70 Cal. 403. Blackf. 247 ; Rockham v. Wittkowski~ ■* Moss v. Rowland. 3 Bush, 505. 64 N. C. 464. As to the running of * Cady z/. Bard. 21 Kan. 667. limitations against such foreign ap- ''Hopper v. Hopper, 125 N. Y. 400. pointee, see Bells v. Nichols, supra. A 244 CHAP. VII.] FOREIGN AXn ANXILLARV APPOINTMENT.S. § I 73 representatives, by virtue of the property belonging cither to the estate, or to themselves, or their own place of local residence, are sometimes made amenable in equity courts of the local juris- diction, as we shall see hereafter, for fraudulent conduct and delinquency in their trust, or intermeddling ; a principle which runs deep in chancery practice.' And local statutes enable for- eign executors or administrators to sell or deal with real estate in the local situs for due administration purposes, or to transfer local stock, or to perform various other specified acts in the local jurisdiction.' The executor or administrator appointed in another State has been permitted to maintain an action on a judgment there re- covered, on the ground that such suit need not be brought in the official character.^ Also by indorsement or without it, as the case may require, to enable his assignee or transferee to sue on a negotiable instrument or other written evidence of debt in another State, although he might not have sued directly upon it as a representative of the deceased ; ■♦ and, indeed, one might, in his own name, sue on a negotiable instrument payable to bearer, its production in the local court affording prima facie evidence of the right to sue and collect. 5 The right of a for- eign executor or administrator to assign or indorse in such ca- pacity, so as to confer a right to sue in the foreign local court, 'See Montalvan v. Clover, 32 Barb. %>. O'Neal, 3 Siieed. 55; Slauter v. 190; Evans v. Tatem, 9 S. & R. 252; Chenowith, 7 Ind. 211 ; Trecothick v. Field V. Gibson, 56 How. (N. Y.) Pr. Austin, 4 Mason, 16; Biddle j/. Wilkins, 232; Colbert z*. Daniel, 32 Ala. 314; i Pet. 686; 70 Cal. 403. But the fact Patton z/. Overton, 8 Humph. 192; Tun- that a foreign administrator had recov- stall V. Pollard, 11 Leigh, i ; Powell v. ered judgment as such will not entitle Stratton, 11 Gratt. 792. The rule of him to sue in Georgia, save upon corn- charging a foreign e.xecutor who has pliance with the local requirement of not taken out local letters is not uni- filing a copy of his letters. Buck v. formly asserted, and gives rise to van- Johnson, 67 Ga. 82. ous opinions. See Story Confl. Laws, ■• Peterson v. Chemical Bank, 32 § 514 b, and notes. N. V. 21 ; Leake v. Gilchri.st, 2 Dev. L. ^ See WilUams v. Penn. R., 9 Phila. 73. Bond and mortgage may be thus (Pa.) 29S ; local codes; rights of execu- assigned so as to confer a right to fore- tors, etc., as to real ei^tate, /^^j/* ,• Luce close. Smith v. Tiffany, 16 Hun, 562. V. Manchester R., 63 N. H. 588. Cf. 20 S. C. 167. ^ Talmage 7'. Chapel, 16 Mass. 71; ^ g^rrett v. Barrett, 8 Greenl. 353; Barton ?■. Higgin.s, 41 Md. 539 ; Young Robinson p. Crandall, 9 Wend. 425. 245 § 174 EXECUTORS AND ADMINISTRATORS, [part II. has, however, been questioned.' Upon a contract made with himself, as executor or administrator, a foreign executor or ad- ministrator may sue^ or be sued.^ § I 74. Principal and Ancillary Letters ; Comity as to transmit- ting Assets for Distribution, after Local Debts are satisfied. — The estate of a deceased person is, substantially, one estate, and in this sense the residuary legatees or distributees are interested in it as a whole, even though it be spread through various juris- dictions ; while, as a rule, each administration must be settled, so to speak, in the jurisdiction where it was granted. When any surplus remains in the hands of a foreign or ancillary ap- pointee, after paying all debts in that jurisdiction, the foreign court will, in a spirit of comity and as a matter of judicial dis- cretion, order it to be paid over to the domiciliary executor or administrator, if there be one, instead of making distribution ;* in which case, the fund is applicable to debts, legacies, and ex- penses at the principal jurisdiction, as well as to distribution. s ' Stearns v. Buinham, 5 Greenl. 261 ; Thompson f. Wilson, 2 N. 11. 291. - Lawrence r. Lawrence, 3 Barb. Ch. 71; Barrett v. Barrett, 8 CJreenl. 346; Du Val V. Marshall, 30 Ark. 230 ; Trot- ter z/. White, ID Sm. & M. 607; Story Confl. Laws, §§ 513, 516, 517. " The administrator, by virtue of his appointment and authority as such, ol> tains the title in promissory notes or other written evidences of debt, held by the intestate at the time of his death, and coming to the possession of the ad- ministrator, and may sell, transfer and endorse the same; and the purchasers or endorsees may maintain actions in their own names against the debtors in another State, if the debts are negoti- able promissory note.s, or if the law of the State in which the action is brought permits the assignee of a chose in ac- tion to sue in his own name." Mr. Jus- tice Gray, in Wilkins v. Ellett, 108 U. S. 256, 258. Ste § iy6,/>osf. The principal administrator, unless forbidden by statute, may sell and assign stock of a local corporation where no ancillary administration exists. Luce 7/. Manchester R., 63 N. H. 588. A State which charters a corporation is its domicile in reference to the debts which it owes, for there only can it be sued or found for the service of process. This is now changed considerably by legisla- tion, so that a corporation of one State doing business in another is made su- able. See N. E. Mutual Life Ins. Co., Ill U. S. 138; 96 U. S. 369; Railroad Co. z'. Harris, 12 Wall. 65. Injunction refused to prevent a foreign executor from removing assets from the jurisdiction, where no especial grounds demanding relief were shown. 51 N. Y. Super. 441. ^ Johnson ?'. Wallis, 112 N. Y. 230, distinguishing such liabilities as were purely based upon transactions of the decedent. ■• Wright V. Phillips, 56 Ala. 69. 5 Such transmission is natural and 246 CHAP. VII.] FOREIGN AN.D AXCILLAKV APPOIXTMENTS. § 1/4 The rule to thus pay over is not, however, absokite ; on the con- trary, the transfer will not be made if deemed, under the cir- cumstances, improper ; ' and legislative policy is to secure the rights of its creditors and citizens at all hazards. The legal per- sonal representative constituted by the forum of the domicile of a deceased intestate is usually the person entitled to receive and give receipts for the net residue of his personal estate ob- tained in any country.^ And to such legal representative, and not to an ancillary one, claimants who are not creditors of the estate, and especially legatees, residuaries and distributees, should report for the allowance of their respective rights.^ Distribution of the estate, and the rights of legatees and of the surv'iving husband or widow, affecting the surplus, should be regulated by the law of the domicile of the testator or intestate, at the time of his decease.-* But as to the payment of local debts out of the local assets, or of local funeral or burial expenses, properly chargeable against the estate, the law of the place under which an ancillary ad- ministration is taken, must govern ; 5 and the satisfaction of local creditors, in full or pro rata, according as the general proper where it appears that no debts diction was a foreign one. Aspden v. were owing in the ancillary jurisdiction. Nixon, 4 How. 467. And if doubts Wright J'. Gilbert, 51 Md. 146. Where arise as to the genuineness of foreign a foreign distributee is an infant, this is claims to the residue, as against domes- preferable to ordering payment to Iris tic distributees or the State itself, this " foreign guardian." Twimble &. Dzied- might furnish reason for holding back zyiki, 57 How. (N. Y.) Pr. 208. See the fund for inquiry, also Wms. Exrs. 1664, and Perlcins's ^Eames v. Hacon, 50 L. J. Ch. 740. note; Story Confl. Laws, §513; Low ^ Brown v. Brown, i Barb. Ch. 189; V. Bartlett, 8 Allen, 259; Mackey v. Richards z/. Dutch, 8 Mass. 506 ; Camp- Coxe, 18 How. (U. S.) 100; Hayes v. bell v. Sheldon, 13 Pick. 23; Russell Pratt, 147 U. S. 557. V. Hooker, 67 Conn. 24. ' Williams v. Williams, 5 Md. 467 ; "■ Churchill v. Prescott, 3 Bradf. (N. Lawrences. Kitteredge, 21 Conn. 577; Y.) 233; Ordronaux z/. Helie, 3 Sandf. Gilchrist J*. Cannon, i Coldw. 581 ; For- Ch. 512 ; Goodall v. Marshall, 11 N. H. ter V. Heydock, 6 Vt. 374 ; Fretwell v. 88 ; Jones v. Gerock, 6 Jones (N. C.)) Lemore, 52 Ala. 124; Harvey v. Rich- Eq. 190; Tucker v. Candy, 10 Rich, ards, I Mason, 381 ; Hughes, Re, 95 Eq. 12. N. Y. 55. As between different States, ' lb. And see Wms. Exrs. 1664 and assets will be more readily transmitted Perkins's note. As to such funeral or inavoidanceof claimants of the re.sidue, burial expenses, see 165 Ma.ss. 240. semble, than where the domiciliary juris- 247 § 174 EXECUTORS AND ADMINISTRATORS. [PART II. • solvency or insolvency of the estate may require, or the local statute prescribe, is incumbent upon the ancillary administra- tor, before he remits the balance to the foreign executor or ad- ministrator.' Domestic distributees may also have an interest in the questions of transmitting the assets.^ For the spirit of comity does not require that citizens shall be put to the incon- venience and expense of proving and collecting their claims abroad when there are assets at hand, or that local rules for distributing an insolvent's estate shall yield to foreign ; nor, on the other hand, can it approve of the absorption of local assets by local creditors, to the prejudice of creditors at the domicile ; but what it asks is, that the local estate shall, as far as practi- cable, be so disposed of that all creditors of the deceased, in whatever jurisdiction, shall receive their proportional share, if the estate be insufficient to pay them in full.^ Where there are distributees or legatees locally resident, and no domiciliary cred- itors, the ancillary jurisdiction is indisposed to transmit local assets to the domiciliary jurisdiction, regardless of such local claimants.'' Not only does the place where letters are locally granted gov- ern as to the local grant of letters and the rules for settlement of local debts, but the accountability of an administrator for all assets received in one State or country, and all questions as to the faithful or unfaithful discharge of his duties and his liability therefor are rightfully decided by the laws, solely, of the State or country where he is appointed. 5 'Davis z/. Est ey, 8 Pick. 475 ; Mitch- v. Kennedy, 8 Ala. 391 ; Marrion v. ell V. Cox, 22 Ga. 32; Normand v. Titsworlh, 18 B. Mon. 582; Grant v^ Grognard, 14 N. J. L. 425. Reese, 94 N. C. 720. As to a -widow's ^151 Mass. 604. petition to a foreign jurisdiction to have 3 lb. the administrator removed, see 50 Mich. *Welles's Estate, 161 Penn. St. 218. 22. Local a.ssets should be retained * Partington v. Attorney-General, L. long enough to give every local creditor R. 8 H. L. 100, 119; Fay z'. Haven, 3 the usual statutory recourse, notwith- Met. 109; Hooper v. Olmstead, 6 Pick, standing his right of action does not at 481 ; Heydock's Appeal, 7 N. H. 496; once accrue. Newell v. Peaslee, 151 Lawrence v. Elmendorf, 5 Barb. 73; Mass. 601. McGehee v. Polk, 24 Ga. 406 ; Kennedy 248 CHAP. VU.] FOREIGN' AND AN'CII.LARV APPOINTMENTS. § I 75 § 175- I^uty of the Domestic Representative as to Foreign As- sets. — The earlier rule frequently asserted in England in one loose form or another, is that assets in any part of the world shall be assets for which the domestic executor or administra- tor is chargeable ; the practical effect being to enjoin upon the principal personal representative the duty of procuring, so far as foreign law and the peculiar circumstances will permit, personal assets wherever situated ; realizing the bulk of the estate of his decedent as best he may, gathering in the property as one who represents the whole fortune, and having gathered it, account to those interested accordingly.' Some of the judicial expres- sions on this point, to be sure, import too onerous a responsibil- ity on the representative's part ; and Mr. Justice Story has pointed out the fallacy of holding a domestic executor or ad- ministrator answerable for foreign property which it is admitted that he can neither collect nor sue upon, nor compel its pay- ment or delivery to himself by virtue of his domestic appoint- ment ; ^ foreign property, we may add, of whose existence, or of the grant of foreign administration for realizing it as assets, he may be quite unaware. ^ And yet, to let external assets knowingly escape his control, and be lost to the estate, when with reasonable diligence they might have been procured, seems a plain dereliction of duty in the principal or domiciliary representative ; whose function, as rightly understood, is to grasp the whole fortune, as the dece- dent did during his life, save so far as the obstructive law of foreign situs or the limitations of his own appointment may re- strain him. If, therefore, assets cannot be collected and real- ized for the benefit of the estate, without a foreign ancillary ap- pointment, the executor or administrator of the decedent's last domicile ought (so far as may be consistent with his information, the means of the estate at his disposal and the exercise of a sound discretion), to see that foreign letters are taken out and 'Touchst. 496; Wm. Exrs. 1661, ^ Story Confl. Laws, §514 a, com- 1662 ; Attorney-General v. Dimond, i menting upon Dowdale's Case, Cro. Jac. Cr. & Jerv. 157; Attorney-General v. 55, 6 Co. 47 b. Bouwens, 4 M. &. W. 171, 192. Mb. 249 § 175 EXECUTORS AND AIV.riXISTRATORS. [PART II. that those assets are collected and realized, and the surplus transmitted to him. If, as frequently happens, the domestic representative may collect and realize such property in the do- mestic jurisdiction, as by selling negotiable bonds, bills, notes or other securities, payable abroad ; or by delivering bills of lading or other documents of title (indorsing or assigning by acts of his own which would be recognized as conferring the substantial title in such foreign jurisdiction), or otherwise by ef- fectually transferring property of a chattel nature, situated or payable elsewhere, which is capable, nevertheless, of being trans- ferred by acts done in the domestic jurisdiction, he should be held accountable for due diligence as to such net assets.' And so, too, if he may enforce the demand against the debtor, without resort to the foreign jurisdiction.^ If, however, foreign letters and an ancillary appointment at the sij?is be needful or prudent, in order to make title and to collect and realize such assets, the principal representative should perform the ancillary trust or have another perform it, observing due diligence and fidelity, according as the laws of the foreign jurisdiction may permit of such a course ; and if, in accordance with those foreign laws, a surplus be transmitted to the principal and domiciliary repre- sentative, or otherwise transferred, so as to be held by him in such capacity for payment and distribution, he will become lia- ble for it, accordingly. 3 Whether, then, the principal or domiciliary representative be required /;v forma or not, to include in his inventory assets which come to his knowledge, either situate in the State or country of principal and domiciliary jurisdiction, or out of it, his liability, as to assets of the latter .sort, depends somewhat upon his means of procuring them, and the fact of an ancillary ad- ' Attorney-General v. Bouwens, 4 M. diction of the appointment. Merrill v. & W. 171, i()2, per Lord Abinger; Tre- N. E. Mut. Life Ins. Co., 103 Mass. 245. cothick V. Austin, 4 Ma.son, ■^t, ; Hutch- ^ Attorney-General v. Dimond, i Cr. ins V. State Bank, 12 Met. 421 ; Butler, & Jerv. 370; Ewin, In re; 1 1 Cr. & Jerv. Estate of, 38 N. Y. 397. 157; Wms. Exrs. 1661 ; Jennison v. ^As where the principal representa- Hapgood, 10 Pick. 78; Clarke. Black- tive holds the evidence of the demand ington, 1 10 Mass. 372 ; Stokely's Estate, or the document of title, and finds the 19 Penn. St. 476. debtor or his property within the juris- 250 CHAP. VII.] FOREIGN AND ANCILLARY APPOINTMENTS. § 1 76 ministration in the situs of such assets.' In any case he is bound to take reasonable means, under the circumstances, for collecting and realizing the assets out of his jurisdiction ; nor is his liability a fixed, absolute one, but dependent upon his con- duct ; and it is getting the foreign assets into his active control that makes a domestic representative chargeable as for the property or its proceeds, rather than the duty of pursuing and recovering such assets.' If assets situated in another jurisdiction come into the pos- session of the executor or administrator in the domiciliary juris- diction, by a voluntary payment or delivery to him, without administration there, it follows that he should account for them in the domiciliary jurisdiction whose letters were the recognized credentials in the case.^ And it is held in several American cases, consistently with this rule, that, no conflicting grant of authority appearing, the domiciliary appointee of another State may take charge of and control personal property of the de- ceased in the State of its situs.-* § I j6. Voluntary Surrender of Assets in Local Jurisdiction to Domiciliary Administrator. — The powers of a representative be- ing referable to the laws of the country or State from which he derives his authority, a foreign executor or administrator can only collect assets in another jurisdiction by virtue of a legisla- tive or sovereign permission. Such legislative permission is accorded on various terms ; and the terms of such permission must be complied with.' We have seen that the representative is usually confined, in suits for the recovery of assets, to the territorial jurisdiction of his appointment, and, subject to an ancillary appointment, to procuring the residuum, after satisfying the claims and rights of residents in the ancillary jurisdiction.'' ' See Schultz v. Pulver, 1 1 Wend. v. Brashear, 2 B. Mon. 380 ; Denny v. 363; Butler, Estate of, 38 N. Y. 397. Faulkner, 22 Kan. 89. '^ See Wms. Exrs. 1664, and Perkins's ^ Harrison v. Mahorner, 14 Ala. 843 ; note if Young v. Kennedy, 95 N. C. 265) supra, § 173. * Van Bokkelen v. Cook, 5 Sawyer, ^ Supra, § 174. Wherever the title C. C. 587. to the corporeal thing, or incorporeal * Vroom z\ Van Horn, 10 Paige, 549. right owned by the decedent, becomes Parsons v. Lyman, 20 N. V. 103 ; Barnes so perfected in the representative under 251. § 1/6 EXECUTORS AND ADMINISTRATORS. [PART II. But may not the title and authority of a foreign domiciliary rep- resentative be voluntarily recognized and debts paid him, or other assets voluntarily surrendered to him there ? The doc- trine of the English courts is, that such payment or surrender affords no protection against the claim of a local administra- tor." A preference for the English doctrine seems to be ex- pressed in Justice Story's treatise, though he had judicially affirmed the contrary in a circuit decision.'' The Supreme Court of the United States, however, has maintained the validity of such payments or delivery of the assets, as between different States, so as to discharge the local debtor or possessor ; and the general current of American authority supports this doc- trine ; there being, it is assumed, when such payment or delivery was made, no local administration. ^ But this rule cannot be upheld, to the extent of violating the local law of the jurisdic- tion where the assets lie ; and each State or country has the right to enlarge or limit the privilege and to prescribe the terms upon which it shall be conceded, or to deny it altogether.'* Wherever the domiciliary executor or administrator may pro- cure assets of the deceased from the local jurisdiction, without the foreign administration, that a local the payment is a valid discharge every- and domestic appointment would be in- where. If the debtor being in that appropriate, he should be permitted to State is there sued by the administra- procure or sue, as it seems, without a tor, and judgment recovered against local appointment. Purple v. Whithed, him, the administrator may bring suit 49 Vt. 187. in his own name upon that judgment in ' Whart. Confl. Laws, § 626 ; supra, the State where the debtor resides." § 172. See Eames v. Hacon, 50 L. J. Mr. Justice Gray in Wilkins v. Ellett, Ch. 740. ib. supra, § 173. ^ Story Confl. Law.s, §515 a : Treco- ■• Ib. Perhaps this doctrine of vol- thick V. Austin, 4 Mason, 16. untary recognition is especially to be ^ Mackey v. Coxe, 18 How. 104; favored where payment or delivery was Hutchins z*. State Bank, 12 Met. 425 ; made to the domiciliary executor under Wilkins f. Ellett, 9 Wall. 741 ; Parsons a probated will. See Shaw, C. J., in V. Lyman, 20 N. Y. 103 ; Abbott 7/. Mil- Pond v. Makepeace, 2 Met. 1 14. Where ler, 10 Mo. 141 ; W^hart. Confl. Laws, a debtor makes payment of a naked § 626 ; Hatchett v. Berney, 65 Ala. 39, debt to the principal administrator of per Brickell, C. J. ; Citizens' Bank v. his foreign creditor, he may be com- Sharp, 53 Md. 521 ; Wilkins v. Ellett, pelled to pay it again to a domestic 108 U. S. 256, 258. "If a debtor, re- representative subsequently appointed, siding in another State, comes into the and suing for it in the debtor's own State in which the administrator has jurisdiction. Young?'. O'Neal, 3 Sneed. been apiiointcd, and there pays him, 55. Cf. Mackey v. Coxe, supra. 252 CHAF. Vll.] FOREIGN AM) ANCILLARY APPOINTMENTS, § I 7/ being obstructed by local claimants upon the estate, or by a local executor or administrator, and without having to invoke the aid of the local courts, his rights are favorably regarded in many of the later decisions. For, if local claims are satisfied out of the estate, the local sovereignty can rarely complain.' § 177- Liability of Representative in Domestic Jurisdiction for Acts done Abroad. — How far executors or administrators are liable in a domestic jurisdiction for acts done abroad, does not appear clearly settled ; and different States or countries may be expected to uphold their own legislative policy in preference to external systems. Beyond what has been already stated as to holding a domestic representative responsible for assets received from abroad, and requiring a principal representative to pursue assets in an ancillary jurisdiction, it would appear that a legal liability upon one's domestic statutory bond should be construed somewhat strictly with reference to the statute in question.^ But one may be charged in equity, as trustee, for the misappli- cation of funds received from abroad. And in some States it is held that, if foreign executors or administrators come within the jurisdictional limits of the State, they are liable to be held by creditors or to be brought to account by legatees or dis- tributees;^ while in other States the rule appears to be, that the representative cannot be sued elsewhere, even on a judg- ment rendered against him in the State of his appointment, or, at all events, if charged in his representative character, and not de bonis propriis.'^ ' An executor or administrator under jurisdictions may have rendered requi- letters granted at the domicile of the site for local protection. 51 N. J. L. 78. deceased may receive and discharge ^ Cabanne v. Skinker, 56 Mo. 357. debts voluntarily paid him in another ^ Johnson v. Jackson, 55 Ga. 326; jurisdiction; may transfer negotiable Swearingen v. Pendleton, 4 S. & R. choses in action so as to enable the 389; Gulick v. Gulick, ^o Barb. 92. transferee to sue in his own name in See this subject discussed with conflict- the courts of another State; and may ing citations. Story Confl. Laws, § 514, receive dividends on and sell and trans- b ; Wms. Exrs. 362, 1929, and Perkins's fer stock in a corporation of another notes. State. All this, inasmuch as domiciliaiy '•Pond v. Makepeace, 2 Met. 114; letters vest the entire personal estate, Willard v. Hammond, 21 N. H. 382 ; subject to the limitations which other Wms. Exrs. 362, note by Perkins. Ex- § 178 EXECUTORS AND ADMINISTKATORS. [PART II. § 178. Permitting Foreign Creditors to sue in the Local Juris- diction. — Upon reciprocal terms, foreign creditors are some- times permitted to come into the domestic jurisdiction and prosecute their claims against the local assets ; not, however, in such a way as to gain an advantage over domestic creditors ; and, in general, they may fairly be required to exhaust the for- eign assets before attempting to have domestic assets subjected to their claims.' Furthermore, a judgment rendered against the foreign administrator furnishes no right of action against the domestic administrator unless it appears that the latter has transmissible assets.- But a judgment against one, in his character of executor or administrator, is not usually entitled to operate in another State w^ith greater extent or force than in the State where it was re- covered. ^ And where a demand against the estate of a deceased non-resident is barred by the laws of the State where he was domiciled at the time of his death, it is equally barred in another State.4 The attempt of a domiciliary creditor, who cannot prosecute his claim in the jurisdiction of last domicile, to enforce that claim upon assets, by procuring letters in another jurisdiction, is not to be countenanced; and letters procured by him, on the allegation that he is a creditor, are improperly obtained. 5 ecutors cannot be called to account in also warrant it in imposing on him a a State wherein the will has not been similar restraint with regard to proceed- proved. Cocks v. Varney, 42 N. J. Eq. ing in a foreign court. But it is held in 514. England that chancery is not warranted, ' Fellows V. Lewis, 65 Ala. 343 ; even where an administration decree Morton v. Hatch, 54 Mo. 408. has been obtained, to restrain a foreign ^ Carrigan v. Semple, 72 Tex. 306; creditor from proceeding in a foreign 28 Tex. 503; Ela v. Edwards, 13 Allen, court against the administrator. Carron 48; Stacy V. Thrasher, 6 How. 57. Iron Co. v. Maclaren, 5 H. L. Cas. 416; ^ Coates V. Mackey, 56 Md. 416. Crofton v. Crofton, 29 W. R. 169. A * Wernse v. Hall, loi 111. 423. judgment obtained, however, against * Wernse v. Hall, loi HI. 423. If the administrator by default in such the circumstances of a case are such as proceedings would appear to be only would make it the duty of one domestic prima facie evidence of the debt. Crof- court to restrain a party from proceed- ton v. Crofton, 29 W. R. 169. ing in another domestic court, they will 254 CHAP. VII.] FOREIGN AND ANCILLARY APPOINTMENTS. § I 79 § I 79. Principal and Ancillary Jurisdictions, ho'w far Independ- ent of One Another. — It is held, in the Supreme Court of the United States, that different executors of the same testator, appointed by his will in different States, are in privity with each other, and bear the same responsibihty to creditors of the tes- tator as if there were only one executor ; and hence, that a judgment against the executors in one State is evidence against those in another State.' But as to administrators, whose ap- pointments are necessarily derived from different sovereign jurisdictions, there is no such privity; and, according to the uni- versal American rule, where uncontrolled by local statute, so independent are different ancillary administrations of the prin- cipal administration and of each other, whether in case of testacy or intestacy, that property and assets received in the one forum cannot be sued for nor its application compelled in another, nor can a judgment obtained in one such jurisdiction furnish con- clusive cause of action in another.^ But the forum of original administration is the forum in which the final account is to be made ; and this forum, though treat- ing the allowance of probate accounts in the ancillary jurisdic- tion as, for the most part, conclusive of items there so returned, sometimes reviews independently fundamental questions involv- ing fraud and error in such ancillary administration, and affect- ing the distribution of the estate.^ Foreign executors and administrators cannot merely by virtue of their offices either prosecute or defend actions in the courts ■ Hill z/. Tucker, 13 Plow. 458 ; Good- ment, see Barton v. Higgins, 41 Md. all V. Tucker, ib. 469. 539; Talmage v. Chapel, 16 Mass. 71. ^ Mr. Justice Wayne in Hill v. Tucker, The possession of land by the local ad- siip7-a ; Harvey v. Richards, i Mason, ministrator for local administration can- 415, /^r Mr. Justice Story; Taylor v. not be disturbed by the foreign and Barron, 35 N. H. 484 ; Wms. E.xrs. 363, domicihary executor for the purpose of and Perkins's n. ; King v. Clarke, 2 selling, until such local debts and ad- Hill (S. C.) Ch. 611; 2 Kent Com. ministration charges are settled. Ap- 434; Fay V. Haven, 3 Met. 109, and person z/. Bolton, 29 Ark. 418; Sheldon cases cited ; Hedenberg v. H'edenberg, v. Rice, 30 Mich. 296. 46 Conn. 30; Magraw v. Irwin, 87 ^ Clark v. Blackington, no Mass. Penn. St. 139; McCord v. Thompson, 369; Ela v. Edwards, 13 Allen, 48; 92 Ind. 565. But as to foreign judg- Baldwin's Appeal, 81 Penn. St. 441. § l80 EXECUTORS AND ADMINISTRATORS. [PART II, of Other States or countries.' The disability is, however, re- moved in some instances by local statute ; - and in others by bringing part of the assets into the jurisdiction. ^ And in the cases where the representative is not permitted to sue as such, in a foreign jurisdiction, it is usually found that the subject- matter of the suit is the subject of local administration within such foreign jurisdiction.'* Nor is an executor or administrator suable, as a rule, in a foreign jurisdiction.5 § 1 80. Responsibility "wrhere the same Person is Principal and Ancillary Representative. — The want of privity between differ- ent administrators in different States has been so much insisted upon in this country, that American authorities may be found, apparently to the effect that a person who is administrator of the same estate in different States, and who has received assets under both administrations, cannot be compelled to account for any such assets, except in the place where they were received.^ We apprehend that this is not entirely accurate, inasmuch as a point may be reached where the transfer of surplus assets from the ancillar}' to the principal administrator may be said to have actually taken place ; and because, moreover, as we have shown, the principal is so far related to the ancillary administrator, meanwhile, that a certain duty exists of which he cannot divest himself, namely, to hold the latter to his trust of making a transfer in conformity with the local law. And in accordance with this latter view, it is ruled that where the administration, ' Vaughan v. Northup, 15 Pet. i: the ancillary' jurisdiction or not. Du Noonan v. Bradley, 9 Wall. 394 ; Story Val v. Marshall, 30 Ark. 230. Confl. Laws, § 513; Wms. Exrs. 1641. -' Jefferson i. Beall, 117 Ala. 436, and * See § post. cases cited. " The accepted theory of ' Supra, § 25. But see Martin v. administration is that the right and lia- Gage, 17 N. E. 310. bility is purely representative, and exists * Purple V. Whithed, 49 Vt. 187; only by force of the official character, Kilpatrick v. Bush, 23 Miss. 199. Where and so cannot pass beyond the jurisdic- an ancillary administration is had, the tion which grants it, and reserves to executor or administrator of the domi- itself full and exclusive authority over cile cannot withdraw or dispose of the all the assets of the estate within its anciUary assets, by direct or indirect limits." 117 Ala. 439. means, until the ancillarj- administration •" Stacey t'. Thrasher. 6 How. 44 ; is settled, whether debts are found in Aspden v. Nixon, 4 How. 467 ; com- 256 CHAP. VII.] FOREIGN AND ANCILLARY APPOINTMENTS. § l8l both at home and abroad, has been taken out by the same per- son, the presumption is that he has done his duty ; and when he comes to settle his account in the State where distribution is to be made, he cannot deny that he has received what the foreign administrator, if he had been a different person, would have been compelled to pa}-, and what he would have been bound in duty to demand and get.' And the rational rule is that, the full and final settlement being made in the jurisdiction of last domicile, the principal representative must be held to account in the domiciliary jurisdiction for the whole of the per- sonal property which has come to his hands, wherever found, or by whatever means collected ; so that if he has a surplus in his hands arising out of the administration elsewhere, after pay- ing the expenses of administration and discharging his own liabilities there, he becomes accountable for it in the domiciliary jurisdiction in the same manner as he would be if another had been appointed administrator and had paid o\cr a balance.^ But where the same person is appointed administrator in two different States, each with its own separate fund for the due settlement of debts, funeral and burial expenses and adminis- tration charges, he is not bound to see that either estate is exonerated at the expense of the other, but should administer and dispose of each fund in good faith as the local law may re- quire, so as to satisfy local claims.^ § I 8 1 . Aucillary or Local Representative, how far Responsible for Assets. — Since the ancillary or local representative repre- sents only the assets of his particular jurisdiction, he is not re- sponsible for assets in other jurisdictions ; nor in such capacity alone, and independently of some appointment conferred in the jurisdiction of the decedent's last domicile or residence, does it appear that he has any right to follow assets elsewhere. His duty is to apply the local assets as the local laws may have de- mented upon in Story Confl. Laws, * Jennison v. Ilapgood, lo Pick. 77, § 529 (<■ 100. ■ Black. C. J., in Stokely's Estate, 19 ^ Cowden v. Jacobson, 165 Mass. 240. Penn. St. 476, 482. And see Baldwin's Appeal, 81 Penn. St. 441. 17 257 § 183 EXECUTORS AND ADMINISTRATORS. [PART II. termined ; paying local creditors, as such laws usually direct, and remitting the surplus as the local court may order. But even an ancillary and local administrator, who receives assets from some jurisdiction to which his authority did not extend, has no right to pervert them to his own use.' An ancillary or local administrator has no authority, under the general limitations imposed by the rule of comity, to allow and pay claims of residents of the State or country where the principal administration was granted, especially where the claims originated abroad.^ § 182. Where different Executors are named in a "Will for dif- ferent Sovereign Jurisdictions. — We have seen that a testator may name one executor or set of executors for one State or country, and another for another State or country.^ And if, in doing so, he confines their duties to their respective jurisdic- tions, the case is not one of principal and auxiliary appoint- ments. The fact that the executor of one locality has the same right to control assets here that the executor of another locality has to control assets there, is hostile to the supposition that the executor of the last domicile shall be bound to charge himself with the assets abroad. The executor of last domicile may well demand that the assets be surrendered to him ; but there his duty ends, provided he has not the means to compel the sur- render of such assets."* § 183. Where the Principal Representative cannot procure Foreign Assets, Legatees or Distributees may pursue. — Where, by reason of the law in the jurisdiction of foreign administra- tion, or otherwise, it appears impracticable for the domestic rep- ' See Bald\s-in's Appeal, 81 Penn. St. the same footing as other administra- 441 ; Wms. Exrs. 432; Fay v. Haven, tions. Carr 71. Lowe, 7 Heisk. 84. See 3 Met. 109; Norton v. Palmer, 7 Cush. Cureton v. Mill.s, 13 S. C. 409. 523. Local statutes may be found to - Story Confl. Laws, §§ 334, 336, 337 ; modify these rules. In some States 2 Kent Com. 434; Shegogg v. Perkins, there is no statutory provision for ancil- 34 Ark. 117 and cases cited in the lary admini.strations as a distinct spe- opinion of the court; sitpra, § 15. cies ; but administrations granted upon ^ Supra, % ^,2. the estates of non-residents stand upon *■ Sherman v. Page, 85 N. Y. 123. 258 CHAP. VII.] FOREIGN AND ANCILLARY APPOINTMENTS. § I 83 resentative, appointed in the decedent's last domicile, to procure the control of the foreign assets or surplus of foreign adminis- tration, it remains for the legatees or distributees, by such pro- cedure in the foreign jurisdiction as may be suitable, to obtain what belongs to them ; and if the name of the domestic repre- sentative should be needful in such proceedings, the use of it may be granted upon proper terms.' ■ Sherman v. Page, 85 N. Y. 123, 129. 259 § i84 EXECUTORS AND ADMIMSTRATORS. [PART H, CHAPTER VIII. OFFICIATING WITHOUT AN APPOINTMENT. § 1 84. Executor de son Tort at Cominoii Law defined. — Eng- lish ecclesiastical law has long" applied an ofhcial name to an un- official character ; styling as executor dc son tort (or executor of his own wrong) whoever should officiously intermeddle with the personal property or affairs of a deceased person, having received no ap}:)ointment thereto. This designation is not apt, since it applies the term " executor " as well to intestate as to testate estates, and signifies, moreover, that the person who intruded his services had no legal authority in any sense. But courts have not clearly discriminated in the definition.' In several American States the title executor de son tort is now simply re- pudiated ; ^ and yet one's exercise of functions which properly ' Wms. Exis. 257 ; Bennett v. Ives, 30 Conn. 329 ; Wilson v. Hudson, 4 Harr. 168 ; Barron v. Burney, 38 Ga. 264; Brown v. Durbin, 5 J. J. Marsh. 170; White V. Mann, 26 Me. 361 ; Leach <■. Pittsburg, 15 N. H. 137; Emery v. Berry, 8 Fost. 473 ; Scoville V. Post, 3 Edw. (N. Y.) 203; Hubble I/. Fogartie, 3 Rich. 413. WilUams ob- serves (Wms. Exrs. 7th ed. 257, «.) that the definition of an executor de sou tort by Swinburne, Godolphin, and Went- worth, is in the same words ; viz. : " He who takes upon himself the office of executor by intrusion, not being so con- stituted by the deceased, nor, for want of such constitution, substituted by the [ecclesiastical] court to adminis- ter." Swinb.pt. 4, § 23, pi. I ; Godolph. pt.2, c. 8, § I ; Wentw. Off. Ex. c. 14, p. 320, 14th ed. "But," adds WilHams, "the tenn is, in the older books, some- times applied to a lawful executor who mal-administers ; as by the I-ord Dyer in Stokes v. Porter, Dyer, 167 a." All this might seem to intimate that the stigma was originally applied with exclu- -sive regard to estates where the deceased person had left a will. But the modern cases above cited make it clear that the significance of executor de son tort is not so confined in modern practice; for the rule now is that a party intermed- dling with the estate of a deceased per- son, and doing acts which an executor or administrator alone may do, will make himself liable as executor de son tort. =" Field V. Gibson, 20 Hun (N. Y.) 274 ; Fox V. Van Norman, 1 1 Kan. 214; Ansley v. Baker, 14 Tex. 607 ; Bara- sien V. Odum, 17 Ark. 122; 107 Ala. 355: 73 Cal. 459. 260 CHAP. VIII.] OFFICIATING WITHOUT AN APPOINTMENT. § 1 85 pertain to administration without proper credentials, may, by whatever name we call it, be brought to the attention of legal tribunals in any age or country. § 185. Various Circumstances under •which one may act ■with- out having been qualified. — It is obvious that one who performs acts which only a qualified executor or administrator could have properly performed, may act either as a wrong-doer, utterly without authority, or instead, in perfect good faith, as having a colorable right and perhaps expecting the appointment ; that the acts performed may be injurious to the estate, and obstruc- tive of those lawfully entitled to its control, on the one hand, or, on the other, beneficial and fairly designed for its protection pending the selection and qualification of a legal representative. While, moreover, some person who, as conditions develope, can- not receive probate credentials from the court, may, under one or another of such aspects, occupy a certain unofficial relation towards the estate of the deceased, the suitable executor named in the last will, or, if there be no will, the surviving husband, widow, or next of kin qualified to administer may, and almost of necessity must, before qualification, perform certain acts when death stops short the machinery of an individual's affairs ; acts which of themselves cannot be regarded perhaps as author- ized in advance by any tribunal, and yet are appropriate to the emergency; acts which letters subsequently granted should suffice to protect. Besides this, there are certain duties con- nected with supervising the funeral and burial, and involving expense to the estate, which may fitly devolve upon one's im- mediate relatives, rather than upon any executor or administra- tor at all, and which are usually performed, in fact, before any examination of the papers of the deceased serves to disclose what last will, if any, was left behind, how large was the estate, or who shall rightfully settle the affairs. According to the different aspects above suggested, our mod- ern law pronounces differently, as it would seem, upon acts per- formed with reference to the estate of a deceased per.son by one who at the time had not been legally appointed and qualified to 261 § 1 86 EXFXUTORS AND ADMINISTRATORS. [PART II. administer. These differing aspects we shall endeavor to con- sider apart." § 1 86. "Wrongful and Injurious Dealings with a Dead Person's Estate; Executor de son Tort. — It is the wrongful or tortious intermeddler, without claim or the color of a title, upon whom sound authorities in law fasten, in effect, the liabilities of execu- tor de sofi tort, whether that stigma be applied to the intruder or not.^ The old books cite, however, many examples in te}'- rorem, to show that the slightest misappropriation of the goods and chattels of a deceased person will constitute an executorship de son tort, unless one was a real executor or administrator ; as, for instance, taking a bible or a bedstead ; or appropriating goods to one's own debt or legacy ; and even the widow of the deceased came within this category, it was said, if she milked the cows, or took more apparel than she was entitled to.' Wherever one killed the cattle, consumed, wasted, or destroyed goods and effects of the deceased ; or sold, gave away, or loaned what belonged to the dead person's estate ; he became an execu- tor de son tort. Living in the house, and carrying on the trade of the deceased, was held an intermeddling in the same sense ;^ so, too, paying debts or charges on account of the deceased, unless the payment was made with one's own money ;5 also de- manding, collecting, and giving acquittances for debts due the estate of the deceased.'^' All such dealings being tortious in theory, one's agent or servant who meddled knowingly with the assets of a deceascrl person might be treated as executor de son ' It has already been seen that ad- Milking is needful for the health of such ministration has sometimes been wholly creatures; and as for so perishable a dispensed with. § 120. commodity as milk, it is for the best ^ See Smith v. Porter, 35 Me. 287 ; interest of an estate that it should be Ward V. Bevill, 10 Ala. 197 ; Claussen sold or appropriated at once, account V. Lufreuz, 4 Green (Iowa) 224; Flem- being duly made afterwards for thepro- ings V. Jarrat, i Esp. 336. ceeds to the representative duly ap- ^ Wms. Exrs. 257, 258; Noy, 69; pointed. Godolph. pt. 2, c. 8, § 4; Dyer, 166 b. * Hooper v. Summersett, Wight, 16; It seems absurd that the milking of Wms. Exrs. 259. cows by a widow or another having -^ Carter v. Robbins, 8 Rich. 29. their cu.stody should expo.se one to the '' Godolph. pt. 2, c. 8, § i ; Wms. liabilities of an executorship That he the use and benefit of the distributees, See further, Ross v. Newman, 26 as they must have been appUed in due Tex 131 ; Sellers v. Licht, 21 Penn. St. course of administration. Brown v. 98; Rockwell e^. Young, 60 Md. 563. Walker, 58 Ala. 310. ^ Cases supra ; 68 Fed. 605. ' Upchurch v. Nosworthy, 15 Ala. ^ Mitchel f. Lunt, 4 Mass. 654 ; King 705; 52 Penn. St. 370. A bill inequity v. Lyman, i Root, 104; Nass v. Van by distributees against an intermeddler Swearingen, 7 S. & R. 196. should make the rightful personal rep- * Parsons, C. J., in Mitchell v. Lunt, resentative a party plaintiff or defend- 4 Mass. 654 ; (Ga.) 5 S. E. 629. ant. Nease z/. Capehart, 8 V\'. Va. 95. ' Bradley z/. Commonwealth, 31 Penn. 270 (HAP. VIII.] OFFICIATING WITHOUT AN APPOINTMENT. § I93 shall be held answerable for his official acts committed de facto, to the same extent as if he had been rightfully appointed, and must make good all losses occasioned through maladministration, purging himself of blame, and rendering due account, we can- not doubt ; but it does not appear that his statiis is that of the common-law executor de son tort, necessarily, under circum- stances which impute to him no intentional wrong.' § 193. Beneficial Dealings w^ith a Dead Person's Estate by One not appointed. — Upon the ancient theory of intermeddling, various acts, beneficial in their character, might be performed without exposing one to the perilous risk of an executor de son tort ; though the discrimination made was a very cautious one. One might order or furnish a funeral suitable to the estate of the deceased, and defray the cost out of such estate or his own private means ; ^ or supply the young children of the deceased with necessaries ; or feed his cattle, or make out an inventory, or lock up the effects ; or move the property to some secure place ; or carry or send it to his home and to lawful representa- tives ; and, in general, take good care of it, according to the cir- cumstances and its situation. ^ All these were said to be " of- fices merely of kindness and charity," •* or, one should say rather, beneficial acts and offices of decency and prudence, com- mendable though performed from less exalted motives.^ Legal and proper acts done by an executor de son tort, more- over, are held good against the true representative of the estate, St. 522. And see Damouth e/. Klock, E,\rs. 262 ; Godolph. pt. 2, c. 8 ; Harrison 29 Mich. 290; 49 Ala. 137, 586. v. Rowley, 4 Ves. 216; 119 N. C. 510. ' See supra, c. 6 ; Plowd. 82 ; Wms. Receiving a debt due the estate, for the Exrs. 272. A void administration fraud- alleged purpose of providing the funeral, ulently procured may render the admin- may or may not constitute one an exec- istrator and his sureties liable. Wil- utor de son tort, according as the assets liams V. Kiernan, 25 Hun (N. Y.) 355. so procured were reasonably small or ^ The ordering of the funeral and unreasonably great for that purpose, even of the immediate place of burial be Camden v. Fletcher, 4 M. & W. 378. longs naturally to the surviving spouse or And see Taylor v. Moore, 47 Conn. 278. immediate family. 167 Mass. 307. And ■'Swinb. pt. 2, § 23 ; Wms. Exrs. 262. see §§ 421, 422. 5 " It is clear that all lawful acts which ^ Brown v. Sullivan, 22 Ind. 359; an executor t/i? j-^;? /t^r/" doth, are good." Church, J., in Bacon 7'. Parker, 12 Conn. 5 Co. 30 b. 212 ; Graves v. Page, 17 Mo. 91 ; Wms. 271 § 193 EXECUTORS AND ADMINISTRATORS. [part II. if the latter would have been bound to do Hkewise in the due course of administration ; and the fair sale of goods, or payment of money out of the assets which the executor dc son tort con- trolled, in order to discharge debts binding to their full extent upon the estate of the deceased, should not be needlessly dis- turbed by the true representative;' or, at all events, where the parties to the transaction appear to have acted in good faith, prudently, and honestly.'' Prudence is exacted not only from administrators and executors, but from custodians and other bailees ; and diligence to keep the estate from loss is not only commendable in one who has a temporary charge, but a matter of duty.' Again, the circumstance that a widow is left in possession of some goods of her deceased husband does not, as modern prac- tice inclines, justify a ready inference of executorship de son tort on her part, with its penal obligations ; especially if young chil- dren must be maintained by her ; "* nor should the act of any other person or public official, vested with proper custody of a ■ 1 Ld. Raym. 66i ; Plowd. 282. The reason said is (Lord Holt, i Ld. Raym. 661) that the creditors are not bound to seek farther than him who acts as exec- utor. ^ But see Mountford v. Gibson, 4 East, 441, as to solitary acts of wrong. Payments made in rightful course of administration, and properly chargeable upon the estate, may, we have seen, be set off by the executor de son tort. Su- pra, § 190. See Peters v. Leader, 47 L. J. Q. B. 573- ^ See Root v. Geiger, 97 Mass. 178; Graves v. J'age, 17 Mo. 91 ; Schoul. Bailments, passim. * Chandler v. Davidson, 6 Blackf . 367 ; McCoy v. Paine, 68 Ind. 327 ; Crashin v. Baker, 8 Mo. 437. See Pe- ters V. Leader, 47 L. J. Q. B. 573, a late English case, where a widow, com- pelled to vacate premises, who moved some of the furniture and sold the rest at auction, was held to be no executrix lie son tort, she duly accounting to tlic 27 administrator aftenvards. Nor was the auctioneer so liable. lb. But for in- jurious intermeddling the widow must respond. 66 Vt. 455. Under the Georgia code, if one chargeable as executor de son tort dies, his administrator as such is chargeable to the same extent as the intestate; but by no technical construction does the latter become personally chargeable because of his own intestate's wrong- Alfriend v. Daniel, 48 Ga. 154. As to the effect of a widow's re-marriage, in making her husband an executor de son tort, technical wrong is not favored. Winn V. Slaughter, 5 Ileisk. 191. But parties who have assumed with- out authority to administer an estate, and claim to have administered fully, are estopped, when called upon, either in a probate court or a court of equity, for an accounting, from denying their representative character, or tlu ir liabil- ity to account accordingly. Damouth 7'. Klock, 29 Mich. 290. 2 CHAP. VIII.] OFFICIATrXn WITHOUT AN APPOINTMENT. § I94 dead person's estate, pending the appointment and qualification of a legal representative. For this is very different from the taking of custody by an utter stranger, to the detriment of kindred and others immediately concerned." But for contracts made by a third person with some relative or a stranger and not with the personal representative, and while there was in fact no personal representative of the estate, the representative cannot after his appointment be held liable against his consent.^ In general, however, he may ratify bene- ficial dealings with the estate, and thus assume the responsibility.^ § 1 94. Acts done by a Rightful Executor before qualifying. — It remains to consider the effect of acts done by the legal rep- resentative before he has been duly appointed and qualified. The old law inclined to treat executors and administrators dif- ferently in this respect. Upon an executor, the various prelim- inary acts which pertain to preserving the personal estate, like a prudent bailee, and (as it might happen, besides) ordering the funeral and meeting other emergencies of the situation, were thought to devolve most fitly ; for courts of common law and equity looked chiefly to the title one derived from the testator's own selection ; regarding probate and qualification in the eccle- siastical court as of secondary importance. All acts of this character performed by an executor were confirmed by his sub- sequent probate credentials ; credentials which English courts have pronounced to be not the foundation but only authenti- cated evidence of the executor's title.^ More than this, an ex- ecutor, by sole virtue of the authority which his testator had conferred upon him, might proceed at once to do almost all the acts incident to his office, except to sue.^ He might seize and ' Taylor v. Moore, 47 Conn. 278. And '■f^ Co. 38 a ; Plowd. 281 ; Wms. Exrs. see 97 Tenn. 243 ; 163 Mass. 202. 293, 629 ; Woolley v. Clark, 5 B. & Aid. ^ Watson, Re, 19 Q. B. D. 234. Here 745 ; 2 W. Bl. 692 ; Whitehead v. Tay- a sohcitor did work which he consid- lor, 10 Ad. & E. 210. ered for the benefit of the estate and ' In order to sue, as we shall see here- tried to make the administrator pay his after, letters of authority appropriate to bill of costs afterward. the jurisdiction were generally needful. ^ See Seaver v. Weston, 163 Mass. See Di.xon v. Ramsay, 3 Cranch, 319. 202. Where an executor had actual posses- 18 273 § 194 EXECUTORS AND ADMINISTRATORS. [PART II. take any of the testator's personalty, entering peaceably for that purpose into the house of heir or stranger ; he might, as it was said, collect, release, and compound debts due the estate ; ' he might distrain for rent due the testator, and enter upon his terms for years ; he might settle or assent to the claims of creditors and legatees upon the estate ; he might, at discretion, sell, give away, assign, or otherwise transfer and dispose of the testator's goods and chattels ; and all this before probate.^ Although the executor might die before probate after doing any of those acts, the act itself stood firm and good ; and, by such death, the executorship was not avoided but only brought, so to speak, to an end. 3 If, however, what the executor had thus done before probate was relied upon by another, as the foundation of his title or right, and its enforcement sought, — as in the case of a transfer of certain assets belonging to the estate, — it would be necessary to show a probate ; and hence, subsequent letters to this executor, or, if he died without having obtained them, let- ters to another with the will annexed, would have to be produced.* And so, correspondingly, if enforcement was sought on behalf of the estate against another, by virtue of an arrangement en- tered into before probate. ^ It is generally admitted in this country, as in England, ,that one's appointment as executor relates back so as to absolve him sion of the personal property in qiies- suit may be commenced before probate, tion, he might, on general principle, sue i Salk. 307 ; Wms. Exrs. 308. The another who had acquired it under a latest English rule is, however, that all contract with himself, or, as having been proceedings (e.g., a suit against bank- wrongfully dispossessed by a stranger, ers of the decedent) should be stayed sue for the wrong done him in trespass, until probate is granted. Tarn v. Com- trover, or replevin. For here actual mercial Bank, 12 Q. B. D. 294. possession makes a /;7W(7y(Z«> title suf- 'But as to releasing, compounding ficient to serve as the foundation of an debts, etc., see c. $, post. Part IV. action. Plowd. 281 ; Oughton v. Sep- ^ Godolph. pt. 2, c. 20; Rexz/. Stone, pings, I B. & Ad. 241 ; Wms. Exrs. 6 T. R. 298; Whitehead v. Taylor, 10 306, 307. A bailee's title is enough for .\d. & E. 210; Wms. Exrs. 302, 303. many such cases. But where the exec- ^ i Salk. 309 ; Johnson v. Warwick, utor's suit is on behalf of the estate, 17 C. B. 516; Wms. Exrs. 303, 304. and in a representative capacity, the ■•Johnson v. Warwick, 17 C. B. 516; letters must be produced, i Salk. 285 ; Pinney v. Pinney, 3 B. & C. 335. 3 Taunt. 113; Webb v. Adkins, 14 C. B. ' Newton v. Metropolitan R., i Dr. & 401. Yet it is held that, provided ihe Sm. 583. credentials be produced in season, the 274 CHAP. VJII.] OFFICIATING WITHOUT AN APPOINTMENT. § 1 94 from all personal liability for acts committed before his appoint- ment without a strict probate sanction ; though this, by fair in- ference, affords immunity only as to acts which come properly within the authority and scope of a rightful representative.' American legislation departs so far, however, from the older theory, that, as we have elsewhere shown, no appointment as executor may be safely deduced from the will itself, even though the rightful probate of that will were unquestioned ; for, as American statutes so frequently provide, the will should be pre- sented speedily for probate, nor should an executor designated therein act as one having genuine authority, until he has been duly appointed by the court and has qualified by giving bonds. Hence, acts not of themselves justifiable in the prudent inter- est of the estate, pending one's full appointment, are not likely to be upheld as readily in this country as in England ; and, if because of his death or the proper refusal of the court to ap- point him, or his failure to qualify as the law directed, some one else should be appointed in his stead, his imprudent and officious dealings with the estate, meanwhile, his needless trans- fers, and hasty promises, may involve him and his own estate in trouble, rather than bind the estate which he assumed to represent. "^ 'Bellinger v. Ford, 21 Barb. 311 ; personal estate of the deceased vests in Brown v. Leav-itt, 6 Fost. 493; Stock- him before probate, as a sort of trustee ton V. Wilson, 3 Penn. St. 130; Shirley forihe creditors, legatees, and whoever V. Healds, 34 N. H. 407 ; Dawes v. else may be interested in the estate un- Boylston, 9 Mass. 337; Johns j/. Johns, der the will. Clapp v. Stoughton, 10 I McCord, 132; Wiggin v. Swett, 6 Pick. 463; Shirley v. Healds, 34 N. H. Met. 197 ; 55 N. J. Eq. 456. 407. He is not only sole trustee in this ^See next section as furnishing anal- sense, but the only legal representative ogous cases under the head of admin- of the deceased, and, as such, the per- istration. But the rightful executor, son who should cause the will to be though without official authority in Con- proved ; and he is aggrieved by any de- necticut, may lawfiilly receive into his cree which divests him of his title in the possession here assets if voluntarily de- estate of the deceased, or which disal- livered to him; and may approve of lows, rejects, or refuses the probate of payments in some instances. Selleck e/. the will. Wiggin z'. Swett, 6 Met. 197 ; Rusco, 46 Conn. 370. Shirley v. Healds, 34 N. H. 407 ; Brown As to the executor's title, the true v. Gibson, i Nott. & M. 326. All this, theory appears to be (unless where the we presume, is to be said in strictness doctrine of relation applies) that the only of an executor who virtually accepts 275 § 195 EXECUTORS AND ADMINISTRATORS. [PART II. § 195. Acts done by a Rightful Administrator before qualify- ing. — An administrator may, by relation, ratify and make valid all acts which come within the scope of a rightful administra- tor's authority ; ' and whatever dealings, justifiable on this prin- ciple, and in tlie interest of the estate, he may have had with it before his appointment, are cured, in modern practice, by the grant of subsequent letters. ■" The modern tendency, in fact, is to look indulgently upon previous acts and dealings, not posi- tively arbitrary and wrongful on his part, for which he can show a subsequent appointment ; and thus is lessened the force of earlier distinctions which availed more strongly in an executor's favor. Such beneficial acts as have been seen not to constitute one an executor dc son tort are certainly protected by a subse- quent appointment as administrator; and even acts less justifi- able in theory, such as selling or pledging sundry chattels of the deceased, have been sustained on the ground that the act was beneficial to the estate,^ or at least such as others had no reason to complain of ; '' while, of course, for acts injurious to the estate, previous to his appointment, one must respond.^ The greater leniency appears due where the appointee had previously the responsibility of custodian of the dead person's effects, and acted virtually in that capacity. the trust under the will, and proceeds ^ Moore, 1 26 ; i Salk. 295 ; Wms. for probate, qualification, etc., consist- Exrs. 407, 408 ; Mountford v. Gibson, entiy with that intention ; for, if he re- 4 East, 446 ; Magner v. Ryan, 19 Mo. fuses the trust, or the will is invalid, or 196; Rattoon v. Overacker, 8 Johns, he fails to qualify, the title appears to 126; Priest z'.Watkins, 2 Hill (N. Y.) 225. be practically in abeyance as in the case •'Taylor ?'. Moore, 47 Conn. 278. of admini.stration; and another title, Where one before his appointment buys such as that of special administrator, hay to feed cattle belonging to the es- must sometimes and for certain pur- tate, he may be sued for the price, not- poses intervene. withstanding credit was given to the Notice of the dishonor of a note sent estate. " Credit to the estate means, if to an executor before his (]ualification it means anything, credit to the admin- is sufficient. Shoenberger v. Savings istrator, who, if he makes a cash act for Institution, 28 Penn. St. 459. the benefit of the estate after the inte.':- 'Alvord V. Marsh, 12 Allen, 603; tate's death, may be personally sued Outlaw V. Farmer, 71 N. C. 35. thereon." Tucker v. W'haley, 11 R. I. * Bellinger v. Ford, 21 Barb. 31 1 ; 543. And see Luscoml) ?•. Ballard, 5 F.mery v. Berry, S Fost. 473 ; Shillaber Gray, 403. V. Wyman, 15 Mass. 322; Globe Insur- 'Jones v. Jone.s, iiS N. C. 440 (as in ance Co. v. Gerisch, 163 111. 625. cancelling a just debt). 276 CHAP. VIII.] OFFICIATING WITHOUT AN APPOINTMENT. § 1 95 To an action on a judgment obtained against an executor dc son tort, the latter has been permitted to show his subsequent appointment as administrator, and a full settlement of the es- tate as insolvent ; ' and his promise before appointment to pay a debt will not prevent the bar of limitations to a suit brought after his appointment against him.^ As a defendant, such an administrator, properly speaking, becomes personally answer- able for his transactions, without the scope of authority ; ^ but he may, after his appointment, obtain immunity on his accounts for such transactions as are proper.'* According to the old law, it is true, executors and adminis- trators were differently treated.^ For an administrator's title, being founded in letters and on a formal appointment by the court, such officer had no right of action, it was said, until he had actually received his credentials.^ This distinction, how- ever, has become of little consequence at the present day, — and especially in the United States, -^ for both executors and administrators are required by our probate law to qualify before the appointment can be considered as of full legal force. Ap- pointment and qualification, whether of executor or adminis- trator, cause one's letters of authority, when granted, to relate back for most practical purposes, therefore, to the time of the death of the testate or intestate whose estate is to be settled, the title meanwhile being in a sort of abeyance. ^ Even the old text writers on English ecclesiastical law admitted that, for par- ' Olmsted v. Clark, 30 Conn. 108. 2 W. Bl. 692 ; Shirley v. Healds, 34 But not semble to set up his own wrong N. H. 407 ; Dawes v. Boylston, 9 Mass. so as to defeat the judgment. Walker 337; Johns v. Johns, i McCord, 132; V. May, 2 Hill Ch. 22. Wiggin v. Swett, 6 Met. 197. The ex- ^ Hazelden v. Whitesides, 2 Strobh. ecutor may accordingly release a debt 353. Se& post, Pt. V. c. 5. due to the deceased before procuring ' Wms. Exrs. 405-407 ; i Salk. 295 ; probate. 9 Co. 39 a. So he may main- 5 B. & Ad. 188; Parsons z/. Mayesden, tain trespass, trover, etc., for goods I Freem. 152. taken out of his possession before pro- * Mountford v. Gibson, 4 East, 446 ; bate of the will. Com. Dig. Exrs. B, 9 ; Wms. Exrs. 407. As to confirming a siipra, § 194. sale after appointment, see also Hatch '■ Woolley v. Clark, 5 B. & Aid. 745 ; V. Proctor, 102 Mass. 351. Wms. Exrs. 630; 5 B. & Aid. 204; ' Woolley V. Clark, 5 B. & Aid. 745 ; Pratt v. Swaine, 8 B. & C. 285. Wms. Exrs. 629; 9 Co. 38 a, 39 a; ^ Lawrence 7/. Wright, 23 Pick. 128; Whitehead z;. Taylor, loAd. & El. 210 ; Alvord v. Marsh, 12 Allen, 603; Bab- 277 § 195 EXECUTORS AND ADMINISTRATORS. [PART II. ticular purposes, letters of administration would relate back of the date or grant to the time when the intestate died. Thus, an administrator might bring trespass or trover for goods of his intestate taken before letters were granted him, the necessity of the case overriding the legal theory of a dispossession ; ' so might he ratify a sale of effects of the deceased made before his appointment, and recover the price,- and in various other in- stances take officially the benefit of contracts previously made on account of the estate.^ Furthermore, on the doctrine of re- lation, an administrator entitled to bring trover for a conversion has been permitted to waive the tort and recover as on a con- tract. And there are various instances of acts done by an ad- ministrator before appointment, such as selling and contracting charges, which, being prudent and reasonable in the interest of the estate, have been held valid ; for, though the act were that of an executor dc son tort, in some such instances, yet letters may relate back so as to legalize even technically tortious acts ;* and here we are to observe that the peculiar liability of an exe- cutor de son tort to creditors, to the rightful administrator, or to others who may have suffered by his wrongful acts, is not necessarily in question when the transaction itself calls for en- forcement. 5 Moreover, an executor might commence an action at law before proving the will, getting his appointment com- pleted in season for his declaration, while an administrator would have to get his appointment first ; and yet, in chancery suits, executors and administrators have been treated on substantially an equal footing in this respect.^ Modern statutes, to some ex- tent, regulate expressly the devolution of title to personal prop- erty where one dies intestate i^ and tend to put executors and cock V. Booth, 2 Hill, i8i ; Wells v. Mlatch v. Proctor, 102 Mass. 351, Miller, 45 111. 382 ; Goodwin v. Milton, 354. 25 N. H. 458. ^Bateman v. Margerison, 6 Haic 'Fosters. Bates, 12 M. & W. 226, 496; 3 P. Wms. 351; Wooldridge t. 233 ; Wms. Exrs. 631. Bishop, 7 B. & C. 406 ; Wms. Exrs. 405; ^ Foster z/. Bates, 12 M. & W. 226, 233. Gatfield z/. Hanson, 57 How. (N. Y.) ^Wms. Exrs. 632; Bodger v. Arch, Pr. 331. 10 Ex. 333. ' Thus the English statute 3 & 4 Wm. ■* Wm.s. Exrs. 406, 632 ; Welchman v. IV. c. 7, permits the administrator to Sturgis, 13 (^). B. 552; I Salk. 295; claim for the purposes of the act as if Hatch V. Proctor, 102 Mass. 351. he had obtained the estate without in- 278 CHAP. VIII.] OFFICIATIXd WITHOUT AN APPOINTMENT. § I96 administrators, before the issuance of letters, upon a correspond- ing footing of authority.' § 196. Whether a Suitable Representative ■who has intermed- dled can be compelled to take out Letters. — In English practice, agreeably to the theory that an executor's title is mainly derived from his testator, the person designated as executor under a will, who performs an act of administration, cannot afterward refuse to probate the will and accept the office. He is held, in other words, an executor of right rather than executor in his own wrong.^ This course seems incompatible with the American doctrine, which refers the appointment rather to one's qualifica- tion by proving the will, furnishing bonds, and satisfying the court that he is suitable in fact for the office ; from which as- pect, indeed, one who had acted imprudently and injuriously to terval after the death of the deceased. By Stat. 22 & 23 Vict. c. 95, § 19, the personal estate and effects of any person dying intestate, shall from his decease and until the grant of administration vest in the judge of the court of probate to the same extent, etc., as heretofore in the ordinary. See Wms. Exrs. 635. ' By 2 New York Rev. Stat. 71, § 16, the executor is inhibited from transfer- ring assets until letters are issued to him ; and the statute applies notwith- standing full powers of sale are ex- pressly conferred by the will. Humbert V. Wurster, 22 Hun (N. Y.) 405. A person to whose order money be- longing to an estate was paid, before an administrator was appointed, is account- able therefor to the administrator when appointed, although the money or its avails never came to his actual use. Clark V. Pishon, 31 Me. 503. " By the law of this State," observes the court in Hatch v. Proctor, 102 Mass. 351, 354, "the letters of administration, by operation of law, make valid all acts of the administrator in settlement of the estate from the time of the death. They become by relation lawful acts of ad- ministration for which he must account. And this liability to account involves a validity in his acts which is a protection to those who have dealt wath him." And see Hoar, J., in Alvord v. Marsh, 12 Allen, 603. The doctrine of relation, however, appears not here applicable so as to constitute an estoppel as to title against the sound interests of the estate. Cooley, J., in Gilkey v. Hamilton, 22 Mich. 283, 286, 287, well observes that, while this doctrine is quite necessary to the protection of the interests of the es- tate, this necessity is the reason upon which it rests, and it is no part of its purpose to legalize lawless acts which may, and generally would, work the es- tate a prejudice. " Certainly," he adds, " there is nothing in the fact that a man is appointed administrator, who has pre- viously misconducted himself, which can justly raise against the estate any equities, or which can justly deprive the creditors or next of kin of any of their rights in its assets." And see Morgan V. Thomas, 8 Ex. 308 ; Crump v. Wil- liams, 56 Ga. 590. ' Perry, Goods of, 2 Curt. 655 ; \Vn13. Exrs. 276. 79 § 197 EXECUTORS AND ADMINISTRATORS. [PAKT 11. the estate, before receiving letters, might be deemed most un- suitable. Neither in English nor American practice will a widow, next of kin, or other person lawfully entitled to take out letters of administration, be compelled to do so because of having previously intermeddled ; but some one else may receive the ap- pointment.' On the other hand, save so far as injurious intermeddling may bear upon the issue of personal suitableness for the trust, it appears to be no objection to the appointment and qualifica- tion of a person as executor or administrator who claims the ap- pointment of right, that he is an executor de son tort of the estate.^ § 197- Intermeddling by a Third Person after the Grant of Let- ters Testamentary or Administration. — After probate of the will, and the grant of letters testamentary, or, as the case may be, after an administrator has been duly appointed and qualified, there is a person legally authorized to take full possession of the dead person's personal property. Whoever shall afterwards in- juriously intermeddle with the estate renders himself liable to suit as a trespasser.^ Such intermeddler is not by technical construction an executor de son tort ; but if his interference be actually under claim of an office, he might be thus charged ; since, according to the better opinion, it seems not logically ab- surd that there should exist an executor of right and an execu- tor de son tort at the same time."* One upon whom the char- acter of executor de son tort fastens, may be sued as such, notwithstanding the legal representative qualified afterwards and before action was brought. 5 § I97«. Debtor's Payment to Sole Distributee, etc. — A court, it is said, is not bound at all times to enforce a strict legal right, but should always look to and protect an equitable title or right, ' Ackerley z/. Oldham, i Phillim. 248 ; ^ Salk. 313 ; Wms. Exrs. 261. Wms. Exrs. 438. ■< Wms. Exrs. 261, and note, com- ^ Carnochan v. Abrahams, T. P. menting on Peake, N. P. C. 87, and i Charlt. (Ga.) 196; Bingham v. Cren- Turn. & R. 438, which bear ^wz/ra. shaw, 34 Ala. 683. ^ j galk. 313 ; Wms. Exrs. 261. 280 CHAP. VIII.] OFFICI.\TIN"r, WITHOUT AX APPOINTMENT. § 1 97'' where good conscience requires it. Hence the bona fide pay- ment to the sole distributee of an ample estate by a debtor of the decedent, before administration is granted, should operate to discharge him from liability to the administrator.' ' Vail 7'. Anderson, 6i Minn. 552, collected, as against a representative 555, and cases cited. So, too, should later appointed, where there are no the sole distributee be protected in pos- debts. lb. And see § 120. session of what he may bona fide have 281 PART III. ASSETS AND THE INVENTORY. CHAPTER I. ASSETS OF AN ESTATE. § 198. What comprise Assets of a Deceased Person's Estate; Personal contrasted -with Real Assets. — The word "assets," which may be used in various primary senses, as its French derivation indicates, our Enghsh and American law usually applies to such property belonging to the estate of a deceased person as may rightfully be charged with the obligations which his execu- tor or administrator is bound to discharge.' In modern practice, and conformably to our modern legisla- tion, all the property of a deceased person, real, personal, or mixed, is liable for his debts and the usual charges incidental to death and the settlement of his estate. But a fundamental distinction has always been recognized between the real and personal estate, in the application of this rule ; for the personal estate left by the deceased constitutes the primary fund for all purposes of administration ; his real estate as a secondary fund not being available for assets until the personalty has been ex- hausted, leaving obligations still undischarged ; nor available at all without proceedings which courts of equity pursue with strict care and even reluctantly. Personalty vests immediately in the executor or administrator for the purposes of his trust ; but real estate (subject to such personal exceptions as a will may have ' The word " assets," from the French The older writers sometimes applied to assez, is here used to denote property this portion of the estate the term "as- " sufficient" to make a representative sets enter mains" in contradistinction chargeable tec creditors and legatees, to " assets per descent," by which latter or parties in distribution, so far as that e.xpression was designated that portion property extends. Wms. Exrs. 1655- which descends to the heir. lb. 282 CHAP. 1.] ASSETS OF AN ESTATE. § 200 created) to the heir or devisee ; only to be divested afterwards under circumstances of necessity, as regards legal obligations, and when the personal assets prove insufficient for a due settle- ment of the liabilities of the estate. § 199. Personal Property of the Decedent vests in the Execu- tor or Administrator. — In pursuing his first and important duty of gathering, as into a heap, under his own control, for the pur- poses of administration, the property which the deceased may have left behind, an executor or administrator seeks rightfully, therefore, simply the personal property. Goods and chattels of the deceased person are to be traced out and brought into this trust officer's immediate possession and control ; for these are the assets which concern him ; and title to such assets or to the personal property of the deceased vests in the executor or ad- ministrator, if not prior to his probate qualification, at least back by relation after he has qualified to the instant of the death of his testate or intestate." § 200. Enumeration of Personal Assets ; Choses in Action as well aa Choses in Possession. — Incorporeal property or money rights, as well as corporeal personal property, — bonds, notes, book accounts, bank deposits, debts and balances due the de- ceased, as well as his cash, household furniture, ornaments, cattle, vessels, and sole stock-in-trade, — all these vest in the executor or administrator, therefore, as assets for administration purposes.^ Legacies and distributive shares vested in one per- son by another's death, and without restriction, go, on his death before receiving the same, to his own personal representative as assets.3 'Rockwell V. Saunders, 19 Barb. Perkins's notes. The property must, of i\jT,; supra, § 195 ; Wells v. Miller, 45 course, be that of the decedent. See 111. 382 ; Touchst. 496 ; Wms. Exrs. 70 Vt. 458. 1656; Snodgrass %'. Cabiness, 15 Ala. ^ Wms. Exrs. 703 et seq., 1656; Slo- i6o. cum V. Sanford, 2 Conn. 533; Bullock What is personal property, as con- v. Rogers, 16 Vt. 294; Kohler?/. Knapp, trasted with real, the reader will find i Bradf. (N. Y.) 241. discussed at length in i Schoul. Pers. ' Storer z/. Blake, 31 Me. 2S9 ; Pease Prop. 25-160; Wms. Exrs. 650-770, and v. Walker, 20 Wis. 573 ; 144 N. V. 557. 283 § 200 EXECUTORS AND ADMINISTRATORS. [PART III. Savings and accumulations out of the general personal estate become assets as well as the original estate itself.' Principal and interest, capital and the income and profits thereof, vest in the personal representative, upon whom, subject to rules of ap- portionment upon decease and specific dispositions under a will, devolves usually the right and duty of collecting and accounting for the interest and income, for the benefit of the estate and those interested in it, whether it accrue before or after the de- cease of the person, in the course of a prudent management of his trust.- So, too, goods which have accrued by increase, and the offspring or produce of animals belonging to the deceased. ^ Likewise, the profits of a trade or business, carried on under or independently of a testator's directions, go to swell the assets of the estate ; and profits made by speculations with the assets, which the executor or administrator had no right to engage in, or rightfully with funds left as invested by the deceased, and not yet recalled, belong legitimately to the estate, for the bene- fit of those interested therein. It is seen, therefore, that assets are not necessarily restricted to personalty which the deceased owned in his lifetime, but embrace, usually, the proper and just earnings and accretions of those assets, as they vest in the course of administration.-* Rights under a contract must be treated as personalty, and hence as vesting a title for assets in the executor or administra- tor of the estate.5 So with a claim for services rendered by the decedent during his lifetime, or for wages due.^ Or the fees or salary of an employee or public ofificer.^ Or one's patent rights and copyrights, subject to the terms of the statute relat- ' Wingate v. Pool, 25 111. 1 18. mere right to preempt land goes to the ^ See Sweigart v. Berk, 8 S. & R. executor or administrator. Bowers v. 299; Ray V. Doughty, 4 Blackf. 115; Keesecker, 14 Iowa, 301 ; 2 Wash. 58. Wingate z/. Pool, 25 111. 118. But not a squatter's right to occupy. 3 Wms. Exr.s. 1657 ; e.f;., the lambs 99 Ga. 250. txtrn and the wool shorn of a flock of ^ Lappin v. Mumford, 14 Kan. 9. sheep. Merchant, Re, 39 N. J. Eq. ^ Steger v. Frizzel, 2 Tenn. Ch. 369. 506. Salary voted by a company to a person * Wms. Exrs. 1658; Gibblett v. Read, after his decease, and paid to his exec- 9 Mod. 459. utor, constitutes assets in the executor's ' Stewart z/. Chadwick, 8 Iowa, 463 ; hands. Loring z/. Cunningham, 9 Cush. Pollock, Re, 3 Redf. (N. Y.) 100. A 87. 284 CHAP. I.] ASSETS OF AN ESTATE. § 200 ing thereto." So with money receivable from the government in adjustment of a claim (unless the title, in case of a claimant's death, goes otherwise, according to the statute), such as indem- nity money given by a foreign treaty ; - distinguishing here usu- ally between what government may allow in satisfaction of something due the decedent and a mere bounty or gratuity to living kindred. 3 Whatever chattel right one has with another, not subject to the harsh rule of survivorship, is thus included.'* So is a deceased partner's interest in the partnership firm of which he died a member ; 5 and in computing such interest, the good will of the business is proper to be considered.^ So is a share in a newspaper business ^ or in valuable recipes.'' Dam- ages assessed in favor of the deceased during his lifetime consti- tute assets ; ^ also the right to bring a suit for damages suffered by the decedent, in respect of person or property ; '" and, in gen- eral, claims, demands, and causes of action of every kind, which survive by common law or statute, so that the personal repre- * I Schoul. Pers. Prop. §§518, 535. ^ Foster v. Fifield, 20 Pick. 67 ; 49 La. Ann. 1096; Thurston v. Doane, 47 Me. 79. Cf. Eastland v. Lester, 15 Tex. 98 ; Grant v. Bodwell, 78 Me. 460. ^ Grant v. Bodwell, ib. ; Leonard v. Nye, 125 Mass. 455 ; Phelps v. McDon- ald, 99 U. S. 298. * Wms. Exrs. 652. See as to joint and common ownership of chattels, i Schoul. Pers. Prop. §§ 154-167 ; Harris Ferguson, 16 Sim. 308. * Wms. Exrs. 651, 652 ; Buckley v. Barber, 6 Ex. 164; Moses v. Moses, 50 Ga. 9; Piatt V. Piatt, 42 Conn. 330; Pitt V. Pitt, 2 Cas. temp. Lee, 508 ; Schenkl z'. Dana, 118 Mass. 236. And see Hutchinson v. Reed, i Hoffm. (N. Y.) 316. The usual rule is, that on the decease of a partner the partner- ship must be wound up and accounts settled between the surviving partner and the representative of the deceased 285 member. See Colly. Partn. § 199; i Schoul. Pers. Prop. § 194 ; § 325. * Piatt V. Piatt, 42 Conn. 330. Here the business was continued after such partner's death. And see Wms. Exrs. 1659. A subscription-book or list con- taining the names and addresses of correspondents may constitute the good will of a particular business and valua- ble assets of the estate. Thompson v. Winnebago Co., 48 Iowa, 155. But see Seighman v. Marshall, 17 Md. 550. An executor cannot appropriate to himself the good will of decedent's liquor li- cense. Buck's Estate, 185 Penn. St. 57. '' Gibblett v. Read, 9 Mod. 459. * Ib. ; Wms. Exrs. 1659. 9 Astor 7'. Hoyt, 5 Wend. 603 ; Welles V. Cowles, 4 Conn. 182. '° As to this point, and for distinctions in respect of real and personal property, see Part IV., as to survival of actions, collection of assets, etc. § 20I EXECUTORS AND ADMINISTRATORS. [PART III. sentative may sue upon them, together with the incidental recompense or indemnity which may attend the suit.' Personal annuities, or annual payments of money not charged on real estate, constitute personal property, and the right to claim arrears goes to one's executor or administrator, subject to the old rule against apportionment, so far as that rule may ap- ply.^ A " rent-charge," that is, a burden imposed upon and issuing out of lands, should, however, be distinguished from a personal annuity.^ § 20 1 . Enumeration of Personal Assets continued ; Contingent and Executory Interests, etc. — Not absolute interests alone in personal property pass to the executor or administrator as assets, but contingent interests likewise, provided the interest be valu- able at all to the estate."* For cJioses in action, and incorporeal rights of every kind upon which a value may be placed, are to be classed among assets. In short, contingent and executory interests, though they do not vest in possession, may vest in right so as to be transmissible to executors or administrators. But if the contingency upon which the interest depended was the endurance of the life of the party until a particular period, whereas his death occurred in fact sooner, there would occur a ' Money recovered upon an appeal to descend to the heir to the exclusion bond given to executors as an appeal of a personal representative. Turner v. from a judgment obtained by them in Turner, Ambl. 782. But this appears that character constitutes assets. Sass- to be out of respect simply to the ex- cer V. Walker, 5 Gill & J. 102. A claim press terms of its creation. Like a life against a former representative is an insurance policy, an annuity, when given asset. Nesmith, Re, (N. Y. 1888). The without words of restriction, passes to fact that a bona fide claim when sued the personal representative for the ben- upon results unfavorably does not im- efit of the estate. Lord Hardwicke pair the right to consider such claim as once observed that it was a personal assets. Robinson v. Epping, 24 Fla. inheritance which the law suffered to de- 237. A government claim may consti- scend to the heir. Stafford v. Buckley, tute assets. 171 U. S. 466. Cf. § 211. 2 Ves. Sen. 170. And see Wms. Exrs. ^i Schoul. Pers. Prop. §373; Co. 809,810. Lit. 2 a; Wms. Pers. Prop. 5th Eng. ed. * Wms. Exrs. 653, 887 ; Peck v. Par- 180-182. rot, I Ves. Sen. 236; Fyson v. Cham- ^ 2 Bl. Com. 40, 41. It was formerly bers, 9 M. & W. 460; Clapp v. Stough- questionedwhetherannuities were realty ton, 10 Pick. 268; Ladd v. Wiggin.s, 35 or personalty; for, when granted with N. H. 421 ; Johns w. Johns, i McCord, words of inheritance, an annuity is held 132 ; Dunn v. Sargent, loi Mass. 336. 286 CHAP. I.] ASSETS OF AN ESTATE. § 202 lapse or extinguishment of the interest, and nothing transmissi- ble to his personal representative remaining,' If a debt is due optionally to decedent, and the latter, though never demanding it while he lived, never released nor extinguished it, nor abandoned his option, it should be considered assets of the estate. ^ § 202. Enumeration of Personal Assets continued ; Stock ; Public and Corporation Securities ; Life Insurance Policies. — Stock is in modern times usually treated as personal property, notwithstanding the corporation, a railway or turnpike company, for instance, derive its profits in a certain sense from the use of real estate.' Dividends declared by a stock company during the decedent's life, and not collected, belong to his estate as personal assets, as does also the stock ; * while, in respect of dividends declared and payable after his death, the executor or administrator usually collects for the purposes of his trust, ac- counting in a proper manner, as the directions of the testator and the general law of administration may require. Stock in the public funds, and government and municipal bonds and secur- ities of all kinds, are likewise treated as personal property at the present day.' And all these, being personal property of the in- corporeal sort, are transmitted as personal and primary assets to the executor or administrator upon the owner's decease. But under a mere contract to deliver stock, it is the right of action under the contract that constitutes assets.^ If in a life policy the assured himself is named the beneficiary, the money accruing at his death belongs as assets to his estate,^ ' Wms. Exrs. 889. considered personal property. See Dry- ' Colgan's Estate, 160 Penn. St. 140. butter v. Bartholomew, 2 P. Wms. 127 ; 3 See I Schoul. Pers. Prop. §§ 480-482; Wms. E.xrs. 811. Bligh V. Brent, 2 Y. & C. 268; Weyer * Welles v. Cowles, 4 Conn. 182. V. Second Nat. Bank, 57 Ind. 198. - Vvms. Exrs. 812, 813; i Schoiil. Canal shares, etc., were considered real Pers. Prop. §§ 478, 479. property, but this rule has long since ^ Hitchcock v. Mosher, 106 Mo. 578. changed. To remove all doubt, the ^ Union Mut. Life Ins. Co.?'. Stevens, legislature, in acts of incorporation, fre- 19 Fed. R. 671 ; Hathaway v. Sherman, quently declares that the stock shall be 61 Me. 466 ; Butson, /^e, 9 L. R. Ir. 21. 287 § 204 EXECUTORS AND ADMINISTRATORS. [PART III. though not where the policy is expressed for the benefit of some other." § 203. Enumeration of Personal Assets continued ; Personal Property taken or given in Security. — Debts owing the deceased upon chattel security, such as pledge, mortgage, and lien to the testate or intestate, give the benefit of the security to the estate ; and the security must not be left out of consideration in the assets. But bonds executed to an administrator or executor in his fiduciary character, in consideration of assets transferred by him, are not necessarily assets for the benefit of the estate.- Security, in general, enures for the direct benefit of that upon which the security was placed ; and hence a bond of indemnity, or a judgment recovered thereon by the deceased during his lifetime, vests only as assets for the purpose of applying it to the satisfaction of the debt or demand against which the in- demnity was afforded.^ Whatever a debtor may give the execu- tor or administrator, to secure or discharge what he owes, belongs to the estate.'' Debts, on the other hand, owing from the deceased, and secured by pledge or mortgage of his personal property, or a lien thereon, leaves the surplus as general assets of the estate beyond such sum as may be required for discharging the security ; or, as one might say, the personal property given in security constitutes assets, subject to the preferential claim of the secured creditor.^ § 204. To constitute Personal Assets, the Title must have stood in the Decedent at his Death. — The deceased must have ownetl such personal property or been the creditor or claimant at the time of his death, since otherwise the title cannot devolve upon ■ See § 211. As to construction of '• See 32 Hun, 599; Sain v. Bailey, w-ill, see Golder v. Chandler, 87 Me. 90 N. C. 566. 63 ; § 300. ^ I Leon. 155, 225 ; Wms. Exrs. 1660; * Saffran v. Kennedy, 7 J. J. Marsh. Vincent v. Sharpe, 2 Stark. N. P. 507; 187. Haynsworth v. Frierson, 1 1 Rich. (S. C.) ^ MoUoy V. Elam, Meigs (Tenn.) 590. 476. See as to widow's allowance out of pledged property, 96 Ga. 625 ; § 451- 288 CHAP. I.] ASSETS OF AN ESTATE. § 2O4 his legal representative ; and the decedent's title, when he died, is the criterion of the title which devolves upon his personal representative. Thus, notes, securities, or other incorporeal property bona fide and regularly transferred to others by the decedent during his lifetime, and indorsed, assigned, or delivered, with mutual intention that the title should so pass, do not vest in the representative of the deceased ; ' and the same may be said of corporeal goods and chattels, duly delivered upon a like understanding, by the decedent.^ If, however, the transfer was voluntary and fraudulent against one's creditors, remedies are open and should be pursued, as we shall see, for assailing such stranger's title.-* And since legal transfer implies parting v^ith dominion over the thing, any professed transfer during one's life which left the possession, control, and power to revoke in the transferrer, keeps his title virtually undivested, so that at his decease the chattel must be administered as assets."* Nor does a bailment, made under instructions which death counter- mands, divest the donor's title. 5 Where, on the other hand, personal property attached by the trustee process was assigned by the owner subject to the attach- ment, and such attachment was dissolved by the owner's death, it was held that the property passed by the assignment and did not constitute assets available for administration.^ Advance- ments made during life to children are regarded essentially as gifts ; so that these are not to be reckoned among assets of the estate. 7 A savings bank deposit belonging to a donee is not ' Wms. Exrs. 1675; ' Salk. 79. ' See.§ 2()j,post. ^Thomas v. Smith, 3 Whart. 401; ■» Cummings v. Bramhall, 120 Mass. Garner z/. Graves, 54 Ind. 188; Burke 552; Madison v. Shockley, 41 Iowa, V. Bishop, 27 La. Ann. 465. As to the 451. general subject of assignment, see i ' Bigelow v. Paton, 4 Mich. 170. A Schoul. Pers. Prop. §§ 73-83. The old promissory note should be charged as doctrine of the law was that a c/tose in assets, notwithstanding oral expressions action could not be assigned. But used by the deceased to his executor equity has so encroached upon the law insufficient to constitute a release. Byrn that every species of incorporeal prop- v. Godfrey, 4 Ves. 6. erty, with a few nominal exceptions, * Coverdale v. Aldrich, 19 Pick. 391. may now ha practically assigned so as ' See post as to advancements ; Wms. to pass the title, i Schoul. Pers. Prop. Exrs. 1498, 1502. §§ 73-83. 19 289 § 205 EXECUTORS AND ADMINISTRATORS [PART III. assets of the donor, even though the donee may have to recover it from the bank in the name of the donor's representative.' The mistaken dehvery of a thing by its custodian to the executor or administrator, where the title had in fact passed out of the owner before his death, does not conclude it as assets, for it is proper that the mistake be rectified.^ § 205. Personal Property of Another among the Goods of De- ceased not Assets ; Identification. — If goods, money, or securi- ties belonging to another person lie amongst the goods of the deceased, capable of identification, and they come altogether to the hands of the personal representative, such other person's things are not to be reckoned among assets of the estate.^ Nor is money collected by an attorney, factor, or agent, and kept distinct and unmixed with the rest of his property.'* So, prop- erty held by a trustee or fiduciary officer is not assets in the hands of his executors, administrators, or assignees ; but a new trustee should rather be appointed to hold the fund in the stead of the decedent. 5 Only those things in which the decedent had a beneficial interest at his death are assets, and not those which he holds in trust or as the bailee or factor of another.^ In order, however, that the third party or new fiduciary may claim his specific thing as separable from assets, its identity should have been preserved ; and the rule is that if the deceased held money or other property in his hands belonging to others, whether in trust or otherwise, and it has no ear-mark and is not distinguishable from the mass of his own property, it falls within the description of assets ; in which case the other party must come in as a general creditor.^ ■ Watson V. V^'atson, 69 Vt. 243. * See Shakespeare v. Fidelity Co., 97 ' Sherman 7'. Sherman, 3 Ind. 337. Penn. Stat. 173. 3 Wms. Exrs. 1675 ; Coopers/. White, 'Story, J., in Trecothick v. Austin, 19 Ga. 554. 4 Mason, 29; Johnson v. Ames, 11 * Schoolfield v. Rudd, 9 B. Mon. 291. Pick. 172. Where a Hfe beneficiary in- 5 United States v. Cutts, i Sumn 133; Johnson v. Ames, 11 Pick. 173 Green v. Colhns, 6 Ired. L. 1 39 ; Thomp son V. White, 45 Me. 445 ; Wms. Exrs- 1675. 290 vests the capital and income as one fund, the division of the property at her death is largely a question of con- venience. 65 N. H. 139. CHAP. I.] ASSETS OF A\ ESTATE. § 20/ The receiver of letters, we may add, has but a qualified prop- erty in them ; they pass to the executor or administrator, but not as available assets, inasmuch as the sender is interested in their publication." § 206. Personal Property of the Decedent left in Another's Possession is Assets. — Personal property belonging to the de- ceased, on the other hand, which was in the possession or con- trol of a third person, whether rightfully or wrongfully, at the time of his death, will vest as assets in the executor or adminis- trator of the owner ; and to him the custodian should surrender possession ; though here, once more, the decedent's property must be capable of identification, else there is left but a right of action to recover their value or damages. Chattels and money in the hands of a deceased minor's guardian vests likewise for purposes of administration in the minor's executor or administra- tor, if there be one ; and this even though the guardian may be eventually entitled to the same as legatee or distributee after the estate is settled." § 207. Personal Property constitutes Assets notvrithstanding Ultimate Title of Legatees, Heirs, etc. — Personal property con- stitutes assets for the purposes of administration and a general winding up of the deceased person's estate ; even though upon a due adjustment that property or its residue shall go to lega- tees, general or specific, or to residuary legatees or distributees, or trustees, if not otherwise needed ; for administration is in fact the crucial test by which the title of all such parties, through the sufficiency or deficiency of the estate, shall be determined, and the title devolves first of all upon the decedent's personal representative.^ As against even a sole legatee or distributee, therefore, or the person to whom such party in interest ?ias given a promissory ' Eyre z'. Higbee, 35 Barb. 502 ; Pope are assets. Head v. Sutton, 31 Kan. V. Curl, 2 Atk. 342. 6 1 6. ^ Beant/. Bumpus, 22 Me. 549. What- ^ See Woodfin v. McNealy, 9 Fla. ever one receives before appointment 256. 291 § 208 EXECUTORS AND ADMINISTRATORS. [PART III. note or other asset of personal property, the representative may follow up and claim such assets for administration.' § 208. Debt due from Representative or Legatee, etc., to the Decedent constitutes Personal Assets. — By the Common law, the appointment of one's debtor to be the executor of the will was held to extinguish the debt ; - and so far was the rule carried, out of favor to the representative, that if he died before probate or was one of joint debtors, extinguishment occurred, notwith- standing the technical reasons given for the doctrine.' But this is changed in most parts of the United States by statutes whose intendment appears to be to place the debt owing from a personal representative upon the same footing with debts due the estate from other sources ; ■» and our probate and equity rule is to hold the executor accountable for the debt as assets. In some States where the old rule has been discarded, the right of those interested in the estate to compel the executor or ad- ministrator to charge himself with an indebtedness due from him to the deceased, is fully recognized ; but it is said that as soon as the debtor is appointed, if he acknowledges the debt, he has actually received so much money and is answerable for it, he and the sureties of his probate bond, in like manner as if he had received it from any other debtor of the deceased. 5 ' 136 Mass. 54; Bean v. Bumpus, 22 Odell, 27 Ohio St. 398. And see Eng- Me. 549. Replevin may be brougiit by lish stat. i Vict. c. 26, § 7 ; 20 & 21 him. Pritchaid 7>. Norwpod, 155 Mass. Vict. c. 77, § 79; Wms. Exrs. 15, 286, 539. 131 2. The effect of the New York ^ Cro. Car. 373; i Salk. 299; Cheet- statute charging the representative as ham V. Ward, i B. & P. 630 ; Wms. for money, etc., is not to discharge any Exrs. 1310; Co. Lit. 264 b. security given for the debt. Soverhill ^ Perhaps, where the executor re- ?'. Suydam, supra. Where one of two nounced, the rule was different. In- administrators was liable as principal tendment of the will appears to be the to the intestate who was his surety, his true reason ; but that alleged by the liability to the intestate's estate is assets courts was, the rights of debtor and in the administrator's hands, for which creditor united in one and the same per- they are both accountable. Bassett z/. son. Wms. Exrs. 13 10. Granger, 136 Mass. 175. And see * McCarty v. Frazer, 62 Mo. 263; Hines v. Hines, 95 N. C. 482. Adair z'. Brimmer, 74 N. V. 539; Sov- ^ Stevens v. Gaylord, 11 Mass. 269; erhill v. Suydam, 59 N. Y. 142; Jacobs Leland v. Felton, i Allen, 531, and V. Woodside, 6 Rich. 490; Shields v. cases cited; Hall v. Hall, 2 McCord 292 CHAP. I.] ASSETS OF AN ESTATE. § 208 The fact that the representative charges himself in his inven- tory or account with his debt, settles the question that he owes the estate and the amount of his debt ; it is a fact upon which great stress is laid ; but an executor cannot escape his liability or change the character of it by failing to charge himself with his own debt ; nor is charging himself with it the only way in which the fact of his indebtedness may appear to be proved.' An extinguishment of the instrument upon which the indebted- ness was founded, may, independently of statute, occur here by operation of law, with the modern consequence that the sums due thereon have become realized assets of the estate ; ^ but the rule appears not to apply regardless of the particular circum- stances. A debt due the deceased from a legatee or distributee is fur- thermore reckoned as assets by the modern rule, in the absence of evidence that forgiveness of the debt was intended ; and for Ch. 269. Upon the acceptance of the trust, and returning the same in the in- ventory as assets of the deceased, a correspondent legal liability is assumed which cannot be divested by a subse- quent resignation of the trust. Leland V. Felton, i Allen, 531. Indeed, the liability to duly account for such a debt is assumed on acceptance of the office, lb. Yet the return of a debt in the inven- tory as solvent is usually prima facie proof that it is collectible, and by no means conclusive proof that it has been collected. The rule if asserted, as in the text, with especial stringency against the representative's own debt to the deceased, is from motives of policy, and to discourage bad faith under circum- stances of especial temptation. The more consistent rule appears to be that the return of the inventory affords a presumption only, and that if the repre- sentative shows that he cannot pay, and has not paid, he need not be charged with the debt as cash. Baucus v. Stover, 24 Hun, 109; United States v. Eggles- ton, 4 Sawyer, 199; 3 Dem.6io; §542. The appointment de bonis non of one who was surety on the bond of his pred- ecessor does not make a debt due the estate from such predecessor assets in his hands by reason of his suretyship. Shields v. Odell, 27 Ohio St. 398. ' Endicott, J., in Tarbell v. Jewett, 129 Mass. 457, 461. ^Tarbell v. Jew-ett, 129 Mass. 457 ; Freakleyz/. Fox, 9 B. & C. 130; Ipswich Man. Co. v. Story, 5 Met. 310; Robin- son V. Hodgkin, 99 Wis. 327. The general rule is that where a judgment debtor becomes the personal representative of the judgment creditor, the judgment is extinguished, and the debt becomes a realized asset in his hands to be accounted for in court. But this rule is subject to many excep- tions; and the mauner in which the representative treats this judgment debt in the course of his dealing with the estate may affect the question whether an extinguishment has actually taken place. Charles 7\ Jacob, 9 S. C. 295. 293 § 209 EXECUTORS AND ADMINISTRATORS. [PART III. realizing upon this indebtedness, the legacy or surplus accruing to such person may afford good security.' Forgiveness of a debt, therefore, operates /r^ ianto, if so limited by the deceased ; and this is a rule of general application. Thus, where one leaves a legacy and releases only the principal of an interest-bearing debt, the interest should be treated as assets and set against the legacy ; - the true intent of the transaction resolving, however, the question. Where the partner of a firm or the officer of a corporation, owing the deceased a debt, becomes executor or administrator, the indebtedness becomes assets in his hands.-^ An administra- tor, who owes the estate to which he was appointed, must ac- count for the debt ; and since his appointment was not the act of the creditor, the common law never treated him as privileged like an executor in this respect. •♦ § 209. Personal Assets coming to the Kno^^ledge but not Poa- session of the Representative. — An executor or administrator is chargeable, because of the trust he has accepted, with goods and chattels of the deceased coming to his possession or knowledge ; and the want of actual possession does not dispense with prudent attempts on his part to collect, enforce, or obtain possession. All the chattels of the deceased, wherever situated, are assets, if the representative, by reasonable diligence, considering the means of the estate already under his control, might have pos- sessed himself of them.^ If the jurisdiction afforded by his let- ters of authority does not enable him to obtain or collect them, it is somewhat different ; and yet as to such assets, one appointed within the original jurisdiction should have ancillary letters taken out, if this course appear prudent, in order that no reason- ' Post, § 248, as to the effect of giving ■* i Salk. 306. It was said that in a legacy to one's debtor ; Wms. Exrs. case of an administrator there was, at 1303, 1304 ; Springer's Appeal, 29 Penn. most, only a suspension of the remedy St. 208; and see § 492a. on his appointment. * Hallowell's Estate, 23 Penn. St. ' Gray v. Swain, 2 Hawks. (N. C.) 223. 15 ; Tuttle V. Robinson, 33 N. H. 104; * Eaton V. Walsh, 42 Mo. 272. Palmer v. Palmer, 55 Mich. 293. 294 CHAP. I.] ASSETS O]" AN ESTATE. § 2IO able means may be wanting to gather in the whole of the dece- dent's personal estate.' On the other hand, chattels of the deceased, not procured from the possession of others, and debts uncollected, do not constitute available assets in the hands of his executor or admin- istrator, where there has not been culpable negligence or re- missness on his part in the trust ; - though it would appear incumbent upon such fiduciary to consider himself chargeable with all such things, and be prepared to show why he failed to collect or obtain possession of each according to its value, while in the exercise of his official functions. §210. Personal Assets or not, -where Decedent's Title -was Qual- ified. — In what has been said under the present head, we have supposed the title to personal property, indeed, to be so vested in the deceased at his death, as properly to devolve at once upon his legal representatives. But where the deceased was entitled to the chattel or fund, jointly with another, so as to carry the title over to his survivor, or in common, or in partnership, or under a trust which excluded his beneficial interest, — in these and similar peculiar relations, the title not devolving upon the executor or administrator of the deceased, or devolving not with respect to the specific thing, but rather so as to constitute a claim for partition of a thing, or for sharing in the surplus of some fund yet to be ascertained, there is nothing to be considered assets, or else the assets assume for administration a different ' Supra, § 175, as to assets out of ciary, whether the things have come to the sovereign jurisdiction. his possession or not, and is personally ^ Tuttle V. Robinson, 33 N. H. 104; chargeable wdth the value of that which Ruggles V. Sherman, 14 Johns. 446. belonged to the estate, and was lost or The general rule laid down in the old never recovered at all through his neg- books is that an executor or administra- ligence. The English doctrine appears tor shall not be charged with any other to regard the executor as a " gratuitous goods or assets than those " which come bailee " ; but in the United States, and to his hands." But the construction where the trust is regularly compen- placed upon this expression is such as sated, it seems that his responsibility is to deprive it of literal force. See 5 Co. equivalent to that of a bailee for hire. ?>Z '^' 34 '^ ! Wentw. Off. Ex. 227, 14th Under an appropriate head this subject ed. ; Wms. Exrs. 1667, 1668. The ex- will be more fully considered hereafter, ecutor or administrator is, in truth, See Part W.,fost. chargeable, as a sort of bailee or fidu- 295 §211 EXECUTORS AND ADMINISTRATORS. [PART III. shape, such, for instance, as an undivided interest, or a claim to some unascertained surpkis.' All this is in general conformity with the laws which regulate the transfer and transmission of title to personal property.^ §211. Various Cases -where Representative does not hold strictly as Assets. — So, again, the principles which regulate the reciprocal title of husband and wife, whether under the old cover- ture rules or as embodied in statutes passed for the more espe- cial behoof of the surviving widow, may affect the transmission of title as assets to the personal representative ; depriving him of the right to take possession, or to collect, or making him a mere conduit of title to the surviving spouse, regardless of creditors of the estate.^ And in various other instances legis- lators exhibit tenderness toward the distressed survivors of a family at the expense of those who have claims upon the general assets ; •• all of which qualifications to his authority the legal representative of an estate should duly observe. The proceeds of a life insurance policy taken out by the de- cedent and expressed to be payable to another, as, for instance, to his widow or a child, or in trust for such a one's benefit, are not assets of the estate ; 5 though it may be that suit should be \iXO\\^\. pro forma in the representative's name on behalf of the beneficiary named. But where the person insured takes out life insurance generally, and not for the express benefit of others surviving him, or where the beneficiaries named have prede- ' See as to a debt or legacy going to her own interest and as trustee for a survivor, Green v. Green, 3 Sm. & others, see 165 Penn. St. 123. M. 256; Cote V. Dequindre, Walk. ^ See 2 Schoul. Pers. Prop., §§ 1-3, (Mich.) 64. As to a deceased partner's and other general works upon Personal interest in his partnership firm, Piatt v. Property. Piatt, 42 Conn. 330; Moses v. Mose.s, ^ Schoul. Hus. & Wife, §§ 409, 441 ; 50 Ga. 9. Where a surviving partner post, § 447, as to a widow's parapher- is also executor of the estate of his de- nalia, allowances, etc. ceased co-partner, and he collects part- * lb. As to property exempt from nership assets which are not needed to administration, see Taylor v. I'ettus, 52 pay partnership debts, he will be pre- Ala. 287 ; Heard v. Northington, 49 sumed to hold such assets as executor. Tex. 439. Caskie v. Harrison, 76 Va. 85. = Senior v. Ackerman, 2 Redf. (N. Y.) But as to abend running to one for 302; Cables v. Prescott, 67 Me. 582; Van Dermoor, Re, 42 Hun, 326. 296 CHAP. I.] ASSETS OF AN ESTATE. § 212 ceased, the fund goes properly to legal representatives for the benefit of the estate, and becomes assets for the payment of debts." Pensions and public gratuities, or pay for army and navy service, are often made payable for the direct benefit of widow, children or parents ; ^ and public statutes, thus expressly providing for the beneficial payment of arrears to surviving members of a family, exclude the notion of general assets for creditors. There are other instances where personal property may come to the executor or administrator pro forma, and yet be applicable only to special purposes.^ § 2 12. Real Estate descends to Heirs; not Assets except for Deficiency. — Real estate, at the common law, becomes vested on the death of the owner in his heirs or devisees, and the ex- ecutor or administrator has as such no inherent power over it. Lands, therefore, are not in a primary sense assets, to be ap- propriated for the benefit of creditors ; nor has chancery juris- diction to decree their sale at the suit of a creditor, unless he has some specific lien or right therein.'* Nor has the executor or administrator as such the right to purchase land for next of kin or legatees.' It is only as legislation, or the will of a tes- tator may have conferred an express power upon the executor or administrator, that he can exert it in respect of real estate, unless authority has been conferred by the heirs or devisees themselves. But modern enactments, as we shall see hereafter, usually permit the lands of a deceased owner to be subjected to the satisfaction of his just debts, in so far as the personalty falls ' Hathaway v. Sherman, 6i Me. 466 Butson, Re, 9 L. R. Ir. 21 ; Union Mut Life Ins. Co. v. Stevens, ig Fed. R 671 ; Wright V. Wright, 100 Tenn. 313 "Perkins v. Perkins, 46 N. H. 1 10 3 Sim. 97 ; Hassall w. Smithers, 1 2 Ves. 119. E.g., money due from bene- fit associations. 5 Dem. (N. Y.) 326 ; Bishop V. Curphey, 60 Miss. 22. ■* Wms. Exrs. 650 ; Drinkwater v. And see posi as to distribution under Drinkwater, 4 Mass. 354; Lucy z". Lucy, modern statutes which give compensa- 55 N. H. 9 ; Laidley v. Kline, 8 W. Va. tion to the widow, children, etc., of one 218 ; Hanldns v. Kimball, 57 Ind. 42 ; killed, by the tort of a person or corpo- McPike v. Wells, 54 Miss. 136; Le ration. For such a cause of action does Moyne 7/. Quimby, 70 111. 399; Sheldon not strictly belong to the estate. 53 v. Rice, 30 Mich. 296; 145 Mo. 418; 54 Neb. 674. Neb. 33 ; 98 Wis. 385. ' Wms. Exrs. 1677 ; Parry <■. Ashley, ' 122 N. C. 536; too Ga. 607. 297 § 213 EXECUTORS AND ADMINISTRATORS. [PART III. short of paying them, and general provision is made for sale by the executor or administrator under a judicial license accord- ingly.' When the necessity arises to deal with lands as assets, the heirs or devisees should have due notice, nor in any case can their beneficial rights be safely ignored ; - and so, too, the full statutory requirements should be pursued. Moreover, the personal representative will only be permitted to sell so much of the land as may discharge the debts, unless, perhaps, by a partial sale the interests of the heirs and devisees would be unduly injured. And even though it should become necessary to make a sale under a license, the executor or admin- istrator, as such, is not called upon to perfect the title or relieve the land of any burden ; but he should sell as he finds it. He has no authority to warrant the title he conveys in such a case ; but the rule of caveat emptor applies.' Should there be a ficti- tious incumbrance on the lands that would deter purchasers from buying, it is eminently proper for the heir or devisee, in order to protect his estate by procuring a full price, to institute proceedings for removing the incumbrance. But separate cred- itors against the estate acquire no such interest or specific lien on the premises as would justify such proceedings on their part, even though the sale were necessary for paying their claims,'' sj 213. Executor or Administrator has no Inherent Authority as to Real Estate. — It follows generally that if the representative takes possession of the real estate of the deceased, he is account- able to the heirs as their agent, and not, strictly speaking, to the probate court in his official capacity, though for convenience he will often manage as by consent of the heirs. 5 Proceeds of ' lb. See post. Part VI., c. 2, as to It is often of advantage to the heirs sale of lands under license, etc. to permit the representative to col- ^ McPike z/. Wells, 54 Miss. 136. lect rents, and this course may save ^ Shup V. Calvert, 174 111. 500. sometimes the sale of the real estate ^ Le Moyne v. Quimby, 70 111. 399. to pay debts. Kimball z/. Sumner, «(/>ra. ' Taylor, Landl. & Ten. § 390 ; Mc- Inasmuch as the administrator who col- Coy V. Scott, 2 Rawle, 222 ; Kimball v. lects rents holds them for the heir, and Sumner, 62 Me. 309 ; Lucy v. Lucy, 55 not as assets for the creditors, he holds N. H. 9; Palmer 7j. Palmer, 13 Gray, them for his own use where he himself 328; Kidwell V. Kidwell, 84 Ind. 224. is the heir. Schwartz's Estate, i4Penn. 298 CHAP. I.] Assets of an estate. § 213 a sale by an executor empowered under the will to sell for the benefit of legatees arc not presumably to be brought into the general administration." The representative has no cause to recover possession of the lands of the deceased by a suit at law, and cannot maintain such a suit.' Nor has the executor or administrator an inherent right to enforce the specific performance of a contract to convey land to his decedent ; unless, at all events, the personal estate is insuffi- cient for the purposes of administration and the land should be sold by him accordingly.^ Land clearly conveyed by the decedent during life is not thus available even though the deed was not recorded until after his death.'' Land conveyed in fraud of creditors forms no part of the deceased grantor's estate, and it is the creditors, not the administrator, who should attack the conveyance.5 And whatever means a creditor may law- fully pursue in order to render the heirs of the deceased liable with the personal representative to settle his demand, the per- sonal assets of the estate must be exhausted before resort can be had to the realty.'' St. 42. In Michigan and some other States the personal representative is ex- pressly authorized by statute to collect rents and take control of the real estate of the deceased during the settlement of the estate. Kline v. Moulton, 1 1 Mich. 370; Wms. Exrs. 821, and Per- kins's note. This does not render him liable to account to the estate for such rents. Head v. Sutton, 31 Kan. 616. And see § 510. ' Aston's Estate, 5 Whart. 228 ; Fromberger v. Greiner, 5 Whart. 350. ^ Drinkwater v. Drinkwater, 4 Mass. 354. Nor a homestead set apart for the wife. 120 Cal. 421. Heirs, and not the administrator, should enforce a trust in land in favor of the decedent. Field V. Andrada, 106 Cal. 107. Or a writ of entry brought by demandant, so far as tne right to sue may continue. 152 Mass. 257. Money due the decedent for land 2 which he sold when alive is personalty. 137 Penn. St. 454, 457. ^ Carpenter z/. Fopper, 94 Wis. 146. * 167 Mass. 205. 5 Willis V. Smith, 65 Tex. 656. But statutes sometimes extend the repre- sentative's right in this respect. 122 N. C. 683; 150 Ind. 260; 71 Wis. 148. ^ Hoffman v. Wilding, 85 111. 453 : sale of lands, Part VI., c. 2, post. In Arkansas and some other States the law is that the real as well as the per- sonal estate of the deceased shall be treated as assets in the hands of the representative; neither species of prof)- erty, however, to be sold without an order of the probate court. Tate v. Norton, 94 U. S. 746; Meeks v. Vas- sault, 3 Sawyer, 206. In Delaware, too, at a very early period under the pro- prietary government, the common law was changed in this respect ; lands were made liable as well as chattels for the 99 § 2 14 EXECUTORS AND ADMINISTRATORS. [PART III. § 2 1 4. Real Estate of Mortgagor or Mortgagee ; Rule of Assets. — Where one dies seized of real estate incumbered by a mortgage, the land descends to heirs or devisees subject to that special in- cumbrance ; in other words, the equity of redemption vests in them. If such mortgage be afterwards foreclosed and the land sold, any surplus on the sale is regarded as realty, and goes to the heirs or devisees ; and the representative, as such, cannot re- gard it as personal assets nor sue to recover it,' except for the contingency of having to sell under a license, as already noticed. Generally, when land is sold for a specific purpose or under a mortgage, the surplus money, as also between the heirs and next of kin, is considered as land ; but after it has once vested in the person entitled to it, it becomes money, and on his death passes to his own representatives as personal estate.^ As for the mortgagee of real estate, such mortgage before foreclosure is only security in his hands for indebtedness or a liability, and equity treats it as a chattel interest, which passes to the executor like the principal cJiosc in action.'^ The same doctrine applies to the assignee of a mortgage.'' Where lands mortgaged to the deceased are taken into possession, and fore- closed after his death by his executor or administrator for breach of condition, the executor or administrator shall hold the estate until his functions touching it are fully performed, or until distri- payment of debts, and they might be of an ordinary purchaser. Johnson v. taken and sold on execution process, or Patterson, 13 Lea, 626. sold by executors and administrators ^ Sayers's Appeal, 79 Penn. St. 428 ; for the debts of their decedents. Vin- Foster's Appeal, 74 Penn. St. 391 ; cent V. Piatt, 5 Harring. 164. See also Sweezy v. Willis, i Bradf. (N. Y.) 495. Jones V. Wightman, 2 Hill (S. C.) 579 ; ^ Wms. Exrs. 687 ; Tabor v. Tabor, Jennings v. Copeland, 90 N. C. 572. 3 Swanst. 636; Jones and other general ' Though the mortgage provides that writers on Mortgages ; Chase v. Lock- the surplus shall be paid to the mort- erman, 11 Gill & J. 185 ; Fay z/. Cheney, gagoror"his executors or administra- 14 Pick. 399; Steel v. Steel, 4 Allen, tors," this is the true construction to 417; Burton v. Hintrager, 18 Iowa, place upon the transaction. Dunning 348. A Welsh mortgage follows this V. Ocean Nat. Bank, 61 N. Y. 497. rule. Longuet v. Scawen, i Yes. Sen. And see Cox v. McBurney, 2 Sandf. 406. 561. Cf. Heighway v. Pendleton, 15 ■♦ Statutes sometimes emphasize the Ohio, 735. So where heirs of the rule of the text. Mass. Gen. Stats, c. mortgagee buy in the land at a fore- 96, § 9. closure sale, their position is like that 300 CHAP. I.] ASSETS OF AN ESTATE. § 2l6 bution ; ' and such property, it would appear, is to be held and dealt with like other personal assets, this being its character when the representative's title vested by reason of the owner's death.' § 21 5. Rule of Assets as to Lands set off in Execution. — Land set off to an executor or administrator upon an execution recov- ered by him on a debt which was due to the deceased personally, appears to follow the same rule as in the representative's fore- closure of a mortgage. The right of action, in other words, having once vested in the representative, whatever may be real- ized thereon afterwards goes properly as assets for the general benefit of the estate, being the result of a prudent pursuit or enforcement of that right ; and hence the real estate taken on execution, or its proceeds, will vest in the representative as per- sonal assets, to be paid out or distributed eventually, and mean- while held in trust.^ § 216. Rents, Profits, and Income of Real Estate; Damages, etc.; Rule of Assets. — The profits and income of real estate, inci- dental to its beneficial enjoyment, follow by operation of law the title to the premises. The rents of a decedent's lands (not being apportionable at common law) go according to this prin- ciple, in the absence of local statutes providing for apportion- ment. The rents accruing previous to the lessor's death belong to his personal representative, and those accruing after his death to the heir or devisee.* ' Boylston v. Carver, 4 Mass. 598 ; •• Tayl. Landl. & Ten. § 390 ; supra. Palmer v. Stevens, 11 Cush. 148; Terry § 213; Peck v. Ingersoll, 7 N. Y. 528; 7'. Ferguson, 8 Port. 500 ; Harper v. Stinson v. Stinson, 38 Me. 593 ; Spar- Archer, 28 Miss. 212; Taft V. Stevens, hawk v. Allen, 25 N. H. 261 ; Gibson 3 Gray, 504. v. Farley, 16 Mass. 280; Fay v. Hol- * Local statutes are found to affirm loran, 35 Barb. 295 ; Kohler v. Knapp, this rule. Mass. Gen. Stats, c. 96, i Bradf. 241 ; Robb's Appeal, 41 Penn. §§ 9-12. St. 45 ; King V. Anderson, 20 Ind. 385 ; ' Boylston v. Carver, 4 Mass. 598; Foltz v. Prouse, 17 111. 487 ; Foteaux v. Taft V. Stevens, 3 Gray, 504. Local Lepage, 6 Iowa, 123; Smith v. Bland, statutes confirm this rule. Mass. Gen. 7 B. Mon. 21; Flemings-. Chunn, 4 Stats, c. 96, §§ 9-12; Williamson v. Jones Eq. 422 ; Bloodworth 7^. Stevens, Furbush, 31 Ark. 539. 51 Miss. 475; Crane v. Guthrie, 47 301 § 217 EXECUTORS AND ADMINISTRATORS. [PART III. So, too, a lessor's claim for damages accruing after his death goes with the title to the heir or devisee.' § 2 1 7- Legal Character of Property, Real or Personal, fixed at Owner's Death; Rule of Equitable Conversion. — In general, SO far as executors or administrators are concerned, the character of property, whether as real or personal, is that impressed upon it at the death of the testate or intestate, and does not change by any subsequent conversion in the course of administration.^ Indeed, a testator cannot alter the legal character of his real or personal property by directing that it shall be considered of the one class instead of the other.^ In equity, however, that which should have been done is treated in many instances as actually done; agreeably to which maxim, money is often to be regarded as land, and land as money ; though the principle is not, apparently, pushed to the extent of allowing property to be retained in the one shape, and yet devolve in title as though it were of the other.'* An equita- ble conversion may take place, therefore, subsequently to the testator's death, by reason of directions contained in the will itself and properly executed. Such conversion, however, is not favored, nor extended upon inference. Accordingly, a testa- tor's direction to convert his real estate into personalty, for specified purposes, must be restricted to those objects, and any surplus proceeds after execution of the power will go as realty ; 5 though, should it clearly appear that the testator intended an absolute conversion for all the purposes of the will, the proceeds Iowa, 542 ; 8o Ala. 388. So, too, where ^ Hamer v. Bethea, ii S. C. 416; rent is payable in kind. Cobel z/. Cobel, Rogers v. Paterson, 4 Paige, 409. 8 Penn. St. 342. Except as to payment ^ Wms. Exrs. 657; Clay z/. Willis, i in crops not yet ripe. Wadsworth t. B. & C. 364; Johnson z/. Arnold, i Ves. Allcott, 6 N. Y. 64. 171. Accordingly, the executor of a lessor * Wms. Exrs. 659 ; i Jarm. Wills, 3d might distrain for arrears of rent due at Eng. ed. 551. the time of the testator's death, but not ' Wms. Exrs. 658; Fletcher v. Ash- for rent which accrued subsequently, burner, i Bro. C. C. 497 ; Hill v. Cock, Taylor Landl. & Ten. § 570. 1 Ves. & Bea. 173. And see Foster's ' Kernochan v. Elevated R. R. Co., Appeal, 74 Penn. St. 391 ; Thoma.s, 128 N. Y. 559. Petition of, 4 Thomp. & C. (N. Y.) 410. 302 CHAP. I.] ASSETS OF AN ESTATE. § 2lS will constitute assets in the hands of the executor, for the pay- ment of legacies as well as of debts and funeral expenses.' Again, there may be a constructive conversion of real into per- sonal, or personal into real, property, at the time of the testa- tor's decease.^ In the administration of an intestate estate, the rule of equi- table conversion is of little or no practical consequence. But in administration under a will it may be found of much import- ance. In the latter instance, the general rule deducible from English and American decisions is, that, vi^here the will shows unequivocally that the testator meant to convert real estate into personal, the law will consider the conversion as actually made at the death of the testator, and treat the estate as personal for all the purposes plainly intended by the will.^ Conversely, where the testator shows a clear intention that personal estate shall be converted into real, as by an explicit direction that certain money shall be laid out in land and settled on A. in fee, the money is descendible at once upon the testator's death, with the usual incidents of real estate tenure. •♦ In either case, the death of the surviving legatee or devisee, before an actual conversion takes place, and before the administration is com- pleted and the claims of creditors disposed of, causes a devolu- tion of title as between his personal or real representatives, according to the character impressed upon the property by the testator's will. But an intended postponement, or an option or discretion conferred by the will upon the executors, should post- pone the constructive conversion to the time when conversion, by sale or otherwise, actually takes place.' There may be an ' Smith V. First Presby. Church, 26 Smith v. First Presby. Church, 26 N. J. N. J. Eq. 132; Hammond ?'. Putnam, Eq. 132; Phelps v. Pond, 23 N. Y. 69; no Mass. 235; Phelps v. Pond, 23 Craig !■'. Leslie, 3 Wheat. 562. N. Y. 69. " Bramhall v. F"erris, 14 N. Y. 41 ; ^Hammond v. Putnam, no Mass. Phelps p. Pond, 23 N. Y. 69; Dodson 232, and cases cited. v. Hay, 3 Bro. C. C. 404 ; Wms. Exrs. ^ Johnson v. Woods, 2 Beav. 409 ; 658, and Perkins's note. CoUier v. Collier, 3 Ohio St. 369 ; Mor- ^ Bective v. Hodgson, 10 H. L. Cas. ton, J., in Hammond v. Putnam, no 667; De Beauvoir, Re, 3 H. L. Cas. Mass. 36; I Jarm. Wills, 3d Eng. ed. 524. 549 ; Wms. Exrs. 662, Perkins's note ; § 2l8 EXECUTORS AND ADMINISTRATORS. [PART III. equitable interest in land which passes to the executor or ad- ministrator and is assignable by him.' § 218. Character of Property at Owner's Death; lustances ; Contract to Sell; Land Damages; Fire-insurance Money, etc. — Where a deed executed by the vendor of real estate is held by some third person as an escrow, to be delivered upon the pay- ment of an unpaid balance of the purchase-money, the death meantime, of the vendor will cause the estate to descend to the heirs, subject to the vendee's equitable right to a conveyance.' A contract for the sale of land passes, as a beneficial right for enforcement, to the executor, as between him and the heir or devisee, for it is personalty ; ^ while the estate to the land vests, in equity, in the vendee, and in case of the latter's death goes to his heirs, and not to the personal representative.'' Where a testator devises land, to which he still holds the legal title, but which he has sold, giving to the purchaser a bond for a deed, the purchase-money, when paid by the purchaser, will belong to the devisee.5 Damages assessed in favor of land taken for pubUc uses, be- fore the owner's death, though not made payable until after his death, pass as assets to the executor or administrator ; but oth- erwise, if the land was not taken until after the owner's death. ^ So, if a person sells real estate and dies afterwards, that portion of the purchase-money which remains unpaid must be treated as personal property and assets, however the same may have been secured.^ Insurance money paid to the heirs on a fire insurance of the decedent's real estate, the buildings being burned after his death, ' Atkinson v. Henry, 80 Mo. 670. win v. Milton, 25 N. H. 458; Neal v. * Teneick v. Flagg, 29 N. J. L. 25. Knox R. Co., 61 Me. 298. Escrows are to be respected. See i B. ' Loring v. Cunningham, 9 Cush. 87 ; & Aid. 606. Henson v. Ott, 7 Ind. 512; Everit, ' Moore v. Burrows, 34 Barb. 173; Matter of, 2 Edw. 597; Sutter v. Ling, Williams z/. Haddock, 145 N. Y. 144. 25 Penn. St. 466. Where one dies *■ lb. ; Champion v. Brown, 6 John, having an interest in mortgaged land Ch. 398. sold under proceedings in partition, such ' Wright V. Minshall, 72 111. 5.S4. interest being vested, is not real but '• Astor V. Hoyt, 5 Wend. 603; personal estate. Jacobus v. Jacobus, Welles V. Cowles, 4 Conn. 182 ; Good- 37 N. J. Eq. 17. 304 CHAP. I.] ASSETS OF AN ESTATE. §219 vests in the heirs, Uke the realty, and constitutes no part of the ordinary personal assets of the deceased.' But if the buildings were burned while the decedent was alive, any claim for unpaid insurance money should, on principle, constitute assets for the personal representative to collect and administer upon. § 219. Gifts Causa Mortis, etc., as affecting Question of Assets. — - A gift of personal property causa mortis, which differs from ordinary gifts in being made with an anticipation of imminent death, and constituting a sort of ambulatory disposition by de- livery, without the essential formalities of a will, carries two distinct consequences, when fully executed and followed by the donor's death : one with respect to the donee himself, the other as concerns creditors of the estate. As concerns the donee, his title is derived directly from the donor and not from the donor's executor or administrator ; consequently, the assent of such representative after the donor's death is not in any way essential to the donee's title, nor has the executor or adminis- trator any claim whatever upon the property for the ordinary purposes of administration and the claims of distributees.^ At the same time the executor or administrator of an alleged donor has corresponding rights against all persons retaining property of the deceased under the fictitious claim of donees causa mortis, and it is his duty to dispossess them.^ But with regard to the donor's creditors, the universal principle is, as in the case of gifts inter vivos, that the transfer shall not be allowed to defeat the just claims of creditors ;■♦ and accordingly, upon an utter deficiency of assets to pay the lawful claims of creditors, any gift causa mortis must give way so far as may be requisite to discharge lawful demands.^ ' Wyman v. Wyman, 26 N. Y. 253; ^ Egerton v. Egerton, 17 N. J. Eq. Harrison v. Harrison, 4 Leigh, 371. 419. As to owners subject to life estate, see ^ 2 Bi. Com. 514; 2 Kent Com. 448; 42 Hun (N. Y.) 423. Dig. 39, 6, 17; 2 Schoul. Pers. Prop. * 2 Schoiil. Pers. Prop. § 193; Gaunt § 193. t'. Tucker, 18 Ala. 27 ; Michenerz'. Dale, * Dniry v. Smith, i P. Wms. 406; 23 Penn. St. 59; Westerlo z/. De Witt, Ward v. Turner, 2 Ves. Sen. 434; 36 N. Y. 340. See Wadsworth v. Chick, Michener v. Dale, 23 Penn. St. 59 ; 55 Tex. 241. Chase t/. Redding, 13 Gray, 41S; Borne- 20 305 § 220 EXECUTORS AND ADMINISTRATORS. [PART III. § 2iga. Effect of Insolvency; Equitable Assets. — The effect of decreeing in,solvency in a decedent's estate is merely to de- termine the status of the estate and to bring the exclusive ad- justment of legal claims for the just benefit of creditors into the probate court ; it does not affect the right to assert in a court of equity an equitable title to property whose legal title was in the decedent during his lifetime.' § 220. Assignment, Gift or Transfer by the Decedent, to be avoided if Fraudulent as against his Creditors. — - Any gift, assign- ment, conveyance, or transfer of property within the statute 13 Eliz. c. 5, and analogous legislation, is void against creditors; and, consequently, it becomes the duty of a personal represen- tative to procure the property by instituting, on their behalf, appropriate proceedings, considering the means of litigation at his disposal and the proof obtainable.