THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 GIFT OF 
 
 Janes R. Hutter 
 'U7 Bus. Adm.
 
 LAW 
 
 &RS 

 
 THE 
 
 PROBATE 
 
 JURISDICTION AND PRACTICE 
 
 IN THE 
 
 COURTS 
 
 OF THE 
 
 STATE OF ILLINOIS, 
 
 CONTAINING THE 
 
 LAW OF WILLS, OF ADMINISTRATION AND OF GUARDIAN AXD WARD 
 AND RULES OF COURT: 
 
 GUIDE FOR EXECUTORS, ADMINISTRATORS, 
 
 GUARDIANS AND CONSERVATORS, IN THE MANAGEMENT 
 
 AND SETTLEMENT OF ESTATES. 
 
 BY EDWARD J. HILL, 
 
 AUTHOR OF "THE COMMON LAW" AND "CHANCERY PRACTICE." ETC. 
 
 iFOTIRTH EDITION". 
 
 BY HENRY BINMORE, 
 
 ATTORNEY, ETC. 
 
 CHICAGO: 
 E. B. MYERS, LAW PUBLISHER, 
 
 121 AND 123 MONROE STREKT. 
 1880.
 
 Entered, according to act of Congress, in the year eighteen hundred and seventy-three, 
 
 BY EUGENE B. MYERS, 
 In the office of the Librarian of Congress, at Washington. 
 
 Entered, according to act of Congress, in the year eighteen hundred and seventy-five, 
 
 BY EUGENE B. MYERS, 
 In the office of the Librarian of Congress, at Washington. 
 
 Entered, according to act of Congress, in the year eighteen hundred and eighty, 
 
 BY EUGENE B. MYERS, 
 In the office of the Librarian of Congress, at Washington.
 
 PREFACE 
 
 As a system, the Jurisdiction and Practice in Probate, 
 Guardianship and Conservation in Illinois are remarkably 
 simple and uniform. The statutes have undergone very 
 little change for many years, recent revisions and changes 
 apparently, having proved but little more than a 
 re-arrangement. They are well drawn, and have been 
 quite fully defined and clearly expounded. Aiming 
 almost exclusively at the useful and practical, it devolved 
 upon the author to present these statutes and decisions 
 in such a way as to render them easily understood, and 
 of ready reference not only by the lawyer, but by the 
 non-professional reader, the executor, the administrator, 
 the guardian, the conservator, the business man, those 
 who have occasion to do business in and through the 
 probate court. This is a more difficult task than it might 
 at first appear. 
 
 To the undertaking, on a careful survey of the whole 
 field of inquiry, I determined to bring a methodical 
 arrangement which should furnish at the outset a key 
 to the entire subject. This arrangement will appear by a 
 glance at the SUMMARY OF COXTP^TS. The subject-matter 
 of the jurisdiction and of this treatise, therefore, I have 
 attempted to display hand in hand together, so as to 
 evolve the practice. The high character of the decisions 
 of the supreme court, and the thorough and systematic 
 statutes of Illinois, when applied to such an arrangement,
 
 IV PREFACE. 
 
 at once gave assurance of the propriety of the plan pro- 
 posed. They tit, with peculiar force, into their allotted 
 places. If I have measurably succeeded in making them 
 more manifest and useful, the success of my present under- 
 taking, owing to the merit of such statutes and decisions 
 alone, seems to me a foregone conclusion. The performance 
 is now submitted to a critical, though charitable profession 
 and a generous public. 
 
 Acknowledgments are due and hereby made to Hon. 
 James B. Brad well, to F. H. Kales, Hiram Barber, Jr.. D. J. 
 Avery, Julius Rosenthal and A. M. Pence, Esqs., of the 
 Chicago bar, and to Hon. B. D. Meek, County Judge 
 of Woodford county, and many others for valuable sug- 
 gestions. I am greatly indebted to Hon. P. H. Walker. 
 of the supreme court, and Hon. M. R. M. Wallace, County 
 Judge of Cook county, for their considerate counsel in 
 planning and perfecting the work. To all these gentle- 
 men, the thanks of the author and publisher are hereby 
 tendered. 
 
 CHICAGO, August 15, 1873. 
 
 EDWARD J. HILL.
 
 FOURTH EDITION. 
 
 That three editions of this work have been completely 
 exhausted, demonstrates its utility to the classes of persons 
 to whose use it was originally dedicated. Since the last 
 edition appeared, there have been numerous changes in 
 the laws treated upon, and many decisions of the supreme 
 court have tended to their elucidation. Probate courts 
 have also been authorized in counties having a popula- 
 tion of one hundred thousand persons. These matters I 
 have attempted to produce in these pages. I have not 
 thought it necessary, on all occasions, to amend the title 
 of the court as contained in the original acts; where the 
 county court is mentioned, it is used as well to include 
 probate courts, where they may be established. This can 
 lead to no error. 
 
 The Revised Statutes of 1874 are out of print, but I 
 have retained the references to that volume. This for the 
 reason that the possessors of the volume may refer to it, 
 if so it shall please them. These references, however, 
 are equally applicable to COTII HAN'S ANNOTATED STAT- 
 rTKs, recently issued from the press. In that volume 
 tlif paging of the statutes of 1874 is preserved. 
 
 The labor of revising this work was Originally assigned 
 to WILLIAM MILLER, Esq. His engagements were such 
 that a considerable delay seemed inevitable, while there
 
 Ti . PREFACE. 
 
 has been a constant demand for the work. Thus the task 
 was transferred to the subscriber, who trusts the addi- 
 tional matter will increase the value of the treatise. 
 
 HENRY BINMORE. 
 CHICAGO, May 15, 1880.
 
 SUMMARY OF CONTENTS. 
 
 PAGE. 
 Chapter I. Jurisdiction 1-9 
 
 SEC. I. Introduction 1-3 
 
 SEC. II. County Courts, xiii-xxi In Probate 3-9 
 
 Chapter II. Testate Estates ... 10-60 
 
 SEC. I. Wills 10-27 
 
 SEC. II. Probate of Wills 27-53 
 
 SEC. III. Executors 53-60 
 
 1. Appointment 53-54 
 
 2. Powers and Duties 54-57 
 
 3. Renunciation, Resignation and Removal 57-60 
 
 Chapter III. Intestate Estates 61-101 
 
 SEC . I . Introduction 61-64 
 
 SEC. II. Appointment of Administrators 64-82 
 
 SEC. III. Powers and Duties 82-96 
 
 SEC. IV. Resignation and Removal 96-101 
 
 Chapter IV. Persons and Estates of Infants or Minors, 102-135 
 
 SEC. I. Infants 102-107 
 
 SEC. II. Appointment of Guardians 107-117 
 
 SEC. III. Powers and Duties ; Guardian and Ward 118-122 
 
 SEC . IV . Resignation and Removal 122-135 
 
 Chapter V. Incapacitated Persons and their Estates. . . 135-156 
 
 SEC. I. Idiots, Lunatics, Drunkards, etc 135-138 
 
 SEC. II. Appointment of Conservators 138-147 
 
 SEC. III. Commitment and Detention ; Forms 147-156 
 
 Chapter VI. Personal Estate in A dministrafion 157-185 
 
 SEC. I. Kinds of Personal Property; collection and disposition of, 
 
 by the executor or administrator 157-183 
 
 SEC. II. In the hands of Guardians and Conservators 183-185
 
 VI '1 SUMMARY OF CONTENTS. 
 
 PAGE. 
 Chapter VII. Real Estate in Administration 186-214 
 
 SEC. I. Through the Executor 186-192 
 
 SEC. II. Through the Administrator 192-207 
 
 SEC. III. Through the Guardian 207-214 
 
 SEC. IV. Through the Conservator 138, 213 
 
 Chapter VIII. Expenses, Allowances, Claims and 
 
 Legacies 215-237 
 
 SEC. I. Demands classified ; the widow's award ; funeral expenses, 
 
 and expenses of last illness 215-222 
 
 SEC . II . Claims against Estates 222-232 
 
 SEC. III. Legacies 232-237 
 
 Chapter IX. Accounts 238-250 
 
 SEC. I. By the Executor or Administrator 238-242 
 
 SEC. II. By the Guardian and Conservator 243-250 
 
 Chapter X. Descent 251-271 
 
 The Law of 251-271 
 
 Chapter XI. Appeals 272-274 
 
 From the County Court 272-274 
 
 Chapter XII. Miscellaneous Matters 275-203 
 
 Miscellaneous Matters 275-297 
 
 Miscellaneous Provisions of the Act of April 1, 1872 278-283 
 
 Miscellaneous Statutes 283-289 
 
 Miscellaneous Decisions 289-291 
 
 Proclamation by Sheriff 291 
 
 Oaths and Affirmations ; Forms 291-293 
 
 Chapter XIII. Costs and Fees 294-300 
 
 Costs in Court and Officer's Fees 294-300 
 
 Chapter XIV. The Probate Hecord 295-337 
 
 Practice, Pleadings, Suggestions and Forms 295-337 
 
 Logical Summary of the Act of April 1, 1872 339-343 
 
 Logical Summary of Act of March 20, 1872 343, 344 
 
 Addenda 344-346 
 
 Rules of the Probate Court of Cook County 347-352
 
 JURISDICTION 
 
 COUNTY AND PROBATE COURTS; 
 
 SECTION 1. There shall be in each of the counties of this State, 
 now created and organized, or which may hereafter be created or 
 organized, a court of record, to be styled " The County Court of 
 County." Said court shall have a seal. 
 