- So, too, the personal representative may and should resist the collection of a note or demand against the estate, grounded upon a fraudulent transfer by the deceased.^ Generally speaking, property which has been assigned or conveyed by the deceased, after the manner of a gift, confers a title upon the donee or grantee, subject to the lawful demands of prior existing creditors of the estate. The executor or administrator, representing these and other interests against the express or implied wishes of the deceased himself, if need be, may and ought to procure all assets suitable for dis- charging demands of this character. But if any balance is left man v. Sidlinger, 15 Me. 429. The sometimes been disputed whether the general topic of gifts ca7esa mortis, is executor or admimstrator of an insol- fully treated in 2 Schoul. Pers. Prop, vent donor can set aside the gift ; but §§ 135-198. And see Wms. Exrs. 770- it is clear that the creditors can 783. A deposit of personalty in one's pursue their own remedies, in which life, which is purely ambulatory and case the personal representative of the creates no valid trust by way of gift be- deceased is a proper party, so that the longs to the executor or administrator property when recovered may go in a as assets. Gilman v. McArdle, 12 Abb. course of administration, i Am. Lead. N. Cas. 414. Gas. 43; 2 Schoul. Pers. Prop. §§ iii- ' Long V. King, 117 Ala. 423. 123; Blake v. Blake, 53 Miss. 183. ^ Wms. Exrs. 1679, and note by Per- ^ Cross v. Brown, 51 N. H. 486; kins; Martin v. Root, 17 Mass. 222; Welsh v. Welsh, 105 Mas.s. 229. See, Preston v. Cutter, 65 N. II. 85. It has also, Gilman r'. McArdle, 99 N. Y. 451. 306 CHAP. I.] ASSETS OF AN ESTATE. § 221 over, it goes, not to the next of kin, but to the donee ; for the revocation of any gift for the benefit of creditors of the decedent is only/;f tanto.^ The personal representative's right and duty to have a fraud- ulent transfer set aside, may extend to proceedings by bill in equity to reach real estate thus fraudulently conveyed ; so far, at least, as the interests of creditors may require real property to be reached for the satisfaction of debts and the fulfilment of the duties of administration, without conflicting with the main principle upon which voluntary conveyances are treated, as within the statute prohibition above referred to ; and subject, of course, to the rule which exhausts the personal assets first. ^ Questions of this character properly concern the settlement of the estates of those who die insolvent. As a general rule, what- ever the decedent has fully given away without expectation of repayment, is not due the estate as assets.^ § 221. Equitable Assets as distinguished from Legal Assets. — The English law of administration has taken some pains to dis- criminate between legal assets and equitable assets of an estate ; referring to the latter head, such assets as are liable only by the help of a court of equity, and not recognized as assets at law. The point of the distinction lies in this : that courts of equity disapprove those rules of priority among creditors which were early established by the common-law tribunal, and ranked all debts alike, whether founded in specialty or simple contract, ' McLean v. Weeks, 6i Me. 277 ; tice, in other words, as to gifts inter Abbott V. Tenney, 18 N. H. 109; Reade 7>ivos follows the course so frequent in V. Livingston, 3 Johns. Ch. 481 ; 2 the essentially distinct case of a gift Schoul. Pers. Prop. §§ 111-123; Burtch causa mortis, namely, to permit the ex- V. Elliot, 3 Ind. 100. But the expenses ecutor or administrator, as quasi repre- of administration should be defrayed sentative of the creditors, to recover out of the fund before the donee can the property or its value to the extent claim a balance. McLean v. Weeks, requisite. lb. As to avoiding as fraud- supra; Bassett v. McKenna, 52 Conn, ulent the assignment of a life policy by 437. An action by a representative, to the decedent, see Spooner v. Hilbish, recover money alleged to have been ob- 92 Va. t,^^. tained under a lease assigned the de- - Wms. Exrs. 1679, i68o; 3 B. & Ad. fendant by the decedent in fraud of his 362. creditors, is cognizable at law. Doe v. ' See Kelsey v. Kelley, 63 Vt. 41. Clark, 42 Iowa, 123. Our local prac- § 221 EXECUTORS AND ADMINISTRATORS. [pART III. this being most consonant to natural justice.' To stretch judi- cial power arbitrarily, however, in order to further ends which it lies rather within the province of legislation to accomplish, is incompatible with American rules of procedure ; and American courts of equit)' rarely, if ever, enforce such a distinction ; the old rules of priority having, instead, been altered by suitable enact- ments in most parts of the United States, or else rendered as tolerable as possible by being administered with uniformity.-' In England, moreover, the chancery courts appear to have abated some of their former pretensions in this respect, by con- ceding latterly, though not without reluctance, that an equity of redemption in chattels, real or personal, constitutes assets at law in the hands of the executor or administrator for whatever it is wortli over and above the security ;3 or in other words, that whatever devolves in title upon the executor or administra- tor, by \'irtue of his office, shall be treated as legal assets.* But with regard to such property of the deceased as consists of the proceeds of the sale of real estate, the English rule appears to settle that such proceeds are equitable and not legal assets; though there has been some question whether devises of land to executors for sale, or for the payment of debts and legacies, im- press the proceeds with the character of equitable assets.' It is ruled conformably to the main distinction, that, where assets are partly legal and partly equitable, equity cannot take away the legal preference on legal assets, and yet may postpone a creditor who has been partly paid out of the legal assets, so as to make an equal satisfaction out of the equitable assets for all the credi- tors.^ In the United States, and apparently in England, also, the better rule is that a right of equity of redemption in prop- ' W^ms. Kxrs. 1680-1685. ' Clay v. Willis, i B. & C. 364 ; Bain ' See § 417 as to payment of debts; v. Sadler, L. R. 12 Eq. 570 ; Wms. Sperry, Estate of, i Ashm. 347. Exrs. 1684. Contra, Girling v. Lee, i ' Wms. Exrs. 1682; Sharpe 7\ Scar- Vern. 63. A debt for money loaned by borough, 4 Ves. 541; Wison z/. Field- the representative under a power in the ing, 2 Vern. 763. Contra, Cox, Credi- will secured by mortgage of real estate tors of, 3 P. Wms. 342 ; Hartwell v. is in equity regarded as personal assets. Chitters, Ambl. 308. Dunham v. Milhouse, 70 Ala. 596. ■• Story Eq. Jur. § 551 ; Wms. Exrs. '' Chapman v. Ksgar, i Sm. & G. 575- 1682; Cook V. (jregson, 20 Jur. 510. 308 CHAP. I.] ASSETS OF AX ESTATE. § 222 erty, real or personal, should be treated as assets available, like any other legal assets of the estate ; ' if, indeed, the distinction between legal and equitable assets be tenable at all. § 222. Assets -where Property is appointed under a Power. — Where a person has a general power of appointment, either by deed or by will, and executes that power, the property appointed is deemed in equity part of his assets, and rendered subject to the demands of his creditors in preference to the claims of his voluntary appointees or legatees." ' 4 Kent Com. 162 ; Cook v. Greg- son, 20 Jur. 510, per Kindersley, V. C. Such, after all, is the judicial inclination not to violate general rules for the set- tlement of estates, that later English chancery cases appear compelled to draw the distinction between legal and equitable assets into a fine thread. Thus, Kindersley, V. C, observes, in Shee V. French (3 Drew. 716), that the question whether assets are legal or equitable depends on this : whether, if the case were before a court of law, on an issue of plefie administravit, that court would treat the property as assets ; for the principle on which a court of law proceeds is to inquire whether the property came to the hands of the ex- ecutor virtuie officii ; if it did, the court of law regards it as assets applicable to the payment of the testator's debts, and then the court of equity treats it as legal assets. ^ "The rule perhaps had its origin," observes Gray, C. J., in a recent Massa- chusetts case, " in a decree of Lord Somers, affirmed by the House of Lords, in a case in which the person executing the power had in effect reserved the power to himself in granting away the estate. Thompson v. Towne, Prec. Ch. 52 ; s. c. 2 Vern. 319. But Lord Hard- wicke repeatedly applied it to cases of the execution of a general power uf ap- pointment by will of property of which the donee had never had any ownership or control during his life ; and while recognizing the logical difficulty that the power, when executed, took effect as an appointment, not of the testator's own assets, but of the estate of the donor of the power, said that the pre- vious cases before Lord Talbot and himself (of which very meagre and im- perfect repots have come down to us) had established the doctrine, that when there was a general power of appoint- ment, which it was absolutely in the donee's pleasure to execute or not, he might do it for any purpose whatever, and might appoint the money to be paid to his executors if he plea.sed, and, if he executed it voluntarily and without con- sideration for the benefit of third per- sons, the money should be considered part of his assets, and his creditors should have the benefit of it." Clapp 7'. Ingraham, 126 Mass. 200, 202, citing Townshend 71. Windham, 2 Ves. Sen. 1 ; Caswall, Ex parte, i Atk. 559, 560; Pack V. Bathust, 3 Atk. 269. "The doctrine," adds Gray, C. J., "has been upheld to the full extent in England ever since." lb., citing Fleming v. Buchanan, 3 De G. M. & G. 976 ; 2 Sugd. Powers, 7th ed. 27. Although the soundness of the reasons on which the doctrine rests has .since been im- pugned arguendo by Gibson, C. J., and doubted by Mr. Justice Story (see Story 309 § 223 EXECUTORS AND ADMINISTRATORS. [PART III. § 223. Chattels Real as Assets; Leases, etc. — Inasmuch as the personal but not the real estate of the decedent vests as assets in his executor or administrator, a clear idea should be retained of the peculiar discrimination which our common law makes between these two grand classes of property. Mobility and immobility appear to be the fundamental test in all systems of jurisprudence ; but at the common law there was the free- hold estate in lands, which might be either one of inheritance or for life, while to all inferior interests and movables proper was applied the term "chattel" ; so that personal property at our law has been essentially property the residuum of the free- hold, and divided into chattels real and chattels personal.' Chat- tels real vest consequently in the executor or administrator of the lessee, whether as a valuable beneficial and assignable interest, which maybe disposed of at a profit, or as involving rather a bur- densome obligation to be discharged out of the decedent's estate. Of chattels real the only important one in modern times is the lease.^ The good-will of an established business and a lease- hold interest go often together as valuable assets.^ So, too, the good-will of a renewal of the lease should, if valuable, be included.'* As assets, leases have, however, peculiar incidents. Rent may issue out of lands and tenements, or it may be Eq. Jur. § 176, and note), it has been see for life holds an estate pur auter considered well settled in the United vie, which, by our statute, is a freehold States. Clapp v. I ngraham, i-?^/r«; 4 during the assignee's life; but on his Kent Com. 339,340; Johnson 57. Cush- death a chattel real and assets in the ing, 15 N. H. 298; Commonwealth?/, hands of his administrator. Mosher z/. Duffield, 12 Penn. St. 277, 279-281. Youst, t^t, Barb. 277. An estate for See, also, Wms. Exrs. 16S6. another's life, which at common law ' I Schoul. Pers. Prop. §§ 6, 7 ; 2 Bl. fell on the grantee's death to the first Com. 385, 386; Wms. Exrs. 670-690. person who could get it, is affected by ^ Murdock v. Ratcliff, 7 Ohio, 119; stat. 29 Car. II. c. 3, § 12, which favored Wms. Exrs. 674 ; i Schoul. Pers. Prop, treating it as a.ssets of the grantee's § 20; Lewis V. Ringo, 3 A. K. Marsh, estate. It may be disposed of by will, (Ky.) 247; Thornton v. Mehring, 117 however, under .stat. i Vict. c. 26, §3. 111. 55. Chattels personal, upon which See Wms. Exrs. 681, 682. the term " personal j^roperty " is more ^ Wiley's Appeal, 8 W. & S. 244. commonly bestowed, have already been ^ Green v. Green, 2 Redf. (N. Y.) considered. See, al.so, as to the English 408. Where a lessee hired premises by attendant terms of years, mortgaged for parol agreement, a lease being drawn family trust arrangements, 1 Schoul. \\\> but not signed, and entered before Pers. Prop. § 43. The assignee of a les- his death, and made valuable improve- 310 CHAP. I.] ASSETS OF AN ESTATE § 225 paid in consideration of real and personal property blended, as where a furnished house is let,' If the administrator of a de- ceased tenant takes possession of a leased estate and continues on under the terms of the lease, the profits of the land, it is said, are first liable for the payment of the rent, and only what remains can constitute assets of the estate.^ This rule appears an equitable one. But under the New York statutes it is held that where one dies holding leases upon which arrears of rent are due, and there were also certain sums due him for storage of goods on the leased premises, assets exist to be applied among creditors without any preference in favor of the lessor.^ § 224. Chattels -wrhich come by Remainder as Assets. — Chat- tels which never vested in possession in the testator may never- theless come to his executor by remainder as assets ; as if a lease should run to A. for life, with remainder to his executor for years.'* § 225. Things on the Border-Line of Real and Personal; Rule of Assets applied to Heirlooms. — Finally we come to things at the border-line which separates real estate and personal or chat- tel property at the common law. The three classes here notice- able are (i) heirlooms, (2) emblements, and (3) fixtures. Heirlooms are not favored in American law ; and so far as ments, the lease is enforceable in equity, " The cases on the subject of a lease and should therefore be deemed an as- devolving on an executor, where the rent set for the whole term. lb. reserved exceeds the value of the prem- A lease for ninety-nine years is a ises, are involved in some difficulty. I chattel real (in absence of statute think, however, upon the authorities, as changes), and constitutes, on the lessee's well as on principle, that, where the death, assets for administration. Faler rent reserved exceeds the value of the V. McRae, 56 Miss. 227. premises, an executor, in the character ' Mickle z/. Miles, i Grant (Pa.) 320, of assignee, is Hable to the extent of such 328, /^r Lowrie, J. See supra, § 216, value ; and, where the value exceeds the as to rent. rent reserved, to the extent of such ^ Mickle V. Miles, i Grant (Pa.) 320. rent." Mr. Justice Maule in 6 C. B. ^ Harris v. Meyer, 3 Redf. (N. Y.) 756; Bowes, Re, 37 Ch. D. 128. 450. See post. Part IV., as to the pe- ■* Com. Dig. Assets C ; Wms. Exrs. culiar rights and liabilities of the per- 1658. sonal representative with reference to chattels real. § 226 EXECUTORS AND ADMINISTRATORS. [pART 111. such things cannot be treated as strict fixtures, their title seems to have been excepted from the ordinary rules of devolution upon death, out of favor to the heir, in accordance with some local custom which gratified family pride.' The armor and in- signia of an ancestor, family portraits, crown jewels, and the like, come within the principle of this exception. According to Coke, articles of less dignity, like the best bed, table, pot, pan, and cart, might go in this manner ; and out of regard to a sort of connection with the freehold, if not annexation, which they bore, keys, title-deeds, and other muniments of the inheritance, together with the chest containing them, went also to the heir.^ To all this curious learning American courts pay little heed ; but whatever may be pronounced heirlooms go with real estate to the heir, and the executor or administrator cannot treat them as assets more than the real estate itself. Indeed, it is held that though the owner might have disposed during life of chat- tels which would otherwise descend as heirlooms, he cannot de- vise or bequeath them by his will, but they shall vest in the heir on the instant of the donee's death.^ § 226. Rule of Assets applied to Emblements. — Next, as to " emblements," a word associated with chattels vegetable and growing crops. Here the rule is, that when the owner of real estate dies, trees and their fruit and produce, if hanging on the trees at the time of his death, also hedges and bushes, go to the heirs and not to the executor or administrator ; the reason be- ing that they are part of the real estate and not chattels.'* But out of favor to agriculture, and to aid the intentions of one who has bestowed labor upon a crop which by reason of some unfore- seen contingency is beyond his control, the unsevered property is sometimes treated as though already severed ; a rule which ' I Schoul. Pers. Prop. § 95 ; 2 Bl. 1 Schoul Pers. Prop. § 99. The topic Com. 427 ; Wms. Pers. Prop. 5th Eng. of heirlooms is discussed at lengUi in ed. 12. I Schoul. Pers. Prop. §§ 95-99. * lb.; Co. Jit. 18 b; Upton t\ Lord " i Schoul. Pers. Prop. § 102; Swinb. Ferrers, 5 Ves. 806; Harrington v. pt. 7, § 10, pi. 8; Wms. Exrs. 707; Price, 3 B. & A. 170; Alhvood v. Hey- Rodwell v. Phillips, 9 M. & W. 501 ; wood, II W. R. 291. Maples z/. Milton, 31 Conn. 598. ^ Tipping z'. Tipping, i P. Wms. 730; 312 CHAP. I.] ASSETS OF AN' KSTAT?:. § 2 26 obtains with much force as between tenant and landlord, where the tenancy has suddenly determined by act of God or the act of the law.' If an owner sows his land, and then conveys it away, he passes the title to growing crops as well as the soil, and his executors and administrators have no concern in either.^ So, too, one's devise of land carries presumptively the growing crops. ^ Crops of the year not actually sown or planted by the decedent do not come within the benefit of the rule of emble- ments ; ■♦ nor, as a rule, growing clover or grass, which is a natural product of the soil renewed from year to year.5 But as to grain, corn, potatoes, or any other product of the soil which is raised annually by labor and cultivation, and re- turns periodical profit only by periodical planting, the labor bestowed affords reason, on the casualty of death happening, for application of the rule of emblements ; hence, such growing crop of a decedent goes as personal assets to his executor or administrator, and not with the title to the land.^ But with crops planted and grown after the death of the owner, adminis- tration has nothing to do.^ Where one grants away trees growing on the soil, they go to the grantee's executor or administrator whether felled or not ; and where one grants land with express reservation of the trees, the trees go to the grantor's executor or administrator; for ' I Washb. Real Prop. 104 et seq.; i Humphrey v. Merritt, 51 Ind. 197; Schoul. Pers. Prop. § 106. Wadsworth v. Allcott, 6 N. Y. 64; ^ I Schoul. Pers. Prop. § loi ; i Thornton z/. Burch, 20 Ga. 791 ; Single- Washb. Real Prop. 104; Footer. Col- ton v. Singleton, 5 Dana, 92; Wms. vin, 3 Johns. 216. Exrs. 711 ; Evans v. Roberts, 5 B. & C. ^ Shofner v. Shofner, 5 Sneed, 94; 832; Gwin v. Hicks, i Bay (S. C.) Fetrow v. Fetrow, 50 Penn. St. 253. 503. Local statutes are found on this As to crops growing on a household subject. Green v. Outright, Wright farm, see Budd v. Hiler, 27 N. J. L. 43. (Ohio) 738; Thompson v. Thompson, ■• Gee?'. Young, i Ha5rw. (N. C.) 17; 6 Munf. 514. While an administrator Rodman v. Rodman, 54 Ind. 444. may gather the crop of the intestate, he 5 Kain v. Fisher, 6 N. Y. 597 ; Evans is not obliged to do so, and if he does V. Inglehart, 6 Gill & J. 188; i Schoul. not it is not assets ; and if the widow Pers. Prop. § 105. And this rule appears gathers it, it is hers as against the ad- rigidly to apply even though the natural ministrator. Blair 7/. Murphree, 81 Ala. product be increased by actual cultiva- 454. If he gathers, he must account tion. lb. But see Wms. Exrs. 712. strictly. Perkins 7'. Sturdivant (Miss.). '■ Penhallow v. Dwight, 7 Mass. 34 ; ' Kidwell v. Kidwell. 84 Ind. 224. § 22/ EXECUTORS AND ADMINISTRATORS. [PART lit. under these peculiar circumstances the grant itself makes a constructive severance, so as to render the trees transmissible as personal property.' § 227. Rule of Assets applied to Fixtures. — Of these mixed things, the most important class at the present day is that of "fixtures"; the very word, now so common in legal parlance, being of modern origin and variously defined, but, on the whole, signifying chattels annexed in a manner to the ground, concern- ing which the right to remove comes in controversy. The ob- ject and purpose of the annexation must be considered in all cases of fixtures ; and the law is more or less liberal, according as it appears that the chattel was affixed for purposes of trade, for purposes of ornament, or for domestic purposes. In order to constitute annexation within the rule of fixtures, the article in question must have been let into or united with the land or to substances previously connected with it; for mere juxtaposi- tion, such as laying a pile of lumber on the ground, leaves the lumber mere personal property.^ Chattels lying on the ground, at the death of the owner, vest, of course, in his executors and administrators as personal assets ; while the land itself, and per- manent erections thereon, go to the heir or devisee. But an- nexation is not a conclusive test ; since there are things, such as doors, blinds, and shutters, which pass with the soil or build- ings, from regard to their own nature and adaptation to the pur- pose for which they have been used, though so slightly annexed as to be easily removed ; and on the other hand, heavy articles like mirrors, pictures, and wardrobes, fastened into the wall, which, out of corresponding regard, are to be treated still as chattels.^ Various considerations are to be applied in determin- ' Hob. 173; 4 Co 6;^ b; Wms. Exrs. property, and the title vests in the per- 708. Co)itra if the grantee of trees sonal representative of the deceased, should unite thereto the purchase of the Clark v. Burnside, 15 111. 62. land, and not cut the trees. 4 Co. 63 b. ^ Winslow v. Merchants' Ins. Co., 4 ^ I Schoul. Pers. Prop. §§ 11 1-129; ^^t- 3 '4; i Schoul. Pers. Prop. § 113; Amos & Fer. Fixtures, 2, 3; Elwes v. 2 Smith Lead. Cas. 239, 251 ; Hare & Maw, 3 East, 32; s. c, 2 Smith Lead. Wall, notes; Sheen v. Rickie, 5 M. & Cas., Am. Notes, 228; Wms. Exrs. 72S W. 175. Manure taken from the barn- et seq. Rails in stacks are personal yard of a homestead and piled upon the < IIAP. I.] ASSETS OF AN ESTATE. § 22/ ing whether the right to take away, under the law of fixtures, shall or shall not be granted in a particular case. To classify, however, as in the leading cases on this some- what abstruse subject, there are two kinds of disputes which may concern the representative of a deceased person : first, where controversy arises between him and the heir or devisee; second, where it is between him and the remainder man or reversioner. As to disputes of the first kind, the cardinal rule is, that the right to fixtures (presuming the person to have died who an- nexed the chattels) shall be most strongly taken in favor of the heir or devisee as against the executor or administrator." The "incidents of a house," so to speak, are presumed to pass with the inheritance ; and of fixtures employed by the deceased in trade, encouragement to trade is not a doctrine to be invoked for the mere benefit of assets and administration.^ Concerning ornamental fixtures, the rule, though anciently strict in favor of the inheritance, appears to have relaxed, latterly, so as to give, at least, hangings, pictures, and mirrors fastened in the ordinary manner and easily detached, as well as portable furnaces, stoves, and ornamental chimney-pieces, to the personal representative, as chattels personal and assets.^ In some parts of the United States, as in New York, the legislature gives, on behalf of the executor, a more equal presumption in such controversy;"* and land is part of the realty, and does not affect the presumption under some cir- go to the personal representative. Fay cumstances. Wood v. Gaynon, i Ambl. V. Muzzey, 13 Gray, 53; Plumer v. Plu- 395; Birch v. Dawson, 2 Ad. & El. 37. mer, 30 N. H. 558. Cf. Aleyn, 32 ; ^ lb. ; Fisher v. Dixon, 13 CI. & Fin. Wms. Exrs. 731. 312; Amos & Fer. Fixtures, 154 et seq. ' I Schoul. Pers. Prop. § 119; Shep. 'Squierz/. Mayer, 2 Freem. 249; Wms. Touch. 469, 470 ; Colegrave v. Dias Exrs. 732-739 ; Beck v. Rebow, i P. Santos, 2 B. & C. 76; Fay v. Muz- Wms. 94 ; i Schoul. Pers. Prop. §§ 119, zey, 13 Gray, 53. Hop-poles in use 125; Blethen v. Towle, 40 Me. 310. for growing hops at the time of the But a heavy stove or furnace or a grate owner's death pass with the real estate, so set into the house as not to be readily Bishop V. Bishop, 11 N. Y. 123. The removed without disturbing brickwork same favor, it appears, should be ex- and masonry, cannot be taken by the tended to a devisee as to an heir; administrator as against the heir. Tut- though the discussion arises usually with tie z/. Robinson, 33 N. H. 104; Rex ». reference to the latter. In the case of St. Dunstan, 4 B. & C. 686. a devisee, however, the true intention " 2 Kent Com. 345 ; i Schoul. Pers. of the will is an element which might Prop. § 119; House ». House, 10 Paige, § 227 EXECUTORS AND ADMINISTRATORS. [PART lit. as the kindred to take, whether by descent or distribution, are nearly identical in this country, less dispute need arise than in England, where the inheritor of land in a family is treated with favor in various ways. When such disputes exist, the usual rule applies, that the status of the property at the owner's death must determine its nature and the consequent devolution of title.' As between the executor of a life tenant and the remainder man or reversioner, the common law appears to favor the soil rather less, and the representative desiring to take rather more ; for here are not antagonizing claims of title, as between realty and personalty, but the landed interest of one under a will is compared with that of another, the court desiring to carry out the testator's intent. In this case, to do full justice to the estate of a life tenant, erections for trade as well as do- mestic purposes have been permissively disannexed on the life tenant's death, for the benefit of his estate. The case, though not quite so strong as between landlord and tenant (to use Lord Hardwicke's expression), is governed by the same reasons.^ But where chattels remain on the premises, disannexed, at the death of one tenant for life, the next tenant for life cannot preju- dice or affect the rights to vest at his death, by attaching them to the freehold. 3 157. Chandeliers, gas-fixtures, and a case where hop-poles stood in the private apparatus for generating gas will ground for use at the testator's death, pass to the heir, it is held, as against the but were afterwards taken up for the executor or administrator. Lawrence purpose of picking the hops and heaped V. Kemp, I Duer, 363 ; Johnson v. in the yard. Wiseman, 4 Mete. 357 ; Hays v. Doane, ^ Lord Hardwicke in Dudley v. II N. J. Eq. 84, 96, /^r Williamson, Ch. Warde, Ambl. 113. See also i H. Bl. But chandeliers, brackets, and other 260, n.; Elwes v. Maw, 3 East, 54 ; 2 things readily detachable, and sold else- Smith Lead. Cas. 245 ; i Schoul. Pers. where, are certainly not part of the Prop. § 120; Wms. Exrs. 741-743. realty, nor presumably sold or let with a ^ D'Eyncourt v. Gregory, L. R. 3 Eq. house under all circumstances; alitcr, 382; Norton v. Dashwood, (1896) 2 Ch. as it seems, with the running gas and 497. Pews in church are by the corn- water pipes, in controversies of the pres- mon law real estate, and the title goes ent kind. See Vaughen v. Ilaldeman, accordingly ; but in some States they 33 Penn. St. 522 ; Montague v. Dent, are made personal property by statute. 10 Rich. 135. 1 Schoul. Pers. Prop. § 132; McNabb-'. ' Bishops^. Bishop, 11 N. V. 123, is a Pond, 4 Bradf. (N. \ .) 7. As to fix- 316 CHAP. I.] ASSETS OF AN ESTATE. § 228 § 22"] a. Rule of Assets applied to Severance of Land Prod- ucts, etc. — Trees which are blown down to such an extent that they cannot grow as trees, are pronounced assets for the exec- utor, on the principle of severance ; while trees that would con- tinue to grow, but must be cut for the proper cultivation of the grounds, belong to the life tenant under the will.' § 228. Rule as to Foreign Assets. — The fundamental principle upon which personal property, corporeal or incorporeal, includ- ing rights of action, whose situation is in some different sover- eign jurisdiction, may be regarded as assets, we have already had occasion to discuss.'' • The general rule is that simple contract debts, such as a pol- icy of insurance not under seal, are, for the purpose of found- ing administration, assets where the debtor resides without regard to the place where the voucher may be found.' But the State or country which charters a corporation is its domi- cile in reference to debts which it owes because there only it can be reached for the service of judicial process ; but States or countries where a foreign corporation does business, have enlarged the facilities of local administration in many respects by appropriate statute. •♦ Bills, notes, and incoqwreal personalty on which money is payable, are suitable local assets to found local administration upon, where one dies domiciled elsewhere, if there be any way to realize upon them.'^ tures in general, see i Schoul. Pers. Mutual Life Ins. Co. v. Woodworth, Prop. §§ 111-129; Amos & Ferard on in U. S. 138, 144. Fixtures. ' Epping v. Robinson, 2 1 Fla. 36. ' Swinburn v. Ainslie, 28 Ch. D. 89. Stock of a corporation in another *5'«/ra, § 175. State may be local assets. Luce v. 3 Wyman v. Halstead, 109 U. S. 654. Manchester R., 63 N. H. 588. *See Mr. Justice Blatchford in N. E. § 229 EXECUTORS AND ADMINISTRATORS. [pART III. CHAPTER II. INVENTORY OF THE ESTATE. § 229. Inventory required formerly in England; Custom Fallen into Disuse. — By an English statute, enacted during the reign of Henry VIII., every executor or administrator was required to file with the ordinary a sworn inventory of " all the goods, chattels, wares, merchandises, as well movable as not movable," of the deceased.' Statute 22 & 23 Car. II. c. 10, § i, made the return of an inventory of the " goods, chattels, and credits of the deceased, come to his possession," at or before a speci- fied day, a condition of each administration bond.^ Probably, however, from a much earlier period, the practice of the English spiritual courts strenuously prescribed this duty, with the coun- tenance of temporal tribunals.^ It was a breach per se of the administration bond to neglect filing an inventory by the time specified ; and in some county jurisdictions an executor had to exhibit his inventory before probate would be granted him."* Nevertheless, the custom of filing an inventory has fallen quite into disuse in modern English practice. The bond given under the Court of Probate Act is conditioned to make an in- ventory when lawfully called on, and to exhibit the same when- ever required by law to do so ; s in other words, unless the representative is cited in, he incurs no official obligation in the matter ; and to such a conclusion the spiritual practice seems to have been forced before this act was passed.^ But the Eng- ' Stat. 21 lien. VIIL,c. 5, §4. See elusive, of waste, should the assets Wms. Exrs. 974, for the full text of the prove insufficient. Orr v. Kaines, 2 statute requirement. Ves. Sen. 193; Swinb. pt. 6, §§6-9. * Wms. Exrs. 529, 974. *Wms. Exrs. 975; i Phillim. 240. ^The effect of neglecting to file an 'Wms. Exrs. 532,974-976. inventory exposed the executor in all * Wms. Exrs. 976 ; i Phillim. 240. courts to an imputation, sometimes con- Hut in some cases the court might ex 318 CHAP. II.] INVENTORY OF THE ESTATE. § 23O lish theory is still to compel an executor or administrator to ex- hibit an inventory on the petition of any person in interest, or even of one who appears to have an interest ; ' and the in- stance is very rare where such a petition will be refused, if pre- sented within a reasonable time.^ § 230. Inventory required in American Practice; whether In- dispensable. — The inventory is a settled feature of probate practice in the United States. And as the American probate theory, favoring public registry in such matters, is, that the legal representative, — unless a residuary legatee who elects to oblige himself simply to pay all debts and legacies and run the risk of assets, — shall render accounts of his administration, his first duty, as relates to the court, is, after obtaining his creden- tials, to prepare and file an inventory of the assets of the de- ceased ; such inventory to serve as the basis of his probate accounts. The bonds of executors and administrators are ac- cordingly conditioned, in all or most of the leading States, to return an inventory to the probate court or registry within a specified period from the date of qualification. Thus, under the Massachusetts statute, the judge of probate issues an order, usually on the day when the executor or administrator qualified, and upon his verbal request, to three suitable disinterested per- sons ; these appraisers, having been sworn to the faithful dis- charge of their trust, appraise the estate of the deceased upon an inventory blank which accompanies the order, filling up schedules, and delivering the document, when completed, to the executor or administrator, by whom it should be returned to the probate office for record with his own oath that the list q^t/t? require an inventory to be brought Phillim, 240; Gale v. Luttrell, 2 Add. in, and it is prudent for the adminis- 234. trator or executor to exhibit it before ^ Wms. Exrs. 979, 980. It has been finally settling the estate, i Phillim. refused where assets sufficient for the 240; I Hagg. 106. petitioner's purpose are admitted by the 'A probable or contingent interest representative, or where double remedies entitles one to petition for an inventory; are being pursued for attaining this re- so, too, the claim, though disputed, of a suit. Wms. Exrs. 978; 2 Cas. temp. creditor. Wms. Exrs. 976, and cases Lee, loi, 134,356. cited; 2 Cas. temp. Lee, 251, 344; i § 230 EXECUTORS AND ADMINISTRATORS. [PAKT III. is just and perfect." Similar legislation is to be found in Wis- consin and various other States at the north-west ; - also in New York, where (as under English statutes ^) two appraisers suffice, and the appraisal is to be made in duplicate and upon l)revious notice given to legatees and next of kin resident in the county, so that they may attend when it is made, if they desire/ Three months is usually the prescribed period within which an executor or administrator should return his inventory to the court or registry whence his appointment came. In some States only one inventory is required, and for additional property com- ing to his possession or knowledge, as well as income and accre- tions, the executor or administrator is bound only to account ; ' but the New York statute provides for filing a supplemental inventory in such a case.^ Filing a second in\'entory to correct errors of the first is sometimes permitted ; " but not for mere formality.^ But where no property has come to his hands, the representative may dispense with the formality and cost of an inventory.9 ' Mass. Gen. Stats, c. 96, § 2 ; Smith (Mass.) Prob. Pract. 103. The verifi- cation appears to be based upon the ecclesiastical practice. Gary Prob. Pract. 121. ^ Gary Prob. Pract. § 318. ^ Wms. Exrs. 974. " Redfi eld's (N. Y.) Surr. Pract. 214. Clerks and persons employed in a pro- bate office are excluded by local .statutes more or less specifically worded, and such exclusion is founded in sound rea- sons of policy. Appraisers are allowed compensation ; and various abuses have sprung up where the probate office is permitted to compete with professional men and the public for private fees and emoluments in connection with the set- tlement of estates, of which they keep the records. As to method of notice see 4 Dem. 176, As to appraisers' fees, cf. local codes; 145 N. Y. 540. The English statute 21 Hen. VIII. c- 5. § 4. prefers interested to disin- terested persons, i.e., creditors, legatee.s. or next of kin. Wms. Exrs. 974. But appraisement is not made in modern English practice pursuant to the letter of the .statute. Wms. Exrs. 981. 5 Hooker v. Bancroft, 4 Pick. 50. *" Redfield's (N. Y.) Surr. Pract. 215; 4 Redf. (N. Y.) 489. See also the Con- necticut statute, Moore v. Holmes, 32 Conn. 553; and as to the Pennsylvania rule. Commonwealth v. Bryan, 8 S. & R. 128. ' Bradford's Admr., i Browne, 87. ' An inventory may be acceptable, though filed later than three months. 100 Cal. 158. But if so, a new war- rant should issue, before appraisers act. 9 Walker v. Hall, i Pick. 20 ; 2 Dak. i8y. If a verified account is filed show- ing no assets, the burden is on those who assert othei-wise to show assets. 1 Dem. 129. So, too, it is held, where there were no assets left to exhibit to appraisers, but all the assets had been justly used in paying the funeral ex jienses and debts. Robbins. Matter of, 320 CHAP. II.] INVENTORY OF THE ESTATE. § 230 The failure to return an inventory does not necessarily render the executor or administrator personally liable for the assets; nor does the omission of any particular debt from the inventory items make him absolutely chargeable with it ; but the question is essentially one of culpable negligence or misconduct on his part, occasioning a loss.' Nevertheless, the failure to file an inventory by the time specified, as American statutes run, amounts technically to a breach of the condition of the bond, which may or may not prove serious in its consequences ; but rarely can, if upon citation the executor or administrator per- forms this duty, or shows good reason why an inventory should be deferred or dispensed with.^ In some, but not all, of our States, there are express statute provisions for summoning the dehnquent representative to return his inventory, or else show cause why attachment should not issue ; also, upon reasonable cause appearing, for granting him further time within which to make such return. ^ 4 Redf. (N. Y.) 144; overruled by Creamer v. Waller, 2 Dem. 263. See LiUlefield v. Eaton, 74 Me. 516. A contestant of a will may insist upon an inventory. 15 Phila. 58S. One whose claim as a creditor of the estate is dis- puted may nevertheless have the execu- tor compelled to file an inventory. 2 Dem. 351 ; 4 Dem. 275. An unverified list of assets is no inventory. 3 Dem. 358- Whether a provision in a will can re- lieve of the duty of filing an inventory, see 2 Dem. 331 ; 3 Dem. 108. An executrix need not file an inven- tory of property held by herself as life- tenant under the will. The right of a remainder man to demand an inventory depends upon allegation of waste. Brooks V. Brooks, 12 S. C. 422. " Leake v. Beanes, 2 Har. & J. 373 ; Moses V. Moses, 50 Ga. 9, 30; Con- nelly's Appeal, I Grant (Pa.), 366; Stearn v. Mills, 4 B. & Ad. 657. 21 3 ^ McKim V. Harwood, 129 Mass. 75; Adams v. Adams, 22 Vt. 50; Lewis v. Lusk, 35 Miss. 696 ; 83 Wis. 394. Damages may be assessed for failure to make and return an inventory. Scott V. Governor, i Mo. 686. See Potter v. Titcomb, i Fairf . 53 ; Bourne v. Steven- son, 58 Me. 599. Such neglect may support a charge of maladministration against the representative. Hart v. Ten Eyck, 2 Johns. Ch. 62. For breach of bond he is liable for such damages as may be equitably due to any one aggrieved. State v. French, 60 Conn. 478 ; § 146. ^ Redf. (N. Y.) Surr. Pract. 215. As in English practice, the application for a summons to file an inventory may be made by any one interested in the estate ; e.g., an apparent creditor. Forsyth v. Burr, 37 Barb. 540. The court may summon at its own instance, though this is seldom done. Thompson v. Thompson, i Bradf. 24. 21 § 232 EXECUTORS AND ADMINISTRATORS. [PART III. § 231. Dispensing •with an Inventory after Lapse of Time. — Time alone constitutes no bar against the requirement of an inventory, where the statute fails explicitly to sanction the omis- sion. But if a long period has elapsed, such as forty years, a presumption might arise either that the estate had been fully settled or that there were no assets available ; ' and time, in con- nection with other circumstances, may operate much sooner to dispense with filing an inventory.^ v^ 232. Qualified Representative not exempt from rendering an Inventory. — It is not in probate practice the original executor or administrator alone, or an administrator with the will annexed, who is bound to make and return an inventory. An administrator de bonis non should inventory such estate of the deceased remain- ing unadministered as may have come to his possession or knowl- edge.^ So, too, the representatives of a deceased executor or administrator are compellable, at the discretion of the court, to bring in an inventory, as well as a final account, on behalf of the delinquent testate or intestate.-* Other instances are found in English reports in which inventories have been oflicially re- quired ;5 and, as Williams observes, the ecclesiastical court dis- couraged all hanging back with respect to the production of an inventory when called for, and generally condemned the con- tumacious in costs besides.*" In American practice, the bonds of all executors, administrators, probate guardians, and testa- mentary trustees, are usually conditioned to return an inven- ' Ritchie v. Rees, i Add. 144. ever came to his possession or knowl- ^ See Wms. Exrs. 979 ; Bowles v. edge. See Higgins v. Higgins, 4 liagg. Harvey, 4 Hagg. 241 ; Scurrah v. 242. Scurrah, 2 Curt. 919. See further, ^ Wms. E.xrs. 979. post, 3lS to dispensing with an account. *Ib. ; Ritchie v. Rees, i .\dd. 1 5S ; Calling for an account in connection Gall -•. Luttrell, 2 Add. 234. with, or by way of substitution for, an ^ ^S-, from administrators JuraiiU inventory, brings up this issue more minoritaie and administrators ptitJtnte plainly. A sworn declaration instead lite. Wms. E.\rs. 980; i Cas. temp. of an inventory, setting forth desperate Lee, 15:2 Cas. temp. Lee, 131. debts, may suffice often to discharge the * Wms. Exrs. 9S0; i Phillim. 241, representative where no valuable assets 243 ; 2 Phillim. 364. 322 CHAP. II.] INVENTORY OF THE ESTATE. § 233 tory ; ' and without an inventory valuation as a basis, they can- not readily prepare their accounts in due form. § 233. What the Inventory .should contain. — According to English practice, the inventory should contain a full descrip- tion and valuation of all the personal property to which the executor or administrator became entitled by virtue of his office ; this document being in effect a list of the assets for which he stands chargeable, taken at their just worth. ^ What these assets are we showed in the preceding chapter ; and chattels, real and personal, animate and inanimate, corporeal and incor- poreal, answering to that description, are to be included. Such, loo, is the doctrine generally prevalent in the United States ; but while in some parts of this country only personal prop- erty of the deceased should be inventoried, the legislatures of other States insist that his real estate shall also be ap- praised, two separate schedules being made, and the schedule of personal property alone serving as the basis of the execu- tor's or administrator's accounts.-' The latter practice appears the more convenient, as affording record proof of all the assets, actual or potential, upon which creditors and legatees may rely ; and, under a will which confers the power to manage and con- trol the testator's real estate, or where, as some local statutes provide, the representative has a general right of possession of the real estate while the estate is being settled, there are rea- sons especially urgent why real property should be scheduled. An inventory should be specific in its enumeration of the ef- fects of the estate ; not necessarily minute, of course, and yet so as to .separate large items of value, and set out by themseh-es such special classes as chattels real, household furniture, cattle, stock in trade, cash, and securities of the incorporeal sort, such as notes and bonds, all of which fall under the denomination of ' See Smith (Ma.ss.) Pro b. Pract. loi. ^ See supra, § iqS; Smith's (Mass.) ^ Wms. Exrs. 9S0. Personalty fraud- Prob. Pract. 102; Gary Prob. Pract. § ulently conveyed by the decedent need 330, citing statutes of Minnesota and not be inventoried. Gardner v. Gard- Wi.sconsin. Cf. Henshaw v. Blood, i ner, 17 R. I. 751. See § 234. Mass. 35. § 233 EXECUTORS AND ADMINISTRATORS. [PART III. personal property and assets." If property found among the effects of the deceased, and coming to the possession of the rep- resentative, is claimed by others under a title not yet established, it seems prudent to include this item in the list, with words or a memorandum indicating doubt as to the representative's own title.- Bonds and investment securities should be stated at their current market value, or possibly, in some convenient in- stances at par; provided, in the latter instance, that the repre- sentative carefully regard the fair premium in dealing and disposing of them, so that those interested shall have the bene- fit shared justly.^ Debts and incorporeal choses of a doubtful, desperate, or worthless character should be so denominated. Real estate should be specified by parcels.'' An inventory is, after all, hwt prima facie evidence of the true value of assets, and prudence and good faith is the test of the representative's responsibility in dealing therewith ; so that whether more happens to be actually realized, or less, or the title fails altogether, the exercise of reasonable diligence and honesty on his part is all that the law can exact from the ex- ecutor or administrator. Such being the result, all discrepancies may be corrected in a representative's accounts, and debit or credit given accordingly. Hence, too, the valuation in the in- ' Vanmeter v. Jones, 3 N. J. Eq. 520. tion rather of the probate court. Redf. ^ Waterhouse v. Bourke, 14 La. Ann. Surr. Pract. 211 ; Sheldon v. Bliss, 8 35(S; Gold's Case, Kirby (Conn.) 100. N. V. 31. See § 4^-] post as to rights ' If set forth at par, the inventory of widow, etc. A separate and distinct should so state the fact. inventory of the property allowed the * See Adams v. Adams, 20 Vt. 50; widow is required in some States, such Wms. Exrs. 981. Appraisal at the as Wisconsin. Gary Prob. Pract. § 321. market value, as nearly as can be ascer- A debt returned in the inventory with- tained, whether above or below par, out comment will be presumed collected appear to be the rule as to market- or collectible. Graham v. Davidson, 2 able investment securities. Gary Prob. Dev. & B. Eq. 155; Hickman z^. Kamp, Pract. § 328. Exempt articles belong- 3 Bush, 205. C«7«/ra where returned as ing to widow and children, though not desperate. Finch v. Ragland, 2 Dev. deemed a.ssets, should be included and Eq. 137. Even items of little value, or stated in the inventory without being desperate, ought in some way to be appraised. N. Y. Stat, cited Redfield's recognized in the inventory. 48 La. Surr. Pract. 211. And in New York Ann. 289. What are not really assets the appraisers appear to have powers as for administration may be omitted. Cf. to setting apart for the widow, which in §§ 23S-245. some other States call for the interven- CHAP. II.] INVENTORY OF THE ESTATE. § 234 ventory by one standard or another appears to be of less conse- quence than a consistent valuation by the particular standard as therein plainly exhibited ; for values, and especially those of various marketable stocks and securities, may fluctuate from day to day, so as to furnish no absolute criterion of accountability. Similar considerations apply to accruing profits, and the interest and income of personal property left by the deceased. Such accretions might well be included up to the date of appraisal, though not later ; or, perhaps, might be left out altogether, as is not infrequent ; but by whichever standard reckoned, any in- ventory must be very far from affording a perfect statement of profits, interest and income as they come to the hands of the executor or administrator ; so that at best the inventory figures represent only approximately the gross available assets in many instances, and must be supplemented by the administration ac- counts.' § 234. "What the Inventory should contain; Subject continued. -^ Local statutes prescribe in terms, more or less specific, what shall be included in the inventory. As to general property of the deceased, the rule embraces all that has come to the " pos- session or knowledge" of the executor or administrator; and to this his oath of verification usually corresponds in tenor. Hence notes or chattels of any kind in the hands of other per- sons, and belonging of right to the executor or administrator, must be inventoried, as also debts, demands, and claims still uncollected ; and if the representative choose to leave such things in a different possession still, by way of offset to the possessor's own demand upon the estate, he must go through the form of discharging himself on his accounts.^ It is not competent, as English courts hold, for the court of probate to insist that an inventory shall include personal estate situated in a foreign country, since this is out of its own jurisdiction and ' See Willoughbyz'. McClure, 2 Wend. etc. See also Weed w. Lermond, ^^j; 609 ; Mass. Gen. Stats, c. 98, § 6. It is Me. 492. fair that the inventory should show or ' See Wms. Exrs. 979, 980, Perkins's indicate, as to all interest-bearing secuii- note; Smith (Mass.) Prob. Pract. loi- ties, therateof interest, name of debtor, 103 ; Gary Prob. Pract. § 318. date from which unpaid interest has run, § 235 EXECUTORS AND ADMINISTRATORS. [PART III. cognizance ; ' and practically, indeed, the means of appraising what is abroad are imperfect. But it is held by various Ameri- can tribunals, in construction of the local statute, that personal assets belonging to a deceased resident of the State must be included in the inventory of his general executor, even where situated in another State.^ Such requirement does not apply to an ancillary appointee with such strictness, probably, inas- much as his authority is more strictly local.^ Assets of whose existence neither the executor or administra- tor, nor the appraisers, are at the time aware, cannot of course be inventoried ; and no blame is to be imputed to the represen- tative in consequence, if, gaining knowledge thereof afterwards, he charges himself in his accounts with the property, and pur- sues the usual line of duty as to procuring or realizing the same.'' § 235. Assets and Inventory in Special Instances; Co-ovrner- ship, etc. — Should a stranger administer upon the estate of one of several wards owning a common fund, he can and ought to make an actual division of the fund with the guardian of the surviving wards, and file an inventory accordingly. But if the guardian procures his own appointment as administrator on the deceased ward, he cannot by assuming this double character ' 2 Cas. temp. Lee, 551 ; Wms. Exrs. to inventory property which has been 982. fraudulently transferred by the dece- * Butler's Inventory, 38 N. Y. 397. dent, cf. Booth v. Patrick, 8 Conn. 105, ^ See supra, § 181. It is held in with Minor v. Mead, 3 Conn. 289; Sherman v. Page, 28 N. Y. Supr. 59, Bourne w. Stevenson, 58 Me. 504; An- that where the testator names an exec- drews v. Tucker, 7 Pick. 250. And see utor to take charge of property within, 17 R. I. 751. Agreeably to the prin- and another of property without, the ciple stated in the te.xt, it is perceived State, such an executor is only bound that the inventory includes, by express to account for such property as may be mention or inference, all the assets, all within the State in which he is appointed, that the representative is bound to real- Muniments of title and securities rcpre- ize and procure for administration pur- senting incorporeal rights abroad, and poses; and that the claim of a title for valuable /i^r j^ in enforcing such rights, those purposes is its basis, not a title ought, in general, we presume, to be already vested in the representative and inventoried, whatever comity miglu pro- undisputed. The doubtfulness of the nounce the locus of the debt or right. title is matter for note by the appraisers * As to the duty of the representative in setting the valuation. 326 CHAP. II.] INVENTORY OF THE ESTATE. § 236 evade the duty of severing the tenancy in common by other methods equally distinctive and unequivocal ; and of likewise filing an inventory which may show the separate share belong- ing to the estate.' § 236. Effect of the Inventory; Power of the Local Probate Court to alter, etc. ; Inventory as Evidence. — In New York the appraisers' estimate of the value of articles is not regarded as the exercise of an absolute discretion on their part, but their opinion is subject to review by the probate court.^ Such, how- ever, is the inconclusiveness of any inventory valuation in pro- bate law that the court of probate is seldom asked to intervene in such a manner, and the extent, moreover, of such a jurisdic- tion, apart from statute sanction, may be a matter of serious question.^ If, however, the personal representative and the appraisers, or the appraisers among themselves, differ as to what should in fact be included in the inventory, or if otherwise there is such variance that the inventory cannot be returned to court in due form as exhibiting their concurrence ; or if the appraisers are delinquent ; the court, as it seems, may properly make orders appropriate to the exigency, and perhaps a warrant might issue to other appraisers, the previous one being revoked. For, inasmuch as, in American practice at least, the failure of the executor or administrator to return a true and perfect in- ventory is taken to be a direct breach of his official bond,'* he ought not to be made answerable for the disagreement, caprice, or carelessness on the part of the appraisers, despite his own protest and without his own fault. Where, moreover, apprais- ers are specially empowered to set apart properly for the widow, ' Colvert V. Peebles, 71 N. C. 274. objections to inventories, though not ^ Applegate v. Cameron, 2 Bradf. permitting witnesses to falsify it. 2 119; Redf. (N. Y.) Surr. Pract. 212. Add. 331 ; Wms. Exrs. 985. ' English temporal judges have de- *• Bourne v. Stevenson. 58 Me. 499. niedtheauthority of ecclesiastical courts An inventory not certified by the exec- to entertain objections to an inventory utor or administrator is not as to him after it has been exhibited. Hinton v. an inventory, and is not ground suffi- Parker, 8 Mod. 168; Catchsidez/. Oving- cient for charging him. Parks 7: ton, 3 Burr, 1922; Wms. Exrs. 983. Rucker, 5 Leigh, 149. But see Carroll But the highest ecclesiastical court in v. Connet, 2 J. J. Marsh. 195; 100 Cal. England has nevertheless entertained 593. Local practice may determine § 236 EXECUTORS AND ADMIX ISTRATORS. [pART III. it is held that their negligence, fraud, or possible abuse of such authority may be corrected by the probate court or surrogate ; and likewise an irregularity, mistake, or improper valuation, though conscientiously made by them.' A court of probate ought not, it would appear, to reject an inventory or order it modified, because it contains property the title to which is disputed ; for to common-law tribunals belongs the adjudication of the title, and the probate court cannot con- clude the question.- But, granting that an inventory cannot be impeached, this only affects proceedings relating to the inventory itself ; and it may be shown on the accounting of the executor or administrator that assets were omitted which were or ought to have been accounted for, and that assets yielded, or should have yielded, more than they were appraised at ; so, vice versa, on the accounting, the inventory may be shown to have in- cluded what should have been omitted or to have rated specified things for more than they could fairly bring.^ An inventory duly returned to the probate court or registry, is, according to modern authorities, prima facie proof of the amount of property (personal, or personal and real, as the case may be) belonging to the estate within the State or country where jurisdiction was taken \^ and also of its worth by items at the time of appraisal. But being only prima facie evidence, the executor or administrator is simply chargeable so as to have the onus of disproving its correctness ; ' and in a controversy be- tween himself and the appraisers, he may show that the valua- tion is too high or too low ; ^ nor, certainly, are subsequent changes of value, or subsequent additions to the assets, or gains or losses in realizing the assets, to be disregarded, whatever the such a point. An administrator may Montgomery v. Dunning, 2 Bradf. Surr. .show that he certified to the inventory 220. under an error of fact. Martin z/. Boler, * Wms. Exrs. 1966; Giles v. Dyson, 13 La. Ann. 369. See i Dem. 306. i Stark. N. P. 32; Reed v. Gilbert, 32 ' Applegatez/. Cameron, 2 Bradf. 119. Me. 519; Morrill v. Fo.ster, 33 N. H. Legatees or ne.\t of kin may not inter- 379. fere ■with an appraisal ; they must wait ' lb. ; Hoover v. Miller, 6 Jones L. for the accounting. Vogel v. Arbogast, 79; Cameron z/. Cameron, 15 Wis. i. 4 Dem. 399. * Ames v. Downing, i Bradf. 321. ' Gold's Appeal, Kirby (Conn.) 100. See Loeven's Estate, Myrick Prob. (Cal.) ^ See Part VI L, post, as to accounts ; 203. 328 CHAP. 11.] INVENTORY OF THE ESTATE. § 237 inventory itself may have shown.' In short, the inventory, \w\vl\q prima facie evidence of the value of the property, as well as of the property itself, which came to the executor or adminis- trator, as also of the solvency of those who owe the estate, — rendering h\xn prima facie liable accordingly, — is not conclusive either for or against the executor or administrator or his sureties, but is open to denial or explanation, and he must render ac- count for all assets.^ As a matter of judgment record, an ap- praisement confirmed by the court is conclusive only of the subject to which it relates.^ § 237. Advantages of Returning an Inventory. — The inventory is of advantage, both to the executor or administrator himself, and to creditors, legatees, heirs, and other persons interested in the estate. It is the basis upon which the representative makes his accounts ;, it shows the amount for which he is chargeable, and limits presumptively his responsibility, except for increments, income, and such assets not therein appraised, through ignor- ance, inadvertence, or other cause, as may come afterwards to his hands. On the other hand, the heirs and other parties in- terested have, in the recorded inventory, the best evidence pos- sible under the circumstances of the assets, their condition and value, as they came to the representative's possession and knowl- edge at the outset of his administration, and are supplied with essential evidence, in case it becomes necessary to institute pro- ceedings against him or oppose the allowance of his accounts, because of negligence or misconduct while invested with his ' Willoughby v. McCluer, 2 Wend, inventory exhibited before probate (as 608; Mass. Gen. Stats, c. 98, §7. The required by some county ecclesiastical failure to inventory certain property is tribunals) and the inventory proper, not conclusive against those interested See Wms. Exrs. 1968; Stearn z/. Mills, in the estate. Walker v. Walker, 25 4 B. & Ad. 657. Ga. 76; McWilHe v. Van Vacter, 35 ^ Nabb 7j. Nixon, 7 Nev. 163; Grant Miss. 428. Nor does it estop the rep- v. Reese, 94 N. C. 720; 66 Wis. 490. resentative from recovering it. Con- As to the executor's or administrator's over V. Conover, i N. J. Eq. 403. own debt (which should be inventoried), Concerning the effect of an inventory, see supra, § 208. as an admission of assets, the English ^ggjjgr'g Estate, 82 Penn. St. 153. courts have distinguished between the § 237 EXECUTORS AND ADMINISTRATORS. [PART III. responsible office.' For the representative is bound to account for assets named in the inventory, so as to show at all events good faith and due diligence in attempting to realize.^ ' Smith Prob. Pract. loi, I02. inventoried as assets. Nesmith, Re, A claim against a former representa- (N. Y.) tive for maladministration should be * See Sanderson, .ffif, 74 Cal. 199. PART IV. GENERAL POWERS, DUTIES AND LIABILITIES OF EXECUTORS AND ADMINISTRATORS AS TO PER- SONAL ASSETS. CHAPTER I. representative's title and authority in general. § 238. Title to Personal Property devolves upon Representa- tive by Relation from Decedent's Death ; Liability, etc. — We have observed that, in modern practice, acts performed before qualifi- cation in good faith, and for the benefit of the estate, are generally cured by qualification, whether the representative be executor or administrator ; and that his authority once fully conferred by the probate court, the representative's title re- lates back substantially to the date of the decedent's death.' We have observed, also, that as to property left by the dece- dent, the general rule is that title to personal property devolves thus immediately upon the executor or administrator, while title to the real property does not ; and that property of the one kind constitutes at common law assets in the representative's hands, while property of the other kind does not, except under peculiar circumstances, or when there is a deficiency of per- sonal assets.^ These statements cover nearly the whole ground ^ Supra, §§194, 195. Where one ment. Wiswellz/. Wiswell, 35 Minn. 371. discharges a mortgage before his ap- And see McDearmon v. Maxfield, 38 pointment as executor or administrator. Ark. 631. But the representative the discharge becomes vaHd by his ap- should not disturb acts beneficially done pointment. 30 Hun (N. Y.j 269. And by others before his appointment, so with a fair sale of property. 50 N. V. merely for the sake of asserting his au- Supr. 225. An administrator's title thority. Cooper z/. Hayward, 7 1 Minn, cannot be affected to the prejudice of 374. the estate by acts prior to his appoint- ~ Supra, § 198. s^ 239 EXECUTORS AND ADMINISTRATORS. [PART IV. of the representative's title ; but to better elucidate those fun- damental doctrines, let us explore the subject further in the course of the present chapter. As with the title, so is the liability of the representative ; and he must account for assets previously received or under his con- trol in any way ; pursuing with due prudence and good faith where others have such assets.' § 239. The Representative's Title aud Authority during the Ad- ministration excludes that of all Others in Interest. — The title of the executor or administrator, as representative, extends so com- pletely to all personal property left by the decedent as to exclude creditors, legatees, and all others interested in the estate. They cannot follow such property specifically into the hands of others, much less dispose of it ; but the executor or administrator is the only true representative thereof that the law will regard.^ The legal and equitable title to all the personal property of the deceased, including choses in action and incorporeal rights, vests in fact in the executor or administrator, as against all others, during the suitable period for administration, and he holds this property as a trustee and proper representative of all parties in- terested therein.^ This paramount title of the personal representative is recog- nized in various instances. A lien cannot attach on the goods of a principal before he parts with their possession ; and, accordingly, if a principal die in possession of the goods, and they come after- ward to the possession of his administrator, the title is changed, 'See Myers Re, 131 N. Y. 409; lows one rule; it vests in the heir sub- §§269-271. ject to the representative's lien, derived * Wms. Exrs. 932; Haynes v. Yo\ from the deceased, for the payment of shaw, 1 1 Hare, 93 ; Nugent v. Giffard, debts, etc., and to his right of present I Atk. 463; Beattie z/. Abercrombie, 18 posse.ssion. Becket v. Selover, 7 CaJ. Ala. 9 ; Goodwin v. Jones, 3 Mass. 514. 215. ^ Beecher v. Buckingham, 18 Conn. All the personalty of the decedent, 1 10; Nealez-. Llagthorpe, 3 Bland (Md.) including property covered by his bill of 551 ; Alston v. Cohen, i Woods, 487. sale, but never delivered, passes to the To this rule statute exceptions are found possession and control of his executor in some parts of the United States, or admini.strator. Palmer v. Palmer, Thus, under the California system (as 55 Mich. 293. in Texas), real and personal estate fol CHAP. I.] representative's TITLE AND AUTHORITY. § 24 1 and a factor, who may receive them from the administrator, can- not be permitted to hold them for advances made to the deceased in his lifetime, without the administrator's assent.' And so completely does title to the personal assets vest in the represen- tative, that they are not subject to seizure and sale under an execution issued on a judgment rendered against the decedent after his death. ^ The representative's claim is of course superior to that of heirs, distributees, or residuary legatees, so long as the estate remains unsettled ; ^ and counsel nominated under the will to assist him cannot control his discretion.'' § 240. Executor or Administrator has a right to dispose of Per- sonal Assets. — It follows that the executor or administrator, and he alone, has an absolute dominion and power of disposal, in law and equity, over the goods, chattels, rights, and effects of the deceased ; he can dispose of them at pleasure, being, however, responsible for the faithful execution of his trust ; and others in interest cannot follow such property into the hands of the alienee. 5 Only a statute, or the will of the testator, can restrain the power of a personal representative to thus alienate the per- sonal property of his deceased. §241. The same Subject; Executors and Administrators dis- tinguished in this Respect. — But here we must distinguish be- tween executors and administrators. An administrator's office is conferred by the court appointment, and his authority is de- rived from statute and the general probate law, not from any confidence reposed in him by the deceased ; his powers and duties consequently are commensurate with others of his class, and are defined by general rules. "^ But it is quite different with ' Swilley v. Lyon, 18 Ala. 552. pledges, etc., of personal property by ^ Snodgrass z/. Cabiness, 15 Ala. 160. the representative. ' Bearss v. Montgomery, 46 Ind. 544 ; '' An administrator in most parts of -Alston V. Cohen, i Woods, 487. the United States has all the power over * Young z'. Alexander, 16 Lea, 108. the personal property of the deceased ' Beecher &. Buckingham, 18 Conn, which are possessed by an administrator 1 10; Nealez;. Hagthorpe, 3 Bland (Md.) at common law ; and he mu.st adminis- 551 ; Lappin v. Mumford, 14 Kan. 9. ter all the goods, chattels, rights, and See cs. 3, 4, more fully as to sales, credits which are within the State; the 333 § 242 EXECUTORS AND ADMINISTRATORS. [PART IV. the executor ; for his authority, being conferred by a will duly admitted to probate, is subject in a great measure to the powers and restrictions which the testator may therein have prescribed. The will of the testator making special appropriations of the sev- eral parts of his property, is a law to his executors from which they ought not to swerve, unless authorized by some proper tri- bunal,' and save in accordance with the fundamental maxim, that the necessity of settling lawful debts and charges against one's estate must override all testamentary dispositions. And where trusts are raised by the will, but no trustee is appointed by the testator, the law makes the executor, or any one who may be legally intrusted with the execution of the will, virtually the trustee in many senses, and he may consequently retain funds in his hands for the purposes of such trust, until the probate court expressly appoints a trustee.^ § 242. But Title, etc., of Executor or Administrator is byway of Trust. — The title of the representative, however, is not absolute, but exists only for special purposes connected with the settle- ment of the estate. Thus the title of an administrator vests by way of trust in order to enable him to administer the property according to law, by paying the debts of the deceased, and the funeral and other necessary charges, and making distribution on final settlement.' An executor, again, has the property only under a trust to apply it for payment of the testator's debts, and such other purposes as one ought to fulfil in pursuance of his office under the will.'* Nor can a trust term devised to executors continue so as to retain the legal estate in them a moment longer than is necessary to enable them to perform the objects local statute tends to enlarge rather than ' Voorhees v. Stoothoff, 11 N. J. L. restrain this authority. See Goodwin 145; Stallsworth v. Stallsworth, 5 Ala. V. Jones, 3 Mass. 514. 144; Wood v. Nelson, 9 B. Mon. 600. In LoTiisiana the law is of civil origin ^ Saunderson v. Stearns, 6 Mass. 37 ; and peculiar; it appears that the func- Dorr v. Wainwright, 13 Pick. 328; tions of an executor cease at the end of Groton v. Ruggles, 17 Me. 137. a year, while those of an administrator ^ Hall v. Hall, 27 Miss. 458; Lewis continue until the administration is fin- v. Lyons, 13 111. 117. ished. Ferguson v. (jlaze, 12 La. Ann. * See Ashhurst, J., in 4 T. R. 645. 667. 334 CHAP. I.] representative's TITLE AND AUTHORITY. § 243 of the trust.' As with his title, so in its ultimate consequences with his power of disposition, one deals with the property in the interests of the estate he represents. His cardinal duty is to settle the estate according to law, or the last will of the deceased, as the case may be, with due diligence, fidelity, and a reasona- ble discretion.^ In fact, the interest which an executor or ad- ministrator has in the property of the deceased is very different from the interest one has in his own property ; for, as the old writers state the point, an executor or administrator has his es- tate as such in aiUer droit merely, viz., as the minister or dis- penser of the goods of the dead.^ § 243. Identity of Assets should be preserved apart from the Rep- resentative's Private Funds, so as to preserve the Title Intact. — So long as the property of the estate is kept distinguishable specifically from the mass of his own, the executor or adminis- trator will not by his bankruptcy or insolvency pass the title to his assignees ; ■♦ nor does bankruptcy of itself affect his repre- sentative character, though it might perhaps afford good ground for seeking his removal from the trust. s Nor can goods and chattels which may be identified as belonging to the decedent's estate be taken in execution for the debt of the executor or administrator.^ Nor upon the death of the personal represen- tative will such property held in another's right devolve in title upon his own representative, or pass under the provisions of his will.7 ' Smith V. Dunwoody, 19 Ga. 238. " Wms. Exrs. 637, 638; 11 Mod. 138; '^ The precise legal standard of re- Farr v. Newman, 4 T. R. 648. sponsibility is considered in c. 3, /^j-/. 'Wms. Exrs. 638; § 154, supra. '9 Co. 88 b; 2 Inst. 236; Wms. Where a lease is made with proviso for Exrs. 636. The usual consequences as forfeiture and re-entry if the lessee " or to property held in auier droit attach ; his executors, administrators, or as- thus, at common law, the goods of the signs " shall become bankrupt, the deceased were not forfeited by attainder bankruptcy of the executor or adminis- of the executor or administrator, nor trator will operate accordingly. Doe v. applicable to debts which the represen- David, i Cr. M. & R. 405. tative owed to the crown, i Hale, P. ^ Farr v. Newman, 4 T. R. 621 ; C. 251 ; Wentw. Off. Ex. 194, 14th ed. ; Wms. Exrs. 640. Wms. Exrs. 636. ^ Wms. Exrs. 639, 644 ; 2 Plowd. 525- 335 § 244 EXECUTORS AND ADMINISTRATORS. [PART IV. So, if an executor or administrator make transfer of all his goods, or release all his demands and rights of action, the pre- sumed intention, and consequently the effect, is that the trans- fer or release shall not operate upon goods, demands, or rights of action which he has in his fiduciary capacity.' Marriage, too, even under the old law of coverture, did not vest in the hus- band a title to goods and chattels which belonged to his wife in aiUer droit j^ But if the representative mingle the goods, rights, and effects of the intestate with his own, in such a manner that they can- not be distinguished, the effect must necessarily be to subject the whole to a devolution of title in favor of his assignee in bankruptcy, execution creditor, or personal representative, as the case may be. There is quite commonly a partial mingling of the trust funds with one's own ; as in case of the loose cash, specie, or bank bills found about a decedent, which a represen- tative will for convenience mix with his own money.^ In the course of administration, the executor or administrator almost necessarily pays out sums for expenses, taking property of the estate by way of recompense, and by contract incidentally caus- ing a transfer of title to himself. And it is a well-established rule that if the representative pays out of his own moneys debts to the value of the personal assets in hand, he may apply the assets to his own use towards satisfaction of his moneys so expended ; and by such election the assets become absolutely his own property.'' Where trust and individual funds are mingled, the estate becomes a creditor with other creditors for its just balance ; though to place the estate in this precarious attitude or to speculate with such funds is a breach of official duty.s § 244. No Title is taken by Representative to Property held by Decedent in Another's Right; Corporation, etc. — The personal ' 1 Show. 153; 2 Ld. Raym. 1307. ■* Livingston ?'. Newkirk, 3 John. Ch. * Co. Lit. 351 a; Schoul. Dom. Rel. 312, 318, /«■ Chancellor Kent. § 86. ' See c. 3, post, as to management, etc. 3 See Went. Off. Ex. c. 7, p. 196, 14th ed. ; Wms. Exrs. 646. CHAP. I.] representative's TITLE AND AUTHORITY. § 244 representative takes no available title to personal chattels of which the deceased held possession in another's right, and kept so that their identity may be traced. Thus, the bare fact that one died in possession of property, as administrator on another's estate, will not, it is held, enable his personal representative to main- tain trover, where the right to the goods in question has de- volved upon the administrator de bonis non of the original intestate owner.' So, too, a third person coming into posses- sion of a thing bailed among the dead man's effects, cannot, though he be a coroner, resist the bailor's demand by setting up the title of the deceased bailee's personal representatives/ Nothing but the bailee's possible lien for reimbursement, or jus tertii can obstruct the recovery of the property in such cases.3 If, therefore, the representative takes possession of personal property which was in possession of his decedent at the time of his decease, but to which another has title, his exercise of do- minion is at his own peril ; and if he sells the property as his decedent's, he is individually liable in trover to the true owner for its value.'' But the mere possession of property by a dece- dent at the time of his death gives to his legal representative the right to its possession, as against third parties having no better right, and he may bring trover accordingly.^ The property of a corporation in possession or custody of a corporate officer at his death follows the rule we have just stated ; such officer's legal representatives do not succeed to the posses- ' Eljiott V. Kemp, 7 M. & W. 306. public moneys in his hands pass to his * Smiley v. Allen, 13 Allen, 365. administrator, but for the township. It ^Schoul. Bailm. § 61. is the administrator's duty to deliver * Veldell z-. Shinholster, 15 Ga. 189; them up, if they can be identified, to Newsum v. Newsum, i Leigh, 86. But the successor of the trustee. Rowley where securities which came into exec- v. Fair, 104 Ind. 189. utor's hands as assets of their testa- An executor of the estate of a de- trix's estate, proved to belong in fact ceased guardian, into whose hands the to her husband's estate, after they had ward's money comes, holds it, as did been appr'opriated by the executors in the guardian, in trust for the ward ; the proper discharge of their duties, such a fund is not general assets of the without notice, they were protected in testator's estate. Bloxham v. Crane, 19 equity. Mulford v. Mulford, 40 N. J. Fla. 163. See further 174 111. 96. Eq. 163; cf. 39 Hun (N. Y.) 348. ' Cullen v. O'Hara, 4 Mich. 132. Where a township trustee dies, the 22 337 § 246 EXECUTORS AND ADMINISTRATORS. [PART IV. sion and control.' And if a representative cannot deal v^ith the real estate of the deceased, still less can he meddle with lands held by decedent merely in a trust capacity.^ §245. Representative does not succeed to Decedent's Trusts, but should close the Accounts. — Nor, again, does the represen- tative succeed, by virtue of his office, to any trust exercised by the decedent during his life ; but his duty is to render a final account closing up the trust, as respects the deceased, to see that the estate of the deceased is properly reimbursed for all charges and expenditures properly incurred, and relieved of all further responsibility. Should there remain any surplus or further du- ties to be discharged under the trust, he should transfer the fund to the proper successor in the trust, and leave him to per- form all further functions relative thereto.^ Hence the admin- istrator of an assignee in trust for creditors is not bound in continuance of the trust to superintend the trust property, nor is it strictly proper for him to do so.-* But in the sense of a contract right or obligation in the de- ceased, it may be said that trusts or incumbrances connected with personal property which come as assets into the repre- sentative's hands devolve properly upon him where no regular successor in a trust is called for.'' § 246. How one ceases to hold Assets as Representative, so as to hold in his Individual Character ; Election, etc. — The doc- trine of merger sometimes operates in the case of an executor or administrator who, ceasing to hold in that character becomes holder of assets in his own right.*^ But the possession of the ' Belton, Re, 47 La. Ann. 1614. to deliver over the trust property of the Stockholders should see that corporate original testator's e.state except to the officers succeed to such trust. lb. court or a newly appointed representa- As to partnership property, see tive. 5 Dem. 305. §§325,326,379. ••Bowman v. Raineteau.x, i Hoffm. ^Sullivan v. Lattimer, 35 S. C. 422; 150. §§212-215; §§509-517. 'Marjarum v. Orange Co., 37 I'"la. 3 See Little v. Walton, 13 Penn. St. 165. 164. Under the New York code an '' Wms. Exrs. 641-643 ; Pre.st. Conv, executor's executor cannot be required 310, 311. CHAP. I.] representative's TITLE AND AUTHORITY. § 247 property of a deceased person, as executor or administrator merely, cannot invest the possession with rights independent of and dis- connected with the trust estate." And to determine, in general, when one ceases to hold property belonging .to the estate, as a fiduciary, and holds it in his individual or other inconsistent character, all the circumstances of the case must be regarded.^ Election, as to his character or its change, by the person who has different characters to sustain, becomes an essential fact in any such connection. One who is administrator of two estates, may elect, it is held, to which of the two certain property be- longs ; but the act manifesting such election on his part must be definite, clear, and certain, to estop him afterwards from asserting title.^ § 247. Devolution of Title where the Personal Representative is also Guardian of Decedent's Children, or Trustee under the Will. — To proceed with this line of inquiry. Administrators are not guardians of the decedent's minor children, and cannot incur a fiduciary liability on such children's account ;* and the same holds true of executors, save so far as the testator's will may have invested them with the practical functions of a testa- mentary guardian ; for guardianship is a separate trust and should not be blended with that of administration. s Nor is it within the line of the ordinary duty and authority of an executor or administrator to control property of widow and children, or to apply ordinary assets in his hands for maintenance and edu- cation.^ Thus, the same person may be constituted executor under the parent's will, or administrator, and also guardian of the minor children ; hence the question, whether he holds a fund in ' Gamble v. Gamble, 1 1 Ala. 966, Davis v. Davis, 63 Ala. 293. Nor can 975 ; Weeks v. Gibbs, 9 Mass. 76. the executor or administrator be sued ^ Wms. Exrs. 643. as such for maintenance of the minor ' McClane z/. Spence, 11 Ala. 172; 6 children of the deceased. Kent v. Ala. 894. Stiles, 2 N. J. L. 368. And as to the ^ Menifee z;. Ball, 7 Ark. 520; Stalls- widow's necessaries, see Sieckman v. worth V. Stallsworth, 5 Ala. 144. Allen, 3 E. D. Smith (N. Y.) 561. See ' Schoul. Dom. Rel. § 324. § 447, as to allowances to widow, chil- * Wright V. Wright, 64 Ala. 88 ; dren, etc. 339 § 247 EXECUTORS AND ADMINISTRATORS. [PART IV. one or the other capacity.' The presumption arises, where personal estate of the. decedent is to be transferred by way of legacy or distribution in favor of such minor children, that one is executor or administrator ; for to perform the functions of administration is first in order, and some distinct act of transfer is preliminary to fixing the liability of guardian. Passing the final accounts of administration properly, this transfer of re- sponsibility becomes manifest enough ; - but where accounts are not rendered by the fiduciary, circumstances, and often slight ones, after a long lapse of time, may conclude the question. And the better opinion appears to be, that where a sole repre- sentative is at the same time guardian, the law will adjudge his ward's proportion of the estate to be in his hands as guardian after the full expiration of time fixed for the settlement of the estate.' On legal principle, one ought not to be sued both as executor or administrator and as guardian, nor should both sets of sureties be held responsible for the fund ; but in doubtful cases of this kind, where the principal's delinquency has occa- sioned the doubt, the modern inclination is to let the ward sue both sets of sureties, leaving them to adjust their equities among themselves.'' Similar considerations apply to the case of an executor who has likewise been constituted trustee under the will ; though here, ])erhaps, the regular qualification with procurement of letters ' Schoul. Dom. Rel. § 324 ; Wren v. ^ Watkins v. vState, 4 Gill & J. 220; Gayden, i How. (Miss.) 365 ; Johnson Karr v. Karr, 6 Dana, 3 ; Crosby v. T. Fuquay, i Dana, 514. The adminis- Crosby, i S. C. N. s. 337; Wilson v. tratrix of a mortgagor received addi- Wilson, 17 Ohio St. 150; Townsend ». tional advances from the mortgagee on Tallant, t,;^ Cal. 45; Wood, Re, 71 Mo. security of the land; this security did 623; Weaver v. Thornton, 63 Ga. 655; not bind her ward, the infant son, who Carrol ?•. Bosley, 6 Verg. 220. But the was not shown to have received any rule may be otherwise with co-executors benefit from the advances. Percival ?'. or co-administrators. Watkins 7^ State, Gale, 40 N. J. Eq. 440. 4 f Jill & J. 220 ; Coleman v. Smith, 14 ' Schoul. Dom. Rel. § 324; Alston ?'. S. C^. 51 1. And see Schoul. Dom. Rel. Munford, i Brock, 266 ; Burton v. Tun- § 324. nell, 4 Harring. 424; Stillman !». Young, ^ Harris z/. Harrison, 78 N. C. 202; 16 111.318; Scott's Case, 36 Vt. 297. Perry z-. Carmichael, 95 111. 519; Mer- But see Conkey ?•. Dickinson, 13 Met. ket v. Smith, ;^2 K.an. 66. 5'- CHAP. I.] REPRESENTATTVE's TITLE AND AUTHORITY. § 2^Ja which fixes the character of the latter fiduciary is more Hkely to be postponed to the final accounting and settlement of the estate than in the case of a guardianship. One should not be made liable as trustee for funds which came to his hands as executor ; but after the lapse of a considerable period the pre- sumption may fairly be that the estate has been fully adminis- tered by the executor, and a;ccordingly that the funds are held by him in the new character.' But until something has been done whereby the executor's status is changed, so that he be- comes a trustee, such, for instance, as a payment over or allot- ment or credit of the trust fund, and a new account opened in that capacity, he may be removed as an executor for his miscon- duct, and compelled to pass the assets over to his successor.^ After so alloting, crediting, or paying over the trust fund, how- ever, and still more so if he qualifies as trustee and charges him- self with the fund in his new character of trustee, he and his sureties are liable accordingly.^ The intent to create a trust under a will may be gathered from the scope of the instrument aside from technical words ; and where, consequently, the duties imposed are active so as to render the possession of the estate convenient and reasonably necessary, the executors will be deemed trustees for the per- formance of their duties to the same extent as though declared to be so by the most explicit language.-* § 2^ya. Executor sometimes acts as Trustee. — In case there is a money fund with income payable for certain purposes while the capital is to be retained, and no trustee is named under the will, the executor is sometimes allowed to hold the fund, and administer so simple a trust without any other express appoint- ment. 5 But no executor is justified in retaining assets in his own hands regardless of a proper trustee.^ ' Jennings z'. Davis, 5 Dana, 127. cases cited; Scott v. West, 63 Wis. ^ Hood, He, 104 N. Y. 103. 529. ^ Crocker v. Dillon, 133 Mass. 91 ; ' See White v. Massachusetts In- Prior r/. Talbot, 10 Cush. I ; 161 Mass. stitute, 171 Mass. 84; 17 Pick. 182, 188. 183. * Ward V. Ward, 105 N. Y. 68, and ° See 189 Penn. St. 150. § 251 EXECUTORS AND ADMINISTRATORS. [PART IV. § 24S. Devolution of Title where Representative is also a Leg- atee or Distributee. — An executor who is also a legatee may, by- assenting to his own legacy, vest the bequest personally in him- self ; and so may an administrator who is also a distributee ap- propriate his own share by acts and conduct manifesting such assent. The acquisition of an individual title to particular as- sets, in pursuance of such an intention, may be evinced by writ- ings, duly executed with the other legatees or distributees ; though such formality is not necessary, if the actual appropria- tion be otherwise manifested by the circumstances.' § 249. Devolution of Title where Executor is also Residuary Devisee and Legatee. — An executor who is residuary devisee and legatee, and gives bond for the payment of debts and legacies, becomes absolute owner of the real and personal estate, subject to that fiduciary obligation, and may sell or otherwise dispose of it so as to give a corresponding title. - § 250. Executor should administer Estate undisposed of under the Will where there is a Partial Intestacy. — It is the right and duty of the executor to administer upon estate undevised or undisposed of under the will, where there is a partial intestacy, as well as to execute the will itself ; and this he may do ex officio without procuring letters of administration for that purpose,^ being in such a sense considered trustee for the next of kin. §251. Right and Duty of discharging Contract Liabilities, etc., of Deceased. — To the personal representative belongs the con- ' Elliott V. Kemp, 7 M. & W. 313; 557; Lander.s v. Stone, 45 Ind. 404; legacies, /£?.)■/; Wms. Exrs. 649. Farris v. Cobb, 5 Rich. Eq. 45c; Vena- * Clarke v. Tufts, 5 Pick. 337. The ble v. Mitchell, 29 Ga. 566 ; Dean v. fact that the administrator and the heir Biggers, 27 Ga. 73. Whether this rule are the same person does not make it applies to an administrator with the less the administrator's duty to plead will annexed, see § 407, /oj/. The local limitations in bar to a suit for a debt statute is sometimes explicit as to the due the estate, when another creditor rule stated in the text. Venable v. may be injured by his failure to do so. Mitchell, supra. Smith V. Pattie, Si Va. 654. See as to the effect of appointing an ' Hays r. Jackson, 6 Mass. 149; 152 administrator in such cases, Patten's Mass. 24: Wilson v. Wilson, 3 Binn. Appeal, 31 Penn. St. 465. CHAP. I.] representative's TITLE AND AUTHORITY. § 252 trol of the legal assets ; also the right, together with the duty, of collecting all claims and discharging all liabilities of the de- cedent. As a general rule, the personal representative may, in his discretion, perform, or rescind or modify with the consent of the other party, any contract made personally by the deceased ; this, however, conformably to the law of contracts, and for the reasonable interest of the estate.' He may, as the law at the present day stands, compromise a lawsuit, buy the peace of the estate he represents, and extinguish doubtful claims against it, provided he act discreetly and in good faith.^ For the repre- sentative takes the place of the decedent as to all contracts on which the latter was bound at his death, and is expected to dis- charge them in the manner provided by law, or according to the means in his hands for properly liquidating all of the decedent's obligations.^ And yet the executor or administrator has no in- herent power to bind the estate or those interested in it, by spe- cial agreement with a creditor, to keep open indefinitely the adjustment of his demand ; * nor to impose onerous charges upon the estate ; 5 nor to make a specific transfer of assets at discre- tion, so as to create an unlawful preference among creditors,^ or defraud others interested in the estate of their just rights.^ He must appropriate the assets honestly and discreetly to the pur- poses and in the manner prescribed by law for the administra- tion, settlement, and distribution of estates of the dead.** § 252. Avoidance, etc., of Contracts of the Deceased Illegally made, etc. — The representative may avoid or dispute a contract, made by his testate or intestate, as having been illegal, corrupt, and contrary to good morals or public policy, or as entered into when the decedent was of unsound mind.^ In general he may set up such pleas in defence as were open to his decedent ; and ' Gray z/. Hawkins, 8 Ohio St. 449; ^ Gayle, Succession of, 27 La. Ann. Dougherty v. Stephenson, 20 Penn. St. 547. 210; Laughlin v. Lorenz, 48 Penn. St. ^ Gouldsmith z/. Coleman, 57 Ga. 425. 275; Davis V. Lane, 11 N. H. 512. ^ Brown v. Evans, 15 Kan. 88. * Meeker v. Vanderveer, 15 N. J. L. ^ Of. § 245. 392,/ifr Hornblower, C. J. ^ Eubanks v. Dobbs, 4 Ark. 173; ^ Woods V. Ridley, 27 Miss. 119. Sanford, J., in Ross v. Harden, 44 N. Y. * Collamore z/. Wilder, 19 Kan. 16. Super. 26. 343 § 25 3 EXECUTORS AND ADMINISTRATORS. [PART IV. out of regard to the interests he represents, he may even take advantages and set up defences from which the decedent by his own acts might have been precluded.' Where, however, an ex- ecutor or administrator who might disavow his intestate's act on good ground, ratifies and receives the benefit of it, he cannot afterwards disavow it.^ While a personal representative cannot, as a rule, impeach as fraudulent a transaction of the decedent in his lifetime, this rule is out of regard for creditors especially, as already seen, liable to exceptions.^ § 253. Contracts Personal to the Deceased, etc., distinguished from those requiring Performance after his Death. — There may be contracts of the deceased which are designed to extend beyond his lifetime, and whose breach of fulfilment will involve the estate in damages ; contracts, too, whose effect is to encumber lands devised or the residuary fund.^ All contracts of the decedent, however, are to be construed with reference to their subject- matter ; and hence, a contract to perform certain duties growing out of an existing personal relation, or requiring the exercise of a personal skill and taste, ceases to be binding when death ter- minates that relation, and the representative cannot be compelled to continue the performance.^ Subject to the exceptions just noticed, the death of one of two contracting parties does not necessarily terminate the con- tract, and his estate may be held liable in damages for any breach ' See § 220 as to recovering property ^ Riley v. Albany Savings Bank, 36 fraudulently transferred by the dece- Hun, 513. dent. An oral contract made with the ^ See § 220. decedent to hold the custody of certain "■ See Pringle v. McPherson, 2 Desau. assets after his death, subject to some 524. contingency, such as the arrival of A. ' Bland za Umstead, 23 Penn. St.316 from abroad, cannot, it would appear, i Par. Contr. 6th ed. 131 ; Siboni z'. Kirk be set up to the detriment of an execu- man, i M. & W. 418 ; Wms. Exrs. 1725 tor's or administrator's right to demand Smith v. Wilmington Coal Co., 83 111 possession upon his qualification. Ross 498; McGill z/. McGill, 2 Met. (Ky.) 258 V. Harden, 44 N. Y. Super. 26. As to Andseec. 5, /('j-/, as to the responsibility a transfer upon usury, see 98 Ga. 1 39. of an executor or administrator. 344 CHAP. I. I REPRESENTATIVES TITLE AND AUTHORITY. § 25.4. committed after as well as before his death." And if a contract with a deceased party is of an executory nature, and his personal representative can fairly and sufficiently execute all that the deceased could have done, he may do so, and enforce the con- tract.^ How all this shall be done becomes a matter for the exercise of fidelity and due business discretion on the representa- tive's part, aided, if need be, by the advice or authority of the court or of those interested in the estate and its surplus. Thus the e.xecutor or administrator of a manufacturer or artisan may well have materials worked up into goods fit for merchandise. The representative of a mechanic may finish up the jobs on which he was engaged ; all this, supposing that what was left by the deceased may properly be finished by others, and at a reason- able hope of profit to the estate, which might otherwise be liable in damages as for breach of contract.^ § 254. Personal Liability of the Representative upon the De- cedent's Debts or Contracts. — At common law, if an executor or administrator undertakes to perform the contract of the dece- dent, it is upon his own personal responsibility, so that if losses are sustained he must bear them, while if profits are realized they become assets in his hands for the benefit of the estate.'' Equity and modern probate courts regard the question of hon- esty and due discretion on his part in passing upon the repre- sentative's accounts afterwards. But this is only so far as relates to charging him with reference to the assets in his hands ; and his personal liability may transcend the limit of the means at his command where he contracts without a careful reservation in that respect. For, though a bare promise by the executor or administrator binds only the assets, the true doctrine is that he may make himself personally liable by his written promise, founded upon a sufficient consideration-^ ' Smith V. Wilmington Coal Co., 83 * Smith v. Wilmington Coal Co., 83 111.498. See 40 Mich. 226. 111. 498; Mowry r/. Adams, 14 Mass. nb; c. 5,/o.f/. 327. 'Marshall!/. Broadhurst, I Cr. & Jerv. ^ \Ynis. Exrs. 1776, and Perkins's 405; Garrett v. Noble, 6 Sim. 504; note; Davis v. French, 20 Me. 21; Wms. Exrs. 1794. Ellis r. Merriman, 5 B. Mon. 296. 345 § 255 EXECUTORS AND ADMINISTRATORS. [pART IV. § 255- The same Subject; how^ such Liability is incurred; Statute of Frauds ; SufiBcient Consideration, etc. — Let US dwell briefly upon this point of a written contract by the representa- tive founded in sufficient consideration. In both England and the United States the executor's or administrator's promise to pay a debt or to answer for damages of his decedent will not, it is held, render him personally liable unless there was a sufificient consideration to support the promise ; for a bare promise charges him, not out of his own estate, but only in a representative capacity and to the extent of the assets in his hands, just as though he had made no promise.' A bare promise, there being no assets at all, is, therefore, nudum pactum; and so is any promise made, by one having no actual or potential representa- tive character, to pay a dead person's debts.^ Under the Stat- ute of Frauds, such collateral promises to bind one individually should be made in writing ; ^ and, moreover, on general principle, there should either be a seal to import a consideration or else an actual good consideration for the promise. A verbal prom- ise, therefore, of the representative to pay his decedent's debt may be void as without consideration or void under the Statute of Frauds as not reduced to writing.* ' Wms. Exrs. 1776; Reech v. Ken- charged therewith, or some other per- negal, i Ves. Sen. 126 ; Nelson v. son thereunto by him lawfully author- Serle, 4 M. & W. 795. But see Ridout ized. The word "agreement " here used V. Bristow, I Cr. & J. as to the promise has in England been held to mean that by a widow. Also Templeton t'. Bas- the consideration of the promise as well com, 33 Vt. 132, as to the promise by as the promise shall be expressed in sole distributee. writing, or readily gathered from it. ^Tomlinsonz/. Gill, Ambl. 330. Wms. Exrs. 1784; Wain f. Warlters, ^29 Car. II. c. 3, whose provisions are 5 East, 10. But while in some of the enacted in all or most American States, American cases the English rule of declares that no action shall be brought construction is applied to corresponding to charge any executor or administrator local enactments, others construe the upon any special promise to answer language differently, and the modern damages out of his own estate, or to tendency appears to be against requir- charge the defendant upon any special ing the consideration as well as the promise to answer for the debt, default, promise to be so plainly expressed, or miscarriage of another person, etc., Wms. Exrs. 1784, note by Perkins; i unless the agreement upon which such Chitty Contr. nth Am. ed. 92. action shall be brought, or some memo- ■'Sidle v. Anderson, 45 Penn. St.464; randum or note thereof shall be in Wms. Kxrs. 1776 ; Walker z/. Patterson, writing and signed by the party to be 36 Me. 273; Winthrop v. Jarvis, 8 La. CHAP. I.] representative's TITLE AND AUTHORITY. § 256 Apart from any statute requirement that the consideration itself, as well as the rest of the agreement, should be expressed in writing (a point concerning which English and American authorities do not quite harmonize), a sufficient consideration for such promise arises where the creditor forbears to sue the executor or administrator ; and forbearance to sue is in various instances held to be a good consideration, and not within the statute, even though there were no assets at the time of the promise." So, too, having assets is a good consideration, according to various modern authorities, for the executor's or ad- ministrator's promise to pay a debt or claim which the decedent owed ; this being, perhaps, a sort of equitable enlargement of the old rule on this subject out of regard to the superior knowl- edge which every representative should possess as to the means at his disposal for paying demands upon the estate ; so that, having assets and promising in writing, the representative be- comes personally bound. ^ § 256. The Representative's own Creation of a Debt binds Him- self and not the Estate. — And here we should observe that an executor or administrator has no power in such capacity to cre- ate a debt against the deceased. He may clearly have intended to do so ; but the effect of such an engagement is, instead, to bind himself individually on the assumed faith that the assets he controls will, subject to the rules of administration which he is bound to observe, furnish ample indemnity to himself for in- curring the risk. Ordinarily, debts contracted by the personal representative are obligatory only as personal obligations, and cannot, primarily, bind the estate committed to him or charge specifically the corpus of the assets ; these assets being prima- rily bound rather for the debts which the deceased himself con- Ann. 434 ; Hester v. Wesson, 6 Ala. brought, so that the forbearance was 415. needless, seinhle the representative's 'i Roll. Abr. 15, 24; Wms. Exrs. personal promise fails of such consid 1778-1781 ; Hawes z/. Smith, 2 Lev. 122; eration. McElwee v. Story, i Rich. 9 Bradley v. Heath, 3 Sim. 543; Mosely ^Wms. Exrs. 1783; Cowp. 284, 289 z/. Taylor, 4 Dana, 542. And see Tern- Reech v. Kennegal, i Ves. Sen. 126 pleton V. Bascom, -t^t^ Vt. 132. But Sleighter i'. Harrington, 2 Murph. 332 where, there could plainly be no suit Thompson v. Maugh, 3 Iowa, 342. 347 § 256 EXFXUTORS AND ADMINISTRATORS. [PART IV. tracted during his lifetime.' The executor or administrator may contract, doubtless, on principle, for all necessary matters relating to the estate which he represents ; but the immediate and practical result is that, a sufficiency of assets being presumed as an element in the undertaking, he contracts as upon his per- sonal responsibility to keep good that sufficiency. And, not- withstanding the intent is to benefit the estate, every contract made upon a new and independent consideration, moving between the promisee and personal representative, is the personal contract of the latter, binding himself and not the estate represented.' Nor again, is the estate to be held liable for a tort committed by the executor or administrator ; and whether suit is brought as for a conversion or in damages as for breach of contract, the estate cannot be made to respond.^ Indeed, the rule is that executors and administrators cannot, by virtue of their general powers as such, make any contract which at law will bind the estate and authorize a judgment de bonis decedentis. But on contracts made by them for necessary matters relating to the estate, they are personally liable, and must see to it that they are reimbursed out of the assets. '* The ' Ferry z'. Laible, 27 N. J. Eq. 146; monument. 167 Mass. 577. An exec- Clopton V. Gholson, 53 Miss. 466 ; Mc- utor or administrator has no power to Farlin v. Stinson, 56 Ga. 396 ; Taylor bargain with an attorney to give him a V. Mygatt, 26 Conn. 184; Austin v. legal interest in the estate as compen Munro, 47 N. Y. 360 ; Moody v. Shaw, sation for his services so as thereby to 85 Ind. 88; 119 Cal. 492. bind the estate. 48 Tex. 491 ; 57 Cal. -This doctrine appHes to the debt in- 238; Austin v. Munro, 47 N. Y. 360. curred by the representative in employ- His own allowance from the court, leg- ing counsel to advise and assist him in acy, share, or claim is all that he can the discharge of his duty. ( Devane z/. thusdisposeof under any circumstances. >Royal, 7 Jones (N. C.) L. 426;)Bow- But as to compensation, etc., allowable man v. Tallman, 2 Robert. 385; Mc- out of the estate, see /^j-/. Part VII, c. 2. Gloin V. Vanderlip, 27 Tex. 366 ; Mc- That an executor cannot create a lien Mahon v. Allen, 4 E. D. Smith (N. Y.) on the assets for a debt due during the 519; Briggs V. Breen, 123 Cal. 657; decedent's lifetime, see Ford w. Russell, Thomas v. Moore, 52 Ohio St. 200. i Freem. Ch. 42; Ga. Dec. Part II. 7; Or where he purchases goods for the James's Appeal, 89 Penn. St. 54. benefit of the e---tate. Harding &. Evans, ^ gtgrrett jv. Barker, 119 Cal. 492. 3 Port. 221 ; Lovell v. Field, 5 Vt. 218. ■• Pinkney v. Singleton, 2 Hill, 343; Or where he borrows money to pay the Miller v. WilHamson, 5 Md. 219; Sims debts of the estate. 119 Cal. 492. Or v. Stilwell, 4 Miss. 176; Jones f. Jen- where he contracts for a headstone or a kins, 2 McCord, 494 ; McEldry v. Mc- CHAP. I.] representative's TITIT: AXn AUTHORITY. § 25/ addition of the word "executor" or "administrator" in such a contract is insufficient to relieve the representative of this per- sonal liability ; ' for if it be understood that the other party must rely upon the assets and not the representative, and must take the risk of their adequacy upon himself, the mutual expression should be clearly to that effect ; and even thus no lien would arise on the creditor's behalf, but the covenant or engagement of the executor or administrator, limited to the extent of assets in his hands, would bind him personally to that extent.^ § 257- Lien on the Assets is for Representative rather than for the Person dealing •with him ; Estate how far Answ^erable. — Per- sons, therefore, who deal with the executor or administrator act- ing independently in such capacity, can acquire no lien upon or right to proceed immediately against the trust estate in his hands. The executor or administrator himself, like other trus- tees, appears to have a charge or lien in his favor for proper ex- penses and charges fairly and reasonably incurred in the prose- cution of his trust ; but the privilege does not extend to others employed by him or to whom he, as executor or administrator, has incurred an individual liability to pay.^ This rule, though sometimes working harshly, is founded in sound policy, and better ensures a proper appropriation of the estate which the decedent left behind him. It enables the broad maxim to be applied, that for false and fraudulent representations by the ex- ecutor or administrator, and upon promises which he had no right to make, the property of the decedent cannot be held liable, Kenzie, 2 Port, t,-^; Underwood v. Mil- act of 1866 places contracts by the rep- legan, 8 Ark. 254. resentativefor labor and service for the ' Hopkins v. Morgan, 7 T. B. Mon. benefit of the estate on the same footing I ;(JBeaty v. Gingles, 8 Jones L. 302 \\^ zs, contracts made by authority of law. Litchfield v. Plint, 104 N. Y. 543. 74 Ga. 486. ^ Nicholas z/. Jones, 3 A. K. Marsh. ^ Wms. Exrs. 1792; Kirkman v. 385; Allen V. Grafifins, 8 Watts, 397. Boothe, 11 Beav. 273; Corner 57. Shew, A note made by an administrator, as 3 M. & W. 350; Fitzhugh v. Fitzhugh, such, by which he promises to pay, etc., 1 1 Gratt. 300 ; Montgomery v. Arm- for value received by the intestate and strong, 5 J. J. Marsh. 175; Steele z/. his heirs, is void for want of considera- Steele, 64 Ala. 438; Woods v. Ridley, tion. Ten Eyck w. Vanderpool, 8 Johns. 27 Miss. 119, 149; Harrell z^. Wither- 120. And see 37 Miss. 526. Georgia spoon, 3 McCord, 486. 349 § 258 EXECUTORS AND ADMINISTRATORS. [PART IV. and that a creditor's collusion with that object in view cannot be permitted to operate to his own advantage. Even though the representative contracted honestly as such, the estate is not bound by what he was not lawfully authorized to stipulate, but he alone is bound, however he may have described himself.' But the estate of the deceased ought to be made responsible for promises and engagements made by the representative, which he had the legal right to make, or where in law it was his duty without a promise to do just what he had promised to do.^ Whatever the methods for accomplishing this, there are usually found some practical means thus available ; as, for instance, in the case of funeral charges, and, in general, as to creditors of the estate so far as the assets, properly administered upon equita- ble principles, may suffice for their genuine purpose of satisfy- ing all just claims upon the estate. Claims are settled after probate rules established for general convenience, to be noted hereafter ; ^ and according as the contract arose with the deceased or with the representative himself. § 258. The same Subject ; Negotiable Notes, etc., running from or to the Executor or Administrator ; Other Instances. — The foregoing principles apply to negotiable instruments which the representa- tive executes. Thus, the signature " A. B., executor," or " A. B., administrator," to such paper cannot bind the decedent's estate directly, even though specifying that estate by name ; but A. B. will be held personally liable,* It has been held that an indi- vidual liability is not thus incurred unless the representative has assets, or forbearance was the consideration ; s and yet, giving one's own obligation expressly payable at a future day should ' Brown v. Farnham, 55 Minn. 27. issory note be given in renewal of a ^ Brown z/. Evans, 15 Kan. 88. matured promissory note executed by ^ See c. ^tpost, as to remedies, and his decedent. Cornthwaite v. Nat. the peculiar rule, e.g., as to funeral ex- Bank, 57 Ind. 268. And see Banl:ing penses. Co. z/. Morehead, 122 N. C. 318; 62 * Winter v. Hite, 3 Iowa, 142; Yelv. Minn. 459; 58 Fed. 681. II; Wms. Exrs. 1780; Christian v. ' Bani< of Troy t/. Topping, 9 Wend. Morris, 50 Ala. 585; East Tenn. Co. v. 273. In s. c. 13 Wend. 567, it is ad. Gaskell, 2 Lea, 742. And see Sieck- mitted that executing such note is /rma manz/. Allen, 3 E. D. Smith (N. Y.) 561. facie evidence of assets. This rule applies though the new prom- CHAP. I.] representative's TITLE AND AUTHORITY. § 258 be regarded as an admission, perhaps conclusive, of assets." Where a bill is indorsed to certain persons as executors, and they indorse it over, they become personally liable.^ As the current of American decisions runs, an executor or administrator, signing or indorsing a note as such, does not escape a personal liability thereon unless he expressly confines his stipulation to payment out of the estate ; ^ nor is parol evidence competent to establish such a reservation, though the note be signed offi- cially.'* A note payable to " B. administrator [or executor] of E.," is the property of B. and not of E.'s estate.^ Within the principles we have discussed, it may be asserted that, while a bond or covenant given by the representative as such, whereby he undertakes to assume whatever may be his decedent's debts, binds him as an "agent," so called, who has no principal,^ a bond given by him which is expressed to pay out of the assets the balance due in settlement, will not bind him beyond the assets received.^ And where he gives his personal notes simply in extension or renewal of those upon which his decedent was originally responsible, the natural import of the transaction is not an extinguishment of the liability of the estate to the creditors' disadvantage ; nor certainly, so as to deny to the representative himself the means of securing himself from the estate.^ Giving his own note or obligation for a debt of the decedent will not in any case exempt the estate from ultimate liability for the debt.'' And the principle holds good generally that parties who contract may provide expressly in their written agreement that an implication which the law would otherwise raise shall not apply. '° ' Thompson v. Maugh, 3 Iowa, 342 ; ' Saffold v. Banks, 69 Ga. 289. Childs V. Monins, 2 Br. & B. 460. The * Patterson v. Craig, 57 Tenn. 291. words "value received " might be im- 'Allen v. Graffins, 8 Watts, 397. portant in this connection. See i Cr. And see 58 Ind. 58. & J. 231. Or promising to pay with in- * Peter v. Beverly, 10 Pet. 532; i terest. 2 Br. & B. 460. How. 134; 122 N. C. 318. * Buller, J., in King v. Thom, i T. R. 9 Douglas v. Fraser, 2 McCord Ch. 489. See Snead v. Coleman, 7 Gratt. 105; Maraman v. Trunnell, 3 Met. 300. (Ky.) 146; Dunne v. Deery, 40 Iowa, ' Studebaker M. Co. v. Montgomery, 251. 74 Mo. loi. ■" Thus in a note signed as " executor," * McGrath v. Barnes, 13 S. C. 328. which expressly stipulates "as executor § 259 EXECUTORS A\0 ADMINISTRATORS. [PAKT IV. On the other hand, the recognition by the executor or ad- ministrator of a claim against the estate, arising subsequent to the decedent's death and upon his own contract, will give it no additional validity ; for it is not the estate that shall answer di- rectly for it to the creditor, but the representative himself.' Supposing some statute of limitations to have debarred the creditor from prosecuting his claim against the estate ; ^ a promise by the representative to pay the claim, if made in writing, whether in the form of a negotiable note officially signed or otherwise, may bind him personally upon the theory of a sufficient consid- eration founded in the possession of assets.^ § 259. Lien on the Assets, how^ far existing for the Representa- tive's own Immunity. — The individual obligation which the rep- resentative necessarily incurs by assuming to fulfil, even in the name of his office, engagements of the decedent, serves as a caution against his assuming too much, or undertaking more on behalf of the estate he represents than the assets at his com- mand fairly warrant. When, however, an executor or admin- istrator pays a debt or discharges a contract which constitutes in reality a just charge against the estate of the testator or in- testate, out of his private funds, he will be entitled to an allow- ance for the same in his accounts ; and administration under probate and equity direction supplies a sort of lien upon the assets for his reimbursement.'' This lien upon the assets, however, if such we may term it, does not secure the representative for liabilities or expenses in- curred outside the proper scope of his official duty. Thus, if he chooses to warrant title to the purchaser in selling assets, the risk which he assumes thereby is his own.5 And the dis- bul not personally," the executor is not Grath v. Barnes, 13 S. C. 328. And see personally bound. Banking Co. 7-. More- Bacon v. Thorp, 27 Conn. 251 ; § 255. head, 115 N. C. 413. "See Woods v. Ridley, 27 Miss. 119, ■ May V. May, 7 Fla. 207; Davis v. 149. French, 20 Me. 21 ; Lyon v. Hays, 30 ' See c. post, as to transfer of assets; Ala. 430; Woods V. Ridley, 27 Miss. Stoudenmeier v. Williamson, 29 Ala. ri9, 149. 558; Lockwood z-. Gilson, 12 Ohio St. ^On this point, see post, c. 5. 526. 3 Gates V. Lilly, 84 N. C. 643; Mc- CHAP. I.] representative's TITLE AND AUTHORITV. § 260 allowance in his accounts of expenses incurred and losses sus- tained through culpable negligence or bad faith puts a practical limit to his reimbursement out of the assets.' § 260. This Rule of Lien applied in settling Account of a Rep- resentative Deceased, Removed, etc. — So, too, where an execu- tor or administrator pays debts of the decedent out of his own funds, and dies or is removed before he has received assets sufficient to reimburse him, he or his own representative should be allowed to stand in the place of the creditor whose demand has been extinguished, and to assert the demand against the successor in his late trust.- Circumstances may exist in which it is not wrong in the original representative, although it may not be a positive duty, to make advances for the benefit of the estate which he administers, and where, by his death or removal from office, he may be unexpectedly deprived of the power to reimburse himself. Where advances have been made in good faith, and for the benefit of the estate, they in some form become a charge upon the estate in the hands of his successor in the trust, whose duty it is to pay them as much as if they had oc- curred in the course of his own administration. ^ The safer and the usual course, however, is for an executor or administrator to advance nothing and incur no expenditure or charge beyond the value of chattels in hand, or assets as actually realized ; thus rely- ing simply upon his lien to reimburse himself, or else his con- temporaneous appropriation of chattels instead, by way of elec- tion ; in which case the final settlement of his accounts involves a mere transfer of the just balance or residue to the successors, and avoids the disadvantage of an active pursuance of remedies against the latter.'* ' See c. S^jfiost, as to the representa- the administrator o'^ (5;. Cook, 29 Md. 538 ; Pool, derson v. Piercy, 20 \V. Va. 282. But Succession of, 14 La. Ann. 677. he ought to give somegood excuse. 88 ^See Smith v. Collamer, 2 Dem. 147. N. C. 416. See §308. A claim which is already outlawed need ^ See § 544. not be prosecuted. Patterson z/. Wads- ^Sarah v. Gardner, 24 Ala. 719; worth, 89 N. C. 407. That a debt Lukton 7y. Jenney, 13 Pet. 381. might have been collected is not con- ' Carlisle z/. Burley, 3 Greenl. 250. elusive against the representative. An- * lusenbise v. Eisenbise, 4 Watts, 134. 366 CHAP. II.] COLLECTION OF THE ASSETS. § 277 right to take possession of assets for the purpose of either se- curing or paying himself the debt clue to him ; nor can he, after having obtained possession, withhold it from the representative unless the possession was obtained for that purpose by an agree- ment with the deceased during his lifetime ; for, otherwise, the just order for payment of debts would be defeated.' § 277- Suing to recover Assets; Actions founded in Contract, Duty, etc., survive. — To come now to the representative's suit for recovering assets. From very early times the rule has been, that personal actions which are founded upon any con- tract, debt, covenant, or the obligation to perform a legal duty, survive the person entitled in his lifetime to sue, so that the right of action passes, upon the creditor's death, to his executor or administrator.'' Hence, at our common law, the personal representative has the right of action to recover all debts due to the deceased, whether debts of record, as judgments or recognizances, or debts due on bonds and other contracts under seal, or debts due on simple contracts and simple promises, oral or written, which are not under seal.^ Some exceptions to this rule which appear to have once prevailed were removed by the operation of statutes passed before or during the reign of Ed- ward III., and long anterior to the establishment of the English colonies in America.'' It is said that the executor or administrator so completely represents the deceased in all such rights of action that he may enforce the obligation, notwithstanding the contract be written out and makes no reference to him. Thus, if money be ex- pressly payable to B., the right to recover payment survives by implication to B.'s representative ; and though the writing should not only omit all reference to executors and adminis- trators, but promise payment specifically to " B, or his assigns," B.'s executor or administrator may sue upon it ; for a creditor is 'lb. 14th ed. ; Carr v. Roberts, 5 B. & Ad. 'i Saund. 216 a; stat. 31 Edw. IIL, 78; Owenz/. State, 25 Ind. 107; Bailey c. II ; Wms. Exrs. 786; Lee v. Chase, v. Ormsby, 3 Mo. 580. 58 Me. 432. ■* See as to action of account, stats. ^ Allen V. Anderson, 5 Hare, 163; i Edw. I., stat. i, c. 3 ; 25 Edw. IIL, c. Wms. Exrs. 786; Wentw. Off. Ex. 159, 5 ; 31 Edw. IIL, c. 1 1 ; Wms. Exrs. 786. § 279 EXECUTORS AND ADMINISTRATORS. [PART IV. not presumed to have assented that a debt owing him shall be lost to his estate if he dies before receiving payment." S 278. Survival of Actions founded in Contract ; Exceptions to Rule. — To the rule that every personal action founded upon a contract obligation shall survive to the personal representative, exceptions exist, deducible from the reason of the contract re- lation itself. Thus, where purely personal considerations are the foundation of the contract, as in the usual case of principal and agent, or master and servant, the death of either party puts an end to the relation and its incident obligations.^ And wherever the contract right is by plain intendment coterminous with the decedent's life, or dependent upon some condition which necessarily fails by reason of his death, the rep- resentative can take no succeeding advantage under the con- tract, but at the utmost only such advantage as may have accrued to the decedent during his lifetime, and was not actu- ally enjoyed by him.' Life insurance contracts, too, may from their very nature be so framed that the money shall, upon the death of the person insured, enure directly to the benefit of particular survivors, and not his general estate ; while, notwith- standing, the representative might be pro forma a nominal party to the suit on the beneficiary's behalf to recover the money /.•» § 279. Actions founded in an Injury to Person or Property died with the Person at Common Law ; Later Variations of this Rule. — But as to actions founded, not in contract, but in some injury done either to the person or the property of another, and A bond or covenant to indemnify sur- distinguished from one to sell realty vives to the representative. Carr ?'. which descends. 15 Lea, 194. Roberts, 5 B. & Ad. 78. ^V^^illes, J., in Farrow v. Wilson, L. ' Hob. 9 ; Wentw. Off. Ex. 215, 14th R. 4 C. P. 745 ; c. post. ed. ; Wms. Exrs. 789; Free. Ch. 173. ^Hob. 9, 10; Free. Ch. 173; Wms. And see as to expressions "heirs," Exrs. 789. "next of kin," etc., 11 Vin. Abr. 133, '^ Supra, % zw ; Lee e/. Chase, 58 Me. pi. 27 ; Wms. Exrs. 787 ; Carr v. Rob- 432. An action to recover an annuity ert.s, 5 B. & Ad. 78; § z"]"], supra. A .survives. Smith v. Smith, 15 Lea, suit to collect personal assets is to be 93. Also a right of action for being re- 368 CHAP. II.] COLLECTION OF THE ASSETS. § 279 for which only damages are legally recoverable, by way of recompense, the earlier doctrine of the common law has been that the action dies with the person for the want of litigants ; dies, that is to say, with the person who committed or the jierson who suffered the wrong.' Hence, the executor or ad- ministrator of the injured party could not bring an action in former times for false imprisonment, assault or battery, or other physical injury suffered by his decedent.^ Nor could he sue for torts affecting the feelings or reputation of his decedent, such as seduction, libel, slander, deceit, or malicious prosecu- tion.^ So, too, all right to recover for injuries done to the free- hold — nay, perhaps, to the personal estate also — was excluded by the death of the owner. '^ Statutes, however, in the reign of Edward III., changed con- siderably a rule often quite disadvantageous to estates of the dead, in its practical operation, by opening a wider door to exec- utors and administrators who sought to recover damages for wrongs suffered during life by those whose estates they rep- resented. Trespasses committed in carrying away personal prop- erty of the decedent during his lifetime, whereby the assets which reached the executor's hands became necessarily impaired in value, first attracted the attention of the English Parliament ; moved from office without a hearing. •• Wms. Exrs. 793 ; i Saund. 216, 217, 4 McArth. 141. notes. ' Wms. Exrs. 790 ; i Saund. 216, 217, The form, rather than the substance, notes. of this distinction between actions ' lb.; Smith v. Sherman, 4 Cush. 408 ; founded in contract and actions founded Harker v. Clark, 57 Cal. 245 ; Anderson in a wrong, appears to have been in- V. Arnold, 79 Ky. 370. sisted upon in the earlier authorities. ^ Long V. Hitchcock, 3 Ohio, 274 ; Thus it was said, that in cases where Walters v. Nettleton, 5 Cush. 544; the declaration imputes a tort done Nettleton v. Dinehart, 5 Cush. 543 ; either to the person or property of an- Deming w. Taylor, i Day, 285 ; Wms. other, and the //^a; must be " not guilty," Exrs. 793 ; McClure v. Miller, 3 Hawks, the rule was actio personalis moritiir citni 133; Miller z/. Umberhower, 10 S. & R. persona. Hence, the doubt formerly 31; Sawyer v. Concord R., 58 N. H. entertained whether aj'j?/w/j'/^ would lie 517. Action for criminal conversation for or against an executor; because the does not survive. Clark v. McClellan, action was in form trespass on the case, 9 Penn. St. 1 28. Nor an action for ex- and therefore supposed a wrong. Wms. penses incurred by the testator or intes- Exrs. 789; Plowd. 180; Cro. Jac. 294; tate in defending against a groundless 2 Ld. Raym. 974. suit. Deming v. Taylor, i Day, 285. 24 369 § 280 EXECUTORS AND ADMINISTRATORS. [PART IV. and statute 4 Edw. III. c. 7 placing the executor, as to all such trespassers, upon the sam-e footing which his testator would have occupied had he still remained alive, the next step was to accord similar benefits to the estates of such as might die intestate.' By an equitable construction of these statutes, an injury done to the personal estate of the decedent during his lifetime became distinguished from that suffered by his person, so that in effect an executor or administrator might have the same action for an injury done to the personal estate of the deceased during his lifetime, whereby it had become less beneficial to the representa- tive than it should have been, as the deceased himself might have had if living, whatever the form of action.^ § 280. The same Subject. — Where, therefore, the personal representative can show that damage has accrued to the per- sonal estate of the deceased, through breach of the defendant's express or implied promise, the later rule is that he may sue at common law to recover damages, even though the action itself sound in tort. As where the attorney is sued for his negligence in investigating a title upon which a transfer of property de- pended.^ Or where one contracting for safe carriage receives an injury which results in a loss of his baggage ;•♦ notwithstand- ing an action for the gra\'er personal injury might have died with the sufferer. As these statutes, nevertheless, made no change in the earlier law, so far as the survival of actions for injury done to the freehold was excluded, some fine distinctions have been made by the courts in applying this later rule ; distinctions founded in the essential differences between real and personal property.^ ' I Saund. 217 ; Cro. Eliz. 384 ; stats, self or his deputy to the loss of the right 4 Edw. III. ; 15 Edw. III., c. 5 ; Wms. sued upon or its proper security. 2 Ld. Exrs. 790. Raym. 973; Paine v. Ulmer, 7 Mass. ^Trespass or trover may, accordingly, 317; 4 Mod. 403; 12 Mod. 72; Wms. be brought by the executor or adminis- Exrs. 791. trator. Cro. EHz. 377; Manwell v. ^ Knights r'. Quarles, 4 Moore, 532. Briggs, 17 Vt. 176; Potter v. \'an -i Alton z/. Midland R., 19 C. B. N. .s. Vranken, 36 N. Y. 619. Debt on a 242. judgment against an executor suggest- ' See preceding section. Thus, by xxx-^z. devastavit, i Salk. 314. Action the equity of statute 4 Kdw. III., c. 7, against a sheriff for the default of him- the executor or administrator of a les- CHAP. II,] COLLECTION OF THE ASSETS. § 28o But the decisions are somewhat confusing on this point ; and it must not be supposed that tlie mere form of action shall con- clude the question of survival of the right to sue ; for it is the gist, rather, and substance of the action that must determine. The principle of the common-law distinction is still that the ex- ecutor or administrator shall enforce contract rights of action as collector or custodian of the decedent's personal estate, and not pursue wrongs for which the decedent might have sought a per- sonal redress in damages ; ' a distinction not easily maintained, however, as one perceives when he reflects that our modern in- corporeal personal property, with its claims and demands of various kinds, has expanded in sense far beyond the ancient theory of a simple cJiose in action or debt, which needed only to be reduced into the representative's possession or collected. Pursuing that distinction, judicial policy pronounces finally against the survival of an action for breach of promise to marry to the plaintiff's representative, unless, perhaps, as rarely hap- pens, the foundation of damage alleged is the loss of plaintiff's personal property in consequence ; and, indeed, there are very sound reasons why such a cause of action should not be per- see might maintain an ejectment suit movable and assets. Williams -■. Bree- founded on transmission by death of a don, i B. & P. 330. So where grass is title to chattels real. Wms. Exrs. 793 ; mowed and carried off as hay, trespass Doe z'. Porter, 3 T. R. 13. But actions is maintainable. Wms. Exrs. 794; for obstructing rights, diverting a water- Wentw. Off. Ex. 167 ; Halleck v. Mixer, course, and the like, did not survive to the 16 Cal. 574. Whether injury to grow- representative. i Saund. 217 a; Wms. ing crops might be sued for, on the Exrs. 793. Nor could the representative doctrine of a constructive severance and maintain trespass quare claiisuvi /regit emblements, is sometimes considered, nor an action merely for cutting down Wms. Exrs. 793 ; 70 Me. 219. trees, or growing corn, etc., or for other ' Chamberlain v. Williamson, 2 M. waste committed on the freehold during & S. 408 ; Smith v. Sherman, 4 Cush. the lifetime of the decedent. Wms. 408; Kelley v. Riley, 106 Mass. 341; Exrs. 793 ; Williams v. Breedon, i B. Hovey v. Page, 55 Me. 142 ; Harrison & P. 329; Wentw. Off. Ex. 163, 14th v. Moseley, 31 Tex. 608. But cf. Shuler ed. And yet for corn and wood of the %■. Millsaps, 71 N. C. 297, contra, where decedent cut and carried away during the death was that of the defendant his life it would appear that the exec- instead. Upon the subject of breach of utor might bring his action; for sever- promise to marry, see, generally, Schoul. ance converts property from real to Hus. & Wife, §§ 40-51. And see Fen- personal, and what was carried away lay v. Chirney, 20 Q. B. D. 494 ; § 370, and capable of being carried became post. §'28l EXECUTORS AND ADMINISTRATORS. [PARTIV. mitted to survive at all. And so with respect to actions against physicians for malpractice,' or against an attorney through whose unskilful management his client was incarcerated.- For though the form of action may be contract, the damage, substan- tially, laid in such cases, and for which recovery is sought, is in reality mental or physical suffering inflicted ujion the person of the decedent through the defendant's negligence or mis- conduct. And, notwithstanding the general rule, the same con- siderations do not always appear to ha\e mo\'ed the court where the plaintiff sufferer dies first, as where one survives the defendant and seeks to hold the defendant's estate liable for his own redress. 3 Yet the law as to survival of actions is usually defined as the same whether ])laintiff or defendant dies, and reciprocal in its operation. ■♦ § 281. The same Subject; Replevin, Detinue, etc., by the Rep- resentative. — If goods or chattels of the decedent, taken away during his lifetime, continue /;/ specie in the hands of the wrong-doer after his death, replevin and detinue will lie for the representative to recover back the specific things.^ And for the conversion of such goods or chattels an action lies by the executor or administrator as representative of the deceased to recover their value.^ In general, goods or chattels taken away, which continue as such in the hands of the wrong-doer, can be recovered by the representatixe ; or, if sold, an action for money had and received will lie to recover their value.^ ' Wms. Exrs. 801 ; Long?'. Mornson, of decedent, see Griffith t/. Charlotte R., 14 Ind. 595. 23 S. C. 25. As to contingent luilnlity ^ Wms. Exrs. 801. Cf. Knights v. of a stockholder under statute, see 87 Quarles, supra. And see language of Fed. 113. Lord Ellenborough in Chamberlain v. ' Wms. E.xrs. 787; i Saund. 217 ;/..• Williamson, supra. Jenney ?'. Jenney, 14 Mass. 232; Reist ' Actions of deceit, as in the* sale or -■. IleillM-enner, 11 S. & R. 131 ; Elrod exchange of property, do not at com- v. .Mexander, 4 Ileisk. 342. mon law survive. Cutting v. Tower. 14 " Wms. Exrs. 787 ; Jenney v. Jenney, Gray, 183; Newsom v. Jack.son, 29 supra; Willard v. Hammond, i Fost. Geo. 61 ; Coker v. Crozier, 5 Ala. 369; 382; Eubanks v. Dobbs, 4 Ark. 173; Henshaw e-. Miller, 17 How. (U. S.) Manwell v. Briggs, 17 Vt. 176; Charlt. 212; Grim v. Carr, 51 Penn. St. 533; (Ga.) 261. Wms. Exrs. 793. note by Perkins. '' Potter v. Van \'ranken, 36 N. Y, * As to suing for injury to the corpse 619. ^7^ CHAP. II.] COLLECTION OF THE A.SSETS. § 282 § 282. The same Subject; Modern Statutes affecting the Rule. — Modern local statutes are frequently explicit as to the right of action by or against the personal representative, founded in a tort ; and the right of action is thus extended in terms more or less specific. The obvious tendency of our later legislation is to remove the old barriers which obstructed the survival of ac- tions, so as to give an aggrieved person's estate the benefit of pecuniary compensation. Thus, in Massachusetts, it is now pro- vided that all actions which would have survived, if commenced by or against the original party in his lifetime, may be com- menced and prosecuted by and against his executors and admin- istrators.' Actions of replevin, actions for goods taken and carried away or converted by the defendant to his own use, and actions against sheriffs for malfeasance or nonfeasance by themselves or their deputies, are among the causes specifically enumerated in Ameri- can local statutes ; ^ causes, some of them, fairly privileged in this respect, irrespective of such legislation. In various States, actions for libel, or slander, are now found thus to survive ; ^ also actions for seduction ; * actions for deceit ; 5 and actions for mal- practice by a physician, apothecary, or attorney.'^ So, too, is a modern legislative disposition strongly manifested to enlarge and confirm the representative's remedies for such torts as may have been committed against the person of the de- cedent. Thus, a Massachusetts statute provides that the fol- lowing (among other causes specified) shall survive in addition to the actions which survive by the common law : actions of tort for assault, battery, imprisonment, or other damage to the person. 7 The sweeping language of kindred enactments in some other States confers a survival of actions ex delicto, still more ' Mass. Pub. Stats, c. i66, § i. An ' Haight v. Hoyt, 19 N. Y. 464. action against an apothecary for negli- ^ Long v. Morrison, 14 Ind. 595 ; Mil- gently selling a deadly poison as a harm- ler z/. Wilson, 24 Penn. St. 114. less medicine will consequently survive. ' Mass. Pub. Stats, c. 165, § i. The Norton v. Sewall, 106 Mass. 145. words "damage to the person" in this ^ Smith z*. Sherman, 4 Cush. 408; statute do not include torts not directly Norton v. Sewall, 106 Mass. 143. affecting the person, but only the feel- ' Nutting V. Goodridge, 46 Me. 82. ings or reputation, such as breach of •• Shafer v. Grimes, 23 Iowa, 550. promise, slander, or malicious prosecu,- in. § 283 EXECUTORS AND ADMINISTRATORS. [PART IV, comprehensive.' And under the operation of appropriate prac- tice acts, the executor or administrator of any person who might have sued in his own name, during his life, for personal injuries sustained by reason of the negligence of some town in keeping its highways, or through the culpable carelessness of some rail- way or other common carrier, may sue as representative where his decedent died, having a cause of action. - It ma)' perhaps, be generally laid down, as to actions of this character, that the legal representative is not entitled to recover, except upon such a state of facts as would have entitled the de- ceased himself to recover, had the latter been living.^ § 283. The Subject continued; Action for Damages in causing Death. — A remarkable instance in which the rule of survival of actions has been enlarged, relates to instantaneous death. At the common law an action could not be brought by one's executor or administrator to recover damages for causing the decedent's death ; for the death of a human being afforded no ground of an action ex delicto, even when caused by another's wrongful act or neglect.'' In view, chiefly, perhaps, of the great damages to which travellers in great numbers have become exposed in tion. Norton v. Sewall, 106 Mass. 143; the plaintiff dies from some other cause, Nettleton v. Uinehart, 5 Cush. 543 ; the right of action survives. Chicago Conly z'. Conly, 121 Mass. 550. R. ?'. O'Connor, 119 111. 586. A right ' Shafer?'. Grimes, 23 Iowa, 550. See of action in the federal court to recover also Adams v. Williams, 57 Miss. 38. a penalty given by a federal statute does Actions for malicious arrest and im- not survive. Schreiberz/. Sharpless, iio prisonment survive. Iluggins v. Tole, U. S. 76. Nor does an action for en- I Bush. 192; Whitcomb -'. Cook, 38 ticing away one's servant. Huff j/. Wat- Vt. 477. kins, 20 S. C. 477. Nor for malicious ^ Wms. Exrs. 792, note by Perkins; prosecution. 41 Ark. 295. Hooper v. Gorham, 45 Me. 209; De- ^ See Pound v. Pound, 64 Minn. 428; mond V. Boston, 7 Gray, 544. See as to in Ala. 529. survival of suit for penalty under a man- * Wms. E.xrs. 797, citing preamble of ufacturing act, where the plaintiff dies stat. 9 & 10 Vict. c. 93; Carey v. Berk- after judgment, Blake z/. Gnswold, 104 shire R., i Cush. 475; Wyatt v. Wil- N. V. 613. A cause of action for con- liams, 43 N. H. 102. If one lives from spiracy to cheat and defraud or for de- three to five minutes after being injured ceit survives. Brackett v. Griswold, 103 by negligence, the cause of action will N. Y. 425; Baker 7'. Crandall, 78 Mo. survive. Kellow z/. Central Iowa R., 68 584. Where pending one's action for Iowa, 470. personal injuries caused by negligence, 374 CHAP. 11.] COLLECTION OF THR ASSETS. § 283 these modern days of coach, railway, and steamboat transporta- tion, the peculiar trust they are compelled to repose in those who undertake to carry them, and the sound policy of holding trans- porting companies to the exercise of a reasonable care and dili- gence in managing their perilous business, statutes, both Eng- lish and American, have been enacted during the present cen- tury, providing in substance that damages may be recovered, not only for personal injuries, but for causing one's death wrongfully and carelessly. Many of these statutes are explicitly directed against railway and other passenger carriers ; but inasmuch as modern invention tends in various other instances to place in- dividuals within the power of corporations and private persons who undertake to perform a service, — to say nothing of killing by assault and premeditated violence, such as the criminal codes of all ages more especially provide for, — the humane and pru- dent legislation of the nineteenth century takes often in England and the United States a more general scope. Of this latter character is the English statute 9 and 10 Vict. c. 93, which enacts that whensoever the death of a person shall be caused by a wrongful act, neglect or default, such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, then, and in every such case, the person who would have been liable if death had not ensued, shall be liable to an action for damages, notwith- standing the death of the person injured.' Corresponding en- actments are to be found in most parts of the United States, extending to corporations as well as individuals, causing such damage or death. ^ Actions, under statutes of this character, are sometimes to be brought in the name of the State, and as though by instituting a sort of criminal prosecution against a corporation ; and even where the action is brought as a mere civil action in the name of the executor or administrator, the benefits are made to redound, as far as possible, to surviving spouse, children, or parent, immediately, rather than for the pur- pose of supplying assets for the decedent's general estate. ^ ' Stat. 9 & 10 Vict. c. 93, cited Wms. Mass. 85 ; Wliitford v. Panama R., 23 Exrs. 796. N. V. 465 ; Glass v. Howell, 2 Lea, 50. ^ Richardson 57. N. Y. Central R., 98 ^ Stat. 9 & 10 Vict. c. 93; Wms. 375 § 284 EXECUTORS AND ADMINISTRATORS. [PART IV. The broad underlying principle of all such legislation is to render persons liable in damages for inflicting an injury wan- tonly or negligently, whether the innocent sufferer by such tort dies before recovering recompense or not, and whether death ensues instantaneously or later. § 284. The same Subject; Actions founded on "Wrongs done to Real Estate, etc. — Actions founded on wrongs done to the free- hold during the decedent's life did not, as we have remarked, survive at the common law.' Hence, the personal representa- tive could not maintain trespass, q. c. /., nor sue for merely cut- ting down trees or for committing waste on the decedent's real estate during his lifetime.^ Nor could he sue for diverting a water-course, obstructing lights, and the like.^ But this left injuries to a decedent's real property, committed during his life- time, wholly unredressed. Hence, the English statute 3 & 4 Wm. IV, c. 42, § 2, reciting this palpable injustice, enacts that executors and administrators may, within a year after a dece- dent's death, bring actions for any injury to his real estate com- mitted within six months before his death. '♦ And legislation in various parts of the United States upholds, in more ample terms, the survival of actions to the personal representative, for dam- age done to real as well as personal estate.' Exrs. 797, and note by Perkins. And wrong, abates upon the death of the cf. in general, Sherm. & Redf. on Negli- wrong-doer. Hegerich v. Keddie, 99 gence; Cooley on Torts; Bigelow on N. Y. 258; Boor v Lowrey, 103 Ind. Torts, etc., where the subject is more 468 ; § 370, /^j^. properly discussed at length. The prac- ' Supra, § 279. titioner will be guided by the statutes ^Williams v. Breedon, i B. & P. 329; of his own State, and local decisions supra, § 279. in construction of the same. ^ w^^s. Exrs. 793; i Saund. 217, The right of a representative to sue note; Kennerly v. Wilson, i Md. 102. under modern statutes, such as we have A representative cannot bring an action denoted in this and the preceding sec- on the case for overflowing the lands of tion, does not necessarily depend upon the decedent during the latter's lifetime, the question whether the deceased left McLaughlin v. Dorsey, 1 Har. & M. a wife or family, but upon the common- 224 ; Chalk v. McAlily, 10 Rich. 92. law right of the injured person to sue if ■• Wms. Exrs. 795, 796. he were living. See Quin v. Moore, ^ .Mass. Pub. Stats, c. 165, § i ; How- 15 N. Y. 432. The cause of action cott ». Warren, 7 Ired. L. 20. An action where death was caused by another's of tort for damages caused by one's mill- CHAP, n.] COLLECTION OF THK ASSETS. § 285 Such damages when recovered by the personal representative appear to belong fitly to the personal estate of the decedent ; ' the right of action and money compensation being, in essence, personal and not real property. § 285. Actions upon Covenants Real, etc. ; Whether Represen- tative may sue. — But the right of action on behalf of a dece- dent's real estate has been denied to the personal representative in various instances, on the principle that, the land having de- scended to the heirs or vested in devisees, the right of action vests more appropriately in them. Where a covenant is purely collateral and does not run with the land, but its benefit, if un- broken, would pass to the representative as personal estate, it would appear to follow the usual rule of contracts as to survivor- ship ; that is to say, the right of action for its breach passes, upon the death of the party, to his executor or administrator, and constitutes personal assets.' And hence, it is held that for breach of a covenant not to fell or lop off certain trees expressly excepted out of a lease of lands, the lease having been granted by the decedent during his life, and the breach occurring before his death, the lessee may be sued by the personal representative.^ So, too, that the executor of a tenant for life may sue for the breach of a covenant to repair, incurred by his lessee during the testator's lifetime.'* For, unless the case be such that the heir or devisee alone could have sued, the personal representative is the proper person to bring the action, if a suit be maintainable at all. dam may thus survive. Brown v. Dean, excepted from the demise, the heir or 123 Mass. 254. But not an action at devisee of the land, on which the trees law for fraudulent representation indue- grew, could not sue for a breach of cov- ing one to part with real estate. Legate enant, whether incurred before or after w. Mouhon, 115 Mass. 552. See, how- the death of the covenantee. Wms. ever, Cheney v. Gleason, 125 Mass. Exrs. 807. 166, as to the equity rule. ■* Rickettsz'. Weaver, 12 M. & \V. 718. ' So provided in stat. 3 & 4 Wm. IV. And it is not needful that the executor c. 42 ; Wms. Exrs. 796. in such a suit aver damage to his testa- * Supra, § 279. tor's personal estate. Leases or chat- * Raymond v. Fitch, 2 Cr. M. & R. tels real, we are to observe, constitute 588. Unless the executor had the personal property, being estates less power to sue, observes Williams, all than a freehold. remedy was lost, for the trees being thus 377 ^ 2.S5 EXECUTORS AND ADMINISTRATORS. [pART IV. But where the covenant runs with the freehold, the right to sue will pass to the heirs of the covenantee or his assigns, and thus in many instances to the exclusion of the executor or ad- ministrator ; as where breach is made of the covenant of war- ranty contained in a conveyance.' And it is observable that a covenant running with the land may thus go to the heir, not- withstanding the covenant does not mention the heir, but spe- cifies inaccurately the covenantee and his executor or adminis- trator.^ According to the earlier authorities, if a covenant running with the land was broken during the lifetime of the testator or intestate, the executor or administrator might sue upon it, doubtless on the theory that damages for such breach ought to be regarded as part of the decedent's personal estate devolving upon him.^ This rule still applies where the ultim.ate damage was sustained in the lifetime of the ancestor ; as where, for instance, he is actually evicted from the land through the fail- ure of the warranted title, or by some breach of a covenant for quiet enjoyment. ■♦ But the later English decisions so far qualify the older rule on this point as to hold that damage not ultimately sustained during the decedent's lifetime, upon a covenant w^hich runs with the land, is not to be sued upon by the executor or administrator ; and that even though a formal breach of such a covenant may have occurred before the ancestor died, yet if the ultimate and substantial damage was not until after the ances- tor's death, the real representative, and not the personal repre- sentative, becomes the proper plaintiffs ' Touchst. 175 ; Wms. Exrs. 801. cover possession of a water right cannot ^ Lougher v. Williams, 2 Lev. 92. be maintained by the personal represen- ^ Lucy z/. Levington, 2 Lev. 26; Com. tative. 25 Colo. 360. Dig. Covenant B, i ; Wms. Exrs. 801 ; " Wms. Exrs. 801 ; Grist v. Hodges, Clark V. Swift, 3 Met. 390; 4 Kent 3 Dev. L. 198. Com. 472 ; Burnham v. Lasselle, 35 Ind. ' Wms. Exrs. 803, 804 ; Kingdom v. 425. An action for damages for non- Nottle, i M. & S. 355 ; King v. Jones, performance of a sealed agreement to 5 Taunt. 418; 4 M. & S. 188. Weighty convey land is to be brought by the per- authorities in the United States are sonal representative and not by the heir against the decision of Kingdom v. Not- of the covenantee. Watson v. Blaine, tie, supra, and in support of the doc- 12 S. & R. 131. As to unlawful entry trine that the breach of a covenant and detainer, see 21 W. Va. 440. against incumbrances is broken imme- An action to quiet title in, or to re- diately by any subsisting incumbrance; CHAP. II.] COLLECTION OF THE ASSETS. § 2(8/ Where a reversion is for years, the executor or administrator is the proper party to sue on a covenant made with the lessor, whether it runs with the land or not.' § 286. The same Subject ; Breach of Covenant in Deed or Lease. — Executors and administrators may sue, therefore, upon breaches of covenant under a deed relating to the realty which have occurred during the life of the decedent, so as to impair his personal estate ; - also upon covenants in an underlease carved out of a leasehold estate.^ Whether breaches occur in a lease before or after the lessor's death, the term of the lease continuing, the right of action is in the executor or administra- tor ; and this applies to the covenant for payment of rent.'* § 287. Action for disturbing Possession; Pe'w, Lease, etc. — A pew being treated in some States as personal property, the ex- ecutor or administrator exercises the usual rights as to dispos- ing of it or rendering it otherwise profitable to the estate. Be- fore distribution of the estate he may occupy it himself or let it ; and if strangers interfere with its use or with his obtaining rent for it from others in his representative character, he may declare for an injury since the death of his testate or intestate. 5 Even where the law prevails that pew-holders have an estate in the nature of a right of occupancy subject to the superior rights of the society owning the fee of the church, the same doctrine appears tenable, the heirs acquiescing, unless it is shown that and, consequently, that the grantor or ' lb. his personal representative may sue upon ''Taylor Landl. & Ten. §459. See it. 4 Kent Com. 472; Hamilton v. § 353, as to a representative's power to Wilson, 4 Johns. 72; Chapman v. deal with leases. An action of eject- Holmes, 5 Halst. 20 ; Mitchell v. War- ment abates on the death of the defend- ner, 5 Conn. 497 ; Garfield ^/. Williams, ant. Farrall v. Shea, 66 Wis. 561. 2 Vt. 327; Wilde, J., in Clark v. Swift, But after the death of a plaintiff, the 3 Met. 390. suit may be revived in the name of the ■ Wms. Exrs. 808. Executor of ten- personal representative, and rents and ant for years comes expressly within profits recovered by way of damages, the Stat. 32 Hen. VHI. c. 34. lb. Roberts v. Nelson, 86 Mo. 21. ^Knights V. Quarles, 4 Moore, 532; ' Perrin v. Granger, 33 Vt. loi ; i Taylor Landl. & Ten. § 459. Schoul. Pers. Prop. 158. 379 § 289 EXECUTORS AND ADMINISTRATORS. [PART IV. the property has been distributed to the heirs, or at all events gone into their possession and control.' So may the representative as such maintain qiiare impedit for a disturbance in his own time, or ejectment upon an ouster after his testator's or intestate's death,^ where the latter had a lease for years or from year to year. § 288. In General, Personal Representative sues for Assets of the Estate. — In general, a suit in law or equity to recover the personal assets of an estate, must be brought by the personal rep- resentative.^ An order from the probate court or ordinary is not usually needed for the representative to bring his suit, unless perhaps it be against the heirs.'' § 289. Suits, whether to be brought by Representative in his own Name or as Representative. — As a general rule, the execu- tor or administrator cannot sue in his individual name for de- mands due in his decedent's lifetime to the estate which he represents, but must sue in his representative character ; '> while upon demands created since his decedent's death the reverse holds truc.^ But to this doctrine are apparent exceptions. Thus, an ex- ecutor or administrator may sue in his own name, without de- claring his representative character, on a note given to him for the purchase-money of goods sold by him belonging to the estate of the decedent. ^ Or upon any negotiable note or other ' lb. 56 Pa. St. 166 ; Middleton v. Robinson, ^^Doe V. Porter, 3 T. R. 13; Cro. i Bay (S. C.) 58; Davis v. Rhame, i Eliz. 207; 4 Co. 95 a; Wms. Exrs. McCord Ch. 191; Baxter v. Buck, 10 878. Vt. 548; Webster v. Tibbits, 19 Wis. 'Pope V. Boyd, 22 Ark. 535 ; Hellen 438. V. Wideman, 10 Ala. 846; Johnson v. ^Jordan v. Pollock, 14 Ga. 145; Pierce, 12 Ark. 599; Brunk v. Means, Raid z'. Butt, 25 Ga. 28. II B. Mon. 214; Snow J/. Snow, 49 Me. ^Tappan v. Tappan, 10 Fost. 50; 159; Sears v. Carrier, 4 Allen, 339; Patchen v. Wilson, 4 Hill (N. Y.) 57; Cheely v. Wells, ^t^ Mo. 106; Howell Rogers v. Gooch, 87 N. C. 442. V. Howell, 37 Mich. 124; Woodin v. * Klines'. Gathart, 2 Penn. 491. Bagley, 13 Wend. 453 ; Clason z/. Law- 'Evans v. Gordon, 8 Port. (.Ma.) rence, 3 Edw. 48; Pauley v. Pauley, 7 346; Goodman z/. Walker, 30 Ala. 482 ; Watts, 1 59 ; Linsenbigler v. Gourley, Oglesby v. Gilmore, 5 Ga. 56 ; Gunn v. 380 CHAP. II.] COLLECTION OF THE ASSETS. § 29O instrument which he holds, whose tenor makes it payable to bearer ; ' for possession of such an instrument is sufficient /rma facie evidence of title to the holder. Or on a promissory note payable to himself individually, which he has taken in settlement or compromise of a debt or demand due the estate.^ And an executor or administrator may in his own name sue to recover the price of personal property sold by him at public or private sale.^ So has he been allowed to bring an action of replevin for property of the deceased in his own name.'* It may often be more convenient for the representative to sue individually in such instances, and he is not debarred from so doing. § 290. The same* Subject ; General Principle as to suing in Representative's Individual or Official Name. — The COmmon-law distinction, as laid down in some well-considered American cases, is this : Where the right of action accrued to the testator or intestate in his lifetime, or to the executor or administrator after the death of the testator or intestate, either upon a con- tract express or implied, made with the testator or intestate, or for an injury done to the property of the testator or intestate during his lifetime, the executor or administrator should sue in his representative character. But where the right of action ac- crues to the executor or administrator upon a contract made by or with him as such, since the death of the testator or intestate, or for an injury done to, or a conversion of, the property of the testator or intestate in the hands or possession of the executor or administrator after the death of the testator or intestate, the action may and ought to be brought in the proper name of the executor or administrator, but not as such.^ This distinc- tion does not absolutely apply, however, to suits upon negotiable instruments, nor is it uniformly observed in the practice of our Hodge, 32 Miss. 319 ; Catlin t'. Under- ^ Stewart v. Richey, 2 Harr. 164; hill, 4 McLean, 337. Kline v. Gathart, 2 Penn. 491. And 'Lyon V. Marshall, 11 Barb. 241; see Thornton v. Smiley, i 111. 13; Brooks V. Floyd, 2 McCord, 364 ; Hoi- Patchen v. Wilson, 4 Hill, 57 ; Carter combe z/. Beach, 112 Mass. 450. v. Estes, 11 Rich. 363; Manwell v. ^ McGehee v. Slater, 50 Ala. 431. Briggs, 17 Vt. 176 ; Carlisle v. Burley, ^ Laycock v. Oleson, 60 111. 30. 3 Greenl. 250. * Branch v. Branch, 6 Fla. 314. § 291 EXECUTORS AND ADMINISTRATORS. [PART IV. States. And we should conclude that the representative's right to sue, whether officially or in his own name, is to a great ex- tent optional on his part, or else determined by the tenor of the instrument sued upon. Where the executor or administrator sues on a contract made with his testator or intestate, he must, under such a rule, sue necessarily in his representative character, although the time for payment or performance had not arrived when the testator or intestate died.' § 291. This Principle applied in suing for Torts affecting the Property. — Where goods and chattels which belonged to the decedent at the time of his death are afterwards tortiously taken or wrongfully converted, the personal representative may sue in his own name without calling himself executor or administrator ; for the property vested in him on the death of his testator or intestate, and hence the wrong may be considered as done to himself.^ And such is the special property of the executor or administrator in the decedent's goods and chattels, as a title he may assert or not, that according to the better opinion the per- sonal representative has the option, when he sues in damages for the tort thus committed, either to sue in his own represent- ative capacity and declare as executor or administrator, or to bring the action in his own name and in his individual charac- ter.3 Not only may trover or trespass be maintained, and other actions of tort upon this principle, but likewise replevin. ■» An action may be brought by the personal representative in his own name, accordingly, notwithstanding the tort was com- mitted after the death of the testate or intestate, and before let- ters were issued or a probate granted ; 5 and, we may add, ■ Bronson, J., in Patchen v. Wilson, '' Branch v. Branch, 6 Fla. 314- 4 Hill, 57. There may be trespass for wasting and ^ Patchen v. Wilson, 4 Hill, 57, 58 ; destroying as well as for carrying away Carlisle v. Burley, 3 Greenl. 250; Sims the goods of the decedent. Snider v. V. Boynton, 23 Ala. 353 ; Skelheimer Croy, 2 Johns. 227. V. Chapman, 32 Ala. 676; Gage v. ' Wms. Exrs. 876 ; Bollard v. Spen- Johnson, 20 Miss. 437. cer, 7 T. R. 358 ; Hollis v. Smith, 10 s Bollard v. Spencer, 7 T. R. 358 ; East, 294 ; Ham v. Henderson, 50 Cal. Hollis V. Smith, 10 East, 295; Ham v. 369; Wms. Exrs. 630, 637, 877. Henderson, 50 Cal. 367. 382 CHAP. II.] COLLECTION OF THE ASSETS. § 292 whether the representative was ever actually possessed of the goods or not.' In suing thus, in an action of trover, the executor or admin- istrator may, if he bring the action in his own representative name, either allege that his testator or intestate was possessed of the goods, and the defendant, after his death, converted them, or that he himself was possessed as such executor or ad- ministrator, and the defendant converted them.^ § 292. Suits on Contracts made Tvith the Representative. — Upon a contract expressed or implied, made with the execu- tor or administrator as such, after the death of his testator or intestate, the action may be brought by the representative in his own name ; ^ though the opinion best sanctioned by English and American authorities is, that he may elect to sue either in his individual or his representative capacity.'* As upon a contract made with reference to the sale or disposition of particular as- sets, or to recover the price thereof. ' Or for money lent by him as executor or administrator.^ And in various cases where assumpsit is maintainable for recovering money paid by the representative to the use of the defendant. ^ It is observable that contracts made by a representative bind him individually ; and yet that of such contracts, some may be within the clear scope of one's official authority and some without it ; and hence, ' Hollis V. Smith, 10 East, 294; Val- *Wms. Exrs. 878, and Perkins's note, entine z/. Jackson, 9 Wend. 302. Bui- ' Evans z*. Gordon, 8 Port. 346; Ogles- ler, J., in Cockerill v. Kynaston, 4 T. by v. Gilmore, 5 Ga. 56 ; Laycock v. R. 281, is overruled on this point. Oleson, 60 111. 30; Gunn v. Hodge, 32 Wms. Exrs. 876. Miss. 319 ; Goodman v. Walker, 30 Ala. ^Wms. Exrs. 877. The personal rep- 482; Catlin v. Underhill, 4 McLean, resentative, either as such or in his own 337 ; Patterson v. Patterson, 59 N. Y. name, may sue the sheriff for the escape 574; Haskell v. Bowen, 44 Vt. 579; of one in execution on a judgment re- Eagle v. Fox, 28 Barb. 473; Peebles z'. covered by him in his representative Overton, 2 Murph. 384 ; Mosman v. capacity. Bonafous v. Walker, 2 T. R. Bender, 80 Mo. 579. 126; Crawford v. Whittal, Dougl. 4, '■3B. &Ald. 365; Gallant v. Boute- note. flower, 3 Dougl. 34. 3 Stewart v. Richey, 6 Harr. 164, and ' 3 B. & Aid. 365 ; Cowell v. Watts, other cases, supra, § 290. Otherwise 6 East, 405 ; Ord v. Fenwick, 3 East, where the contract was made with the 103; Wms. Exs. 879. testator or intestate himself. lb. § 293 EXECUTORS AND ADMINISTRATORS. [PART IV. perhaps, is a source of confusion in drawing the line. Were the contract clearly without the scope of his representative capacity, he would probably be compelled to sue upon it as an individual, if he could sue at all. On all causes of action, therefore accruing after the dece- dent's death and included within the scope of his official powers, the preferable rule is that an executor or administrator may sue, either in his own individual or his representative capacity, at his option ; ' and it is well established by the later cases that this option may be exercised by the personal repre- sentative wherever money recovered upon the contract made with him will be assets ;' though some of the older cases appear to have insisted strenuously that he must sue as an individual.' § 293. Suit by Representative on Promissory Note or Other Negotiable Instrument. — With respect to negotiable instruments, there are various decisions, pointing to the conclusion that if a bill be indorsed to A. B. as executor, he may declare accord- ingly in suing the acceptor ; •* and that an executor or adminis- trator may sue as such on a promissory note given to him in that capacity after the death of his testate or intestate.s Also, that upon an instrument payable to the deceased by name or his order, and coming to the hands of his executor or administrator, the latter may sue in his representative character.^ Upon a bill, note, or other negotiable instrument, which by suitable indorsement, or according to its original tenor, becomes payable to the bearer, the executor or administrator who holds it, may, undoubtedly, like any "bearer," sue in his own name.^ 'Mowry v. Adams, 14 Mass. 327; < King v. Thorn, i T. R. 487; 10 Merritt v. Seaman, 6 Barb. 330 ; Knox Bing. 55. V. Bigelow, 15 V^'^is. 415; Lawson 7^. -' Partridge z/. Court, 5 Price, 412; s. Law-son, 16 Gratt. 230. C, 7 Price, 591 ; Wms. Exrs.880. ^ Wms. Exrs. 881, and cases cited ; '' Murray v. E. I. Co., 5 B. & Aid. 204. AbboU ?■. Parfit, L. R. 6 Q. B. 346; And see Baxter v. Buck, 10 Vt. 548; Heath -'. Chihon, 12 M. & W. 637; Litchfield rit, per Jessel, M. R. deposited it with a bank known to be -Mikell V. Mikell, 5 Rich. Eq. 2::o; crippled in resource!^ he would probably Kubultom V. Morrow, 24 Ind. 202 ; have been compelled to bear the loss. Whitney v. Peddicord, 63 111. 249; -"TwiUy !■. Houser, 7 S. C. 153. The Twitty ;■. Houser, 7 S. C 153; Bosie, deposit shoiJd have been in trust. 53 Estate of, 2 Ashm. 437. As to an ad- Ala. 169. minLstiator's want of ordinary care and '^pson i-. Badeau, 3 Bradf. Siir. 13. diligence in getting in a crop, see Cooper '' I.e., as the writer presumes, " slight" :. Williams, 109 Ind. 270; §226. according to the English rule, and "or- ' Stevens v. Gage, 55 N. H. 175. dinary " according to the .\merican ; the Had such representative kept a large question of a rightful compensation fur- sum of money belonging to the estate nishing the basis of a legal distinction, in the unlocked drawer of his desk, 01 .'supra, §315. 26 401 §317 EXECUTORS AND ADMINISTRATORS. [PART IV. diligence or good faith, while performing his trust, is traceable in various other connections elsewhere dwelt upon in this volume. As in procuring the assets, taking possession of the personalty, and realizing upon notes and other causes of action ; ' or in get- ting a fraudulent transfer by his decedent set aside ; ^ or in selling, or in transferring the assets absolutely or by way of security ; ^ or in compromising claims whether against or in favor of the estate, adjusting controversies, prosecuting or defending suits, and submitting interests committed to his discretion to arbitration ; '^ or in winding up the estate ; 5 and, in general, upon his accounting with the probate court for the due performance of his official duties.^ So, too, as concerns the conduct of a successor with reference to investigating the acts and conduct of his predecessor,7 or in one's placing the assets in other hands and employing an agent. ^ For this bailment doctrine, being founded in sound common sense, permits of a wide range of analogous application ; nor, indeed, has it been disregarded by the legislature in framing statutes which affect the settlement of the estates of the dead, nor by courts of probate and equity, whose duty it is to take jurisdiction of such settlements. § 3 I 7- Management of the Estate ; Collection of Income, etc. ; Responsibility of the Representative. — In general the executor ^ Supra, §§308, 310; McCall v. getting an ancillary appointment in or- Peachy, 3 Munf. (Va.) 288; Connelly's der to collect assets abroad. Williams Appeal, I Grant, 366; Gates v. Whet- zl Williams, 79 N. C. 417. stone, 8 S. C. 244; Stark v. Hunton, 3 The representative is chargeable with N. J. Eq. 300 ; Neff' s Appeal, 57 Penn. the value of personal property belonging St. 91. to the estate and lost by his negligence, ' Danzey z'. Smith, 4 Tex. 411 ; Mc- although it never came into his posses- Lendon z/. Woodward, 25 Ga. 252. sion; for diligence in pursuing assets ^ See next chapter ; Dugan v. IIol- not in his possession is required. Tuttle lins, u Md. 41 ; Griswold v. Chandler, v. Robinson, 2Z N. H. 104. Not, how- 5 N. H. 492. ever, certainly, as to assets of whose ^ Woods V. Elliott, 49 Miss. 168; existence he was excusably ignorant. Hoke V. Hoke, 12 W. Va. 427. Jones z\ Ward, 10 Verg. 160. 5 Cooper t/. Cooper, 77 Va. 198. Though an illegal bailment by the ''/'^j'/, Part VII., as to accounts ; Kee executor or administrator cannot be V. Kee, 2 Gratt. 116. avoided by him, yet he may recover ' See c. 5, /t?j/ ; Cock z'. Carson, 38 back the property after the bailment has Tex. 284. Or even, as concerns a prin- expired. English 7'. McNair, 34 Ala.40. cipal representative, with reference to ' Davis r. Chapman, 83 Va. 67. 402 CHAP. III.] MANAGEMENT OF THE ASSETS. § 3 ' 7« or administrator is required to be faithful, honest, and diligent, as to the management of assets in his hands or subject to his control. If he retains funds of the estate to meet the exigencies of his office, and so as to discharge statute allowances, debts or legacies, as they may become payable, and ultimately for a dis- tribution of the surplus or payment of the residue to the person or persons lawfully entitled thereto, it is incumbent on him to collect dividends, interest, or income upon invested funds, not lying idle, with the same measure of care, diligence, prudence, and good faith as applies to collecting and reducing to possession the principal of the assets.' And as for choosing between keep- ing funds invested or suffering them to lie idle, the same pru- dent and faithful regard for the duties of his office should afford the criterion.^ In the general management of the estate, our leading maxim still applies that honesty, reasonable ^ care and proper diligence are expected from the personal representative, and ought ever to be brought to the fulfilment of the trust ; but that wherever these qualities have been exercised, the representative will not be held personally responsible for losses which ordinary pru- dence could not foresee and avoid, nor charged with that which he never did nor could thus have realized.'* § 'ilja. As between Investing Cash or Using it for Payments, Deposits, etc. — All other things equal, there can be no better use for ready cash or funds on hand than in settling current demands upon the estate. And if the executor or administra- tor, instead of doing this, places the cash on deposit at interest, or otherwise invests the fund, he runs a risk of culpable loss. ' Dortch V. Dortch, 71 N. C. 224; matter of only secondary consequence Rayz/. Doughty, 4 Blackf. 115. Usury with an executor or administrator, received by the decedent or by the rep- ^ I.e., "ordinary," according to the resentative himself upon the decedent's American standard, and "slight," ac- property must be accounted for. cording to the English. Supra, %y^. Proctor V. Terrill, 8 B. Mon. 451. ■• Voorhees v. Stoothoff, 6 lialst. 145 ; ^ Hence, his office being primarily to WilUams v. Maitland, i Ired. Eq. 92; gather in, disburse, and distribute with Webb z/. Bellinger, 2 Desau. 482; Cal- reasonable expedition, the keeping funds houn's Estate, 6 Watts, 185. outstanding and productive becomes a § 3l8 EXECUTORS AND ADMINISTRATORS. [P ART IV. Especially is this true, where he borrows or advances from some other source to meet these current demands.' But a bank de- posit suitably distinguished may prove advantageous for draw- ing checks against it for current payments ; and, since claims are not always payable at once in prudent administration, or es- ])ccial delay may be occasioned, money not wanted for immedi- ate payments may well be deposited in some bank of good standing at interest or otherwise.- But where a representative needlessly retains money of the estate in his hands beyond the time limited by law for settling, he may be held culpably liable if he loses it.^ Trust companies are chartered in various States at the pres- ent day as legal depositaries, and in a legal depositary (though one is not usually obliged to employ such a concern) an execu- tor may deposit his trust fund instead of the common deposit banks with little peril of his discretion. Any savings bank or other dejwsitary may be designated by local statute as a legal one for such purposes.'* But the representative must not de- posit in his individual name if he wishes to escape personal lia- bility for losses. 5 ^318. Paying Assessments; Discharging Liens, etc., upon Per- sonal Assets. — Taxes upon the personal estate of a deceased person should be duly. discharged according to law by the per- sonal representative ; not however, without similar qualifica- tions ; for if the assets prove insufficient for discharging claims 'Guthrie 7-. Wheeler, 51 Conn. 207. stolen without his fault as bailee. 84 Executor held liable for depositing a Ala. 489. large amount in a savings bank which ''A probate court is now often empow- afterwards failed, while paying debts ered to order the deposit of funds with with his own money. And as to hoard- a trust company, i Dam. 302. ing money instead of paying it out, see ^ See Williams v. Williams, 55 Wis. Rogers v. Tullos, 51 Miss. 685 ; §322. 300, and numerous cases cited. Some -Guthrie 7'. Wheeler, supra. Pend- cases certainly protect one's represen- ing a contest as to the validity of the tative character where the form of ac- will, for instance. lb. And see Jaco- count enables the identity of the trust busz/. Jacobus, 37 N. J. Eq. 17 ; Wood- deposit to be traced and distinguished, ley 7/. Holley, in X. (.'. 380. But here the power of individual con- ^ Hlack V. Hurlbut, 73 Wi.s. 126. trol was taken against the administra- Aiiter, if money properly in hand was lor; he deposited in his own individual 404 CHAP. III.] MANAGEMENT OF THE ASSETS. § 32O having a legal preference, the taxes he pays become eventually a disbursement from his private means. Where shares of stock owned by the decedent are of market value, it may be incum- bent upon the executor or administrator, in the exercise of be- coming prudence, to pay assessments thereon and redeem them for the benefit of the estate, such assessments constituting a lien on the shares." But if the shares are worthless, and will probably continue to be so after assessments are paid, he is not justified in paying out the assets for that purpose, nor in re- deeming the stock.^ The personal representative deals with liens as he finds them when his own title vests ; and such Hens he cannot disregard. But, as already intimated, he cannot in his representative capac- ity create a lien on the assets for a debt due during the dece- dent's lifetime so as to impair the rights of other creditors.^ Nor x:an he bind an insolvent estate by his agreement in such a manner as to take assets out of the legal course of distribution provided for by that contingency.'* § 319- Personal Representative's Vote upon Stock. — The as- sent of the personal representative, as stockholder, to corporate acts requiring the stockholders' assent, may be valid, though the stock does not stand in his name, and his assent is given in his personal capacity. 5 § 320. Putting Assets into a Salable Condition, etc.; Repairing, etc. — The representative who finds a raw commodity on hand, — tobacco, for instance, — may lawfully put it into a salable condition, provided he act prudently and honestly, within the usual rule ; ^ and the same may be said of repairing damaged goods, name in a bank, funds of the estate, ^Ripley v. Sampson, lo Pick. 373. and on the bank's failure he was held And see Stow's Estate, Myrick (Cal.) liable. And this though he had no 97. other funds in that bank, and informed ' Ford v. Russell, i Freem. Ch. 42 ; the officers, when he deposited, that the Ga. Dec. Part II. 7 ; siipra, § 256. fund was held by him in trust. And ■* James's Appeal, 88 Penn. St. 55. see §329; Summers v. Reynolds, 95 ' Pike County r'. Rowland, 94 Penn. N. C. 404. St. 238. ' Ripley J/. Sampson, 10 Pick. 373; * Whitley z/. Alexander, 73 N. C. 444. Tuttle V. Robinson, 2,2> ^- H. 104. 405 i^ 321 EXECUTORS AND ADMINISTRATORS. [PART IV. or finishing up his decedent's jobs, or procuring materials for the completion of contracts which were obligatory upon the es- tate, especially if remunerative.' But the trust moneys should not be mi.sappropriated by the representative upoii any pretext of repairing or protecting assets ; nor so as to make good a loss which was occasioned b)- his own breach of trust ; nor so as carelessly to waste the estate in needless and un remunerative expenditures.^ § 321. Responsibility of Personal Representative for Acts of his own Agent, Attorney, etc. — It is true that persons interested in an estate are not bound to pursue assets into the hands of the representative's attorney, but may hold the representative di- rectly responsible for what the attorney obtained. ^ But, con- sistently with the probate and equity view of the executor's or administrator's functions, the question remains essentially one of good faith and reasonable diligence on his part. Where, therefore, acting honestly and with ordinary discretion and care, the executor or administrator entrusts claims due the estate to an attorney, he is not chargeable personally with the loss, should the attorney collect the money, apply it to his own use, and be- come insolvent. •♦ But it is culpable negligence, within this rule, to employ a novice or one evidently unskilful to manage a trans- action of great magnitude and difficulty when the estate could have paid for a competent person. s Upon the same general principle, the personal representative is not responsible for a debt, lost by mistake in pursuing remedies, where he acts in good ' See Oram's Estate, 9 Phila. 358. merits, see Schoul. Bailm. § 19. The " See Lacey v. Davis, 4 Redf. (N. Y.) scope of the sub-agent's authority is 402. material. As to thefts, etc., outside ' Green ?>. Hanberry, 2 Brock. 403. such scope, the question is, whether the A hired bailee responds in general for bailee used ordinary diligence in the the negligent and unskillful work of his choice and continuous employment of own sub-agents or servants just as such person. lb. And see as to bur- though his own want of ordinary dili- den of proof in such a case. Brier, AV, gence, not theirs, caused the damage. 26 Ch.D. 238. Schoul. Bailm. in. ' Wakeman v. Hazleton, 3 Barb. Ch. * Rayner r. Pearsall, 3 Johns. Ch. 148. And see Marshall f. Moore, 2 B. 578 ; Christy v. McBride, i Scam. (111.) Mon. 69. See also § 296. 75. For the analogous rule of bail- 406 CHAP. III.] MANAGEMENT OF THE ASSETS. § 32 1 faith and under the advice of competent counsel." Nor for the misconduct of an auctioneer, not imprudently employed by him, who sells assets and appropriates the proceeds ; ^ the represen- tative not being remiss in taking steps for legal redress. But if the executor or administrator trusts assets in a careless manner, or to those he had no right or no need to employ, he is liable to the estate for the ill consequences.^ This appear's decidedly the better view of the case as between the personal representative and those he may employ in the course of administration ; though the old authorities sometimes laid down the rule at common law more harshly. It has been said in times past that an executor or administrator becomes responsible if his agent embezzles the funds of the estate. ■♦ But even prudent men cannot hope to manage property without errors of judgment, entailing occasional loss ; and there is neither justice nor sound policy in holding the representative to the ex- ceptional liability of an innkeeper or common carrier, especially where his service is without remuneration ; he stands rather as any prudent owner of the personal property might himself, were he still alive and managing his own affairs, so far as blame is concerned. ' King V. Morrison, i Pen. & W. the estate, and make bad investments, (Penn.) 188 ; 4 Johns. Ch. 619. Qii. the executor or administrator must re- whether here, if the attorney or coun- spond for the loss. Earle v. Earle, 93 sel was grossly at fault, legally liable in N. Y. 104. damages, and pecuniarily responsible, ■* 6 Mod. 93 ; Toller Exrs. 426 ; i the representative, in the exercise of Dane Abr. 590, art. 16 ; Doyle ?'. Blake, reasonable diligence, should attempt, 2 Sch. & Lef. 243; Wms. Exrs. 1816, on behalf of the estate, to pursue him. 1820. And see Lord Cottenham in The bailee may sue his sub-bailee for Clough v. Bond, 3 My. & Cr. 496. The negligent performance, causing his dam- case in 6 Mod. 93, however, raised age. McGill v. Monette, 37 Ala. 49. merely a question of costs. "Generally And see Calhoun's Estate, 6 Watts, speaking," as the old rule has been 185; Telford v. Barry, i Iowa, 591; stated, "if an executor appoints another Bacon v. Bacon, 5 Ves. 335 ; Clough v. to receive the money of his testator, and Bond, 3 M. & Cr. 497. he receives it^ it is the same thing as if ^ Edmond v. Peake, 7 Beav. 239. the executor himself had actually re- ^ I Anstr. 107 ; Ghost v. Waller, 9 ceived it, and will be assets in his Beav. 497; Matthews v. Brise, 6 Beav. hands; and, consequently, appointing 239 ; McCloskey v. Gleason, 56 Vt. another to receive, who will not repay, 264. Where some near relative or per- is a devastavit." Wms. Exrs. 18 17. sonal favorite is permitted to manage Stat. 22 & 23 Vict. c. 35, § 28, con- 407 § 322 EXECUTORS AND ADMINISTRATORS. [PART IV. §322. Duty as to investing Assets or placing the Funds on In- terest. — If, in pursuance of his trust, considerable sums of money must necessarily lie idle for some time, — as where, in particu- lar, searching out the persons entitled to the surplus is perceived to involve much delay, — the personal representative is not only permitted, but encouraged, according to the usual rule, to per- mit quick assets which are productive to stand for a time uncol- lected. In most American States, too, the executor or administrator is, by direct or indirect intendment of the law, allowed to put the money where it may draw interest, and even to invest funds in interest-bearing securities." But the rule of ordinary pru- dence and diligence, as well as good faith, is still exacted under such circumstances ; and this, moreover, with special considera- tion, both to the legislative policy of the State or country, as concerns investments by an executor or administrator, and the time and mode of settling the estate. For, unlike testamentary trustees, the primary duty of an executor or administrator is to settle or wind up an estate ; and accordingly to reduce the assets to cash or readily convertible personalty, and to pay over or transfer it to others in pursuance of the peculiar trust reposed in him. When the executor or administrator has money of the estate in his hands, and there are no reasons why he should re- tain it, and he has full opportunity to pay it out to the persons entitled, he has no right to retain it longer than the responsibil- ities of his trust make it prudent and necessary, on any pretext that he has loaned it out for the sake of interest.^ Any savings or accumulations out of the estate, together with interest, dividends, and income, become assets in the hands of the personal representative, to be divided and paid over in the same manner as the principal fund.^ Under the statutes of some States, funds collected by a fidu- firms the general rule indicated by the were as stated above in this note. See, English equity decisions; so that, for further, Lyonz/. Lyon, i Tenn. Ch. 225. defaults of another employed by him, ' Moore v. Felkel, 7 Fla. 44 ; Dortch the personal representative shall only be v. Dortch, 71 N. C. 224. charged for his own "wilful default." -Wood v. Myrick, 17 Minn. 408; Wms. Exrs. 1828. This changes the Dortch z/. Dortch, 71 N. C. 224. old law, of course, if the law in truth ^ Wingatez'. Pool, 25 111. 118; § 317a. 408 CHAP. III.] MANAGEMENT OF THE ASSETS. § 323 ciary are required to be deposited with particular banks or after a particular manner." Such legislative directions should be strictly heeded. And the executor or administrator who, in connection with the deposit, enters into other transactions with the banker which deviate from the prescribed line of his duty, renders himself personally liable.^ But, in general, the rule of probate and equity is, that where the deposit of funds belonging 10 the estate was made and kept from necessity, or conformably to common and reasonable usage, and without wilful default, the personal representative shall not be chargeable with a loss.^ We assume, of course, that the trust fund was kept as distinct from his own bank account, and that the bailment standard of care and diligence was consistently maintained."* § 323. Investments, how to be made, etc.; Rule of Liability. — The doctrine of diligence and good faith may be followed into the subject of an executor's or administrator's investments. If such an official is to invest funds at all he should have a reasonable time in which to do so.5 As to the precautions to be taken and the extent to which the representative may lend with reference to the value of property for investment, where he loans upon the security of real estate mortgages, there are numerous decisions ; ^ and usually only what are called first- class mortgages, or mortgages whose security is of value con- siderably larger than the amount of the loan, should be selected. In English practice, a trustee or executor, after a decree to account, is not permitted to lay out money on mortgage or ' Livermore v. Wortman, 25 Hun,- ■• See English stat. 22 & 23 Vict. c. 35, 341 ; Pasquier, Succession of, 11 La. § 31, cited Wms. Exrs. 1828, which con- Ann. 279; Reed v. Crocker, 12 La. firms as the true criterion of HabiUty, Ann. 445; Shipley, ^x/(z;-^^, 4 Md. 493. the executor's or administrator's own MVms. Exrs. 1818; Darke v. Mar- "wilful default." But as to the Amer- lyn, I Beav. 525; Challen z'. Shippam, ican rule, see supra, § 315. 4 Hare, 555. 5 See 78 Va. 665. ' Churchill v. Hobson, i P. Wms. * Brown v. Litton, i P. Wms. 141 ; 243 ; Castle v. Wariand, 32 Beav. 660 ; Stickney v. Sewell, i M. & Cr. 8 ; Ingle Johnson v. Newton, 11 Hare, 160; v. Partridge, 34 Beav. 411; Bogart f. Wms. Exrs. 181 8; Nor^vood v. Har- Van Velsor, 4 Edw. Ch. 718; Wms. ness, 98 Ind. 134; §3i7 Kinmonth v. Brigham, 5 Allen, 277, 410 CHAP. III.] MANAGEMENT OF THE ASSETS. § 324 funds ; ' and the personal representative should, in that country, invest his unemployed money in government loans of the de- scription authorized by the court of chancery.^ And although a fair and reasonable discretion as to investing upon private per- sonal security appears in some earlier instances to have been approved, the present rule of the English courts of equity clearly establishes that an executor who lends upon the bond, promissory note, or other personal security of a private party, commits a breach of trust, and shall be personally answerable for the fund.^ But these doctrines have not been adopted in Massachusetts ; "^ nor generally in the United States ; and even were our national public securities available in this country, as they seldom have been in the English sense, State securities of the particular ju- risdiction might not be thought much less desirable. The sub- ject is, to a large extent, controlled in this country by local stat- utes which vary considerably in the range of selection permitted to the fiduciary. But the policy so strongly inculcated in Brit- ish jurisprudence, of using accumulated wealth, transmitted from the dead to the living, to strengthen the hands of government, by causing its investment in the national soil and the public debt, finds less favor in America. Here individual fortunes, so far as they remain undispersed and are left to accumulate, aid rather in stimulating private enterprises, near and remote, and in reclaiming the wilderness, and peopling and developing new by Hoar, J. ; Harvard College z'. Amory, descriptions of British securities are 9 Pick. 446. sometimes sanctioned. 6 Beav. 239. ' Howe V. Lord Dartmouth, 7 Ves. And see stats. 22 & 23 Vict. c. 35, § 32 ; 137 a. For the modern rule as to in- 23 & 24 Vict. c. 38, § 12, under whose vestment of a fund so bequeathed that operation the choice of investment is the income shall be paid to a particular extended to a choice not only of real class for life, and then the principal to securities in any part of the United others, see Part V., legacies, /<7j/ ; Sar- Kingdom, but also of national bank gent V. Sargent, 103 Mass. 297 ; Brown stock and East India stock. V. Gellatly, L. R. 2 Ch. 751; Wms. ^ cf^ Webster z/. Spencer, 3 B. & Aid. Exrs. 1391, and Perkins's note. 360, with Gil. Eq. 10; i Eden, 149 «. ; ^ That is to say, the three per cent. Walker v. Symonds, 3 Swanst. 63 ; Ba- consols. Holland v. Hughes, 16 Ves. con v. Clark, 3 M. & Cr. 294; Wms. 114; Wms. Exrs. 1810, 1811. Though Exrs. 1809. for a purely temporary investment other ■* Lovell v. Minot, 20 Pick. 119. 411 § 325 EXECUTORS AND ADMINISTRATORS. [part IV. States ; while the nation itself makes no general directions for investment and cannot interfere." §325. Liability for placing or leaving Assets in Trade, Specula- tion, etc. — An administrator is not justified in placing or leaving assets in trade, for this is a hazardous use to permit of trust ■ Concerning investments in " Con- federate securities " during the South- ern conflict of 1861, various recent deci- sions are found. The main question is not easily separable from perple.xing is- sues of lawful or unlawful government ; but in general the valid act of a State legislature authorizing investments to be made in specified securities should shield the personal representative who, in good faith and not carelessly, invests accordingly. See Trotter v. Trotter, 40 Miss. 704; Manning v. Manning, 12 Rich. Eq. 410; Leake v. Leake, 75 Va. 792. But in some States such invest- ments must doubtless have been utterly illegal. Copeland v. McCue, 5 W. Va. 264 ; Sharpe v. Rockwood, 78 Va. 24. State securities have not in all instances been a judicious investment for trust moneys. Perry v. Smout, 23 Gratt. 241. See 17 Wall. 570. Investments made by an executor voluntarily, which on application of the legatees the court would have compelled him to make, will be protected. Bod- ley V. McKenney, 9 Sm. & M. 339. When personal property is given for life generally, and the trust of investing appears to have been confided to the executor rather than a trustee, an in- vestment should be made so as to se- cure interest or income to the life lega- tee. Evans v. Inglehart, 6 Cxill & J. 71 ; legacies, /<7j/ ; Jones v. Stites, 19 N. J. Eq. 324; Chisholm v. Lee, 53 Ga. 611 ; Calkins v. Calkins, i Redf. 337. And see, as to perishable property. Woods v. Sullivan, i Swan, 507. In some States the personal representative is bound to invest moneys left in his hands, after settling his accounts, within a specified period, usually six months. Frey v. Frey, 14 N. J. L. 71. Investments left by the decedent in a particular kind of security might, if prudent, be fairly re- invested in the same or a similar se- curity. Brown v. Campbell, Hopk. 233 ; Hogan V. DePeyster, 20 Barb. 100. Trust investments in corporate or in- dividual bonds and notes are quite gen- erally sanctioned in the several States ; but the classes of permissible securities are often clearly specified by statute; and investment in the unsecured bond or note of an individual is not usually allowable as prudent. Lacy v. Stamper, 27 Gratt. 42. Municipal bonds and bank stock cannot in some States be taken without the court's permission. Tucker V. Tucker, 33 N. J. Eq. 235. See, fur- ther, 2 Redf. (N. Y.) 333, 349, 421, 465 ; 35 N. J. Eq. 134, 467. As to loans on personal security, see § 329 ; Lefever v. Hasbrouck, 2 Dem. 567. Money of the estate cannot be used by the represen- tative to protect stock which he had no right to purchase, nor in subscribing for additional stock under a privilege. Lacey v. Davis, 4 Redf. 402. Prudence seems to require that depreciated cur- rency should be used in paying debts owed, as well as in receiving payment of debts due the estate. It may be de- posited, but should not be hoarded. Rogers v. TuUos, 51 Miss. 685. In Missouri, an executor or adminis- trator who lends or invests funds of the estate without an order from the pro- bate court, does so at his own risk. Garesche v. Priest, 78 Mo. 126. 412 CHAP. III.] MANAGEMENT OF THE ASSETS. § 325 moneys ; besides which, trading hes outside the proper scope of administration functions. Under circumstances not clearly im- prudent, however, an executor may pursue an authority which was plainly conferred upon him by the will in this respect ; though less as an executor, perhaps, than as one specially hon- ored or burdened by his testator's personal confidence. Chan- cery protects the executor who can show his testator's express sanction, but scarcely beyond this, and chiefly so as to keep the hazardous investment under its prudent direction. To employ trust funds in trade on the representative's own responsibility has always been treated as essentially a breach of trust ; and the courts have resisted much pressure to relax the rule. And the executor or administrator so employing funds of the estate has the disadvantage of incurring all the risks while he must account for all the profits." For the loss of assets placed or left by him in trade, the rep- resentative may, therefore, be charged, as for his imprudence.^ And if he carries on the business with surviving partners of the deceased, he may incur an individual liability for the partnership debts. 3 But if the trade prove advantageous, the parties inter- ested in the estate are not debarred from claiming the profits of the investment as theirs.^ Debts incurred by the representative in the prosecution of the unauthorized trade with personalty cannot be charged against the general assets, real and personal, notwithstanding an honest intention on the fiduciary's part to benefit the family of the decedent by carrying it on. 5 ' Wms. Exrs. 1792, 1793; Barker v. decedent belonged, employing his own Barker, i T. R. 295 ; Garland, Ex parte, capital, and taking no undue advantage 10 Ves. 129; Perry Trusts, §429; Bur- out of the assets, see Simpson v. Chap- well V. Mandeville, 2 How. 560; Pitkin man, 5 De G. M. & G. 154. Where a V. Pitkin, 7 Conn. 307; Thompson v. surviving partner is also executor of the Brown, 4 Johns. Ch. 619; Lucht v. estate of his deceased co-partner, and Behrens, 28 Ohio St. 231 ; Stedman v. "he collects partnership assets which are Fiedler, 20 N. Y. 437. not needed to pay partnership debts, he ^Thompson v. Brown, 4 Johns. Ch. will be presumed to hold such assets as 619, and other cases, supra. executor. Caskie v. Harrison, 76 Va. ^Alsop V. Mather, 8 Conn. 584; 85. Muntz V. Brown, 11 La. Ann. 472; ''Robinett's Appeal, 36 Penn. St. 174. Stedman v. Fiedler, 20 N. Y. 437. As ' Lucht v. Behrens, 23 Ohio St. 231 ,■ to permitting a representative to enter Merritt v. Merritt, 60 Mo. 150. bona fide into the concern to which the § 3^5^ EXECUTORS AND ADMINISTRATORS. [PART IV. But as to withdrawing assets from a partnership, or closing out a business in which the decedent was engaged, a wider dis- cretion must occasionally be conceded to the personal representa- tive ; for this duty must be performed with a prudent regard to time, opportunity, and other circumstances. An administrator is not necessarily wanting in due care, so as to be responsible personally, if he suffer the surviving partner to remain in pos- session of, and sell out, the joint stock in the usual course of trade ; ' and to thus sell out a decedent's stock in trade may be for the highest interests of the estate, provided due care be exer- cised in the choice of agents. And where it appears, on finally closing the partnership affairs, that the firm is insolvent, the fact that it must also have been insolvent at the decedent's death, and that the estate has actually profited by the representative's delay in withdrawing the decedent's interest from the firm, may exonerate the representative.^ These principles apply to speculative investments of all kinds, with the assets. The personal representative incurs all the risks and is entitled to none of the profits resulting from such trans- actions committed in breach of trust. But if assets came to him thus invested by the decedent, it is a question of prudence when and how he shall withdraw the fund ; and though he is not justified in continuing the speculation, and involving the estate more deeply, a reasonable breadth of honest discretion .should be allowed him, as to closing the transaction. ^ § 325^. Closing out Decedent's Business, etc. — Good discretion may require some latitude in closing out a decedent's business. Thus, in tlic case of a school teacher who died during the school year, and left contracts outstanding with teachers and others, hav- ing also received some of the tuition fees in advance, an executor who in good faith carried out the existing arrangements for some 'Thompson v. Brown, 4 Johns. Ch. adventured or lost in the business. And 619. See also Merritt v. Merritt, 60 .see next chapter as to selling out the Mo. 150. interest in a firm. ^Stern's Appeal, 95 Penn. St. 504. ^ See Perry Trusts, § 454 ; Tompkins Here it was shown that none of the in- v. Tompkins, 18 S. C. i. dividual assets of the estate had been 414 CHAP. III.] MANAGEMENT OF THE ASSETS. § 326 months, and then sold out the good-will for a fair sum, had his accounts approved and ratified by the court." § 326. Carrying on a Trade with Assets; Liability, etc. — The liability of a deceased copartner, as well as his interest in the profits of the concern, may, by the copartnership contract, be continued beyond his death.- Without such stipulation, how- ever, death would dissolve the firm, even where the copartner- ship was expressed to be for a term of years.^ With such a contract the effect must be naturally to bind the estate of the deceased partner, in the hands of his executors or administra- tors, without compelling such representatives to become partners personally.'* Where there are no valid provisions by will or contract for further continuing a partnership, either the surviv- ing partner or partners, or else the legal representative, should see that the business is duly wound up and adjusted. ' The active assent and participation of the representatives in the business appears, however, to subject them to the usual in- dividual responsibilities of representatives who make contracts after the decedent's death with reference to the estate ; the im- mediate effect being, like that of carrying on a trade, that they have a lien on assets for their indemnity if they had power to embark the estate in trade, but otherwise no lien.^ WTiere, therefore, the business of the decedent is carried on by executors under a will, or in any case, by representatives duly empowered,^ and the case is not merely one of leaving passively the dece- dent's partnership interest in a concern, unadjusted with the survivor, the representatives incur a personal liability for the debts thereby contracted. They are not absolved from accounting for the property. But they have a right in equity to indemnify " Gilman v. Wilber, i Dem. 547. * Laughlin v. Lorenz, 48 Penn. St. ^But not so as to contravene the rule 275 ; Lucht v. Behren.s, 23 Ohio St. 231 ; against perpetuities. 88 Me. 131; Gratz z/. Bayard, 11 S. & R. 41. Schoul. Wills, § 21. ' As in Laughlin v. Lorenz, 48 Penn. ^Scholefield v. Eichelberger, 7 Pet. St. 275, where a new firm composed of 594, per Mr. Justice Johnson. the personal representatives of the de- * Downs V. Collins, 6 Hare, 418. cedent and the surviving partner was 'Hamlin v. Mansfield, 88 Me. 131. created. And see Frey z/. Eisenhardt, As to representative of the last surviving 1 16 Mich. 160, where the interested par- partner, see 153 111. 54. ties assented ^3^6 EXECUTORS AND ADMINISTRATORS. [PART IV. themselves for the payment of such debts out of the property lawfully embarked in the trade." Out of this right springs an equitable right of the trade creditors to resort to such fund for payment, if their remedy against the representative be unavail- ing.- And where a new firm is rightfully created, into which the personal representatives of the old firm enter, the creditors of the new firm are clothed with the equities of that firm against the estate of the decedent arising out of the payment by the new firm of the debts of the old.^ Where, on the contrary, the executor or administrator carries on a trade without any authority to do so, and the business proves disastrous, this will not of right involve the decedent's estate for the debts ; but such assets as may be shown to have been wasted in the trade, those interested in the estate have the right to claim. The difiiculties are practical ones, arising out of the representative's own insolvency, and the difficulty of tracing as- sets into the business.^ Acts of the representative ultra vires, moreover, or in excess of his express power to trade, do not give those dealing with him an equity against the trade assets, as the latest authorities indicate.^ A will may direct one's executors to carry on trade after his death, cither with his general assets or by designating a specific fund to be severed from the general bulk of his estate for that purpose ; the latter intention is to be preferred, as hazarding only a portion of the assets ; and in no case is the creation of a trade, and more especially of a partner- ship liability, to be inferred without clear provisions of the will, and unambiguous acts by the representative in pursuance of the powers conferred upon him.*^" While a testator may specifically limit the specific part of the ' Laible v. Ferry, 32 N. J. Eq. 791 ; Wms. Exrs. 1793. And see Lucht v. Labouchere v. Tupper, 11 Moore, P. C. Behrens, 23 Ohio St. 231. 198. * Pillgrem v. Pillgrem, 45 L. T. 183. - lb. The fee simple of land may * Stanwood 7\ Owen, 14 Gray, 195; thus become involved. Laible z^. Ferry, 104 Mass. 583; Wms. Exrs. 1793; supra. Kirkman?'. Booth, 11 Beav. 273; Jones ^ Laughlin -■. Lorenz, 48 Penn. St. ?•. Walker, 103 U. S. Supr. 444. A will 275. Heirs carrying on a business as authorized the executors to continue such do not bind the estate to debts of the testator's brewery business as long the concern. 84 Fed. 420. as they should think best. It was held * See Garland, Ex parte, 10 Yes. iio; that the expenses of the business, losses 416 CHAP. III.] MANAGEMENT OF THE ASSETS. § 326^ assets which shall be used by the representative in carrying on his trade, it would appear from the principles announced above, that the representative himself necessarily risks his whole for- tune if he actively embarks in it.' Where, however, the probate court, in the due exercise of its jurisdiction, authorizes an executor or administrator to advance or borrow money to preserve a partnership business in which the estate is interested, such decree is a protection to the represen- tative and those dealing with him ;- and it is held, furthermore, that where the representative carries on the decedent's business with the assent of the creditors, he is entitled to be indemni- fied.5 § 326^^. The Same Subject, — In any partnership we are still to observe that, in general, upon the death of one partner, his associate or copartner cannot contract new debts upon the credit of the firm. Assuming, however, that this general rule may be varied by an express agreement, it is still to depend upon the particular terms of such agreement how far the estate of the de- ceased partner may be thus bound by the surviving partner ; whether this estate shall be generally liable for all the debts, or only to the extent of the property embraced or left in the part- nership to be employed by the survivor. The presumption must from bad debts, expenditures for ordi- continued in business will not be ple- nary repairs on the real estate used in sumed to mean a residue before debts the business, and the cost of necessary and testamentary expenses are paid, personal property were chargeable to 5 Dem. 516. the income, and this, although the will 'Garland, Ex parte, 10 Ves. no; made no mention of specific items. Cutbush v. Cutbush, i Beav. 184; Jones, Re, 103 N. Y. 621. Where ex- Wms. Exrs. 1793; Laible v. Ferry, 32 ecutors are empowered to carry on a N. J. Eq. 791. business as long as it shall prove ad- An executor may carry on a trade as vantageous, the idea is favored that executor, but he is not the less person- when the body of the estate fails to ally liable for all the debts which he yield a sufficient income, after making may contract in the trade. Per Turner, all current deductions, the business Lord Justice, in Leeds Banking Co., shall be discontinued. lb. Only that Re, L. R. i Ch. 231, 242. part of the property which the testator ^ Mustin's Estate, i88 Penn. St. 544. had used in his business h"/. prima facie ^ Dowse v. Gorton, (1891) A. C. 190; to be risked therein. Wilson f. Friden- (1894) 2 Ch. 600. Statutes may be burg, 21 Fla. 386. A re.sidue to be found on this topic. 27 417 § 328 EXECUTORS AND ADMINISTRATORS. [PART IV. be unquestionably so as to shelter the estate of the decedent as far as possible ; and hence, where capital has to be left in the concern after one's death and the representative takes no active part in the business, but merely complies with the terms of part- nership, it is assumed that nothing more than the property left in the business is thus risked, and that neither the decedent's gen- eral estate nor the representative himself incurs additional lia- bility." § 327. Sale, Investment, etc., of Perishable Assets; Cattle, etc. — Perishable assets, and such as naturally depreciate on his hands, the representative should seasonably dispose of, deposit- ing, moreover, or investing the proceeds, or appropriating them in some other suitable mode. It often happens that a person beneficially interested will take such assets at their just valuation,^ With regard to cattle or live stock it is the representative's duty to take proper care of them until they can be advantageously sold, and provided he deals with such assets prudently and in a businesslike manner, his expenses incurred in regard to the animals should be allowed. ^ § 328. Rule as to calling in Money already out on Loan or In- vestment. — Where general law, or the testator's will, sanctions only investments of a particular description, the executor or ad- ministrator cannot safely disregard its implication, that funds otherwise invested shall be promptly called in. In pursuing such a duty he should observe prudence and good faith, as in other instances ; but negligence in point of time as to stocks and securities of speculating and fluctuating value is culpable, especially if payments to be made on behalf of the estate render the necessity urgent for realizing in cash promptly. Unless it appears highly probable that by delay a better price will be re- alized, the safer course for the fiduciary is to sell disfavored as- sets at an early stage of his administration, unless all the parties ' Stewart z/. Robinson, 115 N. Y. 328. ' Fernandez /?j\^. such a rule becomes impracticable, i De G. M. & G. 247 ; Wms. Exrs. 1S15. 427 § 340 EXECUTORS AND ADMINISTRATORS. [PART IV. CHAPTER IV. THE representative's POWER TO SELL, TRANSFER, AND PURCHASE. § 339- Representative's Power to dispose of Assets. — For the sake of an efficient administration of the estate which he repre- sents, the absohite control of the personal property of the de- cedent, for purposes of his trust, is vested by law in the executor or administrator, and he has the legal power to dispose of any and all of such property at discretion. This rule, as we have seen, prevails where no statute opposes restraints ; and while it is the representative's duty to use reasonable diligence in con- verting assets into cash, for the general purposes of his trust, the law permits him, within certain limits, to exercise a reason- able discretion as to the time when he shall make a transfer of assets, and the manner in which his right of disposition shall be exercised.' Sound judgment and honesty on the representa- tive's part may be presumed by the buyer in such a case ; and provided he purchase bona fide for a fair consideration, and with- out fraudulent collusion, his title to personal assets of the de- cedent, derived through the lawful executor or administrator, must prevail against the world.^ § 340. Sale or transfer can only be made while the Represen- tative holds office. — A sale or transfer made by an executor or ' Supra, § 322 ; Wms. E.xrs. 932 ; or administrator in many instances must Nugent V. Giffard, i Atk. 463 ; Whale sell in order to perform his duty in pay- V. Booth, 4 T. R. 625. He must e.\er- ing debts, etc. ; and no one would deal cise due diligence as well as good faith, with an executor or administrator if lia- in making a sale of assets. loS N. C ble afterwards to be called to account. 69. Statute restraints of a local char- Whale -■. Booth, 4 T. R. 625, per Lord acter must be locally observed. 74 Cal. Mansfield. And see Wms. Exrs. 934, 536. 935 ; Scott V. Tyler, 2 Dick. 725 ; Leitch *The principle is, that the e.xecutor v. Wells, 48 N. Y. 585. 428 CHAP. IV.] KErKESENTATlVES I'OWEK TO SliLI., ETC. § 342 administrator while in office is not rendered the less valid as respects third parties by the later revocation of his authority, or his resignation or removal ; and as for its justification in the settlement oi his accounts, the cardinal rule of good faith and due prudence still ajjplies.' But a sale, made after the title wiiich tlevolved upon him al the death oi his testator or intes- tate has become dixested by his removal or otherwise, cannot be good, for he has not a title to confer.-" § 341. Whether Assets should be sold at Public or Private Sale. — The general rule is that the representative's sale of his decedent's personal property may be either at private or public sale, provided the sale be reasonably prudent and honest.^ But an auction or public sale best vindicates the representative's good conduct, where the amount actually realized falls short of the appraised value, and, on the whole, is the safer; and in some States, indeed, the representative must, unless protected by judicial directions, sell at public sale, or no title will pass to the purchaser.' Where the representative sells fairly at i)ul)lic sale, he is only responsible for what the property brought ; where he sells at private sale, the full value appears the test, rather than the price obtained ; but in either case, if the sale be fair and honest, the purchaser, according to the usual rule, takes a good title. 5 The representative may appoint an agent or auc- tioneer to sell for him.'' § 342. Sale of Goods bequeathed for Life with Remainder over. — A residue of goods which are given for life with a remainder over, ought to be sold by the executor, if the trust is confided to 'Benson ?'. Rice, 2 Nott. & M. 577 ; Butler v. Butler, 10 R. I. 501. The 11- Price 7A Nesbit, i Hill (S. C.) Ch. 445. linoi.s statute requires the administrator, And see Soye ?'. McCallister, 18 Tex. 80. whenever he sells on credit, to take secu- ^Whorton v. Moragne, 62 Ala. 201. rity, and if loss results from his failure ^Mead v. Byington, 10 Vt. 116; Tyr to do so, he must bear it. Bowen v. rell V. Morris, i Dev. & B. Eq, 559; 99 Shay, 105 111. 132. Tenn. 462. ' Lothrop v. Wightman, 41 Penn. St. •* Bogan V. Camp, 30 Ala. 276; Mc- 297, 302; 71 Hun (N. Y.), 32. Arthur t'. Currie, 32 Ala. 75; Gaines z/. * Lewis v. Reed, 11 Ind. 239; Dick- De la Croix, 6 Wall. 719; Weyer ?■. son, /v'f, 6 La. Ann. 754. Second Nat. Bank, 57 Ind. 198. See 429 § 345 EXECUTORS AND ADMINISTRATORS. [PART IV. him ; and the interest or money on the invested proceeds of the sale should be paid to the legatee for life, the principal being kept for the remainder man.' § 343. Power of Representative to dispose of Chattels specifi- cally bequeathed. — The power of the executor to transfer and dispose of a chattel specifically bequeathed, though sometimes questioned, appears on the whole to be well established, as fol- lowing the general rule of personal assets.^ But cautious ad- ministration appears to require, in order to clear the representa- tive himself and a purchaser who happens to be aware of such bequest, that the specific legatee should concur in the transfer;^ for, undoubtedly, the executor's assent to the legacy, so as to divest his title in favor of a specific legatee, is readily presumed wherever the estate is ample to meet demands upon it ; and un- less the general personal assets fail, the executor commits a breach of duty in disposing of property bequeathed specifically.'' § 344. Sales of Perishable Assets, etc. — Sales of personal property of a decedent's estate, when liable to waste, or when of a perishable nature, may be expressly authorized by the court, as some statutes provide ; such provisions, however, having a fitter relation to special administrators, collectors, and the like, than to the general administrator or executor, whose discretion to sell for the preservation and benefit of the estate cannot be doubted. 5 § 345. Representative's Sale of his Decedent's Business. — An executor or administrator has authority to dispose of the business of his decedent, including the stock in trade and good will ; he ■ Jones z'. Simmons, 7 Ired. Eq. 178. purchases a chattel specifically be- See Sarle v. Court of Probate, 7 R. I. queathed, knowing that it was thus be 270. queathed, and that there are no debts, *2 Vern. 444; Ewer v. Corbet, 2 P. will take his title subject to the bequest. Wms. 149; Langley v. Lord Oxford, Garnet z'. Macon, 6 Call. 308. Ambl. 17; Wms. Exrs. 934. 'Public Administrator v. Burdell, 4 3 Wms. Exrs. 934, and note, citing 2 Bradf. 252; Redf. (N. V.) Sum Pract. Sugd. Vendors, 56, 9th ed. 175; Harris v. Parker, 41 Ala. 604. * See post as to legacies. One w]u> And see supra, § 327. CHAP. IV.] representative's POWER TO SELL, ETC. § 345 may also sell out the stock on hand separately, in the exercise of a reasonable discretion ; but he should be heedful how he incurs personal risks by undertaking, without authority, to carry on the trade himself.' So, too, the representative of a deceased partner may dispose absolutely of his decedent's interest in the assets of a firm to the surviving partner, or to any other person under the same qualifications ; and he may accept cash or other personal property in payment, if the bargain be a fair one.^ Circumstances may arise under which the representative's sale, made to the surviving partner simply in order to transfer to him the legal title to be used for settling the business, may prove valueless to the estate ; as where the whole firm property is needed to satisfy the firm debts. ^ And one must take care that he does not transcend a statute which forbids private sales with- out specific authority. ■♦ A personal representative who trades actively with his dece- dent's business stock, renders himself a trader, on the one hand, to those with whom he deals, while, on the other, he continues accountable to the estate for the value of the stock thus per- verted, and its profits. ^ But merely to sell out the stock in hand, without increasing what the decedent left, does not con- stitute the representative a trader ; for it is a question of inten- tion to carry on the trade, which must be inferred from circum- stances.^ Where an executor, in carrying on a trade under a power contained in the will, abuses his authority, by taking out a new lease of the premises in his own name, and then borrows money on the security of the lease, the equity of the testator's estate to the renewed lease will take precedence of the lender's equity to such security.^ ' Supra, § 325. L. R. i Ch. 231 ; Evans, Re, 34 Ch. D. ^ Roy z/. Vilas, 18 Wis. 169; Holla- 597. day V. Land Co., 57 Fed. 774. And ^ Wms. Exrs. 1794. see as to carrying on a partnership trade, ^ Piilgrem v. Pillgrem, 45 L. T. 183. § 325, 326, 376. For the equity of the estate attached ' Merritt v. Dickey, 38 Mich. 41. the moment the new lease was granted, * Tell Furniture Co. v. Stiles, 60 Miss, and the lender's equity not until the loan 849. was made; and of two parties with ' See supra, § 326 ; Wood's Estate, equal equities, qui prior est tei7ipore, I Ashm. 314; Leeds Banking Co., Re, potior est jure. Nor can it in such a § 346 EXECUTORS AND ADMINISTRATORS. [PART IV. § 346. Sales and Transfers of Personal Assets under Probate Direction. — Local legislation in the United States aids, some- times, the representative's inherent power over the personal assets. Thus, a Massachusetts statute provides that a probate court, after the return of the inventory, may order a part or the whole of the personal estate of the deceased to be sold by public auction or private sale as may be deemed most for the interest of all con- cerned ; application for such an order may be made by the rep- resentative or by any person interested in the estate ; and the representative shall account for the property so sold at the price for which it sells." This act does not restrain executors and administrators in their general authority to alienate the personal assets, except, perhaps, in affording interested parties an oppor- tunity to apply for an order directing the manner of sale ; but its main object appears rather to protect the representative, where dehcate management is needful for settling the estate properly. So, too, the New York statute pro\'ides for a formal sale, public or private, of personal property so far as may be needful, under judicial direction, if the executor discovers that debts and legacies cannot otherwise be paid and satisfied.^ Stat- utes of a similar character may be found in other States ; ■' the case be said that the lender was a pur- estate, be sold in good faith and with chaser without notice, for had he in- ordinary prudence, the representative is (juired he would have been placed on justified, even though he sold at a de- his guard. preciation, and the stock aftenvards ' Mass. Pub. Stats. (1882) c. 133, § 3. rose much higher. Green, AV, ;^-] N. J. ^ 2 N. Y. Rev. Stat.s. 87, § 25 ; Red- Eq. 254. field's (N. Y.) Surrogate Pract. 236. The power of the probate court to ^Gary's Prob. Pract. §334; Wise, order a sale of personal propeity is Stats. § 3837 ; Gen. Stat. ^Minn. c. 54, conferred by a statute, and quoad hoc, § 4. See also Joslin v. Caughlin, 26 the probate court is a tribunal of spe- Miss. 134. In some States a sale of cial jurisdiction, and mu.st pursue the stocks cannot be made without license statute requisites. Hall v. Chapman, of the probate court unless the repre- 35 Ala. 553. Sale cannot be ordered sentative assumes the whole inventory at the instance of a personal represen- of the estate at its appraised value, tative, unless the title which devolved French v. Currier, 47 N. H. 88. Or it upon such representative remains in is held that the representative must not him. Whorton v. Moragne, 62 Ala. sell without order of court for le.ss than 201. As to the object of such sale, as the appraised value of the property, set forth by petition, see Ikelheimer v. Munteith v. Rahn, 14 Wis. 210. But Chapman, 32 Ala. 676. in general, if stock belonging to the The executor or administrator need CHAP. IV.] representative's POWER TO SELL, ETC. § 346 general right of the representative to alienate personal assets not being essentially altered thereby. The Massachusetts statute provides further that, for the pur- pose of closing the settlement of the estate, a probate court may, upon petition of the executor or administrator, and notice to the interested parties, license a sale and assignment of any outstanding debts and claims which cannot be collected with- out inconvenient delay ; ' and any suit for the recovery of a debt or claim thus sold and assigned shall be brought in the name of the purchaser, and the executor or administrator shall not be liable for costs. ^ Personal property of the deceased, notwithstanding such stat- utes, is commonly sold by executors or administrators, at their own discretion, without any order of court ; and, if the repre- sentative acts in good faith and sound discretion, the interests of no person concerned can be injuriously affected.^ The sub- not wait for a judgment to be had against him for a debt justly due, in order to make valid the title of a pur- chaser of property sold in satisfaction of the debt. Smith v. Pollard, 4 B. Mon. 67. Peculiar delays attending the settle- ment of the estate such as might arise, for instance, where the rights of those claiming to be legatees or distributees were in litigation, might justify the pro- bate court in ordering a sale of personal property on the representative's appli- cation. Crawford v. Blackburn, 19 Md. 40. As to notice of the intended sale, see Halleck v. Moss, 17 Cal. 339; But- ler V. Butler, 10 R. I. 501. As to post- ponement of the sale, see Lamb v. Lamb, Spears (S. C.) Ch. 289. The purchaser should see that the representative makes his sale according to the statute or judicial order. Fam- bro V. Gautt, 12 Ala. 305. Mere irreg- ularities in pursuing an order of sale are sometimes cured by the court's con- tirmation of the sale. Jacob's Appeal, 23 Penn. i=!t. 477. Some statute formal- 28 43 ities may be merely directory and not imperative. Martin v. McConnell, 29 Ga. 204. Where the sale was invalid by reason of irregularity, another sale may be made without getting a new order to sell from the probate court. Robbins v. Wolcott, 27 Conn. 234. A sale made under a void judicial order, and dependent on a judicial order for its validity, is absolutely void. Beene V. Collenberger, 38 Ala. 647 ; Michel, Succession of, 20 La. Ann. 233. See further, Libby v. Christy, i Redf. (N.Y.) 465. The purchaser at the representative's sale should on discovery of irregulari- ties elect promptly whether to repudiate the transaction or not, and act consist- ently with his election. Joslin v. Caugh- lin, 30 Miss. 502. ' Mass. Pub. Stats, c. 133, § 4. A similar authority is exercised by the probate court in Louisiana practice. Pool, Succession of, 14 La. Ann. 677. 2 Mass. Pub. Stats, c. 133, § 5. 3 Harth 7'. Heddle.stone, 2 Bay (S. C.) 321; Mead v. Byington, 10 Vt. § 347 EXECUTORS AND ADMINISTRATORS. [PART IV. sequent approval of the court, moreover, appears practically equivalent to a previous order. The executor or administrator, however, makes a sale at his own risk, where such an order is not previously obtained ; and the advantage of procuring one is apparent, where it is probable that the property cannot be sold for its appraised value and the administration may be greatly affected by the amount realized ; for, complying with the terms of his order, the executor's or administrator's responsibility is limited to duly accounting for the proceeds of the sale. ' The purchaser at a sale ordered by the probate court acquires a good title, unless chargeable with notice that the order was improperly procured, by misrepresentation to the court or otherwise ; consequently the transfer of his own bona fide title will be good.^ § 347. Authority to sell or transfer or buy as affected by Ejc- pressions in the Will. — An executor's authority to sell and trans- fer personal property may be confirmed or enlarged by a power of sale clause contained in his testator's will ; ^ such clauses re- lating usually, however, in expression, to the testator's real estate or to his property generally ; and so, doubtless, directions con- tained in a will may qualify or restrain the executor's general power to transfer the assets.'* Upon a testator's general direction to sell and distribute, the executor is the proper person to sell, unless some one else is pointed out by the will.s WTiere a testator shows by his will that he intends to intrust his personal repre- sentative with the power of disposal, and of receiving and apply- 116; Sherman v. Willett, 42 N. Y. 146; is shown. Price v. Nesbit, i Hill (S. Smith (Mass.) Prob. Pract. 1 10. C.) Ch. 445. ' Smith Prob. Pract. no; Redf. (N. ^ Smyth e^. Taylor, 21 111. 296; Dugan Y.) Surr. Pract. 237; Williams v. Ely, v. Hollins, 11 Md. 41 ; Durham, Estate 13 Wis. I ; Munteith z\ Rahn, 14 AVis. of, 49 Cal. 491. 210. ^ Evans v. Evans, i Desau. 515. * Pulliam V. Byrd, 2 Strobh, Eq. 134 ; Whether the executor may not sell or Knight V. Yarborough, 4 Rand. 566. pledge personal assets for the payment The sale by an executor or administra- of debts notwithstanding the will has tor under a judicial order carries the provided a particular fund, see Tyrrell legal title, and will be presumed to have v. Morris, i Dev. & B. Eq. 559. been in good faith, unless the contrary ' McCollum v. McCollum, t,->, Ala. 711. 434 CHAP. IV.] representative's POWER TO SELL, ETC. § 348 ing the proceeds, the purchaser or the transferee, for security, is not bound to see to the application of the money raised.' A power of sale, out and out, and having an object beyond the raising of a particular charge, does not, however, authorize a transfer by way of pledge or mortgage.- Yet such power may be given, and may even extend to purchases on credit for the estate.^ Powers under a will should be construed according to their true intendment. But, while English equity courts appear sometimes to have created artificial distinctions to the hazard of the transferee, in respect of the application of proceeds, the general doctrine favored in this country is, that a purchaser or transferee who, in good faith, pays or advances to the person authorized by the will to transfer, need not look to the applica- tion of the proceeds of the transaction by that person. •» § 348. Consulting Parties in Interest, as to the Time, Manner, etc., of Sale. — The judgment of residuary legatees or distribu- tees may be of importance in aiding the representative's discre- tion as to the time, place, and manner of sale. He is not bound to act upon the judgment of one or all of such parties ; but to ascertain and act upon the wishes of the majority of benefici- aries in interest may often be convenient where the fiduciary's own responsibility is a dehcate one.' Thus, a sale which the representative makes, with the written assent of all legatees or distributees of the estate, is in effect their sale as well as his, and, if made in good faith, ought to bind strongly.^ ' Stronghill v. Anstey, i De G. M. & hill v. Anstey, i De G. M. & G. 635 G. 635 ; Green, Re, 37 N. J. Eq. 254. (Am. ed.) and note by Perkins. As to ^ lb. a court's power, see 88 Ind. 1. ^ Willis V. Sharpe, 113 N. Y. 586, (as A power to sell, conferred by will, to continuing the decedent's business), may be exercised by the administrator And see §§ 325, 326. dc bonis non with will annexed. 1S5 * Andrews v. Sparhawk, 13 Pick. Penn. St. 279; contra 171 111. 229. 393; Cadbury v. Duval, 10 Penn. St. 'See Marsden v. Kent, 25 W. R. 265 ; Gardner v. Gardner, 3 Mason, 522 ; § 332. 178, 2i(), per Mr. Justice Story; Strong- ' Geyer v. Snyder, 140 N. V. 394. 435 § 350 EXECUTORS AND ADMINISTRATORS. [PART IV. 5; 349. Representative may pledge or mortgage Assets instead of selling. — The general right of disposition and transfer involves the right to transfer in baihiient as well as by sale. If an exec- utor or administrator may advance funds of his own to pay the debts of the estate, so might it be judicious to raise money for discharging the immediate demands of the administration by pledging or mortgaging assets, and avert the necessity of an immediate sale of chattels at a sacrifice, or to anticipate the re- ceipt of income or other assets likely to be realized later. In fact, the great weight of authority, English and American, is to the effect that, unless positively restrained by statute or the par- ticular will, the representative of the deceased may mortgage or pledge the personal assets, or part of them, as well as alienate ; the general presumption being that one does so, as he well might, in the course of a prudent administration." And if the will confers ample powers, all the more surely is his discretion to be respected.' § 350. Bona Fide Purchaser, Pledgee, etc., not bound to see to Application of what he pays or advances. — As a general princi- ple, it is not incumbent on either a purchaser or a transferee upon securit}', to see that the money he pays or advances is properly applied, although he knew he was dealing with an ex- ecutor or administrator ; and simply because the executor or ad- ministrator may be presumed to exercise properly his large dis- cretion to dispose of personalty belonging to the estate.^ Hence, the equities of a bona fide transferee, without due notice of a fraud upon the estate, are respected ; though this does not by intendment enlarge the legal powers of the representative, nor give a colorable sanction to misconduct on his part. ' Scott V. Tyler, 2 Dick. 712; Wms Exrs. 934; Mill V. Simpson, 7 Yes. 152 Vane v. Rigdon, L. R. 5 Ch. 663; Mc Leod V. Drummond, 17 Ves. 154; Shaw V. Spencer, 100 Mass. 392 ; Carter v. Manufacturers' Bank, 7 1 Me. 448 Smith V. Ayer, 10 r U. S. Supr. 320 Wood's Appeal, 92 I'enn. St. 379 Goodwin v. American Bank, 48 Conn 550. But see Ford v. Russell, i Freem. (Miss.) Ch. 42. ' See § 347- ^ Supra, § 347 ; Hill v. Simpson, 7 Ves. 152; Field v. Schieffelin, 7 Johns. Ch. 150; Scott V. Taylor, 2 Dick. 725; McLeod V. Drummond, 17 Ves. 154; Shaw V. Spencer. 100 Mass. 392 ; Jones V. Clark, 25 Gratt. 642. 436 CHAP. IV.] representative's POWER TO SELL, ETC. § 35 I Nor with reference to the office of executor or administrator does the same rule of caution apply as in the case of a trustee ; the latter takes property rather for custody and management for his cestuis que trust, but the former for administration and a sort of dispersion of the assets. Hence, it might be perilous to buy trust funds or loan money on their pledge, where notice of a trust accompanied the transaction, while a sale or pledge of personal assets by the representative would stand because he is presumed to have the right to transfer." The more conservative expression of some cases, however, is that the legal representative can dispose of the personal assets of the decedent for all purposes connected with the discharge of his duties as representative ; and that even where the transfer upon security is made for other purposes of which the pledgee or mortgagee has no notice or knowledge, but takes the prop- erty for the ostensible purpose in good faith, parting with his own accordingly, the transaction will be sustained ; ^ a statement which certainly is not too strong. For the transferee of per- sonal property from an executor or administrator, whether by way of purchase or security, is not bound to see to the applica- tion of the proceeds received from him, but may assume that they will be properly applied ; ^ at the same time that notice on his part of an intended misapplication by the representative, should put him on his guard. '• § 3 5 I • Letters Testamentary or of Administration are Creden- tials of Authority to transfer, etc. — Letters of administration or letters testamentary are commonly regarded as sufficient evi- dence of authority to transfer stock or registered bonds, or as- sign and collect bank deposits and other incorporeal personalty ; because all such transfers, assignments, or collections are within ' Duncan v. Jaudon, 15 Wall. 165; ^ Smith v. Ayer, loi U. S. Supr. 320, Shaw V. Spencer, 100 Mass. 382 ; Bay- 327. ^xAv. Farmers' Bank, 52 Penn. St. 232 ; * Gottberg z'. U. S. Bank, 131 N. V. Perry Trusts, § 225. 595 ; § 352. ^ Smith V. Ayer, loi U. S. Supr. 320, 329, per Mr. Justice Field. 437 §35 2 EXECUTORS AND ADMINISTRATORS. [PART IV. the line of an executor's or administrator's duty.' Not so plainly, however, with a trustee's letters.^ § 352. Good Faith and Caution requisite from Purchaser, Pledgee, etc., in dealing with Personal Representative. — As to sale or transfer upon security, however, Hmitations are imposed, not upon the legal representative alone, whose mismanagement of his trust may be visited upon him and his bondsmen apart, but likewise upon the purchaser, pledgee, or mortgagee, who has dealt with him, and whose interest consists in having the trans- action upheld. As to these third parties the law exacts, on their part, perfect good faith in the transaction, and freedom from all improper collusion for perverting the assets. Wher- ever, therefore, the purchaser, pledgee, mortgagee, or other transferee, takes assets and accepts their transfer, for what one may reasonably suppose is outside the scope of the representa- tive authority, he is bound to look into that authority or he will act at his peril.-' And any person receiving from an executor or administrator the assets of his testator or intestate, knowing that such disposition of them is in violation of his duty, is to be adjudged as conniving with such representative, and is respon- sible for the property thus received, whether he be one kind of transferee or another ; and the assets may be followed and re- covered for the benefit of the estate.'* Notice of the misappli- cation involves the transferee as a participator in the fraud ; and there are numerous authorities to support the doctrine that where one has reasonable grounds for believing that the execu- tor or administrator intends to misapply such assets or their proceeds, or is in the very transaction converting them to pri- vate uses, such party can take no advantage from the transac- tion, and the title he has acquired cannot be upheld. 5 ' Bayard 7'. Farmers' Bank, 52 Penn. G. 633; Ilutchins ;•'. State Bank, 12 St. 232. Met. 423 ; Mr. Justice Field in Smith v. ^ Duncan v. Jaudon, and other cases, Ayer, loi U. S. Supr. 328 ; Field v. supra. Schieffelin, 7 Johns. Ch. 150, /iv Chan- ' Smith t'. Ayer, 101 U. S. Supr. 327 ; cellor Kent; Miller v. Williamson, 5 Gottberg v. U. S. Bank, 131 N. Y. 595. Md. 219 ; Verger v. Jones, 16 Mow. 30 ■• Smith V. Ayer, loi U. S. Supr. 327. Lowryz/. Commercial Bank, Taney C. C ' McLeod r'. Drummond, 17 Ves. 310; Graff z/. Castleman, 5 Rand. 195. 153 ; Collinson Z'. Lister, 7 De G. M. & CHAP. IV.] representative's POWER TO SELL, ETC. § 353 § 353- Disposal of Chattels Real; assigning and underletting Leases. — The executor or administrator may, by virtue of his A sale or pledge, therefore, of assets, which is known to be for the payment or security of the executor's or adminis- trator's own private debt is invalid ; for the act speaks for itself to the purchaser or pledgee as a breach of duty. Carter V. Manufacturers' Bank, 71 Me. 448; Scott V. Searles, 15 Miss. 498; Smartt V. Watterhouse, 6 Humph. 158; 39 Hun, 394. It appears to have been laid down in some of the earlier cases that the executor's sale of assets in sat- isfaction of his own private debt is not necessarily invalid, although the pur- chaser knew that the goods sold were the goods of the testator. Farr v. Newman, 4 T. R. 642. But even in the common-law courts the qualifications asserted were such as almost to neutral- ize the doctrine. See Wms. Exrs. 937. In equity, however, it has since become clearly established that to make sale of the assets or pledge them as security for the representative's private debt is per se notice of misapplication, and in- volves the purchasing or pledge cred- itor in the fraud. Wms. Exrs. 937, and Perkins's note. And such is now the general English and American rule on this subject. lb. And though the rep- resentative might give his own note as a voucher for money obtained for a legitimate purpose connected with a bona fide administration, and pledge as- sets to secure it ; yet if he gave it for some private debt of his own, created before or during his trust, but inde- pendently of it, and due the pledgee, the pledge transaction could not stand. See Virgin, J., in Carter v. Manufac- turers' Bank, 71 Me. 448. A sale which allows the purchaser to credit the price in liquidation of the representative's private debt has been considered, if not avoided, as leaving the purchaser still re- sponsible to the estate for the purchase- money. Chandler v. Schoonover, 14 Ind. 324. A purchase of the testator's effects at a nominal price, or at a fraud- ulent undervalue, in collusion with the representative, renders the purchaser liable for the full value ; or, at the op- tion of those interested, the transfer may be set aside. Rice v, Gordon, 1 1 Beav. 265 ; Wms. Exrs. 936 ; Sacia v. Berthoud, 11 Barb. 15. And where parties dealt with an executor, who was obviously exercising his power to dis- pose of the personal assets to raise money, not immediately for the settle- ment of the estate, but for the business of a commercial firm, it was lately held that they were bound to look into his authority under the will before purchas- ing such assets or loaning money on their pledge ; and that not having done so, their title failed, the transaction be- ing impeached on behalf of the estate as fraudulent. Smith v. Ayer, loi U. S. Supr. 320. And see Salmon v. Clagett, 3 Bland, 125 ; Le Baron v. Long Island Bank, 53 How. (N. Y.) Pr. 286. Where, too, the representative mort- gages personal property of the deceased for purposes which the mortgagee, un- der the circumstances, is notified are a fraud upon the estate, the mortgage may be avoided on behalf of those interested , in the estate and aggrieved thereby. Salmon v. Clagett, 3 Bland, 125; Colt V. Lesnier, 9 Cow. 320; Wilson v. Dos- ter, 7 Ired. Eq. 231 ; Parker v. Gilliam, 10 Yerg. 394. In a word, "those who receive trust property from a trustee in breach of his trust become themselves trustees if they have notice of the trust." " This general doctrine," observes Chap- man, J., in Trull v. Trull, 13 Allen, 407, " has been applied to a great variety of cases." But where a bank in good faith lent money to an executor upon his Individ- 439 § 353 EXECUTORS AM) ADMINISTRATORS. [pART IV. office, and as representative of the deceased entitled to chattels real, assign and dispose absolutely of the leases and terms for years, whose title thus devolves upon him ; subject, of course, to the usual restrictions imposed upon his power to alienate.' This power to assign or underlet is, however, frequently re- strained or excluded in modern times by the original terms of a lease, so that the lessor's consent is made a prerequisite ; in which case it becomes a question of construction whether an express restraint upon alienation or underletting shall take effect against executors or administrators, or be held binding only upon the lessee personally. If the executors or administrators, as well as the lessee, are named in the proviso or covenant, they cannot assign, underlet, or dispose of the term without the lessor's per- mission ; though it appears otherwise, where such representatives are not mentioned in the covenant.^ ual note, secured by a pledge of stocks belonging to the estate, and upon his statement that the loan was for the pur- poses of the estate, the pledge was in a recent case held valid, so that the stock could not be recovered without refund- ing the loan. Carter v. Manufacturers' Bank, 71 Me. 448. Knowledge of the representative's fraud in procuring the loan is not to be inferred from his de- sire to renew and continue the loan for nearly four years. Goodwin v. Ameri- can Bank, 48 Conn. 550. And where an executor pledged stock to his broker as collateral security for his own debt, and the broker pledged the certificates to a third, who advanced money on them, supposing the broker to be the owner, the transfers showing on their face that the title came from the execu- tor, the pledgee's title was likewise up- held with deference to mercantile usage. Wood's Appeal, 92 Penn. St. 379. By commercial usage, the court here ob- served, a certificate of stock accom- panied by an irrevocable power of attor- ney, either filled up or in blank, is in the hands of a third person presumptive evidence of ownership in the owner ; and where the party in whose hands the certificate is found is a holder for value, without notice of any intervening equity, his title cannot be impeached. Wood's Appeal, ib., citing authorities. For whatever the pledgor's own breach of trust, or an agent's abuse of authority, one who confers upon another by a written transfer all ihe indicia of owner- ship of property is estopped to assert title as against a third person, acquiring it bona Jide for value ; and the principle, reluctantly perhaps to be admitted in the settlement of a dead person's estate, applies undoubtedly against a living owner. Purchaser's title under sale not af- fected by discovery and probate of a later will. Ellis z-. Davis, 109 U. S. 485 ; 27 Ch. D. 220. ' Bac. Abr. Leases, I. 7 ; Wms. Exrs. 939; Taylor Landl. & Ten. § 133. See Drohan v. Drohan, i B. & B. 185; Keating v. Keating, i Lloyd & G. 133. ^ Wms. Exrs. 940-943, and cases cited ; Roe V. Harrison, 2 T. R. 425 ; Lloyd V. Crispe, 25 Taunt. 259. And see supra, § 223. 440 CHAP. IV.] REPRESENTATIVk's POWER TO SELL, ETC. § 354 The executor or administrator, in whom leaseholds become vested, should ordinarily sell and assign and let the assignee take the risks as to the value of his purchase. In some cases an underlease from the representative himself will be supportetl, though this is an exceptional mode of dealing with such assets.' But in a recent English case it is held to be ultra vires, and a breach of trust for an executor or administrator to grant an underlease of leaseholds of his testator or intestate, with an op- tion of purchase to be exercised by the sub-lessee at some future time at a fixed price.^ The proceeds of an absolute disposition of the lease, or the rents accruing from an underlease, or any other beneficial enjoyment of the premises, become assets of the estate in the personal representative's hands. ^ § 354- Restraints upon the Power to dispose of Assets as con- cerns the Representative himself. — To speak of limitations upon the representative's power to alienate and transfer the personal assets, more particularly as they affect the official responsibility of the representative himself and the liability of the sureties on his bond, the rule is that he must not sell, pledge, or otherwise transfer personal property belonging to the estate, except it be in the exercise of good faith and reasonable prudence,"* for the benefit of the estate and without perversion of the assets to other purposes. Though wrongful or imprudent transfer may pass a good title to the transferee, it cannot exonerate the representa- tive who has made it from direct responsibility, as, in our prac- tice, an officer subject to removal, whose bond may be prosecuted for the benefit of those suffering in interest through his mal- ' Bac. Abr. Leases, L 7 ; Wms. Exrs. 745. And see post. Part VIL as to 939. dealings with real estate. ^ Oceanic Steam Nav. Co. v. Suther- A grant of letters obtained by sup- berry, 29 \V. R. 113. pressing a will is not at this day treated ' Bac. Abr. Leases, I. 7 ; Wms. Exrs. as void ab initio. See supra, § 160. 939 ; 2 W. Bl. 692; Bank v. Dudley, 2 Hence a sale of leaseholds by such an Pet. 492 ; Taylor Landl. & Ten. § 133. administrator to a botia fide purchaser That an administrator has no power before revocation of the letters, is up- to mortgage leaseholds, under leases not held. Boxall jv. Boxall, 27 Ch. D. 220, containing repairing covenants, in order distinguishing 2 Leo. 182. to raise money for repairing the prop- •* " C>rdinary prudence," according to erty, see Ricketts v. Lewis, 20 Ch. D. the American rule; less than this, per 441 § 35 5 EXECUTORS AND ADMINISTRATORS. [PART IV. administration.' In some States it is laid down that an admin- istrator can sell only to pay debts and make distribution ; ^ and yet in connection with the investment and reinvestment of funds not needed for immediate disbursement, the discretion of a rep- resentative seems rightfully a broader one ; and whether he be executor or administrator, the true criterion appears to be rather whether he exercised reasonable prudence and good faith under all the circumstances, in making the transfer.^ § 35 5- Representative's Liability for Negligence, Fraud, etc., in the sale of Assets. — Delays attending the sale of particular assets may not, therefore, be inexcusable, though loss or depreciation in value should result ; provided the representative's course ap- pears to have been honorable in intent and not unreasonable.'' But the executor or administrator is bound to e.Kcrcise due and reasonable care and diligence, as well as good faith, in disposing of assets, as to the time, manner, and terms of the sale ; more especially where he acts upon his own responsibility, without consulting either the court or the parties in interest. 5 For the consequences of his own fraud, in connection with a transfer, he is unquestionably answerable, on the usual principles, to the innocent parties injured thereby.'' The time and method chosen by the representative for making a sale and disposing of assets should be reasonable under all the circumstances.^ And if he act under judicial directions, he must comply with thcm.^ Where the property is of a fluctuating and uncertain character, like speculative stocks and securities which might rise or fall, post- poning their disposition to the period when it becomes strictly haps, by the English standard. See Orcutt v. Orms, 3 Paige, 459. See supra, % 315. supra, §315, as to whether the stand- ' Overfield v. Bullitt, i Mo: 749. ard is " ordinary " or " slight " care and ^ Baines v. McGee, 9 Miss. 208. diligence. 3 Meadz'. Byington, 10 Vt. 116; Sher- ''Skrine v. Simmons, 11 Ga. 401 manz/. Willett, 42 N. Y. 146; 13 Allen, Heath v. AUin, i A. K. Marsh. 442 407. Harrington v. Brown, 5 Pick. 519 *Dugan V. Hollins, 11 Md. 41; Mc- Miles v. Wheeler, 43 111. 123; Woods Rea V. McRea, 3 Bradf. 199; Mead v. v. North, 6 Humph. 309. Byington, 10 Vt. 116; Stewart v. Stew- ^Griswold v. Chandler, 5 N. H. 492; art, 31 Ala. 207 ; supra, §315. Mar.'sden v. Kent, 25 W. R. 522. ' Griswold V. Chandler, 5 N. H. 492 ; " McDonald, Re, 4 Redf. 321. 442 CHAP. IV.] representative's POWER TO SELL, ETC. § 356 necessary to realize such assets in order to settle the estate, is not to be imputed as culpable default, provided that under the circumstances reasonable prudence and good faith were dis- played.' If the representative fails in his duty in these or other re- spects, he may be held to account for the property on the basis of the inventory value, or perhaps the actual loss to the estate ; ^ but if he does his whole duty with fidelity and reasonable care, he cannot be charged with a loss or depreciation of the assets. A failure to sell and dispose of personal assets does not neces- sarily impute carelessness to the executor or administrator, but the circumstances should be considered.^ § 356. The same Subject; Obtaining Payment or taking Secu- rity for the Purchase-Money. — As to carelessness or bad faith in procuring payment or taking or enforcing security for the purchase-money, the same doctrine applies. Thus, where the representative sells personal property by order of court, with credit to be given on specified security for the purchase-money, but allows the purchaser to carry away the property without giving such security, and the security cannot afterwards be obtained, this is culpable negligence on his part, and he must answer to the estate for the loss.-* For in making a sale under judicial directions, he cannot safely disregard the terms pre- scribed. Indeed, a sale of assets made on credit, and without taking security of any sort from the purchaser, can rarely be considered a prudent transaction on the part of a fiduciary, so as ' Marsden v. Kent, 25 W. R. 522. 512; Masseyz-. Cureton, i Cheves, 181 ; ^Griswold V. Chandler, 5 N. H. 492 ; Betts v. Blackwell, 2 Stew. & P. 373; Pinckard ^A Woods, 8 Gratt. 140. Davis v. Marcum, 4 Jones Eq. 189; ^McRae v. McRae, 3 Bradf. 199. Peay z'. Fleming, 2 Hill Ch. 97 ; South- Shipping goods in good faith, to be sold all 7'. Taylor, 14 Gratt. 269. But inci- abroad instead of in the home market, dental delays or omissions in connection does not necessarily charge the repre- with security are not necessarily culpa- sentative with the loss ensuing, his ble. Gwynn v. Dorsey, 4 Gill & J. 453. course not being imprudent in itself, On failure of compliance with the though resulting unfortunately. Bryan terms of sale, the representative may V. Mulligan, 2. Hill (S. C.) Ch. 261. sue the purchaser at once. Peebles v. *Hasbrouck v. Hasbrouck, 27 N. Y. Overton, 2 Murph. 384. 182; Vreeland v. Vreeland. 13 N. J. L. 443 §35 7 liXECUTORS AND ADMINISTRATORS. [PART IV. to exempt him from the risk of subsequent loss.' And in pursu- ing the security taken, or attempting to recover property trans- ferred, one may be culpably negligent, or the reverse.^ Security taken in connection with a transfer of the assets, by the rep- resentative, enures properly to the benefit of the estate. ^ On the other hand, where the representative takes security or a note for the purchase-money, and a loss occurs not attribu- table to his fault, he is only chargeable with the amount actually collected and realized. •♦ If a sale be made on credit, it is not improper to receive the money before the expiration of the credit. 5 § 357- Collusive or Fraudulent Disposition of Assets by the Representative. — Where an executor or administrator collusively sells personal property of his decedent at an undervalue, when he might have obtained a higher price, or so as to lose the price altogether, it is a devastavit, and he shall answer for the real value.^ Or if, from improper motives, he procures an advanta- geous sale to be set aside for technical reasons against the pur- chaser's will and procures resale at a loss, he must make good the loss. 7 And, notwithstanding the form of a judicial or a pub- lic sale was pursued, this will not debar a court of equity from examining into the whole transaction, and considering whether there was a collusive .sale to defraud the estate of a just price.'* Where there is any collusive and fraudulent dealing with the personal assets of an estate, or a misappropriation, not only a creditor, but a legatee, whether general or specific, or a distributee, is entitled to follow the assets in equity.'' But all such rights ' Orcutt V. Orms, 3 Paige, 459; ' Q^yy,^j^ -, Dor.sey, 4 Gill & J. 453. Stukes V. Collins, Desau. 207 ; Chand- See 57 Cal. 407. ler V. Schoonover, 14 Ind. 324; Dilla- *" Skrine v. Simmons, 11 Ga. 401. baugh'.s Estate, 4 Watts, 177; English Heath 7'. Alhn, i A. K. Marsh. 442. V. Horn, 102 Ga. 770. ' Mountcastle v. Mills, 11 Heisk. 267. -Johnston's Estate, 9 W. & S. 107. * Skrine v. Simmons, 11 Ga. 401; And see § 323. Heath v. AUin, i A. K. Marsh. 442. As 'See Pulliam v. Winston, 5 Leigh, to the fraudulent pledge or mortgage of 324 ; Napier v. Wightman, Spears, Ch. assets, see supra, § 352. 357. ' Hill V. Simpson, 7 Ves. 152 ; Wilson ♦ Stewart v. Stewart, 31 Ala. 207. v. Moore, i My. & K. 337 ; Flanders v. Flanders, 23 Ga. 249. 444 CHAP. IV.] representative's POWER TO SELL, ETC. § 358 must be enforced within a reasonable time, considering the opportunity afforded for ascertaining the true character of the transaction, or else the right will be barred by their presumed acquiescence.' And, in American probate practice, where bonds are given by the fiduciary, such are the facilities for removing unfaithful executors and administrators and appointing their legal successors, that adequate remedies at law for recovering assets improperly transferred may frequently be found without asking a court of equity to interpose.^ § 35 8. Purchase by a Representative at his Own Sale, etc. — The earlier and more conservative rule is, that an executor or admin- istrator cannot be allowed to purchase from himself any part of the assets, even though making a conduit of the title through some third person ; but he shall be considered in such transac- tions a trustee for the persons interested in the estate, and shall account for the utmost extent of advantage made by him of the subject so purchased.^ And hence, a sale by the representative to himself of personalty belonging to the estate, has been treated as fraudulent per se and void, even though made at public auc- tion at a fair price, a third person being the nominal bidder to whom the immediate transfer is made.-* But the preponderance of American decisions tends rather to the conclusion that a pur- chase of assets by the executor or administrator, or his taking and accounting for the same at their appraised value, may often be really advantageous to the estate, and that such advantage is, after all, the main thing to be considered. They hold that, at all events, a purchase by the representative is not absolutely void, but voidable only by persons interested in the estate at their option ; 5 nor even by these if they have directly sanctioned ' Wms. E.xrs. 938; Elliott ?'. Merri- ■• lb.; Miles z/. Wheeler, 43 111. 123; man, 2 Atk. 41 ; McLeod v. Drummond, Ely v. Horine, 5 Dana, 398 ; Sheldon v. i4Ves. 353; 17 Ves. 152; Flanders v. Rice, 30 Mich. 296. Flanders, 23 Ga. 249. ^ Harrington v. Brown, 5 Pick. 519; ^ See Mawhorter v. Armstrong, 16 Mercer v. Newson, 23 Ga. 151 ; Ander- Ohio, 188; Hart v. Hart, 39 Miss. 221. son v. Fox, 2 Hen. & M. 245; McLane ' Hall V. Hallett, i Cox, 134; Wat- v. Spence, 6 Ala. 894 ; Blount v. Davis, sonz/. Toone, 6 Madd. 153; Wms. Exrs. 2 Dev. 19; Mead t'. Byington, 10 Vt. 938 ; 1 13 N. C. 270. 116; Ives t. Ashley, 97 Mass. 198 ; Gil- 445 § 358 EXECUTORS AND ADMINISTRATORS. [PART IV. or acquiesced in the transaction,' or if, from their laches and delay, acquiescence on their part may legally be fairly inferred to the quieting of title.^ The sale will be treated as essentially valid until avoided ; ^ and, while any party interested may apply to have the sale set aside, notwithstanding the acquiescence of the others, it is not for a stranger to exercise any option in the matter.-* The representative, moreover, who has advanced his own funds to pay debts of the decedent, is allowed to retain any spe- cific article at a fair valuation, and his purchase at the sale may be treated as evidence of his election accordingly. ' A purchase by the representative at his own sale must, how- ever, in order to stand assault, be in the interest of the estate. If it appear that he purchased the property at less than its value, has never accounted for the proceeds, and is insolvent, chancery will set the sale aside, not only as against him, but as against purchasers under him with notice.^ Where an execu- tor or administrator purchases at his own sale, he may be held accountable for all the profits of the transaction ; and if the to- tal profit be uncertain, he is chargeable with the largest amount presumable." And if he purchase personalty of the deceased, though at public auction, at a less price than the appraised value in the inventory, he may be held to account for the difference ;** bert's Appeal, 78 Penn. St. 266 ; Moses ' Ely v. Horine, 5 Dana, 398. See V. Moses, 50 Ga. 9; Staples v. Staples, i Desau. 150. 24 Gratt. 225 ; 57 Fed. 873. And see The mere fact that, long after an ad- Sheldon V. Rice, 30 Mich. 296; Mon- ministrator's sale the administrator pur- roe's Estate, 142 N. Y. 484. chased the property from the purchaser ' Williams v. Marshall, 4 Gill. & J. at such sale, is not sufficient proof that 376; Lyon ?■. Lyon, 8 Ired. 201. the fiduciary was substantially a pur- ^ Todd 7'. Moore, i Leigh, 457 ; chaser at his own sale through the me- Flanders ?■. Flanders, 23 Ga. 249. And dium of another. Painter z'. Henderson, see Miller v. Binion, 33 Ga. ^;^. 7 Penn. St. 48. 'lb.; Dunlap v. Mitchell, 10 Ohio, * Sheldon v. Woodbridge, 2 Root 117; Wms. Exrs. 938, note by Perkins ; (Conn.) 473; McCartney v. Calhoun, 59 Mass. 185. 17 Ala. 301 ; Lyon v. Lyon, 8 Ired. L. * Litchfield v. Cudworth, 15 Pick. 24; 201 ; McKey v. Young, 4 Hen. & M. Jackson v. Vandalfsen, 5 Johns. 43 ; 430. Wms. Exrs. 938, Perkins's note; Lo- 'Brackenridge z/. Holland, 2 Blackf. throp V. Wightman, 41 Penn. St. 297. 377. "Griswold 7/. Chandler, 5 N. H. 492. 446 CHAP. IV.] representative's power to sell, etc. § 358 but the true valuation of the property should be considered.' In general, if the sale be not avoided, the representative is charge- able, together with the sureties, on his bond, for, at least, the full and true price at which he purchased ; ^ but where the trans- action is assailed by a party in interest, for the actual value of the property as nearly as may be.^ While such transactions may not be positively illegal, they justify and require a close scrutiny into the good faith and fairness of the transaction ; be- ing liable to gross abuses, like the purchase of an attorney from his client or a guardian from his late ward.^ It is held that where the representative himself purchases at his sale of the decedent's estate, and uses the assets of the es- tate in making such purchase, those interested may elect to consider the appropriation a conversion, or may treat him as a purchaser in trust for their benefit. 5 Courts incline to favor the representative's correction of an inadvertent purchase by himself at his sale of the assets ; ^ but the representative who made the sale is not the proper person to avoid the transaction to the detriment of another's interests thereby acquired.^ In fine, according to the better authorities, a purchase by the executor or administrator at his own sale, either directly or indi- rectly, will, though not absolutely void, be set aside, upon the timely application of any party interested in the estate ; and this rule is of general application to sales of trust property.^ At the ' Dudley v. Sanborn, 159 Mass. 185. istrator may purchase lands of his intes- ^ Raines v. Raines, 51 Ala. 237; Mof- tate which are sold under the foreclosure fat V. Loughridge, 51 Miss. 211. of a mortgage; for the administrator is 'See Gilbert's Appeal, 78 Penn. St. not a trustee of his decedent's real es- 266. tate. Dillinger v. Kelley, 84 Mo. 561 ; ••Moses V. Moses, 50 Ga. 9. Buying Johns v. Norris, 7 C. E. Greene (N. J.) in legacies is culpable in a representa- 102. Other^\^se, however, in transac- tive. Goodwin v. Goodwin, 48 Ind. tions where the representative is really 584. a trustee, as in the sale of land for the 5 Julian V. Reynolds, 8 Ala. 680. And payment of debts, see, as to assignment of stock belong- '^Bennett, Ex Parte, 10 Ves. 381 ; ing to the estate, to the representative Davone v. Fanning, 2 Johns. Ch. 253; personally, Whitley v. Alexander, 73 Booraem v. Wells, 19 N. J. Eq. 87; N. C. 444. Lytle v. Beveridge, 58 N. Y. 593. Local *" Cannon v. Jenkins, i Dev. Eq. 422. statutes prohibiting such purchases are 'And see Part W. post as to sales of found. 84 Mo. 561. the decedent's real estate. An admin- An ancillary representative will be 447 § 360 EXECUTORS AND ADMINISTRATORS. [PART IV. same time, the election of the interested parties may confirm the sale.' ij 359. Re-opening the Representative's Voidable Transfer, etc.; Relief as against Third Parties. — Generally speaking, if an exec- utor or administrator sells, mortgages, or pledges any of the personal property of his decedent's estate in payment of or as security for his individual debt, or otherwise, in perversion of his trust, every person who receives any part of this property, as a participator in the representative's breach of trust, is re- sponsible ; and the assets wrongfully transferred or disposed of may be reached by creditors, legatees, and distributees or heirs. The relief afforded for the fraud and damage appears to be an equitable one at their election ; no adequate or complete remedy existing at law, or none, at all events, where the representative and his sureties are worthless.-^ § 360. Personal Representative cannot avoid his ow^n Voidable Transfer, etc. — But the representative cannot avoid his own sale or pledge, though guilty of a breach of trust in making it. It may be needful and proper to remove him from the trust and appoint another ; but such a removal is not for the purpose of presumed to have authority, by virtue of place for final and full settlement of the his office, to sell a note and mortgage estate, and an account for all the prop- belonging to the estate, in the absence erty and effects of the estate wherever of evidence to the contrary. But where found, might inquire into the good faith the executor, in the last domicile of the of the sale, and if it should find that the decedent, included in his inventory a sale was fraudulent and the executor note due to his testator from the estate the real purchaser of the note, could of a deceased debtor who was domi- compel him to account for the excess of oiled in another State, secured by mort- the value of the note above what he gage on land in that State, took out paid for it. Clark v. Blackington, no ancillary administration, sold the note Mass. 369. See supra, § 181. and mortgage, and rendered a final ac- ' Cases supra. count to the probate court of that State, ^ McLeod v. Drummond, 17 Ves. 153 ; which was there allowed, it was held 4 Brown, C.C. 127, 139; Bean z/. Smith, that such allowance of the disposition 2 Mason, 271 ; Monell v. Monell, 5 made by him of the proceeds of the Johns. Ch. 297; Riddle v. Mandeville, note was conclusive in the settlement of 5 Cranch, 322; Field v. Schieffelin, 7 his account in the probate court of last Johns. Ch. 150; Dodson v. .Simpson, 2 domicile as executor; but that the pro- Rand. 294 ; Thomas v. White, 3 Littell, bate court of last domicile, being the 180. And see j///;rt, § 297. 448 CHAP. IV.] representative's POWER TO SELL, ETC. § 36 1 reaching the assets themselves, but preparatory rather to hold- ing the delinquent representative to account, and suing him and his bondsmen for maladministration. If the unfaithful repre- sentative dies or is removed in fact, and a representative de bonis non is appointed, the rule is that the latter cannot avoid the wrongful transfer of his predecessor, except where there are local statutes in force authorizing a representative de bonis non to do what otherwise creditors, legatees, or distributees could alone have done.' § 361. Whether the Representative warrants Title when he sells. — Where an executor or administrator sells or transfers personal property of the decedent, there is an implied represen- tation to the purchaser that he is the legal representative of the estate, and has general authority to make such sale or transfer ; and, should it prove the reverse, the purchaser or transferee may, it is held, be relieved from the contract in equity.^ Juris- diction in the premises, regular procedure by virtue of his office, is what an executor or administrator warrants by impUcation. But, in sales or transfers by executors or administrators, there is no implied warranty of the title ; and the purchaser or trans- feree acquires only the decedent's rights in the property, sub- ject to his incumbrances ; so that, in the absence of fraud or an express warranty on the representative's part, and an eviction, the buyer or transferee cannot hold him personally answerable nor the estate.^ Indeed, the purchaser from an executor or ad- ministrator takes the risk of the worthlessness of the decedent's title ; and he must pay the price, as it is held, even though that title should utterly fail, no deceit having been practised upon him.-* Where, however, the purchase-money remains in the ' Stronach v. Stronach, 20 Wis. 129, his title. Beene v. Collenberger, 38 133, and cases cited; Hagthorp v. Ala. 647 ; Michel, Succession of, 20 La. Neale, 7 G. & J. 13; Herron v. Mar- Ann. 233. shall, 5 Humph. 443. See c. 6, post. ^ Mockbee v. Gardner, 2 Har. & G. ^ Crisman v. Beasley, i Sm. & M. Ch. 176. 561; Woods V. North, 6 Humph. 309. ■• Cagar v. Frisby, 36 Miss. 178; In case of a sale under a void judicial Stanbrough v. Evans, 2 La. Ann. 474. order, the purchaser is not bound to But see White, Succession of, 9 La. pay the purchase-money and complete Ann. 232. A fairer rule would be, that, 29 449 § 361 EXECUTORS AND ADMINISTRATORS. [PART IV. representative's hands still undistributed, it is equitable and just, as other cases affirm, that the representative should refund to the ]5urchaser in such a case.' And fraudulent representations made by the representative at the sale may be relied upon by the purchaser who was misled, so as to avoid the sale, or in abatement of the price agreed upon.- In respect of warranty, therefore, executors, administrators, and other trustees consti- tute exceptions to the familiar rule that there exists in every sale of personal property an implied warranty of title. ^ But even here, if fraud taints the transaction, or if there has been an express warranty and eviction, the representative makes himself personally liable to the purchaser for the consequences.'* It becomes a question, therefore, whether an express warranty which the representative makes, outside the usual scope of his official authority, binds the estate and not himself alone. Some courts have considered that the representative is competent to warrant either the title or the soundness of personal property of the deceased which he offers to sell, so that if the transaction, as between the purchaser and himself, be fair and bona fide ^ the if in such a case the sale has not been " would accept an office of this kind, if completed by payment of the money, he were to become necessarily the the purchaser need not pay ; but at all guarantee of the good title of him whom events, he cannot hold an innocent rep- he represents, in all the property sub- resentative personally liable should the mitted to his charge which he may be title fail ; though the loss might here obliged by order of the court to sell .'' fall properly upon the estate. The in- In all cases in which the title sold was demnity of the representative is what ascertained to be defective, after a final the law chiefly insists upon in such in- distribution of the estate, the adminis- stances. trator, if a recovery were had against ' Mockbee v. Gardner, 2 Har. & G. him, would have to look for indemnity 176. to creditors, distributees, and legatees. ^ Able 7'. Chandler, 1 2 Tex. 88. In most instances his prospect of se- ^ See 2 Schoul. Pers. Prop. § 320 et curity would never be realized, and no seq. as to warranty in sales ; Chapman power is given him to retain for such a V. Speller, 14 Q. B. 621 ; Blood v. contingency." French, 9 Gray, 197 ; Brigham v. Max- The representative is not responsible ley, 15 111. 295; Bartholomew v. War- for misrepresentations by others which ner, 32 Conn. 98. The reason for this he did authorize. Newell v. Clapp, 97 exemption from personal responsibility Wis. 104. is derived from the nature of the office * Mockbee v. Gardner, 2 Har. & G. held by the representative or trustee. 176; Sumner z/. Williams, 8 Mass. 162; "For who," observes Archer, J., in Buckels z/. Cunningham, 14 Miss. 358; Mockbee v. Gardner, 2 Har. & G. 177. Able v. Chandler, 12 Tex. 88. 450 CHAl'. 1\.J representative's POWER TO SELF., ETC. 5^ 362 warranty will obligate the estate ; or, in other words, that the power to warrant, on his part, is incidental to the general right to sell, pledge, or mortgage." But local statutes may, upon a fair construction, be found to regulate this whole matter.^ An estate ought not to profit unjustly where prevention may be seasonable.^ Yet it would appear the better opinion that a per- sonal representative cannot positively bind his decedent's estate, when he transcends the usual limits of his authority, and war- rants the decedent's title absolutely or the soundness of the thing he offers.'* This latter rule, though sometimes operating harshly, is found, after all, the most convenient for facilitating a prompt and equitable settlement of the estate ; and each pur- chaser, being put on his own guard in such transactions, should inquire into the title for himself, or offer a less price in consid- eration of the risk he runs.5 v^ 362. Sales of Negotiable Instruments by the Representatives. ^An executor or administrator has a right, which is inherent in the office, to sell or otherwise transfer promissory notes, bills of exchange, or other negotiable instruments belonging to the decedent's estate, as well as corporeal chattels, and under corre- sponding qualifications.'' For his authority to dispose of per- sonal property extends to the disposition of incorporeal kinds and their muniments of title, excepting, perhaps, for those com- mon-law barriers against assignment, which, in modern practice, " Craddock v. Stewart, 6 Ala. 77, 80. himself by getting distributees or others An administrator may warrant the in interest to obligate themselves per- soundness of personalty before he sells, sonally in return ; or they may them- Roltwood V. Miller, 112 Mich. 657, and selves undertake to make express war- cases cited. ranty to the purchaser. - lb. As to mortgages where one The representative sometimes sells sells with warranty, see 3 Mason, 285 ; with authority from a sole legatee or 2 Whart. 