 2. Said courts shall sit in the court-houses or usual places of 
 holding courts in the several counties of this State, or in suitable 
 rooms provided therefor at the county seat. 
 
 3. The county judge in each county shall be elected on the 
 Tuesday after the first Monday in November, in the year 1877, and 
 on the Tuesday after the first Monday in November every fourth 
 year thereafter, and shall enter upon the duties of his office on the 
 first Monday of December after his election, and shall hold his office 
 for four years and until his successor is elected and qualified. 
 
 4. The county judge shall, before entering upon the duties of 
 his office, take and subscribe, and file with the secretary of state, 
 the following oath : 
 
 " I do solemnly swear (or affirm, as the case may be}, that I will 
 support the constitution of the United States, and the constitution 
 of the State of Illinois, and that I will faithfully discharge the 
 duties of the office of county judge according to the best of my 
 ability." 
 
 5. County courts shall have jurisdiction in all matters of pro- 
 bate, settlements of estates of deceased persons, appointment of 
 guardians and conservators, and settlements of their accounts; all 
 matters relating to apprentices; proceedings for the collection of 
 taxes and assessments ; and in proceedings by executors, adminis.- 
 trators, guardians and conservators for the sale of real estate for 
 the purposes authorized by law, and such other jurisdiction as is or 
 may be provided by law. All of which, except as hereinafter pro- 
 
 * An act to extend the jurisdiction of county courts, and to provide for the practice 
 thereof, to fix the time for holding the same, and to repeal an act therein named. 
 Appro- ed March 2V, 1874 In force July 1, 1874, as since amended. Cothran s Ann d 
 Stats . 410-^4.
 
 JURISDICTION OF THC 
 
 Act of 187-1, as amended. 
 
 vided, shall be considered as probate matters, and be cognizable at 
 the probate terms hereinafter mentioned. 
 
 6. The terms of the county court for probate matters shall com- 
 mence on the third Monday of each mouth during the year, except 
 the months prescribed in this act for the holding of law terms, and 
 shall be always open for the granting of letters testamentary and 
 guardianship, and for the transaction of probate business, and 
 hearing applications by insolvent debtors for discharge from arrest 
 or imprisonment, and all matters cognizable at the probate terms 
 shall also be cognizable at the law terms. 
 
 7. The county courts shall have concurrent jurisdiction with 
 the circuit courts in all that class of cases wherein justices of the 
 peace now have, or may hereafter have, jurisdiction where the 
 amount claimed or the value of property in controversy shall not 
 exceed one thousand dollars ($1,000), concurrent jurisdiction in all 
 cases of appeals from justices of the peace and police magistrates: 
 Provided, appeals from the county judge, when sitting as justice of 
 the peace, shall bo taken to the circuit court as now, and in all 
 criminal offenses and misdemeanors where the punishment is not 
 imprisonment in the penitentiary or death, all of which shall be 
 cognizable at the law terms hereinafter mentioned. 
 
 8. The law terms of the county court, except as otherwise herein- 
 after provided, shall commence on the second Monday of the 
 months as follows, to wit: in the counties of 
 
 9. Adams, on the first Mondays of February, June and October. 
 
 10. Alexander, in March, July and November. 
 
 11. Bond, in January, June and November. 
 
 12. Boone, in March, June and December. 
 
 13. Brown, in January and June. 
 1. Bureau, in January, June and October. 
 
 15. Calhoun, in January and June. 
 
 16. Carroll, in February, June and November. 
 
 17. Cass, in April and October. 
 
 18. Champaign, in January, May, August and November. 
 19. Christian, in April, June, October and December. 
 
 20. Clark, in January, June and September. 
 31. Clay, on the third Monday in January and June. 
 22. Clinton, in February and August. 
 23. Coles, in March and July. 
 
 24. Cook, in January, February, March, April, May, June, July, 
 August, September, October, November and December. 
 25. Crawford, in January and June. 
 26. Cumberland, in October.
 
 COUXTY COURTS. XI 
 
 Act of 1874, as amended. 
 
 27. DeKalb, in April, July and December. 
 28. DeWitt, in January and June. 
 29. Douglas, in January and July. 
 30. Du Page, in January and June. 
 31. Edgar, in June and December. 
 32. Edwards, in January and July, 
 33. Effingham, in June and November. 
 34. Fayette, in June and December. 
 35. Ford, in February and June. 
 