420. distributee. See Kelso v. Vance, 58 ' Williamson v. Walker, 24 Ga. 257; Tenn. 334. Crayton v. Munger, 9 Tex. 285. " Rawlinson v. Stone, 3 Wils. i ; ■* Ramsey v. Blalock, 34 Ga. 376 ; Wms. Exrs. 943 ; Gray v. Armistead, 6 Lynch v. Baxter, 4 Tex. 431. Ired. Eq. 74; Rand v. Hubbard, 4 Met. ■^ If the representative seeks, by giv- 258; Cleveland v. Harrison, 15 Wis. ing express warranty, to make a better 670. And see Nelson v. Stollenwerck, sale for the estate, he may well secure 60 Ala. 140. § 362 EXECUTORS AND ADMINISTRATORS. [PART IV. have been well-nigh swept away," And the purchaser of such instruments in good faith will acquire a good title, even though purchasing at a discount, unless he is chargeable with collusive advantage or knowledge of a fraudulent perversion on the rep- resentative's jjart.- Should the representative dispose improp- erly of such assets and the rights thereunder, he may be ren- dered liable on his bond ; }'et this will not affect the title of an indorsee, assignee, or other transferee who takes the instrument in good faith and for value.^ But, following the rule elsewhere noticed, the transfer of a note due to the estate by the representative in payment of his own debt, or as security for it, gives to the transferee with notice no right of recovery.-' On the other hand, if a balance be justly due to the representative on the settlement of his accounts, to the amount of the negotiable instrument, it is no fraud in him to sell and appropriate such instrument to the payment of his claim.5 The representative may, by indorsement or the other usual means, guarantee payment of the instrument he transfers ; but by doing so he binds himself personally, and not the estate,^ and consequently the form of assigning or indorsing should, as a rule, be so prudently expressed that no recourse can be had either against him or the estate he administers upon.^ ' See 1 Schoul. Pers. Prop. §§ 71-86, Scranton v. Farmers' Bank, 24 N. Y. as to the old distinction between cor- 424; Scott v. Searles, 15 Miss. 498 poreal and incorporeal, or c/ioses in pos- Smartt v. Waterhouse, 6 Humph. 158 session and choses in action, with the Williamson v. Morton, 2 Md. Ch. 94 common-law rule of assignment. supra, § 352. ^ Gray v. Armistead, 6 Ired. P:q. 74. ' Ward v. Turner, 7 Ired. Eq. 73. See Munteith v. Rahn, 14 Wis. 210; And see Rogers t-. Zook, 86 Ind. 237. § 357. ^ Robinson v. Lane, 22 Miss. 161 ; 3 Hough V. Bailey, 32 Conn. 288; siipra,%2^%. Generally speaking, there Wilson V. Doster, 7 Ired. Eq. 231; is no difference between an indorsement Walker v. Craig, 18 111. 116; Speelman of a note by the deceased and one by V. Culbertson, 15 Ind. 441. Under the his personal representative. Watkins codes of some States, the rule is other- v. Maule, 2 Jac. & W. 243 ; W'ms. Exrs. wise. Burbanki'. Payne, 17 La. Ann.15. 943. For a case of incomplete indorse- As to application of the statute of ment and delivery of a note belonging limitations to such transactions, see to an estate, see Bromage v. Lloyd, i Cleveland v. Harrison, 15 Wis. 670 ; Ex.32. And see 37 Miss. 526. next chapter. ^ £iy ^ Williams, 13 Wis. i. See ^Lutham v. Moore, 6 Jones Eq. 167 ; 127 Mass. 174. 452 CHAP. IV.] representative's POWER TO SELL, ETC. § 363 As the representative may sell and dispose of a note or other negotiable instrument belonging to the estate, so may he dis- pose of it with pledge or mortgage security accompanying it, and assign and transfer accordingly.' Even a mortgage secured upon real estate passes with the principal indebtedness as per- sonal property, if unforeclosed, and may be assigned by the representative.- An executor or administrator may, under proper circum- stances, sell a negotiable instrument or other incorporeal cJiose at a price below the nominal amount, as he certainly may for a price above it ; ^ for the pursuance of official duty with integrity and reasonable prudence is here, as in sales of things corporeal, the standard by which his transactions should be tested. § 363. Representative's Authority to purchase. — The power of an executor or administrator to purchase follows the general doctrine of his authority to sell, invest, and re-invest. "♦ An un- authorized purchase is voidable at the election of those in inter- est. Under the circumstances presented in some particular transaction, it may be matter of inquiry whether the purchase made by a representative was on his individual account or for the use of the estate ; and here, not only formal instruments of title, but also the means of payment used, and the advanta- geous or disadvantageous character of the transaction may be taken into consideration. s If the reiDresentative misapplies funds of the estate in a purchase, fraudulently or unreasonably, he may be held accountable on his bond for the misapplication ; and where the seller was cognizant of his breach of trust, those interested in the estate and injured thereby may bring a bill in ' Ely V. Williams, 13 Wis. i. See tion accruing to the estate, to release 127 Mass. 174. one of the makers of a promissory note ^ Cleveland r'. Harrison, 1 5 Wis. 670 ; executed to him in his fiduciary capacity, Jelke V. Golsmith, 52 Ohio St. 499; from liability for the balance. Latta z/. Miller:'. Henderson, 10 N. J. Eq. 320; Miller, 109 Ind. 302. And see, as to supra, § 214. his power to compromise, supra, § 298. ^Wheeler v. Wheeler, 9 Cow. 34; ■* See j?(;>rtf, § 322, as to investments. Gray v. Armistead, 6 Ired. Eq. 74. and as to sales, § 358. And see 55 Miss. 278; 57 Ga. 232. -' Colvin -'. Owens, 22 Ala. 782; An executor or administrator has power, Harper v. Archer, 28 Miss. 212. in good faith and for a just considera- 45 3 § 364^^^ EXECUTORS AM) ADMINISTRATORS. [PART 1\. equity to compel the seller to refund the purchase-mone}' and place them in statu qiw^ § 363^7. The same Subject. — As in Other cases, so upon his own contract of purchase, the personal representative binds him- self individually to those with whom he deals, whether the estate may reimburse him or not.' § 364. No Authority to give away Assets. — The exeCUtor Or administrator -has no inherent right to give away assets of the estate, even though he should deem them worthless.^ But to give assets in payment of some claim, or as an offset to what may be due the representative himself on a settlement, is a different matter ; and a will sometimes confers a discretionary authority by way of bestowing tokens from the decedent. * ^^ 3^>4'^^ Right to recover Assets wrongly Transferred. — Where the rci)resentati\'c transfers assets of the estate wrongly or mis- takenly, he has the right and it is his duty to recover them again for the benefit of the estate. "♦ ' Trull r'. Trail, 13 Allen, 407: supra, will to purchase, see Willis v. Sharpe, § 352. See Cousins, AV-, 30 Ch. D. 203, 1 13 N. Y. 586. \s'here an option to purchase was held ^3 Port. 221 ; Lovell v. Field, 5 Vt. personal to a testator, and not such as 218; 118 N. C. 440. his executors could exercise after his ^ Radovich's Estate, 74 Cal. 536. death. As to power given under the ^Zimmerman?'. Kinkle, 108 N. Y. 282. 454 ^ CHAT. V.J LIABILITY OF EXECUTOR OK ADMl N IS'IRATOK. ^ 366 CHAPTER V. LIABILITY OF AN EXECUTOR OR ADMINISTRATOR. § 365. Liability in Respect of Acts of Deceased or his Own Acts. — The liability of an executor or administrator may ac- crue ( i) in respect of the acts of the deceased ; or (2) in respect of his own acts. These two subjects will be considered sepa- rately. § 366. Liability in Respect of Acts of deceased; Survival of Actions against Decedent founded in Contract. — First, as to lia- bility in respect of the acts of the deceased. We have elsewhere considered what actions survive in favor of the estate, where the decedent was plaintiff. ' A corresponding principle applies as to the survival of actions brought against the decedent chu-ing his lifetime. Accordingly, it has long been settled in our law, that causes of action which are founded in any contract, duty, or obliga- tion of the decedent, and upon which the decedent himself might have been sued during his lifetime, will survive so as to continue enforceable against his estate.^ Consequently, the executor or administrator is legally answerable, so far as the assets in his hands may enable him to respond, for debts of every description which were owing by the deceased, whether debts of record, such as judgments or recognizances ; debts due on special contract, as for rent in arrears, or on bonds, covenants, and other sealed contracts ; or debts by simple contract, such as bills and notes, and promises expressed orally or in writing.^ And usually the defences to a suit open to his decedent are open to him also.+ •i'«/ra, §277. Exrs. 1721 ; Noy, 43; Dyer, 344 b; ^Wms. Exrs. 1721 ; i Saund. 216 a; Smith r-. Chapman, 93 U. S. Supr. 41; Atkins V. Kinnan, 20 Wend. 241. But Harrison v. Vreeland, 38 N. J. L. 366. void contracts of the decedent should -t As coverture, for instance. 108 N. be disregarded. 62 Mich. 349. ('. 218. ■*Bac. Abr. E.xecutors, P. i; Vv ms. 455 § 366^ EXECUTORS AND ADMINISTRATORS. [PART IV. It is said in this connection that there is no difference be- tween a promise to pay a debt certain, and a promise to do a collateral act, which is uncertain, resting only in damages, such as a promise by the decedent to give such a fortune with his daughter, or to deliver up such a bond ; for wherever in this latter class of cases the decedent himself was liable to an action, his representative shall be liable also.' Even where the cause of action sounds in damages, as for loss of one's money or one's chattels through the negligence of the deceased, the latter being an attorney-at-law, or a common carrier, and the damages being laid as for breach of his contract, the action will survive against the representative.^ This survival of actions, founded in the decedent's contract liability, does not require any express reference in the contract itself to the contingency of death, nor in so many words to one's executors or administrators ; for the contract, if not personal in its nature, implies of itself that death shall not cut off the sur- vivor's remedies.^ And executors or administrators, being but officials commissioned to wind up the decedent's estate, that estate as of course goes first towards discharging all lawful claims and demands against the deceased which may be out- standing at his death.'' §366^. The same Subject; Sales and Bargains of the Decedent. — In case of an incomplete delivery under the sale or bargain of the decedent, his representative ought to complete the delivery and carry out the contract. 5 Liability or nonliability in such matters should, as to the decedent, follow the usual rules." ' Bac. Abr. Executors, P. 2; Cro. was issued, but before it could be served Jac. 404, 417, 571, 662; Wms. Exrs. the defendant died. Within a reason- 1722. able time after executors had proved the ^ Knights V. Quarles, 2 B. & B. 102 ; will a fresh writ was served against them Cowp. 375; Alton v. Midland R., 19 for the same cause; and it was held that C. B. .N. s. 242 ; Wms. Exrs. 799, 1722 ; the executors could not plead the stat- Wilson V. Tucker, 3 Stark. N. P. 154. ute of limitations, though the legal Cf. Miller f. Wilson, 24 Penn. St. 114; period had meantime expired. Swindell Long 7'. Morrison, 14 Ind. 595. v. Bulkeley, 18 Q. B. D. 250. ' Bradbury v. Morgan, i H. & C. 249 ; * See Part V., as to the payment of 2 Mod. 268 ; Bac. Abr. Exrs. P. i ; debts, etc., against an estate. Wms. Exrs. 1724; 3 Bulstr. 30; Wil- ' Parker z/. Barlow, 93 Ga. 700. liams t/. Burrell, i C. B. 402. A writ *See 146 Penn. St. 63. 456 CHAP, v.] LIABILITY OF EXECUTOR OR ADMINISTRATOR. § 367 § 367. The same Subject ; Exception as to Personal Contracts of the deceased. — But a distinction is here to be taken in favor of contracts of a personal nature, or such as are essentially limited in scope by one's lifetime, and other obligations. A contract to de- liver 1,000 cartridges may be fulfilled, or a note for $1,000 paid off, by one's assignees or personal representatives, notwithstanding his own death, provided assets suffice for sustaining the liability ; and such contracts are generally made upon some consideration of reciprocal advantage, which the death of either party should not ipso facto annul ; designating, furthermore, some date here- after at which the obligation shall mature, regardless of ev'ery such contingency. There are no such personal considerations involved in a contract of this sort that an assignee might not discharge, as well as the original contractor. Such an obliga- tion, profitable or unprofitable, and as for fulfilment or damages, the survivor enforces against the decedent's estate, nor does death cancel it. But where the contract was personal to the testator or intestate himself : as, for instance, to instruct an apprentice, to employ a particular servant ; being an author, to compose a certain book, or, as an experienced architect, to plan a building ; or, as a soldier, to serve in the army, or, in general, for hiring ; the case is different. Here, it may be assumed, that unless the contract expressly provides differently (as in some instances it may), death necessarily severs the relation and puts an end to the legal obligation which has, without fault of the contractor become impossible of performance. In such instances the estate of the decedent is relieved of all further liability under the contract ; ' though, for any breach of such a contract com- 'Cro. Eliz. 533; Siboni z'. Kirkman, making it matter of judicial interpreta- I M. & W. 423; Robinson z/. Davison, tion. Thus, a covenant by B. not to L. R. 6 Ex. 269 ; Smith v. Wilmington exercise a certain business, but to solicit Coal Co., 83 111. 498; Wentworth v. business regularly for A., upon a certain Cock, 10 Ad. & E. 45; Wms. Exrs. consideration, does not bind B.'s widow 1725; jK/ra, § 278; Bland z-. Umstead, as such. Cokes'. Colcroft, 2 W. Bl. 856. 23 Penn. St. 316. A contract to sup- On the other hand, one might so clearly port a parent is personal, and does not have contracted with a servant or arti- bind the representative. Slier v. Gray, san for a fixed period, that, if he died 86 N. C. 566. There may be various meantime, his representatives would be contracts of a personal nature brought bound to find employment or pay for under this rule, andz'/V^ versa, the court.*^ the remaining period at the cost of the 457 § 367 EXECUTORS AND ADMINISTRATORS. [PART IV. mitted during the decedent's lifetime, the executor or adminis- trator must of course respond out of the assets, as in other cases. Act of God preventing or terminating the performance of a personal contract, is held to excuse it ; and even sickness or disability may justify its breach during one's life.' The personal nature of a contract applies with similar force as between those who have occupied the relation of master and servant, or principal and agent. One's clerk or agent is dis- charged, presumabl}', b)- the employer's death ; and where the employment was by a firm, the death of one of the partners, while dissolving the firm, dissolves likewise the relation with the person employed, even though a stated term of employment had not yet run out." The authority of an agent is commonly re- voked by the death of his principal ; and consequently the agent cannot commonly sue the executor or administrator for services performed after the principal's death, though this were upon a contract made for a fixed period with the decedent himself ; for, upon notice of death, he should cease performance or else get a new personal authority elsewhere. ^ The rule of apportionment, custom, statute, or express contract, all seek to mitigate, how- ever, the harsh consequence of such a doctrine.'* And, con- versely, the death of the agent, servant, or person hired or employed, operates similarly against the principal, master, or employer, where the law is left to operate naturally.' But where the contract between the parties was expressed in writing, the language, scope, and intendment of the instrument must be considered in instances like the foregoing. Thus, if one covenants personally in a lease, his death may be held to estate. The line of distinction some- sentative's liability for advances made times runs very closely. Cf. Wentworth after the decedent's death on a continu- 7\ Cock, 10 Ad. & E. 45, where a con- ing guaranty, Bradbury t. Morgan, i H. tract to supply materials for a certain & C. 249; Wms. Exrs. 1770. number of years was treated as obliga- ' Schoul. Dom. Rel. § 474. tory on the representatives of the de- ' Tasker 7: Shepherd, 6 H. & N. 575. cea.sed contractor, and therefore as en- ' Campanari i/. Woodburn, 15 C. B. titling them to the profits accruing from 400; Wms. Exrs. 1727. a proper fulfilment on their part, with * Schoul. Dom. Rel. § 473. Dickenson v. Callahan, 19 Penn. St. ^ lb. See Powell z/. Graham, 7 Taunt. 227, where the contrary interpretation 580. was given. And cf. a.s to the repre- 45« CHAP. \'.J LIABILITY OF EXECUTOR <)U A DMIN LSTRATOK. § 368 discharge his estate and his personal representatives from all obligation further than performing the covenant during his own life. Hut, as leases under seal commonly run, this would be quite exceptional ; and covenants usually bind one's executors, and administrators, and assigns, during the full period, in express terms.' Whether or not a contract is strictly personal depends upon the intention of the parties as gathered from their acts or writings ; - and presumption favors the binding of one's es- tate.^ § 368- The same Subject ; Distinction between Gifts and Con- tracts. — So, too, an obligation enforceable after one's death against his estate, must have been founded in a legal contract consideration. Gifts to take effect after death stand upon the footing of legacies or gifts causa mortis, and if valid at all, must be referred to the peculiar rules which apply thereto."* As a court of equity will not inter vivos compel any one to complete his gift, neither will it compel one's executor or administrator to complete it on his death. Hence, an act of pure bounty, not fully performed by the decedent during his lifetime, cannot be specifically enforced against the estate or its representatives And hence, too, although a promise by the decedent of recom- pense for services rendered may be sued upon, even though the promised recompense was to have been by way of a legacy which the decedent did not in fact leave to the plaintiff, no mere ex- pectation of a legacy, gift or gratuity, can furnish ground for ' Touchst. 178, 482 ; § 375 ; Wms. = Hooper v. Goodwin, i Swanst. 485 ; Exrs. 1726; Williams 57. Burrell, I C. B. Callaghan v. Callaghan, SCI. & Fin. 402. So a covenant to maintain an ap- 374 ; Dillon v. Coppin, 4 My. & Cr. 637. prentice is held to continue in force And see Shurtleff 7,'. Francis, 118 Mass. after the master's death, while a cove- 154; Stone v. Gerrish, i Allen, 175; nant to instrtut him does not. Wms. Schoul. Dom. Rel. 3d ed. § 274; Wms. Exrs. 1765; I Salk. 66. Exrs. 1768, and Perkins's note. A prom- ^ Smith V. Preston, 170 111. 179; ise that one's representative shall pay A. Oliver v. Rumford Works, 109 U. S. ^20, in consideration that A. remains 81. in his service till his death, is enforce- ^ Chamberlain 7'. Dunlop, 126 N. Y. abl© within the rule of the text. I'owell 45. 52. V. Graham, 7 Taunt. 580. Cf. Cro. •• See Part V. as to legacies; sicpra, Eliz. 382; Wms. Exrs. 1728. See also § 219. Bell 7'. Hewitt, 24 Ind. 280. 459 § 370 EXECUTORS AND ADMINISTRATORS. [PART IV. bringing a suit against the estate. Nor can the representative be sued upon any mere writing, though under seal, which pin- ports to make a voluntary gift after one's decease, out of his estate ; for this would contravene the policy of our statutes of wills.' In other words any contract unexecuted must have a sufficient legal consideration in order that one may sue upon it.^ § 369- The same Subject; Form of Action sometimes Material in this Connection ; Law or Equity. — The form of action appears sometimes material in connection with suits against the repre- sentative touching the obligation of the decedent. But modern practice, both in England and the United States, generally abolishes a distinction formerly taken as to " wager of law," so that the action of debt on simple contract is maintainable, as well whether the contract was made by the decedent or by his per- sonal representative. 3 To revive an action against executor or administrator the requirements of the local statute must be fol- lowed."* Specific performance in equity will rarely lie on the unexecuted contracts of a decedent relating to personalty, since the remedy at law for damages is usually adequate and certain. ' § 370. Survival of Actions against Deceased founded in Tort; not permitted at Common Law. — Where, on the Other hand, the cause of action against the decedent was founded in tort, and not contract, it was the common-law rule that the right of ac- ' Baxter v. Gray, 3 M. & G. 771 ; Le Mississippi code cited 62 Miss. 19, as Sage 7'. Coussmaker, i Esp. 188; Nield to reviving a suit by j«'.ya. for a general V. Smith, 14 Yes. 491. final judgment. New York code per- ' As to gifts generally, see 2 Schoul. mits a continuance and revival of an Pers. Prop. §§ 54-125. action which legally survives even ^ \Vms. Exrs. 1930, 193 1 ; 9 Co. 87 b; though both plaintiff and defendant die. Riddell v. Sutton, 5 Bing. 206 ; stat. 3 Ilolsman z;. St. John, 90 N.Y. 461. The &4 Wm. IV. c. 42. Other actions were question of assets or no assets cannot substituted at common law in the stead be raised where a representative asks to of those which did not survive under the be made the party defendant. 91 N. C. rule of the text. Cowp. 375, by Lord 495. Mansfield. And see Thompson v. ' Beekman v. Cottrell, 51 N. J. Eq. French, 10 Yerg. 452. 337. * Segars v. Segars, 76 Me. 96. See 460 CHAP, v.] LIABILITY OF EXECUTOR OR ADMINISTRATOR. § 370 tion to recover damages died with the person who committed the wrong. Consequently, wherever an injury had been done to the person or property of another for which damages only could be recovered, as for one's wilful misconduct or negligence, the death of the wrong-doer before judgment precluded legal redress. Thus, one's executor or administrator could not be sued for false imprisonment, assault and battery, slander, libel, malicious prosecution, or any other personal injury inflicted by the decedent, whether mental or physical.' Nor for trespass, trover, or deceit ; nor for causing damage by a nuisance, divert- ing a water-course, or obstructing lights.^ The right of action for default and embezzlement, in trusts public or private, died upon the same principle with the offender.^ So, if the executor or administrator himself committed waste and died, it was treated as a personal tort which died with his own person, saving his estate harmless ; ■♦ though equity pre- scribed a different rule ; 5 while, upon one's official bond, more- over, suit might perhaps lie as upon a contract liability.'' Liability on a penal statute or under a subpoena dies with the person at common law.^ Also, the liability of a marshal, sher- iff, or jailer, for permitting an escape, or for other malfea.sance or neglect of himself or his deputies.** Also liability to prose- cution for violating some municipal ordinance.^ But if judgment had been recovered against the person com- ' Wms. Exrs. 1728; i Saund. 216 a; tees and their representatives with the Waters z'. Nettleton, 5 Cush. 544 ; More consequences of a breach of trust. lb. V. Bennett, 65 Barb. 338; 87 N. C. 351. *> Supra, §366. ^ Perry 7'. Wilson, 7 Mass. 395; Haw- ''Wms. Exrs. 1728; Wentw. Off. Ex. kins 7'. Glass, i Bibb, 246; Nicholson 255, 14th ed. ; Schreiber v. Sharpless, V. Elton, 13 S. & R. 415 ; Jarvis v. Rog- 1 10 U. S. 76. ers, 15 Mass. 398; Wms. Exrs. 1728. " Ld. Raym. 973; Hambly e/. Trott, i As between a claim of damages for Cowp. 375 ; W^ms. Exrs. 1729; Martin deceitful misrepresentation inducing a v. Bradley, i Caines, 124; People ?'. purchase, and a claim to rescind the Gibbs, 9 Wend. 29. See Lynn v. Sisk, purchase, see Duncan Re, (1899) i 9 B. Monr. 135. Ch. 387. 9 Carrollton v. Rhomberg, 78 Mo. 'Franklin z/. Low, i Johns. 396. 547; §§279-283; Diversey v. Smith, '*3 Leon. 241; i Ventr. 292; Wms. 103 111. 378. Malpractice suits do not Exrs. 1729. survive the defendant. Jenkins v. ' Price z*. Morgan, 2 Chanc. Cas. 217 ; French, 58 N. H. 532 ; Boorz'. Lowrey, Wms. Exrs. 1739. Equity charges trus- 103 Ind. 468. Nor an action for breach 461 § 372 EXECUTORS AND ADMINISTRATORS. [PART IV. mitting the wrong, during his Ufe, the judgment debt would have bound the estate ; for as to the foundation of that judg- ment, whether in a cause of action which survives or not, there is no essential difference ; the judgment itself creating a new and distinct obligation of the contract kind.' §^71. The same Subject; whether Replevin can be maintained against the Representative. — In replevin, if the plaintiff died, the cause of action appears to have survived at the common law ; but, if the defendant died, the right of action against him died also ; so that, although the personal representatives of a party from whom goods or chattels had been tortiously taken in his lifetime might bring replevin, no such action could be maintained against the personal representatives of one who, in his lifetime, had tortiously possessed himself of goods, unless the property came into the possession of the personal representatives, and they refused to restore it.^ § 372. The same Subject; whether other Remedies might be applied because of the Tort. — While actions declaring as for a tort committed by the defendant were thus defeated or abated by such party's death, other remedies against his estate might sometimes avail for the injured person's redress, provided the form of declaration were different. As, perhaps, in bringing detinue to recover chattels, in specie ; ^ or where the form of of promise of marriage except for spe- ' Wms. Exrs. 1740; Dyer, 322 a; cial damage to property. Finlay 7/. Chir- supra, § 366. ney, 20 Q. B. D. 494; Chase z/. Fitz, -In replevin, the plaintiff's ground 132 Mass. 359. Divorce suits abate by of action is his property, eitlier general a defendant's death. McCurley t'. Mc- or special, and a tortious violation of Curley, 60 Md. 185. Also an action his right of property by the defendant, against a trustee or an officer of a cor- Parsons, C. J., in Mellen v. Baldwin, 4 poration to recover a statute penalty. Mass. 481 ; Lahey v. Brady, i Daly, Stokes 7'. Stickney, 96 N. Y. 323; 443; Potter z/. Van Vranken, 36 N. V. Brackett ;;■. Griswold, 103 N. V. 425. 619, 627,/^r Davies, C. J. Wms. Exrs. Also an action for enticing away a ser- 1730, appears to state this point differ- vant. Huff v. Watkin.s, 20 S. C. 477. ently. Also action against a bank officer for 'Wms. Exrs. 1730; Le Mason v. negligent mismanagement. 23 Blatch. Dixon, W. Jones, 173; 3 Dev. L. 303; 457. The death of a lunatic abates a i Leigh, 86. Detinue, unlike replevin, suit against him. 80 V'a. 873. is for detaining unlawfully rather than 462 CHAP. V.j LIABILITY OF EXECUTOR OK ADMINISTRATOR. v^ 373 action was ex contractu ; '' and, generally, if the wrongful act might be laid to the executor or administrator himself, or else, waiving the tort, an action might be brought as upon an im- plied contract, or for money had and received.- As in various other instances, the common law, while insisting upon a legal maxim which, rigidly applied, might work injustice, favored arti- fice and the dexterous application of forms for correcting the worst mischief ; so that its courts might render a righteous judgment while maintaining the severe aspect. § 373- Modern Statutes enlarge the Survival of Actions against Decedent. — As, however, with actions on behalf of a decedent's estate,^ so where the decedent was defendant, mod- ern legislation, both in England and the United States, favors an enlargement of the causes where survival shall be allowed ; and often, too, by the same enactment. Thus, under the Eng- lish Stat. 3 & 4 Wm. IV. c. 42, an action of trespass is main- tainable against the executor or administrator of any person deceased, for an injury to property, real or personal, committed within six months before his death ; provided the action be brought not later than six months after the representative shall have taken administration. ^ And in many American States the survival of actions for torts of a decedent is still more widely extended, so as not only to embrace causes grounded in an in- jury to one's person or character, but to permit of replevin and various other forms of action without particular limitation as to the time when the offence was committed. ^ But, whether di- tortiously acquiring. But see Jones zj. Gilford, Cro. Car. 539 ; Wms. Exrs. Littlefield, 3 Yerg. 133, to the effect 1730, 1731 ; United States z/. Daniel, 6 that detinue cannot revive as for an act How. (U. S.) 11. In general, as to committed by the decedent himself. waiving the tort and all special damages, ' See supra, § 366. As to suing for and suing as for the proceeds, etc., see breach of promise, see Shuler v. Mill- i Chitty PI. (i6th Am. ed.) 112, Per- saps, 71 N. C. 297; 2 Chitty Contr. kins's note, (nth Am. ed.) 1443 ; § 370, note. ^ Supra, § 282. ^As in assumpsit, i Cowp. 375; '•Wms. Exrs. 1734; Powell z^. Rees, Collen V. Wright, 7 El. & Bl. 647. Or 7 Ad. & El. 426. action for use and occupation. lb. = Deceit, malpractice, etc., are thus in .\nd see, as to money for which a sher- some States made a good cause of ac- iff was liable to account, Perkinson v. tion notwithstanding the offender's 463 § 374 EXECUTORS AND ADMINISTRATORS. [PART IV. rectly or b}' implication, such statutes appear to conform to the general policy which accords to executors and administrators, not themselves in default, a special and brief period of limita- tions, in order that they may settle up the estate expeditiously and upon a full knowledge of the claims for which officially they shall be held answerable." A cause of action for injury to propcrt)' rights may thus stand on a good footing, while that for injury to the person dies with the wrong-doer. § 374- Survival of Actions for Rent or Damage to Real Estate. — Rent due from a decedent may be recovered, whether the remed}' be by action for use and occupation, or, perhaps (in case of a written lease), as under the stipulations of a sealed contract.^ But recovery in ejectment raised technical difficul- ties, which have now become of little practical consequence.^ At the common law, an action of trespass for mesne profits while one was wrongfully in possession could not be brought against his executor or administrator ; ^ though a bill in equity for an account of mesne profits was under special circumstances sustained. 5 death. See the special causes (embiac- for illegal arrest or false imprisonment ing bodily injuries) enumerated in Mass. do not include actions for malicious Pub. Stats, c. 165, § I ; Nettleton v. prosecution. Clark v. Carroll, 59 Md. Dinehart, 5 Cush. 543. And see, also, Shafer v. Grimes, 23 Iowa, 550; i Chitty PI. 58, note; supra, § 282; Haight 7'. Hoyt, 19 N. Y. 464. The reader is referred to the .statutes of the respective States on this subject. Damages actually sustained, and not 180. But a cause of action for con- spiracy to cheat and defraud may sur- vive as affecting property rights. Brack- ett V, Griswold, 103 N. Y. 425. ' See Part V., c. i, as to payment of debts. - Turner v. Cameron's Co., 5 Ex. exemplary or vindictive damages may 932; Wms. Exrs. 1731. be recovered. Ma.ss. Pub. Stats, c. 166. ^ Wms. Exrs. 1731 ; Pulteney v. War- As to the form of judgment in replevin, ren, 6 Yes. 86 ; Birch v. Wright, i T. see ib. All actions which would have R. 378; Jones v. Carter, 15 M. & W. survived if commenced by or against 718. An action of ejectment abates at the original party in his lifetime may be common law on the death of the sole commenced and prosecuted by and defendant. Farrall v. Shea, 66 Wis. against his executors and admini.strat- 561. See Part VI. ors. Mass. Pub. Stats, c. 166, §i; 6 ^Pulteney v. Warren, 6 Yes. 86; Jones, 60. Action for infringement of Wms. E.xrs. 1731 ; Harker 7'. Whitaker, a patent survives. Atterbury v. Gill, 2 5 Watts, 474. Flip. 239; 28 Fed. R. 460. Actions ' Ib. ; Caton f. Coles, L. R. i Eq. 581. 464 CHAP. \'.] LIABILITY OF EXECUTOR OK ADMINISTRATOR. § 375 Waste, mureover, did not lie against the representative at the common law ; this being a tort which died with the person who committed it. Yet, upon the decedent's tort, as for instance in cutting down trees or digging coal, there might accrue the less remunerative right of action against the representative, as for money received by selHng it.' Or a bill in equity might lie for account.- So, if a man committed equitable waste and died, as where a tenant for life abused his power by cutting down orna- mental trees, equity asserted jurisdiction to make his personal i-epresentatives accountable for the produce thereof.^ The executors and administrators of a tenant for years, how- ever, are punishable for waste committed by themselves while in ])Ossession of the land, as other persons arc* § 375- Liability of Representative on Covenants of his Dece- dent; Covenants under Lease, etc. — Wherever the decedent was bound by a covenant whose performance was not personal to himself and terminable by his death, his executor or administra- tor shall also be bound by it, even though not named in the deed. And whether the covenant was broken during the life of the decedent or after, so long as it was a continuing and express c()\enant, and the appropriate rule of limitations leaves the es- tate still unsettled in the representative's hands, the latter is answerable in damages for its breach. 5 For the benefits of a covenant and its burdens are transmitted to the representative together ; not, however, where it is clear that the covenant ap- '2 Saund. 252; Cowp. 376; Wms. ^2 Mod. 326; Wells v. Betts, 10 Exrs. 1732; Powell v. Rees, 7 Ad. & East, 316; Hovey £». Newton, 11 Pick. El. 426; Moore v. Townshend, 33 N. J. 421 ; Wms. Exrs. 1750; Taylor Landl. & 284. The foundation of this action ap- Ten. § 669. Thus, damages for breach pears to be the benefit the personal of a covenant for quiet enjoyment un- estate of the decedent has derived in der a lease accruing both before and consequence of the waste. lb. ; Taylor after the death of the covenantor may Landl. & Ten. § 689. be recovered in one action against his ^ I P. Wms. 406. personal representative. 11 Pick. 421. ' Lansdowne v. Lansdowne, i Madd. The rule is stated differently as to mere 116; Wms. Exrs. 1732, 1733. covenants in law, not express. Wms. " Taylor Landl. & Ten. § 689. For Exrs. 1752. statute changes on this point see Taylor Landl. & Ten. § 689. 30 465 § 375 EXECUTORS AND ADMINISTRATORS. [PART IV. plied only to the covenantor personally and was limited to his own lifetime.' Upon all the covenants by the decedent broken during his lifetime, even though they were personal to the dece- dent in liability, the personal representative is, of course, answer- able for the breach out of the assets.^ Although a covenant in a lease should be of a nature to run with the land, so as to make the assignee thereof liable for any breach committed after its assignment, and although the lessor has accepted the assignee as his tenant, yet a concurrent liabil- ity on the covenant may, nevertheless, continue, so as to charge the original lessee and his executor or administrator,^ And hence, the personal representative who sells the lease may well require of the purchaser a covenant for indemnity against the payment of rent and performance of covenants ; though, inde- pendently thereof, he will have his remedies over against his assignee to that intent.^ If in possession of premises under a covenant, the executor or administrator may be sued in covenant as assignee, for he is assignee in law of the interest of the covenantor. s But, for a breach committed in the time of the decedent, the judgment must be out of his assets, and the representative should be sued in that character.'' Leases pass to one's executor or administra- tor as chattels real or personal assets, with all incidental bene- fits and burdens ; and the rule is general, that an assignment of the lease will not, of itself, affect the liability of the lessee or his personal representative to the lessor upon the covenants therein contained ; " though an assignment or surrender with the lessor's consent, and duly accepted by him, may practically ' Coffin 7'. Talman, 8 N. Y. 465 ; Tay- over, though to a pauper. Rowley v. lor Landl. & Ten. § 460. As, f.j,^., a Adams, 4 My. & Cr. 534. covenant to repair, lb. ■• Wilkins v. Fry, i Meriv. 265 ; Moule == Wentw. Off. Ex. 251 ; Wms. Exrs. ;■. Garrett, L. R. 5 Ex. 132 ; Wms. Exrs. 1750. 1752- 3 Wms. Exrs. 1750; Taylor Landl. & 'i Ld. Raym. 453,- Montague v. Ten. §669; Greenleaf v. Allen, 127 Smith, 13 Mass. 405 ; Taylor Landl. & Mass. 248. Aliter, where the decedent Ten. § 669; 16 Hun, 177. himself was assignee of an original les- * lb. see; for here all future liability may be ^ Dwight ta Mudge, 12 Gray, 23. discharged if the representative assigns 466 CHAP, v.] LIABILITY OF EXECUTOR OR ADMINISTRATOR. § 376 terminate the original lessee's responsibility as by mutual con- sent,' § 376. Liability of the Personal Representative for Rent. — The personal representative's liability for rent follows, so far as may be, the foregoing doctrines. For a promise under seal to pay rent constitutes a covenant, and justifies for its breach an action of covenant ; ^ though there may be a tenancy without a lease, and of a more precarious nature. Assignment of a lease by the lessee during his life, or by his personal representative after his death, cannot of itself avail to clear the estate of responsibility for rent ; though an assignment or underlease, not contrary to e.xpress restrictions of the original lease, may replenish the as- sets in this respect.^ But a surrender of the lease by the exec- utor or administrator being absolutely accepted by the lessor, without any reservation of a right to sue the representative, or to prove against the decedent's estate in case of any possible loss occasioned by letting the premises at a reduced rent, the lease terminates, and all liability upon the covenants thereof, and no further rent need be paid.^ As respects a liability for rent more generally, the exec- utor or administrator is chargeable with rent in arrear at the time of his decedent's death. 5 The action of debt lay at common law for the rent of lands demised, whether for life or for years or at will ; the right to sue being founded either on the contract implied from privity of estate or on the express contract of demise. But the right of action on the contract thus implied is transferred with the estate ; whereas the lessee under an express contract cannot discharge himself from liability by his own act.^' ' Deane ?■. Caldwell, 127 Mass. 242. action against his personal representa See as to assigning a lease, etc., supra, tive. Greenleaf z\ Allen, 127 Mass. 248. §353- The lessor's executor, under a ^Taylor Landl. & Ten. §§402-413; lease, still in force, which covenants to Smith, ib. 11 5-1 19; i Schoul. Pers. rebuild in case of fire, is bound to re- Prop. § 35 ; 3 Mod. 325; supra, § 353. build, if the premises are burned after * Randall v. Rich, 1 1 Mass. 494 ; the lessor's death. Chamberlain v. Dean 7'. Caldwell, 127 Mass. 242. Dunlop, 126 N. Y. 45. 5 Shepherd Touch. 178, 483; Taylor ^ Damages for breaches of a covenant Landl. & Ten. § 459. to pay rent, before and after the death * Rowland v. Coffin, 12 Pick. 105. of the lessee, may be recovered in one Debt against the representative, whether 467 ^37^ EXECUTORS AND ADMINISTRATORS. [PART IV. Hence, as long as the lease continues, and as far as he has assets, an executor is held liable, in debt as well as covenant, for accruing rent, and an assignment of the term by himself or his decedent affords, of itself, no immunity.' If, however, after such assignment of the lease, the lessor has accepted rent from the assignee, and recognizes the latter as his own tenant, debt no longer lies against the lessee, or his executor or administrator, as to rent subsequently accruing ; though on an express stipula- tion for the payment of rent during the continuance of the lease, an action of covenant may, as we have seen, be brought.'' Executors and administrators, though considered assignees in law of a term demised, may waive or incur an individual liability by their own acts. Thus, if the executor of a tenant from year to year omits to terminate the tenancy, and continues to occupy the premises from year to year, he becomes liable personally, as well as in his representative capacity, for the rent accruing during his occupancy.^ Executors and administrators may not, however, be so charged with equal facility ; for, it appears, that while an executor will be considered assignee of a term demised to his testator from the date of probate and qualification, an ad- ministrator only assumes such liabilities when he takes possession of the demised premises, or by other positive acts evinces his intention to become assignee in effect.' But the personal rep- to be brought as for (/(?/v/ and detinct 297 ; Taylor Landl. & Ten. § 459. For, or for detinet only, see Taylor Landl. if the representative continues to oc- & Ten. §626. cupy, and the landlord abstains from '3 Mod. 325; Wms. Exrs. 1753, giving notice to quit, an implied promise 1759; 2 Saund. 181; I Lev. 127; to abide by the original terms is infer- Hutchings jy. Bank, 91 Va. 68. As to able. Wms. Exrs. 1761. the representative's liability for a ground * Pugsley v. Aikin, 11 N. V. 494; rent, of. Van Rensselaer v. l^latner, 2 Inches z^. Dickinson, 2 Allen, 71. Even Johns. Cas. 17; Quain's Appeal, 22 an unqualified person may by his entry Penn. St. 510. If the lease be as.signed, incur the responsibility of an executor the landlord, under such circumstances, de son tort. Williams v. Ileales, L. R. may sue the lessee or a.ssignee, or both i C. P. 177; supra, Pt. II., c. 8. Tin- jointly, at his option. Taylor Landl. & dal, C. J., in WoUaston v. Hakewill, 3 Ten. § 620. M. & G. 297, said, that, as to the argu- ^ Taylor Landl. & Ten. §620; Wms- ment that the executor, by being charged Exrs. 1752; Pitcher 7\ Tovey, } Mod. generally as assignee, becomes thereby 71. liable de bonis propriis, the answer is ^Wollaston z\ Hakewill, 3 .M. & <]. that he may, by proper pleading, dis- 468 CHAP, v.] LIABILITY OF EXECUTOR OR ADMINISTRATOR. § T^'jd resentative cannot be charged personally as assignee, where he waives or surrenders the term. And this he should do in pru- dence, if the tenancy is unprofitable or threatens to involve him beyond the assets at his disposal. For, although an executor or administrator may be liable to respond to the covenants of a lease from the assets, he may at any time discharge himself from individual liability, by himself assigning over, if the landlord will not accept his surrender of the premises ; since like every other assignee, he is only liable personally for breaches of covenant happening during his own time, and not for those of his pred- ecessors in enjoyment of the estate.' But, if he underlets, the occupation of the under-tenant is his occupation, and he becomes personally liable as assignee of the lease.^ charge himself from personal liability by alleging that he is not otherwise as- signee than by being executor of the lessee, and that he has never entered or taken possession of the demised prem- ises ; and from all liability as executor, by alleging that the term is of no value, and that he has no assets. In other words, he should not take issue on the point whether he is assignee or not, for evidence that he is executor proves the affirmative. And see Green v. Listo- well, 2 Ir. Law Rep. 384 ; Kearsley v. 0.\ley, 2 H. & C. 896. ' Remnant v. Bremridge, 8 Taunt. 191; Wms. Exrs.1758; I Kay & J. 575. Assignm.ent over, even to a pauper, will discharge him as assignee; and in some cases, if the landlord will not accept a surrender of the lease, it is the repre- sentative's duty to thus prudently rid himself of the responsibility. I B. & P. 21 ; 4 My. & Cr. 1534. ' Bull V. Sibbs, 8 T. R. 327 ; Carter V. Hammett, 18 Barb. 608; Taylor Landl. & Ten. § 461. The estate of the lessee remains liable for rent in due course of administration if the landlord refuses to enter. Martin v. Black, 9 Paige, 641 ; Copeland v. Stephens, i B. & A. 593. As to declaring against executor or administrator as the as- signee, see Taylor Landl. & Ten. § 461 ; Wms. Exrs. 1756. After entry the rep- resentative is charged for a breach either in his representative character or as as- signee, lb. The representative's per- sonal liability for rent shall not exceed the value of the demised premises ; though it is otherwise with respect of suing him as assignee on a covenant to repair, i Bing. N. C. 89 ; Taylor Landl. & Ten. §461; Sleake v. Newman, 12 C. B. N. s. 116. The rules and forms of pleading in such actions were quite technical and formal. Modern statute provisions are found relating to this subject. Thus, in English practice, an executor may sell the leaseholds and assign them to the purchaser, and after- wards, of his own authority, distribute the assets without making provisions for future breach of covenant in the lease, and without being subject to any further liability. Dobson v. Samuel, i Dr. & Sm. 575 ; Stat. 22 & 23 Vict. c. 35, § 27. Specitic performance on a covenant for renewal has been enforced again.^^t an executor who has entered and ad- mitted assets. Stephens v. Hotham, 1 Kay & J. 571. But see Philips v. Everard, 5 Sim. 102. 469 § 37"*^ KXFXUTORS AXn ADMINISTRATORS. [PART IV. § 377- Liability of Representative on Covenants concerning Real Estate, etc. — It is laid down that if the purchaser of real estate dies without having paid down the purchase-money, his heir-at-law or devisee will be entitled to have the estate paid for by the executor or administrator, provided the personal assets suffice.' And should the personal assets prove insufficient in such cases, so that the purchase cannot be carried out, the heir or devisee, as it appears, has an equity to require what personal assets may be obtained to be laid out in land for his benefit ; ^ not, however, we apprehend, to the injury of creditors of the decedent, but only so far as to establish him, where he was right- fully entitled to stand, with respect to the representative him- self and the character of the decedent's property. If the pur- chase contract, on the other hand, was not, or should not have been completed, no equity attaches for the purpose of effecting a conversion of the property.^ The rights, as between a per- sonal representative and the heir of a deceased vendor, should be correspondingly treated.'' § 37^- Liability of Representative on Joint or Several, etc.. Con- tracts of Decedent. — At common law, where there is a joint ob- ligation or contract on one part, and one of the joint contractors or obligors dies, death puts an end to his liability, leaving the sur- vivor or survivors thereto alone suable. ^ But, on the other hand, where the contract or obligation was several, or joint and several, the personal representative of a deceased contractor or obligor may be sued at law in a separate action ; not, however, jointly with the survivor, because the latter is liable, as an individual, but the former ' Wm.s. Exrs. 1762; 1 Sugd. V. & P. ^ Wms. Exrs. 1741; i Sid. 238 ; 4 180; Whittaker ?'. Whittaker, 4 Bro. Mod. 315; Godson 71. Good, 6 Taunt. C. C. 31 ; Broome 7'. Monck. 10 Ves. 594; i Chitty PI. (i6th Am. ed.) 58. 597. On the death of one of two joint ^ lb. obligees the right of action survives as 3 Broome v. Monck, 10 Ves. 597; to the other. Hedderly ?a Downs, 31 Curre v. Bowyer, 5 Beav. 6. The court Minn. 183 ; 78 Ala. 162. The survivor cannot speculate upon what the de- of two or more parties, plaintiff or de- ceased party would or would not have fendant, has general consideration, done. lb. Moses z'. Wooster, 115 U. S. 285. * Wms. E.xrs. 1763; i Sugd. V. & P. 180. 470 CHAP, v.] LIABILITY OF EXECUTOR OK ADMINISTRATOR. § 379 only so far as he may have assets ; ' nor jointly with the repre- sentative of another deceased obligor or contractor, because each representative is answerable for assets of his own decedent estate, neither more nor less, according as they may suffice.^ The doctrine of survivorship, with its unequal rights and lia- biUties, is in modern times treated with disfavor ; and local stat- utes are found whose scope is to make representatives liable to suit, on the assumption that the contract or obligation must have been not strictly a joint one, but joint and several, by intend- ment. ^ Equity affords reUef correspondingly, and asserts that contracts joint in form may, nevertheless, in a correct inter- pretation of what the parties intended be taken to be joint and several,'' though not so as to do violence to a mutual intention plainly inconsistent with that presumption.s §379- Liability of Representative of Deceased Partner. — A partnership contract being joint in law, the rule of our preceding section applies to the case of a partnership debt ; subject, however, to like statute qualifications,^ and similar remedies in equity. Thus it is well settled that partners may be sued iit equity on the as- sumption that the partnership debt is both joint and several ; con- formably to which theory the creditor may not only reach assets of a deceased partner in his representative's hands, should the sur- viving partner fail to satisfy his claim in full, but, as the later decisions hold, may pursue the assets of a deceased partner, as matter of preference, leaving the latter's representatives and the surviving partner to adjust their respective equities together.^ ■ May t'. Woodward, i Freem. 248 ; ' Liverpool Bank v. Walker, 4 De G. 1 Chitty PI. 58. ' & J. 24 ; Vulliamy v. Noble. 3 Meriv. ^Grymest/. Pendleton, 4 Call. 130. 619; 4 My. & Cr. 109; Devaynes z: ^See Rice Appellant, 7 Allen, 115; Noble, 2 Russ. & My. 495 ; Wilkinson 124 Mass. 219; Wms. Exrs. 1740, Per- v. Henderson, i My. & R. 582. See kins"s note; Masten v. Blackwell, 15 upon this subject more fully, Collyer N. Y. Supr. 313. Partn. §§ 576-580 ; Story Partn. § 362 ; ■•Wms. Exrs. 1746; Primrose v. i Story Eq. Jur. §676; Wms. Exrs. Bromley, i Atk. 90. And see Thorpe 1743, 1744, and cases cited. The ad- V. Jackson, 2 Y. & Coll. 533. justment or winding-up of partnership ^ Sumner v. Powell, 2 Meriv. 30 ; affairs belongs to equity courts. As to Rawstone z/. Parr, 3 Russ. 424. \\-inding up a trade with the surviving " Sampson z/. Shaw, loi Mass. 145. partner, see si(/>ra, §§325, 326. If as- ^ 3S0 KXECITOKS VNP VOMlNlSrKArOKS. [PAKl IV. § 3Sc>. Liability of Represeutati%'e of Deceased Stockholder. — The personal liability of stockholders is usually dorinevi speci- fically by the general or special act under which that corpora- tion was created. A personal liability beyond the value of one's own shares is not usually incurred, however, after the capital stock has been paid in ; and whether the personal representa- tive of a deceased shareholder should suffer stock to be lost to the estate, rather than pay assessments thereon, or assume cor- porate debts, is mainly a question of due care and good faith.' But, as to enforcing a personal liability on the part of the de- cedent, the doctrine of the English equity courts is, that the executor or administrator of a deceased shareholder succeeds presumably to the full liability, as well as to the rights of the latter, such as there may be ; and even that for liabilities in- curred in respect of the shares since the death of the share- holder, the representative must respond out of the assets.' The American doctrine, so far as developed, pursues apparently the same doctrine, to at least the extent that executors and adminis- trators of deceased shareholders become liable prima facie in their representative capacity, as for other debts of the de- ceased.J Hence, assets of the estate of the deceased shareholder may be reached in equity in order to enforce contribution among shareholders for losses sustained by the company ; and this af- ter a procedure analogous to that which obtains in adjusting partnership profits and losses.* But. even where stockholders are made liable by the incorporating act beyond the \-alue of their sets of a partnership in possession of ^SMfm, §318. one of the partners at his death are sold * Eaird's Case, L. R. 5 Ch. 7^5, and by his executor or administrator for cases cited. The charter or act of in- less than their value, and the amount corporation must be examined 10 see received is accounted for as assets of the whether the habiUty is made less, estate, the surNJving partners on a bill *Gre\v r. Breed. 10 Met. 679, nwr/ru, in equity against the executor can only KipJey t*. Sampson, 10 Kck. 371 ; New receive their proportion. Bradley r. England Bank t. Stockholders, 6 R. 1. Brigham. 144 Mass. iSi. A sur\-iYing 154. partner has no such claim against the * Cases, s-tt/-m : Bulmer's Cise, }} estate as can be proved or barret! until Beav. 435. the partnership is wound up. Blakely V. Smock. 96 Wis. 6u. CHAP, v.] LIABILITY OF EXECUTOR OK ADMINISTKATOK. § 38 I respective shares, for debts of the corporation, it is not unfre- quently provided that the execution shall issue against the cor- poration, and be returned unsatisfied before shareholders can be thus held jointly and severally liable for the debts ; ' and corporate debts are usually to be enforced directly against the corporation, whose capital stock, represented by the certificates of shares, and invested in the corporate business, is the proper and primary fund from which all such liabilities should be made good. It is held in England that the personal representative who accepts new shares of a corjDoration should be put on the books in his individual and not his representative character, and be held personally liable in respect of them.^ § 381. Exoneration of Personal Property specifically bequeathed. — Where, by the terms of a will, chattels are specifically be- queathed, such as a diamond ring, a silver cup, or a stock of wines, it is to be presumed that the intention was to bequeath them by an unencumbered title ; and hence, if at the testator's death the ring or cup be found pawned, or the wines prove to be on storage or in some government warehouse liable to cus- toms duties, the executor should redeem or exonerate the thing at the expense of the estate, and deliver it, free of charge, to the legatee.^ But the just intention of the testator, as manifested by the will, should prevail in all such cases where this presumption is overcome. Nor is the thing specifically bequeathed, unless the will so prescribes, to be put, at the cost of the estate, in better condition than the testator left it ; but the legatee must take it for better or worse, just as the testator might have handed it over on his death. Stock specifically bequeathed is bequeathed 'Cutright v. Stanford, 81 111. 240. are not the same in England as in most And see Thompson on Stockholders, of the United States. See J■^<;^;•(^, § 223. §§ 250-254. 3 Knight v. Davis, 3 My. & K. 558 ; 'Leeds Banking Co., /?c% L. R. i Ch. Stewart v. Denton, 4 Dougl. 219. So, 231. Turner, L. J., put the case as sim- too, we may suppose, if the thing speci- ilar to that of an executor's carrying on fically bequeathed had been placed on atrade with assets. But the niles as to storage by the decedent or left to be permitting a trust investment in stock mended. 473 § 3^2 EXECUTORS AND ADMINISTRATORS. [fART IV. as with a clear title ; but so as to relieve the estate, neverthe- less, from the whole burden of further assessments, as well as to deprive it of the benefit of subsequent dividends.' For, the rule is, that the bequest is taken by the legatee with all the in- cidental advantages and disadvantages of dominion, unless the will should, as it may, speak differently.^ If the thing had ceased to exist at the testator's death, or if no title could, under the circumstances, devolve upon his personal representative, the bequest would prove of no avail, for the estate would not be bound to supply an equivalent.^ All this is presumed to be in accordance with what a testator intended by his specific bequest, and conforms to general doctrines applicable to title derived under a will. § 382. Liability of Personal Representative in Respect of his Own Acts ; Negligence or Bad Faith, Torts, etc. — Scc07id. To dwell now more especially upon the liability which a personal representative incurs in respect of his own acts while adminis- tering the estate. The course of investigation in former chap- ters has shown us that every executor or administrator is bound to observe not only good faith, but a certain degree of care and diligence, properly estimated according to the circumstance of serving with or without compensation, and fixed at " ordinary " in the one instance and "slight" in the other. For losses oc- casioned by his gross negligence or wilful default he is, there- fore, personally liable ; and usually, too, in the United States (since here the personal representative is, as a fiduciary, enti- tled to compensation), for all ill consequences suffered by the estate through his failure to bestow ordinary care and diligence/ For losses occasioned through his bad faith, too, the represen- tative is personally liable.^ Furthermore, an executor or ad- ministrator is bound to perform his whole duty according as the ' Armstrong r. Burnet, 20 Beav. 424 ; queathed; Hickling z'. Boyer, 3 Mac. Day V. Day, i Dr. & Sm. 261 ; Addams & G. 635. V. Ferick, 26 Beav. 384. ^ See §461, as to specific legacies. ^ Wms. Exrs. 1764, commenting upon * Siipni, §§313-315- Marshall 7\ Ilolloway, 5 Sim. 196, where ^ lb. a leasehold interest was specifically be- 474 CHAP, v.] LIABILITY OF EXECUTOR OK ADMINISTRATOR. v? J5S4 law or a testator's will may have directed ; and he cannot, after accepting the trust, avoid any of the responsibilities which prop- erly attach to the office.' In general it may be said that for any mere personal tort com- mitted by an executor or administrator his representative capac- ity does not shield, but he is liable personally to those aggrieved.^ § 3^3- Common-Law Doctrine as to Devastavit or Waste. — This standard of liability is that adopted by courts of equity and probate in concurrence with the common sense of mankind. But the common law appears to have pursued a somewhat dif- ferent theory in dealing with such matters ; an odd and, indeed, an illiberal one.^ In equity and probate practice, at the present day, the executor or administrator becomes bound to account for his proceedings under his trust, and allowance or disallow- ance of items and transactions is made upon the just maxims of responsibility which we have stated.'' But the common law long recognized direct remedies against the personal represen- tative, founded upon the suggestion of a devastavit on his part. 5 A violation of duty, by the executor or administrator, such as renders him personally responsible for mischievous consequences, the law styles a devastavit ; that is, a wasting of the assets ; or, to take the definition of the courts, a mismanagement of the estate and effects of the deceased, in squandering and misapply- ing the assets contrary to the duty imposed on him. For a devastavit, the executor or administrator, it is said, must answer out of his own means, so far as he had or might have had assets of the deceased.'' § 384. The Essential Principle of Devastavit is of General Ap- plication. — The essential principle at the basis of this rule of devastavit operates, doubtless, whenever and wherever the peiv sonal representative should personally respond for his official conduct ; and whether the maladministration be wanton, wilful, ' Booth z/. Booth, i Beav. 125 ; Jacob, '' See Part VII., as to accounts, etc. 198; WilHams v. Nixon, 2 Beav. 472. ' Wms. Exrs. 1985; appendix, /c^j-/. - § 385. ^ Bac. Abr. Exors. L. i ; Wms. Exrs. ^^•M/rrt, § 315. 1796. 475 § 3-^4 KXECUTORS AND ADMINISTRATORS. [pART IV. and fraudulent on his part, or founded in inexcusable careless- ness, and whether the misconduct be active or passive, so long as those interested in the assets suffer thereby.' How wide the scope of this doctrine, we have already seen, while investigating the general rights and powers of the personal representative. We shall see its further application hereafter, when we come to consider the payment of debts and claims against the estate, the satisfaction of legacies, and the transfer or distribution of the final residue ; when we observe the performance of his official duties under peculiar aspects, as where the estate is insolvent, or when it becomes needful and proper for him to take the charge of his decedent's real estate or sell it ; with reference to the duty of accounting, as well as obeying the mandates of a court ; and, in short, throughout the entire administration of the estate, and so long as he pursues the official trust reposed in him. And what is thus observable of a sole original executor or administrator invested with plenary authority, will be found to hold true, mutatis mutandis, in the qualified trusts to be hereafter specially considered, as where the appointment is not original and complete, or where two or more serve together in the office. For we here apply a broad principle which pervades the whole law of bailments and trusts, and underlies the per- formance of duty by officers public or private. Official respon- / sibility, in a word, involves, in any station of life, the perform- ance of one's duty : first, honestly and uprightly, and next, with the exercise of a reasonable degree of care and diligence accord- ing to circumstances, the nature of the trust imposed, and the limitations of authority prescribed by law.' ' Executors and administrators may been mentioned; and Williams speci- be gviilty of a devastavit, not only by a fies particularly, paying too much for direct abuse by them, as by spending or the funeral, paying debts out of order gonsuming, or converting to their own to the prejudice of those of higher rank, use the effects of the deceased, but also and assenting to the payment of a leg- by such acts of negligence and wrong acy when there is not a fund sufficient administration as will disappoint the for creditors. Wms. Exrs. 1797. claimants on the assets. Bac. Abr. ^ It has been observed by equity Exors. L. Among examples of the for- courts that two principles influence their mer kind, a collusive sale or pledge of course, with respect to the personal lia- the assets may be cited. Of the latter bility of executors and administrators kind, numerous instances have already for their official conduct: (i) That in 476 CHAP, v.] LIABILITY OF EXECUTOR OR AOMI XISTRATOK. ^5 385 § 385. Representative not to be sued in such Capacity for his own "Wrongful Act ; Qualifications of the Rule. — An executor or administrator cannot be sued in his representative character, for his own wrongful act committed, so as to inflict personal injury upon another, while administering the estate. For, if liable at all, the act is outside the scope of his official authority, and he must be sued and held responsible as an individual.' But, in some instances, where the gist of the offence consists in a con- tinuing wrongful detention of the plaintiff's goods, the wrong having really originated with the decedent, a suit may be brought, if the plaintiff so elect, against the executor or administrator in his representative capacity.^ Statute directions on such points seem desirable ; for the old common law is not explicit enough, Older not to deter persons from under- taking these offices, the court is ex- tremely hberal in making every possible allowance, and cautious not to hold executors or administrators Hable upon slight grounds. (2) That care must be taken to guard against an abuse of their trust. Powell v. Evans, 5 Ves. 843 ; Tebbs V. Carpenter, i Madd. 298 ; Raphael v. Boehm, 13 Ves. 410. As to imputation of waste from one's neglect to file an inventory, see Orr v. Kaines, 2 Ves. Sen. 193. And as to accounting, see Part ^\\., post. ' Boston Packing Co. z'. Stevens, 12 Fed. Rep. 279; Thompson v. White, 45 Me. 445 ; Parker v. Barlow, 93 Ga. 700. ^ Trover will lie against the represen- tative personally, for a conversion by him, though the property came to him with the estate of his decedent. Walter V. Miller, i Harr. (Del.) 7. And .see Denny v. Booker, 2 Bibb, 427 ; Thomp- son V. White, 45 Me. 445 ; Clapp v. Walters, 2 Tex. 130 ; supra, § 372. In some instances an action for money had and received may be more appropriate. See Farrelly v. Ladd, i o Allen, 1 27. For the misapplied balance of a fund en- 477 trusted to him by a debtor of the es- tate, for discharging the debt thus ow- ing, the personal representative is liable, not in his official, but in his individual, character ; and for such balance the debtor may sue as for money received by the defendant to the plaintiff's use. Cronanz^. Cutting, 99 Mass. 334. Trover lies, under the statutes of some States, against an executor or ad- ministrator in such capacity, for a con- version, as, e.g., of bonds and mortgages, by his testate or intestate. Terhune v. Bray, 16 N. J. L. 54. And it is proper to treat such things as personal prop- erty, whatever may have been the earlier rule. Cf. Chaplin 7'. Burett, 12 Rich. 284. "The principles adopted seem to be that, where the deceased, by a tortious act, acquired the property of the plain- tiff, as by cutting his trees and convert- ing them to his own use, or by convert- ing his goods to his own use ; although no action of trover or trespass will lie ; yet the law will give the plaintiff some form of action to recover the property thus tortiously obtained. Putnam, J., in Cravath v. Plympton, 13 Mass. 454. ^ 7^86 FCXECUTORS AND ADMINISTRATORS. [PART IV. and its theory, that the right of action dies with the offender, has been discarded to a great extent by modern legislatures.' v^ 386, Instances of Devastavit considered; Effect of an Arbi- tration or Compromise of Demands. — Only a few special instances of liability for devastavit or waste, at the common law, need here be specially considered ; for the general doctrine is sufficiently applied under appropriate heads in other chapters. At common law, the arbitration, compromise, or release of a debt or claim due the estate, was regarded as a waste on the part of the personal representative, if it resulted in loss to the estate. Concerning arbitration, the point appears to have been stated in the old books quite sternly ; ^ as to compromise, how- ever, later qualifications were admitted, applying in good reason to either act, which the court of chancery saw fit to insist upon, and which, as to either compromise or arbitration, are now usually insisted upon. The executor or administrator who com- promised a debt, so as to receive less than its full amount, was still held answerable for the whole ; and yet, if he could show, in exculpation, that he acted therein for the benefit of the estate, he stood excused.^ The universal test for modern times should be, whether, in compromising or submitting to arbitration, the representative acted with fidelity and due prudence ; ^ but not to leave the doctrine uncertain on this point, recent express legis- lation, both in England and the United States, greatly enlarges the powers of executors and administrators to compound and refer claims and demands to arbitration at their own discretion, clothing probate tribunals in numerous instances with express ' See supra, § 373. The lepresenta- Exors. L. ; i Ld. Raym. 363, by Holt, live is not bound to prolong litigation C. J. And see Reitzell v. Miller, 25 by appeal or otherwise, provided he acts 111. 67 ; Yarborough v. Leggett, 14 Tex. with becoming prudence. 104 N. C. 677; Nelson 7v. Cornwell, 1 1 Gratt. 724. 458. ' Wms. Exrs. 1800 ; Blue z'. Marshall, ^ If the executor submits a debt due 3 P. Wms. 381 ; Pennington v. Healey, to the testator to arbitration, and the i Cr. & My. 402. arbitrators award him less than his due ; ■• See Coffin v. Cottle, 4 Pick. 454 ; this, being his own voluntary act, shall Chadbourn v. Chadbourn, 9 Allen, 173; bind him, and he shall answer for the Eaton v. Cole, i Fairf. 137; Kendall z/. full value as assets. Wentw. Off. Ex. Bates, 35 Me. 357. 304, 14th ed.; 3 Leon. 53; Bac. ;\br. 478 CHAP, v.] LIABILITY OF EXECUTOR OK ADMINISTRATOR. § 387 jurisdiction to authorize such acts on their part, and thereby af- ford the representative a more adequate immunity. § 387. Compromise or Arbitration of Claims ; Modern Statutes. — As a fair, speedy, and inexpensive means, therefore, of ad- justing doubtful claims against an estate and relieving the legal representative from undue responsibility, our modern legislation permits of compromise and arbitration ; one or other of which causes is frequently preferred on both sides to an uncertain law- suit. Thus the English statute 23 and 24 Vict, c, 145, author- izes executors to compound and refer to arbitration, " without being responsible for any loss to be occasioned thereby." ' And by legislative enactments in most of the United States, differing somewhat in detail, executors and administrators are empowered to adjust by arbitration and compromise, any demands in favor of or against the estates represented by them, under previous authority of the probate court.- This statute authority in some States, however, does not embrace claims against the estate, but only those in its favor, or vice versa ; nor is the statutory right to arbitrate treated always on the precise footing as that of compromising claims. ^ And, again, as under the English statute above cited, the right conferred by the legislature does not appear always to contemplate the direct intervention of the probate court."* * 23 & 24 Vict. c. 145, §§ 30, 34 ; trators, 2057-2080. The practitioner Wms. Exrs. 1801. should consult the local code on this ^ Mass. Gen. Stats, c. loi, § 10; subject, and local decisions construing Woodin V. Bayley, 13 Wend. 453; its provisions. Under the New York Tracy v. Suydam, 30 Barb, no; Peter's code a claim for a tort — e.g., the con- Appeal, 38 Penn. St. 239. version of personal property — is thus ^ Reitzell J'. Miller, 25 111. 67. referable. Brockett v. Bush, 18 Abb. "• Kendall v. Bates, 35 Me. 357 ; Pr. 337. But only claims which ac- Childs V. Updyke, 9 Ohio St. t^t^t,. Ar- crued or would have accrued during bitration is not in Texas a proper mode life. 17 Abb. N. Y. Pr. 374; cf. Mc- to establish a rejected claim. Yarbor- Daniels v. McDaniels, 40 Vt. 340. So, ough V. Leggett, 14 Tex. 677. But as too, 19 R. L 499. And see the Mary- to the general reference of disallowed land statute which does not apply to claims, see McDaniels v. McDaniels, 40 claims binding the executor or adminis- Vt. 340. See also Ponce v. Wiley, 62 trator personally. Browne v. Preston, Ga. 118; 30 Kan. 118; U. S. Digest, 38 Md. 373. 1st Series, Executors and Adminis- Such statutes, being for a convenient 479 §387 EXECUTORS AND ADMINISTRATORS. [PART IV. This right of arbitration or compromise is extended by local legislation to other instances, and for sundry express purposes. Thus, in Massachusetts and various other States, arbitrators may be appointed to determine the validity of a claim against an insolvent's estate ; ' or, in case of dispute, the executor's or administrator's personal claim upon the deceased.^ And it is also sometimes provided expressly that the supreme court may authorize executors or administrators to adjust, by arbitration or compromise, controversies arising between different claimants and expeditious settlement of the estate, do not sanction a composition deed giving a long term of payment. Loper, Matter of, 2 Redf. (N. V.) 545. The effect of all such legislation is mainly to sanction a course of proceed- ing on the part of an executor or ad- ministrator, formerly open to him, though at a greater personal peril. At the common law an executor or admin- istrator might compound or release a debt due the estate, or arbitrate, if he could afterwards show that his act was beneficial to the estate ; but if the arbi- trators awarded less than was due the estate, or the compromise turned out ill, he might have to suffer personally as for waste ; for, objection being made by parties interested under the admin- istration, he had the onus of proving that he had acted judiciously and that the estate had not .suffered in conse- quence. Wms. Exrs. 1799, 1800, and cases cited ; i Ld. Raym. 369, by Holt, C. J. ; Wiles v. Gresham, 5 DeG. M. & G. 770; Blue V. Marshall, 3 P. Wms. 381; Nelson v. Cornwell, 11 Gratt. 724 ; Boyd v. Oglesby, 23 Gratt. 674 ; Davenport ?■. Congregational So- ciety, 22i Wis. 387 ; 19 Mont. 95; Alex- ander V. Kelso, 59 Tenn. 311. A stat- ute which expressly extends the power to submit claims against the estate to arbitration may yet leave claims again.st the estate to be adjusted as at common law. Wood V. Tunnicliff, 74 N. V. 3S ; Geiger z'. Kaigler, 9 S. C. 401. As to binding the representative personally by the award, see Wood v. Tunnicliff, supra. By procuring previous authority from the probate court, however, as some of these statutes now provide, and by pursuing its terms, the good faith of the executor or administrator is suffi- cient warrant that the arbitration or compromise will stand; and to relieve him from personal liability for ensuing consequences is, we may assume, the general purpose of all such legislation, even where such permission from the probate court is not contemplated. Wyman's Appeal, 13 N. H. 18, 20, per Parker, C. J.; Chadbournf. Chadbourn, 9 Allen, 173; Chouteau v. Suydam, 21 N. Y. 179. Debt lies on a decree con- firming the award. Noyes v. Phillips, 57 Vt. 229. If a party in interest means to attack a particular compro- mise obtained under probate sanction, as for fraud, he should bring a bill in equity or proceed specially. Henry County ?'. Taylor, 36 Iowa, 259. See, e.g., language of stat. 23 & 24 Vict. c. 145, § 30, cited supra. The general right of an executor or administrator to arbitrate or compro- mise appears deducible from the right or duty of prosecuting or defending suit.>i which involve the interests of the estate he represents. And see § 298. ' Gilmore v. Hubbard, 12 Cush. 220; Green v. Creighton, 7 Sm. & M. 197. = Mass. Public Stats, c. 136, § 6. 480 CHAP. V.J LIABILITY OF EXECUTOR OK ADMINISTRATOR. § 388 to the estates in their hands ; and further provision is made for compromising suits which involve the validity of a will.' § 388. Release of Debt, Renewals, etc., by the Executor or Administrator. — English authorities establish that at the old law, if the legal representati\e releases a debt due the decedent, or delivers up or cancels a bond in which the deceased was named obligee, or takes a new obligation expressed to himself personally, or settles a suit upon consideration, he shall hQ,prima facie at least, chargeable as for a devastavit, for the full con- sideration, on the theory that unless he can produce such consid- eration in full, he must have wasted it to the disadvantage of the estate.- Ordinarily, a representative is not called upon to for- give or release a debt or claim to which he knows the estate was entitled, without receiving some consideration ; and if he does so gratuitously and to the detriment of the estate, he is liable as for devastavit, even though he acted with honest purpose.-^ But modern statutes lessen the liability for releases given upon sundry considerations of convenience to the estate, in various prescribed instances, on the analogy of a compromise. Thus, in some States, probate courts or the supreme court, may now authorize executors or administrators to release and dis- charge, upon such terms and conditions as may appear proper, any vested, contingent or possible right or interest belonging to the persons or estates represented by them, in property real or personal, whenever it appears for the benefit of such persons or estates.'* 'Mass. Pub. Stats, c. 142, §§13-16. estate to extend the time of payment Contingent liabilities of an estate, e.g. beyond that fixed by the original con- upon the indorsement or guaranty of the tract. Landry v. Delas, 25 La. Ann. deceased — may be reasonably compro- 181. mised so as to facihtate settlement and a ''Mass. Gen. Stat. c. ioi,§ii. See final distribution of the estate. 115 jw/nz, § 306, as to renewals, etc. Mich. 556. In sanctioning arrangements between -Wms. Exrs. 1799, 1800 ; Cro. EUz. parties disputing a will, chancery j-irw^/i? 43 ; I Ld. Raym. 368 ; i Freem. 442. does not intend to bind infants or other ^People V. Pleas, 2 Johns. Cas. 376. parties not szii juris. Norman v. It is held that the representative exceeds Strains, 29 \V. R. 744. his proper functions when he enters into A release may involve a dez'astavtt, an agreement wth the debtors of an and yet not be null and void. See Dav- 31 481 § 389 EXECUTORS AND ADMINISTRATORS. [PART IV. § 389. Disregarding the Bar of Limitations ; General and Special Statutes of Limitations. — To proceed with instances of devastavit. The rule has heen laid down in England and the United States, that it is not devastavit in the personal representative to pay a just debt, although that debt be barred by limitations, and that he is not bound to plead the statute when sued by a creditor. This, however, was first promulgated as the equity view ; ' for courts of common law appear to have once inclined to hold to the contrary ; ^ while chancery left it rather to the personal rep- resentative to satisfy, at his own discretion, the conscience of his decedent. The English courts of equity will neither compel the personal representative, when sued by a creditor, to plead the statute bar in favor of the residuary legatee or distributee, nor suffer such party to set it up by virtue of his right to the sur- plus, unless proceedings with reference to the estate are in such form that he is essentially a party to the suit, and can take this advantage Vvithout interference. ^ In the United States the gen- eral rule is that of the English chancery ; and the executor or administrator is permitted to satisfy the barred debt, and need not, where acting in good faith, plead the statute of limitations.'* Local codes to a certain extent, however, regulate this subject ; and the rule in some States appears to be that the personal rep- resentative can only exercise his discretion where the statute enport v. Congregational Society, t^t, 4 Kay & J. 166; Lewis v. Rumney, L. Wis. 387. R. 4Eq. 451. " Norton V. Frecker, i Atk. 526 ; ^ Shewen v. Vandenhorst, i Russ. & Stahlsciimidt 7/. Lett, i Sm. & G. 415 ; My. 347; 2 Russ. & My. 75; Wms. Wms. Exrs. 1803; Trimble z/. Marshall, Exrs. 1804; Briggs v. Wilson, 5 De G. 66 Iowa, 233. Notwithstanding the M. & G. 12. personal estate is insufficient for the -i Fairfax v. Fairfa.x, 2 Cranch, 25; debt, and the effect will be to throw Wood Limhations, §188; Scott v. the burden upon the real estate, the rep- Hancock, 13 Mass. 162; Hodgdon v. resentative is not obhged to plead the White, 11 N. H. 208 ; Thayer ?/. Hollis, -Statute. Lewis v. Rumney, L. R. 4 Eq. 3 Met. 369; Ritter's Appeal, 23 Penn. 451. In this last -mentioned case, Lord St. 95 ; Pollard v. Sears, 28 Ala. 484; Romilly, M. R., expressed his regret Miller z'. Dorsey, 9 Md. 317; Payne?/, that the statute did not destroy the debt Pusey, 8 Bush, 564 ; Walter v. Radcliffe, instead of taking away the remedy for 2 Desau. 577; Batson v. Munell, 10 it, and thus leaving questions of discre- Humph. 301. He is bound to plead the tion so perplexing to arise. statute where, otherwise, real estate ' See McCulloch v. Dawes, 9 Dow. must be sold to pay the debt. 90 Ala. & Ry. 43, disapproved in Hill e/ Walker, 147. Cf. L. R. 4 Eq. 451. 482 CHAP, v.] LIABILITY OF KXECUTOK OK AOM INMSTKATOK. § 3S9 of limitations operates after his appointment, or perhaps since the decedent's death ; and that debts, barred while the decedent was alive, he cannot assume arbitrarily the power to pay.' In fact, distributees or residuary legatees are immediately interested in controversies of this kind. Chancery holds that the representative may not pay a debt, regardless of the bar of limi- tations, after a competent court has declared that debt to be out- lawed.^ And under the old chancery practice of England, after the court had made an administrative decree, showing the true situation of the claim, any such interested party as a residuary legatee or distributee might take advantage of that decree and thus for himself set up the statute.^ Under modern practice that rule still applies somewhat simplified ; for equity recognizes that the plea of limitations, especially for a claim stale when the decedent died, concerns other parties interested in the estate, who ought not to be concluded by the mere discretion of a rep- resentative.'* In England and some parts of the United States, it is held that an acknowledgment of the decedent's debt by the personal representative will take the case out the statute.-^ But the rule most consistent with the policy of American legislation is, that ' See Patterson v. Cobb, 4 Fla. 481 ; Ch. 180; Warren v. Poff, 4 Bradf. 260. Rector 7'. Conway, 20 Ark. 79. But the And see Woodyard v. Polsley, 14 W. English rule is to the contrary, recog- Va. 211 ; McKinlay v. Gaddy, 26 S. C. nizing no such distinction. Hill v. 573 ; 33 W. Va. 476. Walker, 4 K. & G. 166. A testator The representative may with pro- may expressly direct his executor to priety pay a debt due to himself from disregard the statute of limitations, the estate upon which the statute has Campbell v. Shoatwell, 51 Tex. 27. run. Payne z/. Pusey, 8 Bush, 564. Cf. Among other proceedings in equity § 439a. which constitute an exception to the rule ^ Midgley v. Midgley, (1893) 3 ^l^- that the executor or administrator alone 282. shall exercise the option of pleading the ' See Briggs v. Wilson, supra. statute, is that of bringing a bill to charge '' Wenham Re, (1892) 3 Ch. 59. the real estate of the deceased with the - Briggs v. Wil.son, 5 De G. M. & G payment of debts due from the estate; 12; Browning 71. Paris, 5 M. & W. 120 and where this method is pursued, the Semmes v. Magruder, 10 Md. 242 heir or a devisee, residuary legatee, or Northcut za Wilkins, 12 B. Mon. 408 other person in interest, is so brought Brewster v. Brewster, 52 N. H. 52 into the suit that the statute may be Shreve v. Joyce, 36 N. J. L. 44; Wood interposed by him. Wood Limitations, Limitations, § 190. §188; Partridge v. Mitchell, 3 Edw. 4^3 § 390 EXECUTORS AND ADMINISTRATORS. [PART IV. an acknowledgment by the representative does not remove the statute bar after it has once operated on the debt, although it may suffice to suspend its operation if made before the bar is complete.' In any event, there should be not only a new prom- ise by the executor or administrator in order to charge the es- tate, but a promise made by him in his representative capacity ; ^ though equity corrects the common-law tendency to exclude such acknowledgments, by admitting that as a good acknowledg- ment on the representative's part which would have been good if made by the original debtor.^ 5J 390. General and Special Statutes of Limitations ; the Sub- ject continued. — While, however, the general statute of limita- tions may be disregarded, it is held waste not to plead the spe- cial bar which our modern local legislation sets to demands against the estates of deceased persons.-* In most of our States, indeed, express provision is now made that claims against an estate shall be presented within a certain time after the death of the debtor or the appointment of his executor or adminis- trator, or be forever barred ; and the reason of such legislation being sound, and the language of the enactment explicit, the personal representative is bound to comply with the require- ment. ^ Creditors themselves are thus put upon the alert ; and their own want of vigilance cannot protect their claims against the statute barrier, where they have relied upon the representa- tive, and forborne to sue at his request ; ^' though, where the ' Wood Limitations, § 190, and cases Heath v. Wells, 5 Pick. 140; Langham cited; Forney t.'. Benedict, 5 Penn. St. -'. Baker, 5 Baxt. 701; Littlefield v. 225; Foster v. Starkey, 12 Cush. 324; Eaton, 74 Me. 516; Part V., c. i. McLaren v. McMartin, 39 N. Y. 38. 'lb. And see U. S. Dig. ist series, As to acknowledgment by only one of Exrs. & Admrs. 4472 ; Wood Limita- two or more executors, cf. Scholey t'. tions, § 188, and numerous cases cited ; Walton, 12 M. & W. 514; Shreve '■. payment of debts, c. post; Ticknor v. Joyce, 36 N. J. L. 44. Harris, 14 N. H. 272 ; Harter z'. Tag- ='Scholey p. Walton, 12 M. & W. gart, 14 Ohio St. 122. 510; Atkins V. Tredgold, 2 B. & C. 28. *Ib. And see Langham z'. Baker, 5 3Cf. Briggs V. Wilson, 5 De G. M. Baxt. 701. Unless the .statute gives the & G. 12; TuUock z/. Dunn, Ry. & Moo. court power to excuse delay, reasons 416. why the creditor neglected to present ^Thompson v. Brown, 16 Mass. 172 ; his demand in due time cannot be con- 484 CHAP, v.] LIABILITY OF EXECUTOR OK ADMINISTRATOR. § 39O estate itself is ample and solvent, so that other creditors suffer no disadvantage, arrangement specially made for forbearance or delay in the interest of the estate may be sustained for a spe- cial creditor's benefit.' How far an executor or administrator is at liberty to revive debts or claims against the estate he represents, which arc al- ready barred, is not clearly determined. In most cases, the circumstance of his doing so is to be attributed, apparently, to the conscientious exercise of that option which we have seen is now so generally conceded to him." But if he goes beyond the line of legislative and judicial sanction, and pays an outlawed debt corruptly or in violation of the duty he owed as personal representative of the estate, he may become liable personally as for devastavit? Equity will, under special circumstances of hardship, though not usually, furnish relief to a party whose sidered. Sanfoid v. Wicks, 3 Ala. 369. It is held, as to various statutes of this character, that strictly equitable claims as mortgages are not included. Bradley V. Norris, 3 Vt. 369 ; McMurrey z'. Hop- per, 43 Penn. St. 468 ; Fisher v. Moss- man, II Ohio St. 42; Allen v. Moer, 16 Iowa, 307. Nor claims for the re- covery of specific property. Andrews t/. Huckabee, 30 Ala. 143. Or to compel the application of trust property to the payment of the debt which it was held in trust to secure. Stark v. Hunton, 3 N. J. Eq. 300 ; Pope v. Boyd, 22 Ark. 535. Nor claims originating after the period named. Griswold ?'. Bigelow, 6 Conn. 258. Nor claims in the or- phans' court. Yingling v. Hesson, 16 Md. 112. Nor so as to debar the cred- itor from making a set-off when sued. Lay V. Mechanics' Bank, 61 Mo. 72. And see Neil v. Cunningham, 2 Port. 271; Wood Limitations, § 189, and cases cited. Such statutes properly reckon the period from the date of the representa- tive's appointment ; for the running of such a period between the decedent's death and the qualification of his exec- utor or administrator would work injus- tice to the creditor, t^t^ Ark. 141. The recovery of a claim against the estate of a deceased person, which origi- nates after, or from its nature cannot be ascertained within the time limited by the court for the exhibition of claims, is not barred by its non-exhibition with- in that time. Griswold ?'. Bigelow, 6 Conn. 258 ; Hawley ?'. Botsford, 27 Conn. 80; Chambers %>. Smith, 23 Mo. 174. And where such claim has been duly exhibited to the representative, and its payment refused, the natural and proper remedy (in the absence of explicit legislative provision) is to bring an action at law against the representa- tive. Bacon v. Thorp, 27 Conn. 251. As to the representative's individual lia- bility in such cases, see Oates v. Lilly, 84 N. C. 643; McGrath v. Barnes, 13 S. C. 328. ' Knight V. Cunningham, 160 Mass. 580. ^ Supra, same section. ^ Where, for instance, he pays a debt in violation of the special .statute barrier imposed ujwn executors and adminis- trators. See supra, same section. If 485 § 390^? EXECUTORS AND ADMINISTRATORS. [part IV. claims against an estate cannot be enforced at law, by reason of his failure to comply with the requirement of a statute Umiting the time of presenting and suing on the same ; ' nor are express reservations of this character absent from such local legislation. § 2,90a. The Subject continued. — Whenever the statute of limitations has begun to run against a debt or claim due the es- tate before the death of the decedent, although upon the very day of his death, the statute bar will operate, notwithstanding the personal representative sues for it within a reasonable time afterwards.- In several States, however, this hardship is cor- rected by express enactment.^ Where, too, the statute has be- gun to run upon the decedent's debt or claim during his life, it is not suspended by his death, although no representative has been appointed.^ This hardship, once more, some State legisla- tures have removed.' As for a debt or claim, however, against one sets up the bar of limitations, he must make and sustain such defence with due diligence and good faith. Teague v. Corbitt, 57 Ala. 529. ' McConnack v. Cook, 1 1 Iowa, 267 ; Stromo z>. Bissel, 20 Iowa, 68 ; Clifton <■'. Haig, 4 Desau. 330. With reference to a creditor against the estate, the rule, irrespective of statute qualifications, appears to be this : death of the debtor does not suspend the ininning of the statute where the cause of action accrued before his death ; but where the cause of action accrues after his death, the statute does not be- gin to run until an executor or adminis- trator is qualified, inasmuch as the cred- itor meanwhile has found no one whom he could sue; and where the cause of action arises on a contract, etc., by the representative himself, the statute begins to run from the time such cause of action accrued. An administrator cannot be held liable for not paying a judgment more than seven years old which has not been revived. Groves t. Williams, 68 Ga. 598. A claim for money held by the deceased as administrator is barred by the statute of non-claim. 39 Ark. 577. Also an information in equity by the attorney-general. 142 Mass. 248. And being barred against the executor a right of action is barred against the de- visee. Fowler z: True, 76 Me. 43. No exception as to persons under disability can be made if the statute does not make it. Morgan v. Hamlet, 113 U. S. 449; 76 Me. 196. Secured claims are meant as well as unsecured. 62 Tex. 375. But cf. 98 Ind. 499. Notice by the executor or administrator of his ap- pointment is in many States a pre-requi- site to the running of this special statute. And by some codes the repre- sentative must be notified liefore he can be sued. 76 Me. 17. - Penny r. Brice, 18 C. B. N. s. 393. ^ Wood Limitations, §§ 193, 196. •' Davis V. Garr, 6 N. Y. 124 ; Burnett -'. Brian, 6 N. J. L. 377 ; Hall v. Deally, 7 Bush, 687 ; Baker v. Brown, 18 111. 91 ; Jackson z'. Ilitt, 12 Vt. 285; Wood Limitations, § 194. 5 Wood Limitations, § 196, and ap pendix. A certain period is usually 486 CHAP, v.] LIABILITY OF EXECUTOR OK ADM IMSTKA TOR. § 390/' which the statute had not commenced to run during the credit- or's or claimant's life, it will not begin to run against his estate until the executor's or administrator's appointment and qualifica- tion ; and this upon the principle that there was no person capa- ble of suing for it.' This, once more, is a rule subject to the manifest direction of the legislature upon a construction of local statutes. An acknowledgment or partial payment made to the executor or administrator by a debtor to the estate will take the debt out of the statute of limitations.^ The rule of ec|uity appears to be the same as that of law as to the running of the statute bar against claims due the estate ; but the executor or administrator cannot, by deferring probate, take personal advantage of a debt owing from himself to the es- tate he represents ; and in various cases of fraud or mistake, equity makes an exception to the general rule, that where time has begun to run in the decedent's lifetime it shall not be sus- pended between the date of his death and the date when the representative qualifies.^ It still remains a subject for judicial decision as to how far an executor or administrator becomes liable personally as for a dev- astavit, if he allows time to run in favor of a debtor and against the estate he represents ; but it would appear that, for culpable neglect or bad faith on his part producing this result, he may be held personally liable.'* § 390(^. The same Subject. — It may be questioned whether allowed the representative after his ap- Townsend v. Ingersoll, 12 Abb. Pr. pointment to bring suit, by local enact- (N. Y.) N. s. 354. A creditor recover- ments. ing judgment within the two years pe- " Burdick v. Garrick, L. R. 5 Ch. 233 ; riod limited by statute, the execution on Clark V. Hardman, 2 Leigh, 347 ; An- the judgment not being satisfied, can- drews v. Hartford R., 34 Conn. 57; not sue upon the judgment after the two Shennan z'. Western R., 24 Iowa, 515; years expire. 134 Mass. 115. Wood Limitations, § 194, where this ^ Wood Limitations, § 199; Brooks- doctrine is discussed with reference to bank v. Smith, 2 V. & C. 58 ; Ingle v. statute actions by the executor or ad- Richards, 28 Beav. 366 ; Barfield 71. ministrator for causing the death of his King, 29 Ga. 288. testate or intestate. ^12 Mod. 573; Wood Limitations, ^ Martin v. Williams, 17 Johns. 330; § 197. Jones V. Moore, 5 Binn. 573. And sec; 487 § 392 EXECUTORS AND ADMINISTRATORS. [PART IV. an executor or administrator will be permitted to allege his own wrong so as to have time run in his favor. But the statute of limitations does not begin to run in his favor as against a claim for damages occasioned by his negligence in collecting what was due the estate, from the time his letters issue but at best only from the time of loss.' Under some of our codes the acknowl- edgment by the executor or administrator of a debt against the estate and the ranking of it by the probate court suspends pre- scription ; this being the preliminary which dispenses with suit by a claimant.- And the statute which bars all claims which are not sued against the estate within a certain period refers naturally to claims against the deceased and not to those arising upon some contract with his representative after his death.^ A representative who promises to pay regardless of the statute may bind himself, but he does not bind the estate, nor the sur- eties on his bond.' This policy, however, of barring out claims which are tardily prevented and enforced is not so much to exclude them as to allow the estate to be expeditiously settled and distributed ; and hence new assets or a new surplus to distribute might change the face of the situation. § 391. Opportunity to ascertain ■whether the Estate is Insol- vent. — An executor or administrator is usually allowed a rea- sonable time for ascertaining whether the estate can meet its obligations. Hence we find local statutes forbidding suits to be brought against the representative within a specified time (as for instance, a year) unless it be for some demand that would not be affected by the insolvency of the estate ; or after the estate has been represented insolvent. ^ ^ 392. Instances of Devastavit continued ; disregarding the Statute of Frauds. — While the bar of limitations may thus be ' Harrington v. Keteltas, 92 N. Y. 366; Robinson v. Hodge, 117 Mass. 40. 224. ^ Johnson z/. Waters, in U. S. 640. 'See Studley v. Willis, 134 Mass. 3 Coburn -'. Harris, 58 Md. 87. 155 ; 116 Mass. 435. "■ Judge of Probate v. Ellis, 63 N. H. 488 CHAP, v.] LIABILITY OF EXECUTOR OK ADMINISTRATOR. § 394 disregarded, in the case of demands once binding, an executor or administrator exercises no such option as to debts or claims which never had a binding force, since the law invests him with no authority on the decedent's behalf to dispense favors or per- form obligations simply moral. Hence, he cannot pay a debt that accrued under a contract that is invalid because within the statute of frauds ; and, if he does so, he is chargeable with dev- astavit ; though the promise may be said to create a personal liability on his part.' § 393. Devastavit when excused by Concurrence, Acquiescence, etc., of those injured thereby. — The concurrence or acquiescence of those injuriously affected by the devastavit of an executor or administrator will, agreeably to general maxims, release the lat- ter party from further responsibility for the injurious act or transaction ; and so, doubtless, their release or acquittance as for satisfaction and indemnity rendered by a mutual private arrangement. But a court of equity or probate is at liberty to inquire into all the circumstances which induced such action on their part, and ascertain whether their conduct really amounts to such sanction, ratification, or acquittance as ought justly to relieve the representative from further liability.^ § 394- Complicity of third Persons in the Devastavit renders them liable. — Whenever an executor or administrator violates his trust, and another person takes advantage of the devastavit, knowing that the personal representative is not proceeding ac- cording to the requirements of the law, or the terms of the will 'Baker v. Fuller, 69 Me. 152; right to 9€e the representative for (/^z/^j- Rownen, Re, 29 Ch. D. 358 (the repre- tavit. Birch, Re, 27 Ch. D. 622. -sentative's own claim). Where heirs or distributees co-operate ^ Burrows 7'. Walls, 5 De G. M. & G. with the administrator in resisting ille- 233; Wms. Exrs. 1836; 25 Beav. 177, gal claims against the estate, they are 236. Mere laches in abstaining from entitled to all the benefits; and if the calling upon the representative to real- administrator wastes the assets thus re- ize for the purpose of paying his debt, tained by him pending the litigation, whereby the representative has not been they may sue his bond for his miscon- misled, will not deprive a creditor of his duct. McMahon v. Paris, 87 (Ja. 660. 489 § 395 EXECUTORS AND A OMIMSTKATORS. [PART IV. under which he was appointed, such complicity will authorize those interested in the estate to hold such third party liable.' § 395. Liability of Executor or Administrator on his ovrn Con- tracts. — The liability of an executor or administrator, in respect of his own contracts touching the estate, may be gathered in a measure from our previous discussion of his rights.^ The for- mer inclination appears to have been to charge the executor or administrator strictly as an individual, and not in his represen- tative capacity, where the promise was alleged to have been made by him after the death of the person whose estate he rep- resented. In general, where the claim or demand wholly ac- crued in his own time, the representative was to be held personally liable alone. ^ And some decisions still countenance the doc- trine that no action at law will lie against an executor or admin- istrator, as such, except upon some claim which originated against the testator or intestate during his lifetime, notwithstanding the contract sued upon was made by him for the benefit of the es- tate." But, according to the weight of modern authorities, the exec- utor or administrator is liable upon such promise, in his repre- sentative, as well as his personal capacity, where the claim or demand accrues in his own time,' provided that which consti- tuted the consideration of the promise, or the cause of action, arose in the lifetime of the decedent.'' Where assets are defi- cient, a reliance upon the individual liability of a wealthy repre- sentative may be advantageous for the creditor ; but the reverse is sometimes the actual situation, and hence the advantage of giving the plaintiff an option. ^ In modern practice, however, the sufficiency of a probate bond, with principal and sureties, may be of great consequence. ' Rogers z/. Fort, 19 Ga. 94. And see Adams, 16 Vt. 228; Beaty v. Gingles, 8 supra as to sales, § 359. Jones L. 302. ^ Supra, §§256, 29c, 292. '•See Valengin v. Uuffy, 14 Pet. 282, 'Wms. Exrs. 1771 ; Cro. Eliz. 91; per Taney, C. J. Hawkes v. Saunders, Cowp. 289 ; Jen- Mb. nings z/. Newman, 4 T. R. 348; Cocke ''Thomas, J., in Luscomb ?'. Ballard, V. Trotter, 10 V'erg. 213; Adams <'. 5 Gray, 403. ^Ashby V. Ashby, 7 B. & C. 449. 490 CHAP, v.] LIABILITY OF EXECUTOR OK ADMINISTKATOK. § 396 English precedents establish that, in various instances, the representative may be sued as such, on a promise made by him in the representative character, so that a declaration founded on such a promise will charge him no further than though the promise had been made to the decedent himself. As, perhaps, upon the executor's promise to pay an award made after his testator's death upon an arbitration previously entered into by the testator himself.' Or in instances where the plaintiff avers simply a liability of the defendant as executor, or as administra- tor;- though exceptions Hke these raise nice distinctions in pleading not always clear to the logical mind, nor wholly satis- factory to the common-law judges who feel compelled to recog- nize them.-' These distinctions appear to have originated in a judicial effort to shield the personal representative from individ- ual loss, where the plaintiff's cause of action originated, essen- tially during the decedent's life, and upon the decedent's own promise, not that of the representative ; the latter having done scarcely more on his part than to recognize the claim as still binding. And, consequently the plaintiff was remitted to the assets, the court treating the representative's own engagement as presupposing an adjustment on such a basis. '♦ § 39^- Representative how sued upon his Express Promise, Col- lateral Undertaking, etc. — If an executor or administrator prom- ises in writing, that, in consideration of having assets, he will pay a particular debt of his decedent, or otherwise brings him- self within the rule of a personal collateral undertaking for his ' Dowse z/. Coxe, 3 Bing. 20 ; reversed, subject matter of the contract was in however, on appeal, though on a differ- fact a contract Hability of the testator ent ground. 6 B. & C. 255. incurred during his Ufe. And see Pugs- ^ Secar v. Atkinson, i H. Bl. 102; ley i'. Aiken, i Kern. 494. Ashby V. Ashby, 7 B. & C. 444 ; Wms. " So is it held in this country that for Exrs. 1773. property lawfully received by the exec- 'See Rose v. Bowler, i H. Bl. 108; utor and administrator, and held as as- 7 Taunt. 586 ; also Lord Tenterden and sets, he is hable to any party having a Littledale, J., in Ashby v. Ashby, 7 B. good title, either in his representative & C. 449, 452 ; Wms. Exrs. 1 771-1776, character, or personally (/f /w/zw/zy'/^vVj, where these cases are collated. And at such party's election. De Valengin see Scott r'. Key, 9 La. .A.nn. 213. In v. Duffy, 14 Pet. 282. The remarks of Chouteau v. Suydam, 21 N. \'. 179, the Taney, C. J., in this case, seem to favor 491 § 397 EXECUTORS AND ADMINISTRATORS. [fART IV. decedent's obligation," he may be sued on this promise in his in- dividual capacity, and the judgment against him will be dc bonis propriis.- The plaintiff should in such case aver assets, or a for- bearance to sue, or some other consideration. And, in general, where the nature of the debt is such as renders it binding upon the representative as an individual, whether because he con- tracted it or because he has assumed the liability which origi- nated against the decedent, the judgment will be against him de bonis propriis, although he promised nominally in the official capacity.^ § 397- Representative liable as an Individual, where Cause of Action wholly accrued after his Decedent's Death, on Transactions with Him, etc. — In causes of action wholly accruing after his decedent's death, the personal representative is in general liable individually."* And wherever an action is brought against an executor or administrator, on promises said to have been made by him after his decedent's death, he is chargeable in his own right and not as representative.^ In general, an action for goods sold and delivered to one as representative, or for work done, or services rendered, at his request, in the settlement of the estate, should be brought against the defendant personally, and not in his representative character.'' Wherever, in fact, the action is considerable latitude as to allov\ing a the decedent might not have been sua- plaintiff to sue the representative, at ble on his promise, the representatives election, either in his individual or rep- may be suable on theirs. Rusling v. resentative capacity, though the demand Rusling, 47 N. J. L. 1. should wholly accnie after the dece- " De Valengin 7-. Duffy, 14 I'et. 282; dent's death. And sfta siipm, § 382. Kerchner v. McRae, 80 N. C. 219. And ' Supra, § 255. see § 382. ^Ib. ; Wms. Exrs. 1783; Cro. Eliz. MVms. Exrs. 1771 ; Cro. Eliz. 91; 91; Taliaferro v. Robb, 2 Call. 258. Cowp. 289; Jennings z/. Newman, 4 T. But as to the necessity of averring as- R. 348; Clarke v. Alexander, 71 Ga. sets, of. Wms. Exrs. 1776; 7 Taunt. 500. 580; 3 Bing. 20. If there were no as- * Corner v. Shew, 3 M. & W. 350; sets, the promise of the representative Austin r. Munro, 47 N. V. 360 ; Davis is nudinn pactum. Supra, § 255. v. French, 20 Me. 21 ; Myer v. Cole, 12 ^ Wms. Exrs. 1783; Corner i/. Shew, Johns. 349; Matthews v. Matthews, 56 3 M. & W. 350; supra, § 256; Johns- Ala. 292; supra, § 256; Lovell f. Field, ton w. Union Bank, 37 Miss. 526 ; Wood 5 Vt. 218; Harding v. Evans, 3 Port, z/. Tunnicliff, 74 N. Y. 38. Even though 221 ; Baker v. Moor, 63 Me. 443. 492 CHAP, v.] LIABILITY OF EXECUTOR OR ADxMIXISTRATOR. § 398 brought against the executor or administrator on his own con- tracts and engagements, though made for the benefit of the es- tate, this rule holds true ; and his promise " as executor," or " as administrator," will not alter its application.' For, having no power to bind the estate specifically by his engagements, the rep- resentative binds himself ; there can, therefore, be no judgment out of the decedent's goods, and the action must be brought declaring against him in his right. ^ The judgment is rendered dc bonis propriis, and he must respond accordingly.^ But for one to maintain such suit against the representative individually, the latter should have been an actual party to the contract or transaction. For, it is said, an executor or adminis- trator is not liable, either personally or in his representative character, for services beneficial to the estate performed without his assent, after the decedent's death and before his own appoint- ment, under contract with the special administrator or with one who declined the trust of executor.'' Even where real estate is rightfully managed by the executor, under exception to the gen- eral rule,5 such person has been held personally answerable to third persons for injuries sustained.^ § 398. Exceptional Instance of suing for Funeral Expenses, etc. — An action, however, may be maintained in various States against an executor or administrator, as such, for the funeral expenses of the deceased ; charging him thus in his representative char- acter as that judgment may be rendered de bonis dcccdcntisj ' Beaty v. Gingles, 8 Jones L. 302; Super. 26 ; Tucker 7/. Whaley, 11 R. I. Hopkins v. Morgan, 7 T. B. Mon. i. 543. ^ Barry v. Rush, i T. R. 691 ; Sum- As to suing an executor who is also ner t'. WilUams, 8 Mass. 199; Davis?', residuary legatee, and who has given French, 20 Me. 21, per Shepley, J.; bond to pay debts and legacies, see 140 supra, § 256. Mass. 66; 144 Mass. 238. ^ Seip V. Drach, 14 Penn. St. 352; ' See § 213. Powells'. Graham, 7 Taunt. 585 ; Corner ^ Bel via v. French, 84 Va. 81. 7'. Shew, 3 M. & W. 350; Wms. Exrs. ^Hapgoodz'. Houghton, 10 Pick. 154 ; 1783. Seip V. Drach, 14 Penn. St. 352 ; Rap- * Luscomb V. Ballard, 5 Gray, 403. pelyea v. Russell, i Daly, 214; Camp- And see Matthews v. Matthews, 56 field v. Ely, 13 N. J. L. 150; Samuel v. Ala. 292; Ross z/. Harden, 44 N. Y. Thomas, 51 Wis. 549- 493 § 398^ EXECUTORS AND ADMINISTRATORS. [PART IV. But the case stands on its peculiar ground of exception ; ' claims of this character taking the priority of most general debts orig- inating with the decedent himself, and being siii generis, nor de- pending wholly upon strict contracts with a representative. The modern English doctrine on this point is, that if the executor or administrator gives orders for the funeral, or ratifies or adopts the acts of another party who has given orders, he makes him- self liable personally and not in his representative capacity ; and such, too, is the rule of various States.^ § 398^. Liability of Executor or Administrator on Negotiable Instruments. — An executor or administrator who makes, in- dorses, or accepts negotiable paper, is personally liable thereon, ' Thomas, J., in Luscomb v. Ballard, 5 Gray, 405; Studley v. Willis, 134 Mass. 435. ^ Corner v. Shew, 3 M. & W. 350 ; 8 Ad. & El. 349 n.; Wms. Exrs. 1788, 1791 ; Ferrin v. Myrick, 41 N. Y. 3 15. As to supplying a tombstone, see 25 Hun, 4. As to necessaries for the fu- neral which some one else ordered, see 13 Daly, 347. And see § 421, post, as to funeral expenses. Qu. whether valuable services ren- dered in taking care of the effects, etc., after the decedent's death, and before any representative was appointed, might not be brought within the reason of this same exception in meritorious instances. This service, like that of burial, may be performed out of kindness or necessity, as it were, and without a previous con- tract, as by a custodian who must search out the kindred. See supra, § 193 ; Luscomb V. Ballard, 5 Gray, 403. When the law as to remedies proves so uncertain as to leave one in funda- mental doubt as to whether one shall sue or be sued in the individual or rep- resentative capacity, in a particular in- stance, the legislature .should intervene and make a more flexible rule. Among numerous cases which might be ad- duced in proof of the genuine uncer- tainty which has prevailed in the law, because one must distingtiish clearly be- tween contracts of the decedent and con- tracts of the decedent's representative, Austin V. Miinro, 47 N. Y. 360, is worthy of study, with the distinctions announced in the opinion of the court. In Snead V. Coleman, 7 Gratt. 300, a State court appears to have continued in a quandary as to whether the suit should have been brought against representatives officially or as individuals. It seems highly de- sirable that such litigation should be allowed to go at option or in the alter- native; that a joinder of a cause found- ed upon the contract of an intestate with one founded upon the contract of the representative should be allowed, or that the action itself should be capable of conversion from one fomi to another, final judgment being rendered according to the facts and as justice might require. At present, there is always great danger that a suit founded on a just cause of action may fall to the ground because of some misconception at the outset as to whether the contract originated with the decedent or the decedent's repre- sentative. See appendix, post. 494 CHAP, v.] LIABILITY OF EXECUTOR OR ADMINISTRATOR. § 398/* although he adds to his signature the name of his office. Nor does the mere mention of his decedent's estate in the instru- ment, deprive it necessarily of its negotiable character ; but to have that effect there must be a direction, express or implied, to pay from that fund, and not otherwise." In undertaking to bind the estate by a note, and failing for want of authority, the representative binds himself personally.-' § 398^^- Action against Executor or Administrator for Waste. — Inasmuch as the probate court has now exclusive jurisdiction, subject to appeal, of the estates of decedents, and their final settlement and distribution, including the adjustment of the ac- counts of the personal representative, the old common-law ac- tion of negligence, as brought by residuary legatees or distribu- tees against the former representative for wasting assets is not to be favored. 3 Notwithstanding such representative has ren- dered his final account and resigned, he may still be cited into the probate court, as various codes provide.'* ' Schmittler v. .Simon, loi N. Y. 737, ^ McCalley ?'. Wilburn, 77 Ala. 549. and cases cited; Higgins v. Driggs, 21 Aud see § 258. Fla. 103; Perry v. Cunningham, 40 Ark. ^ Appendix post\ §§ 189, 520; Graf- 185. fam V. Ray, 91 Me. 235. " lb. 495 § 400 EXECUTORS AND ADMINISTRATORS. [PART IV, CHAPTER VI. CO-ADMINISTRATION AND QUALIFIED ADMINISTRATION. § 399- Doctrines of foregoing Chapters apply to Qualified Trusts. — The doctrines discussed in our previous chapters, concerning the powers, duties, and habilities of the personal representative, apply, mutatis mutandis, to all executors and administrators, l^ut, as we have already observed in an earlier part of this trea- tise,' administration is not always original and general, but qual- ified in various instances, as the circumstances of appointment may require. General doctrines require, moreover, a special adaptation to suit the case, where two or more are appointed to the same trust. Co-administration and qualified administration, therefore, considered with reference to the peculiar powers and responsibilities which attach to such appointees, will claim our attention for the present chapter. v^ 400. Rights, Duties, and Liabilities of Co-Executors ; their Title and Authority. — And, first, as to the rights, duties, and liabilities of co-executors and co-administrators. Co-executors, unless the will under which they act directs otherwise, are to be treated in law as one and the same individual ; and consequently whatever each one does is taken to be the act of both or all, their authority being joint and entire.^ Hence, too, if one of them dies, the fiduciary interest, being joint and entire, will vest in the survivor ; this even, to cite the earlier writers, without any new grant of letters.^ And this survivorship carries such ' Hee stipra. Part II., c. 4. Healy, 55 Me. 120. As to the limita- ^ Wms. Exr.s. 91 1, 946 ; 3 Bac. Abr. tions which a will may have imposed in tit. Executors, D ; Wentw. Off. Ex. 206, this respect, see supra, § 51. 14th ed. ; Rigby, Ex parte, 19 Ves. 462 ; ^ Cas. temp. Talb. 127 ; Wms. Exrs. F2dmonds v. Crenshaw, 14 Pet. 166; 911. But upon this point see supra, Stewart v. Conner, 9 Ala. 803; Wilker- § 40. Where a co-executor named in son z'. Wootten, 28 Ga. 568; Oilman 7\ the will renounces probate, the others 496 CHAP. VI.] CO-ADMIN ISTKATION, ETC, § 4OO sweeping consequences that, as equity precedents establish, if all the residue of the testator's effects, after the payment of debts and legacies, were left to his co-executors, and one of them should happen to die before the joint interest in the residue was severed, his share would survive to the decedent's co-executor to the exclusion of his own personal representative ; ' a result most inequitable, and not to be admitted if, by statute provision or a fair construction of the particular will, so absolute a surviv- orship may be ruled out.' As incidental to their joint and entire title, it is held at com- mon law that if one Of two executors grants or releases his in- terest in the estate to the other, nothing shall pass, because each was possessed of the whole before ; ^ and, furthermore, that they cannot sue in right of the deceased upon a contract made by a defendant jointly with one of the co-executors, since this would be like permitting a man to sue himself.'' But, while a party bound in a contract with others, whereby he becomes both ob- ligor or obligee, cannot maintain on 'such contract an action at law ; or, in other words, cannot sue himself at law, if the con- tract be joint ;5 he may if it be joint and several. On this dis- tinction it is held, recently, that a note executed by one of two executors, in favor of himself and his co-executors, may be en- forced by the two in an action against the indorsers.*^ Of two or more executors under a will, moreover, each is entitled to receive any part of the assets, and to collect any who qualify exercise all the authority waive compensation cannot prejudice and incur all the responsibilities inci- therightsof his co-executors. i4Phila. dental to the office. Supra, § 51. 290. ' Wms. Exrs. 913; 2 Bro. C. C. 220; ^ Godolph. pt. 2, c. 16, § i ; Wms. 3 Bro. C. C. 455; Knight v. Gould, 2 Exrs. 911. My. & K. 295. "I Godolph. pt. 12, $ 2; Wms. Exrs. - If one of several legatees be an e.x- 913 ; 2 Chitt. 339. ecutor, his single assent to his own leg- ' Moffat v. Van Millingen, 2 B. & P. acy will vest the title in him ; or, if the 124. subject be entire, and be given to all the '' Faulkner v. Faulkner, 73 Mo. 327. executors, one may assent sufficiently to A note given by an executor in favor of his own proportion, i Roll. Abr. 618; himself and his co-executor, for money Wms. Exrs. 948; Cole v. Miles, 10 of the estate used by himself, is not void Hare, 179. for want of consideration. lb. The agreement of one executor to 32 497 § 400 EXECUTORS AND ADMINISTRATORS. [PART IV. debts.' An assignment or release, valid under the general rules of administration, is valid when given by any one of them.^ It is held that one executor may release or assign a mortgage of real -or personal property belonging to the estate without the signature or assent of his co-executors.^ Or enter into an ami- cable action, and submit to an arbitration.^ Or compromise as any other executor or administrator may do.5 Or assign or in- dorse over a promissory note made payable to the testator.^ Or settle an account with a debtor, provided he does so honestly and with the usual measure of prudence. ^ Or grant or surren- der a lease or term.** Or sell and dispose of assets on behalf of all.9 Or assent sufficiently to a legacy.'" Or make due ac- knowledgment that a debt is due." Or discharge a security taken for the payment of a debt due the estate, on a satisfaction made to him.'^ In short, as regards personal assets, any one of two or more co-executors may do whatever both or all could have done, and under like qualifications,'^ and the act of one within the scope of his duties binds the others. While, however, one executor may thus transfer the legal title to property, and even make a delivery not in all respects effectual as to title, which shall, nevertheless, give the trans- feree every legal advantage, a court of equity declines, wherever its assistance is invoked, to enforce or confirm an unjust trans- ' Edmonds z/. Crenshaw, 14 Pet. 1 66; * Dwight v. Newell, 15 111. t^h; Stewart v. Conner, 9 Ala. 803. Bogert v. Hertell, 4 Hill, 492 ; Wheeler ^ As to release, see Wms. Exrs. 946 ; v. Wheeler, 9 Cow. 34. 2 Ves. Sen. 267 ; Shaw v. Berry, 35 '' Smith v. Everett, 27 Beav. 446. Me. 279; Stuyvesant v. Hall, 2 Barb. * Simpson v. Gutteridge, i Madd. 151; Devling v. Little, 26 Penn. St. 616. And see 11 M. & W. 773, com- 502 ; Hoke v. Fleming, 10 Ired. L. 263. menting upon Turner v. Hardey, 9 M. But several releases by joint executors & W. 770. do not bar their legal joint claim against ' Cro. Eliz. 478; Murrell 7.'. Cox, 2 the debtor. Pearce z/. Savage, 51 Me. Vern. 570. But cf. Sneesby z'. Thorne, 410. 7 De G. M. & G. 399. 3 Weir V. Mosher, 19 Wis. 311 ; Son '° Wentw. Off. Ex. 413; Wms. Exrs. V. Miner, 37 Barb. 466 ; George v. 948. Baker, 3 Allen, 326. And see Bogert " (1897) 2 Ch. 181. V. Hertell, 4 Hill, 492. " People v. Keyser, 28 N. Y. 226. < Lank v. Kinder, 4 Haning. 457. '' Bodley v. McKinney, 9 Sm. & M. 5 Weirt'. Mosher, 19 Wis. 311 ; Wms. 339; Barry v. Lambert, 98 N. V. 300. Exrs. 946 and Perkins's note. 498 CHAl'. VI.] CO-ADMINISTRATION, ETC. § 40 1 action of this character;' and, perhaps, on the suggestion of fraud, collusion, and unfair dealing, will set aside or disallow the transaction, at the instance of the co-executor.- For the acts of any co-executor, committed outside the scope of an honest and sufficiently prudent administration, are not to be sustained in courts of equity or probate. § 401. The same Subject. — In the settlement of an estate by co-executors, the exclusive custody and control of the assets vests in no one of their number. Each executor has a right of possession to the personal property, and a right of access to the papers.'' The act of one, in possessing himself of assets, is the act of all, so as to entitle them to a joint interest in possession, and a joint right of action if they are afterwards taken away.' But there may be a contract between joint executors concern- ing the funds of the estate and management, and this upon per- fectly valid consideration as between themselves.' And, in order to act with becoming prudence, it is well that the funds should be kept so that both or all the executors shall exercise control or supervision thereof together. Where such is the case, any person dealing with them is bound upon notice to recognize their joint title.-' It is held, moreover, that one of two executors cannot assign or indorse over a negotiable note made to them both, as execu- tors, for a debt due to their testator.^ And the modern course of authority does not permit a co-executor to bind the others l^ersonally by his new promise to pay in future even a debt of the estate ; and such a promise, or an admission of indebtedness, ' Lepard -,•. Vernon, 2 Ves. & B. 51 ; 153; Wood v. Brown, 34 N. V. 337; Sneesby v. Thorne, 7 De G. M. & G. Hall v. Carter, 8 Ga. 388. 399. '•Nation v. Tozer, i Cr. M. & K. 174, ^ Wms. Exrs. 948, note ; Touchst. per Parke, B. 484; Le Baron?'. Long Island Bank, = Berry v. Tait, 1 Hill (S. C.) 4; 53 How. (N. Y.) Pr. 286. As to aid- Faulkner v. Faulkner, 73 Mo. 327. ing in equity a deed made by one co- ^Thus, if they open a joint account e.xecutor, but authorized and approved with a banker, both must unite in a re- by the others as merely an imperfect ceipt or check in order to discharge execution of the power given by the will, him. De Haven v. Williams, 80 Penn. see Giddings v. Butler, 47 Tex. 535. St. 480. And see 50 La. Ann. 382. ^Chew's Estate, 2 Pars. Sel. (Pa.) ^ Smith ?'. Whiting, 9 Mass. 334. 499 § 402 EXECUTORS AND ADMINISTRATORS. [PART IV. cannot be received in evidence against his co-executors ; and the same holds true where the promise is expressed by an instru- ment signed by one of the executors alone.' As to whether the new promise of one executor can bind the estate, however, the decisions are found discordant in jurisdictions where a positive rule fixed by the legislature is wanting.-' All the executors who have qualified ought to join in execut- ing a testamentary power of sale or purchase.' § 402. Co-Executors ; their Liability, etc. — Good faith and the usual measure of prudence applicable to fiduciaries should char- acterize the conduct and dealings of co-executors. In admin- istering the assets, each co-executor is at this day often held responsible for the safety of the fund, so as not to be utterly excused from losses incurred by the carelessness or misconduct of his fellow.^ A dishonest, unauthorized, or imprudent sale, transfer, or investment is no more to be sanctioned where the executorship is joint than where it is sole.5 And, inasmuch as each executor has an independent right to control and transfer the assets, one is bound not to be heedless as to his co-executor's conduct, but rather, as in requiring a joint deposit or transfer, ' TuUock t'. Dunn, Ry. & Moo. 416; promise or acknowledgment growing Scholey ■:■. Walton, 12 M. & W. 509; out of the decedent's original contract, Forsyth 7'. (lanson, 5 Wend. 558; El- the difficulty is fundamental. The Eng- Avood -'. Diefendorf, 5 Harl). 398. One lish view is not clearly expressed, of several executors has no power to Scholey r. Walton, supra. But the charge the estate or his co-executor by subject is now controlled in that country indorsing a note in the name of the es- by stat. 9 Geo. IV. c. 14, § i, which tate, even though it be given in renewal provides that the promise shall be in of one indorsed by the testator in his writing, and shall only affect the execu- lifetime. Bailey r/. Spofford, 21 N. V. tor making it. Supr. 86. See supra, §293, as to the As to co-executors carrying on under effect of a representative's promissory the will a partnership business, see 54 note. Cf. (1897) 2 Ch. 181. N. J. Eq. 127. ^See Shreve v. Joyce, 36 N. J. L. 44, ^Wilson v. Mason, 15S 111. 304. where it is held that it can. And see ■• De Haven z'. Williams, 80 Penn. Emerson 7:. Thompson, 16 Mass. 431 ; St. 480. Cayuga Co. Hank v. Bennett, 5 Hill, ' Le Baron -■. Long Island Bank, 53 236. But the promise of one will not How. (N. Y.) Pr. 286 ; Lacey v. Davis, avail again.st the estate in some States. 4 Redf. (N. Y.) 402 ; Case v. Abell, I Peck V. Bottsford, 7 Conn. 172 ; Rey- I'aige, 393. nolds V. Hamilton, 7 Watts, 420. The 500 CHAP. VI.] CO-ADMINISTRATION, ETC, § 402 or joint investment of funds, to impose a check upon the other's authority. For, if an executor, by any act or default on his part, places the estate and its management in the exclusive power of his co-executor, he takes the perils of the latter's mal- administration upon himself, unless he exercised what American courts would call ordinary prudence.' Thus, if an executor delivers or assigns securities to his co- executor in order to enable the latter to receive the money alone,^ or draws or indorses in his favor a bill or note to a sim- ilar end,^ or leaves him free to negotiate a transfer or make a sale at his sole discretion, or gives him a power of attorney on his own behalf, thereby deputing that control and supervision which the office made it incumbent upon a co-executor to exer- cise, he cannot wholly escape legal liability for the ill conse- quences.'* Nor is he exempt from a personal liability, if he neg- lect unreasonably enforcing the payment of a debt which his co-executor owed the estate, and was legally bound to pay.' But, if he can show that his own conduct was within the usual rule of prudence and good faith, under all the circumstances, and that he did not contribute to the loss, upon such a standard of liability, he is excused ; for the cardinal doctrine is that co- executors are liable each for his own acts and conduct, and not for the acts or conduct of his co-executors.*^ 'See supra, § 315. The English Marsh. 442 ; Head v. Bridges, 67 Ga. cases may consistently treat the co- 227. fiduciary as one having no recompense, ' Styles v. Guy, i Mac. & G. 422 ; and hence, as required, rather to exer- Candler v. Tillett, 22 Beav. 257 ; Carter cise slight prudence, like a gratuitous v. Cutting, 5 Munf. 223. An executor bailee, or so as not to be in " wilful -who allows his co-executor to gain un- neglect or default." lb. It does not due advantage over other creditors, is appear that the Enghsh precedents fur- liable. McCormick v. Wright, 79 Va. nish the true standard for American 524. So is one who collects assets suf- courts in this respect. ficient to pay a debt, and then pays ^Candler v. Tillett, 22 Beav. 236. them over to his sick and insolvent co- '2 Bro. Ch. 114; Hovey v. Blake- e.xecutor. Knight v. Haynie, 74 Ala. man, 4 Yes. 608. 542. ■•Clough V. Di.xon, 3 M. & C. 497; *Cro. Ehz. 318; Wentw. Oft. Kx. Dix^-. Burford, 19 Beav. 412; Edmonds 306; Wms. Exrs. 1820, and note by T'. Crenshaw, 14 Pet. 166; Sparhawk -■. Perkins; Williams v. Nixon, 2 Beav. Buell, 9 Vt. 41; Wood v. Brown, 34 472; Peter v. Beverly, 10 Pet. 532; ^- ^- 337; Heath v. Alhn, i A. K. Peny Tnists, § 421 ; Douglas r'. Satter- 501 § 402 EXECUTORS AND ADMINISTRATORS. [PART IV, The rule as thus announced may appear somewhat different from that applied in equity to co-trustees, whose functions, for the most part, as depending upon the express terms of the will lee, II John. i6; Fennimore ?'. Fenni- more, 2 Green Ch. 292 ; Ames <■'. Arm- strong, 106 Mass. 18 ; Moore v. Tandy, 3 Bibb, 97 ; Williams v. Maitland, i Ired. Eq. 92; Kerr v. Water, 19 Ga. 136; Call V. E^\-ing, i Blackf. 301. Putting assets into sole control of one executor may be justified in course of business. (1894) i Ch. 470. At common law the acts of each ex- ecutor wthin the scope of his authority, are, as concerns administration, the acts of all, with this qualification : that at common law each was responsible only for such assets as came to his own hands. Under ordinary circumstances, one of two or more executors was not to be held accountable for waste or other misconduct on his associate's part ; and his misplaced confidence in the latter's integrity and capacity was not allowed to operate to his own prej- udice. Ames, J., in Ames v. Arm- strong, 106 Mass. 18. But the develop- ment of this doctrine in courts of equity appears to have established the rule of the present day upon a somewhat dif- ferent footing, as the text indicates; the question coming to be regarded, in view of the great extent to which any one of them could practically control and dispose of assets, rather a.s involv- ing the element of contrilnitory negligence or fraud, on the part of the executor who claims immunity. And the view taken by courts of probate and equity, in passing upon the accounts of execu- torship, becomes more and more the material one in such cases. Even at common law, as it is admitted, when- ever any part of the estate, by any act or agreement of one executor, passes or is intrusted to the custody of a co- executor, they are thereby rendered jointly responsible ; for the inference 5 arises that one, notwithstanding his power and opportunity to make the joint possession secure, has chosen to yield control to the other. Ames, J., in Ames v. Armstrong, supra. The whole subject seems to have been spun by the courts into a very fine web, reach- ing from point to point, but coming round again to the starting-place. The mere circumstance that assets came to the hands of one's co-executor, does not, it is held, render him also liable. U. S. Dig. ist series, Exrs. & Admrs. 1711; Wms. Exrs. 1821. But it is said to be different where an execu- tor hands them over to his co-executor, and the latter misappHes them. Dick. 356; Macpherson t'. Macpherson, i Macq. H. of L. 243 ; Sparhawk z\ Buell, 9 Vt. 41 ; Edmonds v. Crenshaw, 14 Pet. 166. Passiveness, in not obstruct- ing the co-executor who gets control of the assets, has been considered as in- volving no liability. 11 Ves. 335; Candler v. Tillett, 22 Beav. 257. But the exceptions engrafted upon this state- ment have much impaired its efficacy. I Mac. & G. 433 n. ; Wms. Exrs. 1822, 1827. To stand by and see the co-ex- ecutor commit a breach of duty renders one clearly liable. lb. "The rule," adds Williams, " may, perhaps, be stated to be, that where, by any act done by one executor, any part of the represen- tative estate comes to the hands of his co-executor, the former will be answer- able for the latter, in the same manner as he would have been for a stranger whom he had intru.sted to receive it." Wms. Exrs. 1822, referring to Cox's note to 1 P. Wms. 241 ; also 2 Bro. C. C. 117; Booth V. Booth, i Beav. 125; Styles V. Guy, i Mac. & G. 422. Fail- ing to withdraw money from a banker, who happens to turn out insolvent, does 02 CHAP. VI.] CO-ADMINISTRATION, ETC. § 402 or deed which created their authority, require that all should join in a particular act. Consequently, while co-trustees may not be liable for money which they did not receive, although they all joined in the receipt, co-executors have usually been held liable in such a case ; for the act is an unmeaning one and unnecessary, unless they intend thereby to render themselves jointly answera- ble for the money." Notwithstanding the numerous refine- ments of equity courts upon this rule (which Lord Eldon de- plored), the only substantial exception appears to be that the mere joining in the receipt shall not have the conclusive effect of charging both.^ The reconciling principle appears to be that a co-executor who joins in a receipt is bound by the consequences, to the usual ex- tent of requiring prudence and good faith ; but that the act of so not necessarily charge a co-executor, nor who received all the assets, managed the indeed a sole executor; and so with changing investments, originally justifi- able, but which eventually prove unfor- tunate; or confiding in some agent or a co-executor who abuses the confidence placed in him. Wms. Exrs. 1825, 1826 ; sit^ra, ^^ 321,323; Chambers z\ Min- chin, 7 Ves. 193; Worth v. McAden, i Dev. & Bat. Eq. 199 ; Adair z'. Brimmer, 74 N. Y. 539. But to intrust large sums and large authority to one notoriously insolvent or irresponsible is a very dif- ferent matter. The question reverts, in short, to the customary issue of good faith and prudence, considering all the circumstances, as in the case of a sole executor or administrator. And this issue becomes crucial, in a case where one executor actively manages, while the other is passive, as the law permits. See Cocks v. Haviland, 124 N. Y. 426. The understanding of all concerned may have something to do with reducing liability. Where one who qualified as co-executor gave the beneficiaries dis- tinctly to understand that he should not act, and all parties believed in the sol- vency and probity of the other executor estate alone and prepared the accounts, he was held not personally liable. Eng- hsh V. Newell, 42 N. J. Eq. 76. But where a co-executor -with the testator's ^^•idow yielded to her wish to permit her son to manage the estate, and the son managed badly, the co-executor was held hable as such to other parties in interest ; and here he had joined in exe- cuting papers when requested. Earle V. Earle, 93 N. Y. 104. Where a lawyer is co-executor with an unprofessional person, the peculiar confidence natu- rally reposed in one by reason of his superior knowledge is a shield to the other party. 4 Dem. 528. ' Perry Trusts, § 421 ; 2 Eq. Cas. Abr. 456 ; Leigh v. Barry, 3 Atk. 584 ; Monell V. Monell, 5 John. Ch. 283 ; Jones's Appeal, 8 W. & S. 143; Clarke V. Jenkins, 3 Rich. Eq. 318. ^ Westley v. Clarke, i Eden, 357 ; Doyle V. Blake, 2 Sch. & Lef. 242 ; Chambers v. Minchin, 7 Ves. 198. The course of the English precedents on this subject is traced in Wms. Exrs. 1834, 1835. And see Monell r/. Monpll, 5 John. Ch. 283 ; Lord Eldon's remarks in Walker v. Symons, 3 Swanst. 64. 503 § 402 EXECUTORS AND ADMINISTRATORS. [PART IV. joining, though /yn'?na fade importing that the money came to the hands of both, is not conclusive evidence, but may be ex- plained so as possibly to exonerate him. Where the act itself is such that, as under a trust, all the executors must join in it, the liability is placed rather on the footing of co-trusteeship ; or, perhaps, it should be said that a court treats it as not imprudent for one to rely upon the assurance that no transfer or misappro- priation can be made without his concurrence in the act. Thus would it be, for instance, where a power was vested in both un- der the will ; ' or where stock cannot be transferred except by the signatures of all ; ^ or where both must join in a petition ; ^ or where the indorsement or assignment of some specific instru- ment requires the joint assent ; or where the fund is deposited so as to remain subject to their joint check.-* Even thus, culpa- ble carelessness in permitting the proceeds of the sale, or trans- fer, or assignment, to be paid to one, or the joint check collected by himself alone, would charge the co-executor who confided too imprudently in his associate.5 For funds he suffers to be left unreasonably long in his co-executor's hands, or loans to him, the executor is responsible if they are misapplied, though as far as they are duly applied in the course of administration he is in- demnified.'' One executor has no right to rely upon the repre- sentations of his associate, but is bound to use due diligence in ' Smith z/. Moore, 6 Dana, 417; Bank ^ 40 N.J. Eq. 173. of Port Gibson v. Baugh, 9 Sm. & M. * De Haven z'. Williams, 80 Penn. St. 290; Kling V. Hummer, 2 Pa. 349; 480. See Child v. Thorley, L. R. 16 Carroll v. Stewart, 4 Rich. 200. It is Ch. D. 151. A New York statute a well-established principle that power authorizes the siirrogate to require conferred by will on two or more execu- money to be deposited to joint credit, tors or trustees, unless a different inten- 5 Dem. 414. tion is expressed in, or can be properly ' Croft 7\ Williams, 23 Hun (N. Y.) inferred from, the will which confers 102. A loan by co-executors to one of the power, cannot be legally and prop- them is a breach of trust, rendering all erly executed, unless all the co-executors Hable. Stickney z-. Sewell, i My. &Cr. or co-trustees to whom such power is 8; W^ms. Exrs. 1809. delegated join in its execution. See '' Scurfield v. Howes, 3 Bro. Ch. 91 ; Hart V. Rust, 46 Tex. 556; Adair v. 11 Ves. 252; Croft z'. Williams, 23 Hun Brimmer, 74 N. Y. 539. (N. Y.) 102; Lincoln r-. Wright, 4 Beav. ^ Chambers ?■. Minchin, 7 Ves. 197 ; 427 ; Perry Trusts, § 423 ; Hays v. Hovey v. Blakeman, 4 Ves. 608. And Hays, 3 Tenn. Ch. 88. see Stat. 8 & 9 Vict. c. 91, cited Wms. Exrs. 948, 1825. 504 CHAP. VI.] CO-ADMINISTRATION, ETC. § 402 ascertaining for himself whether those representations are true.' And one may become privy to a misappHcation of funds by his co-executor, so as to become liable, when he tacitly suffers it to be done without making a remonstrance ; ^ for the act of one ex- ecutor may be considered as adopted by his co-executor, when the latter's conduct virtually amounts to an assent, however re- luctantly given.' As a rule each of two or more co-executors has full power of administration ; '' and each \^ prima facie liable tor the entire amount shown to be due on their joint account.^ In short, an executor who, by his culpable negligence or fraud, suffers his co-executor to waste the estate, participates in the breach of trust so as to render himself liable to the benefi- ciaries i"^ and each case of this kind must depend largely upon its own peculiar circumstances, taking into account the apparent knowledge and acquiescence of one executor in the acts and transactions of the other, and the power and control which the former may have deliberately permitted the latter to exercise.'' ' Chambers v. Minchin, 7 Ves. 197 ; Shipbrook v. Hinchenbrook, 1 1 Ves. 254; Perry Trusts, § 423; Clark v. Clark, 8 Paige, 152. See Atcheson v.' Robertson, 3 Rich. Eq. 132. ^ V^hitney v. Phoenix, 4 Redf. (N.Y.) 180; Brown's Accounting, 15 Abb. Pr. N. S. 457- ^ Nelson v. Carrington, 4 Munf. 332. "• A debtor of the estate who makes payment bona fide to one of several ex- ecutors who squanders the money so re- ceived, cannot be held to further liabil- ity; for each executor had power to make collections. Stone v. Union Sav- ings Bank, 13 R. I. 25. Giving up the voucher of liability to the debtor dis- charges him the more clearly. Hyatt v. McBurney, 18 S. C. 199. ' Cassel's Estate, 180 Penn. St. 252. * Holcombe v. Holcombe, 13 N. J. Eq. 413; Hengst's Appeal, 24 Penn. St. 413; McDowall V. McDowall, i Bailey Eq. 324 ; Adair v. Brimmer, 74 N. Y. 539; Anderson v. Earle, 9 S. C. 460; 98 Ga. 310. "Blake v. Pegram, 109 Mass. 541; Fonte V. Horton, 36 Miss. 350; Clarke V. Blount, 2 Dev. Eq. 51. Permitting one executor to have securities for a sale, on his promise to pay the proceeds into the joint account, which promise he failed to keep, is not necessarily such culpable negligence as charges the other co-executors who thus confided, espe- cially if that co-executor was under bonds or gave good security. Adair v. Brimmer, 74 N. Y. 539. But where ex- cessive payments are made or moneys drawn by one executor, with the con- sent or acquiescence of the others, out of a fund which has been collected and has come into their joint possession and control, they all become liable to make the excess good to beneficiaries whose rights under the will are at any stage impaired thereby. So, too, where an executor, by his negligence, suffers his co-executor to receive and waste the e.s- tate, when he might by proper care have prevented it, he is liable to the bene- ficiaries for the waste. lb. Where 505 § 40- EXECUTORS AND ADMINISTRATORS. [PART IV. And for wrongful knowledge and connivance at his co-executor's misconduct he is more strongly answerable than for carelessness with honest intent.' But one of several executors has no inherent authority to borrow money without the assent of the others ; nor is such as- sent to be assumed from the fact that the loan procured was for the benefit of the estate.^ It is held that one cannot alone create a pecuniary liability by his purchase.^ And that where one knows of a superior debt, and conceals the fact from his co-executor, the latter shall not be considered guilty of a devas- tavit, by paying the inferior debt."* For the proceeds of a claim, known to one only of the co-executors, and collected by him, or for other assets coming to his secret possession, he alone ought prima facie to be held accountable. In general, therefore, where an executor performs acts outside the usual scope of au- thority incidental to administration, thereby rendering himself and not the estate immediately liable, it can usually impute no blame to his co-executor, who was ignorant thereof, that the latter took no precaution to save the estate from loss ; and hence, such co-executor is not to be held responsible, unless, at all events, he was culpably careless in procuring knowledge of the transaction, or in acting upon such knowledge after he had money which should have been invested was in fact in the sole charge of A., and was permitted to accumulate and was B. died four years after; and six years used and lost in the business of the after A.'s death B. absconded, having executor who received the money, the been of good repute; and three years co-executor was held liable ; but not for later an attempt was made to charge the other executor's act in pledging se- A.'s estate ; the court refused such curities of the estate for his own bene- relief. Young's Appeal, 99 Penn. St. fit. Wilmerding 57. McKesson, 103 N. V. 74. Where two executors send mer- 329. chandise [e.g. cotton) abroad to be sold. An executor cannot be charged in his either may draw* for the proceeds of probate accounts with money that never sale; and if one draws and misappro- came to his hands but to the hands of priates, the latter unless at fault is not his co-executor; but his liability, if any, liable. Tompkins v. Tompkins, 18 for negligence is enforceable in equity S. C. i. only. Duncan v. Dawson, 40 N. J. Eq. ' Wilmerding z'. McKesson, 103 N. V. 535. The possible loss he may have 329. Good faith may keep him from occasioned the estate is an important being charged compound interest, element in such liability. 50 N. J. Eq. -Bryan t'. Stewart, S3 N. \'. 270. 8. And where co-executors filed a joint ^ Scruggs t'. Driver, 13 Ala. 274. account admitting a cash balance, which * Hawkins v. Day, Ambl. 162. 506 CHAP. VI.] CO-ADMINISTRATION, ETC. § 403 gained it. For his own fraud alone, or his own negligence, whether as a contributory or otherwise, should each executor be held char "cable.' § 403. Co-Executors ; Actions by and against. — All executors should join in bringing actions on behalf of the estate,^ and cor- respondingly should be sued together. But if one executor con- tracts alone on his own account, it would appear that he must sue alone on such contract, notwithstanding the proceeds recov- ered will be assets.^ And upon a sale of assets made by him- self alone, he doubtless may sue for the price, not naming him- self executor ; ■♦ so, if goods be taken out of the possession of one, he may sue alone to recover them. 5 ' Directions in a will, which vest a pe- culiar confidence and control of assets in one of the executors, may be set up by the co-executor as relieving him spe- cially of an abuse by the other which was without his own participation. Van- pelt V. Veghte, 14 N. J. L. 107. Where the testamentary functions are divided by the will, and each confines himself to his allotted functions, the liability appears to be several and not joint. Girod V. Pargoud, 1 1 La. Ann. 329. But co-executors are not authorized to divide the management of the estate between themselves, so that each shall take sole charge of a certain part. Bermingham v. Wilcox, 120 Cal. 467. Cf. as to a surcharge, Mueller's Es- tate, 190 Penn. St. 601. - Wms. Exrs. 956, 1867, and Perkins's note; i Chitty PI. i6th Am. ed. 21, 23 ; Bodle V. Hulse, 5 Wend. 313. Advan- tage should be taken of non-joinder, however, by a plea in abatement, i Saund. 291 ; i Chitty PI. i6th Am. ed. 23; Packer v. Willson, 15 Wend. 343; Wms. E.xrs. 1868. The common law- appears to have insisted that even those neglecting or renouncing probate should join in the action, i Salk. 3; 9 Co. 37 a; Creswick v. Woodhead, 4 M. & Gr. 811. But this formality is incon- sistent with equity practice, and, indeed, with our whole modern theory of pro- bate, which insists that only executors who qualify and receive the probate cre- dentials shall be required or entitled to sue. Davies v. Williams, i Sim. 8 ; Thompson v. Graham, i Paige, 3S4 ; Rinehart v. Rinehart, 15 N. J. Eq. 44; Heron v. Hoffner, 3 Rawle, 393 ; Al- ston V. Alston, 3 Ired. 447. Modern practice acts are to the same puiport. Moore v. Willett, 2 Hilt. 522. And in England, under the recent probate act, the rule has been altered so as to har- monize with this theory. Wms. Exrs. 286 ; Act 20 & 21 Vict. c. 77, § 79. Co- executors, when sued, may plead differ- ently. Wms. Exrs. 1942; i Stra. 20; I Roll. Abr. 929 ; Geddis v. Irvine, 5 Penn. St. 308. Where one of two co- executors presents his account the other may contest it. 4 Dem. 364. The release of one co-executor from liability does not discharge the other, especially if the latter be the real party to blame. 74 Cal. 199. 3 Heath v. Chilton, 12 M. & W. 632. ■I Brassington v. Ault, 2 Bing. 177; Wentw. Off. Ex. 224 ; Wms. Exrs. 91 1 ; Aiken v. Bridgman, 37 Vt. 249; Lay- cock V. Oleson, 60 111. 30. -' Wms. Exrs. 1 869. See supra, §281. 507 § 404 EXECUTORS AND ADMINISTRATORS. [PART IV. As a rule, co-executors cannot sue or be sued at law, by one another.' But here, as elsewhere, we speak of co-executors in the modern sense, that they have all accepted and qualified themselves for the trust.' In equity, contrary to the rule of law, one executor may sue another ; and courts of equity will entertain such proceedings for the purpose of making a delin- quent executor liable to his co-executor, to force an account, to complete the foreclosure of a mortgage, and otherwise where justice requires it, and there is no adequate redress at law.^ In some States it is now held that an executor may sue his co- executor on the latter's express promise ; ^ and in other special instances. 5 Equity may be invoked to relieve one executor from the fraudulent misconduct of his co-executor, and to enjoin mal- administration from being committed.^' § 404. Rights, Duties, and Liabilities of Co- Administrators. — In respect of rights, duties, and liabilities, co-administrators stand upon the same footing as co-executors ; with, of course, the difference that their functions, being defined by general and positive law, are scarcely capable of special variation. Co- administrators are to be regarded in the light of an individual person. Their interest is joint and entire ; the acts of one in ' Wentw. Off. Ex. 75 ; Wms. Exrs. who comes into equity has a bad stand- gry. ing. Bowen z/. Richardson, 133 Mass. - Thus, a creditor of the deceased who 293 ; King v. Shackleford, 13 Ala. 435. is made an executor by the will, and ac- ''Phillips?'. Phillips, 1 Stew. (Ala.) 71. cepts the office, cannot sue his co- ' Where one of the co-executors gives executor on the demand. Saunders v. the debtor a direction in violation of Saunders, 2 Litt. 314; Martin v. Mar- his duty, and refuses to join in a suit tin, 13 Mo. 36. But if he renounced for the debt, the other executor may sue the trust in effect, he can; for he is then for the debt, and join his co-executor no executor. Dorchester v. Webb, W. as defendant. Strever v. Feltman, i Jones, 345 ; Wms. Exrs. 957, and Per- Thomp. & C. (N. Y.) 277. kins'snote; Hunter i/. Hunter, 19 Barb. *> Nason v. Smalley, 8 Vt. 118; El- 631. mendorf v. Lansing, 4 Johns. Ch. 562; ^ Peaker'. Ledger, 8 Hare, 313 ; Case's Sheehan v. Kennelly, 32 Ga. 145. Appeal, 35 Conn. 117; Wms. Exrs. A desirable course, in modern pro- 191 1, and Perkins's note; Storms z'. bate practi-ce, where a co-executor mis- Quackenbush, 34 N. J. Eq. 201 ; Mc- behaves or becomes unsuitable for the Gregor v. McGregor, 35 N. V. 218; 35 trust, is to procure his removal or resig- N. J. Eq. 374; 4 N. J. L. 189; 56 N. nation. See supra, § 154 ; Hesson v. J. Eq. 102. But not where the party Hesson, 14 Md. 8. 508 CHAi'. VI. CO-A DM 1 N 1 ST K A r lO X, ETC. § 405 respect of administration are taken to be the acts of all ; ' and as to liability for one another's acts, the doctrine corresponds to that of co-executorship.- An agreement between co-administra- tors that one of them alone shall manage the estate is pronounced void as against public policy. ^ Joint administration is a trust never to be forced upon persons unwilling to serve together.'* § 405- Survivorship among Co-Executors or Co- Administrators. — The authority of an executor, as we have observed, is not determined by the death of his co-executor, but survives to him.^ And so, too, is it with co-administrators.'' Where, however, the will gives a power (as for selling lands) to several executors, and one of them dies, it has been a question whether the sur- vivor or survivors can exercise that power ; but judicial inclina- tion must be to decide in the affirmative, ^ wherever the terms of the will admit of a favorable construction.'' A power to sell ' One of two joint administrators may realize a right of action which belonged to the decedent. Bryan ?'. Thompson, 7 J. J. Marsh. 587 ; Gage v. John.son, i McCord, 492 ; Murray v. Blatchford, i Wend. 583. And see Rick v. Gilson, i Penn. St. 54. But a note, being made payable to the co-administrators, one alone cannot assign it. Sanders v. Blain, 6 J. J. Marsh. 446. And as to part payment to one of several admin- istrators, see GuUedge v. Berry, 31 Miss. 346. ^ Johnson v. Corbett, 1 1 Paige, 265 ; Jeroms v. Jeroms, 18 Barb. 24. Lord Hardwicke once attempted a distinction as between co-executors and co-adminis- trators, the latter being appointed solely by the ordinary. Hudson v. Hudson, 1 Atk. 460. But the dictiivi was after- wards disapproved. Jacomb v. Har- wood, 2 Ves. Sen. 268 ; Smith v. Everett, 27 Beav. 445; Wms. Exrs. 950. But see Gordon v. Finlay, 3 Hawks, 239. ^Wilson V. Lineberger, 94 N. C. 641. *Erubaker's Appeal, 98 Penn. St. 21. ^ Flanders v. Clarke, 3 Atk. 509 ; supra, §51; Anderson v. Stockdale, 62 Tex. 54. An executor appointed by the surviving executor in the place of the deceased, under a provision in the will, is also clothed with the trust estate in the place of his predecessor. Mul- ford V. Mulford, 42 N. J. Eq. 68. ^Cas. temp. Talb. 127; Wms. Exrs. 911, 951. It is thus, in general, where one of the representatives is removed or allowed to resign the trust. See supra, §41 ; Shelton v. Homer, 5 Met. 462. ^ Wms. Exrs. 954-956 ; Co. Litt. 113a, and Hargrave's note ; i Sugd. Pow. 144, 6th ed. ; Brassey v. Chalmers, 16 Beav. 231 ; s. c. 4 De G. M. & G. 528. ^i Sugd. Pow. 141 ; Wms. Exrs. 7th ed. 954 ; Goulds'. Mathers, 104 Mass. 283. Where the number of co-execu tors is lessened by one renouncing probate a similar question of testamen- tary construction may arise. Granville 7'. McNeile, 7 Hare, 156. If the power is conferred upon co-executors in their official capacity and not by name as individuals, the disqualification of one leaves the power in the other. 54 N. J. Eq. 108. 509 § 405 EXECUTORS AND ADMINISTRATORS. [PART IV. which arises from impHcation, instead of being expressed, is held to survive, as among co-executors, in the same manner.' Even where the power itself is extinguished, equity will interpose to avert mischievous consequences, by compelling the person having the legal estate to execute it.' The personal representative of a deceased co-executor cannot, according to the old rule of common law, be sued by his survivor in the trust, for a debt due to their testator,^ nor in respect to a breach of trust. But our modern practice acts relax this doc- trine to a considerable extent. ■♦ In equity, moreover, the sur- viving executor, if himself innocent of participation in the wrong, may file a bill to have set aside a transaction committed in breach of trust, by his associate, during his lifetime ; 5 nor, a-s, it is held, does the fact of his having taken 6ut administration upon the estate of the executor who misconducted in the trust, dis- qualify him from maintaining his suit.^ Redress is granted by equity in other instances, on behalf of the surviving executor or executors.7 So, too, is a bill in equity maintainable by the personal rep- resentative of one executor or administrator against the surviv- ing executor or administrator, for account and settlement of affairs arising out of the joint administration.^ ' Wms. Exrs. 655, 955 ; Forbes t>. dies, resigns, or is removed, the sur- Peacock, 1 1 M. & W. 630 ; 4 Kent vivor, as riglitfully entitled to assets, Com. 325-327 ; Treadwell v. Cordis, 5 may sue him or his estate at law; at Gray, 341 ; Peter v. Beverly, 10 Pet. least if it be upon a promissory note or 532 ; Wms. Exrs. 955, and Perkins's instrument executed by the late associ- note. ate. Hendricks 7a Thornton, 45 Ala. ^Sugd. Pow. 144; Wms. Exrs. 956. 299. For co-executors to execute a power ^ See, as to setting aside a mortgage in favor of one of the co-executors of assets, made by the deceased execu- named, who has renounced or resigned, tor in breach of trust, Miles v. Durn- appears upon some controversy to be ford, 2 De G. M. & G. 641. And see legal. Mackintosh v. Barber, i Bing. Turner v. Wilkins, 56 Ala. 173. 50. But equity may well refuse coun- *" Miles v. Durnford, supra. tenance to an execution of this kind, as ' As for enforcing a decree against being contrary to good policy and a tes- the late co-executor, see Chew's Appeal, tator's presumed intention. Shelton z/. 2 Grant (Pa.) 294. Homer, 5 Met. 467 ; Wms. Exrs. 953. * Huff v. Thrash, 75 Va. 546. And ^Wentw. Off. Ex. 75; Wms. Exrs. see Fitzsimmons v. Cassell, 98 111. 332. 957. An administrator cannot maintain a suit 'When an executor or administrator in equity to compel his co-administrator CHAP. VI.] CO-ADMINISTRATION, ETC. § 406 § 406. Liability of Co-Executors and Co-Adiuiuiatrators on Bonds ; Joint or Several Bonds. — Where co-executors or co- administrators qualify by giving bond to the judge of probate, as they are usually in modern practice compelled to do before letters can issue to them/ the form of the bond executed may affect very seriously their liability, and that of their sureties, to persons interested in the estate. Co-executors or co-adminis- trators, who give a joint and several bond, render themselves jointly and sev^erally liable as principals for waste committed by either, though without fault upon the part of both, and for the proper administration of all assets which come to their posses- sion and knowledge.^ This liability covers all breaches of the bond and devastavit, occurring while the joint relation con- tinues.' Chancery will enforce where it may, a just contribution as between the joint executors in all such cases.'' And such joint to account for and pay over to him cer- tain claims alleged to be due from the defendant as debtor to the estate. Whiting 7^. Whiting, 64 Md. 157. For counter-claims would here arise, and the suit is an obstruction to a proper settle- ment. ^ Supra, § 145. ^ Brazer v. Clark, 5 Pick. 96 ; Hugh- lett V. Hughlett, 5 Humph. 453 ; New- ton V. Newton, 53 N. H. 537 ; Marsh v. Harrington, 18 Vt. 150; Pearson v. Darrington, 32 Ala. 227. Nor can one allege that the other took exclusive possession, and that no assets came into his own hands. State v. Hyman, 72 N. C. 22. Where two or more per- sons are appointed and qualified as executors, and one is guilty of a devas- tavit, after which his co-executors re- sign, and he executes a new bond, such co-executors are primarily liable for such devastavit. Bostick v. Elliott, 3 Head. 507. As to the rule where the remain- ing executor resigns, and one of his sureties is appointed administrator de bonis 7ion with the will annexed, and 51 sufficient indemnity is given against the former devastavit, see ib. ^ Towne v. Ammidown, 20 Pick. 535 ; Brazer v. Clark, 5 Pick. 96. '' Marsh v. Harrington, 18 Vt. 150; Conner v. Mcllvaine, 4 Del. Ch. 30. And see Garnett v. Macon, 6 Call, 308. Notwithstanding any ulterior liability which one co-executor or co-administra- tor may have incurred by reason of hav- ing executed a joint bond, the fact being that he has not intentionally or other- wise contributed to a devastavit by his co-executor or co-administrator, since deceased, equity will take cognizance of his suit against the personal repre- sentatives of his deceased associate, founded on the latter's devastavit, and make such decree as may be appropri- ate. Turner v. Wilkins, 56 Ala. 173. But it is held that the representatives of one joint executor are not in any form responsible for maladministration of the survivor happening after the de- cease of the former, notwithstanding a joint and several bond with sureties was given. Brazer v. Clark, 5 Pick. I § 40'^ EXECUTORS AND ADM IMSTKA TORS. [fART IV, parties are responsible each for the acts of the other before the sureties on their joint bcMul.' Neither co-executors nor co-administrators, we may add, are compelled to give a joint bond ; they may give either separate or joint bonds at their discretion, as the statutes of various States expressly permit ; and the effect of giving a separate bond is to lea\e each co-executor or co-administrator simply lia- ble for his own default or misconduct, under the qualifications set forth in the preceding sections.- v^ 407. Rights, duties and Liabilities of Administrator •with the Will annexed. — Siro/K/Zy, as lo the rights, duties, and liabilities oi an administrator with the will annexed. i*'rom what has been elsewhere said,-' it may be gathered that such rights and duties of an executor as result from the nature of his office must devolve upon an administrator with the will annexed ; not, however, an authority necessarily connected with some personal trust and confidence reposed in the executor by the testator.'' A special commission or trust power, conferred by the will upon the executor, does not, in fact, vest in such administrator unless by implication from the language of the will. Thus, a discre- tionar)' jiowcr lo sell lands given to one's executor will not vest in the administrator with the will annexed, whether the execu- tor expressly named died, renounced, or failed, from some rea- son, to c|ualif>'.-'^ or no executin- was named at all." S(\ where 96. And if the survivoi neglects to pay other surviving in the tiiust. the latter over the amount due to a legatee, in may sue the former's bond. I24N. V. i. I onsequence of which the suretie.s pay ^Su/>fii, § 123. it, the sureties cannot enforce indem- ■" Fanvell :•. Jacobs, 4 Mass. (t]\ ; nity or contribution against the personal Bain r. Matteson, 54 N. V. 663; Syme representatives, heirs, or devisees of the f. Broughton, S6 N. C. 153. deceased e.vecutor. Towne t. .\mmi- ■' Nicoll t'. Scott, 99 111. ^2^): I,uca> down, 20 Pick. 535. .'. Doe, 4 Ala. 679; Brown :■. Hokson, 'Jamison f. Lillard, i.: Lea, 630. 3 A. K. Marsh. 3S0; McDonald r. When two or more execute a joint King, i N. J. L. 432 ; Conklin -•. Eger- Ixjnd. they stand in the relation of prin- ton, 21 Wend. 430; 25 ib. 224 ; Belcher cipal and surety; each as principal r. Belcher. 11 R. I. 226; Knight ;•. i/uihui his own acts, and as surety quoad Loomis, 30 Me. 204 : Vardeman -■. the transactions of others. 76 Va. 85. Ross, 36 Te.\. 1 1 1. 'Mass. Pub. Stats, c. 143, § 3. One 'Hall 7\ Irwin, 2 Gilm. 176. Therr co-executor being removed and the are local statutes, however, which 512 CHAP. VI.J yUAI-lllKI) ADMINI^^TKATION. § 407 property is bequeathed to one's executors, to be held in trust for specifieil objects, an athninistrator with the will annexed cannot as such fulfil the trusteeshiix' Nor has an adnnnistrator with the will annexed any right lo receive a fund given in personal trust under the will for the support of the testator's widow." Nor to carry on the testator's business under a testamentary power, where that power appears to have been bestowed upon personal confidence.* Where, however, a devise is made in trust to the executor named, this need not preclude an adminis- trator with the will annexed from selling the land, under an order of court, for payment of the testator's debts, should a suitable emergency arise ; for this is in pursuance simply of ad- ministratixe functions anncxctl to the olTice, and not the person. "♦ And so where land is devised at all events and the power to sell is confided to the executor by virtue of his office."^ For where a power to sell is thus confided olTficially to one's executor an administrator with the will annexed may exercise it ; but a purely personal trust and confidence reposed in the executor, actually named cannot be exercised by his legal substitute. Unlike the executor, moreover, an administrator with the will annexed has no authority, as it is held in some States, to administer upon any portion of the estate of the testator not disposed of by the will.'' change this iu1l> more or less specifically. "'Harper ?'. Smith, 9 Ga. 461 ; Syme Ile.ster t. Hester, 2 Ired. lu]. 330; ?'. Broughtaii, 86 N. C. 153. And see lirovvn 7'. Arniistead, 6 Rand. 5()4 ; Owens z/. Cowan, 7 ]}. Men. 152 ; Mont- Keefer 7'. Schwartz, 47 Tenn. St. 503; gomery v. Millikin, Sm. & M. 151; Evans z'. Blackiston, 66 Mo. 437. And Moody z/. Vandyke, 4 Binn. 31; Dray- if the language of the will shows a dis- ton ?>. Grimke, i Bailey Eq. 392 ; Perry position on the testator's part to permit v. Gill, 2 Humph. 218. But this rule is whomsoever sliould execute the will to held inconsistent with the policy of the execute the power, the administrator New York legislation as to such admin- with the will annexed may execute it. istrators. Sullivan ?'. Fosdick, 17 N. ^'. Jones 7>. Jones, 2 Dev. Eq. 387. And Supr. 173. see 7 Heisk. 315; 32 Cal. 436. An administrator with the will an- ' Brush 7'. Young, 28 N. J. L. 237. nexed is subject to the provisions of ° Warfield 7'. Brand, 13 Bush. 77. law applicable to other administrators, ^ Rubottom 7'. Morrow, 24 Ind. 202. except so far as the distribution of the * Dunning 7'. Ocean Nat. Bank, 61 estate is directed by the will. Brown, N. Y. 497. /':x parte, 2 Brad. (N. Y.) 22. As to ' Cohea 7'. Johnson, 69 Miss. 46. And the liability of such administrator and see §413. his sureties upon the bond given, see 33 513 § 408 EXECUTORS AND ADMINISTRATORS. [PART IV. § 408. Rights, Duties, and Liabilities of an Administrator de Bonis non. — Thirdly, as to the rights, duties, and liabilities of an administrator dc bonis non. ' Whether administration de bonis non is taken upon a testate or intestate estate, there is, in re- spect of powers and responsibility, no essential difference of principle ; only that, in the former instance, the administration of the estate becomes completed by one whose scope of author- ity is that of administrator with the will annexed, and, in the latter, by a simple administrator. The grant of administration de bonis non confers upon the person so appointed a legal title to all the goods, chattels, rights, and credits of the deceased, which were left unadministered by his predecessor ; ^ and this clearly includes all chattels and chattel rights of the decedent not already disposed of or converted into money by a prede- cessor, whether of the corporeal or incorporeal kind. All the personal estate which has not already been adminis- tered, but remains capable of identification, belongs to the ad- ministrator dc bonis non specifically. Such property he may recover ; and so, too, funds deposited by his predecessor in the name of the estate.^ But where the former representative has mingled it with his own property, a conversion — or what is called "administration" — takes place, so that only the value Muiphy 7'. Carter, 23 Gratt. 477; Stro- v. Allen, 4 E. D. Smith, 519; Potts v. ther z'. Hull, ib. 652. For the liability Smith, 3 Rawle, 361; Bell v. Speight, of co-administrators with the will an- 11 Humph. 451 ; Merriam 7'. Hernmen- nexed, see § 402 ; Adams 7,'. Gleaves, 10 way, 26 Vt. 565. To issue letters ^^ Lea, 367. bonis non while a final settlement re- ' See supra, § 128, as to the appoint- mains in full force is void and may be ment of such administrators. revoked by the court of its own motion. ^ Wms. Exrs. 915, 961 ; Wentw. Off. 103 Ind. 223 ; supra, § 153. But where Ex. 462 ; I Salk. 306 ; Shackelford such letters are collaterally attacked on V. Runyan, 7 Humph. 141; Kelly v. the ground that there was no vacancy, Kelly, 9 Ala. 908 ; Paschall v. Davis, 3 the fact that there was no vacancy Ga. 256 ; American Board's Appeal, 27 should be affirmatively shown. 70 Ala. Conn. 344 ; Gregory v. Harrison, 4 Fla. 140. 56; Gilbert v. Hardwick, 11 Ga. 599; ^ Stair z*. York Nat. Bank, 55 Penn. Newhall v. Turney, 14 111. 338; Shaw- St. 364. And so, too, apparently, with han V. Loffer, 24 Iowa, 217; Carroll investment securities taken for the es- V. Connet, 2 J. J. Marsh. 195; Alexan- tate by his predecessor. King z/. Green, der V. Stewart, 8 Gill & J. 226; Har- 2 Stew. 133. But Saffran z/. Kennedy, ney v. Dutcher, 15 Mo. 89; Morse v. 7 J. J. Marsh. 188, is contra. Clayton, 13 Sm. & M. 373; McMahon CHAP. VI.] QUALII'IEL) ADMINISTRATION. § 408 thereof can be recovered, and the administrator dc bonis non becomes a creditor, with no preference, so to speak, but secured by his predecessor's official bond.' An action will not lie at common law against the predecessor for the reco\ery of assets converted by him ; nor, as it is held, has the administrator de bonis non any right to call for an accoiuit of any part of the estate sold, converted, or wasted by his predecessor, since it is not "unadministered."^ Hence, the stricter practice is for the distributees or creditors to the original decedent, or others in interest, and not the administrator de bonis non of the estate, to seek an account and to prosecute the representatives of a de- ceased predecessor in the trust, in respect of his maladministra- tion. ^ This old rule applied literally, however, where the former executor or administrator had died in the office ; and modern statutes, not unfrequently permit of a different rule for other cases, such as removal or resignation of one's predecessor ; ■♦ and even, as consistency requires, so that the administrator dc bonis non himself may compel an accounting and delivery of assets as against the personal representatives of a deceased predecessor.^ ' Beall V. New Mexico, 16 Wall. 535; administrator de bonis non cannot sue Wms. Exrs. 916, and Perkins's note; the agent to recover it. Wilson z". A r- 34 Ark. 144; 7 Mo. 469; Hodge v. rick, 112 U. S. 83. Both at common Hodge, 90 Me. 505; 153 Penn. St. 345. law and under the act of Congress of ^Cheatham v. Burfoot, 9 Leigh, 580 ; local force in the District of Columbia Smith V. Carrere, i Rich. Eq. 123; an 2idm.ims,\.r2i\.ox de bonis /ion has title Stubblefielcl v. McRaven, 5 Sm. & M. only to the goods and personal property 130; Oldham z'. Collins, 4 J. J. Marsh. 49. which remain in specie and have not been ^ Beall V. New Mexico, 16 Wall. 540 ; administered. And this too where the- Rowans'. Kirkpatrick, 14 111.8; Stose former administrator was removed in- V. People, 25 111. 600, and cases cited; stead of dying in office. United States Wms. Exrs. 539, 915, and Perkins's v. Walker, 109 U. S. 258. Nor can notes; Johnson v. Hogan, 37 Tex. 77 ; such successor sue upon the prede- Young V. Kimball, 8 BlacW. 167 ; cessor's bond to recover such moneys. Thomas v. Stanley, 4 Sneed, 411. lb. In some States the rule is the re- * Marsh v. People, 15 111. 284. verse. Balch 7'. Hooper, 32 Minn. 158. 5 Walton V. Walton, 4 Abb. (N. Y.) In Wms. Exrs. 539, it is said that if App. 512; Knight v. Lasseter, 16 Ga. the original administrator were dead, 151 ; Tracy v. Card, 2 Ohio St. 431; and administration de bonis -non had Palmer v. Pollock, 26 Minn. 433; Car- been obtained, it was held that such ad- ter z'. Trueman, 7 Penn. St. 320. Where ministrator might sue the executors of the agent of a former administrator col- the deceased administrator at law on lects a debt due the estate, it is in this the administration bond in the name of sense an administered asset; and the the ordinary. But this is denied by Mr. §4o8 EXECUTORS AND ADMINISTRATORS, [PART IV. The unadministered property vests in the administrator dc bonis non for completing the proper settlement of the estate- A balance due from the predecessor, whether rendered volun- tarily by the predecessor himself, or by his representative in case of his death, or obtained by a suit on the predecessor's pro- bate bond, belongs by right to the successor as assets, and should be paid into his hands.' He is preferred to a creditor of his predecessor in reaching a fund which is properly assets.'' And it is held that the administrator dc bonis non should inventory at their just valuation, and account for all chattels belonging to the decedent's estate which his predecessor has not properly sold or disposed of, and which still exist, pursuing them or their value ; and such chattels, being a part of the estate which the predecessor has received, and not applied in any manner accord- ing to his official duty, he may be charged with their value in an action on his official bond.^ He cannot be allowed to use his trust as a cloak to his predecessor's obligations.'' Justice Bradley in Beail v. New Mexico, 1 6 Wall. 540, who states the nile of the Mnglish ecclesiastical courts as instead, in effect, that the Habihty is to the cred- itors, legatees, and distributees directly, and not to the administrator de bonis tiott. And he explains Hall, Goods of (i Hagg. 139), relied upon to sui:fport the text in Wms. Exrs. 539, supra, as justifying no more than the right of the administrator de bottis non to pursue specific assets of the estate, and, if these are refused, instituting a suit on the bond for them. But thi.s, he adds, is perfectly consistent with the doctrine " that for delinquencies and devastavits he cannot sue his predecessor or his predecessor's representatives, either di- rectly or on their administration bond." 16 Wall. 541. But qti. whether English ecclesia-stical courts ever dealt with bonds of a predecessor who had been removed or resigned. See supra, § 1 57. We may conclude that, as to delinquen- cies of a deceased predecessor, the rule prevails, as stated by Mr. Justice Brad- ley, where the law has not been changed 5 by statute. Cases cited in this section, supra ; Wms. Exrs. 539, and Perkins's note. And see Gray v. Harris, 43 Miss. 421, as to the form of a decree of a bal- ance found against the predecessor on final settlement. ' Wiggin V. Swett, 6 Met. 197 ; Palmer V. Pollock, 26 Minn. 433; 24 Neb. 712. ^ Marvel v. Babbitt, 143 Mass. 226. ^ Fay V. Muzzey, 15 Gray, 53, 56. And see Burnley v. Duke, 2 Rob. (Va.) 102. A balance justly due from the predecessor may be recovered, though used improperly in paying out debts and expenses. Miller v. Alexander, i Hill Ch. (S. C.) 499. If a deceased representative has disposed of all the property of his decedent, no proceed- ings can be had to charge it without ap- pointing an administrator de bonis non. Piatt V. St. Clair, 5 Ohio, 556. See, also, supra, § 128, as to granting such administration for the protection of dis- tributees, etc. ••An administrator was removed who owed the estate ?i 2,000 ; the sole surety on his bond for i^ 10,000 was appointed 16 CHAP. VI.] QUALIFIED ADMIMSTKATIOX. § 409 §409. The same Subject. — The administrator derives title as to the iinadministcred assets, not from the former executor or administrator, but from the deceased.' And the occasion which calls for his appointment forces him often into antagonism with his predecessor or his predecessor's representatives, to rescue the estate from maladministration and pursue the remedies avail- able for his predecessor's breach of trust. He may get back personalty of the estate, or its proceeds, wrongfully delivered by the former executor or administrator, and still held as a fund capable of identification.- He may, by proceedings in equity, re- cover chattels fraudulently and collusively transferred by the administrator de bonis non ; and it was held that the latter must charge himself with theSio,ooi_ as assets. 21 Neb. 233. See supra, § 208. ' Catherwood v. Chabaud, i B. & C. 154; Weeks v. Love, 19 Ala. 25; Bell V. Speight, II Humph. 451 ; American Board's Appeal, 27 Conn. 344 ; Bliss v- Seaman, 165 111. 422; supra, § 128; Wms. Exrs. 961. Each administrator de bonis non derives his title from the deceased. Weeks v. Love, supra. ^ Stevens v. Goodell, 3 Met. 34 ; Fay V. Muzzey, 13 Gray, 53. In Slaymaker z^. Farmers' Bank, 103 Penn. St. 616 (1883), the rights of the ad- ministrator de bonis non and under the provisions of the Pennsylvania statute are discussed at length. Admitting that all assets of the estate in the hands of a third person at the death of the fornier administrator or executor, may be taken, if distinguishable, by the administrator de bonis non, the collection of debts due or the disposition, change, or alteration of such assets will protect them from such administrator's claims as unad- ministered goods ; and if the goods are changed or altered, and remain no longer in specie, or have been disposed of, the administrator de bonis non cannot claim them ; and so of the debts, unless they be such as grow out of contracts to 51 which the testator or intestate was a party, for otherwise they cannot be said to be debts due and owing to the dece- dent (3 Rawle, 361). Hence, upon the death of the representative before the settlement of his account, his executor or administrator may recover from a bank the balance .standing to the credit of a deposit account, which he had opened there in his representative ca- pacity ; nor is the bank justified in pay ing it over to an administrator de bonis non of the decedent for whose estate he had opened this account. Slaymaker ?'. Farmers' Bank, ib. For, in American practice, at least, such a fund is likely to be reduced by disbursements, ex- penses, and compensation for services on behalf of the representative who opened it ; and his successor is only en- titled to the balance after proper de- ductions. See also Foster -'. Bailey, 157 Mass. 160. Before the representa- tive of a deceased executor or adminis- trator can be compelled to turn over to the new administrator de bonis non, he ought to have an opportunity to settle the accounts of the deceased and ascer- tain whether the estate owes the latter. Ib. Local codes define to some extent the rights and liabilities of an adminis- trator de bonis non. § 409 EXFXUTOKS AXn ADMINISTRATORS. [PAKT W predecessor.' lie may demand an account in equity a<^ainst his predecessor and his sureties.- He may demand and sue for as- sets of the decedent's estate in the hands of a former executor or administrator, or his representative,^ or in possession of some third part\'.-' He may reco\'er personal property wrongfully pledged or mortgaged, subject to the usual equities.^ He is not estopped by the illegal acts of his predecessor.''' And he may sue the latter, although there are no creditors, and the object of his administration is to protect the rights of heirs and legatees or distributees.' In general, he may institute proceedings, in law or equity, as justice may require, for personal assets which remain unadministered ; '^ but the lien claim of his predecessor ' Wms. Exrs. 918, 935; Cubbidge v. Boatwright, i Russ. Ch. Cas. 549 ; For- niquet v. Forstall, 34 Miss. 87 ; Cochran V. Thompson, 18 Tex. 652. He may like^\^se maintain a bill in equity, where the estate is insolvent, to have a fraud- ulent sale of real estate by his prede- cessor set aside, and the deed can- celled. Forniquet ?'. Forstall, supra. Todd V. Willis, 66 Tex. 704. But cf. Thompson j^ Buckner, 2 Hill Ch. (S. C.) 499. The South Carolina rule appears to be different. Steele 7'. Atkinson, 14 S. C. 1 54. And it is there held that a fraudulent collusion to misapply assets may be assailed by creditors and dis- tributees, but not by the successor in the trust. lb. A purchaser not privy to the fraud cannot be thus denuded of his title. lie- fore enforcing a claim against the estate of the former executor or administrator the latter's accountability should be de- termined in probate court. 67 Vt. 485. = Whitaker?'. Whitaker, 12 Lea, 393. See § 408. ' Stair 7'. 'N'ork Nat. Bank, 55 Penn. St. 364. * Langford 7j. Mahoney, 4 Dru. & War. 81 ; Wms. Exrs. 916. 5 Hendrick v. Gidney, 1 14 N. C. 543. ^ Bell V. Speight, 1 1 Humph. 451. ' Scott 7/. Crews, 72 Mo. 261. The 5 next of kin should not sue the represen- tative of the predecessor ; but the ad- ministrator df bonis non shoidd. Ham V. Kornegay, 85 N. C. 119. See § 408. ® Wms. Exrs. 9(6, and Perkins's note. The husband of a sole distributee of the intestate cannot resist a recovery by such administrator on the ground that he has paid all the debts and taken possession of the personal property. Spencer ?■. Rutledge, 1 1 Ala. 590. Nor can the sole distributee. And see Elli- ott V. Kemp, 7 M. & W. 306. If an administrator, after his removal from the office, collects money recov- ered by him as administrator, he may be sued in assumpsit by the administra- tor dc bonis non, as for money had and received to the latter's use. Salter 7'. Cain, 7 Ala. 478. Money collected by the former representative's attorney on a demand placed in his hands is not as- sets to be claimed directly by the new- representative, but should be accounted for by the former representative. Sloan 7'. Johnson, 14 Sm. & M. 47. Assump- sit does not lie against an administrator dc bonis non, in his representative char- acter, to recover money received by him from his predecessor, arising from the sale of property belonging to the estate which was exempt from sale. Ciodbold 7'. Roberts, 20 Ala. 354. An original 18 CHAP. VI.] QUALIFIED ADMINISTRATION. § 409 ought not to be disregarded. And statutes are found which en- able him to procure aid in his search from the probate court.' Residuary legatees under a will cannot hold the administrator de bonis non to account for the waste or wrongful conversion of the estate by the former executor.- An administrator de bonis iion has the power, and is subject to the responsibilities, of an original representative, with respect to the estate left unadministered by his predecessor. He may sue on promises made to a predecessor in his representative ca- pacity. ^ The final settling up of the estate devolves upon him ; and if the predecessor be dead, the latter's representative should do nothing more than close his dealings, and deliver over such assets as may still be undisposed of, and the balance remaining on a just accounting, to the administrator de bonis non^ It is the duty, moreover, of an administrator de bonis non to assume the defence of an action brought against his predecessor on a judgment, not recovered by the prede- cessor in his representative character, the administrator de bonis non cannot sue upon nor treat as assets. Alexander V. Raney, 8 Ark. 324. As to recovering a debt which was due from the original representative to the original decedent, see Kelsey v. Smith, 2 Miss. 68. At common law an administrator de bonis non could not have a scire facias upon a judgment obtained by the original executor or administrator. Stat. 17 Car. II. c. 8, § 2, removes this disability in modern English practice ; Wms. Exrs. 898, 920 ; and it does not generally ob- tain in the United States. The administrator de bonis noji should not institute proceedings against widow and heirs of a deceased predecessor, but against the predecessor's personal rep- resentative. Finn v. Hempstead, 24 Ark. III. A suit in equity brought by a predecessor deceased may be revived by him. Fletchers. Weir, 7 Dana, 345 ; Owen V. Curzon, 2 Vern. 237 ; Wms. Exrs. 920. See 2 De G. M. & G. i. As for proceedings to compel his prede- 5 cessor to return an inventory, see Gas- kins z'. Hammett, 32 Miss. 103. An administrator de bonis 7ion who sues on his predecessor's bond must allege the facts authorizing him to do so. Waterman v. Dockray, 78 Me. 1 39 ; And see Slagle v. Entrekin, 44 Ohio St. 637. As to his proceeding against for- mer bondsmen, see 123 Cal. 437. ' Perrin v. Judge, 49 Mich. 342. ^ Bliss V. Seaman, 165 111. 422 ; United States V. Waller, 109 U. S. 258. 3 Catherwood v. Chabaud, i B. & C. 1 50; Wms. Exrs. 961; Shackelford z/. Runyan, 7 Humph. 141 ; Stair v. York Nat. Bank, 55 Penn. St. 364. ■* Ferebee v. Baxter, 12 Ired. 64; Ray V. Doughty, 4 Blackf. 115; Steen v. Steen, 25 Miss. 513. As to the equity rule requiring the representative of a deceased executor to pay legacies out of funds in his hands, see Tucker v. Green, 5 N. J. Eq. 380 ; Moore v. Smith, 5 N. J. Eq. 649 ; Goodyear v. Blood- good, I Barb. Ch. 617; Saunders v. GatHn, i Dev. & B. Eq. 86. 19 § 4IO EXECUTORS AND ADMINISTRATORS. [PART IV. contract of the deceased.' He may bring a writ of error on a judgment against his predecessor.- He may institute chancery proceedings for foreclosure of a mortgage given to the deceased.' For he is successor to all the legal rights and duties which vested in his predecessor as representative of the estate, so far as may be, for procuring assets of the estate as a result.'' Upon the death of a plaintiff suing as executor or administra- tor, a revivor should be in the name of the administrator de bonis non and not of the plaintiff's own personal representative.5 And, in general an action brought to recover assets by a general executor or administrator, who afterwards dies, resigns, or is re- moved, may be revived in the name of his successor.'' Where a representative dies before settling the estate, the administrator dc bonis non is the proper party plaintiff or defendant in an ac- tion which would otherwise be brought by or against the prede- cessor.7 § 410. The same Subject; Relation of Administrator de bonis non to his Predecessor's Contracts, etc. — An administrator de bonis non cannot bring suit, as it is held, for the price of goods of his decedent sold by a predecessor in office ; ^ since this con- stitutes rather a claim upon such predecessor in connection with striking the balance upon his probate accounts. For loss or in- jury, moreover, arising out of an agreement made by his prede- cessor in the line of duty, the remedy, if any, is against the predecessor or his representatives.'^ But, if the holder and in possession, an administrator de bonis non may sue in his own name, as such, on a note given to his predecessor as administra- ' National Bank v. Stanton, 116 ' Brasfield z'. Cardwell, 7 Lea, 252. Mass. 438. * Russell v. Erwin, 41 Ala. 292 ; State ^ Dale V. Roosevelt, 8 Cow. t^t^t^. f Murray, 8 Ark. 199. And see Graves z'. Flowers, 51 Ala. 402. ^ North Carolina University ?■. ' So, where the mortgagor was the Hughes, 90 N. C. 537. predecessor. Miller v. Donaldson, 17 * Calder 7'. Pyfer, 2 Cranch, C. C. Ohio, 264. And see Brooks v. Smyser, 430 ; Slaughter v. Froman, 5 T. B. Mon. 48 Penn. St. 86. 19. And see Alexander v. Raney, S ^ McGuinness v. Whalen, 17 R. I. Ark. 324146 Ark. 453. But see same 619. The distributee of the estate has section, /^i-/. not this right. 104 N. C. 180. '' Hagthorp v. Neale, 7 Cill & J. 13. 520 CHAP. VI.] QIJAI.IFIED ADMINISTRATION. § 4IO tor or executor.' And where, in connection with a contract made on behalf of the estate, the predecessor takes properly a bond for security, the administrator de bonis noii may sue for a breach of the bond.' In assumpsit brought by the administra- tor be bonis non, the promise may be alleged as having been made to the former executor or administrator.^ We have just seen that he may re-open the fraudulent transactions of his predecessor and get back assets which were transferred in breach of the trust. •• But the administrator de bonis nan cannot re-open the trans- actions which his predecessor has completed in fulfilment of his just authority. While he does not represent his predecessor in the same sense as his predecessor represented the decedent, he is bound by his predecessor's acts so far as they were legal and valid and performed in good faith ; while, according to the sounder reason, he is bound no further.^ He cannot disturb the title of a purchaser acquired under an agreement with his pred- ecessor in office, which the latter was competent to make ; and, while in many respects there is no privity between the original representative and an administrator de bonis 7ion, the acts and admissions of the former within the .sphere of his proper functions are obligatory upon the latter and upon the estate.'' And, upon the ground of privity, the successor may be com- pelled to fulfil his predecessor's agreement for a reasonable and bojta fide sale of chattels ; ^ as, likewise, he may sue in respect of promises and contracts made to his predecessor as a repre- sentative, where the proceeds will be assets.*^ 'Barron v. Vandvert, 13 Ala. 232; O'Neall 7'. Abney, 2 Bailey, 317; Mar- Burrus v. Boulbac, 2 Bush, 39 ; supra, tin r'. Ellerbe, 70 Ala. 326. §293. Cf. Brooks?:'. Mastin,69 Mo. 58. f" Duncan v. Watson, 28 Miss. 187; - See Matthews v. Meek, 23 Ohio St. Rice (S. C.) Ch. 40. The estate comes J72, where the question arose in con- to the administrator de bonis tion sub. nection with executing the trusts under ject to a sort of lien in favor of the pred- a will. ecessor to this extent, and operative ^ Hirst V. Smith, 7 T. R. 182 ; Wms. for his indemnity accordingly. Sitpra, P2xrs. 917 ; SulHvan 7'. Holker, 15 Mass. §260. And see Teague v. Dendy, 2 374- McCord Ch. 207. ■• Supra, § 409. 'Hirst v. Smith, 7 T. R. 182. 5 Forniquet z'. Forstall, 34 Miss. 87; ^ Moseley z/. Rendell, L. K. (> . Bemis, 2 Allen, 445. tions, but rather as special regulations ^Walker v. Byers, 14 Ark. 246; of probate law which impose the loss of Mann--. Everts, 64 Wis. 372. See the claim if the party fails to sue on it Selover v. Coe, 63 N. V. 438. The within the time prescribed. Standifer?/. Massachusetts statute provides ex- Hubbard, 39 Tex. 417. But cf. i Ired. pressly for suit against heirs and next of Eq. 92. kin, or devisees and legatees, within one == Abbay t. Ilill, 64 Miss. 340. year after the cause of action accrues. ' Walker v. Byers, 14 Ark. 246 ; 67 Mass. Gen. Stats, c. 97. Cal. 637. ' Gunter z'. Janes, 9 Cal. 643; Van- ■• As in Holden 7'. l'"lelcher, 6 Cush. dever v. Freeman, 20 Tex. 333. 235. And see Bemis f. Bemis, 13 Gray, CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE. § 419 claim, must institute in equity a discovery and accounting.' But a debt or note which is secured, as, for instance, by mortgage, ought, in order to be enforced apart from such security, to be thus sued upon or presented. - But such statutes appear confined usually to demands which accrue against the deceased person, so as not to apply to any demands arising by contract, express or implied, with the exec- utor or administrator himself. For claims of the latter sort, a personal representative has notice and opportunity to provide, so as to save himself harmless ; and these are affected by com- mon rules of limitations,^ and of recoupment or set-off.'' ' O'Toole V. Hurley, 115 Mich. 517. ^ Willis V. Farley, 24 Cal. 490. See 67 Cal. 178. A claim against the estate of a deceased partner is included under the statute. Fillyan r'. Laverty, 3 Fla. 72. Under the Massachusetts statute, a creditor whose right of action will not accrue within the period limited for settling the estate, should petition to the probate court, setting forth a statement of his claim ; and the court, if it appears that the claim is justly due from the estate, will order the executor or admin- istrator to retain assets sufficient ; or a person interested in the estate may give bond, with sureties, to the creditor, for due payment of the claim. Mass. Gen. Stats, c. 97 ; 128 Mass. 528. See Brew- ster V. Kendrick, 17 Iowa, 479 ; Greene V. Dyer, 32 Me. 460. As to rights of action " accruing " after the death of the testate or intestate, presentment may be made before they actually mature. 49 Conn. 251. A claim based on a de- ceased surety's obligation in a guardian's bond need not be presented. 60 Miss. 987. A claim which will certainly be due when A. dies is not a " contingent " claim. 78 Ala. 130. A claim which the executor or ad- ministrator objects to ought to be prop- erly proved. 63 Miss. 31 ; 38 La. Ann. 947; 67 How. Pr. 346. What a "suc- cinct statement " of the claim must show. See 102 Ind. 521 ; 104 ib. 327. FiUng of a claim against the deceased consti- tutes a sufficient demand. 104 Ind. 327. One may lose his right as some codes run, if he files but fails to prove. 67 Iowa, 458. A claim against one's estate which might have been made against the person while he lived, and yet was not, should be viewed with sus- picion. 159 Fenn. St. 590. ^ Brown v. Porter, 7 Humph. 373 ; Perry v. Field, 40 Ark. 175. See Ames V. Jackson, 115 Mass. 508; also Bolt - wood V. Miller, 112 Mich. 657. These non-claims statutes, together with the local decisions construing them, are very numerous. The practi- tioner is little interested, however, ex- cept in knowing the practice of his own State. For an English statute some- what corresponding, see Act 22 & 23 Vict. c. 35; 24 W. R. 371. V\^hile the representative may ordinarily relieve a debt not barred in his decedent's life- time from the general statute of limita- tions, as contrasted with this special one, yet in a bill to marshal assets he cannot relieve some and hold others barred. 72 Ga. 495 ; supra, §§ 389-39 1 . He cannot waive the bar of non-claim. Ib. ; 77 Ala. 553. •• 112 Mich. 657. See, further, § 390. 533 § 420 EXECUTORS AND ADMINISTRATORS. [PART V. § 420. Presentation of Claims ; Statute Methods considered. — Claims upon an estate must be exhibited for allowance as the local statute directs. In many States they should be presented first to the e.xecutor or administrator ; whose settlement of the same in due season will obviate all further proceedings on the claimant's jmrt ; while his refusal or neglect to settle will throw the claimant back upon the usual remedies at law ; the probate tribunal passing, not upon individual claims, but only upon the administration account, with its various items ; nor in advance of a payment, but after payment has been made.' But, in some parts of the United States, the probate court exercises a direct supervision in the establishment of individual claims upon a decedent's estate, to a greater or less degree.^ As some local statutes prescribe, the claimant must first pre- sent his claim for allowance to the representative, upon whose refusal application may be made to the probate court, with notice to him. In various other States, the practice is for the probate court to allow each separate claim before it is paid.^ A probate court does not commonly order allowance, however, in any such sense as to prevent the legal representative from contesting the claim ; "' nor, in general, so as to impair the validity of the cred- itor's claim, or his right of action elsewhere.^ One object of ' O'Donnell --. Hermann, 42 Iowa, ' Branch Bank j-'. Rhew, 37 Miss, no; 60; 39 N. J. Eq. 501. Statutes re- Stanford v. Stanford, 42 Ind. 485; quire sometimes notice or a demand Rosentlial v. Magee, 41 111. 371. But upon the executor or administrator be- non-presentment may afford the estate fore suing. 4 Bush, 405 ; Busb. (N.C.) a defence to an action brought against L. 127. it to recover the demand. Whitmore - Hudson V. Breeding, 7 Ark. 445; 6 v. San Francisco Union, 50 Cal. 145. Ark. 437. In States where claims are duly filed ^ Thayer v. Clark, 48 Barb. 243 ; in court, it is usual for the statute to Danzey v. Swinney, 7 Tex. 617; 23 require that they be authenticated by Cal. 362 ; Dixon v. Buell, 21 III. 203. the affidavit of the creditor before they A court of equity will not assume juris- can be allowed against the estate. The diction of a claim in general until the admission of an administrator that the claimant shall have exhibited it and had claim is just, or an order for its pay- it allowed in the county court. Blan- ment by the probate court, is a sufficient chard v. Williamson, 70 111. 647. establishment in Indiana. 3 Ind. 504. * Magee v. Vedder, 6 Barb. 352 ; Whatever is a good defence against a Swenson v. Walker, 3 Tex. 93 ; Prop.st suit on a claim is equally good against V. Meadows, 13 111. 157; Scroogs v. its allowance by the probate court. 24 Tutt, 20 Kan. 271. Miss. 173; 2 Greene (Iowa) 208. A 5 34 CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE. § 420 requiring presentment to the probate court is the due classifica- tion and record of the admitted demands upon the estate.' The general policy indicated is, that neither the administrator nor the probate court shall have power to settle a claim not au- thenticated, presented, allowed, and approved, according to the statute. The representative may object to any such claim, and oppose its admission.^ But a claim admitted by the executor or administrator, and thus allowed and classified by the probate court, has, in many States, the dignity and effect of a judgment. ^ claim against an estate has no judicial standing in the probate court until it has been allowed and approved ; and until it has been rejected, either by the administrator or the probate judge, it has no judicial standing in any other court. 7 Tex. 617. ' Small sums may be paid by the ex- ecutor or administrator, under some statutes, without a previous allowance by the court ; but such requirements cannot be evaded by splitting a single and entire demand into demands of the excepted amount. Clawson v. McCune, 20 Kan. ■^■^'^ . See 2 Greene (Iowa) 595- ^ 4 Redf . 490. The verbal statements of an executor or administrator that the claim is all right and will be paid as soon as he has money, will not ex- cuse the creditor from a formal present- ment of the claim. 40 N. J. Eq. 59 ; 67 Iowa, 458. In Louisiana the repre- sentative is estopped from contesting a claim which he has placed on the list for settlement, unless he can show error on his part caused by the other party's fraud. 35 La. Ann. 858. A claim duly allowed by an administrator need not be allowed by a successor again. 39 Ohio St. 112. Probate courts may upon general statute notice make needful orders for settlement and distribution without the actual intervention of all parties inter- ested. And the remedy of a party ag- grieved by its classification of claims for payment is by appeal ; not by origi- nal suit elsewhere. 61 Tex. 213. s Claims are thus ranged in various classes agreeably to the local code. Allowance of a claim is not conclusive of its validity under many codes. Where one is administrator of both the cred- itor and debtor estate, no formal pre- sentment and allowance is needful. 39 Ohio St. 112. Nor need claims already of record, such as a mortgage, be for- mally presented, under some codes. 3 Tate V. Norton, 94 U. S. Supr. 746; Carter v. Engles, 35 Ark. 205. Claims of non-resident creditors may be admitted with those of resident cred- itors under a rule of comity, and with like restrictions. Findley v. Gidney, 75 N. C. 395 ; Miner v. Austin, 45 Iowa, 221 ; Howard v. Leavell, 10 Bush, 481. In New York a decree of the surro- gate court establishing the indebtedness of an estate appears to be binding upon the legal representative, and conclusive, both as to the indebtedness and the ob- ligation of the representative to make payment as decreed. Thayer v. Clark, 48 Barb. 243. The evidence to sustain a claim need not appear of record ; and a probate decree ascertaining and al- lowing a claim, and ordering the exec- utor or administrator to pay it, is not a technical "judgment" without author- ity, but a mere ascertainment of its validity and amount, which remains to be satisfied according to law. Little -<•. Sinnett, 7 Iowa, 324. And see Magraw 535 § 421 EXECUTORS AND ADMINISTRATORS. [PART V. This filing of claims is not an uncommon incident of bank- ruptcy and insolvency practice ; but, with reference to the estate of a decedent which proves insolvent, a statutory course is marked out by our several codes. And even in States where an ordinary executor can pay no claims that have not been judi- cially approved and must defend the estate, and require proof ; an executor who has given bond as residuary legatee can settle claims at his discretion and no one can question his acts in this respect but his sureties when his course has brought them into trouble." Where upon appeal from a probate court a claim is allowed and the representative has sufficient assets, he should pay the same as though it had been originally allowed by the probate court. ^ § 421. Funeral Charges and their Priority. — Funeral charges are not, to speak accurately, debts due from the deceased, but charges which the law, out of decency, imposes upon the estate ; and so far as these are reasonable in amount, they take legal priority of all such debts, as, likewise, do the administration charges.^ A decent burial should comport with the condition of the deceased and the amount of his fortune. Justice to cred- itors, as well as to one's surviving family, demands, however, that there shall be no extravagant outlay to their loss.-* If due regard to the character and social or public standing of the de- ceased requires a more costly funeral, public or private liberality should defray the additional cost. The standard of reasonable burial expenses is established by local and contemporary usage ; for religious and humane senti- ment carries the cost far beyond what mere sanitary rules might prescribe, and that sentiment should not be outraged. In strictness, observed Lord Holt in an early case, no funeral ex- penses are allowable in an insolvent estate, except for the coffin, ringing the bell, and the fees of the clerk and bearers ; pall and V. McGlynn, 26 Cal. 420. But c£. 144 ^ To these, local American statutes Mo. 258, where an allowance by court add expenses of last illness, as among has the force of a judgment. preferred claims. See^ost. ' Durffee v. Abbott, 50 Mich. 278 ; < 2 Bl. Com. 508 ; Wms. Exrs. 968 ; Wheeler z/. Hatheway, 58 Mich. 77. Parker v. Lewis, 2 Dev. L. 21; Flint- - Berkey v. Judd, 31 Minn. 271. ham's Appeal, 11 S. & R. 16. CHAP. I.] DEBTS AXH CLAIMS UPOX TIIK KSTATp:. § 42 I ornaments are not included." This statement, though inappro- priate to our times, suggests that the line be drawn so as to in- clude what is necessary in the sense of giving a Christian burial, excluding the ornamental accompaniments and provision for mourners and strangers which they might make for themselves. Thus, at the present day, the undertaker's and grave-digger's necessary services should be allowed in addition to those pertain- ing to the religious exercises ; also the cost of a plain coffin or casket, the conveyance of the remains to the grave, and the grave itself ; all these being essential to giving the remains a decent funeral. On the other hand, mutes, weepers, pall- bearers, in needless array ; carriages for mourners, and especially carriages for casual strangers ; floral decorations, refreshments, hired musical performances ; and the processional accompani- ments of a funeral, — all these, though appropriate, often, to the burial of those who are presumed to have left good estates, are inappropriate to the poor, the lowly, and those whose creditors must virtually pay or contribute to the cost. Public demonstra- tions which increase the outlay, the attendance of societies to which the deceased belonged, military and civic escorts, and the like, are always properly borne by such bodies or by the public thus gratified, rather than imposed as a charge upon a private estate which cannot readily bear the burden.^ The religious persuasion of the deceased, or, perhaps, of his immediate family, may be fairly considered in determining the character and items of cost in the funeral ; thus, Jewish, Chris- tian, and Pagan usages differ on these points, likewise Catholic and Protestant, nor do all Protestant sects agree among them- selves. National habits, and those of one's birthplace, besides, deserve consideration, whatever be the last domicile. The pre- sumption is that the deceased has desired to be buried in ac- cordance with the usages and customs, civil and religious, of the ' Shelley's Case, i Salk. 296. Burn- Shaeffer v. Shaeffer, 54 Md. 679. If well suggests that the expenses of the public or benevolent societies defray shroud and digging the grave ought to part of the cost, only the excess can be have been added. 4 Burn. Ecc. L. 348, charged to the estate. 11 Phila. 135. 8th ed. As to a suit of clothes to lay Cost of a commandery parade disal- out the deceased in, see 2 Tenn. Ch. 369. lowed in 1 24 N. Y. 388. ^ Hew-ett V. Bronson, 5 Daly, i ; 537 §4-1 EXECUTORS AND ADMINISTRATORS. [PART V. society to which he belonged, and so as to retain its respect.' But the last express wishes of the deceased may well be com- plied with, in directing the style and character of the funeral, provided these wishes be not extravagant or unreasonable, and no injustice be done to creditors and others in interest ;- and the sanction, too, of one's immediate family is an element of some importance in arrangements so delicate, which necessarily depend more upon the presumed than the actual condition of one's estate. Keeping these elements of distinction in view, the standard of allowance for funeral expenses may be often regulated most conveniently by fixing a sum total. Thus, the English practice, prior to Lord Hardwicke's day, was to allow at law only 40i-., then jCS^ ^I'^d afterwards £io, for the funeral of a deceased in- solvent ; ^ but English cases, by no means modern, justify the allowance of ^20 in such cases.'' There are American de- cisions bearing upon this point.-"' The standard varies essen- tiall)', however, with the age and locality ; as between city and country or polished and simple communities ; and, in general, according to the testator's station in life ; all this aiding, doubt- less, in fixing a scale of prices which, even in such simple items as the cost of a coffin, may vary greatly. Though one should prove to have died insolvent, his social condition and apparent means might yet have justified a funeral in accordance with his expec- tations and those of his kindred ; especially, if the personal rep- resentative had not reason at the time for suspecting the estate insolvent.^ Special circumstances, too, may justify an expendi- ture unusually great in one or more particulars ; as if one's local fame should forbid a funeral strictly private ; ^ or if one should die ' Hewett z'. Bronson, 5 Daly, i. See, i B. & Ad. 260 ; Yardley 7: Arnold, 1 as to the funeral obsequies of a Hindoo C. & M. 434. testator, i Knapp, 245 ; Wms. Exrs. 971. ^ Where the estate is insolvent, not But a vicious usage cannot be set up. more than ^200 should be allowed for Shaeffer v. Shaeffer, 54 Md. 679. a funeral. 28 La. Ann. 149. No more '^ See Stag v. Punter, 3 Atk. 119; than $300 under any such circumstan- Donald v. McWhorter, 44 Miss. 102. ces. 3 MacArthur, 537. ' Bull. N. P. 143 ; Stag v. Punter, 3 * 3 Atk. 119 ; Wms. Exrs. 969, 970. Atk. 119. " Prec. Ch. 261. * Bayley, J., in Hancock v. Podmore, CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE. 5? 421 far from home or far from his proper burial-place ; ' though, even here, the limited means at the fair disposal of the executor or administrator should not be transcended in careless disregard of legal claimants, but public or private benefactions should make up the rest.- Items not, perhaps, strictly within the rule of funeral charges, have been allowed from an estate, out of regard to particular circumstances or a decedent's last directions. Thus a moderate allowance is sometimes made in the executor's or administrator's accounts for the mourning apparel of the widow and children ; ^ or even for "mourning rings " distributed among near relatives ;* though, in the case of an insolvent estate, especially where the insolvent was a person of no distinction, such charges seem hardly proper.s And, over carriages used for the immediate family of the deceased, and other incidental charges of trivial am.ount, vexatious dispute is undesirable ; ^ for, if one dies with- out leaving the means of paying his creditors, those naturally dependent upon him must needs suffer, too. Foolish and ex- ' In Stag V. Punter, 3 Atk. 119, Lord Hardwicke allowed £60 for the funeral expenses of a testator, dying apparently with a good fortune, who had directed his burial at a place thirty miles distant from the place of his death. See also Hancock v. Podmore, i B. & Ad. 260. ^ Such expenses are not limited by one's will in amount, where the funeral is duly contracted for in ignorance of such testamentary restriction. 92 Cal. 293- ^ 2 Cas. temp. Lee, 508 ; Wood's Estate, I Ashm. 314; Holbert, Succes- sion of, 3 La. Ann. 436. ■• Paice V. Archbishop of Canterbury, 14 Ves. 364. ' Johnson v. Raker, 2 C. & P. 207 ; Flintham's Estate, 11 S. & R. 16. '' Save so far as one surviving spouse may be legally bound to bury the other (see Schoul. Has. & Wife, §§ 412, 437); a claim might sometimes be set up in connection with providing for a funeral at a private house, sufficient to furnish 5 a consideration for troublesome special items, of small consequence, which cred- itors incline to dispute. The common law rule makes it the husband's duty to defray the expense of burying his deceased wife in a suitable manner, and he ought not to charge her estate with the cost. Staples's Ap- peal, 52 Conn. 425. So is it with a minor child ; and where an insolvent and his wife and young child while travelling in a distant State were all killed by the same accident, the expenses of sending home and burying all three were allowed as a prefeired claim against the estate of the insolvent. Sullivan v. Horner, 41 N. J. Eq. 299; Schoul. Dom. Rel. § 199. Under an Ohio statute a married woman's estate may be charged with such expenses, even though a husband leaving property should survive her. McClellan v. Filson, 44 Ohio St. 184. The same effect has been given in chan- cery where the wife has separate prop- erty. M'Myn, Re, ^ Ch. D. 575. 39 § 42 2 EXECUTORS AND ADMINISTRATORS. [PART V. travagant funerals ordered by those not immediately concerned in the estate are not to bind the representative and the immedi- ate family of the deceased. Claims founded in the expenses incurred by relatives of the deceased in attending the funeral, their services and time, are not to be favored in settling a decedent's estate ; for these are presumably offices of respect and tenderness, gratuitously ren- dered, and neither purchased nor solicited.' But it may be otherwise where services valuable to the estate are rendered, upon the same occasion, and especially by one not otherwise bound in honor to attend ; or where the attendance was at the express request of the dying person ; and these, according to circumstances, may be classed among funeral, last illness, or ad- ministration charges. Thus, extraordinary cases may arise where the expense of summoning kindred from a distance, or of ac- companying the remains to or from some distant point, or of procuring some needful or desired attendance, as for opening the will or examining papers, may properly be allowed in the accounts of an executor or administrator.- In general, allowances for a funeral depend much upon whether the estate was insolvent or not, and whether items in the account presented are objected to or not by parties inter- ested. For those entitled to the surplus of an ample estate may all agree to bear the cost of a most extravagant funeral. §422. Funeral Charges; Place of Final Interment, Gravestone, etc. — Funeral charges, in the literal sense, are always to be incurred in haste, usually without the means of ascertaining the true state of the decedent's fortune or who ma)' rightfully share it, and often at the discretion of a surviving spouse, or of some near relativ'e or friend, without sanction from an undisclosed or at least unaccredited legal representative.^ But the first fu- ' Lund V. Lund, 41 N. H. 355. items for allowance. Shaefferz-. Shaeffei, ^Jennison 7-. Hapgood, 10 Pick. 77; 54 Md. 679. Mann t/. Lawrence, 3 Bradf. Sur. 424; 'See §193. The liability of an estate Wall's Appeal, 38 Penn. St. 464. Din- for reasonable and proper funeral and ner and horse feed, provided for those burial expenses, although neither or- attending a funeral, are held improper dered nor ratified by the executor or 540 CHAl'. I.J DEBTS AND CLAIMS II'ON llll'; ESTATE. § 422 neral charges are not necessarily the last ; and those last, the representative should fix upon with much deliberation. Circum- stances may justify a temporary interment, pending the final settlement of the estate. The purchase of a burial lot or tomb, when, as often happens, the deceased owned none at his death, may thus become a mat- ter for delicate adjustment between one's legal representative and members of his immediate family ; the last having usually the right of selection, and claiming from the estate, in return, what, according t(^ the decedent's condition and circumstances, would be fair remuneration for his own place of final interment, and as to themselves holding the title to the lot or tomb, with the remaining burial rights therein, as statute or the cemetery rules may determine.' As to any estate, and an insolvent's es- tate in particular, there is no legal reason why the executor or administrator should pay in full for land or a tomb in which others than the decedent are to have burial rights ; while it is certain that for his own last resting-place or burial right, a de- cedent's estate ought to be charged. Provisions relating to the place of burial are frequently made, however, in one's last will ; - and directions may thus be given by the general owner as to the use and care of the lot his remains are to occupy. The ex- pense of fencing, preserving, and improving a lot, where others are interred, is not justly chargeable otherwise upon the estate of a particular occupant ; while public cemeteries are usually administrator subsequently appointed, may, even to the extent of a burial lot, is implied by law from the peculiar ne- devolve upon the surviving spouse or cessities of the situation. Fogg v. Hoi- family, so far as may be reasonable or brook, 88 Me. 169; 87 Me. 324; Hap- just. Pettengill v. Abbott, 167 Mass. good V. Houghton, 10 Pick. 154; 139 307. Mass. 304. As to burial of a wfe ^ See Cool v. Higgings, 23 N. J. Eq. who leaves an estate, and an insolvent 308 ; Luckey, Re, 4 Redf. 265. A tes- husband, see 53 N. J. Eq. 341. As to tator who directed by his will that a burial expenses incurred by a widow, suitable monument should be erected see Walton v. Hall, 66 Vt. 455. And, over his grave, left a large fortune, in in general, see Loftis ». Loftis, 94 Tenn. great part to charities; and $6,000 was 232 ; Joy V. Fesler, 67 N. H. 237 ; Dud- held not an unreasonable amount to e.\- ley z'. Sanborn, 159 Mass. 185. pend for the monument. Cannon v. 'Providing a suitable place of burial Apperson, 14 Lea, 553. § 422 EXECUTORS AND ADMINISTRATORS. [PART V. inclosed at the cost of the company or the public' The choice of a burial-place is regulated, to some extent, by the means and condition of the deceased, and the wishes of the immediate family. As to its care, improvement, and prescr\'ation, more- over, sole ownership may involve present liabilities whose recom- pense is to be found in the sale of other burial rights later ; nor does the title necessarily vest in the executor or administrator, but rather in a surviving spouse or heirs. Disinterment or re- burial is justified in a variety of suitable instances.^ A gravestone or monument is an item of cost allowable to a reasonable amount in the settlement of the estate.^ Some sort of marker, to identify and protect the remains, seems highly proper in all cases ; but, beyond this, the choice takes so wide a range, from the needful to the highly ornamental, that the dis- cretion of the court has often been invoked. The general rule of funeral charges here applies, that no precise sum can be fixed, but the standard must vary with local price and usage, the sta- tion in life of the deceased, and the extent of his fortune. Even as against creditors, the expense of a modest gravestone has been allowed ; though it is admitted that an estate can be settled in avoidance of such outlay ; while it would appear that in some .States no gravestone can be charged to an insolvent estate against the consent of creditors.'* As to statues and monuments 'Tuttle<7. Robinson, ^3 ^- H. 104; pressly the erection of suitable monu- Barclay's Estate, 11 Phila. 123. Stat- ments at the reasonable expense of the utes regulate this subject to some e.x- estate ; and this includes a power of tent. lb. $351 is not unreasonable for doing what is needful to keep the monu- a burial lot, where the estate amounted ment in proper condition during the to $13,000. 4 Redf. 265. See 3 Redf. 8. time of the administration. Durkin z/. ^See 3 Dem. 524; Watkins v. Ro- Langley, 167 Mass. 577. But, aside mine, 106 Ind. 378; §542. The need- from this, executors have been allowed less removal of an intestate's remains, to make necessary repairs upon a tomb against the wishes of the immediate or monument although a provision for family is not to be favored. 106 Ind. such repairs, which turns out insuffi- 378. But removal of one's remains cient, was made in the will. Bell v. from abroad, in case of an ample es- Briggs, 63 N. H. 592. tate, and in accordance with the last * See Brackett v. Tillotson, 4 N. H. wishes of deceased, or of his immediate 208. Such a rule ought not, we think, family, is proper. Parry's Estate, 188 to be inflexible ; but to vary somewhat Penn. St. 38. with circumstances, nor in any case to ^ Local codes sometimes sanction ex- exclude the cost of a simple marker. CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE. § 422 of costly design, the executor or administrator ought either to have, besides an ample estate, the explicit directions of the de- ceased as his warrant, or the consent of the heirs, or the pre- vious approbation of the probate court ; and his safer and more natural course is, in general, to let the family and those inter- ested in the surplus, or nearest to the deceased, fix upon some- thing appropriate in structure, design, and inscription ; binding the estate, on his part, only for a reasonable proportion of the cost, if the cost be large, and requiring them to stand responsi- ble for any excess.' Where the cost of a monument is to be Tombstones, in the proportion of about ^30 to an estate of ^3,000, have been allowed in various American cases. Lund z'. Lund, 41 N. H. 355; Jennison V. Hapgood, 10 Pick. 77; Fairman's Appeal, 30 Conn. 205 ; Springsteen v. Samson, 32 N. Y. 714; Webb's Estate, 165 Penn. St. 330. In an estate of $11,096, the executor's allowance for a monument (the residuary legatee op- posing) was cut from ^1,455 to half that sum. 4 Redf. 95. An administrator may, on his own contract, render the estate liable for suitable gravestones, and especially if the estate be not in- solvent. Ferrin v. Myrick, 41 N. Y. 315; Porter's Estate, 77 Penn. St. 43. And see Mass. Pub. Stats, c. 144, § 6. An expensive monument, however, is hardly to be erected at the sole discre- tion of a personal representative. But- ler, J., lays the rule down quite cau- tiously on this point in Fairman's Appeal, 30 Conn. 205. And Lund z'. Lund, 41 N. H. 355, disapproves of the erection of expensive monuments without the previous assent of the heirs, etc. Special circumstances ought to justify a liberal expenditure of this kind ; as where there is a fair balance, but only distant relatives who are so scat- tered and numerous, that distribution will hardly justify the cost, and the only relative who can be easily consulted approves the plan. In general, the cost of erecting a headstone at the grave may be allowed to the representative as " funeral ex- penses," but only to the extent of pro- viding for a decent burial, according to the amount of the estate. Owens v. Bloomer, 21 N. Y. Supr. 296. Nor can a widow of the deceased bind the repre- sentative or the estate for a monument erected on her own responsibility and order. Foley v. Bushway, 71 111. 386. ' Where one leaves a good estate, and no children or near kindred, the cost of a handsome monument which the widow desired may be allowed; but pictures of the deceased, and other per- sonal memorials for the gratification of the living, are not properly chargeable to the estate of the dead. McGlinsey's Appeal, 14 S. & R. 64; Pistorius's Appeal, 53 Mich. 350. A delicate re- gard for all those whose pecuniary interests are likely to be diminished by the funeral charges should influence the legal representative; but, at the same time, if the estate be solvent, he need not permit penurious and unfeeling kindred to rob the deceased of the last decent tributes to his memory. Funeral charges are, by legal intendment, enough for decency and no more ; but, by the agreement of those interested, and con- tributions by them or others, outside of the estate, or (if the estate be ample) under a testator's express directions, the strict legal limit may be far exceeded, and expenses incurred, by way of me- 543 § 422 EXECUTORS AND ADMINISTRATORS. [part V. defrayed by friends of the deceased or the public, a similar mu- tual consultation and understanding is proper. Monuments and memorials of the deceased, which have no connection with fu- neral charges or the place of final interment, cannot, of course. morial to the deceased, which have no immediate connection at all with funeral or burial. In Bainbridge's Appeal, 97 I'enn. St. 482, the court refused to con- trol the discretion of an executor in us- ing the entire residue of the estate, after pajnng certain legacies, in erecting a monument ; such being the testator's direction in his will. The better opinion is that, the duty thus fairly performed for the benefit of the deceased, the expenses constitute a charge upon his estate so far as they were reasonable and necessary ; and that the law impUes a promise on the part of the executor or administrator to pay them, so far as the assets suffice for this and the other first preferred charges, including his own; not, however, to the extent of compelling him to defray them from his private means, where he has disclaimed personal liability and pleads the want of assets. Wms. Exrs. 1788 ; Tug\vell -'. Heyman, 3 Camp. 298 ; Hapgood v. Houghton, 10 Pick. 154; I'atter.son -j. Patterson, 59 N. Y. 574, and cases cited. See«ost, Part VII. children, in various States, may also ^ Mass. Gen. Stats, c. 99, § i ; Wilson take precedence of general debts due V. Shearer, 9 Met. 507. from the deceased person's estate. C. * Wms. Exrs. 968, 988. 2, posi. Under the Georgia code the ' Percival v. McVoy, Dudley (S. C.) support of family for a year has prece- 337 ; Huse v. Brown, 8 Greenl. 167 ; dance over the physician's bill. 73 Ga. 35 545 § 425 EXECUTORS AND ADMINISTRATORS. [PART V. § 424. These Preferred Claims rank together; Settlement in Full or Ratably. — All charges and claims, whether pertaining to funeral or last illness, which are of the same legal degree of preference, are to be paid out on the same footing ; and so, we may assume, in advance, as to administration charges. And where the assets are not sufficient to pay all these preferred claims in full, they must with little formality be divided ratably ; ' for the policy of our law does not favor declaring an estate in- solvent, merely for the sake of distributing assets among such claimants. - § 425. General Payment of Debts; Rule of Priority. — We now come to the general payment of debts and demands against an estate. Where the assets are ample for the adjustment of all claims in full, there can be little occasion for closely observ- ing rules of legal priority ; this priority denoting, not the time for payment, but the dignity of the claim. When, however, a deficiency occurs, and the estate is a slender one, the executor or administrator should regard such rules carefully ; for, if he pays an inferior claimant in full, and leaves not enough after- wards to settle all the superior claims which may in due time be presented, he cannot plead a want of assets, but must re- spond out of his own estate ; ^ and so pro rata as to other claims of equal dignity, for all such should be paid proportionally alike. Generally speaking, when the estate of a deceased person proves insolvent or insufficient to meet all the demands pre- sented, it shall, after discharging preferred claims, be applied to the payment of his debts in a prescribed order of classification. Tf there is not enough to pay the delots of any class, the cred- itors of that class shall be paid pro j-ata ; and no payment shall 741. As to a physician's statute prior- and the allowance of both as one item, ity, see 50 La. Ann. 152, 840. if to the same claimant, is not invalid. ' See Bennett v. Ives, 30 Conn. 329. Booth v. Radford, 57 Mich. 357 ; Mc- But these preferred claims appear by Clellan v. Filson, 44 Ohio St. 184. some codes to rank in consecutive order. Funeral e.vpenses are preferred to Hart V. Jewett, 11 Iowa, 276. And judgments unless the statute is explicit, statutes require their timely presenta- 41 N. J. Eq. 244; cf. 14 Phila. 569. tion. See Elliott's Succession, 31 La. ^ See post, § 446. Ann. 31. Funeral expenses and those ^ 2 Bl. Com. 411 ; Wms. Exrs. 989. of last illness rank a>i a preferred claim ; 546 CHAF. I.] DEBTS AND CLAIMS UPON THE ESTATE. § 426 be made to creditors of any class until all those of the preced- ing class or classes, of whose claims the executor or administra- tor has notice, are fully paid.' § 426. Rules of Priority; English Classes enumerated. — Ujlder the English law, as formerly stated, ( i ) debts due the crown, by record or specialty, occupy the first class, these taking prec- edence of all dues to a private subject.- (2) Next come mis- cellaneous debts to which particular statutes accord a certain precedence.-^ (3) To these succeed debts of record; among which judgments or decrees rendered against the deceased are preferred both to recognizances, or penal obligations of record, and the now obsolete securities by statute, which were likewise a sort of bond by record.^ (4) Debts by specialty follow, as on bonds, covenants, and other instruments sealed and delivered ; under which head, by construction, a debt for rent is included.^ (5) Last in order come simple contract debts, or such as are founded in parol or writing, not under seal.^ This enumeration carries the classification to an extreme limit. And to pass over the demands of the second class, which are of a purely arbitrary and exceptional kind, those of the third, fourth, and fifth classes, must needs provoke much controversy. Thus, as to the third class, judgments rendered against the decedent, whether prior in point of time or not, are preferred to recognizances and statutes of that class, and of course to all debts by specialty or simple contract ; but the judgment must 'Mass. Gen. Stats, c. 99; Wms. a deceased functionary, the regimental Exrs. 992; Moore v. Ryers, 65 N. C. dues of a deceased officer or soldier, and 240. Joint debts must be paid pari claims of a "friendly society" on its passu with separate debts. Pearce ?'. deceased manager, are among those Cooke, 13 R. I. 184. thus ranked. lb. From the language ^ Wms. Exrs. 991-993; 2 Inst. 32; of some of these statutes, it might be Cro. Eliz. 793 ; 3 Bac. Abr. tit. Exors. inferred that not even crown debts shall L. 2; (1897) I Ch. 673. Probate duties take precedence. 6 Ves. 99. are by statute placed on the footing of ■» Wms. Exrs. 997-1009, and cases debts due to the crown. Act 55 Geo. cited; 2 Bl. Com. 341. III. c. 184; Wms. Exrs. 993. ^ y (Jq. 88 b; Wms. Exrs. 1010-1024. ' Wms. Exrs. 994, 995 ; 6 Ves. 98, '' Bac. Abr. tit. Exors. L. 2 ; Wms. 441, 804. Moneys owing the parish by E.xrs. 1025, 1026; 2 Bl. Com. 511. 547 § 426 EXECUTORS AND ADMINISTRATORS. [PART V. have been rendered in a court of record ; ' and the rank is ac- corded only to domestic and not to foreign judgments.'' In English practice, a judgment which is entered against the de- cedent after his decease happening between verdict and judg- ment, shall take priority like a judgment entered during his lifetime ; for it is the judgment which was confessed by the deceased, or obtained by compulsion against him, to which the law assigns superiority.^ But, as respects a judgment rendered later, and in fact standing of record against the executor or administrator himself, no such priority applies ; for, as between the representative and the creditor, the judgment must be satis- fied by the representative out of his own property, if the estate proves insufficient ; while, as concerns the estate itself, the creditor stands superior only to others whose claims were of equal degree with that sued upon, by reason of his inferior dil- igence in prosecuting it."* In order to maintain their priority in the administration of the estate, judgments against the de- ceased must, in modern practice, be docketed ; ^ while, as among themselves, neither the cause of action nor the order of docket- ing can give one judgment precedence of another.^ A decree in equity obtained against the deceased, is equivalent to a judg- ment at law, in respect of priority in the administration ; but not if the decree did not conclusively ascertain a sum actually due, but requu'ed an account, or related to some collateral mat- ter, such as foreclosing a mortgage.7 As for a recognizance or security by statute, which, though an obligation or bond of record, is postponed to judgments of record and decrees, there ' As to what courts are courts of dingham, L. R. i Q. B. 355; Stat. 23 & record, see Wms. Exrs. 997, 998; Holt 24 Vict. c. 38; Fuller v. Redman, 26 V. Murray, i Sim. 485. Beav. 600. = 2 Vern. 540; Walker v. Witter, ^ Wms. Exrs. 1004, 174°; Wentw. Dougl. I ; Harris z/. Saunders, 4 B. &. C. Off. Ex. 269, 14th ed. But of several 411. judgment creditors, he who first sues ^ 5 Co. 28 b; Wms. Exrs. 998, 1740; out execution must be preferred, and Burnet v. Holden, i Mod. 6 ; Coles- the executor may elect to whom he beck V. Peck, 2 Ld. Raym. 1280. shall pay first. Wms. Exrs. 1004. * Wms. Exrs. 999, 1000; Ashley v. ' Prec. Ch. 79; Searle v. Lane, 2 Pocock, 3 Atk. 308. Vern. 89; 3 P. Wms. 401 «. ; Wilson z*. ' See various statutes enumerated in Lady Dunsany, 18 Beav. 299; Wms. Wms. Exrs. 998-1003; Kemp v. Wad- Exrs. 1005. 548 CHAI'. I.] DEBTS AND CLAIMS i:P0N THE ESTATE. § 427 must be a record or enrollment in order to place it above spe- cialty debts ; independently of which formality, it should rank among them." § 427. The Same Subject. — As between specialty and simple contract debts, under the foregoing classification, it is not the mere recital in a deed, but the obligation operating by force of undertakings in an instrument under seal which entitles the specialty debt to priority.^ And where one who was bound with the deceased, as surety or co-obligor, pays the bond, his claim upon the estate is held to be only that of a simple contract cred- itor, inasmuch as the specialty itself has been paid off ; ^ a legal refinement not commended by American courts, discarded by a late English statute, and admitted to have no force where the original bond still subsists. ■» A demand founded in a broken covenant, is a specialty debt, whether it be for damages merely, or some specific sum ; ^ and breaches of trust may be similarly regarded when committed by violation of the terms of the sealed instrument, *" though not necessarily when conveyance was made by deed to a trustee without covenant on his part.^ Debts by ' Bothomly v. Fairfax, i P. Wms. Sen. 313; Robinson's Executor's Case, 334 ; Bac. Abr. Execution ; Wms. Exrs. 6 De G. M. & G. 572. 1006-1010. 3 CopLs V. Middleton, i Turn. & K. When t-wo are bound jointly andsev- 224; Priestman v. Tindal, 24 Beav. 244. erally, and upon the death of one the "i 19 & 20 Vict. c. 97, § 5 ; Wms. Exrs. other becomes his executor, the latter 1013, 1014 ; Ware, Ex parte, 5 Rich. may discharge the bond out of the Eq. 473 ; Drake v. Coltraine, Busb. L. estate of the former; and it has not 300; Howell v. Reams, 73 N. C. 391; been uncommon in England, when one Hodgson &. Shaw, 3 M. & K. 183. The man is surety for another, for the surety sum due on an administration bond is to be constituted executor of the prin- not a specialty debt due to the adminis- cipal, that his indemnity may be the trator de bonis noii. Parker v. Young, better secured. Rogers v. Danvers, i 6 Keav. 261. Freem. 128. But if the deceased was ^ Plumer v. Marchant, 3 Burr. 1380; bound by a purely joint obligation, the Broome v. Monck, 10 Ves. 620 ; Pow- survivor alone would continue liable, drell v. Jones, 2 Sm. & G. 305 ; Wms. Rogers v. Danvers, i Freem. 128; Exrs. 1017. Richardson v. Horton, 6 Beav. 185. ^ Cas. temp. Palb. 109; Benson v. Equity does not favor such construe- Benson, i P. Wms. 130; Turner v. tion, but rather that a joint and several Wardle, 7 Sim. 80. bond was intended. ' As a rule, it would appear that ^ Ivens 2/. Elwes, 3 Drew. 25; Wms. breach of trust can constitute no spe- Exrs. 1012; Lacam v. Mertins, i Ves. cialty debt, where the tru.stee has not 549 v^ 42cS EXECUTORS AND AnMINISTRATORS. [PART V. mortgage rank also with specialty debts, where there is a bond or covenant for the payment of money ; otherwise, they consti- tute only a simple contract debt with security.' Debts by spe- cialty, due at some future day, take priority of debts by simple contract, since provision should be made for them ; but obliga- tions of indemnity or other contingent debts by specialty, which may never become payable at all, cannot thus obstruct debts actually due of an inferior rank ; " though where the contingency hapjx'ns by breach of the condition, the security will stand like other specialty debts as to assets then existing.-^ Finally, simple contract debts embrace all which are founded in parol and written engagements not under seal, including sums due on bills and ])romissory notes, and transactions by word of mouth.'' Such was the dissatisfaction in later times upon these pref- erential distinctions between the specialty and simple contract debts of deceased persons, that Parliament interfered, a few years ago, with an act abolishing all such priorities. 5 i^ 428. Rules of Priority ; American Classes enumerated. — The American rules of priority among claimants, like those relating to the insolvent estates of deceased persons, are fixed by local statutes by no means uniftn'm. l^ut, in most parts of the United States, the disposition has been to reduce the classification of a deceased person's debts to the simplest system possible ; thereby avoiding the close discriminations just noticed. Indeed, we may ascribe in part the new English statute 32 & 33 Vict. c. 46, executed the deed. Wnis. Exrs. 1020; January i, 1870; Wms. Exrs. preface, Richardson 7'. Jenkins, i Drew. 477. loii. The priority of judgment cred- '3 Lev. 57 ; Cro. Eliz. 31 5. itors, however, is still recognized. Smith ^ See Wms. Exr.s. 1022-1025; Atkin- z'. Morgan, L. R. 5 C. P. D. 337. See son z: Grey, i Sm. & G. 577 ; Collins z'. Shirreff ?'. Hastings, 25 W. R. 842, as to Crouch, I 3 Q. B. 542. debts under a lease. For the right of ^ Cox T'. Joseph, 5 T. R. 307 ; Wms. retainer under this act, see § 439 ; 31 Ch. Exrs. 1024; Mu.sson 7'. May, 3 Ve.s. & B. D. 440, And in Hankey AV, (1899) 194. 541, theact is distinctly construed as not * Wms. Exrs. 1025, 1026. permitting simple contract creditors to ' See Stat. 32 & 23 Vict. c. 46, which be paid in full to the prejudice of spe- places specialty and simple contract cialty creditors, where the estate proves creditors on an eciual footing as to the insolvent. estates of all persons dying on and after CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE. §428 to the force of American example ; for the general tendency in the United States has long been to rank specialty and simple contract debts (with, perhaps, judgment debts besides) upon one and the same equal footing.' Nor do claims for rent ap- pear to have been greatly regarded in this country as entitled to a preferred rank, because of the incident of land tenure alone. - Taxes only have the decided preference accorded in the several States ; these claiming the usual favor of public dues ; and debts entitled to a preference, under the laws of the United States, taking precedence of State taxes.^ Special preferences are seldom favored in our probate legislation. ' 2 Kent Com. 418, 419; cases cited post. ^ Cooper V. Felter, 6 Lans. 485. As to rent due for a pew, see Johnson v. Corbett, 11 Paige, 265. But cf. 159 111. 3"- 3 Under our federal constitution, the United States has the right to establish uniform laws on the subject of bankrupt- cies ; a right which has been occasion-- ally, but not regularly, exercised. More- over, the laws of the United States control all State laws as concerns the federal priority. United States v. Dun- can, 4 McLean, 607 ; Beaston v. Farm- ers' Bank, 12 Pet. 102. In practice. Congress requires .simply that debts due from the deceased to the United States shall first be satisfied, where the estate is insufficient to pay all debts due from the deceased. This priority of the United States extends of right only to net proceeds, after the necessary charges of administration, etc., have been paid; it is a priority as among creditors. United States v. Eggleston, 4 Sawyer, 199. It includes the indebtedness of an indorser. United States v. Fisher, 2 Cr. 358. The estate of a deceased surety, on a bond given to the United States, settling with the United States, shall be subrogated to its rights as con- cerns the estate of the deceased princi- pal. U. S. Rev. Stats. § 3468. Taxes, 55 on real estate, paid for the convenience of heirs, are sometimes allowable in ac- counts, but not taxes assessed after partition at all events. 77 Va. 820. When an administrator does not need the lands of his intestate for the pay- ment of debts, it is not his duty to pay the taxes thereon. Reading v. Wier, 29 Kan. 429. Taxes on the land, water- rates, etc., charged before the owner's decease, may be properly paid by the administrator, but not usually those ac- cruing aftei-wards. 13 Phila. 262, 289; 3 Dem. 369 ; 88 Ga. 364. A personal tax is a proper debt for payment from a decedent's estate. Jefferson's Estate, 35 Minn. 296 ; 139 Mo. 582 ; 73 Cal. 545. Taxes against the decedent should be paid at once after the funeral ex- penses, regardless of claims proved and presented. 63 Md. 465. Municipal taxes paid in good faith and fairly, though afterwards declared unconstitu- tional or irregular, should be allowed. 39 N. J. Eq. 258; 20 Fla. 292. Unpaid county taxes are in some codes iitferior to taxes due the State, to widow's al- lowances, etc. 69 Ga. 326. And see 97 Iowa, 420. As to alimony claim, see 122 Cal. 462. Debts " due to the public " have sometimes a priority accorded by stat- ute, though not over liens general or .special. Baxter v. Baxter, 23 S. C. 114. §428 EXECUTORS AND ADMINISTRATORS. [part V. The American rule ' appears to be to consider the rights of creditors as fixed at the debtor's death, according to their due ' Thus, the rule, as laid down by the legislature of Massachusetts, contem- plates three classes in the following order: (i) Debts entitled to a prefer- ence under the laws of the United States ; (2) Public rates, taxes, and ex- cise duties; (3) Debts due to all other persons. Mass. Gen. Stats, c. 99. In New York, on the other hand, the sys- tem is not so simple, for there are four classes of debts, viz : (i) Debts entitled to a preference under the laws of the United States; (2) Taxes assessed upon the estate of the deceased previous to his death ; (3) Judgments docketed and decrees enrolled against the deceased according to the priority thereof, re- spectively ; (4) All recognizances, bonds, sealed instruments, notes, bills, and unliquidated demands and accounts. 2 N. Y. Rev. Stats. 87, § 27. As to the priority of docketed judgments, etc., under this statute, see Trust v. Harned, 4 Bradf. (N. Y.) 213; Ainslie v. Rad- cliff, 7 Paige, 439 ; McNulty v. Hurd, 18 N. Y. Supr. 339. This priority takes effect without reference to any lien of such judgments or decrees upon real estate. Ainslie v. Radcliff, ib. The judgment must have been perfected during the life of the debtor. Mitchell V. Mount, 31 N. Y. 356; 62 Minn. 135. Priority of payment among debts be- comes, therefore, in our several States, a matter of local construction as con- cerns local and independent statutes relating to this subject. See Hart v. Jewett, II Iowa, 276; Titterington v. Hooker, 58 Mo. 593 ; Pugh v. Russell, 27 Gratt. 789; 62 Minn. 135. Debts preferred as " due to the pub- lic " do not include debts due to a State bank. Bank v. Gibbs, 3 McCord, 377 ; Fields V. Wheatley, 1 Sneed, 351 ; Cen- tral Bank v. Little, 1 1 Ga. 346. Taxes or public dues are in various States 55 accorded a priority so great that they may be sued upon specially, though the estate be pronounced insolvent. Rulfinch V. Benner, 64 Me. 404. And see Bowers v. Williams, 34 Miss. 324 ; 2 Vt. 294. But the taxes thus payable are those primarily which the decedent was owing at his death. Later taxes follow the rvile of the statute imposing them ; but a representative should not pay an assessment upon land which the heir or devisee should discharge; nor encumber personal assets with charges that do not properly fall upon them, nor the w'hole personal estate with taxes which concern specific chattels. See Lucy V. Lucy, 55 N. H. 9; Deraismes V. Deraismes, 72 N. Y. 154. Taxes duly imposed by the State upon assets require no presentment for allowance. 119 Mo. 661. In vaiious States, the English classi- fication has been more closely followed, under statutes now or formerly in force, though the general policy is that indi cated in the text. Hence are found numerous American decisions as to priority, some of which may here be stated for comparison with the English decisions cited under that head. I. Judgments. — Judgment creditors (except for those, as under the New York statute, whose judgments have been docketed against the deceased before his death), in general retain, in this country, the rank that would be- long to their several causes of action before judgment. lidderdale i7. Robin- son, 2 Brock. 159. And by the com- mon law one judgment was not entitled to preference over another if both were docketed at the debtor's death, unless a judgment creditor obtained a prefer- ence by proceedings subsequent to such death. Ainslie 7'. Radcliff, 7 Paige, 439. In marshalling assets, a dormant 2 CHAP. 1. DEBTS AND CLAIMS UPON THK ESTATE. §428 rank; so that no one shall, by superior diligence or by pref- erential dealings with the executor or administrator, or by push- judgment is held to rank with bonds and other obligations in some States. Williams z-. Price, 21 Ga. 507 ; State i'. Johnson, 7 Ired. L. 231. And see Carnes v. Crandall, 4 Iowa, 151. The priority of judgments over specialty and simple contract debts was formerly recognized in Kentucky. Place v. Old- ham, 10 B. Mon. 400. As to the statute preference of "judgments, mortgages, and executions," see Bomgaux v. Bevan, Dudley (Ga.) 110; Commissioners v. Greenwood, i Desau. 450. A State may prefer its own judgments to those of other States. Harness v. Green, 29 Mo. 316; Jones v. Boulware, 39 Tex. 367. Cf. Gainey v. Sexton, 29 Mo. 449 ; Brown v. Public Administrator, 2 Bradf. (N. Y.) 103. Judgment by a justice of the peace is of superior dignity to a bond or note; but, not being matter of record, actual notice should be given to the legal representative. State z'. John- son, 7 Ired. L. 231. Judgment entered after the defendant's death, upon ver- dict rendered during his life, takes full priority. Miller v. Jones, 2 Rich. 393. The judgment passes to one subrogated to the rights of the original creditor, with all its original privileges and in- firmities. Partee v. Mathews, 53 Miss. 140. As to statutes taking away this preference and their effect, see Deich- man's Appeal, 2 Whart. 395 ; Place v. Oldham, 10 B. Mon. 400; Worthley v.- Hammond, 13 Bush, 510. Concerning a judgment upon a tort which dies with the person, see Hammond v. Hoffman, 2 Redf. (N. Y.) 92. And as to judg- ments recovered after a fraudulent assignment of property by the debtor, see Le Prince v. Guillemot, i Rich. 187. See also Davis 71. Smith, 5 Ga. 274; Coates V. Muse, i Brock. 557; Coltraine ?'. Spurgin, 9 Ired. L. 52 ; Eddins v. Graddy, 28 Ark. 500. 55 Generally, in the United States, where a judgment is not a lien on the defendant's land at the time of his death, the creditor can only collect his debt in the due course of administra- tion, and his judgment has no preference or priority over any other creditors hold- ing ordinary demands. Clingman z'. Hopkie, 78 111. 152; Keith v. Parks, 31 Ark. 664. Judgment liens on real estate are settled in the order of their priority. Kerr r'. Wimer, 40 Mo. 544. But un- der the New York code it is otherwise. Sicpra, p. 552 ; Ainslie v. Radcliff, 7 Paige, 439. A judgment recovered against the executor of an executor who had died pending a suit against him to recover misappropriated moneys is not to be preferred above the claims of creditors generally. Fox's Estate, 92 N. Y. 93. Docketed judgments in North Carolina take effect as liens ac- cording to their priority of date at the decedent's death. 87 N. C. 428. But a judgment against the representative does not determine the rank of the claim. 23 S. C. 373. II. Specialty Debts. — In some Ameri- can codes, certain specialties — e.g. mortgages — have been accorded a prior rank with judgments. Moore v. Dortie, 2 Ga. Dec. 84. A specialty debt due a citizen is to be preferred, in certain States, to a simple contract debt owing the State. Commonwealth v. Logan, I Bibb, 529. And see Commissioners V. Greenwood, i Desau. 450. Agree- ment not under seal to execute a bond does not rank as a specialty debt. Johnson v. Slawson, 1 Bailey Ch. 463. And see Smith v. Smith, 2 Hill (S. C.) Ch. 1 12. III. Simple Contract Debts. — These, in some American codes, are postponed to .specialty debts. Webster ->. Ham- mond, 3 liar. & M. (Md.) i;,i. Bui 3 §428 EXECUTORS AND ADMINISTRATORS. [part ing his suit to judgment, get an advantage over the others.' Nor are distinctions favored between legal and equitable cred- itors, or legal and equitable assets for satisfying their claims.* not generally, as we have stated. See Heath -•. Belk, 1 2 S. C. 5S2. Some codes charge the estate of a deceased person, so as to make the wages due servants and operatives a preferred claim. Everett <•. Aver)-, 19 Mo. 136 ; Martin's Appeal, 35 Penn. St. 395 ; Gaines z/. Del Campo, 30 La. Ann. 245. See also 56 Kan. 281. It would appear, by the better authority, that the common law accords no such preference. See Wms. Exrs. 1025, com- menting upon 2 Bl. Com. 511, and i Roll. Abr. 927. And see Davis v. Davis, 49 Vt. 464. The claim upon an estate which grows out of a defective title, but is founded in no covenant or undertaking under seal, stands only as a simple contract debt. Laws v. Thompson, 4 Jones L. 104. " Liqui- dated demands " are sometimes dis- tinguished in our codes from " unliqui- dated," as to mode of proof or other^vise. McNulty V. Pruden, 62 Ga. 1 35. ' Bosler v. Exchange Bank, 4 Penn. St. 32 ; McClintock's Appeal, 29 Penn. St. 360; Allison V. Davidson, i Dev. & B. Eq. 46 ; Boyce v. Escofifie, 2 La. Ann. 872 ; Lidderdale v. Robinson, 2 Brock. 159. And see statutes noticed, post, which give the representative time to examine into the condition of the estate before creditors can sue him. ^ Sperrj', Estate of, i Ashm. 347. But cf. Jones v. McCleod, 61 Ga. 602. An administrator, having assets in his hands, who fails to pay oiY a judgment rendered against him as administrator, becomes personally liable. Jeeter v. Durham, 6 J. J. Marsh. 228. Penalties incurred by the deceased, under a con- tract made by him while Hving, must be paid. Atkins v. Kinnah, 20 Wend. 241. Or obligations as a surety. Berg V. Radcliff, 6 Johns. Ch. 302. Under 55 Connecticut statute the indorsee of a promissory note is creditor of the estate ; not the indorser. Meriden Steam Co. V. Guy, 40 Conn. 163. As to allowing an indorsement as a contingent claim, see Curley v. Hand, 53 Vt. 524. The claim against one's estate for a balance due as fiduciary of an estate, such as an administrator, trustee, guar- dian or attorney, is, in some States, treated as of special dignity. Johnson v Brady, 24 Ga. 131 ; Curie v. Curie, 9 B Mon. 309 ; Smith v. Blackwell, 31 Gratt 291; Watson V. Watson, i Ga. 266 Smith -.Ellington, 14 Ga. 379; Caruth ers V. Corbin, 38 Ga. 75 ; Wilson v Kirby, 88 111. 566. But, by the usual rule, breach of trust, unless founded in a specific specialty, constitutes only a simple contract debt. Carow v. Mo- watt, 2 Edw. (N. V.) 57 ; supra, § 427 ; Rolair v. Darby, i McCord (S. C.) Ch. 472. See, further, Muldoon v. Craw- ford, 14 Bush. 125; Van Duzer, Matter of, 51 How. (N. v.) Pr. 410. Whether the creditor of a firm should pursue the surviving partner, before en- forcing his claim against the estate of the partner deceased, see Dubois' Case, 3 Abb. (N. Y.) Pr. 177. But individual creditors can insist on the full payment of their debts, from the decedent's es- tate, before the allowance of partner- ship debts from the individual assets. People V. Lott, 36 111. 447 ; Higgins v. Rector, 47 Tex. 361. The balance due to the surviving partner on adjustment of accounts is a proper claim. Babcock V. LilHs,4 Bradf. (N. V.) 218. The power of the probate court to re-classify and change its order, in States where such classification devolves upon the court, is sometimes denied. Cor- sitt V. Biscoe, 12 Ark. 95. It cannot 4 CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE. § 43O § 429. Claims grounded in a Tort ; Damages, etc. ; Contingent Claims ; How ranked. — As torts died with the person at com- mon law, claims of this character were not in earlier times con- sidered in connection with the settlement of estates. But suits growing out of a tort, which do not thus abate in modern prac- tice, of which there are numerous instances, may pass sometimes to judgment ; ' though statutes are found which expressly de- clare the rank such claims shall occupy.^ Breaches of trust, unless committed in breach of some sealed instrument, are re- garded as simple contract debts ; ^ though, as we have seen, a broken bond or covenant serves as the foundation of a specialty debt.4 Contingent claims, or such as are not absolute or certain, are found specially provided for in local codes for the presentment and settlement of claims against a decedent's estate.^ § 430. Mortgage Debts ; Rights of Creditors having Security- — A mortgage debt, notwithstanding a real estate security, is payable out of the personal assets of the deceased on the usual principles.^ A personal covenant in a mortgage will bind the mortgagor's personal estate after his death. =' In case the de- be changed, after the assets have been ^ 2 Atk. 119; Bailey z'. Ekins, 2 Dick. exhausted, in conforming to the first 632 ; Wms. Exrs. 1018. decree ; but, if erroneous, the classifica- •* Supra, § 427 ; Cas. temp. Talb. 109. tion should be appealed from when All such claims shcfuld be presented made. Nelson z/. Russell, 15 Mo. 356. according to the usual rules. Halleck, Or motion may be made by the ag- Estate of, 49 Cal. iii. Statutes some- grieved creditor for a correction tunic times give these claims a preference. pro tunc, but not by injunction against Supra, § 428, «. the representative. Jillett v. Union = 72 Minn. 232. But a subsisting de- Nat. Bank, 56 Mo. 304. mand which had matured and was cap- ' See supra, § 282; Smith v. Sher- able of enforcement while decedent was man, 4 Cush. 408. alive is not contingent. 52 Neb. 532 ; ^ Thus, the important English statute, Sargent v. Kimball, 37 Vt. 321. See 3&4 Wm. IV. c. 42, which permits dam- 158 Mass. 418. ages to be recovered for injuries done * Howel v. Price, i P. Wms. 291 ; by the deceased to the real or personal Sutherland v. Harrison, 86 111. 363; property of another, directs that the Mahoney v. Stewart, 123 N. C. 106. damages recovered shall be paid in like But as to exonerating the real estate by order of administration as simple con- the personal, see post. Part V'l. c. i. tract debts. Wms. Exrs. 1026. See Ham- ' Dennis v. Sharer, 56 Mich. 224. niond V. Hoffman, 2 Redf. (N. V.) 92. 555 § 430 EXECUTORS AND ADMINISTRATORS. [part V. ceased mortgagor was not seized of the mortgaged propert}- at the time of his death, the mortgagee has his choice, either to rely upon such property, or resort to the decedent's estate for payment.' But, where the personal estate of a deceased debtor is distributed among his creditors, it is held that a creditor, who has security upon another fund which is primarily liable, should be compelled to exhaust his remed)- against that fund, and come in against the personal estate for the deficiency only.^ And an administrator or executor has no right to redeem prop- erty for the benefit of the widow, at the cost of an insolvent estate, nor in general to discharge incumbrances by mortgage, pledge, or lien, on his sole responsibility, and without judicial order, where the estate is likely to derive no advantage from the act, but rather the reverse.^ Lien, mortgage, and pledge creditors, in general, take the full benefit of their security, notwithstanding the death of the debtor ; and may apply such security in discharge of their re- ' Rogers v. State, 6 Ind. 31. See W hitmore v. San Francisco Sav. Union, 50 Cal. 145. Where real estate mort- gaged by the testator will probably be- insufficient on foreclosure to pay the mortgage debt, the surrogate or probate, judge may direct the executor or admin- istrator to reserve enough from the as- sets to meet the deficiency, in the same proportion as for other debts of the same degree. Williams v. Eaton, 3 Kedf. (N. Y.) 503. - Thus, where land was sold subject to a mortgage, which the purchaser covenanted to pay or assume, the pur- chase-money being lessened in amount accordingly, the mortgaged premises should be treated as the primary fund for payment of that debt. Halsey v. Reed, 9 Paige, 446. Where the execu- tor or administrator sells property in- cumbered by a mortgage, the claim of the mortgagee must be satisfied out of the security before the residue can be held for administration expenses, or the 5 claims of general creditors ; and only the expenses of the sale take precedence. Murray, Estate of, 18 Cal. 686 ; Murphy . V. Vaughan, 55 Ga. 361. But cf. Alter V. O'Brien, 31 La. Ann. 452. If a , mortgagee does not present his claim within the limited time for presentment and the e.state is settled, his right to enforce the mortgage is not affected. Smith V. Gillam, 80 Ala. 296. But he loses all right to hold the decedent's estate for a deficiency. Willard v. Van Leeuwen, 56 Mich. 1 5. See as to equity proceedings in foreclosing a mortgage where the deficiency was treated as a valid claim against assets, Shelden v. Warner, 59 Mich. 444. 3 Rossiter v. Cossitt, 15 N. H. 38 ; Ashurst V. Ashurst, 13 Ala. 781 ; Shaw, C. J., in Ripley v. Sampson, 10 Pick. 373; j«/;-rt, § 318. As to discharging a debt secured by vendor's lien, see Mullins V. Yarborough, 44 Tex. 14. And see Slack v. Emery, 30 N. J. Eq. 458. 56 CHAP. I.] DEBTS AM) CLAIMS UPON THE KSTATE. § 43O spective claims, under the usual rules and reserving the usual equities. Thus, a solicitor or attorney has a particular lien ; so, too, has a bailee for hire, or the workman upon a certain thing,' or a banker for his adx'ances.- So far as pursuing all such rights against the estate is con- cerned, modern codes and practice often permit the secured creditor either to realize his security or have it valued ; and where he elects to value, he can only prove for the balance of his claim less the valuation.' The security or securities are of course available by way of preference, in accordance with the usual legal doctrines, and the creditor is not obliged to resort to the general assets like general creditors.* If, after realizing upon the security, a balance remains due to the secured cred- itor, his claim for such balance stands on no better footing than that of unsecured creditors ; and, if assets are deficient, he should be paid proportionably with them. 5 And, in general, claims secured by mortgage, pledge, or lien, are no exception to the rule which requires personal demands to be presented and proved or sued upon, within a specified time, or else to be barred as against the estate.*^ Collateral security, given by the execu- tor or administrator for a debt due from the deceased, cannot operate so as to place the creditor in a better situation against ' Lloyd V. Mason, 4 Hare, 132; incumbrance. Tuttle v. Robinson, t,t, Schoul. Bailm. §§ 122-127. N. H. 104. ^ Leonino ?'. Leonino, L. R. 10 Ch. - The rule for such creditors is fre- D. 460. cjuently defined by the local statute. ^ Williams 7k Hopkins, 29 W. R. 767 ; See Martin ?'. Curd, i Bush, 327 ; Wil- McClure z>. Owens, 32 Ark. 443. liams v. Hopkins, supra ; WilHams v. ^ As among different securities, real Eaton, 3 Redf. (N. Y.) 503 ; Moring v. and personal, a pro rata contribution Flanders, 49 Ga. 594. A vendor's lien may be proper in conformity to the con- for unpaid purchase-money is not a pre- tract. Leonino v. Leonino, L. R. 10 ferred claim. Kimmell v. Burns, 84 Ch. D. 460. The duty of the executor Ind. 370. or administrator to redeem property of ^ Clark -'. Davis, 32 Mich, i 54 ; Pitte the deceased under mortgage, pledge, ?'. Shipley, 46 Cal. 154. See Watt v. or execution, where he has sufficient W' hite, 46 Tex. 338. The creditor who assets, or else to sell, subject to the in- probates his claim against the estate is cumbrance, is found enforced by legis- not debarred thereby from proceeding lation, provided there appears to be a to foreclose his mortgage. Simms v. valuable interest over and above the 557 § 431 EXECUTORS AND ADMINISTRATORS. [PART V. the estate itself than he was in without such security ; ' and a secured creditor's claim aside from the worth of the security takes no rightful priority. On the whole, therefore, the rights of general creditors of a decedent are subject to all equities attaching to the estate at the time of his death ; such creditors take the estate in the plight in which they find it, and their rights cannot be enlarged beyond their debtor's, to the prejudice of secured creditors or of lien priorities.- § 431. Invalid or Exorbitant Claims; Voluntary Transactions. — Claims against the estate, which have no legal validity, must not be paid ; and if exorbitant or partially invalid, the executor or administrator should reduce to the proper amount ; otherwise his erroneous or excessive payment will amount to a devastavit, as against legatees and distributees as well as creditors, A bond debt, founded in immoral consideration, or transgressing the usury laws, or given by one incompetent to contract, comes within this rule.^ And the testator or intestate having died an infant, it is held that his legal representative should not pay a debt, not for necessaries, which required one's ratification on attaining majority to render it binding.* Richardson, 32 Ark. 297. See Wil- ject of compromise), Parker v. Cowell, liamson v. Furbush, 31 Ark. 539. 16 N. H. 149. We may presume that ' Wyse 7'. Smith, 4 Gill & J. 295 ; the general principle of probate and Pie.ster v. Piester, 22 S. C. 139. equity, which exempts a representative ^ Dulaney v. Willis, 95 Va. 606. But from the liabilities of extraordinary where a judgment creditor's lien has bailee or insurer (see j-? Babcock v. Lillis, 4 Bradf. 218. such commissioners, as to the allowance 560 CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE. § 435 § 435. Exhaustion of Assets in paying Superior Claims ; Prefer- ences to be observed ; Representation of Insolvency. — An execu- tor or administrator, whose assets are necessarily exhausted in paying debts of the prior class, is bound to plead accordingly when sued on a debt of lower rank ; otherwise a sufficiency of assets for both classes is virtually admitted, and he must respond accordingly.' And if, upon due opportunity to ascertain the con- dition of the estate, he believes it to be insolvent, he should so represent to the court and relieve himself of undue responsibility.^ Rut in some States it is distinctly provided, that where the exec- utor or administrator shows by his account in the probate court that the whole estate and assets in his hands have been exhausted in the administration and funeral charges, debts of last illness, and other debts or claims preferred by statute, such settlement shall be a sufficient bar to any action brought against him by a creditor not entitled to such preference, even though the estate has not been represented insolvent. ^ It would be devastavit, rendering him personally liable for the deficiency, if the execu- tor or administrator gave preference to a debt of lower dignity over those duly presented of a higher ; and this rule is the same in law and equity. •♦ or rejection of certain claims submitted 433. See Clark z/. Davis, 32 Mich. 154. to them, is usually final, unless appealed The commissioners are not a "court " from; and claims rejected by them can- in the constitutional sense. 40 Mich, not be afterwards used by set-off or 503. They cannot find and report otherwise against the estate. Rogers v. against persons who do not appear. 59 Rogers, 67 Me. 456 ; Probate Court v. Mich. 290. Under some codes a cred- Kent, 49 Vt. 380. And even the pro- itor may call for commissioners if the bate court has not always a statutory court neglects to appoint them ; 57 Vt. power to accept, reject, or modify their 49. report at discretion. As to notice of ' i Salk. 310; Wms. Exrs. 989; 2 the time and place for hearing and ex- Bl. Com. 511. amining claims, and the general proceed- ^ Newcomb z/. Goss, i Met. 333. But ings of commissioners, cf. local statutes ; in modern practice a judicious executor Hall V. Merrill, 67 Me. 112; insolvent or administrator may generally bring all estates, § 446. Claims purely of an creditors to accept a /r(7 ra/^ allowance, equitable or contingent character can- according all due priorities, and so close not be determined by commissioners, the estate with less cost and delay. Brown v. Sumner, 31 Vt. 671. And ^ Mass. Gen. Stats, c. 97, § 20. see 51 Vt. 50. But the probate or the ■• Moye v. Albritton, 7 Ired. Eq. 62; "county" court may have jurisdiction Gay z'. Lemle, 32 Miss. 309; Huger z/. of such claims. Hall v. Wilson, 6 Wis. Dawson, 3 Rich. 328 ; Swift v. Miles, 36 561 S 436 EXECUTORS AND ADMINISTRATORS. [PART V. § 436. Notice of Debts as affecting their Payment with due Preferences; English Rule. — It is laid down, that an executor or administrator may voluntarily pay a debt of the inferior, before one of a superior sort, of which he had no previous no- tice ; a doctrine, fundamental in character and rational, which keeps tardy creditors from disturbing the settlement, and which obliges all who mean to assert claims upon an estate to present them in good season.' The rule that the executor or adminis- trator must personally respond as for devastavit, where he has used up the assets upon inferior debts, applies with this reserva- tion ; ^ for, if he had no notice of the higher debt in question, and was not bound to take notice of it, he must stand excused. Where, too, it is said that debts of superior rank must be pleaded in bar of an action to recover a debt of lower rank, if there are not assets enough for both, or else the representative will be personally bound, a like reservation is to be understood ;3 and hence, an executor or administrator may plead, when sued on a debt of the higher rank, judgment recovered without no- tice thereof on a debt of the lower rank to the exhaustion of assets ; for, unless he knew of the higher debt, he could not have prevented a recovery of the lower.'* As to debts in gen- eral, actual notice must have been received by the executor or administrator, in order to preclude this plea ; though, what this notice, the English cases do not clearly determines But, of judgments, decrees in equity, and debts due by recognizance and statute, the judicial record is treated as affording construc- tive notice, which every executor or administrator is bound to regard;^ such debts being styled debts of record, and classed accordingly. With the modern extension of the courts and 2 Rich. (S. C.) Eq. 147; People v. ' It is intimated in i Mod. 175, that Phelps, 78 111. 147 ; Howell v. Reams, such actual notice must be by suit. 73 N. C. 391. Cf. Miller v. Janney, 15 But, by the better authorities, the exec- Mo. 265. utor or administrator, however apprised '2 Show. 492; Hawkins v. Day, i of the existence of a higher debt, cannot Dick. 155; Wms. Exrs. 1029. safely disregard. Wms. Exrs. 1032; 2 Supra, § 425. Oxenham v. Clapp, 2 B. & Ad. 312. 3 Sttpra, § 435. * Cro. Eliz. 763 ; Searle v. Lane, 2 * Bull. N. P. 178; Sawyer v. Mercer,, Freem. 104; Wms. Exrs. 1031, 1032. I T. R. 690; 3 Lev. 114; Wms. Exrs. 1029. 562 CJIAP. I.] DEBTS AND CLAIMS UPON THE ESTATE. § 437 judicial business, this rule must needs impose a perilous respon- sibility upon the legal representative ; but, except for requiring that judgments be docketed in order to afford a constructive notice, English legislation long did nothing to alleviate the bur- den thus imposed upon the representative.' § 437- T^® Same Subject; English Rule as to Equal Creditors; Creditor's Bill, etc. — Among creditors of equal degree, the Eng- lish law has permitted the executor or administrator to pay one in preference to another at his discretion ; a privilege to do in- justice to others by way, perhaps, of recompense for the injus- tice done to himself.^ This preference may be controlled, however, by proceedings of creditors in the courts. For, as to such creditors of the deceased, a scramble may ensue in the common-law courts ; and not he who first commences an action, but he who first recovers a judgment against the executor or administrator, must first be paid. If one such creditor com- mences the suit, and the legal representative gets notice of it, the latter's right to voluntarily prefer another creditor of equal degree, and then plead plenc administravit, becomes checked.^ Yet the privilege is not wholly lost ; for, by baffling this liti- gant until he has confessed judgment to the suit of another creditor of equal degree, or otherwise aided the other creditor to recover judgment first, the executor or administrator still e.Kercises his right of preference.'' Equity will not interfere with such an election ; ^ nor do the courts of common-law pre- clude his ]At2i puis darrein continuance, that judgment was con- fessed in the latter suit, after he had pleaded the general issue to the former ; nor even require that the debt confessed was known to him before this action commenced.*" A prior plea, confessing assets to a certain amount, may accord a similar pref- erence.7 All that the law appears to insist upon is bona fide 'Stat. 4& 5 W. & M. c. 2o; stat. " Vaugh. 95 ; Lyttleton f. Cross, 3 K. 23 & 24 Vict. c. 38. But see Stat. 32 & & C. 217 ; Wms. Exrs. 1034. 33 Vict. c. 46 ; also § 427. -' Lepard v. Vernon, 3 Ves. cSc B. 53 ; ^ Wms. Exrs. 1033; Lyttleton v. i P. Wms. 215. Cross, 3 B. & C. 322. ^ Lyttleton v. Cross, 3 B. & C. 322 ; ^ Ashley v. Pocock, 3 Atk. 208 ; Prince v. Nicholson, 5 Taunt, -i,},!). Wms. Exrs. 1033, 1034. " Waters v. Ogden, 2 Dougl. 453. 563 § 437 EXECUTORS AND ADMINISTRATORS. [PART V. conduct on the part of the executor or administrator, so that the judgment confessed by him, or the plea confessing assets to a certain amount, shall disclose what is truly owing, or what is the true state of the assets, with reference to the several cred- itors suing, and the time and circumstances of the several suits.' Where, instead of an action at law, proceedings in equity are commenced against the executor or administrator by a creditor's bill, it is settled in England that a decree of chancery against an executor or administrator is equivalent to a judgment at law against him ; ' whence, it follows, that a decree for payment must take priority oi judgments at law later obtained,' and that by suffering such a decree to be entered by bill taken pro con- fcsso, the executor or administrator preserves still his right in the courts, of electing to prefer, as among creditors of the same degree.'' But proceedings in equity may be brought in behalf of one creditor, or several, or all ; and to correct the manifest injustice of a preference by the representative, such as the com- mon law permitted, modern English practice favors the chancery bill brought once and for all on behalf of all creditors of the deceased, wherever there is likelihood of insolvency, for the jourpose of compelling an account and a just and ratable distri- bution of the assets among all the creditors.' The barrier thus afforded against the preference among claims of equal rank is still, however, an imperfect one ; for, contrary to analogy, it is held that even voluntary preference may be made by the execu- tor or administrator pending a decree upon the bill ;^ while, in accordance with the common-law doctrine, judgments confessed by the representative elsewhere, before the decree is actually entered, take precedence, as of course, among debts of the same ■ Tolputt 7'. Wells, I M. & S. 395. v. Jukes, 2 Ves. jr. 518; Mitchelson v. - Morrice v. Bank of England, Cas. Piper, 8 Sim. 64 ; Wms. Exrs. 1036, temp. Talb. 217 ; s. c. 2 Bro. P. C. 465; 1037. Wms. Exrs. 1035, 1036. * Upon this point Darston v. Lord ^ Cas. temp. Talb. 217, 223. By in- O.xford, Prec. Ch. 188, ruled differently, junction equity will enforce obedience and, as it would seem, more reasonably ; to such a decree, and due heed to its but the decree was reversed on appeal ; precedence in the courts of common s. c. Coles, 229. And see Maltby v. law. Russell, 2 Sim. & Stu. 227 ; Wms. Exrs. * Cas. temp. Talb. 217, 225. '038; Radcliffe AV, W. R. 417. ' Brady v. Shiel, 1 Camp. 148; Jones 564 CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE. § 438 rank.' All such preferred payments are accordingly respected when the decree is entered ; though as to creditors who have received a partial payment, chancery will make no further pay- ment to them, until all the other creditors are proportionably paid.^ § 438. The Same Subject; American Rule. — There are Amer- ican cases which support some of the doctrines above stated. Doubtless, in this country, an executor or administrator who pays debts of one class, without notice of other debts entitled to pri- ority, commits no waste, pro\dded that in the time and mode of such payment he transgress no local statute.^ In rare instances his legal right to give preference among creditors of equal de- gree, by confessing a judgment, has been conceded ; ■♦ but it is held that such preference is checked by the filing of a creditor's bill in equity.5 Constructive notice of a judgment debt, as af- forded by the judicial record, is not favored in this country;*' nor are chancery proceedings on the creditor's behalf, where action at law opens the readier means of recovering his dues.^ But the policy of American legislation is to discourage com- ' Larkins v. Paxton, 2 Beav. 219; representative from giving such prefer- Gilbert v. Hales, 8 Beav. 236. Larkins ence. Wilson v. Wilson, ib. This right V. Paxton indicates how full the oppor- of preference is not favored where the tunity might be for carrying out such representative was interested personally a preference, and how greatly the estate in the debt to which he confesses judg- might leak away, while chancery pur- ment. Powell v. Myers, i Dev. & Bat. sued its tedious processes ; for here the Eq. 562 ; next section, creditor's suit was instituted in 181 1, '' Barnawell 7'. Smith, 5 Jones Eq. 168; the answers were got in about 1S20, and Overman v. Grier, 70 N. C. 693. no decree was entered until 1829. See * A judgment by a justice of the Wms. Exrs. 1039. And as to an order peace, not being of record, requires ac- nisi, see L. R. 8 Ch. D. 154. tual notice. State v. Johnson, 7 Ired. ^ Wilson V. Paul, 8 Sim. 63. L. 231. As to dormant judgment.s, see ' Place V. Oldham, 10 B. Mon. 400 ; supra, § 428. Notice of a debt entitled Mayo V. Bentley, 4 Call (Va.) 528. Pay- to priority need not be by suit. Web- ment, without knowledge of a debt due ster z\ Hammond, 3 Har. & M. 131. the United States, is thus justified. And in Arkansas a docketed judgment. United States v. Ricketts, 2 Cr. C. C. unless duly presented as a claim, loses 553; Aiken z'. Dunlap, 16 John. 85. its priority. Keith v. Park.s, 31 Ark. * Wilson V. Wilson, i Cranch, C. C. 664. 255; Greggz'. Boude, 9 Dana, 343. And ^ McCoy «/. Green, 3 Johns. Ch. 58; equity wll not interfere to prevent the Walker v. Cheever, 35 N. H. 347. § 439 EXECUTORS AND ADMINISTRATORS. [part V. petition among creditors, and the whole system of voluntary jjreference ; and, under the statutes which require a presentment of claims within a definite period, to the representative or to the court, a date is fixed at which debts become absolutely payable from the estate, according to their statute rank, and the repre- sentative is granted full immunity as to all claims not brought to his notice until afterwards, save as the assets then left may suffice for meeting them.' § 439. Debt due the Representative from the Estate ; Right to retain, etc. — As part of the English system of preference among equal creditors at an executor's or administrator's discretion, the legal representative has a right to prefer his own debt to all others of equal degree, and to retain assets for it accordingly.^ ' Supra, § 420. The Massachusetts statute provides that no executor or ad- ministrator can be held to answer to a sxiit of a creditor of the deceased, if commenced within one year after he gives bond, unless it is on a demand that would not be affected by the insol- vency of the estate or is brought after the estate has been represented insol- vent for the purpose of ascertaining a contested claim. And if, within the year after giving notice of his appoint- ment, he does not have notice of de- mands against the estate which will au- thorize him to represent it insolvent, he may proceed to pay the debts due, without any personal liability on that account to any creditor who shall not have given notice of his claim, although the estate remaining should prove in- sufficient to pay the whole. Mass. Gen. Stats, c. 97, §§ 16, 17. See Newcomb V. Goss, I Met. 333 ; Titterings. Hooker, 58 Mo. 593. A claim ought to be presented to the executor or administrator in writing, al- though not positively so required by statute ; merely mentioning the approxi- mate amount, etc., is not enough to avoid the barrier. Pike v. Thorp, 44 5 Conn. 450. Under the California code, if the representative pays some of the creditors in part, he is bound to pay a like proportion into court for creditors whose suits are pending on their claims. 61 Cal. 71. But see 60 Tex. 422. Provision is usually made (as sug- gested j/z/^vz, § 420) by these American statutes for protecting the interests of creditors whose claims will not season- ably accrue, or, under peculiar equitable circumstances, cannot be presented within the period fixed by the statute. - Wms. Exrs. 1 039-1 050, where this topic is fully considered ; cases infra. This right of retainer is treated as aris- ing from mere operation of law, and the incongruity that one should sue himself or enter into the strife among equal creditors to i)rocure a prior judgment. 2 Bl. Com. 511 ; 3 Bl. Com. 18; Wms. Exrs. 1039. And see (1896) 2 Ch. 345. But the general doctrine of lien, and the maxim that among equals he in possession has the first claim, may like- wise be considered the foundation ; a doctrine which may be invoked still in aid of administration charges, sums paid and expenses incurred in the trust. 66 CHAP. I,] DEBTS AND CLAIMS UPON TIIK ESTATE. § 439 This privilege being inequitable, courts of chancery do not allow its assertion in respect of equitable assets, sought by their aid ; ' though this right of retainer, as regards legal assets, extends to debts which may be due the executor or administrator, either as trustee or as cestui que trust, as well as individually, and chan- cery itself concedes the principle.- The right does not, how- ever, extend to the gift, bequest, or transfer of other creditors' proved debts. ^ And there can be no right to retain in an action at law for a demand of which no account can be taken by a jury, and which the other party cannot controvert ; '♦ nor on a claim for damages arbitrary in amount, as for a tort. When the debt due him exceeds the value of the assets, so that the estate is in- solvent, he may keep the assets in satisfaction, without realizing upon them. 5 His right of indemnity may sometimes create an equitable debt as to which he may retain.^ The executor or ad- ministrator, it is held, may retain for a debt whose direct suit would be barred by the statute of limitations,^ and notwithstand- ing the estate is insolvent \'^ but he cannot retain to the prejudice of his co-executor or co-administrator.'^ ' 2 Eq. Cas. Abr. 450; 41 L. T. n. s. 672. ^ Plummer v. Marchant, 3 Burr. 1 380 ; Cockroft V. Black, 2 P. Wms. 298. ^ Jones V. Evans, L. R. 2 Ch. D. 420. * Loane v. Casey, 2 W. Bl. 968 ; De, Tastet V. Shaw, i B. & Aid. 664. Whether the executor, by instituting an administration action on behalf of him- self and all other creditors, waives his right of retainer, see Campbell v. Camp- bell, 29 W. R. 233. And see Richmond V. White, 27 W. R. 878. The right of retainer is not affected by the later ju- dicature act abolishing the distinction between specialty and simple contract debts. L. R. 16 Ch. D. 368. 5 Gilbert i?^, (1898) I Q.B. 282. As to an annuity, arrears or future payments, see Fowler v. James, (1896) i Ch. 48. As to a deceased pauper who has been publicly maintained, see (1895) " Q- ^• 59- * Giles Re, (1896) i Ch. 956. ' Hopkinson v. Leach, cited Wms. Exrs. 1049; Stahlschmidt v. Lett, i Sm. & G. 415; (1896) I Ch. 844. But cf. 15 Lea, 438. ^ Davies v. Parry, (1899) i Ch. 602. 9 II Vin. Abr. 72 ; 9 Mod. 268. The representative may retain for assets which came to his hands and which he pays over to a receiver ; but not for as- sets collected by a receiver. The right is capable only of being exercised against assets which come into his hands. 32 Ch. D. 395. An executor or administrator cannot retain for a debt due himself which is unenforceable because of the Statute of Frauds ; for he is no better than any other creditor of the estate in this re- spect. Rownson Re, 2() Ch. D. 358; supra, § 392. As to setting off the representative's claim from the estate against what he owes it, see 25 Ch. D. 175- 567 § 439 EXECUTORS AND ADMINISTRATORS. [PARl V. In the United States, if the preference among equal creditors is not favored, still less is that of the executor's or administrator's retainer for his own debt. Confession of judgment, under such circumstances, is viewed with suspicion, nor will the judgment be treated as proof of the debt.' It is held that the representa- tive cannot retain for his own legacy or distributive share to the detriment of other legatees and distributees similarly entitled.' And, though in a few States the English doctrine of retainer may still prevail,^ the better American policy insists that cred- itors of the same rank shall have equal opportunity. In New York and Missouri, the right of retainer has been expressly abolished. ■♦ Other States, in establishing the system of classi- fication and allowance of claims by the probate court, by infer- ence exclude such right. 5 A Massachusetts statute, to check abuses of this sort, requires further, that, whenever a debt, claimed by the representative as due to himself from the de- ceased, is disputed by any person interested, the claim shall be stated fully of record, and submitted under directions of the probate court to referees agreed upon by the claimant and the objecting party .'^ Such a claim, however allowed, must take its full or its ratable proportion with those of other creditors.^ In New York the surrogate has jurisdiction to adjudge or allow a 'Smith V. Downey, 3 Ired. Eq. 268; ''Mass. Gen. Stats, c. 97, §§26, 27. Finch V. Ragland, 2 Dev. Ch. 137; Cf. Dana v. Prescott, i Mass. 200; Hubbard z'. Hubbard, 16 Ind. 25; Hen- Willey v. Tlaompson, 9 Met. 329. derson v. Ayers, 23 Tex. 96. VV'hether the representative who has ^ Gadsden v. Lord, i Desau. 247. a claim against the estate is bound to ' Williams v. Purdy, 6 Paige, 166; present it within the time allowed to Page V. Patton, 5 Pet. 303 ; 2 Dev. & other creditors, where he retains assets, Bat. Ch. 255; Harrison v. Henderson, see Sanderson v. Sanderson, 17 Fla. 7 Heisk. 315; 5 Lea, 508; Wms. Exrs. 820. He cannot sue himself at law to 1039, Am. ed., ;/. by Perkins; U. S. recover a debt due to him from the de- Dig. 1st series, Executors and Admin- cedent. 11 R. L 270. istrators, 301 1-3023. 'See also Hubbard v. Hubbard, 16 * Treat v. Fortune, 2 Bradf. Sur. Ind. 25; Henderson v. Ayers, 23 Tex. 116; 6 Thomp. & C. 288; Nelson v. 96. As to the presentment of the legal Russell, 15 Mo. 356. And see 10 S. C. representative's private claim to the 354. judge of probate under New Hampshire 'Wright V. Wright, 72 Ind. 149; 4 .statute, see McLaughlin?'. Newton, 53 Redf. 263, 499. It must be proved and N. H. 531. In New York the surro allowed by the probate court. 58 Md. gate has power to pass upon a disputed 442. claim of an executor or administrator 568 CHAT'. I.] DEBTS AM) CLAIMS IPON THE ESTATE. § 44O claim legal or equitable, of an executor or admini.strator, against the estate represented by him, whether he holds such claim in a representative capacity or as an individual.' § 439c?. The same Subject. — Where a testator leaves to his executor a less amount than is actually due him in payment of the debt, and the executor proves the will and takes letters, he cannot, it is held, claim more than the am'ount so given him, even though he qualified ignorantly.- And though a will should give the executor power to pay, if he sees proper, just debts baired by the statute of limitations, the executor cannot pay his own debt which is thus barred.^ But one's own fair and honest claim upon the estate ought to stand, upon as good a footing, at least, as other claims ; and where real estate may be sold under express power or a license for the payment of debts, the sale may be lawfully invoked for the payment of a debt, in no way invalid or outlawed, which is due the representative.'' § 440. Interest on Claims presented. — Interest is not allowable from a decedent's estate, where, from the nature of the debt, no interest was due ; and the claims of creditors with whom settle- ment is made in the ordinary course of administration, are usually dealt with on the footing they occupied in this respect at the date of the decedent's death. 5 Statutes sometimes prescribe a different rule, however, where especial delay arises, as in the settlement of an insolvent estate ; and upon a contract with the representative himself, or on the ground of his delinquency, a against the estate. Flood, Matter of, ^ Williams v. Williams, 15 Lea, 438. 6 Abb. (N. Y.) Fr. x. ,s. 407 ; 6 Thomp. Cf. 8 Bush, 564. & C. 288; 4 Redf. 263. See text. " O'Flynn v. Powers, 136 N. Y. 412. This right of retainer, for the repre- And see Part V\. post. The represen- sentative's o-v\ii debt against the dace- tative ought to present in due time and dent, is to be distinguished from his prove his claim like those of third per- claim for disbursements and the charges sons. 92 Cal. 433, of administration, for which he has a ' Davis v. Wright, 2 Hill (S. C.) 560.; lien. See supra, § 259; § ^26, post. Durnford, Succession of, i La. Ann. 92. ' Neilley v. Neilley, 89 N. Y. 352. And see 78 Ky. 548. ^ Syme v. Badger, 92 N. C. 706. Cf. §546. 569 § 44- EXECUTORS AND ADMINISTRATORS. [PART V. creditor may claim interest as against him, where he, on his part, cannot bind the estate in return. Bonds, notes, and other instru- ments, given by the decedent, which expressly bear interest, must, doubtless, be paid according to their tenor. § 44 1 . Mode of paying off Claims ; Extinguishment, etc. — Debts are to be paid in money which is legal tender, or ac- cording to the original contract, or as the creditor and represent- ative may mutually agree.' But, as between the representative and the estate, the prudent interests of the estate must be pro- tected. If the executor or administrator pay off the debts at a discount, he is entitled to a credit only for the sums paid ;- but, in thus procuring a discount, advantages which may prudently be gained for the benefit of the estate, it is proper for him to secure.^ But a promissory note given by an executor or administrator, for a debt of the testator or intestate, is neither a payment nor an extinguishment of such debt ; but, at most, it only suspends the right of action on the original debt, until the maturity of such note.-* A creditor, we may add, cannot pay himself by withholding the property of the estate in his possession from the administrator ; s yet proper offsets one makes in striking the balance due from himself as a debtor are allowable without special fonnality." § 442. Personal Liability of Representative for Debts. — An ' See Magraw v. McGlynn, 26 (^al. ^ Roumfort v. McAlamey, 82 Penn. 420. As to the payment of debts in St. 193. But as to charging against a Confederate money, see Carruthers v. fund in his hands by way of set-off, see Corbin, 38 Ga. 75 ; McGarz'. Nixon, 36 supra, § 190. Tex. 289; supra, § 310. If a claim against an estate is com- - Heager's Executors, 15 Johns. 65 ; promised, the whole benefit should go Miller z/. Towles, 4 J. J. Marsh. 255. to the estate. Supra, § 330 ; Wms. ^ As to paying a bank in its own Exrs. 1842. An executor or adminis- paper, see Wingate v. Poole, 25 111. 1 18. trator will not be allowed to settle such * Taylor v. Perry, 48 Ala. 240. A a claim for less than its face, and appro- receipt of sufficient assets to pay his priate the difference. Cox v. John, 32 own debt is held an extinguishment of Ohio St. 532. that debt where the doctrine of retainer ^ 92 Cal. 293. prevails. 27 Ala. 130; 4 Dev. 103; 2 Hill, 340. But see 7 Heisk. 315. 570 CHAP. I.] DEBTS AND CLAIMS UPON THE ESTATE. § 444 executor or administrator, whose conduct is honest and prudent, and whose course conforms to law, does not become liable, in his private capacity, for debts of the deceased, or charges against the estate, concerning which he entered into no express undertak- ing. If assets fail to satisfy all claims in due order of preference, and he has used the assets properly, as far as they go, creditors of the estate cannot pursue him farther.' § 443- Payment, or Advancement, out of Representative's own Funds. — In American practice, an executor or administrator who pays the debts of his testate or intestate, out of his private funds, or advances the money therefor, has usually no right of subrogation to the original creditor, and can acquire no undue advantage over heirs, devisees, and others interested in the es- tate, by doing so.^ The debt becomes extinguished ; and his proper mode of reimbursement is by way of account with the estate. After he shows in the legal manner that there is a bal- ance due him from the estate, upon faithful administration, he has a right to recover or retain it out of the personalty, if there be any left, otherwise out of the land, and thus be reimbursed.^ § 444. Recovery of Over-Payment from Creditor. — Where the executor or administrator has full authority to prefer among equal creditors, as under the old English rule, he will have neither right nor occasion to recall his deliberate act.^ But the opera- tion of our American rule is different. Payments made without an order of the probate court, which classifies and allows claims, are in some States irregular ; and in States which permit of a specified time for the presentation of claims, the executor or administrator incurs a personal risk if he pays any debt sooner, and if later claims, seasonably presented, show a deficiency of assets. While his own liability is none the less, in such a case, however, it is generally conceded that the excess may be recov- ' Eno V. Cornish, Kirby, (Conn.) 297 ; ^ Blank's Appeal, 3 Grant (Pa.) 192 ; Rucker v. Wadlington, 5 J. J. Marsh. Frary v. Booth, 37 Vt. 78 ; Hill v. Bu- 238 ; Ritter's Appeal, 23 Penn. St. 95 ; ford, 9 Mo. 869 ; Part VII. c. 2, as to Orange County v. Kidder, 20 Vt. 519. allowances on account. See § 446, w. "Gist V. Cockey, 7 Har. & J. 135; ■'See Johnson v. Corbett, 11 Paige, McClure z/. McClure, 19 Ind. 185. 265 § 44^ EXECUTORS AND ADMINISTRATORS. [PART V. ercd by him from the creditor thus imprudently overpaid ; the inference being that only such payment as the estate could really afford was intended by him.' But the equity of a creditor honestly accepting payment, where no order of court was needed, is considered in some cases superior to the equity of the representative for a refund, where the latter voluntarily paid regardless of preferred claims, and the assets prove deficient.^ § 445- ^^hen Heirs or Next of Kin, etc., are liable for Debts of the Deceased. — Apart from their own personal undertaking, moreover, heirs and next of kin are not to be held liable for debts of a deceased person. Where they, or others in interest, are held responsible at all, the theory is, that the person has received property through the deceased which was fairly subject to the prior incumbrance of his just debts and the usual charges consequent upon his death. Statutes which provide for the en- forcement of such inchoate and contingent claims as may accrue after the limited period for settling the estate are framed upon this theory.3 And, since the personalty constitutes the primary fund for that purpose, no liability can be imposed upon heirs-at- lavv, by reason of their inheritance, save upon a deficiency of personal assets. The general doctrine is here respected, that one person cannot, against his consent, be rendered liable out of his own means for the indebtedness of another.'' § 446. Payment of Debts and Claims where the Estate proves Insolvent. — Where the decedent's estate is found insolvent, the legal priorities among claimants should be strictly observed ; and special provision is made, both in England and various parts of the United States, for a fair distribution of the estate, under such 'Heard v. Drake, 4 Gray, 514; ' See Walker t'. Ryers, 14 Ark. 246; Walker v. Hill, 17 Mass. 380; Beatty Mass. Gen. Stats, c. 97. V. Dufief, II La. Ann. 74; 42 N. J. Eq. ■*Selover». Coe, 63 N. V. 438. For 628. But cf. Lawson v. Hausborough, this doctrine, as applied to surviving 10 B. Mon. 147. husband or wife, see Schoul. Hus. & ^Findlay v. Trigg, 83 Va. 539; 2 Wife, Part VIII. cs. i, 3. Rawle, 1 18. 572 CHAP. I.J DEBTS AND CLAIMS UPON THE ESTATE. § 44^' circumstances.' A reasonable time is allowed after one's ap- pointment for representing the estate as insolvent.'' ' See supra, §§ 425, 435. Embarrass- ing questions often arise in dealing with the insolvent estates of deceased per- sons ; but, as statutes of this character are of purely local origin and applica- tion, no general exposition of the law appears requisite, beyond what is else- where stated of the precedence of claims, the abatement of legacies, marshalling assets, and creditors' bills in chancery. In modern English practice, the cred- itors' bill in chancery has become the usual resort for compelling a just distri- bution of assets among the creditors of a deceased insolvent, as already indi- cated in the course of the present chap- ter. Wms. Exrs. 1037 ; sitpra, § 437. See 19 Q. B. D. 92. The same course must be pursued in various American States, where chancery jurisdiction pre- vails, and no statute modifications have been introduced. A bill is thus brought to marshal assets and settle the estate. In Massachusetts, however, the exec- utor or administrator should seasonably announce the fact of insolvency to the probate court ; and upon such represen- tation (which need not be made if the estate would be used up in paying pre- ferred claims) the probate court appoints commissioners to examine all claims which may be presented. These com- missioners appoint times and places of meetings, to receive claims, examine claimants upon oath, if necessary, liqui- date and balance all mutual demands, and make due return to the court ; six months being the time usually allowed for proof of claims. Upon the basis of tJieir return, the estate is adju.sted under direction of the probate court, appeal meanwhile lying, however, on behalf of a dissatisfied creditor, from the decision of commissioners to the temporal courts. The rules of procedure in insolvent estates are fully detailed in the statute, 5 concerning whose interpretation there are numerous decisions. See Mass. Pub. Stats, c. 137; Smith Prob. Law, 3d ed. c. 13. New York surrogate law provides for an apportionment in case of deficiency; and the method of ascertaining how the pro rata dividend shall be decreed by the surrogate is set forth by the chancery courts. Redfield's Surrogate Practice, 402; Johnson 7A Corbett, 11 Paige, 265. But a statutory insolvent system appears not to prevail in that State. The statutes of various New England and Western States adopt substantially the practice of Massachusetts, in rela- tion to insolvent estates, which tend, of course, to relieve the personal represen- tative from much of the responsibility of settlement, in such cases, which the English chancery methods, still retained in many of the older States, still impose upon him. And thus the executor or administrator is not required to deter- mine between allowing a claim against the estate or taking the risk of expensive Uugation in regard to it. A summary and comparatively inexpensive method of adjusting and determining the in- debtedness is provided. And instead of employing commissioners, some stat- utes direct the probate judge himself (at all events in estates below a speci- fied value in assets) to perform the duty of examining and passing upon the claims presented. See supra, § 434 ; Gary's Probate Law (Wisconsin, Michi- gan, Minnesota, etc. ), § 368 et seq. Whether the representative who ig- norantly pays a creditor, and then finds the estate insolvent, may prove the debt in the name of the creditor, see 17 Mass. 380; Heard v. Drake, 4 Gray, 514; 10 B. Mon. 147. ^See local codes on this subject. 73 § 446^ EXECUTORS AND ADMINISTRATORS. [PART V. § 446^. Ancillary and Foreign Administration ; Payment of Debts. — If an estate be settled in the State where most of the decedent's property is found, the administration there being, however, only ancillary, a creditor is not required to go there to collect his claim. And if, after such settlement, property belonging to the estate comes to legatees in the State of the testator's domicile, such creditor may there proceed for his dues.' § 446(^. New Assets for Payment of Debts. — As a general rule no property can be considered new assets, so as to revive debarred and unsatisfied claims, which has been in the hands and under the control of the executor or administrator, or has been inventoried, or which is the product of such property, al- though it may have assumed or been converted into a new form.'' But what are properly new assets may be applied to properly outstanding claims.^ § 446^. Buying up Claims, etc. — While an executor or ad- ministrator should not speculate nor collude with others for his own profit, third parties, it is held, may lawfully buy in debts of the estate at a discount and collect their face value or pur- chase the claims of legatees, where no fraud appears, and the estate proves solvent."* § 446<^/. Debts for continuing a Decedent's Trade. — The gen- eral rule is that where an executor or administrator, instead of closing out his decedent's business continues it, even when au- thorized by will to do so, the trade debts will reach only the trade assets ; or in other words, the property that was employed in the business, or that was the result of doing the business. ^ ' Borer v. Chapman, 119 U. S. 587. generally believed insolvent, when let- And see §§ 172-183. ters were taken out. But as to a pur- ^ Littlefield v. Eaton, 74 Me. 516. chase by the executor or administrator, ^ See Quincy v. Quincy, 167 Mass. see §358; 32 Ohio St. 532. 536. 5 Frey t7. Eisenhardt, 116 Mich. 160, ••Owen V. Potter, 115 Mich. 556. 170; Laible z/. Ferry, 32 N. J. Eq. 791. Here the estate was embarrassed and And see §§ 325-327. 574 CHAP. II.] SPECIAL ALLOWANCES. § 448 CHAPTER II. SPECIAL ALLOWANCES TO WIDOWS AND MINOR CHILDREN. § 447- "Wife's Paraphernalia, Separate Property, etc., do not enter into Administration of Husband's Estate. — The surviving wife's rights should be studied in connection with the law of husband and wife, which is well known to have changed its whole scope and bearing since the common law defined the rules of coverture centuries ago. What have been termed the widow's pamphcrnalia, or the suitable ornaments and wearing apparel of a married woman, remaining at the time of her hus- band's death, undisposed of by him, e.xist as hers, by exception to the old rule that all her chattels became her husband's, while all his remaine"d his own.' An exception of far wider conse- quence, under equity decisions and the recent married woman's legislation, is that of the wife's separate property.^ § 448. Widow's Allowance under Modern Statutes. — A widow may have rights, by way of distribution or dower, or as a legatee or devisee, in the estate which her husband left at his death. And, furthermore, we are to observe, that as a claimant for the immediate support of herself and the young children of her de- ceased spouse, modern legislation deals liberally with her. Let us here examine her rights in this latter aspect. The statutes relating to what is familiarly known as the widow's allowance provide, in general (though with variations of language), that such parts of the personal estate of a person deceased as the probate court, having regard to all the circum- ' Schoul. Hus. & Wife, §431; Com. shall belong to them respectively. Mass. Dig. Baron & Feme, Paraphernalia. Gen. Stats, c. 96, § 4. Community Local statutes in these times sometimes property set apart for the wife's home- provide expressly that the articles of stead does not constitute assets. 120 apparel and ornament of the widow and Cal. 421. minor children of a deceased person ^ Schoul. Hus. & Wife, Part. V. 575 § 449 EXECUTORS AND ADMINISTRATORS. [PART V. Stances, may allow as necessaries to his widow, for herself and family under her care, shall not be taken as assets for the pay- ment of debts, legacies, or even (to follow the expression some- times inaptly used) charges of administration.' The intent of such legislation is to make an express allowance from the hus- band's estate for the benefit of his widow and minor children, whenever their circumstances require it, treating their immedi- ate necessities as paramount to the claims of creditors. It is to be strictly considered as an allowance out of the decedent's personal property alone, and not extending to real estate unless the code provides accordingly ; ^ and, in general, as an allowance to be made whether the husband and father died testate or in- testate,^ and as a temporary and reasonable pro\'ision merely.'* § 449- 'Wido'w's AllovT^ance ; ■whether confined to Cases of Dis- tress. — To relieve immediate distress is the main intent of such legislation ; tcj provide necessaries for a widow and young or- phans, as far as may be, until the estate is fully settled, or one can make other arrangements for support. ' It is not intended to furnish the widow with a capital for business purposes, nor to ' Mass. Gen. Stats, c. 96, § 5. And been left to the widow. Moore v. see Strawn 7'. Strawn, 53 111. 263 ; Sher- Moore, 48 Mich. 271. And it may be man v. Sherman, 21 Ohio St. 631 ; other made although the husband has by will cases infra ; Sawyer v. Sawyer, 28 Vt. disposed of all. Baker v. Baker, 57 245. Wis. 382. Under the Iowa code a ^ Paine ?'. Faulk, 39 Me. 15 ; Hale v. court may make an allowance or set off Hale, I Gray, 523. But cf. 152 Penn. specific property. McReynold's Estate, St. 63. As to advice by the represen- 61 Iowa, 585. The widow of a non- tative, see 75 N. C. 47. resident cannot claim out of local assets ^ See, however, Mathes v. Bennett, although she comes into the ancillary I Fo.st. 189; Iowa code. As for re- jurisdiction after her husband's death, stricting to the amount of cash in 97 N. C. 112; 76 Ala. 521. Nor can hand, see 113 Penn. St. 11. The sum proceeds of land outside the jurisdiction of Si,ooo out of an estate of $12,000 be charged with the widow's allowance, is excessive. 58 N. H. 44. Cf. 14 174 111. 52. Cal. 73. But where mortgaged realty •* Woodbury v. Woodbury, 58 N. H. of the decedent sold for less than 44. The decedent's will may scmble ex- S200 above the mortgage of $100, the elude such allowance. 54 N. J. Eq. 632. widow may have the rest to the exclu- ' HoUenbeck v. Pixley, 3 Gray, 521 ; sion of a tax lien. 109 Penn. .St. 75. Foster v. Foster, 36 N. H. 437 ; 165 An allowance may be made although Mass. 157. there are no children, and a legacy ha.'^ 576 CHAP. II.] SPECIAL ALLOWANCES. § 45O establish a fund from which she may derive a permanent in- come.' But the allowance, though evidently designed for tem- porary relief, is not confined to cases of absolute and permanent destitution and slender estates ; for a widow who, on a final division of the estate, is likely to receive a considerable com- petence, may be without the usual means of comfortable liveli- hood meanwhile; and such cases the judge appears competent to relieve. Indeed, in some States, it is plainly decided that even a rich widow may claim the allowance ; ^ and that the statute provision is of universal application, the discretion of the court extending only to the amount of the provision.' But, according to the better opinion, an allowance may be refused where no good reason is shown for granting it.-* The language of the local statute is of consequence, how- ever, in determining its scope and purpose ; and, in some States, the allowance is so purely for "present support," that it may or may not be treated as part of the widow's share in her hus- band's estate, according to the court's discretion. s That the allowance is not to be deemed, in any sense, as the judge's gift, or as a means of rectifying any apparent injustice to which one may be exposed by the statute of distributions or the testator's will, appears certain.^ § 450. Maintenance for a Particular Period sometimes speci- fied. — The statutes of various southern States provide explicitly for "a year's support," or the maintenance of widow and chil- dren for one year out of the deceased husband's estate.^ Such an allowance appears to be properly claimed, as such statutes often run, by any widow for the period specified, regardless of her other means of support.^ But, in such case, the property ' lb. 6 Foster v. Foster, 36 N. H. 437 ; ^ Strawn v. Strawn, 53 111. 263 ; Hollenbeck v. Pixley, 3 Gray, 525. Thompson v. Thompson, 51 Ala. 493 ; ^ Cole v. Elfe, 23 Ga. 235; 61 Ga. 100 Cal. 593. 410 ; I Swan, 441 ; Rocco v. Cicalla, 3 Sawyer t/. Sawyer, 28 Vt. 245. 12 Heisk. 508; Grant v. Hughes, 82 ■' Hollenbeck v. Pixley, 3 Gray, 524 ; N. C. 216, 697. Kersey v. Bailey, 52 Me. 199. ^ Wally v. Wally, 41 Miss. 657. ' Foster v. Foster, 36 N. H. 437 ; Mathes v. Bennett, i Fost. (N. H.) 189. 37 577 § 45 I EXECUTORS AND ADMINISTRATORS. [PART V. actually consumed before the application for support should be taken into account ; and where the widow has lived on her de- ceased husband's estate for a year after his decease, using the property at her discretion, she is entitled to no further allow- ance.' In lieu of the year's provision, or support, a sum of money may sometimes be awarded.^ § 451. Precedence of WidoTv's Allowance over other Claims; whether independent of Distribution, etc. ; Effect of Decedent's Insolvency. — The Statute allowance is usually accorded priority over all claims of general creditors ; it is sometimes preferred even to the expenses of administration and funeral ; ^ though, in practice, a probate court will generally reserve enough for these prior and essential charges.-* Judgments and other liens are in some instances regarded as subordinate ; nevertheless, a secured creditor is not to be thus deprived of rights which he can enforce without the aid of an administrator or executor. As a rule, this immediate allowance is quite independent of one's prospective distributive share, legacy, or provision under a will ; 5 but, while a mere advancement would by no means meet all necessitous cases, the court, in some States, may at discretion treat the allowance to a widow as on such a footing;^ which, however, appears contrary to the general policy of such legislation. 7 ' Blassingame v. Rose, 34 Ga. 418; judgment liens: but as to other liens 36 Ga. 194. But delay in taking out and equities she takes as her husband administration beyond a year from the held it. 95 N. C. 504. The widow- decedent's death does not necessarily cannot be postponed to a creditor's exclude the allowance. Rogers, £x claim by either court or administrator. paric',6^ N. C. no. 67 Iowa, no. And if the widow sur- - Nelson v. Smith, 1 2 Sm. & M. renders exempt property to her hus- (Miss.) 662. band's creditors where the estate was ' Mass. Gen. Stats, c. 96, § 5 ; Kings- solvent in fact, her allowance should be bury V. Wilmarth, 5 Allen, 144. made her. 65 Wis. 551. •• Giddings v. Crosby, 24 Tex. 295 ; ^ Mathes v. Bennett, i Fost. (N. H.) Elfe V. Cole, 26 Ga. 197. 189. ' Meech z/. Weston, ^3 Vt. 561 ; Fos- ^ See Davis z'. Davis, 63 Ala. 293. ter V. Fifield, 20 Pick. 67 ; Haven's Ap- Statutes do not always give the wid- peal, 69 Conn. 684. Such allowance ow's allowance a priority over charges may take precedence of a tax lien. 109 and expenses of administration, funeral, Penn. St. 75. Of general creditors and etc. McCord z/. McKinley, 92 111. il. CHAP. II.] SPECIAL ALLOWANCES. § 451 According to local statutes as to this allowance, must appear the bearing of the decedent's insolvency. In some States, pay- ing a portion of the assets for the support of the widow and children, when the estate is insolvent, is not justified ; and, cer- tainly, an executor or administrator could not do so, at his own tliscretion, by way of advancing more than would be theirs on a final settlement.' On the other hand, in States which confide the amount to the discretion of the court, and accord to this allowance an express precedence, insolvency is no barrier ; and it is not uncommon, where the husband has died insolvent, leav- ing few assets, for the whole of the personal property to be thus awarded to the widow (less, perhaps, the necessary preferred charges), whereby is afforded an expeditious means of settling a small and embarrassed estate.^ And, as to administration, it is certain tliat, in many instances, unless adminis- tration was granted and its expenses paid, there would be no fund available for making the widow's allowance from. Where the personal estate is small, however, it may be awarded to the widow, provided there is real estate which may be sold for the funeral ex- penses, etc. McCord -'. McKinley, su- pra. ' Hieschler, Re, 13 Iowa, 597. ^ Buff urn V. Sparhawk, 20 N. H. 81 ; Brazer v. Dean, 15 Mass. 183 ; Johnson ~c'. Corbett, 1 1 Paige, 265 ; Hampson v. Physick, 24 Ark. 562. And as to "a year's support," see Elfe v. Cole, 26 Ga. 197; Nelson v. Smith, 12 Sm. & M. 662. See 96 Cal. 584. Excessive amount reduced. 155 Mass. 141. The fact that friends relieve by their charity does not debar allowance. 155 Mass. 153- The nature and circumstances of this allowance require that it should be pi-omptly sought. Ordinarily, the ap- plication should be made as soon as the inventory of the estate is returned, and the court has the means of judging how much should be granted. Kingman t'. 57 Kingman, 11 Post. 182. And it should precede the full administration of the assets. The petition and proceedings for allowance are simple. Notice to the administrator or executor, as one who has knowledge of the actual con- dition of the estate, who represents claimants, and must pay over the sum decreed, seems always highly proper; and yet, in conformity with the local statute, an ex parte proceeding is in some States clearly sanctioned. Morgan z\ Morgan, 36 Miss. 348 ; cf. Wright v. Wiight, 13 Allen, 207. The allowance should be moderate, and according to the fortune of the deceased and the necessities of the petitioner. The amount of the widow's separate ])ro]) eity and means, the circumstance that she is accu-stomed or able to earn her own support or the contraiy, the num- ber and respective ages of her children, — all these, as well as the value of the estate, and the prospective cUstribution, are facts for the court to consider, as material to the case. Adams v. Adams, 10 Met. 170; Hollenbeck v. Pixley, 3 Gray, 525 ; Kersey v. Bailey, 52 Me. [98; Duncan v. Eaton, 17 N. II. 441. The amount suitable by way of rea- 9 §453 EXECUTORS AND ADMINISTRATORS. [part V. § 452. Decree of Allowance, etc., how enforced. — The allow- ance to widow and children being duly decreed, the executor or administrator in charge of the estate should make payment ac- cordingly, regarding the statute dignity of the claim, and charg- ing the sum in his account ; otherwise, the claim may be enforced, after a demand and refusal, by action brought by the claimant against such representative ; ' who, if at fault in withholding payment, ought, it seems, to be personally cast for the costs. Payment or delivery having been made in good faith, in accord- ance with the decree, the executor or administrator is entitled to have credit for the same in his accounts." A claim against the decedent, purchased after property has vested in the widow l:)y a decree, cannot be set off by a debtor to the estate against the widow's special claim.^ §453. Widow's Allowance, how barred. — Undue delay in sonable allowance is decreed accord- ingly at the judge's discretion. Statute .'sometimes fixes the allowance. Claudel 7'. Palao, 28 La. Ann. 872. The discretion of the judge of pro- bate is considered a legal discretion, to be judiciously exercised, and subject (except, perhaps, in extreme instances) to the revision and correction of the supreme court. Piper v. I'iper, 34 N. H. 563 ; Cummings f. Allen, 34 N. H. 194; Kersey ?'. Bailey, 52 Me. 198. Some statutes give a pemiissive right to the petitioner, in case the decree of allowance is appealed from, to receive the sum upon furnishing a bond with .sureties conditioned to repay the sum if the decree is reversed. Mass. Gen. Stats, c. 94, §§ 9, 10. The widow may have a second al- lowance, provided such allowance be just, at any time before the personal estate is exhausted. Hale v. Hale, i Gray, 518. A periodical allowance may be diminished by the judge on good cause, but not retroactively. Baker v. Baker, 51 Wis. 538; 53 Iowa, 467. An allowance, as it is held, may be granted, although provision was made for the widow by her husband's will in lieu of dower, and accepted by her, and although the executor, being also resid- uary legatee, has given bond as such to pay the debts and legacies. Williams 7'. Williams, 5 Gray, 24. Nor does the fact that the wife has a separate estate prevent t he allowance ; at least in States where such estate constitutes in law and equity no fund for the obligatory support of wife and minor children. Thompson v. Thompson, 51 Ala. 493; Wally V. Wally, 41 Miss. 657. Ques- tions concerning the contribution made by the wife to the marriage, however, the value of her services to her husband, and the like, are not material to the present issue, which is one of actual and present needs, con.sidering the actual personalty left to supply them. Hollen- beck V. Pixley, 3 Gray, 525; 10 Met. 170. ' Drew V. Gordon, 13 Allen, 120; Godfrey v. Getchell, 46 Me. 587. - Richardson r'. Merrill, 32 Vt. 27. ^ Haugh V. .Seabold, 15 Ind. 343. 5 Ho CHAP. IT.] SPECIAL ALLOWANCES. § 454 presenting the claim for allowance cannot be permitted, so as to injure those whose rights have become fully fixed, and among whom a disbursement of assets has properly begun.' Miscon- duct of the wife, such as adultery or desertion, is also made an express bar,^ and might, otherwise, be taken into consideration as determining her neccessities, while the fact of leaving her husband with apparent justification ought, certainly, not to pre- clude her allowance.'' The acceptance of a distributive share would seem to be inconsistent with the claim for allowance.' Beneficial provisions under a will, which the widow does not renounce, are held, in some instances, to exclude her from claim- ing the allowance ; especially when made in lieu of all such claims. 5 But the release of all claims upon her husband's estate, under a marriage contract, is held no bar to a widow's allowance.^ A separation deed, followed by separation, may debar, and so may a marriage settlement.'' Yet actual separa- tion, it is held, is not conclusive as against the widow's allowance, since it is not made as a wife's meritorious reward but in view of her actual necessities.** § 454- 'Wido'w's Allowance ; Effect of her Death or Remarriage, etc., before a grant. — So temporary in its nature and so personal in its character is this widow's allowance, that where the widow dies before it is granted, the allowance is lost, even though pro- ceedings relative to the grant are still pending ; nor does the ' See Dease v. Cooper, 40 Miss. 114; Reid v. Porter, 54 Mo. 265; Riley Ch. Kingman v. Kingman, 11 Fost. 182; 152. Cf. 43 Neb. 463. cf. Miller z/. Miller, 82 111. 463. '' Blackington v. Blackington, no ^ Cook V. Sexton, 79 N. C. 305; 132 Mass. 461. And see Sheldon v. Bliss, Ind. 403. 4 Seld. 31 ; Phelps v. Phelps, 72 111. 3 Slack ?'. Slack, 123 Mass. 423. See 545; Pulling v. Duiiee, 85 Mich. 34. 31 La. Ann. 854. But see Tierman v. Binns, 92 Penn. St. '' So the acceptance of a succession. 248. Claudel v. Palao, 28 La. Ann. 872. ^ As to litigation on such points, see 'Turner v. Turner, 30 Miss. 428. Speidel's Appeal, 107 Penn. St. 18; 66 But the widow's appeal from the pro- Iowa, 79; 38 Ark. 261; 151 Ind. 200. bate of a will does not estop her from " Chase v. Webster, 168 Mass. 228. claiming her allowance, independently Cf. as to fault, 107 N. C. 171. As to of that issue. Meech v. Weston, t,t, her remarriage, cf. 117 Gal. 509; 98 Ga. Vt. 561. As to a direction in one's will 366. that his family be provided for, etc., see 581 v^ 455 EXECUTORS AND ADMINISTRATORS. [PART V. right survive or go to her personal representative.' The effect of her death, after a decree unappealed from has estabhshed her right, absolutely and conclusi\'ely, to an allowance, appears, on the other hand, to cause this right of property to pass to her personal representatives.' Remarriage, too, before allowance, is held to debar her.^ But, as to minor children, as well as herself, the state of things when her husband died, is usually the criterion for relief.'' §455. Allowance to Minor Children. — Legislation SUCh as we are considering not only provides, however, that the allow- ance to the widow shall be for herself and the family under her care, but, in some States makes express allowance to the minor children, in case there is no widow. Under the Massachusetts statute, the allowance to minor children shall not exceed fifty dollars for each child.' Should the widow's death precede the grant of an allowance, or should there be no widow, an application on behalf of the minor children of the decedent, if there be any, may, therefore, be properly entertained. Statutes authorizing one year's support likewise give the children the right to apply by guardian for the provision, on the death of the widow.'' Where minor children do not live with, and are not maintained by, the widow, the probate court may sometimes apportion the provision for the benefit of all concerned.^ Such statutes and their rule, the representative must carefully follow.** 'Adams v. Adams, 10 Met. 171; 70 Ga. 733; § 450. Jiut "children" Dunn, .fjr/ffr/^, 63 N. C. 137 ; Tarbox usually means "minor children" in V. Fisher, 50 Me. 236. The Ohio rule such connection. 70 Ala. 381. And is to the contrary. Dorah v. Dorah, 4 " grandchildren " may be included. 35 Ohio St. 292; Bane v. Wick, 14 Ohio La. Ann. 371. If the widow dies, her St. 505. And see 77 Ga. 232. minor children may have a year's sup- ^ Drew V. Gordon, 13 Allen, 120. port from her estate. 74 Ga. 795. This 3 Hamilton's Estate, 66 Cal. 576. allowance .should be made on liberal. * Hayes, Re, 112 N. C. 76. not on narrow lines, as in keeping young ' Mass. Gen. Stats, c. 96, § 5. And children at school or college, if the con see Lesher v. Wirth, 14 111. 39. dition of the estate justifies it. Cheney ^ Edwards v. McGee, 27 Miss. 92. v. Cheney, 73 Ga. 66. As to vesting a MVomack v. Boyd, 31 Miss. 443. title in Georgia, .see 68 Ga. 66, 64 1 . A Family allowance for a year inay go to "family allowance" being exhausted minor children where there is no widow, which was granted for a limited period, * See 144 Mo. 258. 582 CHAP. II.] SPECIAL ALLOWANCES. § 456 § 456. Specific Articles of Personalty allo'wed Wido'w and Children ; Exempt Chattels, etc. — American Statutes enumerate specific articles of property, in connection with, or as a substitute for, the money allowance to widow and minor children. Thus, the Massachusetts act excepts from assets of the deceased, in ad- dition to this allowance, " such provisions and other articles as are necessary for the reasonable sustenance of his family, and the use of his house and the furniture therein, for forty days after his death." ' Their own articles of ornament and wearing apparel are expressly confirmed to widow and minor children ; ^ and, under some codes, the widow may take articles of personal property, at their appraised value, to a stated amount. ^ In various. States, the widow is entitled to all the property of her deceased husband which is exempt by law from sale on ex- ecution.4 This right appears to exist whether the estate was testate or intestate, solvent or insolvent, and so that the exempt property shall not go to the executor or administrator ; but the widow's claim is usually confined to exempt property of her late husband which remained on hand, as a part of his estate, at the time of his death. 5 All such property going directly to the widow, the representa- tive who converts it is a wrong-doer, and makes himself individ- ually liable ; ^ unless he is required to take a temporary charge the widow may claim more, and such as estate ; but the local statute sometimes she needs while the estate is being set- extends it to a sort of special gift from tied. 67 Cal. 349. And see 105 Ga. the estate. 305; 67 N. H. 512. ■'Thompson z'. Thompson, 51 Ala. ' Mass. Gen. Stats, c. 96, § 5. And 493; Taylor v. Taylor, 53 Ala. 135 ; see Carter v. Hinkle, 13 Ala. 529; Whitely v. Stevenson, 38 Miss. 113; Graves v. Graves, 10 B. Mon. 41. Ex- Pride z'. Watson, 7 Heisk. 232 ; 92 Tenn. pressions for the benefit of minor chil- 715; 151 Penn. St. 577 ; 79 Tex. 189. dren are found in such codes. ' Johnson v. Henry, 12 Heisk. 696. ^ Mass. Gen. Stats, c. 96, § 4. See * Carter v. Hinkle, 13 Ala. 529; " paraphernalia," Schoul. Hus. & Wife, Morris z/. Morris, 9 Heisk. 814. And § 431 ; supra, § 447. see, as to "marital portion" to a sur- ^ Hastings v. Myers, 21 Mo. 519; viving spouse in necessitous circum Bonds v. Allen, 25 Ga. 343 ; Darden z/. stances, Newman, Succession of, 27 Reese, 62 Ala. 311 ; Leib z*. Wilson, 51 La. Ann. 593. Ind. 550; Fellows v. Smith, 130 Mass. As to what the code gives a widow 376. Such permission is presumably to as " head of the family," see Schaffner take as on account of her share in the §457 EXECUTORS AND ADMINISTRATORS. [part V. of such property, as, for instance, for the purpose of making his inventory.' § 457. Use of Dwelling House; Widow's Quarantine. — The Magna Charta of Henry III., which established and defined the rule of dower, made a special provision that the widow might tarry forty days after her husband's death in her husband's house.^ This latter privilege has since been known as the wi- dow's quarantine, a right preliminary to assigning her dower, and has been expressly recognized by statute in some of the United States, apart from its existence by force of the common law alone ; ^ our legislation tending, moreover, to afford the same shelter to the minor children, and to extend the privilege to the use of the furniture therein, and the consumption of zj. Grutzmacher, 6 Iowa, 137; Paup ?'. Sylvester, 22 Iowa, 371. Statutes recogiiize the right to receive money in lieu of exempt or other specific articles. Reavis, Ex parte, 50 Ala. 210. ' Voelckner v. Hudson, i Sandf. 215. The administrator cannot pursue such property. Wilmington v. Sutton, 6 Iowa, 44. The selection of property by the widow vests her with the title at once. 73 Ala. 542 ; 117 Ala. 432. The right in Missouri is absolute, and requires no election on her part to take the property, and her husband cannot dispose of the property against her. 77 Mo. 162. A widow may select a watch under the Maryland code among other articles. 62 Md. 560. As to provisions relating to a widow who is " housekeeper," and "head of a family," see 14 111. 39; 27 111. 129. And as to "implements of industry," see 72 Mo. 656 ; 122 Cal. 434. Spe- cific articles to be set apart to the widow will be found enumerated in certain codes. York v. York, 38 111. 522 ; Brig- ham V. Bush, 33 Barb. 596; i Sandf. (N. Y.) 215. Pennsylvania statutes pro- \dde, after a peculiar expression, as to the retention of exempted chattels for the comfort of the widow and family, and as to property to a certain value. I Ashm. 314; U. S. Dig. ist serie.s. Ex- ecutors & Administrators, 2712 ; 91 Penn. St. 34; 134 Penn. St. 377. By Texas statute, allowance should be made, and exempt property set apart, by the court without any request. Con- nell V. Chandler, 1 1 Tex. 249. So far as it may be said that the right to specific articles under a statute vests immediately upon the death of the hus- band, and is not contingent or subject to allotment or grant under the court's direction, the right to these articles, on the widow's death, without receiving them, devolves upon her executor or ad- ministrator, who may pursue the prop- erty accordingly. Hastings v. Myers, 21 Mo. 519. Such articles come to the wife, not through the husband's will bestowing all of his estate for her sup- port, but by virtue of the statutes. Vedder v. Saxton, 46 Barb. 188. ^ 2 Bl. Com. 135. ' Mass. Gen. Stats, c. 96, §§ 4,5; 35 Ala. 328; Whaley v. Whaley, 50 Mo. 577 ; Craige v. Morris, 25 N. J. Eq. 84 CHAP. 11.] SPECIAL ALI.OWANCKS. § 45 7'^ provisions and articles necessary to sustenance.' In Ohio, it is held that the widow's statute right is not restricted to a personal continuance in the house, and that she may rent or occupy dur- ing the statute period, as may best promote her comfort.- The statute period in various States lasts until dower is assigned to the widow.3 § 4S7^^- ^'V'idow's Election to take against her Husband's "Will. — Our local statutes enlarge upon the old doctrine of the wi- dow's dower (which might not be absolutely willed away from her by her husband) by allowing the widow to elect formally to take under or against her husband's will ; and what she shall take in the latter alternative is defined by the same local stat- ute.-* She must make her election within a stated time — such 467 ; Calhoun v. Calhoun, 58 Ga. 247 ; 96 Ga. 374 ; Young ?'. Estes, 59 Me. 441; Doane t'. Walker, loi 111. 628 ; 11 Paige, 265. The husband ought to have been in actual possession of such house. 56 N. J. Eq. 126; 50 N. J. Eq. 325- ■ Mass. Gen. Stats, c. 96, §§ 4, 5. ^ Conger e'. Atwood, 28 Ohio St. 134. And if the executor or administrator, in disregard of the widow's right, rents the mansion house, she is entitled to recover the rent received by him during the statute period fixed for her enjoy- ment of the premises. lb. But, in Massachusetts, absence of the wife from home deprives her of the quarantine. Fisk v. Cushman, 6 Cush. 20. In In- diana a widow has the right to crops planted and harvested within the year. 81 Ind. 292 ; Hoover v. Agnew, 91 Ind. 370. And see as to growing crops, 39 N. J. Eq. 506; § 307. The widow in possession under the New Jersey statute giving her the right to hold her husband's homestead until dower is assigned is not like a tenant for life, and she is not bound to keep down interest, pay ta.xes, or make neces- sary annual repairs. .Spinning 7/. Spin- ning, 41 N. J. Eq. 427 ; 40 N. J. Eq. 30. If she receives rent she should account for it, and is credited for taxes and repairs. 39 N. J. Eq. 506. But she should pay water rates. 43 N. J. Eq. 215. The lien of a mortgage on land ap- pears not to be affected under such .statutes. Kauffman's Appeal, 1 12 Penn. St. 645. As to acts of the widow, hke selling timber and building a new house, see 27 W. Va. 750; 72 Ga. 665. Whether dower can be claimed in addition to what is provided by will for the widow, see (local statute) 144 Mass. 564; Konvalinka v. Schlegel, 104 N. Y. '-5- The removal of the children by their guardian does not affect the widow's right to occupy. Zoellner v. Zoellner, 53 Mich. 620. ^ Davenport 341- * Mathews v. Mathews, 141 Ma.ss. 511 ; 39 Hun, 252 ; Brokaw v. Brokaw, 41 N. J. Eq. 304. Dissent from the will is not necessary for securing the statutory exemption. Supra, § 456 ; 73 Ala. 578. Devenaux, 45 Ark. 58s § 457^ EXECUTORS AND ADMINISTRATORS. [part V, as a year or less — or she shall be deemed to have elected to take as the will provides ; and, in general, lapse of time, her conduct, negative as well as positive, may properly debar her from electing.' But the widow is not bound by her election made in ignorance of the facts which should influence it.^ She cannot waive provisions in her husband's will which are not solely for her benefit ; ^ nor can she elect partly to accept and partly to reject what the will offers her.-* ' Hovey v. Hovey, 6i N. H. 599. The widow may thus elect to take dower rather than the statute Hfe-interest in one-half the estate, real and personal. Mathews v. Mathews, supra. See 43 W. Va. 226. As to her election of a homestead in lands, see Davidson -/. Davis, 86 Mo. 440. Where a widow is of unsound mind, the court in her interest may elect for her. Penhallow 7-. Kimball, 61 N. H. 596 ; Van Steenwyck v. Washburn, 59 Wis. 483. As to recalling assent, and then electing against the will, see 97 N. C. 236; 149 Ind. 363. - Elbert ?■. O'Neil, 102 Penn. St. 302. 3 Leonard -'. Haworth, 171 Mass. 496. •• Crawford v. Bloss, 114 Mich. 204. The widow's right of election is purely personal, and cannot be exercised by others after her death. 185 Penn. St. 174. She is bound by her acceptance of any provision expressly made " in full satisfaction and recompense." 140 N. V. 421; 66 Vt. 46. Cf. 99 Mich. 128. A widow who has elected against such will is debarred from attacking in equity chattel transfers made in her husband's lifetime. 143 Mass. 340. 586 CHAP. III.] LEGACIES. § 459 CHAPTER III. LEGACIES, THEIR NATURE AND INCIDENTS. § 458. This Subject a Branch of the Law ofWills. — The sub- ject of legacies is, properly speaking", a branch of the law of wills ; and, to general treatises on wills, the reader is referred for a detailed treatment of the subject. Many intricate problems arise in the equity courts under this head, which an executor or administrator, as such, may never be required to solve ; but, where embarrassment arises in the interpretation of a testamen- tary trust, they who administer that trust, whether trustees or executors, must seek competent legal advice. The plain direc- tions of a well-drawn and simple will are to be pursued according to the testator's manifest wishes, and after a plain and common- sense fashion ; and even the close and subtle analysis which acute judicial minds have given to the most complicated of tes- tamentary provisions, proceeds, after all, upon the common-sense principle that the testator's just intentions should, if possible, prevail. It may be advantageous, however, to set before the reader the nature of legacies and their chief incidents ; for, to this extent, at least, every executor should make himself familiar with this interesting topic of our jurisprudence.' § 459- Legacy defined; Executor under a Will should pay or deliver ; Legacy to Satisfy Debt. — A legacy is a gift or dis- position in one's favor by a last will. We commonly apply the word to money or other chattel gifts, though a broader reference is not inappropriate ; "bequest" being the more precise term for a testamentary gift of personalty.^ Next to seeing that all 'See I Jarm. Wills; Wms. Exrs. as "some paiticulai' thing or things 1051, etc. given or left, either by a testator in liis ''A legacy is defined by fiodolphin testament wherein an executor is ap- § 46o EXECUTORS AND ADMINISTRATORS. [part V. just debts and charges are amply provided for, one who adminis- ters under a will should attend to the payment or delivery of legacies in accordance with law and the last wishes of his tes- tator. While, by "legacy," our law signifies a testamentary dispo- sition ; and every testamentary disposition is admitted to be ambulatory, and revocable by the testator during the testator's natural life ; it does not follow that a legacy is necessarily devoid of consideration.' In fact, a legacy is sometimes left in satisfac- tion of a valid debt owing by the decedent ^ or upon other con- sideration ; though the presumption is that one gives by will as a bounty. § 460. Description of the Legatee, and who may be such. — Various classes of persons have been treated as disqualified from receiving legacies under English statutes ; the list being quite similar to that which pertains to the office of executor.^ Prohibited classes, however, must be defined by law ; ■♦ for every pointed, to be paid or performed by his executor, or by an intestate in a codicil or last will, wherein no executor is ap- pointed, to be paid or performed by an administrator." Godolph. pt. 3, c. i, § I, cited Wms. Exrs. 1051. ' 3 Abb. App. 411. ' See §§ 432, 469, 490. 3 Supra, % 35. ■* The fundamental terms of its creation are, as to every corporation, properly resorted to for determining its legal ca- pacity to take, as legatee or devisee ; the main difficulty being to adjust the weight of presumptions properly where those terms have not been clearly expressed. It is not essential that the corporate organization be complete or final when the testamentary provision takes effect ; but associations clearly identified, may, like two or more persons, stand entitled to a bequest ; and such association may procure afterwards an act of incorpora- tion from the legislature in confirmation of its right. Nye v. Bartlett, 4 Met. 5 378 ; Zimmerman v. .\nders, 6 W. & S. 218 ; England v. Prince George's Vestry, 53 Md. 466. So, too, a corporation named as legatee or devisee not unfre- quently resorts to the legislature, after the death of the testator, but before the money is payable, to procure such amendment of its charter as may clearly remove all restraint upon its capacity to take the benefits of the will in question. See Wms. Exrs. 1052, Perkins's note; 4 Dem. 271. A corporation's right to take by will is subject to the general laws of the State passed after the incor- poration. Kerr v. Dougherty, 79 N. Y. 327. And see England v. Parish Vestry, 53 Md. 466. Corporations, public or private, are not so readily presumed capable of tak- ing lands under a will as personal prop- erty; the rule of policy is different in the two instances, and the law of situs prevails as to land. It is held, in con- struction of the New York statute, that a devise of lands in New York to the 88 CHAP. III.] LEGACIES. § 461 person is capable of taking a legacy as a rule, excepting such as are thus expressly forbidden.' Even an unborn child may by proper designation under the will be made a legatee.^ § 461. Subject-Matter of Legacies; Specific distinguished from General Legacies. — All legacies are either goieral or specific. A general legacy is one which docs not necessitate delivering any particular thing or paying money out of any i)articular por- tion of the estate. But a si)ecific legacy is the converse of this ; or where a particular thing must be delivered, according to the 'v terms of the bequest, or money paid out of some particular por- *^ tion of the estate.^ x^ government of the United States is void. United States v. Fox, 94 U. S. Supr. 315 ; Fox, Matter of, 52 N. Y. 530. But the bequest to the United States, whence was derived the Smithsonian Institution, was sustained in the English chancery courts, this being a bequest of personal property. The New York statute pro- vides that a devise of lands in that State can only be made to natural persons, and to such corporations as are created under the laws of that State, and are authorized to take by devise. ' I Roper Legacies, 28 ; Wms. Exrs. 7th ed. 1052. Among persons formerly disqualified at English law were those who denied the Scriptures, traitors, and artificers going abroad. Such disquali- fications have no application to the United States, and the modern sense condemns them. In England, it was decided (2 Stra. 1253) that a subscribing witness, who derived any legacy under the will for himself or his wife, was thereby rendered incompetent by reason of interest, and that the will must consequently fail unless there appeared the requisite number of witnesses without him. Statute 25 Geo. II. c. 6, however, pre- served the competency of the subscrib- ing witness by declaring his legacy void ; and similar acts have been passed in most American States. Wms. Exrs. 1053; Schoul. Wills, §357. See also Stat. I Vict. c. 26, § 15. As to aliens, infants, insane persons and married women, modern law and practice favors their right to become legatees, i Jarm. Wills, 3d Eng. ed. 70; Wms. Exrs. 1054. ^Chambers v. Shaw, 52 Mich. 18; 57 Mich. 265. A devise to grandchil- dren, the immediate issue of persons in being at the time of a \i^\\, is valid. McArthurw. Scott, 113 U. S. 340. And see § 465. But in Connecticut and New York a devise to persons who may not be in being at the testator's death, and who may not be the immediate issue of persons then in being, is pronounced void. Wheeler v. Fellows, 52 Conn. 238. ^ I Roper Legacies, 170; Wms. Exrs. 1158. "A specific legacy," says Lang- dale, M. R., "is something distinguished from the rest of the testator's estate; and it is sufficient if it can be specified and distinguished from the rest of the testator's estate at the time of his de- cease." 3 Beav. 342. There is an in- termediate sort of legacy known as the " demonstrative legacy," according to writers on the law of Wills. Wms. Exrs- 1 160; 4 Ves. 555. But the two main classes are as stated above ; while it is 589 § 461 EXECUTORS AND ADMINISTRATORS. [PART V. Thus, if a testator bequeaths to A. a horse or a gold ring, this indefinite expression constitutes a general legacy ; for we may infer that the executor is left free to procure something which shall answer that description out of the funds in his hands, provided none be left at the testator's decease. But, if the be- quest is expressed, " my roan horse," " the. gold ring which C. D. gave mc," or (with reference, not to a present possession, but possession at the time of one's decease) " whatever horses shall be in my stable," or " all the books which may be in my library," or " all the furniture which shall be contained in my dwelling- house," this legacy is a specific one.' Or, to proceed with the distinction, should a testator bequeath $10,000 in the public funds, or $10,000 in first-class railroad bonds, or simply $10,000, the legacy would be general ; while, on the other hand, the be- quest of $10,000, "of my stocks in the public funds," or "of my railroad bonds," answering such a description, or of " $1,000 out of my savings-bank deposit in B.," it will be held specific. To the latter class belongs a bequest of all the stock in the ])ublic funds, all the first-class railroad bonds, or all the savings- bank deposits to which the testator may be entitled at the time of his death ; and so, too, with any designated portion thereof.^ A specific legacy may be given under a will, with the substitu- tion besides of a general pecuniary legacy in case of its failure, to be satisfied in a specific manner.^ The balance of a partner- to be remembered that their several in- 189; Johnson v. Gross, 12S Mass. 433 ; cidents are variable according to a tes- 1 Roper Leg. 170; Fontaine v. Tyler, tator's declared w-ishes. See Pratt /^e, j///;-(/ ; Herring?/. Whittam, 2 Sim. 493 ; (1894) I Ch. 491. Where one be- P'oote, Appellant, 22 Pick. 299. vSpe- queaths all personalty to C. with specific cific bequests of money are not fre- exceptions, C.'s legacy is general; be- quent ; but such a bequest may be made quests of money to each of certain per- as out of a certain place of deposit, or sons are general ; but the specific chattels from a fund placed in a certain person's excepted from C.'s legacy and specifi- hands, or of money arising out of a par- cally given to B. constitute a specific leg- ticular security. Lawson v. Stitch, i acy to B. Kelly z/. Richardson, 100 Ala. Atk. 507 ; Perkins v. Mathes, 49 N. H. 584. 107. ' lb.; Fontaine v. Tyler, 9 Price, 94. ' Fontaine v. Tyler, 9 Price, 94. See also § 381. There may be a bequest of shares in the ^ Bothamley v. Sherson, L. R. 20 Eq. capital stock of a joint stock company, 304; Wnis. Exrs. 1162, and Perkins's although the testator held stocks of the note; Ludlam's Estate, 13 Penn. St. denomination in excess of the bequest. CHAP. III.] LEGACIES. § 46 1 ship settlement not drawn out of the concern, or the good-will of a business, may be specifically bequeathed, in whole or in part ; ' and so may a debt or claim in favor of the estate ; ^ and insolvency of the concern or of the debtor renders the legacy worthless. It should be observed, however, that no direction out of what fund the legacy shall be raised will render that legacy specific, unless the clear intent was to transfer all or a part of the same identical fund.^ Nor will a legacy be rendered specific, by direc- tions incidental to a general bequest ; such as a certain sum of money to be laid out in mourning rings; or $i,ooo to recom- pense the executor, or for charity, or to be invested in a pre- scribed class of securities, or payable in cash.'* A reference, on the other hand, to the fact of one's death for ascertaining his legacy — as in the bequest of " all the horses which I may have in my stable at the time of my death " — does not render the gift other than specific.^ One important consequence of this distinction between gen- eral and specific is, that, should the assets prove deficient, gen- eral legacies must abate, while a specific legacy does not;^ and, on the other hand, should the specific legacy fail, or come short, for want of the identical things described, the legatee can claim no satisfaction out of the general personal estate. ^ In some instances, therefore, the specific legatee is the better off, and in others the worse. Since, however, specific bequests, on the whole, interfere with a just and uniform settlement of an estate as one whole, courts of equity lean against pronouncing legacies specific in doubtful cases.^ Nevertheless, testamentary inten- Norris?/. Thomson, 2 McCarter (N. J.) i Atk. 507; Edwards v. Hall, 11 Hare, 493. See legacy of less stock than one 23 ; Apreece v. Apreece, 1 Ves. & B. owned construed as a pecuniary legacy, 364. in Mahoney v. Holt, 19 R. I. 660. And ' Bothamley?'. Sherson, L. R. 20 Eq. see Nottage Re, (1895) 2 Ch. 657. ^Of), per Jessel, M. R. ' Ellis V. Walker, Amb. 309 ; Fryer?/. * Except for creditors as a last resort. Ward, 31 Beav. 602. § 490. ^ 2 Del. Ch. 200 ; Farnum v. Bascom, ' See post as to the ademption of 122 Mass. 282. legacies; Wms. Exrs. 1159. ^ 2 Redf. Wills, 135. ' See Lord Chancellor in Ellis v. * lb.; W'ms. Exrs. 1162; Richards 57. Walker, Amb. 309; Wms. Exrs. 1160. Richards, 9 Price, 226 ; Lawson v. Stitch, § 463 EXECUTORS AND ADMINISTRATORS. [PART V. tion shall prevail, if duly expressed ; and so clearly separable in sense is a specific from a general legacy, that even though the testator should expressly provide against the ademption of a legacy specifically identified in his will, such legacy is not thereby rendered a general one, and denuded of its other pecu- liar incidents.' § 462. Whether a Residuary Bequest can be deemed Specific. — The bequest of all one's personal estate, or the devise and bequest of all the residue, both personal and real, cannot be treated as specific ; but such a disposition, from its own terms, is general and residuary, and subject to the usual payment of debts and legacies.^ Nor is a general residuary clause to be otherwise construed, merely because some of the particulaFS-of which it shall consist are enumerated in the wdll.^ But there may be a specific bequest of all one's estate in a particular lo- cality ;•♦ so, too, the bequest of what shall remain of a specific and identical thing or fund, after other legacies enumerated shall have come out of it, or specified incumbrances are removed, may be specific, so long as the directions be capable of fulfil- ment without destroying the identity of the thing or fund itself.^ § 463. Bequests for Illegal and Immoral Purposes void; Super- stitious Uses, etc. — A bequest to further and carry into effect any illegal purpose, which the law regards as subversive of .sound policy or good morals, and destructive to the fundamen- tal institutions of society and the civil government, whether by disseminating such writings or otherwise, will, on general princi- ple, be held void ; and the executor is not justified in paying it." Men's ideas as to civil polity or follies of belief are by no means immutable, however. Whenever a charitable intent appears on the face of the will, but the terms used are broad enough to allow of applying the ' 2 Coll. 435. ' lb. ^ See Wms. Exrs. 1172-1177; Fairer "2 Beav. 151; 2 My. & K. 697; i V. Park, L. R. 3 Ch. D. 309. Salk. 162; Habe.shon 7/. Vardon, 7 E. 3 Taylor v. Taylor, 4 Hare, 628. L, & Eq. 228. * Nisbett V. Murray, 5 Ves. 1 50 ; 2 Vern. 688; Wms. Exr.s. 1172. CHAP. III.] LEGACIES. § 464 fund either in a lawful or unlawful manner, the gift will be sup- ported, and its application restrained within the bounds of law.' 'And, where some bequests, in a duly probated will, are invalid, and must fail, the valid provisions should nevertheless be exe- cuted.^ § 464. Bequests to Charitable Uses ; Statute of 43 Elizabeth, c. 4. — Gifts to charitable uses had their origin in the Christian dispensation, and are found regulated by the Justinian code.^ Our English law on this subject is controlled by the stat. 43 Eliz. c. 4.^ Since this enactment, English courts of equity have treated charitable bequests as properly restricted to the pur- poses therein enumerated, and to such, besides, as by analogy may be deemed within its spirit or intendment. " Charitable use " is a term not easily defined ; nor does the statute of 43 Eliz. define, but rather illustrates by instances such as might vary from age to age. Lord Camden's definition, often quoted, that a gift to charity is " a gift to a general public use, which extends to the poor as well as to the rich," 5 seems to touch the ' Gray, J., in Jackson v. Phillips, 14 * i Jarm. (ed. 1861), 192. This stat- AUen, 556. ute specifies the following gifts as chari- ^ Bent's Appeal, 38 Conn. 26. table:' For the relief of aged, impotent, As to bequests for "superstitious and poor people; for the maintenance uses," so called, the policy of our law of sick and maimed soldiers and mari- has greatly changed in the course of ners ; for schools of learning, free two centuries, consistently with the ad- schools and scholars in universities; vance of religious toleration. See, in for the repair of bridges, ports, havens, detail, Wms. Exrs. 1055. A legacy by causeways, churches, sea-banks, and a Roman Catholic for masses for the highways ; for the education and pre- repose of his soul, etc., is frequently ferment of orphans ; for the relief, stock, pronounced lawful at this day. 2 Dem. or maintenance for houses of correction ; 87; Schouler, Petitioner, 134 Mass. 426. for the marriages of poor maids; for But the older cases,, and especially the the supportation and help of young English ones, condemn such gifts as for tradesmen, handicraftsmen, and persons superstitious uses. West v. Shuttle- decayed ; for the relief or redemption worth, 2 My. & K. 684. Legacies for of prisoners or captives ; for the aid or circulating the religious writings of ease of poor inhabitants ; and concern- Jews and dissenters, or for the benefit ing payment of fifteens, setting out of of their churches and ministers, have soldiers and other ta.xes. been annulled in former centuries, which ^ Jones v. Williams, Amb. 651. would not be in the present era of en- Sometimes incorrectly ascribed to Lord lightenment and toleration. Hardwicke, the reporter failing to des- ^ Code Just. I. 3. ignate clearly the individual. 38 593 § 465 EXECUTORS AND ADMINISTRATORS. [PART V. vital point ; namely, that the private benefaction should be well designed to promote some public object of utility. Where such is the case, the disposition of English chancery has constantly been to bring the bequest by analogy within the purview of the statute, even though literal interpretation might have excluded it. In this liberal sense, gifts to charitable uses are likewise sus- tained in all or most of the American States ; our equity courts resting their jurisdiction upon this statute, as part of the law of England which the first settlers brought over with them ; or else deriving it from that earlier common law founded in the precepts of the Christian religion, and the divine injunction that love of God be manifested in the love of our fellow-men, — which such enactments serve only to explain and apply.' The definiteness or indefiniteness of these charitable trusts is sometimes an important element in determining the validity of such gifts ; as to whether the testator has given for some charity or is rather leaving his trustees to give or not, accord- ing to their own inclination. But our courts are not disposed to let a good public object fail if they can help it, where the testator's intention may be discovered and he has not confided too great discretion to those selected to carry out his wishes.^ § 465. Bequest void for Uncertainty; or where Principal or Income is locked up too long. — There may be bequests void ' 2 Story Eq. Jur. §§ 11 55-1 164; 2 uses is drawn from the common law and Kent Com. 287, 288 ; Burbank v. Whit- local statutes, irrespective of 43 Eliz. ney, 24 Pick. 146; Drury v. Natick, 10 Denio, J., in Williams v. Williams, 4 Allen, 177 ; Wms. Exrs. 1069, 1070, Seld. 525. and Perkins's notes. In Jackson v. ^ See gift to meritorious widows and Phillips, 14 Allen, 556, Gray, J., quotes orphans to keep them from becoming approvingly the language used by Mr. paupers, in Camp v. Crocker, 54 Conn. Binney in arguing the Girard Will Case, 21; Sowers v. Cyrenius, 39 Ohio St. 41, that a charitable or pious gift is 29. But a gift to "charitable objects," /" whatever is given for the love of God, such charitable purposes as A. shall or for the love of your neighbor, in the deem proper, etc., is of very doubtful catholic and universal sense — given vaUdity. 53 Conn. 242; Prichard v. from these motives and to these ends Thompson, 95 N. Y. 76. Cf. Goodale ^ — free from the stain or taint of every v. Mooney, 60 N. H. 528. A will may consideration that is personal, private, use such expressions as " benevolence," or selfish." And see 28 Penn. St. 35. " charitable assistance and benefit," etc., The New York doctrine of charitable in the general sense of charity. 14 594 CHAP. III.] LEGACIES. § 465 for uncertainty." So may the bequest fail when given to re- main in bulk for some remote, unborn generation, in violation of the rule against perpetuities.^ Nor should income be locked up too long, to accumulate for distant posterity, and so as to debar immediate survivors of the decedent from receiving in- come as well as capital.^ R.I. 412; 52 Conn. 412. Some of our later codes check charitable bequests by pronouncing them void unless made within a prescribed period — e.^. two months — before the testator's death. 154N. Y. 199. ' See § 464 ; 2 P. Wms. 387 ; Jubber 7'. Jubber, 9 Sim. 503 ; Wms. Exrs. 1 155. But mistakes of description may sometimes be corrected by construction. I Bro. C. C. 91 ; Tomkins v. Tomkins, 3 Atk. 257; Wms. Exrs. 11 52-1 155, and Perkins's notes. ^ After some fluctuation in the deci- sions, the limitation finally fixed upon is the period of a life or lives in being at the death of the testator, and twenty- one years more ; adding, in case of a posthumous child, a few months longer, to allow for the period of gestation. If a further postponement be attempted, the limitation is void. Bengough t'. Edridge, i Sim. 173; 7 Bligh, 202 ; i Jarm. Wills, 226-229. Of two possible constructions, that seems to be preferred which would avoid violating the rule against perpetuities and thus vitiating the bequest. Rand v. Butler, 48 Conn. 293; 169 111. 432. Thus, where trustees were directed to pay over, in " three years or earlier or later, in their discre- tion," after a designated life should ex- pire. Brandenburg v. Thorndike, 139 Mass. 102. A devise of property to one's widow for life, and after her death the property to become part of her residuary estate is valid within the rule. Bailey v. Bailey, 97 N. Y. 460. Semble, the " life or lives in being" may be those of strangers instead of beneficiaries. lb. Life or lives in being, without the ad- dition of twenty-one years, is the limit of suspension in some State codes. 61 Wis. 469; 20 Fed. R. 792; 102 N. Y. 161. For a corresponding prohibition oi Jidei commissum under the Louisiana code, see 36 La. An. 754. A tendency to perpetuity is no objec- tion, however, to a charitable bequest ; for charity, it is said, never fails. 2 Redf . Wills, 546, 547 ; Odell v. Odell, 10 Allen, 1 ; Williams v. Williams, 2 Seld. 525. But a gift to keep family tombs in perpetual repair is objection- able under the riile of the text. 10 Jur. N. S. 648 ; Coit V. Comstock, 51 Conn. 352 ; Detwiller v. Hartman, 37 N. J. Eq. 347 ; Fite v. Beasley, 12 Lea, 328; 79 Ala. 423. And so as to funds left for a brass band to come to the grave every year and play dirges. 37 N. J. P'q. 347. The American rule against perpetuities is like the English, but stat- ute qualifications are found. See 23 Hun, 223. 3 See Thellusson ?'. Woodford, 4 Yes. 227. The usual rule applies (where no statute intervenes) to capital and income alike. Mr. Thellusson's will gave a large fortune to accumulate in trust, income being added to principal, during all the lives in being at his de- cease, and for twenty-one years more; in other words, for the entire period permitted by the rule against perpetui- ties. Such was the public indignation in England at this heartless bequest, that Parliament passed an act (39 & 40 Geo. III. c. 98) which forbade accumula- tion thenceforth under trusts longer than the life of a grantor or settler, and 595 § 467 EXECUTORS AND ADMINISTRATORS. [PART V. § 466. Legacies Absolute or Conditional, Vested or Contingent. — Legacies may be made conditional ; the condition annexed being either precedent or subsequent ; so that, on the one hand, the bequest may never take effect, or, on the other, it may take effect with the Hability of being afterwards defeated. Legacies, however, are usually absolute, or are so given without condition as to vest immediately and fully. Devises and legacies, more- over, may be vested or contingent, and may be given under such limitations as to confer an interest in possession to one, and an interest, by way of remainder, to another ; thus giving rise to many abstruse questions not properly discussed in a treatise like this.' But every interest under a will vests at the decease of the testator, unless otherwise provided ; and even an interest to take effect in possession after a precedent one, may vest simul- taneously with it in right, so as to devolve upon the executors or administrators of any legatee who, having survived the tes- tator, may die afterwards before his possession has vested ; never- theless, an interest which is clearly contingent must be so construed, however inconvenient to a beneficiary and his repre- sentatives. § 467. Lapsed Legacies ; General Rule. — There is an implied condition, precedent to all legacies, founded in the ambulatory the term of twenty-one years after his lion as to accumulating both capital and death, or during the minority of such income prevails. 95 N. Y. 13, 103; 63 as would otherwise be entitled under Wis. 529. the will. This act, still styled the As to the Enghsh statute of mort- "Thellusson act," loads the testator's main, which imposes especial restraints memory with a reproach which may well upon devises of land for charitable pur- outlast the suspension of his benefac- poses, &c., see act 9 Geo. II. c. 36 tion. The restraints of this act apply (1736); 1 Jarm. Wills, 219; Wms. not only to cases expressly providing for, Exrs. 10^8 el set/. American policy is but to such also as by implication result not uniform in this respect. See 2 in, such accumulations. See i Jarm. Kent Com. 283; 79 N. V. 327 ; 69 Mo. Wills, 293. This act limits accumula- 492. tion for charities as well as for individ- ' See Wms. Exrs. 889 ; i Jarm. Wills, uals. Masterman y?^, (1895) 2 Ch. '^4; 7991 Schoul. Wills, § 562. For a re- (1895) App. 186. cent example of condition subsequent In the several United States, either in a legacy, see Hammond v. I lam- there is corresjoonding local legislation mond, 55 Md. 575. And see Clayton v. on this point, or else the general restric- Somers, 27 N. J. Eq. 230. 596 CHAP. III.] LEGACIES. § 467 character of the will itself, during the maker's own life ; namely, that the testator must first die, leaving the instrument as his last true will, before it can operate as such. The death of the legatee named therein before the testator, causes, therefore, the legacy to lapse ; while, as the preceding section shows, the con- dition precedent, or contingency with which the bequest may have been coupled, produces a lapse in various instances where the legatee dies after the testator. For a lapsed legacy is one which never vests : either (i) in consequence of the death of the legatee before the testator ; or, (2) because, notwithstanding the legatee survive the testator, he dies before his interest can be said to have vested under the will. Lapsed legacies are most commonly of the former kind.' There are cases where the death of the legatee, subsequent to the testator's death, will cause the legacy to lapse, his inter- est not having vested in the meantime. Such is not the gen- eral rule ; but, if the legatee die after his testator, and before payment, his own executor or administrator may demand the legacy of the testator's representatives.'' Yet, where the will expressly and absolutely postpones payment of the legacy until a later period than the testator's death, we are to inquire what is the intent of such a provision.^ ■ Swinb. pt. 7, § 23, pi. I ; Wms. upon his death, following the usual Exrs. 1204-1206; I P. Wms. 83. And rule; and so, in general, where it ap- see Maitland v. Adair, 3 Ves. 231. As pears to have been intended that one's to the common-law distinction between bounty should immediately attach upon lapsed devises and lapsed legacies, see his death. If, however, the context and Moffet V. Elmendorf, 152 N. Y. 475, 485. circumstances forbid such favorable in- Modern statute tends to abolish all such terpretation, and the testator obviously distinction, .so that lapsed devises, like meant to incorporate time, not with the lapsed legacies, fall into the residue of payment, but with the substance of the the estate. lb. gift, as a condition precedent to vesting ^ Swinb. pt. 7, § 23, pi. I ; Gartshore the title, the legacy is here contingent 2/. Chalie, 10 Ves. 13; Wms. Exrs. 1224 ; in interest; and, being contingent, it Hester v. Hester, 2 Ired. Eq. 330 ; Tra- lapses if from death of the legatee or verf. Schell, 20 N. Y. 89; next c. other cause it cannot have vested. ^ If the testator's apparent intention Courts of equity incline, on the whole, was to emphasize the law concerning to adopt a construction most favorable the time of payment, or to modify it for to vesting the interest, pro\dded the the convenience of the legatee on the testator's wishes be not thereby violated, one hand, or of his own executor on 3 Woodeson, 512; Wms. Exrs. 1224; the other, the title vests immediately Eldridge z^. Eldridge, 9 Cush. 516. 597 §468 EXECUTORS AND ADMINISTRATORS, [part V. The general rule at this day is that all devises or legacies are deemed to have lapsed where the beneficiary named dies in the testator's lifetime ; in which case the gift falls into the residuum or becomes intestate estate, as the case may be.' But by a substitutional gift, if the will so directs, the devise or legacy may upon such predecease vest in some other beneficiary.^ § 468. Cumulative Legacies ; Repetition or Substitution of Legacies. — Where the same, or a different amount of money or other things, as estimated by quantity, is bequeathed to the same person by the same will more than once, it may be a ques- tion whether the legatee shall by intendment take both amounts or one only ; for, in the one case, the legacies are cumulative, while, in the other, a mere repetition of the bequest, or else a substitution, takes place. ^ Added legacies or substituted legacies are presumed to carry the incidents of the original legacy ; though such presumptions yield readily to proof of the testator's real intention. •> This subject, which presents many abstruse inquiries, all resolvable by the nile, that what appears to have been the testamentary intent should prevail, is examined at length in Wms. Exrs. 1224-1251. A testator dies intestate as to a lapsed devise or bequest contained in a residuary clause. Gorgas's Estate 166 Penn. St. 269; Morton v. Wood- bury, 153 N. Y. 243. ' Jackson v. Alsop, 67 Conn. 249 ; Wood V. Seaver, 1 58 Mass. 4 1 1 (though using the word "heirs"). ^ Glover v. Condell, 163 111. 566. As to a lapse in gifts to a class, see (1893) I Ch. 567. ' Wms. Exrs. 1 289 ; Guy v. Sharp, i My. & K. 589 ; Hubbard v. Alexander, 3Ch.Div. 738; Wms. Exrs. 1 290-1 294 ; De Witt V. Yates, 10 Johns. 156; Rice V. Boston Aid Society, 56 N. H. 191 . Suisse V. Ix)wther, 2 Hare, 424, 432, /^r Wigram, V. C. The testator's inten- tion should be the main guide; though to fortify the construction in cases of doubt, various presumptions are stated by courts of equity. Cases, supra; Tweedale v. Tweedale, 10 Sim. 453- Guy V. SharjD, 1 My. & K. 589. For recent instances of legacies held to be cumulative and not merely repetitive or substitutional^, see Utley v. Titcomb, 63 N. H. 129; Barnes v. Hanks, 55 Vt. 317; Sponsler's Appeal, 107 Penn. St. 95. Legacies, not of the same kind, or not payable in the same event, or at the same time, may well be presumed cumulative. Wray v. Field, 2 Russ. 257. But where legacies are of the same amount and character, the pre- sumption that they were intended to be cumulative is a .slight one, and may be ea.sily shaken. 17 Yes. 34, 41 ; Wms. Exrs. 1 29 1, and numerous cases cited. See also State v. Crossley, 69 Ind. 203 ; Schoul. Wills, § 565. * Cooper 7). Day, 3 Meriv. 154 ; Wms. Exrs. 1296; 7 Sim. 237; Duncan v. Duncan, 27 Beav. 386. 598 CHAP. III.] LEGACIES. § 470 § 469. Satisfaction of Debts or Portions by Legacies. — There is an old rule, founded upon a series of English equity prece- dents, which, to quote Judge Redfield's expression, seems still to maintain "a kind of dying existence," though whimsical and unsatisfactory ; namely, that where a debtor bequeaths to his creditor a legacy equal to or greater than the amount of the debt, it shall be presumed, all other things being equal, that he meant the legacy should operate in satisfaction of the debt.' Upon this presumption, supposing it available — and how un- likely it is that one should intend discharging, by way of favor, and on the contingency of his death, that which subsists as a legal obligation, regardless of that contingency or of his last wishes, and taking precedence of all legacies, a moment's reflec- tion will show — the courts have engrafted various exceptions, often laying hold of little circumstances or expressions, as if to show a readiness to reverse the rule.^ The better rule for this day is that if a debtor leaves a legacy to his creditor this is not to be deemed a satisfaction of the debt, unless intent appears ; ^ though actual intent must govern. § 470. Release of Debts by Legacies. — Where a creditor bequeaths a legacy to his debtor, without clearly indicating his '2 Redf. Wills, 185, 186; Bronson, J., more, the question is mainly one of the in Eaton v. Benton, 2 Hill (N. Y.) presumed intention of the testator. 576; Wms. Exrs. 1297. See Horlock An accepted legacy to A. of more than Re, (1895) ^ Ch. 516. the testator owed her, the will declaring ^Wms. Exrs. 1298, and cases cited; expressly that it shall be in lieu of all I Atk. 428 ; 3 Atk. 96 ; Byde v. Byde, claims of A. against the testator's estate, 1 Cox, 44 ; Rawlins v. Powel, i P. Wms. of course satisfies the debt. Rusling v. 299; 2 P. Wms. 132, 343; Nicholls J/. Rusling, 42 N. J. Eq. 594. But accept- Judson, 2 Atk. 300; Wms. Exrs. 1298; ance of a legacy does not usually pre- Crouch V. Davis, 23 Gratt. 62 ; Carr v. elude one from making a claim founded Estabrooke, 3 Ves. 561. Even a direc- on the testator's mismanagement of the tion in the will to "pay all debts and legatee's property. Whittemorez'. Ham- legacies" has been relied on as the ilton, 51 Conn. 153. As to interest on foundation of an exception. 3 Atk. 65; such a debt, where the legacy should Fields'. Mostin, 2 Dick. 543. See supra, cancel it, see 70 Iowa, 368. §439, concerning the effect of appoint- ^ \2 Wend. 68; Sheldon v. Sheldon, ing one's creditor his executor. 133 N. Y. i. But identity in amount As for satisfying portions by a legacy, may be evidence of such intent. 55 a rule of presumption is applied by the N. J. Eq. 42. equity decisions ; though here, once 599 § 470 EXECUTORS AND ADMINISTRATORS. [PART V. intention in so doing, the presumption appears to be that the debt shall not thereby be released or extinguished ; and if the debt be further evidenced by a promissory note or other writ- ing, and the writing, documents, or securities, appear among the testator's effects, uncancelled, and as though fit to be treated as assets, they will be so regarded." Under such circumstances, it is held that the legacy of a creditor to his debtor may be re- tained in payment pro fanto, though the debt were barred by the statute of limitations.^ Where, however, the evidence goes to show that the creditor meant to release the debt and give a legacy besides, his debtor shall have the full benefit thereof ; ^ and while such intention ought, if possible, to be gathered from the force of the will, courts of equity have sometimes explored in other directions to ascertain whether, as between creditor and debtor, the debt was ever remitted.'' A liberal construction is given to the intention of a testator to forgive a debt. 5 To bequeath expressly the debt to one's debtor, operates as a sort of testamentary release to him ; but, inasmuch as a testa- ment cannot dispose of assets, nor give legacies to the injury of creditors against the estate, the debt must needs continue assets for their benefit, should a deficiency appear.^ ' Wms. Exrs. 1303; Wilmot 7'. Wood- meant ; and it is said to be dangerous house, 4 Bro. C. C. 226. to extend the doctrine of Eden v. Smyth, ^ Coates V. Coates, 33 Beav. 249 ; where the testator's books, papers, dec- Courtenay ta Wilhams, 3 Hare, 589 ; larations, etc., were, though reluctantly, Wms. Exrs. 1304; Brokaw z/. Hudson, admitted. See Chester v. Ursvick, 23 27 N. J. Eq. 135. Local statutes some- Beav. 404; Wms. Exrs. 1304; 2 Redf. times provide that a debt due from a Wills, 190, note. Yet it must be con- legatee to the estate may be deducted ceded that a transaction, as between from his legacy. But unless the intent debtor and creditor, may lie entirely of the will is clear, a debt barred by outside the will, notwithstanding debtor limitations cannot be thus deducted, or creditor be himself a legatee; nor is Allen V. Edwards, 136 Mass. 138. it strange for a testator to so regard it. 3 Wilmot 7'. Woodhouse, 4 Bro. C. C. ' See 37 N. J. Eq. 377, where the will 226; Hyde v. Neate, 15 Sim. 554; spoke of two mortgages when there Wms. Exrs. 1304. were three. 76 Ala. 381. * Eden z^. Smyth, 5 Ves. 341. View- ^ Rider v. Wager, 2 P. Wms. 331. ing the subject of releasing or satisfying As to the effect of appointing a debtor debts by legacies as one of purely tes- to be one's executor, see supra, § 208. tamentary interpretation, there seems The bequest of a note to its maker gives legal inconsistency in going far outside him the absolute title; the testator's the will to ascertain what a testator estate not being deficient for paying 600 CHAP. III.] LEGACIES. § 472 s5 471. Ademption of Legacies. — A few words should be added on the subject of ademption. A bequest fails, doubtless, not only by a lapse, but when revoked." Aside from the revo- cation of a testamentary instrument as such, any particular legacy or legacies may be revoked, or to use the more appro- priate word, adeemed. By the word " ademption," employing its Latin figure, is signified the extinction or taking away of a legacy in consequence of some act of the testator which, though not directly a revocation of the bequest, should be considered in law as tantamount thereto.^ The ademption of a legacy is distin- guishable, of course, from its lapse.^ § 472. Trustees under a "Will ; Equity and Probate Jurisdiction ; Duties of a Trustee; Equity; Probate Procedure. — In Order to carry out special provisions under a will, which look to the pres- ervation of a principal fund for special schemes, such as charity, or so as to pay income only to persons designated, until the happen- ing of some event, or so that the fund may accumulate, and gen- erally where the intent is to postpone the full beneficial vesting of the legacy in the ultimate legatee, trustees are usually designated under a will to hold and manage the fund, apart from executors. These trustees act subject to the approval, direction, and some- times selection of courts of equity ; and, properly speaking, the administration of these testamentary trusts is a branch, and quite an important one, of equity jurisdiction. In many parts of the United States, however, the probate courts in the several counties have general equit}' powers, conferred by statute, and exercised concurrently with the supreme tribunal of the State. *• The appointment, qualification, and immediate supervision of testamentary trustees, devolves, however, under American codes, upon the local probate courts, in the first instance, as in case of executors. Not only are such courts empowered to appoint what he owed. Herrick v. Wright, 63 theless, the prevailing disposition is to N. H. 274. bring important questions affecting the ' See supra, § 82. administration of testamentary trusts to ^ Jarm. Wills, 147 ; Wms. Exrs. the supreme court of equity and pro- 132 1. bate, in order that the jurisdiction may ^ Supra, § 467. be clear and the decree conclusive. * Mass. Gen. Stats, c. 100, § 22. Never- 601 § 473 EXECUTORS AND ADMINISTRATORS. [PART V. trustees in various instances of trust not testamentary, where there is a vacancy under the instrument, and no adequate pro- vision made for supplying it, but every trustee appointed by will should petition for a confirmation of his appointment, file a suffi- cient bond with the probate judge (with or without security, as the case may be), and procure letters under the probate seal, before entering upon active official duties.' The duties of testa- mentary trustee are distinct from those of executor, and require separate credentials, even though, as often happens, the testator has designated the same person to serve in both capacities. W'here a \'acancy from some cause occurs in the office, as where the trustee named declines, resigns, dies, or is removed before the objects thereof are accomplished, the probate court, upon the usual formalities, makes an appointment for one to act alone or jointly with others, as the case may be. Co-trusteeship sur- vives like co-executorship. Like an executor, the testamentary trustee is required to return an inventory and render his account regularly to the probate court ; and, for misconduct or culpable negligence, he is liable to removal, his bond to the judge being put in suit for the benefit of those injured by his breach of trust. Subject to the usual variation of State enactments, the general rule, in the United States, is to place testamentary trustees under a probate supcrx'ision similar, mutatis mutmidis, to that of executors, and from a like sedulous regard for the welfare of the beneficiaries.- From the probate decree in such trusts, the usual appeal lies to the supreme tribunal of the State.^ § 473- Construction of Wills and Legacies ; Bill of Interpleader to remove Doubts, etc. — The construction of a will, and the true interpretation of an executor's or trustee's duties in conformity thereto, raise other issues which pertain more strictly to an equity jurisdiction, where the course to be pursued is left un- certain. The convenient method is to bring a bill of equity in the nature of a bill of interpleader, to procure instructions how to act ; thus saving to the fiduciary, executor or trustee, the 'Mass. Gen. Stats, c. loo. 'Smith riob. Law, 238. See Perry ^ Smith Prob. Law, 93, 97, 101, 236; Trusts, § 2S2 el seq. ; supra, §§ 146, 247. Redf. Surr. Pract. 424. 602 CHAP. III.] LEGACIES. § 473 hazards of later litigation, and avoiding on his own part a perilous risk. Whenever there is reasonable doubt in regard to the proper construction of an instrument creating a testamentary trust, the rule is, that chancery may be resorted to for instruc- tions.' As between the executors and trustees under a will, it would seem a rational distinction, that, when the doubtful interpretation relates simply to administering a fund or funds turned over to the trustees for purposes prescribes by the testator, the trustees are the proper persons to procure instructions ; but, that where such doubt relates substantially to the administration of the es- tate, as in determining how the executor shall perform his own duties, so as to discharge himself of legacies and the residue for whose satisfaction he is officially responsible, he rather should be the petitioner. While, however, the executors or the trustees, as the case may be, take more commonly the initiative, and bring a bill setting forth the facts, and calling upon the claimants to settle their rights before the court, the procedure is not left wholly to their option ; but any party, claiming an interest af- fecting the construction of the will, legatee or cestui que trust, may institute the suit against the executor or trustee and all other parties interested in the question.^ Where directions are thus sought in regard to the interpreta- tion of a will or trust, and the duty of those appointed to carry its provisions into effect, the whole expense of the litigation is thrown upon the estate, unless the petitioner discloses a frivolous case. 3 This may prove an especial hardship to residuary leg- ' Sitpra, § 265 ; Schoul. Wills, § 492. by him from the representatives of the ^ Martineau v. Rogers, 8 De G. M. & deceased executor are to be accounted G. 328 ; Maxwell v. Maxwell, L. R. 4 for as belonging to the estate or the H. L. 521 ; Bowers v. Smith, 10 Paige, trust. Putnam v. Collamore, 109 Mass. 193; Treadwell v. Cordis, 5 Gray, 341 ; 509. See Clay v. Gurley, 62 Ala. 14. 2 Story Eq. Jur. 824, and cases cited. ^ Studholme v. Hodgson, 3 P. Wms. Where one is both administrator with 303; Attorney-General <7. Jesus College, the will annexed and trustee under the 7 Jur. N. S. 592 ; Sawyer v, Baldwin, will, he may maintain a bill in equity 20 Pick. 378; Rogers v. Ross, 4 Johns, against the cestui que trust, and a cred- Ch. 608; Howlandz/. Green, 108 Mass. itor who has brought suit against him, 283. English practice is to pay the to determine whether moneys received fund into court, and have the parties 603 § 475 EXECUTORS AND ADMINISTRATORS. [PART V. atees ; and no precaution is so good as that of making one's own testamentary scheme clear, simple, and just." § 474. Construction of Wills, Legacies, etc. — To enter into a discussion of the general rules affecting the construction of wills and the legacies given by a testator is foreign to the purpose of this work. The cases under this head, which are very numerous, may be found in general treatises on wills, English and American, and this author has discoursed upon the subject at length in a companion volume.^ The leading principle, which the courts of both countries respect, is that the testator's intent shall be fol- lowed, if possible ; this intent, to use a common figure of judicial speech, being the pole star by which the court should be guided.' Such a rule, to be sure, leads into various courses, since every will must be steered by its own luminary. Yet, uniform justice is better than strict consistency ; and it is observable, that, while in contracts the common mind of two or more must be sought out from their mutual expression, a will expresses but one mind essentially, and one disposition ; and again, as inter vivos, parties may opjDose their own proofs, whereas the testator necessarily confides his meaning to an instrument which courts of equity are sacredly enjoined to interpret justly as between him and those he leaves behind, should controversy arise, death having closed his own lips.'' § 475- JDoubtful Points settled by the Agreement of all Parties in Interest. — It is a general principle, that all the ])arties inter- ested in an estate or fund, if competent and sui juris, ma)', by their own mutual agreement, waive stipulations under the will which affect its distribution, or agree upon some particular con- appear and obtain the judgment of tlie To this proposition various qualifica- courtsasto their rights. Hooper's Will, tions are found, which writers on the Ke, 7 Jur. N. S. 595. law of wills summarize from the deci- ' Chancery seeks, if it be practicable, sions. to adjust the costs ratably to the various ^ Since the above was written, the interests affected by the construction, present author has prepared his own See L. R. 7 P2q. 414. exposition of the rules, to which the ^ See Schoul. Wills, Part VI. reader is referred for further details. 'See Quincy 7/. Rogers, 9 Cush. 294, Schoul. Wills, Part VI. per Shaw, C. J. A will speaks for sonic purposes, as 604 CHAP. III.] LEGACIES. § 475 struction of doubtful provisions, so that the will shall be carried out accordingly. An executor, by procuring some such mutual agreement, may often relieve himself of an embarrassing re- sponsibility without invoking the assistance of the court at all. Legislation sometimes extends expressly the right of thus adjust- ing conflicting interests, by empowering the executor or other fiduciary to bind the future contingent interests of parties not capable of being represented, wherever the court of equity shall declare the operation of such proceeding to be just and reason- able in its effect upon such interests.' good sense allows, from the period of until the latter period. Jarm. Wills, execution, and for others from the death 762 ; Schoul. Wills, § 486. of the testator ; but it never operates ' Brophy v. Bellamy, L. K. 8 Ch. 79cr Lord Redesdale. 612 CHAP. IV.] PAYMENT AND SATISFACTION OF LEGACIES. § 482 English and American, has been that pecuniary legacies bear interest from the time when they became vested and payable under legal rules or the express terms of the will, provided the estate be ever in a condition to satisfy them, and notwithstand- ing the delay was occasioned on the legatee's part." And, if the executor has sufficient assets, he must pay interest to legatees from the end of the twelve months whether the assets have been productive or not,^ all intermediate profit, if received, going to swell the general bulk of the estate.^ § 482. Interest on Legacies to Children, Wido-w, etc. ; and other Special Instances. — To the rule for delaying a reckoning of in- terest, well-settled exceptions exist in favor of young offspring not otherwise provided for ; '^ or so as to give corresponding sup- * Wms. Exrs. 1427 ; Kent v. Dunham, 106 Mass. 586 ; Smith v. Field, 6 Dana, 361 ; Fowler v. Colt, 25 N. J. Eq. 202. In Lyon v. Magagnos, 7 Gratt. 377, the legatee died shortly after the testatrix, and there was no administration on his estate for twelve years ; and yet interest was held to be payable. And Lord Redesdale, in Pearson v. Pearson, i Sch. & Lef. ID, mentions a case where the fund did not come to be disposable for the payment of legacies till nearly forty years after the death of the testa- tor, and yet the legacies were held to bear interest from the year after the testator's death. ^ Pearson v. Pearson, i Sch. & Lef. 10. For the rule as to compounding interest in case of delay, see Wms. Exrs. 1433; 2 P. Wms. 26; 106 Mass. 586; post. Part Vn. Interest may be charged by way of penalty upon the representa- tive himself, where the fault of delay is his own. We have seen that the benefi- ciary of income is entitled to income as computed from the testator's death. Supra, § 479. But, as to a legacy in the shape of an annuity, interest is not usually computable on an instalment until tlitj fust twelve months have 61 elapsed. Those entitled to income or annuity are usually entitled to regular payments after the first year, reckoning back, but not to interest upon income thus regularly paid. See Wms. Exrs. 1428 ; 8 Hare, 120. The English chancery rule computes the rate of interest payable on a legacy at four per cent. ; unless the rate should be increased, or interest compounded, because of the representative's breach of trust or culpable neglect. Wms. Exrs. 1432, 1433; Part. WW., posf. In the United States the rate fixed may be greater. 27 N. J. Eq. 492. But the statute rate determines, even though trust funds usually earn a lower rate. Welch ,'. Adams, 152 Mass. 74; 17 ( Mass. 404. ^ See 70 Iowa, 368 ; § 469. ■• Harvey z'. Harvey, 2 P. Wms. 21; Brown v. Temperly, 3 Russ. 263 ; Mar- tin V. Martin, L. R. i Eq. 369 ; William- son V. Williamson, 6 Paige, 298 ; Wms. Exrs. 1429; Magoffin v. Patton, 4 Rawle, 113. This rule is enforced, even though the will should expressly direct an accumulation of the income. Mole V. Mole, i Dick. 310. §4«3 EXFXUTORS AND ADMINISTRATORS. [part V. port to a widow ; or where in consideration of her release of dower ; or so as to pursue special directions of the testator/ as where he gives a fund in trust to the support and maintenance of his legatee.- § 483. To whom Legacies should be paid ; Deceased Legatees; Infants, Insane Persons, etc. — The executor is bound to pay each legacy to the person entitled to receive it, or to his proper legal representative. If the legatee has deceased since the testator/ his executor or administrator is the proper representative ; and an appointment may be needed accordingly for the express purpose of discharging such payment.'* Where the legatee is an infant, the parent or natural guardian of the child should not be paid, nor the child himself, but the child's probate or chancery guar- dian duly appointed and qualified. 5 Where, too, the legatee is insane, the qualified guardian or committee of such insane per- son is, in American probate practice, the proper person to re- ' I Beav. 271 ; Williamson f. Wil- liamson, 6 Paige, 298. But see 2 Penn. St. 221. A legacy payable at a future fixed date, or on a future contingency, carries no interest in such legatee's favor, as a rule, until the date arrives or the contingency happens. Wms. Exrs. 1428. But where the payment of a legacy is postponed to a future period, and the wll directs that when that period arrives payment shall be made with interest, the legacy bears interest from the end of the year after the testa- tor died. Knight v. Knight, 2 Sim. & Stu. 792 ; 2 Wms. Exrs. 1430. Com- pound interest on the legacy ^^nll, if directed, be allowed the legatee. Arnold V. Arnold, i My. & K. 365 ; Wms. Exrs. 1432, 1433; Treves v. Townshend, i Bro. C. C. 386; WiUiams v. Powell, 15 Beav. 461. - Townsend's Appeal, 106 Penn. St. 268. ^ If the legatee dies before the tes- tator, the legacy usually lapses. See 6 supra, § 467; Jones v. Letcher, 13 B. Mon. 363; 13 Phila. 406. "* In English chancery practice, where a legatee of a residue less than ;^2o has died, and has no personal representa- tive, distribution among his next of kin is permitted without requiring adminis- tration to be taken out. 2 Hemm. & M. 32. But see generally as to requir- ing administration, supra, § 91. 5 Schoul. Dom. Rel. 3d ed. § 302 ; Dagley v. Tolferry, i P. Wms. 285 ; Miles 7'. Boyden, 3 Pick. 213; Genet v. Tallmadge, i Johns. Ch. 3; Quinn v. Moss, 12 Sm. & M. 365; I Uem. 160; 94 Ga. 270. Letters of probate guar- dianship often issue in American prac- tice because some legacy or distributive share vests. But English chancery guardianship is so costly, that, under Stat. 36 Geo. III. c. 52, § 32, the exec- utor is permitted to pay such legacies into the Bank of England in various cases. See Wms. Exrs. 1406-1408; 31 Beav. 48. 14 CHAP. IV.] PAYMENT AND SATISFACTION ()!• I.ECiAClES. § 485 ceive the legacy.' An equal distribution among all of a class should be made where the will so designates.^ § 484. To whom Legacies should be paid; Absentees, Persons not known, etc. — Aside from legislation expressly providing for the case of absentees,^ the executor may find himself embar- rassed with respect to legacies which are nominally payable to persons who, in fact, have long been absent and missing, and cannot with certainty be pronounced alive or dead. Probate courts have no inherent jurisdiction of questions pertaining to the payment of legacies. The executor's better course, when left with legacies in his hands awaiting unknown claimants, appears to be, in the absence of positive statute direction, to trust him- self to the guidance of chancery, investing or disbursing the fund as that court may require. Where a legatee has been long absent, sixteen years or more, without being heard from, chancery has presumed death, in various instances ; directing, it may be, that those entitled in such contingency to the legacy, should, upon its receipt, furnish security to refund in case the legatee should ever return.'' § 485. To whom Legacies should be paid ; Testamentary Trus- tees, etc. — If the bequest be to one person for the benefit of others, or with directions to expend the fund for the use of others, either generally, or in a particular mode, the executor ' Schoul. Dom. Rel. 3d ed. § 293. c. 52, § 32, permits legacies of absentees As to married women, the common-law "beyond the seas "to be turned, like rule has now so completely changed, those of infants, into the Bank of Eng- that, in general, only the wife herself land. See Wms. Exrs. 1407, 1421. And can receipt for her separate legacy, and see Birkett, AV, L. R. 9 Ch. D. 576. it cannot be paid to her husband. See American statutes, somewhat corre- Schoul. IIus. & \Niie, passim. sponding in tenor, may be found; but ^ Rollins V. Rice, 59 N. 11. 493. our legislation is usually with reference TestatorgaveE. $25,000, and ordered rather to unclaimed balances in an that $8,000 of said sum be paid over to administrator's hands. See next chap- T. when T. should arrive at the age of ter. twenty-one; keid, that the executor " Dixon z/. Dixon, 3 Bro. C. C. 510; mast pay the whole to E., who became Bailey ?/. Hammond, 7 Ves. 590; Wms. T.'s trustee. Denton, Re, 102 N. Y. Exrs. 1420. See Lewes' Trusts, AV, 200. L. R. 1 1 Eq. 236. 'The English statute, 36 Geo. III. 615 § 485 EXECUTORS AND ADMINISTRATORS. [PART V. may safely make payment to such person, as trustee, without reference to the parties beneficially interested." It is customary in modern wills for the testator to name trustees who shall hold funds bequeathed for the benefit of others, or for special pur- poses, such as charity, and wherever a full legal title in the beneficiary is suspended. Testamentary trustees, in American practice, must qualify and receive letters from the probate court before they are em- powered to act ; nor should an executor place the trust fund in their hands until they have conformed to statute.- Even though the same person be constituted executor and trustee under the will, he must procure his credentials as trustee in due form, as preliminary to holding and managing the fund in his new ca- pacity.^ So, too, he must show some act done to change the character of his holding and to place the fund properly, before he can be discharged as executor therefor.'* Where the testa- tor omits to name a trustee, or the trustee named is disqualified, or declines to act, or a vacancy afterwards occurs from any cause, proceedings may usually be had, in American practice, for filling the office by probate appointment. 5 But where per- ' Cooper V. Thornton, 3 Bro. C. C. be blended. Wheatley v. Badger, 7 96; Robinson v. Tickell, 8 Ves. 142; Penn. St. 459. And see su/>ra, § 472. supra, § 472. As to transferring from one capacity to ~ Newcomb v. Williams, 9 Met. 535. the other where the same person is ex- 3 See Miller v. Congdon, 14 Gray, ecutor and trustee, see stipra,% 247; 114. Wms. Exrs. 1399, and Perkins's note. ■• Sanborn's Estate, 109 Mich. 191. It may happen that a particular fund 5 See local statutes as to appointing or the residue of the estate is to be in- testamentary trustees. Smith Prob. vested in good and productive securi- Pract. 90-93 ; also Lord Alvanley in tics, and held, by the true intendment Cooper V. Thornton, 3 Bro. C. C. 96; of the will, in trust by the executor Wms. Exrs. 1796. If a legacy is given himself, for purposes of accumulation ; in trust, no person being named as or, so as to pay out income only, until trustee, it may be incumbent on the ex- some prescribed period has elapsed, or ecutor as such to administer the same a certain contingency happened ; where- according to the provisions of the will, upon the principal .shall be paid by him Groton J'. Ruggles, 17 Me. 137. Where, to the person or persons ultimately en- however, the testator appointed one to titled thereto under the will, or in de- be his sole executor, and bequeathed to fault of such ultimate disposition, to him "his executor and trustee," his those entitled under statutes of distri- pioperty in trust, the offices of executor bution in case of inte.<;tacy. See (Jar- and trustee are distinct, and must not son v. Carson, 6 Allen, 299; .Millers. 616 CHAP. IV.] PAYMENT AND SATISFACTION OF LEGACIES. § 487 sonal property is given in trust, the executor should protect and preserve the property until a trustee has been appointed ; ' and in special instances he may be compelled to act and account as trustee.'' § 486. Delivery of Specific Legacies ; Legatee's Right to select. — Specific things bequeathed should be identified and delivered to the respective legatees, as directed by the will. Where the testator bequeaths a number of things, out of a larger number belonging to him, — as in a bequest of " ten of the horses in my stable," — it is held that the legatee has a right of selection from the number.^ But where the entire fund is bestowed in parcels, to be divided among different legatees, such individual selection would be impracticable.'* The direction of the will as to such legacies should be followed.^ § 487. Method of paying General Legacies; Currency, Deduc- tions, etc. — The presumption is that general legacies shall be paid in lawful money.'' But a testator may require any general Congdon, 14 Gray, 114. However un- ' Where a testatrix gave her son one usual in extent and character may be undivided tenth of her estate, with the the functions thus exercised by him, the provision that it should be indorsed on executor is bound to a just and rightful a certain note which he owed her performance; and his official bond, daughter, the executor was held bound though expressed after the ordinary to appropriate the legacy to the payment tenor, stands as security that the obli- of such note, and to pay the residue gations he has incurred shall be faith- only, if any, to the legatee. Low f. Low, fully performed in all respects. W^ms. 77 Me. 171. Exrs. 1 399, and Perkins's note ; Dorr v. Where the executor delivers a specific Wainwright, 13 Pick. 328 ; Sheet's Es- legacy or a specific fund to the life ben- tate, 52 Penn. St. 257 ; Lansing z'. Lans- eficiary and takes a proper receipt or in- ing, 45 Barb. 182. ventory for the remainderman, the leg- ' As where the trustee named refuses acy or fund having been thus be- to serve, and there is a delay in appoint- queathed, he is discharged from further ing another. Casperson v. Dunn, 42 duty or Hability. 52 N.J. Eq. 611. N. J. Eq. 87 ; § 248. * Rates of exchange in payments will ^ Hodge's Estate, 63 Vt. 661. * be reckoned accordingly. Wms. Exrs. ^ Jacques z*. Chambers, 2 Col. 435; 1433-1435; Lansdowne i'. Lansdowne, Wms. Exrs. 1440. 2 Bligh, 91 ; Bowditch v. Soltyk, 99 * In such case the legatees may well Mass. 136; Yates v. Maddan, 16 Sim. abideby the executor's selection, if they 613. As to payment in "confederate cannot agree; but, otherwise, equity money," see 79 Va. 1 18. must decide. lb. 617 § 48 ounded and released during the life of the testator, Davies v. Bush, i Younge, 341 ; Coppin57. Coppin, 2 P. Wms. 291 ; or provisions nominally in lieu of dower, where the testator has left no dowable lands, are voluntary merely. Acey v. Simpson, 5 Beav. 35 ; L. R. 3 Ch. D. 714. And the same may be said of a legacy given to pay off another person's debts. Shirt v. West by, 16 Ves. 396. The meritorious object of a voluntary bequest, moreover, will not entitle it to pre-eminence above other general lega- cies given by way of bounty; and, aside from provisions which properly defray the incidental e.xpenses of funeral and administration, legacies given for mourn- ing rings, or to recompense executors for their care and trouble, are liable to abatement in the usual proportion. Apreece v. Apreece, i Ves. & B. 364 ; Kretwell v. Stacy, 2 Vern. 434 ; Duncan V. Watts, 16 Beav. 204 ; Wms. Exrs. 1366. In American States, however, where compensation is regularly allowed to executors for their services, a legacy given by way of recompense, might, perhaps, be pronounced a legacy upon valid consideration ; but, even were it abated, the executor would not be thereby debarred, we presume, from re- ceiving his full compensation on the usual footing of such officials. See Part VII., c. 2, on this point. The re- port, in I P. Wms. 423, appears to sanction the exemption of a legacy left for building a monument to the memory of a relation ; but there is here some error. See Wms. Exrs. 1366, and note ; I Bro. C. C. 390 ; 6 Paige, 277. Lega- cies to servants, or for charities, cannot claim precedence. Attorney General v. Robins, 2 P. Wms. 25 ; Wms. Exrs. 1366. 'See §§5, 212-215, 5°9-5i7; Bank of Ireland v. McCarthy, (1898) A. C. 181. ^ But even here the presumption is that personalty shall be the primary fund, in absence of clear direction to the contrary. Knight v. Knight, (1895) I Ch. 499. See Lloyd's Estate, 174 Penn. St. 184. 624 CHAP. IW] PAYMKNT AND SATISFACTION ()!■ l.K( . At:i K.s. § 49 1 the will, expressly or by inference, to denote an intention to charge one's real estate with the payment.' Whether an exec- utor, who is also a devisee, becomes personally or as executor bound to pay such legacies, depends upon his promise express or implied.^ § 49 1 . The Refunding of Legacies after their Payment. — The general rule appears to be well settled, that after the executor has once voluntarily paid a legacy without reservation, he can- not at discretion force the legatee to refund. ^ Where, however, the assets are found deficient for meeting the lawful debts and charges, the executor may, by a bill in equity, compel legatees to refund what may have been already overpaid to them ; ^ though equity will not make legatees refund for the sake of re- pairing losses occasioned by the executor's waste ; 5 nor while unappropriated assets remain for administration purposes.^ Creditors cannot, however, be debarred of their prior rights by the executor's imprudence or misconduct, but may in all cases pursue assets into the hands of legatees, where their own lawful demands remain unsatisfied ; and the satisfied legatee, whether paid by the executor voluntarily or under the sanction of chancery, may, by chancery, be compelled to refund.^ Where chancery has administered the fund, however, a particular lega- ' Duvall's Estate, 146 Penn. St. 176, If he volunteers to pay legacies, with and cases cited. full knowledge of outstanding debts, he ^ lb. Cf. Evans v. Foster, 80 Wis. may have to bear the penalty of his own 509; §488. Though the land specifi- imprudence. Harkins v. Hughes, 60 cally devised may have to be sold to Ala. 316. pay debts, etc., the surplus, if any, goes * i La. Ann. 214. The executor's to such devisee. 87 Me. 63. prudent course is to take a refunding 3 Orr V. Kaines, 2 Ves. Sen. 194; bond from legatees, as against claims Coppin V. Coppin, 2 P. Wms. 296 ; 5 which may aftern'ards be presented Cranch, C. C. 658 ; Wms. Exrs. 1450. within the time allowed by law ; unless Local statutes sometimes change this the estate is ample. Supra, % ^TJ \ Mc- rule. Glaughlin v. McGlaughlin, 43 W. Va. ■I Wms. Exrs. 1451; 1 Chanc. Cas. 226; 31 Gratt. 602. 136; Davis V. Newman, 2 Rob. (Va.) ^ Wms. Exrs. 1451 ; i Vern. 162; 664. The executor should come into the March v. Russell, 3 My. & Cr. 31 ; Da- court " with clean hands," if he expects vies v. Nicholson, 2 De G. & J. 693 ; equity to aid him. See 77 N. C. 357. Buie v. Pollock, 55 Miss. 309. 5 McClure 7'. Askew, 5 Rich. Eq. 162. 40 625 v5 49I<:7 EXECUTORS AND ADMINISTRATORS. [PART V. tee may be required to refund only his proportionate share.' And it would appear consistent with our American probate prac- tice to cause unsatisfied creditors, where the deficiency was occasioned by maladministration, to exhaust their remedies first against the executor or administrator and the sureties on his official bond.^ And since creditors may compel legatees to re- fund, so the executor is sometimes substituted to their right for his own indemnity.^ As among legatees, moreover, no one of them shall be allowed an unjust precedence, because of an executor's favor or misap- prehension, where the assets were not originally sufficient, in fact, to pay all in full ; but in such case equity will compel the legatees thus overpaid to contribute so as to make the whole proportionate abatement what it should have been.'* § 4gia. Change from Representative to other Capacity. — At the proper point an executor or administrator who is also sole beneficiary for the residue, changes the character under which he holds the fund and becomes residuary legatee or distributees ' Gillespie v. Alexander, 3 Russ. 130. equity. Green v. Givan, 33 N. Y. 343. ^Pyke V. Searcy, 4 Port. 52. A de- Where specific legacies have not been cree of the court directing a payment paid, the residuary legatee may be pur- w-ithout security, will protect the exec- sued to whom the executor has made utor. 154 Penn. St. 383. Cf. §477. improper payment. Buffalo Loan Co. 3 See 83 Va. 539. z>. Leonard, 154 N. V. 141. •* Walcott V. Hall, i P. Wms. 495 ; ' As to where he is to hold the fund Wms. Exrs. 1452 ; Gallego v. Attorney as trustee or guardian, see § 247. As to General, 3 Leigh, 450. Otherwise, devolution of title as legatee or dis- where assets, originally sufficient, have tributee, see § 248. Where one is sole been wasted by the executor. See residuary legatee or distributee and all Wms. Exrs. 1452 ; Evans v. Fisher, 40 debts are paid, he may turn over to him- Miss. 644. Trust funds, misapplied self any outstanding claim of the estate and distributed by the executor among and sue for it in his individual capacity, legatees, may be recovered by a bill in Ewers v. White, 114 Mich. 266. 626 CHAP, v.] PAYMENT AND DISTRIBUTION OF THE RESIDUE. § 493 CHAPTER V. PAYMENT AND DISTRIBUTION OF THE RESIDUE, § 492. Residue of Personal Estate goes according to Testacy or Intestacy of Deceased. — After the payment of debts and (if there be a will) of specific and general legacies, the final duty of the executor or administrator is to pay over or deliver what residue or surplus of the assets may remain to the person or persons duly entitled to the same. In case of testacy, the residuary legatee or legatees, or, as the case may be, trustees selected to hold the residue for the purposes contemplated by the will, are the proper parties ; but, where one died intestate, the residue goes to the person or persons designated by law and the statute of distributions. These two cases we now proceed to consider separately. § 4g2a. Debt o-wing by Distributee, etc., to be Deducted. — But we may here state, as preliminary, that in general, it is the right and duty of the personal representative to retain from the share to which each distributee is entitled, whatever amount may be due by the latter, either as a debtor to the estate, or by reason of matters growing out of the settlement of the estate.' § 493. I. As to the Residue in case of Testacy. — First, as to the case of testacy. After an executor has settled all lawful debts and charges against the estate which he represents, and 'See §208; Hoffman v. Hoffman, gCh. D. 673; 23W. R. 826; 28 W. R. 88 Md. 60 ; Webb v. Fuller, 85 Me. 443 ; 914 ; Cutliff v. Boyd, 72 Ga. 302. And Fiscus t/. Fiscus, 127 Ind. 283. As to see, as to setting off the representative's permitting an executor or administrator own advances, Taylor v. Taylor, L. R. to set off a debt due to his decedent 20 Eq. 155; Kelly v. Davis, 37 Miss, against the legacy or distributive share 76. See further, 37 Ala. 74 ; 2 Sneed, payable, see also Courtenay v. Williams, 200 ; Nelson v. Murfee, 69 Ala. 598 ; 3 Hare, 539 ; Hodgson v. Fo.x, L. R. § 486. 627 § 494 EXECUTORS AND ADMINISTRATORS. [PART V. has paid or delivered all the general and specific legacies ac- cording to the tenor of the will, he should transfer whatever personal property remains to the residuary legatee or legatees if such there be.' And if such legatee dies after the testator, and pending a final settlement of the estate, his personal repre- sentatives will take the residue in his right.- Subject to the directions of the will, and such legatee's convenience, this resid- uary fund is turned over in money or other kinds of personalty, as the proceeds of a prudent administration. § 494- Right of the Executor where there is no Residuary Leg- atee named. — F^ormerly it was contended in the English courts, more out of favor to the individual upon whom the deceased had bestowed his confidence than upon any rational theory of inter- pretation, that if a testator had named in his will an executor, but no residuary legatee, the executor should retain the residue of the personal estate for his own benefit, after settling all debts and charges, and paying whatever legacies were duly bestowed. For, inasmuch as the personal estate had devolved upon the executor in the first instance, there the surplus legally remained.^ So unsatisfactory was the doctrine, however, that though equity gave formal adhesion to this common-law rule, they made excep- tions wherever they might ;^ and, in 1830, Parliament declared explicitly that, for the future, unless the will directed otherwise, the executor must be deemed, in all such cases, a trustee for the persons entitled to the estate under the statute of distributions.^ ' Wms. Exrs. 1454. ' Act 11 Geo. IV. & Wm. IV. c. 40; ^ Brown v. Farndell, Carth. 52; Wms. Exrs. 1476. The established Cooper 7'. Cooper, L. R. 7 H. L. 53. equity rule, previous to this act, was A residuary legatee, under a will, has a that, where it may well be presumed clear and tangible interest in the resi- that the testator meant to confer the due, and the next of kin stand, with re- office without the beneficial interest in gard to an intestate estate, in the same the residue, the executor must l)e con- condition. Cooper 7). Cooper, ib. sidered a trustee for the next of kin of 'Attorney General v. Hooker, 2 P. the testator; or, if there be no known Wms. 338; Urquhart v. King, 7 Ves. kindred, a trustee for the crown, i Bro. 288; Wms. Exrs. 1474, 1475. C. C. 201 ; Taylorz/. Haygarth, 14 Sim. * Ib. ; Langham r. Sanford, 17 Ves. 8. The effect of this statul e appears to 435; Middleton v. Spicer, i Bro. C C. be to put the burden of proof on the 201 ; Taylor v. Haygarth, 14 Sim. 8. executor to show that the testator in- 628 CHAP, v.] PAYMENT AND DISTRIBUTION OF Till-: RKSIDIIE. § 495 Generally, if not universally, in the American States, the execu- tor has been considered a trustee for the next of kin as to all residue in his hands undisposed of ; and American statutes a hundred years old repudiate the notion that a beneficial interest should vest in him by virtue of his office." The fact, that the next of kin is likewise executor, does not, of course, disentitle him from taking beneficially the residue which otherwise would have vested in him.^ But a pecuniary legatee's interest is not enlarged constructively by his appoint- ment as an executor.^ It has been held that a testator cannot by negative words exclude any or all of his next of kin from sharing beneficially his undisposed-of residue, but must give it expressly to some one else, if he means to cut off such kindred's right to share. Where executors applied to the court to construe the testa- tor's will and made distribution in accordance therewith, in the exercise of due care and good faith, they were protected, although it turned out subsequently that the court's construction of the will was erroneous.'* § 495- II- -A-s to the Residue in Case of Intestacy; Statutes of Distribution. — Secondly, as to payment or delivery of the residue in case of intestacy. As the law of England anciently stood, the ordinary, succeeding to the king's right, himself appro- priated the residue of an intestate's estate, as though for pious uses, giving certain portions to widow and children, if there were tended he should enjoy the residue Jackson, 6 Mass. 149 ; Wilson v. Wil- beneficially. Juler v. Juler, 29 Beav. son, 3 Binney, 557. 34. But the statute is considered to - Mass. Stat. 1783, c. 24, § 10. apply only in cases where the testator ^ Browne v. Cogswell, 5 Allen, 556. has left next of kin ; and, accordingly, See Reeve's Trusts, AV, L. R. 4 Ch. D., where there is no known next of kin, as to a bequest to an executor, but not the executor will take the residue as in that character. Negative words will against the crown, unless the intent of not suffice to exclude any of one's next the testator to exclude his executor of kin from sharing beneficially in a resi- affirmatively appear. 2 Coll. 648. For due undisposed of. Clarke v. Hilton, the English decisions under this statute, L. R. 2 Eq. 810. see Wms. Exrs. 1474-1482, and cases *■ Eraser v. Page, 82 Ky. 73. cited. An executor cannot be compelled, by '2 Story Eq. Jurisp. § 1208; Wms. summary process for contempt, to make Exrs. 1474, and cases cited; Hays 7'. distribution. 81 Va. 395. 629 § 495 EXECUTORS AND ADMINISTRATORS. [PART V. any. Later statutes compelled administration to be granted to the next relatives of the deceased ; but here the immediate result was, that the person selected for the trust might make the office lucrative for himself, by enjoying the surplus, to the exclusion of other equal kindred to the intestate. For, as the temporal courts finally decided, the ordinary had no power to compel a distribution, notwithstanding such authority had long been assumed.' To this unsatisfactory state of the law we owe the first of our formal statutes of distribution, — one of those excellent enact- ments, following the Restoration, which have placed English jurisprudence upon a sound modern establishment. This act provides in detail for distributing justly and equally the surplus oi all intestate estates amongst the wife and children, or chil- dren's children, if any such be, or otherwise to the next of kin- dred to the dead person in equal degree, or legally representing their stocks, p7v s?io ciiiquc jurc.'^ By this same statute the or- ' 2 Bl. Com. 515 ; Edwards v. Free- man, 2 P. Wms. 441 ; Wms. Exrs. 1483 ; I Lev. 223. The spiritual courts had required administrators to give bonds, ■with condition to distribute; and stat- ute 2 Hen. VIII. c. 5, expressly sanc- tioned "taking surety " of the person to whom such office was committed. It appears, too, to have been the custom, moreover, to divide an intestate's per- sonal estate among his next relatives. Stat. 21 Hen. VIII. c. 5, §3; Wms. Kxrs. 52g; supra, §§ 7, 139. Assign- ment before a distributee's right to a share accrued, confers no full right upon the assignee. 3 Dem. 567. ^ Stat. 22 & 23 Car. II. c. 10. De- tails are given in Wms. Exns. 1434, at considerable length. Admirable as is the policy of this statute, some English jurists have considered it, to use Lord Hardwicke's words, " very incorrectly penned." Stanley v. Stanley, i Atk. 457- From the operation of this act were expressly excepted customs previously 63 observed within the city of London, the province of York, and other places. The custom of the city of London, which is the remnant of the old common law on the subject (see Lord Macclesfield, Prec. Ch. 596), distributed according to the ancient doctrine of pars rationabilis. This, in substance, divided the surplus into three parts where widow and chil- dren survived the intestate; the widow taking one-third, the children one-third, the administrator one-third. If only a widow or only children survived, such widow or .such children took one moiety and the administrator the other. If there was neither widow nor child sur- viving, the administrator had the whole; his portion being known as the " dead man's part " or " death's part." It was this " dead man's part " which the or- dinary or administratorformerly applied, or might apply, to his own use, until the statute 1 Jac. II. c. 17, required it, de- spite custom, to be .subject to the statute of distributions ; a statute which doubt- less would have passed much earlier, O CHAP, v.] PAYMENT AND DISTRIBUTION OF THE RESIDUE. § 496 dinary spiritual court was empowered to take bonds, with sure- ties, from all administrators on their appointment, conditioned not only to exhibit an inventory, and administer the estate well and truly, but likewise to render a just account of one's admin- istration, and deliver and pay the residue found due to such per- son or persons as the court should decree, pursuant to the terms of this act.' Statutes are to be found in all of the United States expressly directing the distribution of an intestate's personal, as well as the descent of his real estate, and differing in various details from one another, though based upon the English statute of Charles 11.^ It is likewise the American rule to require account and distribution by the administrator, under the direction of the probate court, and to insert corresponding conditions in the ad- ministration bond.3 The persons among whom distribution should be made, and the method of making distribution, must therefore be determined by local statutes, and the procedure of the courts under them. But the rights and method of distribution, English and Ameri- can, deserve some further attention.^ § 496. Surviving Husband's Right to the Residue of his De- ceased Wife's Personalty. — Under the English statutes (and per- haps at common law), not only is the surviving husband entitled had not widow and children (who had, interest only as a curious historical we must remember, the choice of ad- study, will be found collated in Wms. ministrator) been treated, if surviving, Exrs. 1 527-1 549. with tolerable fairness, while the chief ' See stat. ib. ; Wms. Exrs. 530, 531, hardships of the law bore upon the 1484. As to language used in the court more remote kindred. The custom of of probate act, stat. 20 & 21 Vict. c. 77, London made deduction for "the which substitutes probate jurisdiction widow's chamber," or her apparel and for that of the old spiritual courts, see the furniture of her bedchamber. Cus- Wms. Exrs. 292. Under modern Eng- toms of York and other places were lish practice, accordingly, the bond mns quite similar to that of London. But as conditioned to pay the residue to the by stat. 19 & 20 Vict. c. 94, all these persons entitled under the statute of customs are abolished as to the estates distributions, of persons dying on or after January ist, ^2 Kent Com. 426, and notes. 1857. The cases under this head, which ^ Supf-a, ^ 140. in England are becoming rapidly for- ■• See Table of Consanguinity, gotten, and afford to American readers 631 § 497 EXECUTORS AND ADMINISTRATORS. [PART V. to administer upon his wife's estate in preference to all others, but, subject to the payment of such debts as bind him upon sur- viving her, he recovers her outstanding personal property to his own use and enjoyment. His interest is a peculiar one, moulded by the peculiar laws of coverture ; and he is said to administer for his own benefit when he administers at all, and to acquire a title to his wife's personalty, fitly designated as a title J2irc niariti under the statutes of distribution.' So greatly, however, have the ancient rights of husband and wife been changed by modern legislation, both in England and the United States, that the present legal rule on this subject cannot be stated with precision.^ § 497- Surviving "Wife's Rights in the Distribution of her De- ceased Husband's Personalty. — The English statute of distribu- tions preserves the " widow's thirds," which the ancient common law bestowed as \v^x pars ratioiiabilis ; the remaining two-thirds going to the children of the intestate or their representatives.^ The statute further provides, as likewise did the ancient law, that when the husband dies intestate, leaving a widow only, and no lineal descendant, the widow shall have a moiety or half of his personal estate ; giving a husband's next of kin the other half. Not more than one-half can the widow take by distribu- ' C lough V. Bond, 6 Jur. 50; Schoul. As to curtesy at the common law, or Hus. & Wife, §408; 2 151. Com. 515; the surviving husband's potential life Watt V. Watt, 3 Ves. 246. interest in his wife's lands, where a ^2 KentiCom. 136; Barnes z/. Under- child was born of the marriage, and wood, 47 N. Y. 351 ; Cox v. Morrow, substitutes for this right under some 14 Ark. 603 ; Nelson z/. Goree, 34 Ala. late American statutes, see Schoul. Hus. 565; Baldwin v. Carter, 17 Conn. 201 ; & Wife, §§417-423; 2 Kent Com. 134; Woodman v. Woodman, 54 N. II. 226; i Washb. Real Prop. 128. Wilson V. Breeding, 50 Iowa, 629; ^Stat. 22 & 23 Car. II. c. 10. The Holmes v. Holmes, 28 Vt. 765. See statute and custom of London, taken statutes of the several States regulating together, so as to divide the " death's this subject ; also Schoul. Hus. & Wife, part " between widow and children, pro- §§ 405-409, and cases cited. The stat- videdmorefavorably for the widow than ute 29 Car. II. was never in force in the statute alone; which last, it is ob- Illinois ; and the husband must distrib- served, virtually bestows the " death's ute according to the local statute of dis- part " upon the children to increase tributions. Townsend v. Radcliffe, 44 their portion, exclusive of the widow. 111. 446. Wms. Exrs. 1 530. Supra, § 495, n. 632 CHAP, v.] PAYMENT AND DISTRIBUTION OF THE RESIDUE. § 498 tion, under any circumstances ; for, where there are no next of kin, the other half goes to the crown.' In this country the statute of Charles II. is at the basis of our legislation regarding the estates of intestates ; but various modifications are found in the several States, to the greater favor of the surviving wife ; and modern legislation at the pres- ent day is capricious in this respect, though tending to equalize the rights of surviving spouses in one another's property.^ § 49^- Higlits of Children and Lineal Descendants in Distribu- tion. — The English statute directs an equal distribution among the children of an intestate, after deducting the widow's third ; or, if there be no widow or husband, the entire residue is por- tioned equally among them. Where the intestate has left only one child, the statute by implication provides for such child, giving him the entire two-thirds, or, in case of no surviving widow or husband, the entire residue.^ If any child was dead at the time of the intestate parent's death, and yet left a child or children of his own then surviving, such child or children will take their own parent's share in the intestate's personalty, by what is termed the " right of legal representation." This right of representation extends to lineal descendants in the remotest degree, the descendants of a deceased heir, as a class, being substituted to the share their own parent would have taken if living ; ■♦ though exclusive of such parent's widow. But representation applies only where one or more of them of a nearer degree to the intestate survived him, while such as did not, left lineal descendants instead, the right to take per stirpes thus equalizing a distribution among those of the nearest degree ; for, were all the children of the intestate dead, and only grandchil- dren left, the grandchildren would be, in fact, the next of kin sur- '2 Bl. Com. 515, 516; 2 Kent Com. barred by antenuptial settlement, etc. 427; Schoul. Hus. & Wife, § 427 ; Cave Schoul. Hus. & Wife, §363. Divorce V. Roberts, 8 Sim. 214. excludes such rights. Schoul. Hus. & = See Schoul. Hus. & Wife, §427, \Vife, §§ 558, 559. and appendix; the latest local codes ; 2 ^ Wms. Exrs. 1495, MQ? ; Carth. 52. Kent Com. nth ed. 427, 428. "Price v. Strange, 6 Madd. 161 ; 3 A surviving spouse's rights may be Bro. C. C. 226; Wms. Exrs. 1496. 6\\ § 49<^ EXECUTORS AND ADMINISTRATORS. [PART V. viving, and, as equal members, take per capita ; while, as between grandchildren and the surviving children of a deceased grand- child, supposing such a case to have occurred, the right of repre- sentation as per stirpes, would once more operate." American statutes, while recognizing these general rules, specify how far the right of representation shall apply ; a principle which might well avail among collateral kindred, and in landed inheritance, but whose extent, under the act 22 & 23 Car. II., is not pre- cisely determined.'' Children of the half blood are entitled to a share equally with those of the whole blood ; a rule applicable where the parent married more than once, and had offspring by the different mar- riages.^ And this rule extends generally to kindred of the half blood in the same degree. A posthumous child, too, or one born after the death of the parent, inherits, whether of the whole or half blood, in the same manner as if born during the lifetime of the parent and surviving him.'' On such points, statutes of distribution in our American States are sometimes found explicit ; providing, also, for other cases, where the com- mon law was either harsh or uncertain, as in the instance of illegitimate children. s So highly favored are the equal rights of children or lineal descendants in this country, that provisions may be found in our various codes, restraining the parental right, or, at all events, presuming strongly against the parental intention to deprive any one of them of the equal benefits of his will.^ ' 2 Bl. Com. 517 ; Bac. Abr. tit. Exors. 2 Vern. 124. Children by different I. 3; Wms. Exrs. 1497, 1498. fathers or by different mothers may be ^ Semhle, that, as long as there are brothers or sisters of the "half blood," lineal descendants, the division must be in the sense of that word, as it appears. per stirpes. See Ross's Trusts, L. R. "■ z Kent Com. 424; Edwards z/. Free- 13 Eq. 286. Inheritance or succession man, 2 P. Wms. 446 ; Wms. Exrs. 1497. " by right of representation " takes place And see Mass. Pub. Stats, c. 127, § 22. when the descendants of a deceased ^ Mass. Pub. Stats, c. 125, §§3-5. heir take the same share or right in the The rights and disabilities of illegitimate estate of another person that their children, as well as the status of legiti- parent would have taken if living, macy, are subjects considered at lengtli Mas.s. Pub. Stats, c. 125, §6. And see in Schoul. Dom. Relations, Part 111 . North's Estate, Re, 48 Conn. 583. cs. i, 6. 3 1 Mod. 209; Carth. 51; Wms. Exrs. ""Mass. Pub. Stats, c. 127, §21; 1 1496; 2 Kent Com. 424 ; Crook t'. Watt, Kent Com. 42114 Kent Com. 471. ^>34 CHAP, v.] PAYMENT AND DISTRIBUTION OF THE RESIDUK. § 50O § 499- Advancements to Children ; How reckoned in Distribu- tion. — By the English statute of distributions, portions arc taken into account ; and, if the father, during his Hfetime, makes an advancement .to any of his children, towards their distribu- tive share, the rule is to deduct this in making distribution.' § 500- Advancements to Children; American Rule. — To di.s- criminate carefully under such ma.xims must be difficult ; and, in this country, the rule of advancements does not appear to be so strict, more stress being usually laid upon mutual intention at the date of the transaction, than upon the equity of distribut- ing to all children alike. It is true that advancements are in some States reckoned by a legal inference similar to that which the English cases uphold ; nor is it unfrequently held that a gift, either of land or money, which is made to a child or heir, by a person who afterwards dies intestate, shall be presumed an advancement ; ^ as where, for instance, the pro\ision was calcu- ■ Stat. 22 & 23 Car. II. c. 10, § 5; Wm.s. Exrs. 1485, 1498; Edwards v. Freeman, 2 P. Wms. 435 ; 2 Bl. Com. 517. And see Dallmeyer i*?^, (1896) i Ch. 372. As to the deceased father, the stat- ute takes away nothing which has been once received by a child ; but only his distributive share can be affected by such computation, unless he chooses to relinquish more ; and the rule of hotch- pot applies only to cases of actual and complete intestacy. Walton v. Walton, 14 Ves. 324 ; Edwards v. Freeman, 2 P. Wms. 443. Bringing an advancement into hotchpot is intended for the benefit- of children, and not the widow ; but, as among children, the rule extends to those who succeed to a deceased child's share by the right of representation. Kircudbright v. Kircudbright, 8 Ves. 51 ; Proud v. Turner, 2 P. Wms. 560. But grandchildren who take per capita need not thus account for advancements to their respective parents deceased. Skinner z/. Wynne, 2 Jones (N. C.) 41. Lands received by settlement upon a younger child, and charges upon such land, have been included within the English statute under the rule of ad- vancements. 2 P. Wms. 441 ; Wms. Exrs. 1500, 1 50 1. And so have provi- sions by marriage settlement and pecu- niary portions. Wms. Exrs. 1502; Edwards v. Freeman, 2 P. Wms. 440. Where a father settles upon his son on the latter's marriage, all the limitations to the wife and children of such son should be considered part of the ad- vancement. Weyland v. Weyland, 2 Atk. 635. As to what shall constitute an advancement of the latter descrip- tion, the acts of the father appear to have been often construed in England with less reference to actual intention of the parties than the requirement of equal justice. See, e.g., Wms. Exrs. 1 502-1 505; I Atk. 403; 8 Ves. 51 ; 2 P. Wms. 435; 31 Beav. 583; Boyd v. Boyd, L. R. 4 Eq. 305 ; Bennett v. Ben- nett, L. R. 10 Ch. D. 474. ' See Meadows v. Meadows, 11 Ire. I,. 148; 2 Story Eq. Juris. § 1202; 635 § 500 EXECUTORS AND ADMINISTRATORS. [part V. lated to aid directly and advance the child when starting in life. But, generally, all such presumptions may be readily overcome by proof of actual intent ; ' while, in some States, the statutes of distribution, unlike the English, permit nothing to be reckoned as an advancement to a child by the father, unless proved to have been so intended, and chargeable on the child's share by certain evidence prescribed.^ Where at all events it clearly Parks z/. Parks, 19 Md. 323 ; Grattan v Grattan, 18 111. 167; Creed z'. Lancas ter Bank, i Ohio St. i ; Wms. Exrs 1502, 71. by Perkins; 4 Kent Com. 419 Hollister v. Attmore, 5 Jones Eq. 373 P'ellows V. Little, 46 N. H. 27 ; 85 Tenn 430- ' Smith V. Smith, 21 Ala. 761 ; Parks V. Parks, 19 Md. 373; Phillips v. Chap- pel, 16 Geo. 16; Bay v. Cook, 31 111. 336. ^ Mass. Gen. Stats, c. 91, § 6 ^/ scq. ; Hartwell z/. Rice, i Gray, 587 ; 22 Pick. 508; 4 Kent Com. 418; Porter z'. Por- ter, 51 Me. 376; Adams v. Adams, 22 Vt. 50 ; Johnson v. Belden, 20 Conn. 322 ; Mowrey v. Smith, 5 R. I. 255. See also Schoul. Dom. Rel. § 273 ; Van- zant V. Davies, 6 Ohio St. 52 ; Vaden v. Hance, i Head, 300; 119 111. 151, 170. Hence it is laid down that whether a certain provision made by the deceased during his lifetime be a gift or an ad- vancement is a question of intention ; but that, if it was originally intended by both parent and child as a gift, it cannot be subsequently treated by the father as an advancement, without at least the child's knowledge or consent. Lawson's Appeal, 23 Penn. St. 85 ; Sherwood v. Smith, 23 Conn. 516. On the other hand, bonds or promissory notes held by an intestate parent against his child, or the transfer of money upon an account stated, when expressed in the usual form, justify rather the pre- sumption that there was a loan and not a gift or advancement intended. Va- den V. Mance, i Head, 300; Bruce?'. Griscom, 16 N. V. Supr. 280; Batton V. Allen, 5 N. J. Eq. 99 ; 42 N. J. Eq. I5> 633; 70 Ala. 484; West v. Bolton, 23 Geo. 531. All such presumptions may be rebutted ; and, to the facts and circumstances attending the transaction, and, likewise, to declarations of the one as part of the res gestae, and admissions by the other, much weight is attached. One's advancement may he changed into a gift to the child ; and one may, by his will, reduce expressly his surviv- ing child's legacy out of consideration for special favors rendered ; but the conversion of an absolute gift into an advancement or debt, so as to affect a child's right of distribution, in case of intestacy, is not to be accomplished by the mere acts and declarations of the parent subsequent to the transaction, and apart from the child's own assent to the change. Green v. Howell, 6 W. & S. 203; Mitchell v. Mitchell, 8 Ala. 414; Manning v. Manning, 12 Rich. Eq. 410; Lawson's Appeal, 23 Penn. St. 85 ; Miller's Appeal, 31 Penn. St. 337; iiolnd. 444; Sherwood z'. Smith, 23 Conn. 516. Evidence of the mutual intention, in short, is regarded with great favor where the deceased parent has not given express directions by his will ; nor are entries and memoranda by the parent conclusive as to either the amount or the character of the trans- fer to his child. 5 Watts, 9, 80 ; Wms. Exrs. 1502, Perkins's «. The advance- ment being made and accepted, the incidents to an advancenu-nt follow. Nesmith v. Dinsmore, 17 .\. II. 515. As under the English rule, there must 636 CHAJ\ v.] PAYMENT AND DISTRIBUTION OI" TIIK RESlDUi:. § 5OO appears that the father intended a gift, the gift will not be treated as an advancement.' The rule of bringing one's advancement, in real or personal estate, into hutcJipot, if the child so desire, with the whole estate of the intestate, real and personal, so as to take his just propor- tion of the estate, prevails in several of the United States.- Hut this privilege of election to the child is by no means univer- sally conceded.^ The child who thus elects does not thereby relinquish his title to the advancement, but takes such a course to ascertain whether his share actually exceeds or falls short of an equal share.'* In this case, and, in general, wherever the value of an advancement is to be ascertained, the value of the property at the time of the advancement governs in the distri- bution, and interest should not be reckoned. ^ be a complete act of the parent during his life divesting himself of the prop- erty to constitute an advancement. Crosby v. Covington, 24 Miss. 619. Old promissory notes long outlawed may be presumed to have been paid rather than held as an advancement. 23 S. C. 456. A contemporary writing or the peculiar tenor of a promissory note or other security may show that an advancement was intended. Kirby's Appeal, 109 Penn. St. 41 ; 90 Mo. 460. Or it may show the reverse. 16 Lea, 453. Circumstantial evidence bears on the issue. 58 Mich. 152. An advance by the father may consist in paying his child's debts. 85 Tenn. 430. With the assent of the child a father may change his advancement into a gift. 71 Ga. 544. As to impounding a child's share to pay a judgment recovered on w-hat he owed the estate by way of advance, see 65 Md. 69, 153. It is a general rule in the United States (confirmed by statute in some States), that while an advancement must be taken by a child towards his share, as regards a distribution of the estate, so as to abate or extinguish his distribu- tive rights, no child shall be required to refund any part of the sum advanced to him, although it should exceed his share. Black v. Whitall, 9 N. J. Ecp 572 ; Mass. Gen. Stats, c. 91, § 6 ; Gush- ing V. Gushing, 7 Bush, 259. ' Morgan, Ke, 104 N. Y. 74. ' Wms. Exrs. 7th Eng. ed. 1499; Jackson v. Jackson, 28 Miss. 674 ; 2 Kent Com. 421 ; Barnes v. Hazleton, 50 111. 429; Knight V. Oliver, 12 Gratt. 33. Children with advancements, re- fusing to come into hotchpot, shall be disregarded in the distribution. St. Vrain's Estate, i Mo. App. 294. 2 See 2 Kent Com. 419, 421. Stat- utes are to be found in various States on this subject. lb. Chancellor Kent does not appear to favor this special right of election, nor to consider the privilege of any consequence. lb. '' Jackson v. Jackson, 28 Miss. 674. 5 Jenkins v. Mitchell, 4 Jones Eq. 207 • Wms. Exrs. 1498, n. by Perkins. For the New York rule, see Beebe v. Estabrook, t8 N. Y. Supr. 523. The rule is sometimes defined by local stat- utes ; as in Massachusetts, where the just proviso is found, in substance, that, if the value of the advancement was 637 § 50I EXECUTORS AND ADMINISTRATORS. [PART V. § 501. Genereil Distribution among the Next of Kin. — In de- fault of surviving husband, widow, children, or lineal issue, the general rights of next of kin must be considered. Under the English and American statutes of distributions, next of kin more distant than children and their representatives, may, as we have seen, be entitled to share with the widow, or, in some of our States, with the surviving husband ; but the stat- ute rule is, that if there be no wife, surviving husband, or lineal issue, then all the estate must be distributed among the next of kin of equal degree. The rules of consanguinity already stated in connection with the right of taking out administration should here be applied once more." Both English and American statutes regard the father with much favor under such circumstances ; and under the statute 22 & 23 Car. II. c. 10, if the intestate thus dying left a father, the father was entitled to the whole of the personal estate to the exclusion of all others ; ^ the mother coming next in order, but even thus, under the amended act, having to share with brothers and sisters of the deceased, if there were such.^ Amer- ican policy tending, however, in later times, to place parents upon a more equal footing as to their own children, we find that some States now require distribution to father and mother in equal shares, where both survive ; or, at all events, prefer, in degree, either surviving parent — the other being dead — to brothers and sisters of the deceased.^ It has been decided, under the English statute, that, in default of parents, the broth- ers and sisters of the deceased are to be preferred to a grand- parent, notwithstanding all, in legal strictness, are of the same precisely expressed contemporaneously ^ Wms. Exrs. 1 506 ; Blackborough z/. between the parties, this value shall be Davis, i P. Wms. 51. reckoned. Mass. Gen. Stats, c. 91, § 3 ; ^ As to the mother's sharing with Osgood V. Breed, 17 Mass. 356; Nel- brothers and sisters, see stat. i, Jac. II. son V. Wyan, 21 Mo. 347. c. 17 ; Wms. Exrs. 1 506-1 508, and cases Concerning the sale of expectant cited. The English statutes on this estates by children, see Schoul. l)om. point are carelessly drawn ; but various Rel. § 272 ; I Story Eq. Juris. §§ 336- American codes express the idea very 339. cleady. ^ Supra, § Id. And see Table in ^ Mass. Pub. Stats, cs. 125, 135; Appendix. Oliver v. Vance, 34 Ark. 564. 638 CHAP, v.] PAYMENT AND DISTRIBUTION OI THE RESIDUE. § 502 degree ; ' and this preference, which is founded in natural rea- son, American codes have expressly conceded,- though grand- parents are admitted to outrank uncles and aunts, under the English reckoning.^ If the intestate leaves no husband, widow, or issue ; and no father, mother, brother nor sister ; his personal estate goes to his next of kin in equal degree ; and, as to these, our codes of distribution rarely specify more particularly the parties entitled. But, it is observable, that in various American States it is dis- tinctly prescribed that the degrees of kindred shall be computed according to the rules of the civil law.'* Half-blood kindred, in the same degree, are to inherit equally with those of the whole blood, as our local statutes not unfre- quently declare, and the English decisions concede.^ § 502. The same Subject. — The English statute of distribu- tions appears to have so limited the right of representation among collaterals as to exclude it, where the next of kin are more re- motely related to the intestate than brothers and sisters ; and hence, where the intestate leaves surviving an uncle or aunt and the son of another uncle or aunt deceased, the latter can take nothing ; hence, too, surviving nephews and nieces become dis- tributees, regardless of the child of a deceased nephew or niece.^ A corresponding limitation may be found, more or less precisely expressed, in American codes ; ^ which, likewise, incline to treat lineal kindred, and brothers and sisters, more favorably than more remote collateral kindred in respect of representation. '2 Freem. 95; 3 Atk. 762, 763; -t See Mass. Gen. Stats, c. 91, § 5; Ambl. 191. Sweezey v. Willis, i Bradf. Sur. (N. Y.) ^ See local codes. 495 ; table in Appendi.\. ^ Wms. Exrs. 1509, 15 10. The Mas- ' The English cases extend this doc- sachusetts statute (Gen. Stats, c. 93) trine to posthumous brothers and sisters provides, by way of qualifying the dis- of the half blood. Watts v. Crooke, tribution among the next of kin in Show. P. C. 108 ; Burnet v. Mann, i equal degree, that when there are two Yes. Sen. 156; Wms. Exrs. 151 1. And or more collateral kindred in equal de- see Mass. Gen. Stats, c. 91, § 5. gree, but claiming through different *> 2 Yern. 168 ; Powers v. Littlewood, ancestors, those who claim through the i P. Wms. 595 ; Wms. E.xrs. i486, 151 2. nearest ancestor shall be preferred to ^2 Kent Com. 425 ; Parker v. Nims. those claiming through an ancestor who 2 N. H. 460 ; Porter e/. Askew, 11 (ji!l is more remote. & J. 346; Bigelow v. Morong, 103 639 § 504 EXECUTORS AND AHMIMSTRATORS. [I'ART V. It should always be borne in mind, that as husband and wife are not legally next of kin to one another, so distribution, and those other rights which pertain to kinship, cannot be predicated of a mere connection by marriage ; on the contrary, there must be common blood in the intestate and those claiming to be en- titled to share as kindred. And among kindred are three classes : those in the ascending line, those in the descending, and those in the collateral.' § 503- Distribution -where there is no Known Husband, Widow^ or Next of Kin. — Where the deceased intestate has left no hus- band, widow, or next of kin, the residue, after paying all debts, belongs, by English law, to the crown, as nltiviiis Jiaercs ; ^ and, under our American codes, the residue reverts or escheats in like manner to the State.^ But, while American policy appears to regard the State ofificial who may thus receive the balance as a sort of trustee for the benefit of those who may have lawful claims thereon,"* and in final default of such claimants, for the public, it is held in England that the crown shall take the res- idue personally and beneficially. Indeed, English sovereigns have been accustomed to grant such property to their own favor- ites by letters patent or otherwise, reserving, perhaps, one-tenth part for the royal chest ; ^ though the long pendency of admin- istration proceedings in chancery, under a bill in equity, may af- ford to absentees an ample opportunity to appear and assert their rights before such final distribution is awarded, § 504. Time and Method of Distribution. — The due Computa- tion of that balance which serves as the basis of a rightful dis- Mass. 287; Hatch 7\ Hatch, 21 Vt. ^ ^gg Mass. Gen. Stats, c. 95, §§ 12- 450; Adee v. Campbell, 79 N. Y. 52. 15; Parker v. Kuckens, 7 Allen, 509; And see further, as to children of de- Fuhrer v. State, 55 Ind. 150; Leland ceased brother, etc., Conant v. Kent, v. Kingsbury, 24 Pick. 315. 130 Mass. 178. * Mass. Gen. Stats, c. 95, §§ 12-15. ' Bouv. Diet. "Kindred." See, as ^ Wms. Exrs. 433, 434, 1515; 2 Bl. between brother and the grandchild of Com. 505, 506. The e.st at es of bastards, a deceased brother, Suckley, Matter of, as of persons having no kindred, passed 18 N. Y. vSupr. 344. And see table, /^j/. in Hke manner to the sovereign, by the ^ Megit V. Johnson, Dougl. 548 ; common law. Taylor v. Haygarth, 14 Sim. 8. 640 CHAP, v.] PAYMENT AND DISTRIBUTION OF THE RESIDUE, § 504 tribution is necessarily postponed to the lawful adjustment of debts due from the estate to its creditors ; and hence the post- ponement of distribution. The English statute of distributions directs that no distribution shall be made till after a year from the intestate's death, and that distributees shall give bond to indemnify the administrator in ratable proportion if lawful debts afterwards appear.' American statutes proceed upon the same general theory ; usually permitting, however, that the estate shall continue unsettled until the statute period for presenting claims (whether longer or shorter, and whether rightfully com- puted from the intestate's death or from the date of the admin- istrator's appointment) shall have expired.^ Upon a final settlement of the administration accounts, in American practice, distribution, if sought, should be granted.^ Distribution, whether total or partial, may be applied for by the representative or by distributees, as local statutes frequently provide, after a certain period reasonably long for ascertaining the true surplus, and before a final settlement of the estate ; a refunding bond being part of this proceeding, where the admin- istrator continues responsible for claims upon the estate.-* But it is usual to postpone such decree until the time has fully elapsed for settling the debts. A decree for partial distribution is provided in the practice of some States ; such decree being conclusive only as to the funds then distributable, and assets being reserved for further liabilities connected with the admin- istration. 5 Where the persons entitled are well known to the represen- tative, both as to legal right and identity, payment is usually made without the formality of procuring a decree of distribution ' Wms. Exrs. i486; stat. 22 & 23 " LiHy -, Stahl, 5 Ind. 447; Black- Car. II. c. 10, § 8. erby ^'. Holton, 5 Dana, 520 ; Richmond ^ A court has no jurisdiction to order v. Delay, 34 Miss. 83 ; Johnston v. Fort, a final distribution during the time that 30 Ala. 78 ; Edgar v. Shields, i Grant creditors may present claims under stat- (Pa.) 361 ; Hays v. Matlock, 27 Ind. 49. ute. 151 Mass. 595. Cf. 107 N. C. 168. And see Part VII., c. \, post. It is devastavit for the representative to ' Kline's Appeal, 86 Penn. St. 363 ; distribute before the debts are paid. Harrison t'. Meadors, 41 Ala. 274; Cur- Lewis V. Mason, 84 Va. 731. tis v. Brooks, 71 111. 125. 3 Pritchett's Estate, Re, 52 Cal. 94 ; Part VII., c. \,post. 41 641 § 504^ EXECUTORS AND ADMINISTRATORS, [PART V. from the court.' But where questions affecting such rights are pending, distribution should neither be made nor decreed. § 504^. The same Subject ; Decree of Distribution. — A decree of distribution should specify the distributees ; also the personal representative of any deceased distributee as the person to re- ceive the share. An order which in effect requires payment to the next of kin is erroneous and insufficient for protection.^ But an error in a decree of partial distribution may be cured on the next distribution. ^ An ex parte decree of distribution, which does not follow the statute, fails to protect.'' A decree is sometimes opened and amended upon a suitable state of facts.s An order of distribution obtained by fraud may be set aside, so long as rights are not confirmed by limitations.'' The errors or inequalities of a partial distribution may be rectified on a subsequent or final distribution. ^ And so too, should the representative's proper claims upon the fund, and all other equities be duly provided for, before a final division.** ' See Part VII., c. \,post. A decree ton, 2 B. Monr. 393; Fuhrer v. State, of distribution in a final settlement is 55 Ind. 150. But, if there be known inconclusive on a minor for whom no kindred, a public administrator should guardian ad litem was appointed. Con- distribute among them. Parker v. will V. Conwill, 61 Miss. 202. Money Kuckens, 7 Allen, 509; 56 Vt. 187. is sometimes paid into court for distri- ^ Grant v. Bodwell, 78 Me. 460. The bution on the settlement of the estate, local statute should be iollowed. No- 93 Ind. 173. But the practice in some tice, as to form and sufficiency, is within States is for the decree to issue to the the court's discretion. 170 Mass. 295. administrator, who procures the receipts ' Dickinson's Appeal, 54 Conn. 224. of all the distributees named, and then The court in this State is not precluded returns the full document to be filed at from acting unless the parties interested the probate registry. Where distrib- file a solemn document of division. lb. utees are known and their shares undis- ■* Shriver v. State, 65 Md. 278. puted the representative may pay them See as to the framing of a decree and credit the payments in his final ac- where the decedent had depo.sits in a count, which, when duly allowed, settles savings bank in trust for various par- the estate properly enough. 166 Mass. ties. 4 Dem. 24. 306. ' 4 Dem. 30. As to the public administrator's final * Leavens's Estate, 65 Wis. 440. deposit of unclaimed balance, see Mass. ' Yetter's Estate, 160 Penn. St. 506. Gen. Stats, c. 95 ; Leland v. Kingsbury, * See 141 N. Y. 21. 24 Pick. 315; Commonwealth v. Blan- 642 CHAP, v.] PAYMENT AND DISTRIBUTION OF THP: KF.SIDUK. § 506 § 505- Distribution where Real Estate has been sold to pay Debts. — Distribution applies, in general, to personalty alone ; real estate of the decedent descending to his heirs. The sur- plus of the proceeds of a sale of realty, after payment of debts, may be distributed among the heirs or those claiming under them.' § 506. Whether Distribution may be of Specific Chattels not reduced to Cash. — In order to distribute strictly under a decree of distribution, the reduction of the surplus to cash would seem to be necessary. But such a course must sometimes be highly disadvantageous, in these times, especially where the estate is a large one ; and it is preferable wherever the distributees can be brought into accord, to make a division specifically or in kind, save so far as a sale may have been necessary for the security and benefit of the estate in course of administration.^ Under all circumstances, however, distributees should be ecjually dealt with, and upon a just valuation of the prope'rty, and the administrator should stand impartial as among them.^ A fair ' Sears v. Mack, 2 Bradf. (N. Y.) 394 ; Part VI., post. 2 Evans v. Inglehart, 6 Gill & J. 171 ; Hester v. Hester, 3 Ired. Eq. 9 ; Reed's Estate, 82 Penn. St. 428. Local stat- utes sometimes provide for a specific distribution of personal property in cer- tain cases. Rose v. O'Brien, 50 Me. r88. If shares of specific property are not exactly equal, the balances may be made up in money. Williams v. Holmes, 9 Md. 281. Where those interested in the estate divide among themselves the effects of an intestate, the administrator has usually no cause of complaint. Weaver v. Roth, 105 Penn. St. 408. Local codes are found on this point ; but not so as to authorize distribution in kind, of choses in action or money rights, some of which are collectible and others are doubtful or desperate. 115 111. 83. As to compromising on such money rights, see 71 Ala. 258. ^ If, on final settlement of the admin- istrator's accounts, the assets are partly gold and partly currency, each distribu- tee should have his fair share of each kind. Lowry z/. Newsom, 51 Ala. 570. See Tilsen v. Haine, 27 La. Ann. 228. And, in general, distributees should be equally dealt with. Lowry v. Newsom, 51 Ala. 570. At the expiration of a specified time, the distributee may bring an action for his share against the administrator un- der the local act. 10 B. Mon. 62. But cf. Thornton v. Glover, 25 Miss. 132. Distributees are thus entitled to distri- bution upon tendering a refunding bond. 24 Miss. 150. As a general rule, a dis- tributee has the right to compel a distri- bution at any time after the lapse of the period limited for presenting and suing upon claims ; but the rights of creditors should be protected according to the exigency. 23 Miss. 134. An adminis- trator should not distribute nor suffer a decree of distribution to be entered. 643 § 507 EXECUTORS AND ADMINISTRATORS. [part transfer of assets, corporeal or incorporeal, which a beneficiary of the estate knowingly accei)ts as the equivalent of cash is to be regarded as an actual payment in cash.' § 507. Death of Distributee pending Distribution. — Descent is cast, and rights of distribution are vested, upon the death of the intestate ancestor or person whose estate is to be adminis- tered ; ^ hence the subsequent death of a distributee transfers his interest to his personal representative. regardless of claims of creditors brought to his notice which might reduce the surplus. Clayton v. Wardwell, 2 Bradf. I. If residuary parties are willing to take their share in personal assets, the representative should not convert into cash. 82 Penn. St. 42S. Distributees have, of course, no right to sue for and recover claims due their intestate's estate pending a settlement, for this is a fundamental right of the administrator. Kaminer v. Hope, 9 S. C. 253. And until distribution of an estate is made, the legal title to the assets remains in the representative, irrespective of a distributee's debts, no matter where the possession may be. Hence, shares of the distributees can- not be reached by garnishment pending the administration. Selman v. Milliken, 28 Ga. 366. But, after lapse of the time for presenting claims and a final settlement by the administrator, includ- ing the paj-ment of debts, and distribu- tion, the property divided among the distributees, or held by them in com- mon, may become liable for their re- spective debts, or be made available for their own benefit. As to their rights, after a final settlement by the adminis- trator, to sue upon an uncollected chose, see Humphreys z^. Keith, n Kan. 108; Pratt V. Pratt, 22 Minn. 148. And as to liability of the property corre.spond- ingly for their debts, see Brashear v. William-s, 10 Ala. 630. See also, as to the effect of a bona fide payment made to the next of kin before administration, Johnson v. Longmire, 39 Ala. 143; su- pra, § 120. In fact, the legal title to the personal property of a decedent vests in the administrator specially, and for the special purposes of collecting and preserving the assets, paying the debts, and distributing the surplus. As to the legal title of distributees, where there is no administration, and no neces- sity for one, see Andrews v. Brumfield, 32 Miss. 107. After an estate has been distributed, the distributees cannot treat the settle- ment as illegal or void, on account of an irregularity in the proceedings, with- out restoring, or offering to restore, what they have received under the settlement. McLeod v. Johnson, 28 Miss. 374. ' Hawthorne v. Beckwith, 89 Va. 786; Richardson Re, (1896) i Ch. 512. ^ If, therefore, the surviving widow of an intestate dies before the personal estate has been distributed, her share or surplus will devolve upon her own personal representatives. Wms. Exrs. 1526 ; Carth. 51, 52 ; McConico v. Can- non, 25 Ala. 462 ; Foster v. Fifield, 20 Pick. 67 ; Moore v. Gordon, 24 Iowa, 158; Kingsbury v. Scovill, 26 Conn. 349 ; Puckett v. James, 2 Humph. 565. Cf. Maxwell ?'. Craft, 32 Miss. 307. And so correspondingly with a surviv- ing husband or one next of kin to a deceased person entitled in like manner. As to the husband's death, pending 644 CHAP, v.] PAYMENT AND DISTRIBUTION OF TIIK RKSIDUK. § 508 § 50^- Distribution ; Refunding Bond, Contribution, etc. — A refunding bond should be taken by the administrator, for his own protection, from each distributee, wherever he makes volun- tary distribution, before creditors ' claims are barred, since other- wise he cannot require contribution if compelled to pay such claims, according to the rule of some States ; ' a rule announced, however, not without admitted exceptions.'' Where the ad- ministrator has sufficient funds for his own reimbursement, he cannot recover for making an excessive payment to a distributee ; and his negligence or default may debar him in other cases from procuring reimbursement ; though creditors might, on their own behalf, if not themselves at fault, pursue assets into the hands of the distributees.^ If the representative fails to take a re- funding bond from the next of kin where he pays before creditors are debarred from pursuing their claims, he makes himself per- sonally liable to the creditors, at all events, for the amount he settlement of his wife's estate, a cir- cuitous course was formerly taken in English practice. See Schoul. Hus. & Wife, § 415; Roosevelt v. Ellithorpe, 10 Paige, 415; Fielder v. Hanger, 3 Hagg. Ec. 770. And see § 483. Where any of the distributees of the estate have died, their legal representa- tives should be brought in before a final settlement of the estate is allowed in court. Hall v. Andrews, 17 Ala. 40. The case resembles that of a residuary legatee who dies before his surplus is ascertained ; the distributees of an in- testate estate being, as it were, residuary legatees under a will drawn up by the legislature for general emergencies. See Cooper v. Cooper, L. R. 7 H. L. 53. Where one of the distributees died before settlement and the administrator paid part of his share for the support of such distributee's family, he was al- lowed a credit in equity, where it was shown that creditors and others in in- terest did not suffer in consequence. 95 N. C. 265. Advances made by the administrator to the distributee will be so treated in case of such distributee's death before the time of distribution, and although he gave his note for such advance. Lyle v. Williams, 65 Wis. 231. See, further, 63 Cal. 520. ' Moore v. Lesueur, 38 Ala. 237 ; Musser v. Oliver, 21 Penn. St. 362; supra, § 506 ; 43 W. Va. 226. ^Alexander v. Fisher, 18 Ala. 374 ; 1 1 Ala. 264. Such refunding bonds are usually taken with reference to claims of creditors, and not by implication, so as to recover for an excess paid by way of distribution. State v. McAleer, 5 Ired. L. 632 ; Robinson v. Chairman, 8 Humph. 374 ; Simpson's Appeal, 109 Penn. St. 383. That the court has dis- cretion in requiring a refunding bond, see 98 Cal. 654. ^ Singleton v. Moore, Rice (S. C.) Ch. I ID; Saeger v. Wilson, 4 Watts & S. 501 ; Donnell v. Cook, 63 N. C. 227 ; Wms. Exis. 883, 1450, 1452, and Per- kins's note. And see supra as to pay- ments by executors (§ 491), which indi- cates that the equity rule is more liberal than that of the common law in such 645 § ^oSa EXECUTORS AND ADMINISTRATORS. [PART V. has distributed, and honest error will not shield him.' Local codes provide that the administrator need not distribute until the time has elapsed for ascertaining what the true balance above the debts shall be, and earlier distribution should not be expected by kindred unless they give the refunding bond. Generally speaking, no partial distribution will afford protec- tion to an executor or administrator unless he has the court's sanction.'' § 5o8<^r. Suit against Executor or Administrator for Neglect to Distribute, etc. — After sufficient time has elapsed and the sole duty of an executor is to pay the legacies, or of an administra- tor to make distribution, and he fails to do so, he is sometimes made liable to civil action for his breach of duty without wait- ing for an order of distribution by the probate court ; but no such suit can be maintained unless the facts furnish full justi- fication. ^ 'Jones's Appeal, 99 Penn. St. 124; ^ Clarke v. Sinks, 144 Mo. 448. 13 Phila. 350. But as to acting with Hence the safer course is to apply to due regard to the supposed rights of the probate court. Cf. appendix; creditors in such a case see Graves ?-. Schaub t. Griffin, 84 Md. 557 ; 79 Md. Spoon, 18 S. C. 386. 357. = 88 Md. 60, 62. 646 PART VI. GENERAL POWERS, DUTIES, AND LIABILITIES OF EXECUTORS AND ADMINISTRATORS AS TO REAL ESTATE. CHAPTER I. REPRESENTATIVE S TITLE AND AUTHORITY IN GENERAL. § 5^9- No Inherent Authority or Title as to Decedent's Real Estate. — As we have already seen, the real estate of a decedent descends at once to his heirs or devisees, and the personal rep- resentative has no inherent authority or title thereto under his appointment.' An administrator, more especially, takes neither estate, title, nor interest in the realty of his intestate.- Nor has an executor authority over real estate, unless the testator ex- pressly confers such power by his will ; ^ and, even though thus empowered, whether to sell or dispose of the decedent's land, or to lease it, or to mortgage it, or to invest, re-invest, or change investments of real estate, such power is confined to the methods and purposes therein expressed.'* If he has an interest of his ' Supra, §§ 212-214, and cases cited; title thereto of the deceased, save for Wms. Exrs. 650. As to what is real the benefit of creditors and payment of estate, and not personalty, in the case debts. Gladson v. Whitney, 9 Iowa, of manure, hop-poles, etc., see Fay v. 267 ; Crocker v. Smith, 32 Me. 244 ; Muzzey, 13 Gray, 53 ; Bishop f. Bishop, Spears Eq. 399. He cannot sue for II N. Y. 123. rents, income and profits of land where - U. S. Dig. 1st series. Executors and there are no debts to be paid. 108 Ala. Administrators, 1278; supra, §212; 105. Drinkwater v. Drinkwater, 4 Mass. 354 ; ^ Wms. Exrs. 650 ; Gregg v. Currier, Stearns v. Stearns, i Pick. 157; Wal- 36 N. H. 200. And see Place, Re, i bridge v. Day, 31 111. 379; Vance v. Redf. 276. Fisher, 10 Humph. 211 ; Gregg v. Cur- ■• i Sugd. Powers, xiZ ct seq., 6th ed. ; rier, 36 N. H. 200. An administrator James v. Bee.sly, 4 Redf. (N. Y.) 236; has nothing to do with real estate, or Wms. Exrs. 650, 654, 944, 951, notes by 647 § 509 EXECUTORS AND ADMINISTRATORS. [part VI. own in such land, his own deed can convey no more than his own interest.' Accordingly, an executor or administrator has no inherent authority to make leases of the real estate belonging to his de- cedent's estate.- Nor to grant an easement or right of way therein.^ Nor to bring ejectment/ or sue for trespass,^ where the right originates after the decedent's death. He has no in- herent power to sell the land : and his conveyance, invalid for want of power in him to make it, appears to leave the title in the heirs or devisees,^ while he cannot be charged with its value officially as assets of the estate.^ He cannot charge the de- cedent's real estate by his building contracts.*^ He cannot re- cover possession of the decedent's land by a suit at law.^ Nor are the proceeds of a sale of such land, made by order of a court having no competent jurisdiction, assets in his hands. '° Nor should he invest in land nor apply personal assets to repairs and improvements of the decedent's real estate, even though his decedent had agreed to make them." Nor should he make out- Perkins ; Hauck v. Stauffer, 28 Penn. St. 235 ; Thompson v. Schenck, 16 Ind. 194; Brown v. Kelsey, 2 Cush. 243; Hawley v. James, 16 Wend. 61. ' Fields V. Bush, 94 Ga. 664. ^Taylor Landl. & Ten. § 133; Bac- Abr. Leases, I. 7 ; 2 W. Bl. 692 ; Bank V. Dudley, 2 Pet. 492 ; 4 Bush, 27 ; Lee V. Lee, 74 N. C. 70. Otherwise, how- ever, as to dealing with leases granted to his decedent, which are chattels real. Sup7-a, § 353. But such a lease by an executor or administrator, though good at law, is voidable in equity, unless shown to be in the course of adminis- tration, and hence the concurrence of legatees or distributees may often be desirable. Statutes sometimes define the right. See Taylor Landl. & Ten. 134; 3 East, 120; 8 Sim. 217. ^ Hankins v. Kimball, 57 Ind. 42. * Wms. Exrs. 632, 792; 2 Root, 438. Cf. 23 Fla. 90. ' Aubuchon v. Lory, 23 Mo. 99. ^ King V. Whiton, 15 Wis. 684; Hankins v. Kimball, 57 Ind. 42 ; Thomp- son V. Gaillard, 3 Rich, 418 ; Fay v. Fay, I Cush. 105; 65 Conn. 161. ^ But, as to holding the representative and his sureties liable for misappropria- tion in case he assumes control, see Dix V. Morris, 66 Mo. 514. * 54 Kans. 770. ' Drinkwater v. Drinkwater, 4 Mass. 354- '° Pettit V. Pettit, 32 Ala. 288. " Cobb V. Muzzey, 13 Gray, 57. See I Bailey Ch. 23 ; 2 Hill Ch. 215 ; Clark V. Bettelheim, 144 Mo. 258. An admin- istrator who invests assets in land and takes the deed to himself, though liable, perhaps, to distributees in proceedings for devastavit, or so as to treat the land as assets, may nevertheless confer a legal title by transfer free of their claims upon the land. Richardson v. Mc- Lemore, 60 Miss. 315. See § 383. 648 CHAP. I.] TITLE, ETC., TO REAL ESTATE. § 5^0 lay to Strengthen the title.' Nor can he mortgage the dece- dent's lands.- But local codes may vary these rules.^ Even admitting that the personal representative may institute proceedings for setting aside a conveyance of land, which the decedent made in fraud of his creditors, this is for the benefit of creditors only ; as for heirs, they must institute proceedings in their own interest. ■♦ Except by attacking the decedent's own sale during his lifetime as in fraud of creditors, and bringing due proceedings, he cannot contract or sell, even for paying debts, land in which the decedent had no title when he died.* And of so little bearing is the fiduciary character of an adminis- trator usually upon the lands of his decedent, that he has been permitted to purchase at any such sale of real estate ; except a sale conducted by himself as administrator, where, for instance, the personalty was insufficient to pay debts.^ On the other hand, an administrator's purchase, whether by himself or another, at his own sale, is voidable at the election of the heirs or devisees. ? And where the fiduciary is charged with the sale of lands to pay debts, he ought not to purchase such lands for himself on an execution sale against the decedent.^ §510. Rule where Representative collects Rents, manages, etc. — If the representative takes possession of the decedent's real estate, and collects rents, he is generally understood to hold the money in trust for the devisees or heirs ; and to such parties he should account justly for his management, according to their respective interests.^ Authority may be conferred and * Brackett v. Tillotson, 4 N. H. 208. * Richards v. Sweetland, 6 Cush. Where the administrator is guardian of 324, /cr Metcalf, J. See also Sherman the heir, his management of real estate 7'. Dodge, 28 Vt. 26 ; Ford v. Exempt is on the guardianship account. Fo- Fire Co., 50 Cal. 299; §§ 220, 252. teaux V. Lepage, 6 Iowa, 123. ' 121 N. C. 190. See § 213. ^ Black V. Dressell, 20 Kan. 153; *" Dillinger z'. Kelly, 84 Mo. 561. Smith V. Hutchinson, 108 111. 662; 162 ' And this even though the probate 111. 232. Nor rescind executory con- court confirmed the sale. McMillan v. tract for purchase of land. Cotham z'. Rushing, 80 Ala. 402. See next chapter; Britt, 10 Heisk. 469. And see 151 N. 142 N. Y. 484; § 358. Y. 204. ^ Marshall v. Carson, 38 N. J. Eq. 250, ^ See c. 2, post. See statute as to and cases cited, making reasonable repairs, I ID Cal. 494. "^ Supra, § 213, and cases cited; 649 § 5IO EXECUTORS AND ADMINISTRATORS. [PART VI. revoked by heirs or devisees for this purpose,' and the rep- resentative who collects without their authority is liable to them.^ Under the authority conferred by a will, again, the executor may, of course, manage his testator's real estate ; and, if the will orders a special disposition of rents, issues, and profits, he should comply with its directions.^ In some American States, as we have seen, liberal provision is made for the management of a decedent's real estate by his personal representative, during the settlement of the estate ; ^ which course may often be convenient, even though the personal assets be ample for the claims pre- sented. But the representative, in order to justify himself in thus managing the decedent's real estate, should bring himself within the provisions of the statute, or the terms of the will under which he acts, or show consent of the parties interested ; which consent may be presumed from their conduct. ^ He must also Taylor Landl. & Ten. § 390; Palmer ?•. Palmer, 13 Gray, 328 ; Kimball v. Sum- ner, 62 Me. 309; 173 111. 368. Such matters, including taxes assessed on the land since the owner's death, insurance, repairs, and improvements, do not be- long properly to the accounts of ad- ministration. Lucy V. Lucy, 55 N. H. 9; Kimball v. Sumner, 62 Me. 305; §512/^. ^ Supra, § 212; Griswold v. Chand- ler, 5 N. H. 492. ^ Even though he uses the money as assets to pay debts of the estate. Con- ger V. At wood, 28 Ohio St. 134. ^ Jones's Appeal, 3 Grant, 250. * U. S. Digest, 1st series. Executors and Administrators, 1272, 1278; 15 Cal. 259 ; Kline v. Moulton, 1 1 Mich. 370 ; McClead v. Davis, 83 Ind. 263 ; supra, § 213 and cases cited; Flood v. Pilgrim, 32 Wis. 377. And as to work- ing plantations, in various Southern States there is similar legislation. 40 Miss. 71 1, 760 ; Henderson v. .Simmons, 33 Ala. 291 ; 51 Ga. 647 ; Johnson v. Parnell, 60 Ga. 66i. So as to a vine- yard, 118 Cal. 462. By virtue of such local legislation in the United States, the administrator contrary to general law (see § 509) may lease real property belonging to the estate during the period of administration. 66 Cal. 476. 5 Billingslea v. Young, 33 Miss. 95. Special exception is sometimes made in favor of the representative's authority, where there is no heir or devisee pres- ent to take possession. Hendrix v. Hendrix, 65 Ind. 329. As to collection of rents by a special or temporary ad- ministrator, see §§ 134, 135, 414. An executor has no right, under a mere power to sell contained in the will, to collect and apply rents for administration against the wishes of the residuary legatee. He can only pur- sue the terms of his power. Watt's Estate, 168 Penn. St. 431. And see 168 111. 155. Nor is an imperfect power available. loi N. C. 218. Power to mortgage is sometimes given expre.ssly by wiH. See Ames v. Holdesbaum, 44 Fed. 224. 650 CHAP. I.] TITLE, ETC., TO REAL ESTATE. § 5 I I use due diligence in all such management ; ' and the same gen- eral rule as to honor and diligence applies as in the case of per- sonalty.^ § 5^1- Sale of Real Estate to pay Debts, Legacies, etc. — In the English practice, a power to sell lands, given to the exec- utor under a will, is fully sustained. And, notwithstanding doubts formerly entertained, the English chancery has gone so far, in cases decided during the latter half of this century, as to imply a power of sale in executors from a charge of debts, although the estate was devised to others.^ That rule is made clear by statute 22 & 23 Vict, c, 35. But, so far is this from being regarded as an inherent right in the representative, that an administrator is recently held to have no such power to sell a decedent's real estate for payment of debts, either under the general doctrines of chancery or under the statute.'* Modern English legislation, nevertheless, renders the lands of a deceased person, not charged with his debts, liable as assets for payment of the same, under the administration of courts of equity ; not by way of specifically charging the real assets, but so as to make the heirs or devisees personally liable to the extent of their respective interests. 5 The general principle is, that cred- itors of a decedent can have no recourse to his real estate for satisfaction, unless the personalty proves insufficient. In this country, the sale of lands to pay debts of the decedent whose personalty is found deficient, is regulated quite extensively by statutes, in the nature of a probate license to sell.^ With the real estate, or its title, it is admitted that the personal rep- resentative has nothing to do, by virtue of his office, unless the " Hall's Estate, 70 Vt. 458. an administrator with will annexed has ^ 96 Cal. 522 ; 1 1 1 N. C. 297 ; §§ 314, this power. lb. 315, 382. 5 See statutes i Wm. IV. c. 47, and ' Robinson v. Lowater, 5 De G. M. 3 & 4 Wm. IV. c. 104, cited Wms. & G. 272; 21 Beav. 337 ; 37 Beav. 553. Exrs. 1688-1692; i Mac. & G. 456; 22 In Sugden Powers, 14th Eng. ed. 662, Beav. 21 ; Richardson v. Horton, 7 note, this new rule is regarded unfavor- Beav. 112; Dyson He, (1896) 2 Ch. ably by the author as introducing con- 720. And see Wms. Exrs. 1688-1692, siderable difficulty in titles. And see as to the proper procedure in equity Lewin Trusts, 340. under this act. * Clay, He, 29 W. R. 5. Not even '' See next chapter. 651 §512 EXECUTORS AND ADMINISTRATORS. [PART VI. personal assets prove insufficient for the purposes of his trust ; except under the special qualifications already set forth, by local statute or otherwise." Sales of land in conformity with a will, in order to provide legacies, where there is a deficiency in personal assets, are, how- ever, permitted both in English and American chancery ; the presumption being that a testator intends the legacies given by his will to be a charge on his residuary real as well as his per- sonal estate.- In general, an executor who sells or conveys land under an appropriate power does not make himself person- ally liable for failure of the title. ^ They who purchase land of a decedent from his heirs or lega- tees, before the full administration and settlement of the estate take the incumbrance of a possible sale for payment of debts and the expenses of administration, unless otherwise secured.'* § 5 I 2. Ezoneratiou of Real Estate by the Personal ; Marshalling Assets ; Incumbrance, etc. — The exoneration of real estate by the personal is an important doctrine of equity jurisprudence in administering estates ; the rule being in full conformity with our general policy, that wherever the intention of a testator does not clearly conflict with such an interpretation, real estate shall be applied to debts, legacies, and charges, only so far as personal assets, the primary fund, prove insufficient, notwith- standing mere directions in the will to sell or mortgage for such purposes.5 Marshalling the assets in favor of creditors and ' See supra, § 213; 5 Whart. 228, wine v. Convine, 24 N. J. Eq. 579; 31 350. Any sui-plus arising from such a N. J.Eq. 427. The right apart from stat- sale though commonly distributable as ute is denied in 4 Del. Ch. 9. See Mass. personalty, should be considered as im- Gen. Stats, c. 102, § 19 ; Gibbens v. Cur- pressed by the testator's intent in case tis, 8 Gray, 392. Where the will gives to of a devise. 181 Penn. St. 551. the executors a power to sell the land The general principle is, that chan- in case of a deficiency of assets, they eery has no inherent jurisdiction in such should sell under the power and not matters, except for enforcing some under the statute. 5 Dem. (N. Y.) 14, specific Hen or right in the land. Wms. 251. F^xrs. 650; supra, § 212, and cases ' Twitty v. Lovelace, 97 N. C. 54. cited. And see § 515. '^ Greville v. Browne, 7 H. L. Cas. -i Flood w. Strong, 108 Mich. 561. 689; Bench v. Biles, 4 Madd. 187; ' Walker z/. I lardwicke, i My. & K. Poulson V. Johnson, 2 Stew. 529; Cor- 396; i Sim. 84; Van Vechten v. Kea- 652 CHAP. 1. TITLE, ETC., TO REAL ESTATE. §512^ legatees, is the chancery method of causing the whole property, real and personal, of a decedent, to be so applied among claim- ants, that all equities shall be preserved according to due order.' Where land is devised by decedent, with condition precedent or other incumbrance charging it with the payment of his gen- eral or specific debts, the incumbrance must be fulfilled accord- ingly.^ § 5 I 2a. Dealing with Mortgages on Real Estate. — Where, af- ter the death of a beneficiary under a will, the executor, in order to save the expense of a foreclosure, takes a conv-eyance of the premises covered by a mortgage belonging to the estate. tor, 63 N. Y. 52; Wms. Exrs. 1705. As this rule, after all, is subject to proper expressions of testamentary in- tention, numerous subtle refinements are found in the decisions which inter- pret this intention. See Wms. Exrs. 1 694-1 7 1 2, and Perkins's notes, where this question is examined at length. American cases admit the general maxims of exoneration ; and hence the rule, supported by numerous American, as well as English, equity decisions, that debts contracted by a testator, although secured by mortgage, are to be paid presumably out of his personal property to the exoneration of his real estate. Supra, § 430 ; Sutherland v. Harrison, 86 111. 363 ; Plimpton v. Fuller, II Allen, 140; Towle v. Swasey, 106 Mass. 100; McLenahan v. Mc- Lenahan, 3 C. E. Green, 101 ; 2 Salk. 449 ; Howel v. Price, i P. Wms. 292 ; Wms. Exrs. 1 694-1 697, and cases cited. Even as to personal assets from a foreign jurisdiction. See 90 Tex. 245. But this is an equitable doctrine with many reservations, and the late English stats. 17 & 18 Vict. c. 113, and 30 & 31 Vict. c. 69, pronounce against such a rule of interpretation. The New York statutes likewise discountenance such presumptions; and, in that State, a mortgage debt i.s primarily charged upon the real estate mortgaged, unless a will clearly directs otherwise ; which seems the fairer doctrine on this subject. Waldron v. Waldron, 4 Bradf. Sur. 114; Van Vechten v. Keator, 63 N. Y. 52. In some States real estate taxes due at testator's death must be paid out of the personalty. § 428. ' See Wms. Exrs. 17 13-1720, and numerous cases cited ; i Story Eq. Jur. § 558 et seq. In the United States, gen- erally, by statute, all the property of the deceased, real and personal, is, in equity, to be applied as follows, when no statute or express will prescribes a different or- der of application, exhausting all the as- sets of each class before proceeding to the next: (i) The general personal es- tate. (2) Real estate specially devised for the payment of debts. (3) Real es- tate descended. (4) Real estate devised, though charged. 4 Kent Com. 421. And see stipra, § 490; 2 Jarm. Wills, 588-590; Wms. Exrs. 1693, Perkins's note; Perry Trusts, § 566. While creditors are not confined to this gen- eral order, legal representatives, heirs, legatees, and devisees have rights for relief against each other in case the true order is disarranged. Perry Trusts, §566. See 115 N. C. 366. 653 §512/^ EXECUTORS AND ADMINISTRATORS. [PART VI. he must account therefor as personalty to the administrator of such deceased beneficiary ; but otherwise as to lands acquired under foreclosure and bought in to protect the estate before such beneficiary's death." Subject to exceptions founded in covenant or testamentary intention, the rule is, that if the deceased was not liable person- ally to the mortgagee or other lienholder for the debt secured upon the land, the personal property cannot be applied to its satis- faction ; he holds the land subject to the lien, but is not liable himself, nor is his estate other than the land liable for the debt.^ But it is otherwise where the decedent contracted the mortgage debt or actually assumed an incumbrance already existing.^ § 5 I 2b. Charges and Allo'^anees 'vtrith reference to Real Estate ; Reimbursement, etc. — Dealings with real estate so far as ap- propriate, may justify special charges and allowances or a higher rate of commissions to the fiduciary than is usual in administra- tion/ He may thus be allowed for a salary paid a collecting agent; 5 for a broker's fee in procuring a sale;^ and for taxes, water rates, repairs, or insurance, upon the principles already discussed. 7 Where realty of the decedent has been lawfully converted into personalty by a sale, the proceeds are in the hands of the executor or administrator for all purposes of administration ; and before distributing this fund to the residuary legatees or distributees, the representative may pay the balance of the de- cedent's debts, or, what is the same thing, may reimburse him- self for all legal debts paid or incurred in excess of the personal estate that came to his hands. ^"^ ' Barclay v. Cooper, 42 N. J. Eq. 516. have observed that taxes and water rates See supra, § 214. chargeable on land before an owner's ^ Minter v. Burnett, 90 Tex. 245, death may well be paid by his executor 248, and cases cited. or administrator, but not those usually 3 lb. which are charged after his death. * See Part VII., c. 2. Supra, § 428, and cases cited in notes; 5 Dey V. Codman, 39 N. J. Eq. 258. Lucy v. Lucy, 55 N. H. 9 ; Kimball v. ^ Dey V. Codman, supra. And see Sumner, 62 Me. 305. So as to insur- Stone V. Strong, 42 Ohio St. 53; 121 ance. lb. Cal. 609. ' Bolton Re, 146 N. Y. 257. 'See supra, §§212, 213, 428. We 654 CHAP. II.] STATUTE SALES, ETC., OF REAL ESTATE. §513 CHAPTER II. STATUTE SALES OR MORTGAGES UNDER JUDICIAL LICENSE. § 5 1 3- Modern Legislation permitting Sales under a Judicial License. — In the United States are various modern enactments, of strictly local application, by virtue of which executors and ad- ministrators, like other fiduciaries, may be judicially licensed to sell real estate in special cases, where the welfare of interested parties requires it, and they have no adequate authority other- wise. In the present instance the usual object of a license is, in the course of administration, to pay debts and legacies, where the personal estate of the deceased person proves insufficient for such purposes," including the reasonable costs and expenses of settling the estate.^ In American practice the probate court is usually invested with an appropriate statute jurisdiction ; for such relief the executor or administrator presents his petition for a license, representing the facts essential to the case ; and the license being granted, its terms must be strictly pursued. In the execution of a statute power like this, the terms of the legislative grant, with its limitations, should, like the power con- ferred by a testator under his will, be carefully observed by the court which issues the license, and by the representative who sells under it.^ And if the statute made can be pursued with advantage for such purposes, equity should take no jurisdiction of the case,"* nor interfere with the sale made in proper pursu- ance of the license.s ' Recent statutes, however, authorize heirs. Mass. Pub. .Stats, c. 131, § 11. sales and mortgages by Hcense of a As to sales by foreign representatives, court for other purposes, as, for instance, see Mass. Pub. Stats, c. 134, § 16. to discharge contingent interests in ^ See 40 N. J. Eq. 173. an estate. See Mass. Pub. Stats, c. 142. ^ Mass. Pub. Stats, c. 134 ; 67 Conn. Or to sell or release a cemetery lot. lb. i. Proceedings are not, under some Or where the power under a will was codes, confined to the probate court. 63 dependent upon the consent of a person Conn. 332. since deceased. lb. Or, under certain ^ Springfield v. Hurt, 15 Fed. R. 307. circumstances, where there are no known ' Johnson v. Holliday, 68 Ga. 81. 655 §514 EXECUTORS AND ADMINISTRATORS. [PART VI. § 5 1 4- Incense restricted to such Land as may be needful ; Rights of Heirs and Devisees respected ; Qualifications of Rule, etc. — A license to sell land, for the payment of debts and legacies, is usually restricted to the actual necessities of the estate upon the exhaustion of personal assets ; though such statutes provide that, where, by a partial sale of land, the residue or some spe- cific part would be greatly injured, the court may license a sale of all or of such part as may appear to be most for the interest of all concerned.' Nor are the rights of heirs and devisees to be ignored ; but they should have due notice of the petition, and opportunity to avert the necessity of a sale ; as, perhaps, by making up the deficiency themselves. But, by our legislative policy, real estate descends to heirs, or goes to devisees, subject to administration and the due settlement of debts and legacies, and this liability continues against not only such parties, but purchasers from them, until the administration is closed ; ^ and where there exist lawful claims and insufficient personal assets to meet them, it is the duty of the representative to apply for a license, and of the court to grant it.^ Until the will is proved or letters of administration are granted, ' Mass. Pub. Stats, c. 134; 90 N. C. consisting of a farm, an administrator 551. The orphans' court, as such stat- with will annexed was allowed to sell utes usually run, cannot order to be sold the land under statute license for pay- for debts an equitable interest of the de- ment of legacies. And see § 407. But cedent in land under a contract of sale, an executor and residuary legatee who Ilendrick.son v. Hendrickson, 41 N.J. has given bond to pay debts and legacies Eq. 376. cannot be licensed to sell land. 133 But jurisdiction to grant a license ex- Mass. 447 ; § 138. A sale or mortgage isting, the boia fide purchaser's title is by heirs or devisees, before administra- not to be affected by collateral facts, tion has proceeded far enough to settle which, if known to the court, might or bar out claims, leaves the land have prevented the license from being meanwhile with a sort of cloud upon granted. the title; but after administration has ^ State 7'. Probate Court, 25 Minn. 22. been fairly completed, such sale or ^ Whether a surviving spouse's inter- mortgage would be practically clear of e-^it in the decedent's real estate can thus the incumbrance. An administrator be .sold, see 107 Ind. 121. A mere re- cannot sell the land of his intestate ver.sionary interest in expectancy cannot while it is held adversely by another, be, unless statute specifies. 1 27 Ind. without proceedings for possession. 68 332. Ga. 81. And see 67 Ala. 173; 51 Mich. See Smith v. Well.s, 134 Mass. 11, 360. There may be a sale at the in where, after a residuary legatee's death stance of an administrator de bonis non. who was also executor, the only property 83 Iiul. 411 ; 59 Tex. 172. 656 CHAP. II.] STATUTK .SALES, ETC., OF REAL ESTATi; § 515 the court is without jurisdiction to order a sale of land in aid of assets.' But after this jurisdiction attaches, application should be made for license to sell within a reasonable time after the condition of the estate can be ascertained ; nor should the court on the other hand delay its permission to sell upon any hypothet- ical regard for personal assets which are practically unavailable for an adjustment as promptly as creditors of an estate have usually the right to expect.^ Heirs and devisees cannot prevent a license from issuing in a suitable case^ on the representation of the fiduciary, though they might save the land, perhaps, if no other urgency existed, by averting the necessity for a sale, §515. Legislative Provisions as to Sale ; Essentials of a Pur- chaser's Title. — The local statutes provide in detail the method of procuring a license to sell, and of acting under it,"* Any sur- ' Whitesides v. Barber, 24 S. C. 373. ^ A petition for a license was denied where the creditors had been culpably negligent in applying for the appoint- ment of an administrator. 63 N. H. 29. And see as to long delay justifying an injunction against the sale, 86 Mo. 253. See also 60 Conn, (y-^^ as to wasted personalty. 375 Ala. 335. *■ American statutes have usually the following points in common: (i) an application to the court, upon which the license is granted; (2) a special bond covering such proceeds of the sale as may be reahzed; (3) the formal sale of the land, usually at public auction ; (4) the execution of a deed with proper recitals to the purchasers, covenanting that the representative's sale has been legal and upon due authority; (5) a proper application of the proceeds aris- ing from the sale. As to warranty, the bona fides of a sale, the right of a repre- sentative to purchase, etc., the maxims set forth, supra, § 361, as to sales of personal property, have here a corre- sponding application. See U. S. Dig. 1st series, Executors and Administra- 42 65 tors, 1 409-1 65 2 ; local codes and de- cisions; 2 Sugd. Vend. & P. 8th Am. ed. 714, note; Wms. Exrs. 650, and Perkins's notes. A sale may be ad- journed like other such sales. 41 N. J. Eq. 515. But if the representative un- reasonably delays availing himself of his license, recourse should be had to the court which issued the license. 105 Penn. St. 315. Confirmation refused by the court where the price was grossly inadequate though the sale was fairly conducted in other respects. 80 Va. 695. Some codes require confirmation, others do not. A sale and deed by an administrator who acts under a void appointment are void. Allen v. Kellam, 69 Ala. 442 ; § 160; 99 Mich. 590. A private sale is void where a public sale is ordered, no Cal 579 The doctrine of caveat e7nptor applies to such sales, and the purchaser cannot renounce his bid or repudiate and get back his purchase-money, because of defective title, in the absence of any fraud by the executor or administrator. Tilley v. Bridges, 105 111. 336; Jones z. Warnock, 67 Ga. 484 ; 67 Ala. 508. Or 7 § 515 EXECUTORS AND ADMINISTRATORS. [PART VI. plus proceeds which may remain, after satisfying the purposes of the sale, belong to the heirs or devisees, as though impressed with the original character of the property. As to the essen- tials of a purchaser's title, the terms of the statute must furnish th.c guide ; and while merely incidental irregularities may be cured by the completion or confirmation of the sale, there must have been jurisdiction in the court, and a substantial compliance with the fundamental requirements of the statute, both in grant- ing the license and in pursuing it.' The representative warrants nothing in the title of the land ; nor is it for him to remove in- cumbrances ; - and even should he thus covenant he will not bind the estate but himself.^ even, as it is held, where the fiduciary fraudulently asserted that there was no incumbrance. Riley v. Kepler, 94 Ind. 308. One buys subj ect to any outstand- ing agreement between decedent and a third party, which complies with the fomialities of law. Shup v. Calvert, 174 111. 500. The purchaser's title, as against heir or devisee, dates from the sale or the court's confirmation of the sale, or the execution of the conveyance, according to the intendment of the local statute. In some States the fiduciary executes his own conveyance, conformably to the terms of sale; in other States, the con- veyance is executed by order of the court. ' Local decisions in construction of local statutes will afford to the practi- tioner the true rules of guidance. The main question is one of statute interpre- tation : as to what provisions in fact shall be regarded as imperative, and what as merely directory. The disposi- tion is to regard an infirm sale as void- able at the election of those injured by it, rather than to pronounce it utterly null and void, where there was jurisdic- tion and all statute provisions plainly imperative were followed. On the ques- tion of confirmation of the sale only those questions which the statute treats as material can be considered by the court. ^ Supra, §212; Le Moyne v. Quimby, 70 111. 399 ; Ives V. Ashley, 97 Mass. 198 ; 2 Sugd. V. & P. 687, note. ^ Hale V. Marquette, 69 Iowa, 377. Where an administrator sold land with- out leave of court and applied the pur- chase-money to the payment of debts, the purchaser was subrogated to the rights of the creditors who had been thus paid, but no further lien was al- lowed him. Duncan v. Gainey, 108 Ind. 579. After long lapse of time from the sale under a license, every reasonable intend- ment will be resorted to, to uphold the regularity of the proceedings. Starr v. Brewer, 58 Vt. 24. An action to set aside such a sale as fraudulent and void and to compel the fiduciary to perform a trust charged on the land is a matter of equity jurisdiction. Caldwell v. Cald- well, 45 Ohio St. 512. Formal defects cured by retrospective legislation. 66 Iowa, 552. Under the Ohio statute, the costs and expenses of the sale of in- cumbered real estate take precedence of mortgages and other liens. 42 Ohio St. 53- As to the adjustment of assessed taxes, see Fessenden's Appeal, 77 Me. 98. 658 CHAP. II.] STATUTE SALES, ETC., OF REAL ESTATK. § S'/ § 515^- "^^^ same Subject; Principal and Ancillary Jurisdic- tions. — It is no objection to an order for the statutory sale of real estate in one State to pay debts, that there was personal property in the State of principal administration sufficient for their payment ; for courts and creditors of the local site are not compelled to forego thus their just advantage.' § 5 1 6. Judicial License to Mortgage Real Estate^f or Certain Pur- poses. — In connection with the payment of debts, legacies, and charges, or for other stated purposes, a personal represent- ative may, as some American statutes provide, be licensed to mortgage real estate of his decedent.^ But the statute should be explicit, for the right to sell does not imply the right to mort- gage the realty ; ^ nor upon an application for a license to sell should a license to mortgage be granted.'' § 5 I 7- Levy of Execution obtained against the Representative. — In some States, lands may be subjected to the payment of claims against the estate, by levying thereon an execution ob- tained against the personal representatives ' Lawrence's Appeal, 49 Conn. 411. of probate, sells and conveys an equity An executor before selling ought to of redemption in lands whereof he is make sure that he has complied with the seized of the unincumbered fee, nothing /ex rei slice as to probate of the will, passes by his deed. Bradley j'. Simonds, 60 Tex. 353. Sometimes a represent- 61 N. H. 369. But a mortgagor's equity ative who pays debts of the estate, may of redemption is liable to sale ; his lands fairly be subrogated to the rights of the after his death may be sold subject to creditors, and have land sold for his the incumbrances he created. 67 Ala. reimbursement. Denton v. Tyson, 118 508. N. C. 542. But a sale of land for the * 145 Ind. 281. payment of debts whose lien under the If an executor has authority to mort- local statute has expired, is a nullity, gage real e.state under an express power 178 Penn. St. 245. contained in the will, he may execute a ^ Mass. Pub. Stats, c. 134, §§ 19, 20. mortgage in conformity, without procur- These statutes are quite strict in expres- ing an order from the court ; and the .sion, and rarely apply in favor of a gen- lien of such a mortgage will be benefi- eral administrator; the license to sell cially upheld. Iowa Co. z'. Holdenbaum, enabling him sufficiently to discharge 86 Iowa, i. his official functions. ' 4 Allen, 417 ; 5 Watts, 367 ; 14 Me. ^ See 1 14 Penn. St. 618 ; 162 111. 232 ; 320. But that course is not universally Aliens. Ruddell, 51 S. C. 366. Ifanad- permitted in this country. See 16 111. ministrator, under a license from a judge 318; Wms. Exrs. 651, Perkins's note. 659 PART VII. ACCOUNTING AND ALLOWANCES. CHAPTER I. ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 5^8- Obligation to keep Accounts; Equitable Jurisdiction in England. — An executor or administrator is bound to keep clear, distinct, and accurate accounts of his management of the estate committed to him, like any trustee, which accounts ought in some way to be open to the inspection of persons interested in the estate.' Upon the analogies of trusteeship, English courts of equity long exercised a jurisdiction over such matters, while the powers of spiritual tribunals appeared inadequate either for compelling the personal representative to administer the estate or to disclose the course of his dealings with it. Among the various functions of chancery, therefore, has been that of enter- taining a bill of discovery against the personal representative, and forcing him to set forth an account of the assets and the manner in which he has applied them.^ Upon the admitted justice and policy of such coercion, and the confessed inadequacy of all other tribunals to apply it, the lord chancellors firmly rested their authority. Nor did they defer to the ordinary himself in these proceedings ; for a bill might be brought in chancery, for the discovery of assets, before a will had been proved in the spiritual courts, and, indeed, while probate litigation was pend- ing ; they did not deem it needful to wait until an executor had received his letters testamentary, provided a trust of some sort 'Freeman v. Fairlee, 3 Mer. 43; ^Howard ?/. Howard, i Vern. 134; Perry Trusts, §821; Rhett v. Mason, Brooks v. Oliver, Ambl. 406; Wms. 18 Gratt. 541. Exrs. 2005, 2006; Story Kq. Jur. § 534. 660 CHAP. 1.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. §519 could be alleged and proved against him ; and even though an administrator's accounts had been passed and distribution ordered in the ecclesiastical forum, chancery might at discretion re- investigate and direct an accounting de novo.' § 519- The same Subject; Creditors' Bills, etc.; English Prac- tice. — Proceedings of this character were usually brought by what was known as a creditors' bill. One or more creditors of the estate would file a bill in chancery on behalf of themselves and all others who might be brought in under the decree, with the intent of preventing any undue preferences by the executor or administrator in the payment of claims, and causing all the assets to be brought in and appropriated in a due course of settlement.^ If assets were admitted by the representative, and the petitioner's debt proved, immediate payment therefor was ordered ; ^ otherwise, a general account of the estate, and all debts and claims upon it, was taken against the executor or administrator, and an appropriation of the fund directed accord- ingly.'* As one creditor might thus institute proceedings which would bring in all the other creditors besides, so one or more legatees or distributees might, on behalf of themselves and all others similarly concerned, invoke the aid of chancery with cor- responding effect. 5 And yet, complicated and costly as might be the process for working out such results, none were conclu- sively bound by the final decree, who had not been brought within the scope of the suit ; and absent creditors, legatees, or distributees, who had been guilty of no laches in failing to respond and becoming parties to the bill in equity, might afterwards as- sert their claims, not, indeed, against the executor or admin- istrator himself, but for contribution from the creditors, legatees, ' 2 Vern. 47, 49 ; Phipps v. Steward, Coope 7/. Carter, 2 De G. M. & G. I Atk. 285; 2 Chanc. Cas. 198. Some 292. wilful neglect or default with respect to ^ See (•?.'/■;-«, § 437. assets was usually, however, to be al- ^ Woodgate v. Field, 2 Hare, 211. leged and shown, as the ground of "• Wms. Exrs. 2007 ; i Russ. & My. invoking chancery remedies in cases of 347. this kind. Wms. Exrs. 2006, note ; ^ i\, 661 § 519 EXECUTORS AND ADMINISTRATORS. [PART VII. or distributees, who had obtained at much cost what they had supposed their own.' The natural tendency of all this must have been, to make practical waste of the assets, while theoretically assuming to save them ; to bury the better part of an estate in a wholesale litigation, lest one should be preferred. Under EngHsh enact- ments during the reign of Victoria, some of the most serious objections to these prolix and costly proceedings have been re- moved ; the creditor, legatee, or distributee who petitions, has now become, in a measure, the master of his own suit, pending a decree, and need not serve the others in interest : chancery exercises authority with apter discretion ; and a suit may more readily terminate, as such suits often do, in the settlement or compromise of the petitioner's individual demand, the proceed- ings for administration and a full account in chancery being consequently dropped.- Nevertheless, the English equity courts are still much exercised with creditors' bills and suits for admin- istration ; ^ and, as incidental thereto, the taxation of costs * ap- ' David V. Frowd, i My. & K. 200 ; Wms. Exrs. 1450, 2008. Members of a class only contingently entitled to a ben- efit under the vnW cannot maintain an administration suit. Clowes v. Hilliard, 25 W. R. 224. 2 Stats. 15 & 16 Vict. c. 86; 22 & 23 Vict. c. 35; 2 Hare, 213; Wms. Exrs. 2008 ef seq. See also equitable reme- dies, post. And see Nayler v. Blount, 27 W. R. 865 ; Laming v. Gee, 27 W. R. 227 ; WoUaston v. Wollaston, L. R. 7 Ch. D. 58. 3 In Wms. Exrs. 2008 ct seq., the sub ject will be found discussed at length, with numerous citations. Where an account of assets is thus sued for, the personal representative of a former rep- resentative of the estate is properly joined as a co-defendant with the repre- sentative then in office. Wms. Exrs. 2014; Holland v. Prior, i My. & K. 237. And as to co-executors, see L. R. 10 Ch. 4G4. The suit may be brought still on behalf of other creditors, etc. 66 Eyre v. Cox, 24 W. R. 317. And, under some circumstances, must be. 24 W. R. 269. " See, e.g., among very recently re- ported English cases, involving ques- tions of costs, etc., L. R. 10 Ch. D. 468 ; L. R. 7 Ch. D. ZZ^ 176; 26 W. R. 165; 29 W. R. 420, 821 ; Moore v. Dixon, L. R. 15 Ch. D. 566. And as to award- ing costs where executors had distrib- uted to wrong parties and returned incorrect accounts, etc., see 25 W. R. 161 ; also 24 W. R. 51, as to his error or wilful mistake. Where it is probable that the estate will prove insolvent, the judgment in a creditor's action should contain provision for that emergency. 44 L. T. 547. Costs of an administra- tion suit are sometimes payable out of a particular fund designated by the will. 44 L. T. 499 ; Sharp v. Lush, L. R. 10 Ch. D. 40, 468; Penny v. Penny, L. R. II Ch. D. 440. Interrogatories may be put to the defendant executor as to the accounts. 44 L. T. 547. 2 CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 5 20 pears to be an absorbing cause of dispute. And, after all, though one may get his debt or legacy paid, he cannot readily obtain an inspection of the administration accounts. § 5 20. The same Subject ; Creditors' Bills, etc., in American Practice. — In various instances, few of which are very recent, the equity courts of American States have entertained bills filed by creditors and others in interest, who seek an accounting from the executor or administrator, in connection with the en- forcement of their individual rights in the disbursement or distri- bution of the assets. And, wherever the probate and common- law courts are found incompetent, in any State, to afford the relief thus sought, a court of equity, as such courts are usually constituted, may, perhaps, compel the executor or administrator to account for, administer, and distribute the property entrusted to him.' But, in the United States, modern probate practice, as ex- tended by our local legislation, affords, usually, all the facilities As to commencing such actions by next friend on behalf of infants inter- ested, see 25 W^. R. 873. A receiver may be appointed on motion in credit- ors' actions. 26 W. R. 434. Official referees are also appointed. See 29 W. R. 821. And see passhn, Wms. Exrs. 2008 ct seq. ; supra, § 437. 'Colbert v. Daniel, 32 Ala. 314; Cram v. Green, 6 Ohio, 429; 2 Hayw. 163 ; Wright v. Lowe, 2 Murph. 354 ; Rogers v. King, 8 Paige, 210. This jurisdiction appears to be reluctantly taken in most States, if taken at all. Thus, an executor, who was also an agent or trustee of the decedent during his life, cannot, after the final settle- ment of his accounts in the orphans' court, be called upon to account sepa- rately as a trustee in equity. Vanmeter V. Jones, 3 N. J. Eq. 520. An executor pro fortna need only account for the surplus remaining after paying debts. 2 Har. & J. 191. Order for an account has, in some cases, been declined after a long interval. 8 Ired. Eq. 141. Or where it was not alleged that insufficient security had been given by the repre- sentative. 2 P. & H. 225. In Morgan 7'. Rotch, 97 Mass. 396, it is held that a suit in equity, charging the executor with conduct in violation of his trust, is not sustainable where he has not yet rendered a final account in the probate court. And see Garrett v. Stilwell, 10 N. J. Eq. 313. Stale demands are not to be reopened. 35 Ark. 137. But a bill filed by one who was no party to a final settlement in the probate court may treat it as null, and invoke a court of equity to compel a full account. 5 Cal. 58. Legatees and next of kin should not be joined as parties. 53 Md. 550. And a creditor cannot bring a bill to have an account taken for his own benefit, apart from other creditors. 2 N. J. Eq. 133. See 5 Rand, 195; 3 Sm. & M. 329; I Sandf. Ch. 399; 3 Johns. Ch. 578 ; Garvin v. Stewart, 59 111. 229. e(>z § 5 20 EXECUTORS AND ADMINISTRATORS. [PART VH. now needful for compelling a duly qualified personal representa- tive to account for his management of the estate confided to him ; and that by a process comparatively inexpensive and sim- ple, founded upon the duty he owes under his bond. As we shall presently show, in detail, the probate court, which controls the appointment and removal in the first instance, has become, in most of the United States, the competent and convenient primary forum for his accounting ; an appeal, of course, lying to the supreme probate and equity tribunal of the State, as from other probate decrees. The American rule of the present day is, therefore, with few exceptions, that the court of chancery, usually, has neither jurisdiction nor occasion to interfere in the settlement of the estate, and to order an accounting by an exec- utor or administrator." And, even as to one who has resigned or been discharged from his trust, our law inclines to treat him as one whose accounts should be closed under probate direction, as in the case of one who has died in ofifice,^ In a few American States, however, where chancery jurisdic- tion is plenary, equity and probate courts appear to exercise a sort of concurrent jurisdiction as to the accounts of executors and administrators.^ And where it becomes necessary to apply to a court of equity, as, for instance, should the personal rep- resentative himself ask for necessary instructions as to the final 'Jones V. Irwin, 23 Miss. 361 ; Mor- 786, 1931, Perkins's note; i Nott & M. gan V. Rotch, 97 Mass. 396; Walker v. (S. C.) 587. Cheever, 35 N. H. 345; Adams v. ^ Cf. Gould v. Hayes, 19 Ala. 438; Adams, 22 Vt. 50; Wms. Exrs. 2006, 8 Sm. & M. 214; t^}, Miss. 560. And note by Perkins. Cf. 10 N. J. L. 287. see 81 N. Y. 573. See also, as to the Though, as to matters growing out of bill for an accounting from one's prede- the account, such as adjusting rights cesser, Stalhvorth v. Farnham, 64 Ala. between the representative and the es- 259,345. And see, as to administrators tate, it may be otherwise. Adams v. dc bonis non, supra, § 408. Adams, supra. ^ Ewing v. Moses, 50 Ga. 264 ; In the United States as well as in Marsh v. Richardson, 49 Ala. 431 ; England, the common-law courts have Sanderson v. Sanderson, 17 Fla. 820. no immediate cognizance of the ac- As to settling two estates under the counts of executors and administrators, same administrator, see 56 Ala. 486. and cannot compel a performance of As to appellate powers, or those of the duty; this being a branch of pro- review in chancery, where the probate bateor equity jurisdiction. Wms. Exrs. tribunal has acted, see further, § 530, post. 664 CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § $21 distribution under a will, that court, sometimes — having all parties before it, by means of personal or substituted service — proceeds to the settlement of the representative's accounts and a final distribution.' Convenience may sometimes dictate such a course ; besides which, the assumption of authority by so august a tribunal may not, in practice, be readily disputed. A court of chancery will rarely interfere, however, where the pro- bate tribunal has already taken cognizance, and is competent to adjust the account.^ Provision exists, in some States, for removing the settlement of an estate from the probate to the chancery court, in certain cases.^ § 521. Ecclesiastical and Probate Jurisdiction of Accounts in England.— To come to our main subject, namely, ecclesiastical and probate jurisdiction over the accounting of executors and administrators. We have seen, that, as to security from execu- tors, neither the spiritual nor the probate court has, in England, been vested with competent powers ; but, that courts of chan- cery rather have exercised whatever plenary authority was avail- able ;■♦ also, that administrator's bonds, under the latest acts, ' Daboll V. Field, 9 R. I. 266 ; Wms. tribunals as those of primary functions, Exrs. 2006, and note. The Mississippi for dealing with the accounts of execu- code aims, in regulating such suits, to tors and administrators, and keeping allow in a single suit, complete justice the records of settlement, and regulat- to be done to all parties, including ing details after its own simple system ; creditors, distributees, and sureties, while chancery refrains from disturbing Buie V. Pollock, 55 Miss. 309. And these methods, unless a special compli- see Kent v. Cloyd, 30 Graft. 555. cation renders its intervention desirable, The original and inherent jurisdiction and, on the whole, discourages costly of equity, in a State, we may add, over and burdensome proceedings out of an executor's or administrator's ac- course by creditors' bill or otherwise, to counts, is not to betaken away by mere the needless shrinkage of the assets-, implication, whenever a legislature all parties aggrieved having ample op- clothes the probate tribunals with com- portunity for redress by taking a direct petent powers ; nor, even at this day, is appeal from the probate decree. a local probate authority usually found ^ Seymour v. Seymour, 4 Johns. 409. adequate for adjusting all the questions ^ Marsh v. Richardson, 49 Ala. 431. which may arise in the course of settling That the probate court in this State is estates, still less for exercising exclusive a court of general jurisdiction for the jurisdiction in such matters. And yet settlement of administration accounts, the American tendency is, and ought to see 65 Ala. 16. be, to favor pre-eminently the probate * Suf>ra,^, 137; Wms. Exrs. 237. 665 § 5-1 EXECUTORS AND ADMINISTRATORS. [PART VII. do not enforce the duty of a probate accounting very strenu- ously.' One may readily infer, therefore, that jurisdiction over the accounting of executors and administrators, as e.xerted by the English probate or ecclesiastical tribunals, is, in character, quite secondary to that of chancery. It is said, that neither an exec- utor nor administrator can be cited by a probate tribunal ex officio to account after he has exhibited an inventory, but it must be at the instance of an interested party. But those in- terested, and those with even the appearance of an interest, may, we have seen, require an inventory to be produced.^ Whether this should be equally true of proceedings for account or not, it is clear, that, at the instance of a legatee, or next of kin, or creditor, the representative was compelled to account before the ordinary, while the probate tribunal was an ecclesias- tical one. But, while a creditor might, by this course, gain an insight into the condition of the assets, in aid of proceedings in the common-law court to enforce his rights, probate tribunals had no authority to award payment of his debt ; and hence, the bill in equity, praying for a discovery of assets and administra- tion, was more commonly brought.^ Legatees and distributees were better off ; for legacies and distributive shares might for- merly be sued for in the ecclesiastical forum ; and, indeed, it was by a sort of invasion of the spiritual jurisdiction that English chancery courts first began to take cognizance of such rights ; but the exclusiveness of chancery authority in this latter re- spect, as finally conceded by the English parliament, plainly indicates how inadequate must have been the relief which an ecclesiastical forum in that country was ever competent to af- fGrd.-* Upon petition for an account before the probate or ecclesi- astical forum, the creditors, legatees, and all others having an 'Acts 21 Hen. VIII. c. 5; 22 & 23 2061; Toller, 495; Burn Eccl. Law, Car. II. c. 10; 20 & 21 Vict. c. 77; 487. Wms. Exrs. 529-533; sup}-a, § 139. ■* Decks v. Strutt, 5 T. R. 692. It ^ Wms. Exrs. 2057 : i Salk. 315, 316; was Lord Nottingham who first e.\- 3 Atk. 253, by Lord Hardwicke; Wain- tended the system of equitable relief to ford 7'. Haiker, i Ld. Raym. 232. legatees. Wms. Exrs. 2061. Under ^ Supra, § 519; Wms. Exrs. 2058, act 20 & 21 Vict. c. 77, § 23, the new 666 CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 52 1 interest must be cited to be present ; as, otherwise, an account rendered in their absence will not bind them. At the hearing, whether all such parties appear or not, the judge shall proceed, and the account, as determined, shall be final." Inventory and account, in modern English practice, are usually returned at the same time ; for neither inventory nor account is produced unless called for ; and if interested parties seek the one they probably request the other. But if the personal representative exhibits personally his inventory and account, and takes his oath to the truth thereof, he has performed his whole duty by creditors ; for they are not permitted to contest items, but his oath, given under the penalties of perjury, concludes the matter here."^ If, however, a citation to account in the ecclesiastical forum was given by a legatee, or next of kin, the account, as rendered, could be objected to or disproved ; and, notwithstand- ing his general oath, the personal representative might be put to his proof of each item.^ Wherever it appeared, upon due investigation, that the account rendered was true and perfect, however, the court decreed its validity ; and, as to all interested parties cited in, the decree became final, and no further suit could be entertained.'* It might happen that, while one creditor resorted thus to the probate tribunal, another would invoke the ampler relief afforded by chancery.5 But chancery judges would not permit creditors, legatees, or next of kin to use the process of the spiritual courts in aid of an administration suit ; and wherever one who had brought his bill in chancery prayed for an inventory under a probate citation, he was compelled to make his choice which tribunal to proceed in.^ court of probate can entertain no suits made bona fide in sums less than \os. for legacies nor for the distribution of the oath of the executor or administra- the residue. lb. tor was admitted as due proof, but for ' 4 Burn Eccl. Law, 487 ; Wms. Exrs. pajTnent of larger sums he had to pro- 2058. ducc vouchers. 4 Burn Eccl. Law, 488 ; ^ 2 Add. 330 ; 4 Burn Eccl. Law, Wms. Exrs. 2060. 488; Wms. Exrs. 2060. As to whether "• Wms. Exrs. 2060; 4 Burn Eccl. objections could be entertained to an Law, 487. inventory, there has been some variance ^ 2 Cas. Temp. Lee, 561. in the decisions. Wms. Exrs. 982, 2060. *" 2 Cas. Temp. Lee, 31, 134, 268; ^ The rule was that for payments Wms. Exrs. 2061. 667 § 5 22 EXECUTORS AND ADMINISTRATORS. [PART VII. As the new English court of probate is invested with the same authority as the spiritual courts formerly exercised in such matters, but under nominal restrictions even greater as to af- fording practical relief to those entitled to ask for an account, the supremacy of the English chancery, in litigation which relates to the discovery and administration of assets, appears to have become more firmly established than ever." That return- ing either inventory or account to a probate tribunal has become a matter of indifference, appears conceded by the very form of the bond now prescribed by the English probate court ; - it is a virtual assent that courts of equity shall direct and supervise the practical administration and settlement of contentious es- tates, and that non-contentious business may be privately ad- justed, § 522. Probate Jurisdiction of Accounts in the United States. — In this country, where courts of probate are temporal tribu- nals, and a harmonious judicial system prevails in the several States, the primary and usual forum of accounting is the local probate court, whence the executor or administrator received his credentials. To this tribunal, by the American system, regular accounts should be returned by the personal representa- tive, as well as his inventory. The bond, which neither testacy nor intestacy exempts one from furnishing, obliges the rep- resentative to return an account to the probate court, not upon request, but within stated and regular periods, until the ad- ministration is closed ; and to this condition the sureties of the representative, if there be such, stand likewise bound. ^ The system of probate accounting is simple, exact, and, except in contentious business, attended with little cost. The probate accounts of each deceased person's estate become matter of public record. y\nd, while the parties interested may, perhaps, ■ See Stat. 20 & 2 1 Vict. c. 77 ; Wms. ministration " wheneve)- reqni7-ed by law Exrs. 290, 292, 2062. so to do." lb. We have seen that, even ^ See stipra, §§ i37-r39; Wms. Exrs. with the old form of bond, the practice 533. The condition of bond (less strict of returning an inventory had fallen into than that formerly stated) is that the disuse in that country. Supra. § 229. principal shall make and exhibit an in- ' Supra, § 140. Such is the usual ventory and render an account of ad- tenor of legislation in American States 668 CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINlSTKATOkS. § $22 be suffered to close up an estate privately, provided those en- titled to the surplus all agree, and all creditors' claims and lega- cies are settled, together with charges, the failure to render one's probate account is, nevertheless, a breach of the bond, and any dissatisfied party in interest may avail himself of it.' Un- der such conditions it is unlikely that an estate will be settled out of court without affording to all concerned a fair opportunity of inspecting the administration accounts, unless, at all events, their respective claims are fully and promptly settled. If, in fact, an executor or administrator settles privately with ' McKim V. Harwood, 129 Mass. 75. A private arrangement between some of the distributees does not discharge the administrator as against any one who was not a party to the agreement ; nor as against a deceased party in inter- est whose own representative did not enter into it. Smihe v. Siler, 35 Ala. 88. And distributees may generally, at election, hold the administrator to a strict statutory accounting. Stewart v. Stewart, 31 Ala. 207. Even if the as- sets were all used in preferred charges, one is accountable. Griffin v. Simpson, II Ire. 126. Liability to account to legatee not discharged by legatee's written receipt of a nominal sum in full of all demands. Harris v. Ely, 25 N. Y. 138. If the representative claims that the petitioner for an account has re- leased him, the surrogate may pass upon the question of the validity of such re- lease. 41 Hun, 95; 4 Dem. 366. That an account filed several years before had not been acted upon does not excuse the failure to render periodical accounts as the statute requires. 44 Ark. 509. Next of kin and residuaries may peti- tion to compel an account. Hobbs v. Craige, i Ired. L. 332. So may a cred- itor or legatee. Harris v. Ely, 25 N. Y. 138; Wever v. Marvin, 14 Barb. 376. But see Freeman v. Rhodes, 3 Sm. & M. 329. Concerning devisees, see 4 Desau. 330. And as to a cestui que trust or infant, whose trustee or guar- dian is one of the executors, see i Sandf. Ch. 399. The representative is bound to account upon the application of any one interested in the estate, and if the applicant has no interest, that is a suffi- cient defence before the probate tribu- nal. Becker v. Hager, 8 How. (N. Y.) Pr. 68. But relief by injunction is not to be granted on this ground. lb. See Okeson's Appeal, 2 Grant (Pa.) 303. Delay in settling accounts is leniently regarded by some American courts where no fraud or misconduct has inter- vened. Jones 7/. Williams, 2 Call, 102. But correct accounts should have been kept and exhibited to any interested party desiring to see them. Rhett v. Mason, 18 Graft. 541. As to the duty of probate accounting, notwithstanding a pending chancery suit, see Jones v. Jones, 41 Md. 354. Breach of the bond, how cured before suit brought on it. McKim V. Harwood, 129 Mass. 75. A sheriff or ex officio administrator may be cited in to account. McLaugh- lin V. Nelms, 9 Ala. 925. As to account- ing by the representative of a deceased representative, see Schenck v. Schenck, 3 N. J. L. (2 Pen.) 562 ; supra, § 408. See, in general. Sellers v. Sellers, 35 Ala, 235; Hillman v. Stephens, 16 N. V. 278; Whiteside z/. Whiteside, 20 Penn. St. 473. 669 § 522 EXECUTORS AND ADMINISTRATORS. [PART VII. the parties interested, rendering no final account to the probate court, such a settlement, though often perhaps conveniently made, will not absolve him from compliance with the law ; and he may be cited into court, and compelled to render account there, even though he produces the receipts of all the surplus distributees, acknowledging the payment of their respective shares in full' A settlement out of court is not presumed to intend dispensing with accounting ; and, even if it did, not to account is a breach of the conditions annexed to the appoint- ment. Not only are representatives liable to suit on their offi- cial bond if, on being cited in, they neglect to render accounts of administration, but, under some American codes, they may be indicted for delinquency in this respect,^ or compelled to pay a fine ; ^ and one may be removed from his trust for failing to account correctly on citation. '^ Any one showing a prima facie right may require the account. 5 In various States, more- over, the probate court may, of its own motion, and without application of an interested party, make an order citing in the delinquent representative.^ And thus American probate prac- tice is seen to be quite different from that which prevails in England. But an executor or administrator is not bound to render either account or inventory, it is held, where no property has ' Bard v. Wood, 3 Met. 74 ; Clark v. Eq. 282. And, upon showing the court Clay, 1 1 Post, 393. that he has received no assets, he is ex- " See States'. Parrish, 4 Humph. 285 ; cused; or, if good cause be furnished Davis V. Harper, 54 Ga. 180; 14 La. for further delay, the court is usually Ann. 779. He may be imprisoned for empowered to grant it. Citation to the contumacy. 14 La. Ann. 779. representative is a matter of right. 3 Collins V. Hollier, 13 La. Ann. 585. Smith v. Black, 9 Penn. St. 308. ■• See, as to removal, j;//ra, § 154. Neglect of the representative to * 14 Phila. 310, 322, 325. make answer to a demand to pay sums * Witman's Appeal, 28 Penn. St. due by way of distribution may be con- 376; Campbell, AV, 12 Wis. 369. But sidered a refusal to account. Cutter z/. one is not considered as refusing or Currier, 54 Me. 81. neglecting to account, within the usual Where the representative has ap- meaning of American statutes, until he peared in answer to a citation, he is has been cited by the probate court for affected with knowledge of all subse- that purpose. Nelson v. Jaques, 1 quent proceedings. Duffy z/. Buchanan, Greenl. 139; McKim v. Harwood, 129 8 Ala. 27. Mass. 75 ; Barcalow, Matter of, 29 N. J. , 670 CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 523 come to his hands." And where special circumstances such as lapse of time, civil commotion, or the assent of interested par- ties, have rendered an exact accounting impracticable while imputing no blame to the representative, the court will be lenient as to particulars.' Nor is it to be supposed, in general, that any one but a creditor or party in interest can call the representa- tive to account, by recourse to the court. § 523- Citation of Parties interested in the Account, in Ameri- can Probate Practice ; their Assent to its Allo-wance. — In Ameri- can probate practice, the executor or administrator presents his account to the register, who issues a citation directing next of kin, creditors, legatees, and all other persons interested in the estate, to appear before the probate court at a day stated, and show cause, if any they have, against its allowance. Cita- tion is usually by newspaper publication, and the representative must obey the mandate as issued to him. But, following the distinctions to be noticed between partial accounts and the final account, those of the former kind are not unfrequently passed upon by the judge without formal citation, the rights of inter- ested parties being more sedulously protected at the final render- ing ; nor is a probate court always left without some statute discretion as to requiring a citation at all. Citation may be dispensed with when all persons interested (or, more particularly, those entitled to the surplus) express, in writing, their request that the account be allowed without further notice ; thereby assenting virtually to its allowance. But the assent of one or more persons in interest does not conclude the others, nor impair their own right to be cited in before the account is allowed.^ ' W^alker v. Hall, i Pick. 20. The Where the representative, without good mere filing of a statement under oath excuse, states his account unintelligibly that the representative neither received he may be ordered to restate it at his nor paid out anything is not a settle- own expense. 13 Phila. 284. He may ment which reUeves him and his sureties be required to file a suitable account in on the bond, where the court made no place of a defective one which is unfit order. 88 Fed. 573. And though the to be passed upon. Hirschfield v. parties interested should agree to waive Cross, 67 Cal. 661. all inventory or account, such agreement ^A probate citation is usually pub- is revocable. 170 Mass. 506. lished once a week for three successive '^ Clark V. Eubank, 80 Ala. 584. weeks; the statute requirement should 671 §524 EXECUTORS AND ADMINISTRATORS. [PART VII. In some States, where one of the persons interested in a final accounting is an infant, or not sui Juris, a special guardian must be appointed to represent him." But, in others, a pub- lished citation appears to dispense practically with other formali- ties. The fact, that a probate decree may be voidable as to an infant, does not, of course, entitle any one else who is interested to invoke such disability on his own behalf.^ § 5 24. The Form of Administration Account. — In his probate account, it is usual for the executor or administrator, by way of general statement, to charge himself with the amount of assets which have come to his hands, and ask to be allowed for the amount of all debts and claims paid by him, together with the expenses of administration ; the balance shown, if any, going over to the next account, or remaining finally for distribution. A convenient form, adopted in various States, makes the gen- eral statement on the face of the account refer for details to schedule A. and schedule B. ; schedule A. sets forth the items with which the representative charges himself, making the in- be carefully followed. See 16 Ala. 693. and in many others, for the executor or Where notice is given of an annual or administrator to pay and keep his own partial settlement, a final decree is im- vouchers for payments, presenting such proper. 21 Ala. 363. See Scott v. vouchers for the court's inspection upon Kennedy, 12 B. Mon. 510; 20 Miss, any controversy. 649; Probate Manuals of Smith, Red ' Gunning v. Lockman, 3 Redf. 273. field, and Gary, passim; also the pro- - Hutton v. WiUiams, 60 Ala. 107. visions of local codes. In some States In some States accessible parties, such greater formality appears to be pursued, as a distributee residing within the The account must be first presented to county, are entitled to personal service the judge, accompanied with vouchers; of the notice of final settlement. 34 it mu.st then be examined and stated Miss. 322. for allowance ; after which notice is Neglect of legatees, etc., to attend at given of the teim at which it vnW be the final settlement, enables the repre- reported for allowance, that all who are sentative to proceed ex parte, as to interested may examine the account as those who f^l to appear. 4 Paige, 102. stated, and be prepared to contest it. Notice is not a pre-requisite to probate See Robinson v. Steele, 5 Ala. 473 ; jurisdiction, and the want of notice may Steele v. Morrison, 4 Dana, 617; 5 be cured by the voluntary appearance Hayw. 261 ; 5 Dem. 21, 216. We have of the parties interested. 35 Ala. 295. seen that claims upon an estate are in Creditors of distributees are not par- some States regularly filed for allowance ties in interest who may object to the in court. Supra, § 420. It is custo- representative's account. 40 Ala. 289. mary, however, in New England States, 672 CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 525 ventory valuation of personal property the first item in a first account, and the balance from the ne.\t preceding account the first item in each succeeding account ; schedule B. details the payments, the losses upon the inventory valuation, and charges. The usual rules of single-entry bookkeeping are followed, as to entering dates, parties, sums received or paid, and the like. In many States, blanks are supplied at the probate registry for the purposes of probate .accounts.' The proper number of each administration account is stated on its face ; a final account, moreover, should plainly purport to be such ; ^ but perhaps an account, appearing on its face to be a final one, will be deemed such, although not so styled in the caption.^ § 525- Authentication and Prpof of Account in American Pro- bate Practice. — A probate account is usually submitted on oath by the executor or administrator. This oath, to the effect that the account is just and true, is administered in open court by the judge of probate, according to the more exact practice; current legislation, however, tends to facilitate such business, where the judge's duties are onerous, by permitting the oath not only to be taken out of court, but to be administered by any justice of the peace. ■• Whether the oath to the account is administered by the judge or not, his decree of approval is gen- erally essential, before its formal allowance. Much of this accounting is non-contentious and formal ; and with the rendering of his account, thus sworn to, together with an affidavit that the citation to interested parties has been duly served, if citation was ordered, or, instead, their written assent, the duty of the executor or administrator is fulfilled. But the judge of probate may at discretion scrutinize the account, ask proof as to particular items, and ascertain judicially that the account is correct before allowing it.5 And if parties interested appear and object to its allowance as presented,*' a fair hearing ' See Smith Probate Guide, 165. ^ Especially if the rights of infants or ^ Bennett v. Hannifin, 87 111. 31. absentees are concerned. Gardner v. ^ Stevenson v. Phillips, 21 N. J. L. 77. Gardner, 7 Paige, 112. *■ See Gardner v. Gardner, 7 Paige, ^ The probate court may proceed to 112. determine whether a party who objects 43 673 §5 25 EXECUTORS AND ADMINISTRATORS. [PART VII. should be given them. The court may allow, disallow, or order the accountant to charge himself with sums received which should have been entered, and practically require a restatement of the account, with proper corrections, as justice may require; though as to compelling such restatement, independently of a clear stat- ute authority, the power of a probate judge may be questioned.' The executor or administrator, as various local codes declare, may be examined on oath before the court, upon any specific matter relating to his accounts;^ and the party at whose in- stance interrogatories have been proposed to him has a right to offer evidence to disprove his answers.^ As in the old ec- clesiastical practice, the executor or administrator is a compe- tent witness to small charges ; "♦ but larger items objected to he ought to support by vouchers or other extraneous proof.^ One money standard, and that the prevalent and legal one, ought to regulate the whole accounting.^ Hearings before a judge of probate upon an administration account are generally quite informal ; and issues are raised, and questions put and answered, regardless of technical rules, the judge seeking to elicit truth upon a summary hearing, that he to an account has any interest in the made by reference or otherwise where estate, notwithstanding such party's the representative does not correct the sworn statement that he has an interest, account. 41 Miss. 411. Garwood w. Garwood, 29 Cal. 514; Hal- "Stearns v. Brown, i Pick. 530; leek's Estate, 49 Cal. iii. The inter- Hammond z/. Hammond, 2 Bland, 306; est should be alleged of record. 2 44 Mich. 57. And see Ogilvie v. Ogil- Harring. 273. And see 38 La. Ann. vie, i Bradf. 356. The duly verified 830. administration account is prima facie ' The hearing before a judge of pro- correct. 4 Redf. (N. Y.) 265. bate takes usually the course indicated ^ Higbee v. Bacon, 8 Pick. 484 ; in the text ; the procedure being flexi- Wade z/. Lobdell, 4 Cush. 510; Smith ble, and the practical object to secure a Prob. Pract. 183. correct account and settlement ; and the ■'Bailey z^. Blanchard, 12 Pick. 166. representative himself, as well as the Charges " not exceeding forty shillings" parties in interest, usually acquiescing (or, perhaps, five dollars) may be thus in the decision of the judge. But it is proved. held that an executor or administrator ^ Hall v. Hall, i Mass. loi ; 19 Tex. cannot be compelled to conform his 317; 12 La. Ann. 537 ; 2 Dev. & B. Eq. return under oath to the views of the 325 ; 63 Cal. 349. court; that it is for the representative * See 2 Call, 190; Magraw v. Mo- te make returns, and for the court to Glynn, 26 Cal. 420. Upon an account- judge of their effect. 40 Mi.ss. 704. ing, payments made cannot be rejected. But the court may have a correction because neither the accounts nor the 674 CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMIXISTKATORS. § 525 may decide correctly and quickly. Oral testimony is generally admitted, and explanations are made by the representative, often without being sworn at all. Where, however, disputants insist upon it, the rules of judicial investigation are more strictly ob- served ; the representative is put upon oath as to items ; ' and, if chancery precedents be favored, those surcharging an account should specify the particular items objectionable, and issues be framed accordingly.^ But an examination is not usually confined to written interrogatories and answers, though it may be thus conducted ; and even should the account be regularly audited, strict proof of items may be dispensed with where, from the nature of the case, vouchers cannot be produced.' In settling an administration account, a probate or equity court is not usu- ally bound by technical rules of evidence.'* oath show to whom the payments were made ; but the testimony of the repre- sentative is admissible on this point. Nichols, Re, 4 Redf. 288. ' Rathbone's Estate, 44 Mich. 57 ; Stearns v. Brown, i Pick. 530. ^ See Tanner 57. Skinner, 11 Bush, 120. But this rule is flexible as applied. Gardner v. Gardner, 7 Paige, 112; Buchan v. Rintoul, 7c N. Y. i. An ac count may be restated before allow- ance, so as to separate items improperly blended, and include others which were the proper subject of a surcharge. 174 Penn. St. 628 ; 3 Lidderdale v. Robinson, 2 Brock. 1 59. Vouchers alone may not be strictly evidence of payments without authenti- cation, but they are accepted usually if not objected to. 2 Dev. Eq. 137. * Sterrett's Appeal, 2 Pa. 419; Ro- mig's Appeal, 84 Penn. St. 235. In some States an account in contentious business is to be made before an auditor under the probate court's direction, and he will report. Hengst's Appeal, 23 Penn. St. 413; YoWocV, Re, 3 Redf. 100; Rich, Re, 3 Redf. 177; Tucker z/. Tucker, 28 N. J. Eq. 223. An admin- istration account, audited by commis- sioners, returned to court and recorded, is not a conclusive settlement of the estate ; either distributees or the repre- sentative himself may oppose its accept- ance. 90 N. C. 537. The representative claiming credit on settlement for the payment of a debt has the burden of proof. 73 Ala. 238. Where a note given by decedent is produced by one objecting to the account, the represen- tative may show that the note has been paid. 106 Penn. St. 498. Objections to the account should be specific. 74 Ala. 332 ; 87 Ind. 294. When the disputed account of an executor or administrator is referred to an auditor for examination, he should pass upon the objections filed to the: accounts and no others ; the surrogate or probate judge may allow furtlier objec- tions to be filed; but, if the rulings of an auditor are appealable at all from the surrogate or judge, the questions must at all events have been first referred to the surrogate or judge for his deci- sion. Boughton V. Flint, 74 N. Y. 476. The probate court need not refer mat- ters to an auditor where the facts can be conveniently ascertained and deter- mined without doing so. Maxwell v. 675 §526 EXECUTORS AND ADMINISTRATORS. [PART VII. § 5 26. Periodical Returns ; Partial Accounts and the Final Ac- count. — Periodical return is part of the American probate sys- tem ; a first account being ordered within a stated time, usually one year from the date of appointment ; and other accounts from time to time, or, perhaps, annually, until the estate is fully settled. Hence, as estates may not always be legally wound up within one year, a practical distinction between partial accounts and the final account which closes the administration.' The rule is, that partial accounts of administration are, espe- cially if rendered without citation, prima facie correct, but noth- McClintock, 10 Penn. St. 237. And see, as to auditor, 1 5 Penn. St. 403 ; 23 Penn. St. 180. On an accounting, the executor or administrator may be required to dis- close the assets of a partnership of which he and the decedent were mem- bers when the latter died, although the interest of the decedent in the firm is entirely unliquidated. Woodruff v. Woodruff, 17 Abb. (N. Y.) Pr. 165. Upon the final accounting, the pro- bate judge or surrogate has generally a jurisdiction to hear and determine a disputed claim of the executor or ad- ministrator himself against the estate ; and even though the claim were such that equitable relief for enforcing it could only be had in chancery, the right to retain out of the assets of the estate a sum of money as belonging or due to him, brings the matter fairiy within the province of the tribunal which passes upon the account. Boughton 7'. FUnt, 74 N. Y. 476 ; Kyle v. Kyle, 67 N. Y, 400. See, as to retainer, supra, § 439. See Watson v. Watson, 58 Md. 442; 62 ('al. 186. Where the repre- sentative has by retainer satisfied his own claim against the estate, the pro- bate court in passing his account, has jurisdiction to inquire into the validity of the claim, and the legality of his ac- tion in retaining therefor. Kinnan 7/. Wight, 39 N. J. Eq. 501. The excess of commissions allowed on an interme- diate account cannot be examined by exceptions to a subsequent account, but if excessive commissions were allowed, that fact may be considered in fixing their commissions for subsequent ser- vices. 36 N. J. Eq. 515. And see next c. ' As to requiring annual returns, see Wellborn ?'. Rogers, 24 Ga. 558. The periods for settling accounts are pre- scribed in each State by statute, and accounts are usually to be rendered within a year from the time of appoint- ment, and afterwards as often as once a year while the trust continues ; but ac- counts later than the first are sometimes left discretionary with the court. See Mass. Pub. Stats, c. 144 ; Musick v- Beebe, 17 Kan. 47. Where assets come to the hands of the executor or adminis- trator after a partial account, he is bound to render a supplementary account, in- cluding such assets, within a reasonable time afterwards. Witman's Appeal, 28 Penn. St. 376 ; Shaffer's Appeal, 46 Penn. St. 131. A representative's duty to file annual or partial returns is a stat- ute requirement, and conditions not ex- pressed in the statute cannot be inter- polated. Koon V. Munro, 11 S. C. 139. Statutes set special periods for account- ing where the estate is insolvent. Mass. Pub. Stats, c. 137. 676 CHAP. I.] ACCOUNTS OF EXECUTORS A M) ADMIN ISTkATOKS. § 526 ing more, and bind no one in interest ; and, on a final settlement, they may be so far opened up, without any special application, as to correct errors therein, whether originating in fraud or mis- apprehension, and although the error was not excepted to when the partial account was rendered, nor when appealed from.' Former accounts, too, may be opened up for correction of fraud or mistake, upon the filing of subsequent partial accounts, as various local acts plainly sanction.^ A final account has the force of a final judgment, and is taken to be conclusive, unless appealed from or impeached for fraud ; while a partial account is only a judgment dc bene esse ; for according to such practice, the latter is often rendered ex parte, and without notice to per- sons interested, and may be considered as given chiefly for the infcM'mation of the court, and the convenience of the personal representative in the management of the estate.^ But, on the final account, the general fairness of the adminis- tration comes up properly for a final review. Such an account, in order to operate as conclusive upon all concerned, can only be rendered upon due publication of notice to creditors and all persons interested, unless their assent is expressed ; the time for ' Coburn v. Loomis, 49 Me. 406 ; formed of the general condition of tlie Clark V. Cress, 20 Iowa, 50 ; Goodwin estate while in process of settlement, V. Goodwin, 48 Ind. 584 ; 58 Iowa, 36 75 Mo. 204 ; Picot V. Biddle, 35 Mo. 29 Cavendish v. Fleming, 3 Munf. 198 and ascertaining whether the represen- tative's bond should be increased. They zRoxA prima facie evidence of the facts Grant v. Hughes, 94 N. C. 231 ; 37 S. C. they state; and it is proper enough for 123. interested parties to object, when the ^ Stayner, Re, 2,3 Ohio St. 481 ; Shep- partial account is rendered, to the allow- ley, J., in Sturtevant v. Tallman, 27 Me. ance of any item therein stated. Practi- 85; Stearns v. Stearns, i Pick. 157; cally, indeed, the rendering of periodical Sumrall v. Sumrall, 24 Miss. 258 ; Steph- accounts in often found to bring dissen- enson r-. Stephenson, 3 Hayw. 123 ; sions between the representative and Mi.x's Appeal, 35 Conn. 121. parties in interest to an issue before the 3 Musick 7'. P>eebe, 17 Kan. 47 ; State interests of the e.state have suffered too z/. Wilson, 51 Ind. 96; Sheetz 7/. Kirt- far; while executors and administrators ley, 62 Mo. 417; Liddell 7'. McVickai, are thus kept to a diligent and faithful 6 Hals. 44 ; Snodgrass v. Snodgrass, 57 cUscharge of their duties, and the judge Tenn. 167. of probate may the better pacify or pro- Annual and partial accounts are pe- tect legatees and kindred when they and culiarly valuable as serving to show the the representatives of the estate fail to representative's liability, and for keep- harmonize, ing the court and interested parties in- 677 §5-26 EXECUTORS AND ADMINISTRATORS. [PART VII. rendering- it is when the estate has been fully administered, un- less one's office for some reason sooner expires ; it is properly for the protection of the representative, and as a final adjudica- tion of all controversies. On this final account, errors and mis- takes in all former accounts may and should be corrected, once and for all, and improper items stricken out ; and disputes of charge, compensation, and allowance finally determined ; nor is the allowance of previous partial accounts without notice to leg- atees or next of kin, conclusive on them, but they may object on the final account, and the court is bound to consider evidence from them disproving or reducing former items.' Errors which result not from administration but the accounting are readily rectified, no real harm resulting.^ This final account, once exam- ined and approved by the probate court, after due citation, and not reversed on appeal, operates as a final judgment ; it con- cludes in general all the parties interested, and cannot be re- opened or annulled in any court, except it be by direct proceedings in probate, or perhaps in chancery, for fraud or manifest error.' 'Mix's Appeal, 35 Conn. 121; Bra- zeale 7<. Brazeale, 9 Ala. 491 ; Collins -'. Tilton, 58 Ind. 374. The fact that al- lowance had been made by a former judge of the court by a mere approval, without a hearing or citation, does not affect the right to re-open before the subsequent judge. Collins v. Tilton, ib. And see Bantz v. Bantz, 52 Md.6S6. It is no ground for not correcting an error that the item had been allowed upon appeal from the former and partial set- tlement by a person interested in other items, but not in this. Clement's Appeal, 49 Conn. 519. ^ See Little v. Little, 161 Ma.ss. 188. 'Austin V. Lamar, 23 Miss. 1S9; Brick's Estate, 15 Abb. (N. V.) Pr. 12. As to appeal, etc.. see § 530, /^;.r/. See, as to the analogous case of guardianship accounts, Schoul. Dom. Rel. 3d ed. § 372, and cases cited. And see Mayo v. Clancy, 57 Miss. 674 ; Seawall v. Buck- ley, 54 Ala. 592; Musick -■. Beebe, 17 Kan. 47 ; 105 Iowa. 564; 144 Mo. 258. A final account allowed is voidable at the election of one not duly cited as en- titled nor brought into the account. 54 Miss. 700. In New York practice, a surrogate may make an order opening a final accounting of executors or admin- istrators for re-examination, at least to the extent of correcting specified errors apparent on the face of the account ; but the power should be exercised only in rare instances and with great caution. Decker v. Elwood, i Thomp. & C. (N. Y.) 48 ; Strong v. Strong, 3 Redf. 477. Only a court of equity, and not a probate court, can open a settled account in some States. Harris v. Stilwell, 4 S. C. 19. Though such is not the rule. A final accounting does not bar proceed- ings for a distinct trust. 5 Hun, 16 ; 4 Redf. 180. The final settlement does not preclude further inquiry in regard to the assets of the estate in the hands of the representative not accounted for nor passed upon. McAfee i'. Phillips, 25 Ohio St. 374. Cf 16 Ohio St. 274. 678 CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 5 26 The broad distinction between partial and final accounts, is not, however, universally approved in American probate practice of late years. Thus, in Pennsylvania, where it was formerly usual to admit exceptions, when a final account was filed, to that or to any previous probate account, all partial accounts arc, under later legislation, rendered, when confirmed absolutely and upon due consideration, and without an appeal, final and conclusive, in regard to all that they contain,' though not as to what may have been reserved for a future account.^ In Massachusetts, too, and some other States, the policy is manifestly to discourage, at all events, the reopening of disputes which were actually heard and determined on one account, when later accounts are exhibited.^ But, in order to give a conclusiveness to partial accounts, it appears proper not only that no appeal should be taken, but also But it concludes as against the repre- sentative, that what was charged in the accounting as assets was such. Mc- Donald 7a McDonald, 50 Ala. 26. And a final account regularly allowed is pre- sumed to embrace everything which was the proper subject of inquiry. Brown v. Brown, 53 Barb. 217. See Davis V. Cowden, 20 Pick. 510; Sever V. Russell, 4 Cush. 518. As to opening and reviewing probate settlements in a court of chancery to correct mistakes and afford relief, see, in detail, U. S. Digest, First Series, E.x- ecutors and Administrators, 4146-4250. There are various recent State enact- ments which relate to this subject, their tendency being, however, to conclude all such controversies in the probate court and upon appeal in regular course. See, on this point, 30 Ark. 66 ; 34 Ark. 117; 50 Ala. 319 ; 64 Ind. 79. But cf. 14 Fed. R. 93. One who retains the infant one year from the time of at- taining majority; also N. Y. Code, con- ferring power to reopen in cases of fraud, newly discovered evidence, cler- ical error, or other sufficient cause. Til- den, Re, 198 N. Y. 434. And see Riley V. Norman, 39 Ark. 158. But a final settlement is generally conclusive, apart from fraud, etc., where infant distri- butees in interest are represented by a guardian ad litem. Trawick v. Travvick, 67 Ala. 271. Consult local codes on this point. ' Rhoad's Appeal, 39 Penn. St. 186. The confirmation of a partial adminis- tration account is conclusive as to mat- ters embraced therein. Fross's Appeal, 105 Penn. St. 258. A partial account may be made the subject of probate in- vestigation at discretion. 2 Dem. 289. ^ Shindel's Appeal, 57 Penn. St. 43. As, e.g., on a later account the represent- ative may be charged with money re- benefits is not competent to allege a ceived by him before the confirmation fraud in the accounts. 81 111. 571. Nor will equity set aside a settlement because of illegal allowances to the representa- tive where there is no proof that they were obtained by fraud or misrepresen- tation. 34 Ark. 63; 54 Mo. 200; 67 Mo. 247. See as to application by an of the preceding account, and not ac- counted for. lb. 3 Mass. Pub. Stats, c. 144, § 9; Smith V. Dutton, 4 Shepley, 308; Cummings 7/. Cummings, 128 Mass. 532; Wiggin V. Swett, 6 Met. 194. 679 § 52/ EXECUTORS AND ADMINISTRATORS. [PART VII. that the account should have been allowed after the usual cita- tion to parties interested, or their appearance or waiver of notice ; for, as in a final account, the decree of allowance on a partial account ought not to bind those who were not made parties to the accounting.' § 527. Settlement upon a Final Accounting; Distribution, etc. — The rendering of a final account to the probate judge or sur- rogate appears to be, strictly speaking, a proceeding distinct from the settlement thereof ; that is to say, the executor or ad- ministrator sets forth in his accounts the true condition of the trust, and of his administration, without bringing into his state- ment the payments made to any of the distributees or residuary legatees on account. Usually, in our practice, a decedent's estate is closed in the probate accounting ; payments made in true proportion to all proper parties being thus exhibited, with- out the formality of a further decree, as for distribution. But, when this course is pursued, the distribution statement or sched- ule should be kept distinct ; for the probate accounting, in theory and apart from local code or practice, settles nothing but the basis upon which distribution may afterwards be made in a ^ Supra, §523; Crawford 7'. Redus, the party objecting to specify in writing 54 Miss. 700. Mass. Pub. Stats, c. 144, the items objected to; for then, the ac- § 9, expressly provides that when such count being once settled, the particular account is settled " in the absence of a items disputed and determined will be person adversely interested, and without shown by the record. A Massachusetts notice to him," such account may be statute provides that, upon the settle- opened on his application at any time ment of an account, all former accounts wthin six months after the settlement rendered in the course of settling the thereof. same e.state may be so far opened as to An executor or administrator having correct a mistake or error therein; but been surcharged or falsified on excep- that a matter which has been previou.sly tions to his admini.stration, all parties heard and determined by the court, interested in the surplus are entitled to shall not, without leave of the court, be participate in the balance as finally as- again brought in question by any of the certained, in due proportion, though di.sputants. Mass. Pub. Stats, c. 144. some of them filed no exceptions to the § 9 ; Cummings?-. Cummings, 128 Mass. account. Charlton's Appeal, 34 Penn. 532; Wiggin v. Swett, 6 Met. 19.1, St. 437. It is prudent, when the ac- And this is also the Ohio rule. Watts countant finds his account disputed in 7'. Watts, 38 Ohio St. 480. important respects, for him to request 680 CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 527 proper tribunal, and ascertains what balance, if any, is left for that purpose.' In some States, therefore, the decree made upon an adminis- trator's final accounting determines simply the amounts received and paid out by the representative, and the balance due from him to, or to him from, the estate ; and a decree of distribution, settling the rights of residuary legatees or distributees, is after- wards in order.^ The distribution of intestate estate lies pecu- liarly within the province and jurisdiction of American probate courts ; and local statutes define the method by which the ad- ministrator or any one of the distributees, may, on application to ihe probate court, obtain an appropriate decree.^ ' See Ake's Appeal, 21 Penn. St. 320 ; Smith V. Van Kuren, i Barb. Ch. 473 ; Tappan v. Tappan, 30 N. H. 50 ; Fleece V. Jones, 71 Ind. 340; Arnold v. Smith, 14 R. I. 217. Where the distributees or residuary parties in interest are clearly known, the representative is practically safe in settling with them on their several receipts for their respective proportions, and rendering his final account as upon such a distribution, thereby dispensing with formalities and needless delay. Legacies, in general, like creditors' claims, are paid upon proper vouchers. The words " final settlement " in a statute may be construed not to signify the mere ascertainment of the final cash balance in the hands of the executor or administrator. A payment of that bal- ance is also included, so that nothing shall remain to be done by him in his fiduciary character to complete the exe- cution of the trust. Dufour v. Dufour, 28 Ind. 421. It is irregiilar practice to petition for an account and for distribution together. II Phila. 43. ^ Johnson v. Richards, 5 Thomp. & C. (N. Y.) 654; 15 N. J. L. 92; 7 Bax- ter, 406. A formal decree may be a needful preliminary to suing on the ad- ministrator's official bond. 68 ^ The decree of distribution, which is founded upon the final balance shown by the accounting, specifies the names of persons who are entitled to share in the estate and the amount payable to each. Loring v. Steineman, i Met. 204 ; Smith Prob. Pract. 196. A decree in favor of a distributee is conclusive as to amount, allowing for all previous ad- vancements. Cousins -'. Jackson, 49 Ala. 236. After an administrator has made dis- tribution without judicial direction, he is personally liable, if others entitled to distribution appear of whose existence he had no knowledge. 2 Call (Va.) 95. In some States an order of distri- bution is imperative. 19 La. Ann. 97. Accounts, with items showing partial and unequal payments to distributees, do not supply the correct balance upon which distribution is to be made. See 53 Ga- 282. The notice requisite for a decree may be prescribed by statute, otherwise the notice is such as the court in its discre- tion shall deem proper, i Met. 204. See 49 Wis. 592 ; 60 111. 27. The pro- bate court has no authority to make an order for distribution to the as.signee of a distributee's share. Knowlton v. Johnson, 46 Me. 489 ; Holcomb 7>. Sherwood, 20 Conn. 418; Portevant v. 527 EXECUTORS AND ADMINISTRATORS. [PART VI (. But, as to testate estates, a probate court has no inherent jurisdiction to decide who are entitled as legatees under the will; nor can it, in the absence of some enabling act, decree to whom, or at what time, legacies, or the residuary fund, shall be paid." Agreeably, however, to the jurisdiction conferred upon probate courts in various States, this court, subject to the usual appeal, may settle all questions relative to legacies ; and accordingly, where the construction of a will is necessary to determine ques- tions arising on the account of administration, the court of pro- bate jurisdiction in such States may pass upon the construction of the will, for this attaches as incidental to the accounting.^ Decrees which confirm the accounts of executors or administra- tors are not to be opened and re-examined, at all events, where the balance thereby found to be due has, in the meantime, been actually paid and discharged. ^ But various local codes provide for equitable relief, whether by petition in the probate court, or otherwise, so as to reopen afterwards a probate settlement upon a proper showing of mistake or fraud, and by a direct attack upon that settlement. ■♦ Neylans, 38 Miss. 104. And it is no valid objection to a decree of distribu- tion that it was made on its face in favor of parties who were not applicants for the decree, or whose shares had been satisfied or released. Sayrez-. Sayre, 16 N. J. Eq. 505. Nor should the admin- istrator be thus decreed to apply the dis- tributee's share to a debt due to the administrator personally. 13 Ala. 91 ; 3 Grant (Pa.) 109; 25 Miss. 252. Nor to make deduction from the share of any one on account of a debt he owes to the estate. 17 Mass. 81. But such equities may be regarded in the course of compliance with a decree of distribu- tion. See 6 Ired. Eq. 341 ; 2 Barb. Ch. 533 ; 29 Penn. St. 208 ; 3 Cranch, C. C. 61. And it would appear that a botia fide payment made under the decree of distribution to the attorney in fact, or actual assignee of the distribu- tee named therein, is a compliance with the order. Marshall v. Hitchcock, 3 68 Redf. (N. Y.) 461. Setting aside on ap- peal a decree of distribution does not necessitate setting aside the final ac- count. 90 Wis. 480. ' Smith V. Lambert, 30 Me. 137 ; Cowdin V. Perry, 1 1 Pick. 503. Lega- cies in many States may be sued for and recovered at common law. Far\vell v. Jacobs, 4 Mass. 634 ; Smith v. Lambert, 30 Me. 137. Beyond this, the subject is more especially one of chancery juris- diction, and the probate records are not conclusive of the rights of such parties, though doubtless important evidence. But statutes may affect this question, enlarging the powers of a probate court to that end. Sandford v. Thorpe, 45 Conn. 241. - Purdy V. Hayt, 92 N. V. 446. ^ Lehr's Appeal, 98 Penn. St. 25. * See Arnold v. Spates, 65 Iowa, 570; various local codes ; Brandon v. Brown, 106 111. 519. CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 528 § 528. Conclusiveness of the Final Settlement in the Probate Court. — The final settlement of an executor or administrator with the probate court is conclusive, operating as the judgment of a court of competent authority, with jurisdiction of the subject- matter and of the person, and cannot be called in question, ex- cept by a direct proceeding, such as appeal or writ of error ; ' and only in the probate court when impeached for fraud or manifest error ; though, if the proceedings in that court were such that they may be treated as a nullity on account of fraud, the executor or administrator may be cited to account there anew.^ The probate settlement remains conclusive evidence not only of the fact of receipts and payments, as specified, but of the validity of those receipts and payments ; ^ nor can the decree of the probate court, duly allowing the final account of the representative, be collaterally impeached ; as in an action at law against him, upon a claim against the deceased.'* While a decree of the probate court, settling an executor's or administrator's final account, partakes of the nature of a final judgment, its conclusiveness is nevertheless restricted to the matters involved, and the items, together with the surplus, as passed upon and shown of record. 5 Nor is the decree of distri- ' Caldwell v. Lockridge, 9 Mo. 362 ; by the probate court, that court should Barton v. Barton, 35 Mo. 158; Austin not reopen the account upon his suc- V. Lamar, 23 Miss. 189; Brick's Estate, cessor's petition upon any ex parte or 15 Abb. (N. Y.) Pr. 12; Smith Prob. insufficient charge that the surviving Pract. 183. partners induced the settlement by ^ Davis V. Cowden, 20 Pick. 510; fraud. Blake ». Ward, 157 Mass. 94. supra, § 526, note; Decker v. Elwood, ^ A balance found due upon formal 1 Thomp. & C. 48. Thus there should accounting may in some cases be a cash be due citation to parties interested on balance; and a careful executor or ad- such account in order to operate con- ministrator will take heed that items of clusively. 144 Mo. 509. doubtful value, which may affect a just 3 I Hoffm. 202 ; Burd v. McGregor, cash balance for distribution, are duly 2 Grant, 353; 52 Cal. 403. stated at the final hearing, and weighed '' Parcher v. Bussell, 11 Gush. 107; by the court. But the balance, as found Harlow v. Harlow, 65 Me. 448 ; San- on such accounting, is in strict truth a ders V. Loy, 61 Ind. 298; § 526; 13 balance, not of money, but of the estate Lea, 728. Where the administrator of undisposed of remaining for distribu- a deceased partner in a firm has settled tion, and the schedules will frequently with the surviving partners, and his ac- show that this balance is made up of count, including the account received various items of personal property not from such settlement, has been allowed reduced to cash, which, at their stated 683 S 3 28 KXPXUTORS AND ADMINISTRATORS. [PART VII. bution, as to the balance shown by the administration accounts, a payment.' But it is to be assumed that the parties in inter- est were all cited, or had otherwise due opportunity to scrutinize or contest the account. - An executor or administrator whose accounts have once been settled will not be ordered to account further because of the existence of possible assets not within his control, but which, after a third party shall have acted, may come to his hands.^ And the reasonable presumption from a probate decree which judicially settles the representative's accounts, where all the parties interested have been cited, is that the account was cor- rect, and all the assets have been accounted for. A further ac- counting, therefore, should only be ordered when it appears clearly that there are other matters not embraced in the former account, for which the representative is responsible, and has not accounted.-* valuation, the representative stands ready to transfer. Where, therefore, the representative finds himself unable to use the assets upon a cash valuation, he should apply to the probate court for corresponding relief ; and the order of distribution may be made out or amended in conformity to the facts, and as essential justice requires. But, after the time is past for the represen- tative to distribute the surplus to those entitled thereto, and such distribution may be assumed to have taken place, he is no longer concerned in asking re- lief of this character. Sellero's Appeal, 36 Conn. 186. That one may be cited to account for what does not appear on his accounts, see Flanders ?•. Lane, 54 N. H. 390; 88 Md. 151. See as to order discharging the representative, 86 Tex. 207. ' It is not a payment so as to dis- charge the executor or administrator, nor is it a payment so as to exonerate the fund distributable. The decree gives to the distributee a remedy against 684 the executor or administrator personally for his proportion of the fund found to be in the latter's hands, but this does not impair his remedy against the fund itself. Nothing short of actual pay- ment, or some act of the distributee to its prejudice, ■will exonerate the trust fund from the distributee's claim. Brown, J., in Clapp r'. Meserole, 38 Barb. 661. And see, as to the form of such decree of distribution, McCracken V. Graham, 14 Penn. St. 209. As to the effect of a settlement of the residue out of court, after a partial set- tlement in court, see 27 Ohio St. 159. ^ As to acquiescence of a guardian not necessarily concluding the minors, see 148 Mass. 434. ^Soutter, Re, 105 N. Y. 514. And see as to an accounting for additional a.ssets after a partial accounting; which was in the court's discretion until it could be made a final accounting, 3 Dem. 414. " Soutter, Re, ib. CHAP. I.] ACCOUNTS OF KXECUTOKS AND ADMIMSTKAIORS. § S 30 § 529- Perpetuating Evidence of Distribution and Procuring a Final Discharge; Effect, etc. — It is provided expressly in various States, that the executor or administrator shall have his final discharge, and may perpetuate the evidence of his payments or distribution of the surplus, as of record. The usual course is for him to return the court's decree of distribution, with in- dorsements, showing full payments made under it, or within a specified time to present what is in substance a final account, exhibiting the distribution of the balance for which he was ac- countable to the parties entitled." Unclaimed moneys, which the court has ordered paid over, may be placed on deposit with the judge, or in the public treasury, according as local enact- ments prescribe, thereby discharging the executor or adminis- trator, and his sureties, from all further responsibility for the funds.- In some States it appears to be the practice of the probate court to enter a judgment of dismissal by way of discharging lia- bility on the part of the personal representative ; ^ but an order of discharge upon a final account will not be regarded as a final settlement, if assets of the estate actually remain unadminis- tered in the hands of the fiduciary. For though an executor or administrator may die or be regularly removed or permitted to resign, his authority continues otherwise until the estate is fully settled ; and there is no successor without due credentials upon a proper vacancy. ■♦ § 530- Appellate Jurisdiction as to Probate Accounting. — Ap- pellate jurisdiction from our probate tribunals is carefully exer- ' The Massachusetts statute provides shall be allowed as his final discharge, that when an executor or administrator and ordered to be recorded. vSuch dis- has made or delivered over to the per- charge shall forever exonerate the party sons entitled thereto the money or other and his sureties from all liability under property in his hands, as required by a such decree, unless his account is im- decree of the probate court, he may peached for fraud or manifest error. perpetuate the evidence thereof by pre- Mass. Pnh. Stats, c. 144, § 12. senting to such court, within one year ^ Mass. Pub. Stats, c. 141, § 16. after the decree is made, an account of ^18 Ga. 346 ; 10 Ind. 528. But, if a such payments, or of the delivery over settlement is reopened, all concerned of such property; which account, being may have the benefit. 56 Ga. 297. proved to the satisfaction of the court, •* 37 Iowa, 684; Weyer v. Watt, 48 and verified by the oath of the party, Ohio St. 545. 685 § 5 30 EXECUTORS AND ADMINISTRATORS. [PART VII. cised in most States, as respects the probate accounting just set forth. And, upon appellate proceedings, the supreme court declines to act as if entertaining an original jurisdiction over the account. For, as it is said, the court of probate can only be deprived of its statute jurisdiction for the settlement of a personal representative's accounts by some process or course of proceeding which would legally remove the settlement to an- other tribunal. And, hence, probate jurisdiction remains, al- though the personal representative, who had before been cited to settle his accounts, had neglected to do so, and leave had been granted to bring a suit upon his bond ; no suit having been commenced.' Nor will the supreme court, as a court of chancery, resettle an administration account alleged to have been fraudulently settled in the probate court.^ So, too, it is held that former accounts from the allowance of which no appeal was taken, and the matters passed upon in them, are not subject to a revision and readjustment upon an appeal from the allowance of a later account in which the same question was not before the probate judge for consid- eration.3 Where a mistake is made in the settlement of a probate ac- count, the course is to apply to the judge of probate for its cor- rection, or to state the amount claimed in a new account ; unless, ' Sturtevant v. Tallman, 27 Me. 78. than as an appellate tribunal with refer- Appeal does not lie from the refusal of ence to probate accounts, construes the an account informally presented. 50 latest legislation, not only as modifying ^ja. -3Q. the former rule of conclusiveness, but - Jennison v. Hapgood, 7 Pick, i ; so that, without any formal petition Sever z/. Russell, 4 Cush. 513. As to alleging mistake or error, objections the States where liberal chancery powers made to allowing a later probate ac- are asserted by way of a concurrent count may amount substantially to an jurisdiction with probate tribunals, see application to have the former accounts supra, § 522. A judgment of the pro- reopened; and sustains a reopening on bate court may be impeached for fraud in appeal, although an appeal from the a court of equity, in a proper case. An- former account was taken to the su- derson z^. Anderson, 178 111. 160. See preme court and there determined, further, § 160. Blake ?■. Pegram, 109 Mass. 541. And 3 McLoon V. Spaulding, 62 Me. 315 ; see Williams v. Petticrew, 62 Mo. 460; 27 Me. 78; 49 Me. 406, 561. Seymour v. Seymour, 67 Mo. 303; But, in Massachusetts, the supreme Sherman v. Chace, 9 R. I. 166. court, while disclaiming to act otherwise 686 CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 5^1 when the mistake is discovered, the party has a right of appeal to the supreme tribunal, and may there have it corrected. ' When the account of the representative has been allowed by the pro- bate judge, and no appeal is taken, it cannot be revised above ; and, under such circumstances, the probate judge's decision that no mistake has been made, concludes the controversy.^ If the probate court reopens, or refuses to reopen, a final accounting in a proper case, there lies a direct remedy by appeal.^ §53^- Rendering Accounts in Case of Death, Resignation, Removal, etc., of Representative. — American statutes provide explicitly for the rendering of probate accounts in case of a vacancy in the office. Thus, when one of two or more joint executors or administrators dies, resigns, or is removed before the administration is completed, the account is rendered by the survivor or survivors."* And when a representative dies, not having settled his sole account, a final account should be rendered by his own executor or administrator ; and it has been held, that it may be settled by the administrator of one of his sureties, for the protection of the bond ;s since, for a deficit beyond the actual assets to be administered upon, the sureties of a deceased executor or administrator who proves a defaulter in his trust, are answerable, and not the deceased defaulter's own representa- tives.'' Statutes provide for the closing of accounts by a representa- tive who resigns, or is discharged from his trust. Thus, it is declared, that an executor or administrator shall not be permitted to resign without first settling his accounts ; and, on such ren- dering, the court should have the account carefully examined ' Stetson V. Bass, 9 Pick. 27 ; Coburn (N. Y.) 457 ; 3 Dem. 236. In case of V. Loomis, 49 Me. 406. the representative's death pending pro- ^ Coburn v. Loomis, 49 Me. 406; ceedings for the settlement of his ac- Arnold v. Mower, ib. 561. counts, the proceedings abate, and his ^ Githens v. Good-win, 32 N. J. Eq. own representative must account anew. 286. As to reopening a settled account 3 Dem. 236. by proceedings in the probate court, see ^ Curtis v. Bailey, i Pick. 199. supra, § 526. ^ See supra, § 146. But see 2 Pen. "■ Mass. Pub. Stats, c. 144; 44 Hun (N. J.) L. 562. 687 § 5 32 EXECUTORS AND ADMINISTRATORS. [PART VII. and approved like any other final account.' But, without ap- propriate legislation, the probate court cannot, perhaps, order an account from one whose resignation has already been ac- cepted.^ The final probate decree, on settlement of the accounts of a removed representative, will conclude his sureties,^ who, together with himself, are answerable for any defalcation in the trust. It is not to be inferred, however, that a final settlement upon the accounts of a representative who has died, resigned, or been removed, while in the exercise of his functions, is a " final settle- ment," so to speak, of the estate ; for it is rather a transfer of the predecessor's just balance to the successor.^ The accounts of a successor should never be blended with those of his prede- cessor.5 Where a predecessor's final account is duly prepared and pre- sented •"' and the administrator dc bonis non is a party to such settlement, and represents the creditors and others interested, and afterwards such dc bonis non representative makes his own final settlement, there is a final settlement of the whole estate.^ § 532. Accounts by Co-Executors or Co-Administrators, Tem- porary Administrators, etc. — The accounts of co-executors or co-administrators may, in the practice of some States, be ren- dered on the oath of one of them. In Pennsylvania and some ^ Supra, § 156; Waller v. Ray, 48 == See 6 Tex. 130. Ala. 468 ; Sevier v. Succession of Gor- ^ Kelly v. West, 80 N. Y. 139. Stat- don, 25 La. Ann. 231. The parties to utes in some States authorize the pro- this final accounting are, besides next of bate court, upon a final account by a kin, legatees, or distributees, as the representative removed from his trust, case may be, the successor in the trust, to render a decree against him for the Waller v. Ray, 48 Ala. 468. Where balance in favor of the successor. 13 one is discharged or removed, persons Ala. 749. See, as to remedies for re- interested as creditors, etc., have the covering a balance found due on the usual right of objecting to the account, account of a predecessor deceased, Poulson V. Frenchtown Bank, t,3 N. J. Munroe v. Holmes, 9 Allen, 244 ; Bing- Eq. 518. The New York code specifies ham. Re, 32 Vt. 329. the persons who may call to account in " See 40 Miss. 747. such cases. 3 Dem. 251. A succeed- - Hamaker's Estate, 5 Watts, 204. ing administrator may contest the *' As by his own personal representa- account of his predecessor. 120 Cal. tive in case of his death, etc. §531. 698. ' State 7'. Gray, 106 Mo. 526. 688 CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 5 33 Other States, however, joint representatives may keep and file separate accounts, each charging himself with a part of the estate ; ' and, it is held, that on the settlement of a subsequent account by one, he is not chargeable with the balance in the hands of the other, however might be the case in a suit upon their joint bond.^ There may be advantage in such a course ; for, on general principle, the settlement of a joint account by co-executors or co-administrators, and its confirmation, showing a cash balance in their hands, admits and adjudges their joint liability ; and a division of the fund between them does not sever that liability ; ^ though, as to securities which appear to be uncollected, by their joint accounts, no conclusive liability, of course, arises.-* The separate accounts of co-representatives cannot be combined in making the distribution ; and, having filed separate accounts, they have no joint duty to distribute^ § 533- Effect of Lapse of Time, etc., upon Accounts. — Lapse of time may justify a refusal to order an account of administra- tion ; especially, in connection with other circumstances, such as the death of all the parties cognizant of the transactions, de- struction of the county records, and loss of papers ; for, other- wise, there would be danger of injustice to the deceased personal ' Davis's Appeal, 23 Penn. St. 206; Mass. Pub. Stats, c. 144. Where one, Bellerjeau v. Kotts, 4 N. J. L. 359. of co-executors presents his account for ^ Davis's Appeal, ib. settlement without the other's signature, 3 Duncommun's Appeal, 17 Penn. St. his associate may contest it. 4 Dem. 268; Laroe v. Douglass, 13 N. J. Eq. 364. A joint account by two executors 308. prima facie renders one of them liable ■• Lightcap's Appeal, 95 Penn. St. for contribution to the other who has 455. paid the balance. Conner v. Mc- 5 Heyer's Appeal, 34 Penn. St. 183. Ilvaine, 4 Del. Ch. 30. Co-executors, who have received and As to a temporary administrator's inventoried a trust fund held by their accounts, see local code. 4 Dem. 450. testator as executor, and have jointly In Massachusetts special administrators settled their final probate account, are are held to account whenever required jointly chargeable with the trust balance by the probate court; and public ad- ascertained to be in their hands, ministrators, who have given a general Schenck v. Schenck, 16 N. J. Eq. 174. bond, render an annual account of all See, also, §§ 400-406. The accounts balances in their hands, besides annual of joint executors or administrators may accounts as to each separate estate, be rendered on the oath of one of them. Smith Prob. Guide, 163. 44 689 §5 34 EXECUTORS AND ADMINISTRATORS. [PART VII. representative." Under ordinary circumstances, however, a lapse of time less than twenty years appears to constitute no bar to the ordering of a probate account ; - but, where the adminis- tration has been closed, and the representative formally dis- charged, it may be different.^ But, however it may be with a judicial accounting, a court may presume, a considerable time having elapsed since the es- tate should have been settled and the functions of the represen- tative terminated, that the debts have all been paid, in fact, and the affairs of the estate finally and justly settled. Final settle- ments ought to be seasonably and directly assailed, in order to avoid their effect as judgments importing verity.-* Where an account has been finally adjusted many years, those concerned acquiescing, apparently, in the settlement, it will not be reopened, except upon good cause shown for the delay,^ nor, usually, except to correct mistakes apparent ; but the representative may be cited at any time, to account for assets not included in his settled accounts, especially if they come to hand at a later date.^ § 534. No Account required from Residuary Legatee giving Bond to pay Debts, etc. — Where a residuary legatee has given bond as executor, to pay the testator's debts and legatees, a bill in equity cannot be maintained against him for an accounting for assets and administration in chancery ; nor, of course, can a probate accounting be compelled. For the assets of the estate ' Stamper tA Garnett, 31 Gratt. 550. Williams 7'. Petticiew, 62 Mo. 460. See As to a presumption of settlement after Schoul. Dom. Rel. § 372 ; Gregg v. lapse of time, see 9 Phila. (Pa.) 344. Gregg, 15 N. H. 790; Pierce v. Irish, ^Campbell v. Bnien, i Bradf. 224. 31 Me. 254; Smith 7>. Davis, 49 Md. Or even twenty-five years. 14 Phila. 470. 297. ^ See Davis I/. Cowden, 20 Pick. 510, ' See Portis 7>. Cumming.s, 14 Tex. where the delay shown was not such as 139 ; 5 Dem. 453. Local methods are imputed acquiescence in the account, not uniform in this respect. A decree * McAfee v. Phillips, 25 Ohio St. 374 ; comprising a settlement of the account supra, §526; Soutter, He, 105 N. Y. was refused a hearing after the lapse of 114. Under circumstances importing thirteen years, the death of the principal good faith, an account filed late might parties, etc. 79 Va. 468. be indulged as to specifying details. * State Bank 7'. Williams, 6 Ark. 1 56 ; 690 CHAP. I.] ACCOUNTS OF EXECUTORS AND ADMINISTRATORS. § 5 34 become part of his general property, and are no longer subject to the enforcement of a trust in favor of other legatees ; ' though his own estate is liable, like that of any debtor, for debts and legacies ; and his bond affords security for the benefit of all such claimants.^ 'Clarke v. Tufts, 5 Pick. 337; Mc- ^ Copp v. Hersey, 31 N. H. 317; Elroy V. Hatheway, 44 Mich. 399. supra, § 249. 691 §5 36 EXECUTORS AND ADMINISTRATORS. [I'ART VII. CHAPTER II. CHARGES AND ALLOWANCES UPON ACCOUNTS. § 5 35- W'hat is to be charged to the Representative, and what allowed Him. — In the present chapter we shall consider (i) what may be charged to the executor or administrator in his accounts ; and (2) what may be allowed him therein. We shall here suppose the account to have been prepared with items of the former kind debited to him as under schedule A., and those of the latter kind credited under schedule B.' § 536- Representative should charge Himself with Inventory Valuation as a Basis ; Corrections of Value, etc. — First, as tO charges. While bookkeeping accounts are usually conducted on the basis of receipts or payments in cash or their equivalent, the balance being struck accordingly, a peculiarity of account- ing in most of our probate courts is, that the accountant shall charge himself, first of all, with the total amount of personal property as returned in the inventory.^ Accordingly, he is compelled to carry forward in schedule A., the bulk of personal assets on the appraisers' valuation ; asking an especial credit in the schedule B., should any of these assets realize at a loss when disposed of, or be worth less for a distribution, than at their valuation ; and, accounting, in fact, for all assets which have come to either his possession or knowledge, and not for his actual receipts alone.^ On the other hand, should particular assets fetch more, or be worth more in computing the final bal- ance, than the amount stated in the inventory, the representa- ' See supra, § 524. Every item of partnership affairs, if the surviving part- receipt and expenditure should be dis- ner be executor. zBradf. 165; 17 Abb. tinctly entered in the account. Hutch- (N. Y.) Pr. 165. inson's Appeal, 34 Conn. 300; Jones, ^ See Began v. Walter, 12 Sm. & M. Re, I Redf. 263; 4 Day, 137. The 666. account should include a statement of ^ 49 N. J. Eq. 552. 692 CHAP. II.] CHARGES AND ALLOWANCES UPON ACCOl'XTINi ;. ^ 537 tive must charge himself with the excess. So, too, if assets inventoried as desperate and valueless, turn out to be worth something, their proper worth, or what they have actually real- ized, is to be debited to him in the account. F'or, an inventory appraisal is prima facie and not conclusive proof of the repre- sentative's liability for a corresponding amount ; the real test of liability by which his accounts shall be settled being, whether he has bestowed honesty and due diligence in collecting, realiz- ing upon, preserving, and disbursing the assets." § 537- Amounts to be added; Representative charged with Personal Assets not inventoried ; Profits, Income, Premiums, In- terest, etc. — Indeed, amounts received from all sources not included in the inventory, of the nature of personal assets, should be charged to the accountant, by suitable items, in the administration account ; not specific gains upon the inventory valuation alone, but new assets, or such as from ignorance, inad- vertence, or any other cause, were omitted from the inventory itself,^ and the income, interest, profits, premiums, and usufruct of every description, derived out of the assets in the course of a prudent and faithful administration ; including premiums re- ceived, and interest with which the representative ought to be charged, because of culpable carelessness or his personal appro- priation and misuse of the assets.^ The profits accruing out of the decedent's estate should all be accounted for, whether they accrue spontaneously or by the representative's acts.-* But ' Weed V. Lermond, t^t, Me. 492 ; is no increase, profit, etc., that fact Craig V. McGehee, 16 Ala. 41. The should be stated, i Redf. (N. Y.) 263. items of the inventory need not be re- * Wms. Exrs. 1657, 1847. And see peated in the account ; but only the Sugden v. Crossland, 3 Sm. & G. 192. gross amount debited. Sheldon v. The wilful omission of the representa- Wright, 7 Barb. 39. tive to charge himself with assets com- ^ But, by the practice of some States, ing to his hands has been held ground a new inventory should be filed in such to set aside his settlement for frauil. cases. Supra, § 230. Houts v. Shepherd, 79 Mo. 141. 3 Sugden v. Crossland, 3 Sm. & G. The discussion of a representative's 192; Allen w. Hubbard, 8 N. H. 487; Uability, in former chapters, may suffi- Liddell ?■. McVickar, 11 N. J. L. 44. ciently .show what an executor or admin- Income should be stated as a separate istrator should be charged with. A item from the principal. 11 Phila. 1 13; cardinal principle in all trusts, already Stone V. Stilwell, 23 Ark. 444. If there adverted to, is that the fiduciary shall 693 §538 EXECUTORS AND ADMINISTRATORS. [PART VII. where a legatee or distributee has once been settled with, and the executor or administrator holds one's securities as agent, he is no longer accountable as executor or administrator.' If the representative charges himself with interest, he may in various cases be justly allowed dividends as an offset.^ § 538. Charging the Representative with Interest. — Chancery and probate courts, in modern practice, will compel the execu- tor or administrator to charge himself in his account with inter- est, and, in gross instances, with compound interest, where he has abused his trust. This is a doctrine applicable, both in England and America, to all trustees who prove delinquent or dishonorable in the management of the estate confided to them. The charge appears to be supported on either of two sufficient grounds : one, that, by perverting the fund in question to his own use, the fiduciary has made a probable profit for which interest, or compound interest, may be supposed a fair equiva- make no personal profit out of the trust beyond what a court may fitly allow him by way expressly of compensation for his services; and that, whatever the gains out of the assets, whether in the course of a rightful management or a perversion of his trust, shall go to en- hance the fund, and not to enrich him- self, and shall be duly accounted for. Sit-pra, §§ 322, 332. Profits out of a lease belonging to the estate, profits out of a trade of the decedent pursued by the representative, profits out of a purchase of assets, profits out of an investment made with the assets, profits arising from a composition, discount, or deduc- tion of a claim upon the estate, all come within this broad principle. Purchases of assets, or of the claims of creditors, legatees, or distributees upon the estate, by the representative, are, if not neces- sarily void, treated, at all events, with marked disfavor, especially as to the profit he may make on them, and may usually be avoided by interested parties. Supra, §§ 358, 3C3 ; Trimble v. James, 40 Ark. 393. And see Wms. Exrs. 1S42, and Perkins's note; Cook v. Collingbridge, Jacob, 607 ; Hall v. Hal- lett, I Cox, 134; Wedderburn v. Wed- derburn, 22 Beav. 100. The personal representative is not authorized to take assets at their appraised value to his own use and make what profit he may out of them. Weed v. Lermond, t^^i Me. 492, Bonuses from borrowers be- long to the trust estate. Savage v. Gould, 60 How. Pr. 217; Landis v. Saxton, 89 Mo. 375. One who trades or operates with the assets must account to the estate for all the profits realized. Haberman's Appeal, loi Penn. St. 329. Premiums received where gold com- manded a premium should be accounted for. 17 S. C. 521; 20 S. C. 64; 37 S. C. 1 23. Also the profit made on some purchase of assets inconsistent with his duty, reserving, however, the amount of his private disbursement. 80 Ala. II. ' 31 Hun, 420. - Dudley 7\ Sanborn, 159 Mass. 185. 694 CHAP. II.J CHARGES AND ALLOWANCES UPON ACCOUNTING. § 538 lent ; the other, that loss of interest, occurring through his remissness or misconduct, should be made up to the fund. In other words, all profits made with trust moneys, belong to the trust ; and, furthermore, a culpable failure to make profit for the estate, out of funds which should have been made produc- tive, is a waste.' Executors and administrators, however, are charged with more reluctance than trustees, for simply letting funds lie idle, since their primary function is to administer and not to invest ;^ but, for any wilful perversion of the assets, they are doubtless chargeable.^ During the first year, after the decedent's death, ' Trustees in general are made liable for interest, where they delay unreason- ably to invest, or mingle the trust money with their own, or neglect to settle their accounts or pay over the money, or dis- obey directions of the \\-ill or of a court as to the time or manner of investing, or embark the funds in trade or specula- tion without authority, etc. Perry Trusts, §§ 468-472. Where extra profits or bonuses are made by a trus- tee, they belong to the estate. lb. § 468. Compound interest is rarely charged by the English chancery un- less there was more than mere negli- gence; some wilful breach of trust in effect. lb. § 471. See as to payments made through mistake of law, Hulkes, Re, T,}, Ch. D. 552. Though, on princi- ple, it would appear that if the trustee has probably derived actual profit of interest, compounded with periodical rests, from the manner of using the money, compound interest should be charged him by way of a just account- ing, independently of good or bad faith on his part. If a trust company as ex- ecutor issues its own certificates of deposit for the fund, this is essentially using the trust money for its own pro- fit. 62 Minn. 408. See as to compound interest in cases of administration, English v. Harvey, 2 Rawle, 305 ; Slade v. Slade, 10 Vt. 192; McCall, Estate of, i Ashm. 357; Scott V. Crews, 72 Mo. 261 ; Clark, Estate of, 53 Cal. 355 ; Wms. Exrs. 1851, and Perkins's note; Jones z/. Fox- all, 15 Beav. 388 ; Jennison v. Hapgood, 10 Pick. 77; Blake v. Pegram, 100 Mass. 541 ; 2 Barb. Ch. 213; Hook v. Payne, 14 Wall. 252. ^ Supra, § 322 ; Wms. Exrs, 1844- 185 1, and Perkins's notes. As to indemnifying interest for long delay in proving a will, see Stevens Re, (1898) I Ch. 162. 3 Executors and administrators are liable for interest if they mingle assets with their private funds. Griswold v. Chandler, 5 N. H. 492 ; i Johns. Ch. 50, 527, 620; Jacob V. Emmett, 11 Paige, 142; 4 Cranch C. C. 509; Grigsby v. Wilkinson, 9 Bush, 91 ; Troup 7\ Rice, 55 Miss. 278 ; 53 Cal. 355. And see 11 Ala. 521. Or, where they are unreasonably delinquent in pay- ing, investing, or disbursing funds, as the law, the testator, or the court may have expressly directed. 3 La. Ann. 353, 574 ; Smithers v. Hooper, 23 Md. 277 ; 6 Daly, 259; Hough z'. Harvey, 71 111. 72. And this delinquency may involve a delinquency in accounting. 23 Md. 273; Lommen v. Tobiason, 52 Iowa, 665. Or, where the money is used for private gain and speculation. Davis, Matter of, 62 Mo. 450. Where they 695 § 538 EXECUTORS AND ADM IXIS IRATORS. [pART VII. more especially, the person who administers must often keep large sums in his hands lying idle, and negligence is not readily inferred from such conduct, but often the reverse ; though, to keep money long in his hands, unproductive, might charge him.' fail to account for interest or profits actually produced by the assets, they are liable to be charged with the highest rate at which profit might have been made, and, at all events, with interest at current rates. Ringgold r'. Stone, 20 Ark. 526; 3 Harring. 469; English v. Harvey, 2 Rawle, 305. A conversion of productive property into cash, long before it becomes needful for the pur- poses of the estate, may be cupable negligence, so as to charge th6 repre- sentative \nth interest. Verner, Estate of, 6 Watts, 250. Upon the executor's or administra- tor's own debt to the estate, the usual niles of interest apply, as to other debt- ors. Supra, § 250. Interest may be recoverable from an executor on legacies, and, perhaps, on debts or claims which are not seasonably paid, and whether he shall be re- imbursed from the estate depends upon his own conduct as justifying the delay or not. Supra, §§ 440, 481. See Saxton v. Chamberlain, 6 Pick. 423, as to examining the executor or administrator upon oath, in order to ascertain whether he is liable for inter- est. Interest actually received must of course be accounted for. Supra, § 537- And, if a representative improperly em- ploys funds in trade or speculation, the beneficiaries may elect to take the profits instead of interest. Wms. Exrs. 1847 ! Rocke V. Hart, 1 1 Ves. 61 ; Robinett's Appeal, 36 Penn. St. 174; supra, § 338. Where an executor or administrator dies in office, liability for interest may be suspended while the estate is unrep- resented. 6 Rich. 83. On improper payments disallowed in his account, one is not readily to be charged with interest. Clauser's Estate, 84 Penn. St. 51. As to interest on uncollect etl claims, see Strong v. Wilkinson, 14 Mo. 116. One who has diligently and faithfully discharged his trust of administration is chargeable only for the interest he has made. 11 N. J. L. 145; 6 Dana, 3; 16 S. & R. 416. And for a mere delay in making returns, where the col- lection, management, and disbursement of assets has been prudent and honor- able, interest is not usually imposed. Binion v. Miller, 27 Ga. 78. But, if such delay involves the beneficiaries of the estate in great cost and trouble, it may, perhaps, be otherwise. lb. See also Davis, Matter of, 62 Mo. 450. Closing a deposit which bore interest, and transferring the fund to a bank which pays no interest, before it was necessary to do so, does not render the executor or administrator liable for interest, provided he does not mingle it with his own moneys, or use it for his own profit, or deposit it in his own name, or neglect unduly to disburse or settle his accounts. Wms. Exrs. 1844; McQueen, Estate of, 44 Cal. 584; 12 S. C. 422. ' Wms. Exrs. 1844, and Perkins's note; 2 Cox, 115 ; 3 Bro. C. C. 73, 108, 433; Ashburnham v. Thompson, 13 Ves. 401. In Griswold v. Chandler, 5 N. H. 497, it is observed that where the administrator, without any just rea- son, retains money in his hands unem- ployed, when it ought to be paid over, or receives interest for money which belongs to the estate, or applies it to his own use, he ought to be charged with interest, but not otherwise. And see Stearns v. Brown, 1 Pick. 531 ; 696 CHAP. II.] CHARGES AND ALI-OWANCES UPON ACCOUNTING. § 5 39 Whether the personal representative shall justly be charged with interest on funds belonging to the estate, the particular circumstances in each case must determine. American practice does not appear to favor charging the representative with inter- est upon funds which he is prepared to disburse, and denying him his commissions or compensation besides, unless some wil- ful default be shown.' Local statutes, however, supply local rules on this subject. - § 539- Charges on Account as Concerns Real Estate or its Proceeds or Profits. — Real estate, we have seen, may be inven- toried under a separate head ; but it is the amount of personal property alone, as returned in the inventory, for which a repre- sentative is primarily chargeable in account, since one does not, in that capacity, deal usually with a decedent's real estate, unless an emergency arises.^ Nor do rents of land go properly into an administration account, to be blended with items of personal assets ; as the outlay or distribution of such funds follows dis- tinct rules.-* If the heirs or devisees permit the representative to manage real property, his account becomes most naturally a special account with them as their attorney.^ Where, however, real estate has been sold under a license for the payment of debts, or under a power contained in a will, or in some other manner lands or their proceeds come into the hands of the executor or representative, to be managed and dealt with as personal assets, they enter into the usual administration ac- count together with rents and profits subsequently accruing ; the representative taking due care to settle the same with those properly entitled thereto.'' Real estate may well be accounted for under such circumstances, under special schedules ; and so Knight 7J. Loomis, 30 Me. 204; Ogilvie est where the representative draws fund V. Ogilvie, I Bradf. 356. Pursuance of from bank, see 183 Penn. St. 647. duty, in accordance with the principles ^ Clark v. Knox, 70 Ala. 607. we have discussed, affords a fair test. ^ Supra, §§ 213, 509. An executor charged with special duties " Supra, § 510 ; 11 Phila. 1 18. maybe bound to invest and not leave ' With regard to expenses of laborers, funds long idle. etc., in getting in crops, see 70 Ala. 63 ; ' Troup V. Rice, 55 Miss. 278 ; Lloyd's § 307. Estate, 82 Penn. St. 143. As to inter- * See Boyd, AV, -i Redf. 1 54 ; P.ul VI., 697 § 540 EXECUTORS AND ADMINISTRATORS. [PART VII, with all funds set apart agreeably to law or a testator's direc- tions for special purposes. In a few States, moreover, as we have seen, both the real and personal property of a decedent is temporarily managed by his executor or administrator." If in the sale or management of the land, under due author- ity as above, the representative is guilty of culpable negligence or bad faith resulting in loss to the estate, he may be charged with such loss on his accounting.^ On the other hand he should be allowed for all expenses fairly incurred upon such property in the discharge of his trust. ^ § 540. Charges on Account ; Miscellaneous Points. — In adjust- ing an administration account, the probate court has authority to require that assets not inventoried nor credited by the exec- utor or administrator, shall nevertheless be accounted for.* And the validity of a claim against the executor or administrator in favor of the estate, as growing out of his misappropriation or abuse of trust, may thus be established. 5 Where the executor's or administrator's accounts are not only untrustworthy, but of a most suspicious character, he is readily liable to be charged with omitted assets against his own state- ments ; though the question is, after all, one of evidence.'' On the other hand, where the representative has acted ap- parently in good faith and for the best interests of the estate, and c. 2. Chattels real, leases, etc., of course, < Boston v. Boylston, 4 Mass. 318; if sold or underlet, enter into adminis- Hurlburt v. Wheeler, 40 N. H. 73; tration accounts with personal property. Wills -v. Dunn, 5 Gratt. 384. Sup7-a,% 22.T,. See Gottsbergerz/. Smith, 'Gardner?/. Gardner, 7 Paige, 112; 2 Bradf. 86. Ho vey z/. Smith, i Barb. 372. If, in the ' Supra, § 510. administration account, the representa- = Haight 7'. Brisbin, 100 N. Y. 29; tive does not charge himself with any Brown v. Keed, 56 Ohio St. 264. property whatever, but enters simply, ^ Part VI. supra; Dey v. Codman, "the appraisers made no return of per- 39 N. J. Eq. 258; 87 N. C. 34. sonal property," the court does not, by A. finished a house partly erected by decreeing allowance, find that there was his wife, being her administrator, igno- no property, etc. Moore v. Holme.s, 32 rant that she had left a will, and sup- Conn. 553. po.sing himself life tenant of the prem- * Downie v. Knowles, 37 N. J. Eq. ises. He was allowed credit with its 513. cost on his account. .Sewell v. Sling- luff, 62 Md. 592. 698 CHAP. II.] CHARGES AND ALLOWANCES UPON ACCOUNTING. § 54 1 the probate court approved his acts at the time, he deserves pro- tection, whether all his acts were technically legal or not.' § 541- Allowances to the Representative; Disbursements, Losses, etc. — Second, as to what shall be allowed an executor or administrator in his accounts. The opposite schedule of the administration accounts, or schedule B., exhibits amounts paid out in detail, and such sums, by way of charge to the estate, as the representative may claim for allowance. As to the amounts paid out, all proper disbursements made by the executor or ad- ministrator with due regard to rules of priority and limitations as to creditors, in the course of settling the estate, should here be credited ; and whether the debt or claim originated with the decedent, or with himself, he is entitled to its allowance and credit, if it be fitly charged against the estate on the general principles of law which apply to administration.^ Even though he paid before he was obliged to do so, he is entitled to full credit if the estate suffered no damage by it.^ The expenses incurred in realizing a particular fund, or collecting a particular claim, are properly charged accordingly, so as to present a net result.' Following the general maxims, elsewhere fully discussed, each credit should be allowed according to what was honestly and prudently disbursed. If the representative has paid off claims at a discount, the estate shall reap the benefit ; 5 while, for what he may have paid out imprudently, or dishonestly, or illegally, full credit cannot be allowed.'' Claims which have been paid in the exercise of a sound and prudent discretion, where the local practice leaves this fiduciary to settle and adjust with creditors, should be allowed ; ^ and it is not enough for their disallowance, ' Owen w. Potter, 115 Mich. 557. Ga. 75; Chevallier ?'. Wilson, i Tex. ^ Supra, § 441 ; Edelen v. Edelen, 11 161. See 8 N. H. 444. Md. 415. "Expenses of settling the ^ .5>c/rrt, § 431. estate" ought to be specified by items, ^ See supra. Part V., c. i; Rogers not allowed as a gross sum. 30 Conn. v. Hand, 39 N. J. Eq. 270, where a 205. claim was compromised to avoid litiga- 3 Millard v. Harris, 119 111. 85. tion, and the residuary legatees opposed *■ Hays's Estate, 153 Penn. St. 328. the settlement. Taxes (personal) paid 5 Paff V. Kinney, i Bradf. Sur. i ; with rea.sonable prudence are allowable, supra, § 638; Carruthers v. Corbin, 38 even though the tax was subsequently declared void. 142 Mo. 187. 699 § 542 KXECUTORS AND ADMINISTRATORS. [PART VII. that their payment might possibly have been resisted.' The same considerations hold true of paying allowances to widow or children, legacies and distributive shares. As distribution can only be safely made upon a final surplus, an administration ac- count which credits all advancements to distributees, as they happen to be made, without reference to the respective shares and their amounts, is erroneous in form.'' Disbursements by way of distribution are to be reckoned on a division of the bal- ance, all distributees being treated fairly. And on such a basis, for whatever is advanced by the representative to parties in inter- est he may reimburse himself.^ What a retiring representative pays over to his successor he should be credited with.-* Where assets realize less on sale or collection, or otherwise prove less valuable than as appraised in the inventory, the loss or depreciation should be stated by way of credit ; 5 and if proper, allou^ance will be made accordingly.'' Nothing can be allowed one, however, inconsistent with the just fulfilment ( f his fidu- ciary obligations ; but he is chargeable with all losses resulting from his maladministration. ^ § 542. Allowances to the Representative; Subject continued; his Reasonable Expenses, etc. — Disbursements credited may include expenses of last sickness, the funeral and burial ex- ' Frazer, Ke, 92 N. Y. 239. stock. Jones, Ex parte, 4 Cr. C. C. ^ Pearson v. Darrington, 32 Ala. 227 ; 185 ; Jones, Re, i Redf. 263. Or -where Rittenhouse v. Levering, 6 W. & S. 190 ; a debtor, supposed with good reason to Adair v. Brimmer, 74 N. Y. 539; § 527. be good, turned out insolvent. CHne's 3 See Part V., c. 5; Lyle z/. WilHams, Appeal, 106 Penn. St. 617. Or in case 65 Wis. 231 ; Gundry 7'. Henry, 65 Wis. of a prudent deposit of funds in a bank 559; Kost's Appeal, 107 Penn. St. 143. which afterwards fails. 38 N. J. Eq. < Even though he pays before his 259. See Part IV., cs. 2-5. successor cjualifies, he may credit him- ' As where he pays claims in full self with the payment, so long as the regardless of the priority of other successor becomes duly charged with it. claims. 108 Ala. 209. Or incurs ex- Allen V. Shriver, 8j Va. 174. pense in suing a debt due from him- 5 For, reckoning upon the basis of self to the estate. 150 Penn. St. 307. an inventory value, the accountant Where he fails to keep accounts, a debits himself with gain, and credits credit in obscurity or doubt which he himself with loss, instead of accounting claims is treated unfavoral)ly to him. for gross amounts actually realized. 54 N. J. Eq. 371. * Supra, § 362. As upon a sale of 700 CHAP. II.] CHARGES AND ALLOWANCES UPON ACCOUNTING. § 542 penses, the outlay for cemetery lot and monument, all of which have been sufficiently discussed ; ' together with those other preferred claims, commonly styled the charges of administra- tion, as to which last, the representative submits his claim, as for a personal allowance, more directly to the discretion of the court upon accounting. For an executor or administrator can- not pay himself ; but his compensation is judicially decreed, either expressly or by the allowance of his account.^ All rea- sonable charges incurred for the benefit of the estate are to be allowed to a faithful representative, together with a reasonable recompense for his trouble.^ And thus may he be indemnified against loss upon contracts relating to the estate, where he has necessarily incurred a personal liability. ■♦ Thus, where the executor or administrator pays a debt or discharges an obligation, which constituted a just charge against the estate, out of his private funds, he may claim an allowance for the same in his account. 5 And though he should have paid prematurely, yet for that which, regarding legal priorities, was then justly payable, he may claim remuneration.-' Payments made in good faith, under a dc facto appointment, may be al- lowed, notwithstanding a revocation of the appointment after- wards.7 A sacrifice of assets to meet obligations may be justi- fied as not unreasonably imprudent.'* And, where the proper disbursements exceed the receipts, relief may be had from other property belonging to the estate, as from the decedent's lands, if the personal assets prove insufficient.'^ The charge of inter- ' See supra, §§ 421, 422. And as to ^ Bloomer v. Bloomer, 2 Bradf. 339; necessaries for support of the family, supra, § i6o; Sewell v. Slingluff, 62 see supra, § 448. Md. 592. ^ See Collins v. Tilton, 58 Ind. 374. ^ Or, of course, as necessary, in order ^ Nimmo v. Commonwealth, 4 H. & to comply %\nth the law. Wingate v. M. 57; Pearson v. Darrington, 32 Ala. Pool, 25 111. 118. 227; Edelen v. Edelen, 11. Md. 415; ' Reaves v. Garrett, 34 Ala. 558; Glover v. Halley, 2 Bradf. 291 ; Clarke Clayton v. Somers, 27 N. J. Eq. 230. V. Blount, 2 Dev. Eq. 51 ; Wilson, Re, Usurious payments are unfavorably 2 Penn. St. 325. But see supra, § 315. regarded, and yet they may be allowed '■ Supra, § 259. in meritorious instances. Coffee v. 5 Woods V. Ridley, 27 Miss. 119; Ruffin, 4 Coldw. 487. See 2 P. & H. Watson V. McClanahan, 13 Ala. 57. (Va.) 124. The expense of keeping a '' Johnson •z' Corbett, 11 Paige, 265. horse which could not be sold may be 701 § 542 EXECUTORS AND ADMINISTRATORS. [pART VII. est by a representative, for payments from his own means, is viewed with suspicion ; yet interest may be allowed him on sums advanced by him, for necessary outlays to preserve the assets or for debts carrying interest.' But special costs and expenditures, incurred through the representative's own culpable carelessness or misconduct, he cannot fasten upon the estate.^ Nor can he claim interest from the estate, for debts paid and advances from his private funds, where he might have met such demands seasonably out of the assets.-^ Nor be credited with payment made for debts unauthorized by law, from a sense of honor and to save family disgrace ; for such payments, if honorably made, are made from one's own means.' For whatever losses or impairment of as- sets may have been occasioned by the representative's want of due diligence or bad faith, by his disobedience to the directions of a will, of a local statute, or of the general law pertaining to the administration of the estate intrusted to him, he is account- able.5 Nor can one charge the estate for looking up or litigat- ing some interest purely of his own, as an heir or otherwise.'' Expenses incidental to a sale of assets, including, if proper, allowable. 7 J. J. Marsh. 190. And liable. 8 B. Mon. 461. Or where he see § 327. pays without a sufficiency of assets, ' Liddell v. McVickar, 11 N.J. L. debts to which others should have been 44; Mann v. Lawrence, 3 Bradf. 424. preferred. See Part V.,c. i. In Evans A novel question (1899) which is ?'. Halleck, 83 Mo. 376, the court would likely to be frequently discussed, relates not subrogate him to the rights of a se- to the right of one to charge an estate cured creditor whom he had mistakenly specially with the cost of procuring paid. sureties on his bond, or more particu- ^ Billingslea v. Henry, 20 Md. 282. larly for paying a guaranty company. '' Jones v. Ward, 10 Yerg. 160. See 51 La. Ann. 490; Eby's Estate, ' Part IV., cs. 2, 5 in detail ; Weldy's 164 Penn. St. 249 (not allowed). The Appeal, 102 Penn. St. 454. A loss of rent of a box in a safe-deposit vault property occurring through the repre. may be allowed to the representative, sentative's culpable neglect to apply for Dudley z/. Sanborn, 159 Mass. 185. anorderof distribution has been charged See as to costs, (1897) 2 Ch. 190. to him. Sanford v. Thorp, 45 Conn. ^ Brackett v. Tillotson, 4 N. H. 208; 241. Cf. 8 N. H. 444. And for dam- Robbins v. Wolcott, 27 Conn. 234. ages to distributees by his unreasonable Losses occurring through his negligence delay. 71 Ala. 163. in taking a refunding bond from distrib- ''Glynn's Estate, Minn. And see utees may render the representative 163 Penn. St. 35. 702 CHAP. II.] CHARGES AND ALLOWANCES UPON ACCOUNTING. § 542 an auctioneer's bill, may be thus charged to an estate ;' and in certain sales a broker's services are well employed.^ Under some circumstances, considering the condition of the estate, the expense of an agent, collector, or bookkeeper, may be charged to a reasonable amount ; ^ though not as an extra charge, where the agent was needlessly employed to do what the representative might personally have done.'* Likewise, the cost of publishing citations, and other expenses attending the probate proceed- ings. 5 Or valuable services rendered in procuring assets, and even the services of a detective or other expert, or of some one employed to procure evidence or serve as a witness, where the service was needful or just.^ Whether the executor or administrator can claim for travel- ling expenses to and from court, or board and lodging, will depend upon custom and the special circumstances; and all expenses of this nature must have been reasonably and bona fide incurred in prosecuting the business of the estate ; ^ but a collateral relative cannot charge the estate for offices properly gratuitous and kind, even though he be executor or administrator,^ An executor or administrator should not charge the estate for services rendered by him during his decedent's lifetime, of apparently a gratuitous character or recompensed by a legacy ; ' Pinckard v. Pinckard, 24 Ala. 250. v. Peabody, 64 Ga. 729. In England, This does not include liquors furnished clerk-hire, etc., is more naturally al- at an auction, nor usually any refresh- lowed, because the fiduciary can receive ments to customers. Griswold v. no personal compensation. See Perry Chandler, 5 N. H. 492. As to pur- Trusts, § 912. chasing lumber, see 31 Oreg. 86. ^ Lewis, Re, 35 N. J. Eq. 99; Greene ^ See Myrick Prob. 86 ; Tucker v. v. Grimshaw, 1 1 111. 389. Tucker, 29 N. J. Eq. 286. '' Disallowed in 3 Hayw. 123. An 3 McWhorter v. Benson, Hopk. 28 ; administrator has no right to charge Morrow v. Peyton, 8 Leigh, 54 ; Hen- considerably more by reason of living derson v. Simmons, t^t, Ala. 291 ; 16 at a distance from the place where his La. Ann. 256; i Harp. Ch. 224; 121 duties have to be performed. Watkins Cal. 609. And see 16 Abb. Pr. N. s. v. Romine, 106 Ind. 378. Actual trav- 457. elling expenses were allowed in Dey v. * Gwynn v. Dorsey, 4 Gill & J. 453. Codman, 39 N. J. Eq. 258. As to travel 5 Reynolds v. Reynolds, 1 1 Ala. 1023. on business of the estate with one's own In American practice, a charge for cleri- horse, carriage, and fodder, see 4 Dem. cal services is not generally allowed, 536. See also 31 Oreg. 86; 122 Cal. though special circumstances may jus- 260. tify such charges. 3 Redf. 465 ; Miles ^ Lund v. Lund, 41 N. H. 355. 703 § 543 EXECUTORS AND ADMINISTRATORS. [PART VII. nor upon any iniquitous claim.' But for a bona fide debt due him by the decedent, he may claim allowance as creditor on the usual footing ; all proper offsets being duly reckoned.^ Profits that should have been made as well as those actually made out of the assets may be charged in a strong case against the repre- sentative, as a penalty for his fraud or obvious mismanagement, and so as to put the estate at its just value. ^ And whatever the true principle as to requiring an executor or administrator to charge himself absolutely with a debt which he personally owes the estate,-* there can be no doubt that if he was well able to pay when he assumed the trust, he should be charged with it on his final account, though by that time he was insolvent. 5 But an executor or administrator who in a proper case of doubtful title is party to a bill of interpleader, is not, pending its determination, chargeable with a sum which may ultimately be decided to belong to the estate.*' Nor is the representative necessarily to be charged with the difference between what was offered him for property of the estate and what he sold it for ; the question being his exercise of good faith and due care and diligence under all the circumstances.^ S 543. Expenses of Education, Maintenance, Advancements, etc. Expenses of education and maintenance devolve, usually, upon trustees under a will and guardians, rather than upon the fiduciary who administers and distributes the estate.- An ad- ministrator cannot in general be credited, in his accounts, for board, clothing, or other necessaries of his adult distributees ; '> ' Egerton 7'. Egerton, 17 N. J. Eq. ness of a firm of which he is a member. 419; supra, § 431 ; Pursel v. Pursel, 14 95 N. Y. 340. See 88 N. C. 407. N J. Eci. i;i4. * Sanderson v. Sanderson, 20 Fla. ^ Supra, § 439. See further, Kerr v. 292. Hill, 2 Desau. 279; Dickie v. Dickie, ^o N. J. Eq. 158; Part IV., c. 3; 80 Ala. 37. § 537- 3 Grant 7'. Reese, 94 N. C. 720. ^ See Perry Trusts, 1 17, 612 ; Schoul. " See § 208 ; Baucus v. Stover, 89 Dom. Rel. 3d ed. § 238. N. Y. I (which reverses s. c. 24 Hun, ' Brewster v. Brewster, 8 Mass. 131 ; 109). And see 69 Cal. 239. Trueman v. Tilden, 6 N. H. 201 ; V^illis 5 Condit V. Winslow, 106 Ind. 142. '«. Willis, 9 Ala. 330; Sorin v. Olinger, Under the New York code the repre- 12 Ind. 29; 10 Sm. & M. 179; 8 Jones sentative is chargeable for the indebted- L. 111. Rent of a family pew, occupied 704 CHAP. !I.] CHARGES AND ALLOWANCES UPON ACCOUKTI \( ;. § 544 for such outlay, if matter of allowance at all, affects only the method of paying fully the share of an individual distributee, as if the representative advanced him so much money. On a settlement of administration accounts, one is not properly credited for money advanced by him to a distributee ; but the amount may be charged by him against the distributee when the latter's distributive share is ascertained.' But statute al- lowances to widows and young children stand on their own peculiar footing ; ^ and, as to executors, these may have the right and duty of applying sums for education and maintenance, in exceptional instances, under a testator's directions.^ Upon equitable principles our probate courts may allow either to execu- tors or administrators sums advanced for an infant legatee's or distributee's education and maintenance; and such jurisdiction, it is held, may be implied even if not expressly conferred.'' Charges for the maintenance or education of the decedent himself are reckoned like other claims against an estate ; and, while the representative's own charge in such connection invites scrutiny, it may, if proper, be allowed him. 5 § 544. Allowance of Counsel Fees, Costs, etc. — Executors or administrators who ask legal advice, employ counsel, or incur costs in litigation on behalf of the estate, may claim reasonable allowance for the same in their accounts, such employment be- ing reasonable and proper.^ It is the duty of a representative by the family after the testator's death, Rogers v. Traphagen, 42 N. J. Eq. 421 ; follows this rule. Scott v. Monell, i 39 N. J. Eq. 258 ; 20 Fla. 262 ; Gil- Redf. 431. And see State v. Donegan, fillen's Estate, 170 Penn. St. 185 ; Ford 83 Mo. 374. V. Ford, 80 Wis. 565; 6 Houst. 552. ' Dickie v. Dickie, 80 Ala. 57 ; Fitz- ' Malony's Appeal, 11 S. & R. 204 ; gerald's Estate, 57 Wis. 508. Wall's Appeal, 38 Penn. St. 464. And ^ Supra, § 451 ; Mead v. Byington, see 4 Redf. 380. 10 Vt. 116; I Har. & J. 227 ; Simmons ^ Wms. Exrs. i860; Macnamara v. V. Boyd, 49 Ga. 285. Jones, Dick. 587 ; 24 W. R. 979. See 3 Triggs V. Daniel, 2 Bibb, 301 ; also § 256. The fact that the adminis- Harris v. Foster, 6 Ark. 388. trator was insane when he paid does ■• Hyland v. Baxter, 98 N. Y. 610. not deprive him of such credit. 95 And see Munden v. Bailey, 70 Ala. 63. N. C. 265. Reasonable compensation Moneys may be thus expended in good for services and expenses in rectifying faith and properly for infant legatees mistakes made without the representa- or distributees who have no guardian, tive's fault is allowed. Bartlett v. Fitz, 45 705 § 544 EXECUTORS AND ADMlNISTRAtORS. [PART VII. to defend the estate against claims which he honestly, or upon reasonable grounds, believes to be unjust ; and these expenses should be reimbursed, even though the suit be lost ; ' and cer- tainly, if the estate benefit by it. The principles are those dis- cussed elsewhere : good faith and ordinary prudence on his part, in protecting the interests he represents, are all that may be exacted of him ; ^ and, in employing counsel, he incurs a per- sonal liability, his lien on the assets serving for his own indem- nity.^ With such reservations, the expenses of a litigation bona fide incurred, whether for procuring the probate of a will or one's appointment, or in the due course of administration, as in the pursuit of assets, or in resistance to creditors, or in asking instructions of the court, as also by way of accounting in com- pliance with the law and the terms of his bond, are allowed, with considerable indulgence, out of the assets, that a faithful representative may not personally suffer."* These considera- tions apply to taxing court costs, or to the fees of attorneys and 59 N. H. 502. Or even in litigation bona fide upon a doubtful claim and unsuccessfully. Polhemus v. Middle- ton, 37 N. J. Eq. 240. Some States, in practice, are opposed to giving credit for attorney's fees paid by the fiduciary to a firm of which he is a member. 93 Ind. 121. But in other States a fiduciary who is also a profes- sional lawyer, is entitled to make the usual professional charges, provided his whole recompense be fair and reason- able. 70 Ala. 607. ' 32 Ala. 227 ; 6 Greenl. 48 ; 6 Allen, 494; 19 N. H. 205; 35 Miss. 540; 31 Penn. St. 311 ; 28 Vt. 765 ; 4 Redf. 302. ^ Supra, § 314. ' Supra, § 256 ; McHardy v. Mc- Hardy, 7 Fla. 301 ; Parker v. Day, 155 N. Y. 383. "■ Wms. Exrs. 376, 594, 860, 1894 ; U. S. Digest, I St series, Executors and Administrators, 3908-3935 ; cases su- pra ; T^T) Ala. 291; 8 Gill, 285. One may specially limit his liability by a contract that the attorney shall look to the estate alone for payment. 58 Md. 58. As to the liability of executors or administrators for costs, upon a non- suit or a verdict against them, see Wms. Exrs. 1894, 1897, 1980. Costs in suits asking directions under a will, etc., and in such other amicable litigation as may be justifiable under the particular cir- cumstances, are usually allowed, at the court's discretion, out of the estate. Wms. Exrs. 376, 2034, 2038 ; L. R. i P. & D. 655 ; I Paige, 214 ; 31 N. J. Eq. 234; 159 Mass. 185. And to such awards probate and equity courts incline in their own formal practice. In pro. bate causes, in some States, however (probate proceedings being conducted somewhat informally), it is not custo- mary to allow costs to either party. 12 Allen, 17 ; 7 Gray, 472. And see 4 Redf. I . Local practice usually deter- mines the question of costs, independ- ently of external jurisdictions. Contingent fees, or fees beyond those taxable, may be consistent with local practice. 2 H. & M. 9 ; 29 Miss. 72. But legal expenses, and the reasonable fees of attorneys or counsel employed 706 CHAP. II.] CHARGES AND ALLOWANCES UPON ACCOUXTINC;. § 544 counsel in or out of court,' and to proceedings on appeal as well as in the original jurisdiction.^ But bills for legal services, counsel fees, and the costs of liti- gation, are not to be allowed to the personal representative where the expense was not incurred in good faith, as reasonably cal- culated to promote the benefit of the estate.' Nor where, in instituting litigation or suffering it to proceed, or in managing the cause on his own part, the representative was culpably re- miss in the performance of the duty confided to him.'' Nor where the expense was incurred by him, against the interests of the estate, and for his own express benefit as in needless and selfish antagonism, or in resisting just proceedings against him ;5 or because of his misconduct.^ Nor for services in connec- tion with matters which lie outside the range of his official duty.7 Nor where, imprudently or dishonestly, he has incurred in good faith, are thus allowable ; not money paid out by way of a compromise. 33 Ala. 291. Each case must stand on its own merits as to allowing the execu- tor or administrator for costs and fees in htigation. 9 Ala. 734 ; 31 Oreg. 86. The representative cannot bind the estate by a promise to convey a portion of the land recovered by suit as the attorney's contingent fee. 64 Ark. 438. Allowances of this character are found regulated by local statute. Seman v. Whitehead, 78 N. Y. 306. In some cases the counsel services were not really rendered to the representative but upon the stipulation of the widow and sole devisee. Whether the representa- tive can agree to give an attorney half of what he may recover by getting cer- tain fraudulent transfers by the decedent set aside, see Piatt v. Piatt, 105 N. Y. 488. Costs made by claimants in successfully prosecuting claims against an estate are not expenses of adminis- tration. Taylor z/. Wright, 93 Ind. 121. ' 6 Thomp. & C. 211 ; 30 Ark. 520. ^ Hazards^. Engs, 14 R. I. 5. 3 O'Neil V. O'Donnell, 9 Ala. 734. * Green v. Fagan, 15 Ala. 335. As 70 where the representative defended a suit properly brought against him by reason of his delinquency. Lilly v. Griffin, 71 Ga. 535. 5 Mims V. Mims, 39 Ala. 716; Stephens' Appeal, 56 Penn. St. 409; Cameron v. Cameron, 15 Wis. i ; Dor- ris V. Miller, 105 Iowa, 564; 141 Mo. 642 ; 122 Cal. 260; 107 N. C. 278. As where an executor who was also a lega- tee contested against other legatees as to his own legacy. 65 Cal. 287. Where the same litigation involved points partly for the executor's personal bene- fit and partly for the benefit of the estate, the costs and charges should be fairly apportioned. Clement's Appeal, 49 Conn. 519. And see Kingsland v. Scudder, 36 N. J. Eq. 284. An admin- istrator may have to pay all costs aris- ing on just exceptions to his account, but not the costs of settling the estate. 58 Iowa, 36. ^37 Ala. 683; 109 Mass. 541; Si Penn. St. 263; 109 Ala. 117. ' Lusk V. Anderson, i Met. 426 ; 2 Bibb, 609 ; 17 Wash. 683 ; 80 Cal. 625 ; 120 N. C. 472, Roberts's Estate, 163 Penn. St. 408. 7 § 545 EXECUTORS AND ADMINISTRATORS. [PART VII. needless expenditure in the execution of his trust ; employing legal services where none were required, or more counsel than was reasonably needful and proper, or settling extravagant fee bills without a prudent scrutiny.' Nor in general where such services were unnecessary. The general rule is, moreover, that attorney's fees are not to be recovered from an adverse party,* Costs or counsel fees are not usually to be credited on the representative's accounts, unless he has paid them.^ And where an attorney performs services properly belonging to the repre- sentative himself, compensation for both of them cannot reason- ably be allowed.'' All such counsel services are a personal charge to the representative in the first instance according to American practice ; and his effort is to have them allowed him on his account. 5 In various important instances an executor or administrator is called upon to employ legal counsel and may rely upon professional advice as to prosecuting or settling a claim, otherwise performing his proper duties ; ^ but he does not thereby forego his own duty of prudence and honor.^ § 545. Compensation of Executors and Administrators. — As to compensation, the long-estabUshed English rule of chancery has been, that a fiduciary office is honorary and gratuitous. Hence, the executor or administrator must serve without recom- pense for his own services, being strictly forbidden to make profit out of his office.^ American pohcy, on the other hand, binds the executor or administrator closely to the court in his official dealings ; but In charging commissions as executor directly to the attorney, see 12 W. Va. and trustee, one should clearly indicate 427. where the former capacity ceases and "* 4 Dem. 333. See Kingsland v. the latter begins. McAlpine, Re, 126 Scudder, 36 N. J. Eq. 284. N. Y. 285. 5 3 Dem. i. ' Crowder t. Shackelford, 35 Miss. * See 142 Mo. 187; § 274; 99 Tenn. 321 ; Liddell v. McVickar, 11 N. J. L. 462. 44. And see Smyley v. Reese, 53 Ala. ' Pryor v. Davis, 109 Ala. 117. 89 ; 5 Dem. 244. ^ Perry Trusts, §§ 432, 904 ; Robin- ^ Dorris z/. Miller, 105 Iowa, 564. .son ?'. Pett, 3 P. Wms. 132; Wms. Exrs. 3 Thacher v. Dunham, 5 Gray, 26; 1853. A consequence not unnatural is, 40 Ala. 391, 421. As to allowing them that the labors of the office with its 708 CHAP. II.] CHARGES AND ALLOWANCES UPON ACCOLXTINC. § 545 renders the judicial proceedings as inexpensive as possible, and remunerates him for faithful services ; holding him bound, in consequence, to fulfil his trust with a just sense of the legal obligations which it imposes. It discourages the idea of recom- pensing deputies liberally for duties which the representative may himself capably render. And, compensation being thus allowed, the legal liability is greater ; and more stress is laid upon personal qualifications for the trust. Compensation being now allowed to the personal representa- tive in, perhaps, every State in this Union, upon maxims of sound policy which our most eminent equity jurists have incul- cated,' it becomes matter of local custom or enactment what compensation shall be reasonable. In many States, a commis- sion on the amounts received and paid out is allowed ; an excel- lent basis for such a computation, and, perhaps, universally responsibilities become shifted unduly, where the estate is a large and onerous one, upon solicitors, proctors, counsel, and officers of the court ; so that the actual representative finds himself ad- ministering, not unfrequently, for the peculiar profit of those whom he must trust to lead him, unless he can keep the business out of the courts as non- contentious. The English chancery rule, as to trustees, too, has been very strict, that trustees cannot derive direct or indirect profit from the estate they represent ; that they cannot be factors, experts, brokers, receivers, nor even make charges against the estate represented for professional services rendered, not- withstanding the professional or expert knowledge they may have brought to the discharge of the trust. Perry Trusts, §§ 132,904. Even though trustees carry on a trade under the testator's direc- tion, they can charge nothing for their services, notwithstanding the perilous risks they incur. Perry Trusts, § 906. But it has been found necessary to allow compensation in British colonies in order to induce suitable men to ac- cept the office ; and probably with the modern development of wealth in- vested in personal securities, other exceptions will be conceded by the English Parliament. See as to trustees. Perry Trusts, § 904 ; and as to guar- dians, Schoul. Dom. Rel. § 375. ' " The policy of the law ought to be such as to induce honorable men, with- out a sacrifice of their private interests, to accept the office." 2 Story Eq. Jur. § 1268 n. And see Boyd v. Hawkins, 2 Dev. Eq. 334; Perry Trusts, § 917- But see Chancellor Kent in 1 Johns. Ch. 37, 534. Also the Delaware rule as applied in State v. Piatt, 4 Harring. 154. American policy is in favor of granting remuneration. Perry Trusts, § 917 ; Schoul. Dom. Rel. § 375 ; Barney V. Saunders, 16 How. (U. S.) 542 ; Clark V. Piatt, 30 Conn. 282 ; Wms. Exrs. 1853, Perkins's note. And it may also be said that while executors are selected by a decedent as matter of personal trust or confidence to adminis- ter, an administrator is appointed to perform duties without any such essen- tial relation to the estate represented. 709 § 545 EXECUTORS AND ADMINISTRATORS. [PART VII. approved in this country, wherever a fiduciary's recompense is passed upon.' But as such a rule meets routine rather than extraordinary services, our later cases appear inchned to allow to an executor or administrator, besides the usual commission, a moderate charge for professional and personal services spe- cially rendered by him, where such skill was needed and bestowed, ' The allowances made for the com- pensation of executors and other fidu- ciary officers varies in different States ; but the local statutes on the subject are digested in Perry Trusts, § 918, and notes. In the larger number of States the compensation is by way of a com- mission, which may vary, according to circumstances, from one to ten per cent., which last is usually the maximum. The New York nile established is five per cent, on sums not exceeding one thousand dollars ; half that amount upon all sums between that and five thousand dollars; and one per cent, on sums exceeding that amount. 3 Johns. Ch. 43. This rule practically obtains in other States as fixing on the whole a fair average rate. One-half the com- mission is for sums received, and the other half for sums disbursed. The New Jersey statute fixes a higher rate of commi.s-sions. Perry Trusts, § 918, note. Three and a half commission upon an estate of nearly ^300,000 was not thought excessive where the execu- tors had to carry on litigation, and sell real estate under a power. 39 N. J. Eq. 270. And courts have been even more liberal than this. 189 Penn. St. 385. But in an e.state of $500,000, whose settlement gave very little trouble, two per cent, was thought enough. 37 N. J. Eq. 578. And so is it in vari- ous other States. Perry, ib. See 28 La. Ann. 638; 11 Phila. (Pa.) 26, 39, 92; 2 Redf. 244, 255, 312, 465. Cf. 18 R. I. 120. Commissions on credits or a set-off, where a claim is adjusted, are not favored; that should rather be 71 computed on the balance ; and commis- -sions on a debt owing by or to the representative himself should be disal- lowed. 85 Penn. St. 398 ; 38 Tex. 109 ; Double and contemporaneous com- missions on a constructive change of capacity are in New York treated with disfavor. Johnson v. Lawrence, 95 N. Y. 154. And so, too, Thom v. Thorn, 95 Va. 413. But executors tak- ing a fund as trustees are entitled to commissions in each consecutive capac- ity. 39 N. J. Eq. 493 ; 42 N. J. Eq. 361 ; Willets, Re, 112 N. Y. 289. The executor or administrator may claim commissions, even though the property received remains in his hands in the same state as when he received it. 3 Dem. 289. Full commissions in good money cannot be charged upon collec- tions made in depreciated currency. 75 Ala. 162. Nor can commissions be charged on what the representative owes to the estate. 156 Penn. St. 473. As to fixing the statute rate of compen- sation on income, see 2 Dem. 257. An executor cannot usually claim compen- sation or commissions for turning over specific bequests to the persons entitled to them. I Dem. 296. Nor can com- missions be claimed on tru.st funds of decedent. 169 111. 93. Nor on the principal items of a large transaction of the decedent, which the representative closes out by merely receiving a balance. Hitchcock V. Mosher, 106 Mo. 578. For commissions are properly computed upon what one administers ; not upon the gross personalty as the decedent owned it. Ib. Cf. 145 Penn. St. 459. O CHAP. II.] CHARGES AND ALLOWANCES UPON ACCOUNTINC § 545 and where he was capable of bestowing it ; ' and such is the pos- itive rule of some States.- Each local rule is based largely upon local statutes. Such services are sometimes estimated by the court in fixing the commission ; but in most New Eng- land States where the court is empowered to allow what is rea- sonable, specific sums may be charged for special services in addition to the usual commission, or in li„u thereof, provided the whole does not exceed a fair rate of compensation ; and the court may vary the allowance according to circumstances.^ ' Wendell v. Wendell, 19 N. H. 210; 1 1 Phila. 95. In New Hampshire, Maine, and Vermont, the court gives a per diem compensation for time, travel, labor, etc. Perry Trusts, § 918. Where an executor gave much time to manag- ing and carrying on farms belonging to the estate, he was allowed a reasonable compensation for this service, besides the usual commissions as executor. 70 Vt. 458; Lent V. Howard, 89 N. Y. 169. And see for extra allowance under peculiar circumstances of difficulty and responsibility, 113 Mich. 561. Such allowance is usually discretionary with the court. lb. - See statute cited in 90 Wis. 236. In order to recover for extraordinary services, it must appear that they were necessary, and that the usual compen- sation is insufficient. 93 Iowa, 303. For uncollectible debts, specific compen- sation, not a commission, should be the recompense. 40 W. Va. 161. See further, 98 Mich. 319; Hodgman Re, 140 N. Y. 421. 3 Longley 7,'. Hall, 11 Pick. 120; Emerson, Appellant, 32 Me. 159 ; Roach V. Jelks, 40 Miss. 754 ; Evarts v. Nason, II Vt. 122; Clark v. Piatt, 30 Conn. 282. A gross sum should not be charged generally for services, without some specification of particulars. 41 Ala. 267. But a gross sum is permitted to be charged in some States. Charging more 71 than the statutory remuneration, for serv- ices to heirs, etc., is not permitted. 59 Mo. 585 ; 6 Rich. Eq. 2. As to the Illinois rule, which treats claims for professional service with disfavor, see Hough V. Harvey, 71 111. 72. Where a will directs a six per cent, commission allowed upon "all moneys collected," this means "collections" merely, and does not embrace the entire estate. Ireland v. Corse, 67 N. Y. 343- Real estate may be properly con- trolled by the representative and a com- mission allowed. Eshleman's Appeal, 74 Penn. St. 42; 70 Ala. 575; 70 Cal. 69; 118 Cal. 462. For the rule of commissions, where an incumbrance is discharged and applied to a claim, see 36 Tex. 116; 30 Ark. 520; 42 Ohio St. 53. And see, as to selling lands under a power, 24 Hun, 109 ; Twaddell's Appeal, 81* Penn. St. 221 ; 38 N. J. Eq. 405. On a sale of real e.state, a commission exceeding two and one-half per cent, is rarely allowable. 1 1 Phila. 53. Com- missions based on a constructive pos- session of assets, and not actual, are not favored. 51 Miss. 211; 30 Ark. 520. And thus is it as to merely con- structive dealings with the decedent's real estate. 43 W. Va. 296. Or with no such dealings at all. 17 Wash. 675. As to an administrator de bonis iioit and his commissions, see Myrick Prob. 163. Special administrators are not usually entitled to full commissions. 41 I § 545 EXECUTORS AND ADMINISTRATORS. [PART VII. Claims for special allowances should, however, always be closely scrutinized, as the representative here employs himself, so to speak ; all items improper should be disallowed, and exorbitant amounts reduced. Commissions and compensation may be forfeited by the rep- resentative's misconduct and culpable remissness in his trust.' And, if one has been appointed on a distinct understanding with those interested to serve as executor or administrator without recompense, or at a stated compensation, he must abide by his engagement.- But as a general rule, an honest and prudent Ala. 267 ; 67 Mo. 415. Co-executors or co-administrators are, as a rule, entitled to share the commissions equally. 4 Abb. App. Dec. 578 ; 40 N. J. Eq. 517 ; Squier v. Squier, 30 N. J. Eq. 627. But they may arrange with one another as to duties and compensation. See 4 Md. Ch. 368; 8 Md. 548; § 545, note. And a survivor of co-representatives may be favored, who has done all the work. 87 Md. 43. And so otherwise the quantjitn and value of each one's serv- ices may be considered. 4 Dem. 463 ; 88 Mich. 614. A public administrator who seeks an appointment, knowing that by law he is not entitled, can claim no recompense. 27 La. Ann. 574. As to executors who are testamentary trustees, and their commissions, see 4 Redf . 34 ; 1 1 Phila. 80. Concerning the time when commis- sions should be computed, see Drake v. Drake, 82 N. C. 443. One should not appropriate his commissions until they have been allowed; but he may retain funds to meet them. Wheelwright v. Wheelwright, 2 Redf. 501. See further, Harrison v. Perea, 168 U. S. 3k. Although one may be surcharged for some improper expenditure, yet his good and beneficial management on the whole may entitle him to full recom- pense. 166 Penn. St. 121. ■ Brown v. McCall, 3 Hill, 335 ; Hap- 71 good v. Jennison, 2 Vt. 294 ; 3 Green, 51 ; Clauser's Estate, 84 Penn. St. 51 ; Eppinger v. Canepa, 20 Fla. 262 ; 36 La. Ann. 420. Neglect to render ac- counts until citation does not necessarily forfeit commissions, though it is an un- favorable circumstance. Barcalow, Jie, 29 N. J. Eq. 282. See 10 S. C. 208 ; 4 Redf. 34 ; 94 N. C. 720. One may for- feit commissions, and yet be entitled to a reasonable recompense. 3 Green, 51. One who discharges his duties faithfully and -ft-ith advantage to the estate, does not forfeit commissions for keeping on hand larger amounts than he ought ; though this might make him chargeable for interest on the excess thus lying idle. Frost v. Denman, 41 N. J. Eq. 47. One may be entitled to commis- sions or compensation and yet have to pay interest. Supra, § 538. See fur- ther, 42 N. J. Eq. 337 ; Stevens v. Melcher, 152 N. Y. 551. As to the effect of a statutory change in the rule, see 64 Md. 517. ^ Davis, Re, 65 Cal. 309. It is imma- terial that such promise was not made with all parties interested. Bate t. Bate, 1 1 Bush, 639. But the agreement of one executor to waive commissions cannot prejudice the right of his co- executor. 14 Phila. 290 ; § 401. See 146 Mo. 436. CHAP. II.] CIIARGE.S AND ALLOWANCES UPON ACCOUNTINCi. § 546 fiduciary is entitled to his just recompense ; ' and while one re- mains honest and prudent he may be allowed recompense, even though his subsequent maladministration should debar all claim for continuing such allowance.^ For illegal allowances voluntarily made, the executor or ad- ministrator is responsible to the estate.' § 546. General Matters as to Charges and Allowances, Be- quest in Lieu, etc. — A few points may here be added. An administration account, rendered in the probate court for settle- ment, is said to be in the nature of a declaration in a writ ; so that, unless amended by order of court, a greater sum than actually charged cannot be allowed to the representative, either in that court or upon appeal."* But, as to commissions and interest, the probate practice, in some States, is to omit such items when the accounts are presented, so as to allow them to be entered, or the amounts carried out, upon the hearing be- fore the judge of probate.^ In making up a final account, items for subsequent expenditure may be specified by way of anticipat- ing payment, and the balance struck accordingly.*" And it may be just and proper to defer the complete recompense until the complete performance of one's duties, so that only partial recom- pense shall be allowed at intermediate periods.^ A bequest to an executor may be made in full of compensa- tion for his trust ; '^ but unless the language of the will shows that the bequest is to be by way of specific compensation, this does not deprive him of the right to charge commissions.'^ Nor does the fact that an administrator is also a distributee compel him to treat his distributive share as his recompense for ordinary ' Pryor z>. Davis, 109 Ala. 117 ; 166 * See Hone v. Lockman, 4 Redf. 61, Penn. St. 121. as to adding items of receipts and e.x- ^ Foster v. Stone, 67 Vt. 336. penditures subsequent to filing the final 3 As where he allows to his intestate's account, surviving partner for personal services ' See 49 N. J. Eq. 549. in the business. Loomis t'. Armstrong, * See provision of such a will in 38 49 Mich. 521. N. J. Eq. 405. ^ Pettingill 7j. Pettingill, 64 Me. 350. ' Mason, iVf, 98 N. Y. 527. ■ Lund 7'. Lund, 41 i\. H. 355, 364; 113 Mich. 561. § 547 EXECUTORS AND ADMINISTRATORS. [PART VII. services. The right to retain commission or compensation does not properly accrue until the account has been submitted and allowed.' American practice in these days does not favor the deprivation of an executor's fair rights by anything the will itself may contain, even though this executor should probate the will. It is held that a testator cannot take away his execu- tor's recompense by restrictions thus attempted ; for, where there has been full and just administration, even the court has no power to deprive the fiduciary who settles the estate of the minimum compensation which the law gives him.^ Our local statutes sometimes permit executors to elect between the commissions fixed by law and any testamentary provision in lieu thereof.^ Where, however, an executor accepts his office with deliber- ate knowledge that the will has fixed his recompense for such services, he is usually to be held bound thereby.'' § 547- Accounts and AlloTvances, as to Foreign Assets. — A foreign executor or administrator cannot be compelled to ac- count, unless he has brought assets into the domestic jurisdic- tion ; nor then, necessarily, as one answerable to the local pro- bate court and not rather in chancery, on general maxims.5 The expenses attending a sale of lands in a foreign jurisdiction, or the taxes paid on such real estate, are not properly allowed upon an administration account rendered in the domestic forum.'' ' 4 Dem. 463. Where letters testamentary upon the ^ Handy v. ColHns, 60 Md. 229. estate of a resident of some other But no commissions are allowable on State are granted in that State to a a debt due by the executor to the testa- citizen of Pennsylvania, the Pennsylva- tor, and by the latter specifically be- nia courts have refused to take any queathed to the former. lb. jurisdiction to compel the settlement of ^ I Dem. 244, 337. his accounts or to entertain a bill in ■•Hays's Estate, 183 Penn. St. 296; equity to charge him with assets, be- 98 N. Y. 527. fore his accounts have been settled in ^ Kohler v, Knapp, i Ikadf. (N. \ .) such other State, showing a balance in 241 ; supra, §§ 1 73-180. his hands. Musselman's Appeal, 101 ''I Root, 182; Roberts v. Roberts, Penn. St. 165. 28 Miss. 152; Jennison t'. Hapgood, 10 Pick. 77. 7^4 APPENDIX. REMEDIES BY AND AGAINST EXECUTORS AND ADMINISTRATORS. In the course of the present volume we have touched upon all the usual reme- dies to be pursued by or against executors and administrators. As the reader has doubtless observed, English practice favors bringing all the assets of the es- tate, together with the personal representative, into the court of chancery ; there to have the administration practically controlled and directed, unless the parties interested are satisfied that their rights will be duly respected by a settlement out of court ; ' while, according to the American system, chancery is seldom resorted to where the local probate jurisdiction is adequate, and the security chiefly reUed upon by creditors, legatees, and other interested parties, is the probate bond, filed by the personal representative, which obliges him not only to administer properly, but to render regular accounts in the probate court besides.^ It is the bill in equity upon which those interested in the estate who distrust the personal repre- sentative, or seek redress against his mismanagement, must chiefly rely, where an English estate is administered ; but where the estate is American, a probate court affords chief protection, requiring, as it may, ample sureties to be furnished when such precautions appear desirable, and, in all cases of official delinquency, per- mitting the representative's bond to be prosecuted for the benefit of the interested parties.' As to remedies of this nature, little need be added, except to refer the practitioner to general rules of practice, as laid down in all elementary works of equity or common law, with a further express reference to the codes of his own State, for copious details in which, as independent local courts expound such legislation, American jurisdictions by no means harmonize. But, in both English and American practice, it frequently occurs that the per- sonal representative should sue or be sued in a common-law court ; and upon this topic there remains something to be said. Here, as already suggested to the reader more than once, the fundamental difficulty in our practice is, that in some instances the representative should sue or be sued in his official capacity, in others in his personal capacity ; while, in an intermediate class of cases, there appears an option given for a suit in either capacity.* The essential reason for this dis- tinction is, that our law of administration regards the contract of an executor or administrator as binding himself individually, unless made under an express reser- vation that only assets shall be resorted to; the real object being to allow assets to be strictly applied to claims in a regular course of administration, so that the personal representative may not create liens or preferences in favor of those with whom he deals. However commendable this rule, its application makes much difficulty in the courts; for an action, grounded in a good cause, may be thrown "■Supra, §§ 518, 521. ^ Supra, §§ 136, 139. ^ Sttpra, §§ 520, 522. * Supra, §§ 137, 140. yi6 APPENDIX. out because of some misconception in the plaintiff's mind as to how that cause originated, and in what capacity the representative should be made a party to the suit.' Let us trace the distinction into remedies by or against the personal rep- resentative. (i) As to suits by the executor or administrator. Here the difficulty is the less, because of a liberal option which our law concedes. "Where the cause of action originated in the time of the deceased, the representative sues in the detinet only, or in his representative capacity. But where the cause accrues after the death of the testator or intestate, the executor or administrator may sue as such or not at hi.s option; and, whenever the fruits of the suit must be assets, he may sue in his representative character, though the cause originated in his own contract.- Even though he call himself " executor " or " administrator " in the action, if it appears that the cause of action is in his own right, the representative word may be stricken out as surplusage ; ^ and even matters of substance are aided after de- fault or a verdict in his favor.* (2) As to suits against the executor or administrator. It is here that the rigor of the common-law rule is more strongly manifested. Where a defendant is simply misdescribed as "executor" or "administrator," the descriptive word may be stricken out as surplusage, and a judgment rendered against him individually. But where he is sued as executor or administrator, and the whole pleadings show that conception of his liability, when he should have been sued as an individual, the variance is held fatal to the suit.' For the judgment follows the complaint ; and if the cause is maintained successfully against one in his representative char- acter, the debt, damages, and costs are to be levied de bonis decedcntis.'^ The ac- tion cannot, strictly speaking, be converted into one against the defendant per- sonally, if wrongly begun ; nor can counts be joined as of causes originating against the deceased and against the representative; but, for a suit on the repre- sentative's own contract, the judgment is against him as an individual, or de bonis fropriisP The practice in some States appears to change this rule, however, so as to give greater freedom in suing in the alternative, and adapting the judgment accordingly ; ^ and such modifications of the old doctrine appear highly desirable in the interests of justice. We may add a few words as to common-law suits against the executor or ad- ministrator. When sued in his representative character, the defendant who in- tends to deny his being such, should specially plead ne unques executor or ne ungues adyninisirator!^ But the proper plea, where he has not assets as representative, is plene adtninistravit}° These pleas are sometimes artificially employed," but they are not necessarily false pleas. And, as observed in a recent case, unless the exec- utor or administrator falsely pleads /Av/c adjninistraint, he is not liable to a judg- ' Supra, § 396. ^ See Wm. Exrs. 1937-1939- ^ Wms. Exrs. 1871 ; j-«/ra, §290. * Wms. Exrs. 1937, Perkins's «.; 3 Wms. Exrs. 1872. Davis v. Vansands, 45 Conn. 600. But ■• lb. cf. 47 N. Y. 360. 5 See Austin v. Munro, 47 N. Y. 360, ' Wms. Exrs. 1943. opinion of court; 5 East, 150. And '" Wms. Exrs. 1953. If he has assets, see 59 Kan. 568. but not enough, he pleads //i-;/^ admin- ^47 N. Y. 360; Smith z/. Chapman, tsira-.'it praeter, %Xc. 93 U. S. 41 ; Wms. Exrs. 1937. " Supra, § 187. APPENDIX. 717 ment beyond assets in his hands to be administered." A full and lawful adminis- tration previous to such suit, or the utter want of assets to respond to the demand, is a good defence ; and judgment de bonis decedcntis is the only kind to which the plaintiff would be thus entitled. But, devastavit being averred and proved on the representative's part, or assets being shown to have existed which ought to be applied to the plaintiff's claim and which cannot be found, the court may order the judgment levied out of the representative's own proper goods.- ' Smith V. Chapman, 93 U. S. 41. one by an action of debt on the judg- Mb.; Wms.Exrs. 1975, 1987. When ment obtained against him, and the an executor or administrator has com- other by a scire facias founded thereon. mitted a dcvastavit,ihex& are lyio modes 3 Head, 575; Wms. Exrs. 1984, 1987. of proceeding to render him liable; the o > a O LU u z % o X ic &. < > 2;o .1 1— X h Id a ^ r Ctf o :q t/j > o / O rt ■5 W a, 2 i" s l-i o ¥ 4) "" S ^ •S ts) ^^ I '^ Intestate, or Person Proposed. -§ ^ OJ II. Grandson. 2. III. Great-Grandson. 3- 718 INDEX. A. ABSENTEE. Section administration as to 109, 115, 133, 135, 154 legacy of 484 distribution as to 503 ACCOUNTING, obligation of representative to keep accounts (,18 ei sty. creditors' bills; equity practice as to compelling account . . 519, 520 ecclesiastical and probate jurisdiction of accounts in England . . 521 probate jurisdiction of accounts in the United States 522 citation of parties interested in the account ; their assent to its allow- ance 523 form of administration account 524 authentication and proof of account in American practice .... 525 periodical returns; partial accounts and the final account .... 526 settlement upon a final accounting ; distribution, etc 527 conclusiveness of final settlement in probate court 528 perpetuating evidence of distribution and procuring final discharge . 529 appellate jurisdiction as to probate accounting 530 rendering accounts in case of death, resignation, removal, etc. . . . 531 accounts by co-executors or co-administrators 532 effect of lapse of time upon accounts • • ■ . 533 no account required from residuary legatee giving bond to pay debts, etc 534 what is to be charged to representative and what allowed on account 535 should charge with inventory value as a basis ; corrections, etc. . . 536 amounts to be added; assets not inventoried; profits, income, pre- miums, etc 537 charging the representative with interest 538 charges on account, as concerns real estate, its profits, etc 539 charges on account ; miscellaneous points 540 allowances to the representative ; disbursements, losses, etc. . . . 541 reasonable expenses, etc., allowed 542 expenses of education, maintenance, advancements, etc 543 allowance of counsel fees, costs, etc 544 compensation of executors and administrators 545 general matters as to charges and allowances 54^ bequest in lieu of recompense 54^ accounts and allowances as to foreign assets 547 ACTIONS. See also Appendix. as to executor a?'^j collection of income, etc. ; responsibility 317 as to investing or paying cash ; deposits, etc 3 '7'' paying assessments, discharging liens, etc., on personal a.sscis . . . 31S 730 INDEX, ASSETS — continued. Section vote upon stock 319 putting assets into a salable condition; repairing, etc 320 responsibility of representative for acts of his attorney, etc. . -321 duty as to investing assets; placing funds at interest, etc 322 investments, how to be made, etc. ; rule of liability .... 323, 324 liability for leaving assets in trade ; speculation, etc 325 closing out decedent's business, etc 325a carrying on a trade with assets, etc. ... 326, 326a sale, investment, etc., of perishable assets ; cattle, etc 327 calling in money already out on loans or investments 328 making unauthorized loans or investments 329 representative's acts are for benefit of those interested; good faith, etc., required 330 assets should be kept distinct from representative's own property . 331 liability qualified when acts are performed under advice and assent of parties in interest 332 or under direction of court 333, 334 following directions of will as to investment 335 lending on poor or no security 335« summary of doctrine as to management and investment ; deviations 336 rule similar to that of guardian, trustee, etc 337 election of parties in interest to charge representative or accept in- vestment 338 representative's pcnver to sell ami tra>tsfer assets and to purchase. power to dispose of assets 322, 339 sale or transfer only while representative holds office 340 whether at public or private sale 341 sale of goods bequeathed for life with remainder 342 power of representative to dispose of chattels specifically bequeathed, 343 sales of perishable assets, etc 344 representative's sale of his decedent's business 325, 345 sales and transfers under probate direction 346 authority as affected by expressions in the will 347 consulting parties in interest as to time, manner, etc., of sale . . 348 representative may pledge or mortgage assets instead of selling . 349 bona fide purchaser, pledgee, etc., not bound to see to application. . 350 letters testamentary, or of administration, are credentials . . . . 351 good faith and caution requisite from purchaser, pledgee, etc. . 352 disposal of chattels real ; assigning and underletting leases, 223, 353 restraints upon power to dispose of assets as to representative . . 354 his liability for negligence, fraud, etc., in sale 355 obtaining payment or taking security for the purchase-money . . . 356 collusive or fraudulent disposition of assets by representative . . . 357 purchase by representative at his own sale, etc 358 re-opening representative's voidable transfer, etc. ; relief as against third parties 359 INDEX. 721 ASSETS — continued. Section representative cannot avoid his own voidable transfer -760 whether he warrants title when he sells 361 sales of negotiable instruments 258, 352 162 authority to purchase -g_ no right to give away assets ,g. right to recover assets wrongly transferred 364a liability of an executor or administrator as to assets. liability is in respect of acts of deceased or his own acts 365 acts of deceased ; survival of actions founded in contract .... 366 exceptions as to personal contracts of deceased 367 distinction as between gifts and contracts j68 form of action material in this connection ■769 survival of actions founded in tort ; not permitted at common law . 370 whether replevin can be maintained against representative .-..371 whether other remedies might be applied because of tort .... 372 modern statutes enlarge the survival of actions 373 survival of actions for rent or damage to real estate 374 covenants of decedent ; covenants under lease, etc 375 personal representative's liability for rent 376 liability on covenants concerning real estate, etc 377 joint, several, etc., contracts of decedent 378 of representative of deceased partner 370 stockholder -jgo exoneration of personal property specifically bequeathed .... 381 liability of personal representative as to his own acts 382 negligence; bad faith ; \i2i%i& ox devastavit ; torts 382-386 representative how to be sued for his wrongful acts 385 effect of arbitration or compromise of demands . . . 386, 387 release of debt, renewals, etc., by representative 388 general and special statutes of limitations 389, 390 opportunity to ascertain insolvency -loi the statute of frauds ,02 devastavit when excused by concurrence, etc., of those injured thereby ^q^ complicity of third persons in the devasta-rit renders them liable . . 394 liabihty of executor or administrator on his own contracts .... 395 how sued upon his express promise or collateral undertaking . . . 396 exceptional instance of suing for funeral expenses, etc 398 liability on negotiable instruments 398a liability for waste ; action 398^ rights, duties, and liabilities as to assets in co-administration and quali- fied administration 300 rights, duties, and liabilities of co-executors; tlicii liile and au- thority . . , 51, 400, 401 liabilities of co-executors 51,402 co-executors ; actions by and against * . 403 732 INDEX, ASSETS — continued, Section rights, duties, and liabilities of co-administrators 404 survivorship among co-executors or co-administrators . . . 41,51,405 liability of co-executors and co-administrators on bonds; joint or several bonds 406 rights, duties, and Habilities of administrator with will annexed . 123, 407 rights, duties, and liabilities of administrator de bonis no7i . 128, 408, 409 relation of administrator de boms non to predecessor's contracts, etc. 410 suit on negotiable instrument as concerns administrator de bonis non 411 administrator de bonis non bound to observe good faith and prudence 412 with will annexed 413 rights, duties, and liabihties of temporary and special administrators, etc 4>4 quahfied representative's designation of his own othce 415 negligence by various representatives in succession 416 See Claims ; Distribution ; Legacies. marshalling assets in case of a deiiciency 490, 512 See Real Estate. ASSIGNMENT, voluntary in fraud of creditors 220 See Assets. ATTESTATION. See Will 78 ATTORNEY, delegation of authority does not relieve of responsibility . . . 159, 321 whether representative may act by attorney 268 employment of counsel j68, 544, 545 fees when allowed in account 544, 545 B. BAILMENT, doctrines of responsibility applied 3J3> 3i^> BEQUEST. See Legacy. BODY, of decedent 268a BONA NOTABILIA. See Admln istration ; Assets 24,91 BONDS, nece.ssity of qualifying before appointment 136 security required from the court 136 when and how required from an executor 137 of an executor who is residuary legatee 138, 534 when and how required from an administrator 139, 140 how probate bonds are taken ; penal sum, sureties, etc 141 irregularities, etc., attending execution, how far available .... 142 whether probate bond may bind as a common-law bond .... 143 sufficiency, a.s to the security and parties offered 144 co-executors and co-administrators ; joint and separate bonds 145 probate l)ond; what property is covered ; what functions included, etc. 146 INDEX. 733 BONDS — continued. Section release or discharge of sureties 1^7 new or additional bonds, when and how required 148 lost and missing probate bonds 140 of co-executors and administrators iac, 406 of administrator with will annexed 123, 407 administrator ;/o« 1 28, 408 6'/ j^y. bond of indemnity from legatees 477 remedies for overpayment, etc 491 special, where licensed to sell real estate c|-i negotiable, as investment 202 of surety or guaranty company 144, 542«. BONORUM POSSESSIO 6 BURIAL. See Funeral. C. CAPITAL 13,476 CHANCERY. See Actions; Cour is. CHARGES. See Accounting 535 ^/j^y. CHATTELS REAL 223, 224, 303 See Assets; Lease. CHILD. See also Infant. payment of legacy to infant 483 as distributee 495, 498 advancements to, how reckoned 499, 500 CITATION, in proceedings for probate and administration 69, 112,115 on accounts 523 CLAIMS, on behalf of the estate. See Assets. against the estate. debtor's payment to sole distributee I97<^ executor of administrator bound to pay debts, claims, etc. . . 251, 417 notice of appointment ; presentation of claims 418-420 statutes of special limitations 118-420 funeral charges and their priority 421 place of final interment ; gravestone, etc 422 other preferred claims ; administration charges ; debts of last sick- ness 423 these preferred claims rank together; settlement in full or ratably . 424 general payment of debts; rule of priority 425 English classes as to priority, enumerated ; debts of record ; specialty and simple contract debts, etc 426, 427 American rules of priority among claimants 428 claims grounded in a tort ; contingent claims ; damages, etc., how reckoned 429 734 INDEX. CLAIMS — contifiucd, Section classification by probate court 428«., 433 mortgage debts ; rights of creditors having security 430 invalid or exorbitant claims; voluntary transactions .... 252,431 claim of person disappointed of a legacy 432 decree or order of payment 433 commissioners or auditors to examine claims 434 exhaustion of assets in paying superior claims ; preferences to be ob- served 435 notice of debts as affecting their payment, etc. ; English rule . 436, 437 English rule as to equal creditors ; creditors' bill, etc 437 notice of debts as affecting their payment ; American rule .... 438 debt due representative from estate ; right to retain, etc 439 interest on claims presented 440 mode of paying off claims ; extinguishment, etc 441 personal liability of representative for debts 442 payment or advancement out of representative's own funds . . . 443 recovery of over-payment from creditor 444 when heirs, next of kin, etc., are liable for debts of the estate . . . 445 payment of claims where estate proves insolvent 435, 446 new assets for debts 446^ buying up claims, etc 446^ debts for continuing decedent's trade 446^ satisfaction of debt by legacy 467, 470 See Legacy. widow's allowances, etc 447 etsei tort 46, 184 ct seq- See Appointment. acts done before quaUfying 46, 194 distinguished from administrators as to power to dispose . . . . 241 should administer estate undispo.sed of ; partial intestacy .... 250 as residuary legatee 249 matters common to executors and administrators. See Admini.stration. EXONERATION, of personal property specifically bequeathed 381 of real estate by personal 512 EXPENSES. See Accounting <^\zctseq. F. FIXTURES 227, 287 FOREIGN, appointments, distribution, etc 162 See Absentee; Conflict of Law.s. FRAUD, of decedent as to his creditors avoided 220, 234, 252 pursuit of assets fraudulently transferred by deceased 297 in dealing with assets 357 waste ; devastavit, etc 382, 384 See Assets. fraudulent claims against an estate , . 431 INDEX. 739 FRAUDS, STATUTE OF, ^,^,- „ ' ' .section as to personal undertaking of representative on decedent's behalf . 255 affecting decedent's engagements, etc -jga FUNERAL. See Claims 398, 421-424 G. GIFT, causa tnortis as affecting fjuestion of assets 219 voluntary transfer in fraud of one's creditors 220 distinguished from contract 368 of assets by representative 364 See Advancemknts. GUARDIAN, inventory of representative as to several wards 235 where representative is also guardian 247 investment rule 337 H. HEIRLOOMS 225 HUSBAND, surviving, right to administer deceased wife's estate 98 deceased, administration by wife 99 See WiFK, Widow. administering in wife's right 106, 126 death of, pending settlement of spouse's estate 130 surviving, right to residue of wife's personal estate 496 I. ILLEGITIMATE CHILD, right to administer 108 distribution of estate 117 as to distributee ^03 INCOME, of personal property ::oo, 317 of real property 216 INFANT, as executor 32 testamentary capacity So unsuitable to administer 107 administration during miiiority ((/'/''''7;//(' ;;//;/(7r^ (/-/^/A') . . . 132,135 allowance to 447, 455 as to accounting 543 interest on legacy 481, 482 See Child; Guardia.\. INJUNCTION, denied on probate 89a 740 INDEX. INSANE PERSON, Section testamentary capacity of 80 unsuitable to administer 1 07 legacy to, how payable 483 INSOLVENCY, as unfitting for executorship 23 as disqualifying to administer 104 of decedent; effect of 219^, 220. ^gi, 420, 421, 424 payments where estate is insolvent 435, 446 widow's allowance, whether affected 451 INSURANCE, life, policy of, whether assets 202, 211 fire insurance 218 INTEREST, collection of interest-bearing debts, usury, etc 309 placing funds on interest 322 on claims against the estate 440 interest and produce of specific legacies 480 interest computed on general legacies 481, 482 when charged to the representative 538 when allowed him in his account 541, 542 INTERMEDDLING 184 /. J. JOINT ADMINISTRATION, co-executors, appointment of, etc 40, 41, 51, 128 appointing co-administrators 111,128 bonds of co-executors and co-administrators 145 co-executors; rights, liabilities, etc 51, 400-406 co-administrators; rights, liabilities, etc 41,51,401-406 accounting by co-executors or co-administrators 532 INDEX. 741 JUDGMENTS. See Actions; Claims. Section JURISDICTION. See Courts. in probate of wills; death, last domicile, etc. ... la, 15, 24, 29, 57 spiritual, as to appointing administrator where no e.\ecutor ... 90 essentials of jurisdiction '''• 55> 9'> 9~ as to revocation, removal, etc 1 57 K. KIN, NEXT OF, how appointed loi, 102, 125 See Appoi.ntme.nt. as distributees 498-502 See DisTRiBUTlo.N. L. LANDS. See Real Estate. LEASE, as assets ; chattels real 223, 224 vesting of possession ; chattels real, leases, etc., distinguished from chattels personal 267 suits upon breach of covenant 286, 367, 375 disturbing possession ; ejectment, etc 287 distraining or suing for rent 301 assignment and transfer ; underletting, etc 223,353 liability for rent, etc 376 LEGACY. See Will. rule of foreign will ; comity 16, 174, 183 residuary legatee, appointment and bond of 124, 138 legatee's debt to decedent 208 legatee's ultimate title to legacy 207 representative who is also legatee 24S rights of legatees, as to investment and sale 335, 338, 343 bequests for life with remainder 342 specific bequest ; exoneration; how delivered 381 claims of persons disappointed of legacies 43- legatee, when liable for claims against the estate 445 /evades, their nature and incidents. this subject a branch of the law of wills 45'*^ legacy defined; executor should pay or deliver 459 legacy to satisfy debt 459 description of legatee and who may be such 460 subject-matter of legacies; specific distinguished from gei eral . . 461 whether a residuary bequest can be deemed specific 4^- bequests for illegal and immoral purposes void ; superstitious uses, etc 4(^3 bequests to charitable uses; statute of Elizabeth 4^4 bequest void for uncertainty 4<^'5 742 INDEX. LEGACY — continued. Section where principal or income is locked up too long 465 restraints under statute of mortmain 465 legacies absolute or conditional, vested or contingent 466 lapsed legacies, general rule 467 cumulative legacies ; repetition or substitution of legacies .... 468 satisfaction of debt or portion by legacy 469 release of debts by legacies 470 ademption of legacies 47' trustees under a will ; duties of trustee; appointment 472 equity and probate jurisdiction ; bill of interpleader for construc- tion 472, 473 construction of wills, legacies, etc 474 doubtful points settled by agreement of all parties concerned . . . 475 paymefit a>id satisfaction of legacies. payment, etc., of legacies ; all valid legal claims take precedence . 445, 476 executor's bond of indemnity from legatees 477 legacies usually payable within a year from testator's death . . . 478 when legatee's right vests 479 rule as to annuitants, beneficiaries for life, etc 479 interest and produce of specific legacies 480 interest on general legacies 481 special instances ; widow, children, etc 482 to whom legacies should be paid ; deceased legatees 483 payment of legacy to infants, insane persons, etc 483 payment, as to absentees, persons not known, etc 484, 494 payment of legacies to testamentary trustees 485 deUvery of specific legacies ; legatee's right to select, etc 486 method of paying general legacies; currency ; deductions, etc. . . . 487 assent of executor'to a legacy 488 legatee's assent to the legacy ; election 489 abatement of legacies in case of deficient assets ; relative rank, etc. 490 personalty the primary fund ; exceptions 490a refunding of legacies after their payment 491 change from representative to other capacity 49i« sale of real estate to pay legacy 511, 514 See Real Esiatf.. bill for account, etc 521, 522 See AccoiN'TiNG. LETTERS, testamentary or of administration 52 See Administrators; Executors; Aitoin'tment. of deceased, whether assets 205 LIABILITY. See Admin 1.STRATI0N Tf> 5^9 as to setting aside conveyance by deceased 509 rule where representative collects rents, manages, etc 510 power to sell lands ; sale to pay debts, legacies, etc. ; equity rules . 511 exoneration of real estate by the personal ; whether mortgages are to be paid off, etc 430, 512 equity rule as to marshalling assets ...512 dealing with mortgages 512a charges and allowances ; reimbursement, etc 5'-^. 539 statute sales or mortgages under judicial license 513^^^^^. modern statutes permitting sales under a judicial license .... 513 legislative provisions as to a sale; essentials of purchaser's title . . 514 principal and ancillary jurisdictions 5 '5*^ judicial license to mortgage for certain purposes 516 levy on land of execution obtained again.st the representative . . . 517 intermeddler, v^-hether an executor dc sou tort 19' actions founded in wrong done to land 284 upon covenants real, etc --"^5 746 INDEX. REAL ESTATE — continued. Section distraining, etc., for rent in arrears 301 taking land in payment of debt 310 investment in 323, 324 representative's liability on covenants, concerning 377 survival of actions for damage to real estate 374 distribution of surplus where real estate has been sold to pay debts . 505 REASONABLE PARTS. See Distribution 9, 497 RELEASE, of claims 388 of debt by legacy 470 REMAINDER 224, 303, 342 REMEDIES. See Actions. REMOVAL, of executor or administrator 134, 531 RENT. See Lease; Real Estate. REPLEVIN. See Actions. REPRESENTATIVE, PERSONAL. See Admin lstration. RESIDENCE. See Domicile. RESIGNATION 156, 531 RETAINER. See Lien. REVOCATION %z, \i,Q et seq. See Ad.mimstkation ; Ari'oiN iment. S. SAFE DEPOSIT COMPANY 542«. SALE, of assets 322, 327, 339 et seq. See Assets. of real estate 5ii>5i3 See Real Estate. SECURITY, 203, 305, 306, 430 SET-OFF, representative's right 5oS«. See Lien. SETTLEMENT. See Accounting 527, 528 SEVERANCE 227<7 STOCK. See Assets. vote upon, and liability for 319,380 SUCCESSION, in civil law 6, 7 SURETY. See Bonds. SURVIVAL, of actions by or against estate 277, 366 See Actions. T. TAX. See Assessments. preference of 4 26-4 28 INDEX. 747 TESTACY. See Administration ; Executors; Wills. Section TITLE, to personal property vests in executor or administrator . 194, 238 et seq. TORT. See Actions; Clai.ms; In ter.meddling. TRADE, carrying on, with assets 325, 326, 446 attestation of;- modern statutes, etc 63, 74, 76, 78 probate of. See Probate. invalid will sustained by agreement 72 testamentary capacity, etc ^9, 80 revocation and alteration; codicils; new wills 82 rule of escrow not applicable 83 lost wills ; republication ; alterations, etc • . . 84 letters te.stamentary issued upon probate 87 public custody of probated will 88 nuncupative wills and their probate 89 foreign and domestic probate, etc 1(9-1 71 case of partial intestacy 2i;o directions of, as to investment n-yr authority to sell personal assets under 347 legacies under. See Legacies. election of widow under construction, to remove doubts WITNESSES. See Probate; Will. 4S7a 473 ADDENDA. New cases noted while this \olutne in its third edition was passing through the press : — § 2}(j, p. 34. See Hodges v. Kimball, (U. S. App.) 91 Fed. K. 845. § 33' P- 47- ^'te Kidd v. Bates, 120 Ala. 79. §§ 42, 182. See Wiiitelegg AV, (1899) P. 267. § 91, p. 121. 1 'resumption of death giving jurisdiction. 105 Wis. 464. § 92, p. 122. See Thormann z'. Frame, 176 U. S. 350. * § 94, p. 124. As to appointment within thirty days, see Mowry z'. Latham, 20 R. I. 786. § loi, p. 132. As to wife's misconduct dining marriage, see 124 Cal. 688. § 107, p. 142. See also Mowry v. Latham, 20 R. L 786. § 113, p. 147. Stranger appointed by consent of the parties interested. Pot- ter's Estate, (1899) P- -65- § 123, p. 167. See Penn v. Fogler, 182 111. 76. § 124, p. 168. Non-residence of such legatee, does not disqualify. Fulgham v. Fulgham, 119 Ala. 403. § 134, p. 183. Cite Bolton's Estate, (1S99) P. 186. § 142, p. 201. A probate bond is fatally defective which names no obligee. Tidball v. Young, 58 Neb. 261. § 146, p. 204. See 68 N. H. 51 1 ; 182 111. 390 ; 108 (Ja. 430. .\!1 moneys re- ceived under color of official authority are covered by the bond. State z'. "S'oung, 125 N. C. 296. Admission being made of the sum due, a formal decree of the amount is unnecessary. Judge v. Sulloway, 68 N. H. 511. And sureties cannot collaterally attack. lb. § 146, p. 206. See McKim 7: Haley, 173 Mass. 112 ; 20 R. I. 592 ; 21 R. I. 273. § 157, p. 225. See Lunsford v. Lunsford, 122 Ala. 242. § 160, p. 227. See Mowry v. Latham, 20 R. I. 786. § 170, p. 240. See Hoysradt 7: Gas Co., 194 Penn. St. 251. § 178, p. 254. Local mortgage indebtedness voluntarily paid to a foreign ex- ecutor. 76 Minn. 216. § 208, p. 292. The bond covers liabihty for such debt. Judge r-. Sulloway. 68 N. H. 511. § 214, p. 300. See 175 Mass. 213. § 223, p. 310. Cite McCormick z'. Stephany, 57 N. J. Eq. 257. So, too, with an option incidental to. a lease, lb. § 236, p. 328. See Cronshaw ». Cronshaw, 21 R. I. 54. § 256, p. 348. Cite 108 Iowa, 651. §§ 256, 544. Cite 118 Mich. 678. v^! 273, p. 365. Cite Harris t. Orr. .)6 \V. \n. 261. 749 750 ADDENDA. § 3'5' P- 4°'- ^'te Harris v. Orr, 46 \V. Va. 261. § 322, p. 409. Cite 73 Minn. 244. § 347, p. 434. As to authorizing the representative "with A's con.sent," see Gulick V. (jriswold, i(jo N. \'. 399. § 349> P- 43^- ^i't-' Henimy t. Hawkins, 102 Wis. 56. § 38a^p. 474. See 75 Minn. 138. § 385, p. 477. Estate not liable for the representative's own tort, where no pecuniary advantage enures therefrom. Carr v. Tate, 107 Ga. 237. § 398/^, p. 495. Injunction, etc., not favored where simple probate proceedings may afford relief. 175 Mass. 199. § 414, p. 526. See Powell v. Foster, 71 Vt. 160. § 419, p. 532. Statute runs, even though inventory be not filed. 1 1 7 Mich. 602. § 420, p. 534. Presentation of claim by bringing a suit. 1 19 Ala. 235. § 428, p. 550. As to special claim for back taxes, see 152 Ind. 186. § 430, p. 555. Cite 61 Ohio St. 146. § 43i> P- 559- As to family services, gratuitous or otherwise, see 106 Ga. 513 ; 58 Neb. 268; 46 W. Va. 261. § 439, p. 567. See Rhoades AV, (1899) 2 Q. B. 347. § 476, p. 606. Annuity to widow under an antenuptial settlement precedes legacies. Pitkin v. Peet, 108 Iowa, 480. § 492a, p. 627. Where one's indebtedness to the estate equals or exceeds the distributive share, he is entitled to nothing; but probate judgment does not lie for excess of debt. Caldwell v. Caldwell, 121 Ala. 598. And a widow's allow- ance exhausting the assets, widow or young children can claim nothing by way of distribution. 107 Ga. 108, 450. § 509, p. 647. Nor has the widow any such inherent authority. Williams v. William.s, 118 Mich. 477. § 520, p. 664. See Dulaney v. Smith, 97 Va. 130, as to bill of residuary lega- tees against others fraudulently misappropriating with the executor's collusion. § 528, p. 683. Citation on a final settlement of account cannot serve for con- firming a sale of real estate likewise. Washington ?•. Bogart, 119 Ala. 377. § 538, p. 694. For delay in settlement, resulting in no loss to the heirs, inter- est on the balance is sufficient indemnity. Armstrong's Estate, 125 Cal. 603. § 540, p. 698. Release from distributee prevents the court from surcharging. 192 Penn. St. 531. § 541, p. 699. Representative should be duly credited, where he erroneously charged himself. Arendale v. .Smith, 107 Ga. 494. § 544, p. 705. Not liable for fees of counsel employed by a contesting legatee. Atkinson v. May, 57 Neb. 137. Allowance for bill of interpleader on legal ad- vice. 71 Vt. 160. Disallowance as to legal services, where a sheriff or constable might have sufficed. lb. Cite 118 Mich. 678. § 545' P- 708. Special allowance for proper travelling expenses. 147 Mo. 319. Compen.sation allowed. 192 Penn. St. 289; 147 Mo. 319. Disallowed. 76 Minn. 132. § 546, p. 713. Cite Runyon's Estate, 125 Cal. 195. T0 CO CO ((■ A urn r . BRARYOa 117 i ^ I uwuon nvS*i mniSyf. •2 II c — * ^OFCAllFOff^ i t, f>t ■5;, ■' A.O '. ; (I) IV rM . UC SOUTHI RN RFGIONAL LIORARY FACILITY A A 000 918 743 G iV: yfH L: 5^10SAIICH% .^-UBIWRYQf, ^1 3 V O li- % cr SO §^ l(T ^iiojiinw'^ ^.OFCAllFOff^ ^OFCAUFOiX^ C tt^i