 36. Franklin, on the third Monday of February and August. 
 37. Fulton, in February and October. 
 
 38. Gallatin, on the third Monday of April and November. 
 39. Greene, in December and June. 
 40. Grundy, in January, June and September. 
 41. Hamilton, in June and December. 
 42. Hancock, in April, July and December. 
 43. Hardin, in February and August. 
 44. Henderson, in April and October. 
 45. Henry, in April, August and December. 
 46. Iroquois, in January, May and October. 
 47. Jackson, in January, May and November. 
 48. Jasper, in February and August. 
 
 49. Jefferson, on the third Monday of March and September. 
 50. Jersey, in January and June. 
 
 51. Jo Daviess, in April, December, and on the third Monday 
 of September. 
 
 52. Johnson, in February and August. 
 
 53. Kane, in June, September and December. 
 
 54. Kankakee, in February, July and November. 
 
 55. Kendall, in March, September and December. 
 
 56. Knox, in April, August and December. 
 
 57. Lake, in January and June. 
 
 58. LaSalle, in March, September and December. 
 
 59. Lawrence, in April and October. 
 
 60. Lee, in December and June. 
 
 61. Livingston, in March, June, September and December. 
 
 62. Logan, in March, August and November. 
 
 63. McDonough, in June and December. 
 
 64. McHenry, in March and November. 
 
 65. McLean, in April, August and December. 
 
 66. Macon, in February, July and October.
 
 Xll JURISDICTION OF TUB 
 
 Act of 1874, as amended. 
 
 67. Macoupiu, in June. 
 
 ti8. Madison, in February and August. 
 
 69. Marion, in April and November. 
 
 70. Marshall, on the fourth Mondays of April, August and 
 November. 
 
 71. Mason, in January, June and October. 
 
 72. Massac, in February and July. 
 
 73. Menard, in January, May and September. 
 
 74. Mercer, in January, April, July and October. 
 
 75. Monroe, in January and June. 
 
 TO. Montgomery, in Januai'y, May and September. 
 
 77. Morgan, on f,hc second Monday in January, and on the third 
 Mondays in April and September. 
 
 78. Moultrie, in January and June. 
 
 79. Ogle, in February, June and November. 
 
 80. Peoria, in January, April and September. 
 
 81. Perry, in February and September. 
 
 82. Piatt, in June and November. 
 
 83. Pike, in January and August. 
 
 84. Pope, on the third Monday of July of each year. 
 
 85. Pulaski, in January, June and September. 
 
 86. Putnam, in October. 
 
 87. Randolph, in January and June. 
 
 88. Richland, in January and July. 
 
 89. Rock Island, in March, July and November. 
 
 90. St. Clair, in March, July and' November. 
 
 91. The law terms of the county court of Saline county shall 
 commence on the second Mondays in the months of February and 
 August. 
 
 9l. Sangamon, in April, July and December. 
 
 92. Schuyler, in February and August. 
 
 93. Shelby, in January and July. 
 
 94. Scott, in February and August. 
 
 95. Stark, in June and December. 
 
 96. Stephenson, in February, May and October. 
 
 97. Tazewell, in January, April and October. 
 
 98. Union, in May and November. 
 
 99. Vermilion, in January, Anril and October. 
 
 100. Wabash, in October. 
 
 101. Warren, in February, April, July and October. 
 
 102. Washington, in January and July. 
 
 103. Wayne, in January and July. 
 
 104. White, in February and August.
 
 COUNTY COURTS. 
 
 Act of 1874, as amended. 
 
 105. Whiteside, in January, May and October. 
 
 106. Will, in March, July, September and November. 
 
 107. Williamson, in March, August and December. 
 
 108. Winnebago, in March and November. 
 
 109. Woodford, in August. 
 
 109^. The court shall continue open from day to day until all 
 business before it is disposed of. 
 
 110. Unless the court shall otherwise order, the jury for the 
 law terms of the county court shall be drawn and summoned in the 
 same manner as is provided for the drawing and summoning juries 
 for the terms of the circuit court. When a jury is not summoned 
 as above provided, it shall be the duty of said court, on the first 
 day of each term thereof, to call all the cases for trial on the docket, 
 to ascertain whether a jury will be required. If a jury shall be 
 demanded by either party to any suit pending, or by any defendant 
 or the State's attorney in any criminal suit, the court shall there- 
 upon set such case or cases for trial, and direct the clerk of said 
 court to issue a venire for twelve competent jurors, unless the par- 
 ties to such suit or criminal proceeding shall elect to have the 
 same tried by six jurors, and deliver the same to the sheriff or cor- 
 oner, who shall summon such jurors from the body of the county, 
 to be and appear before said court at the term set for the return of 
 said venire; and if, by reason of non-attendance, challenge or other- 
 wise, said jury shall not be full, the panel may be filled by talesmen. 
 Said court shall have the same power to compel the attendance of 
 jurors and witnesses as the circuit court has, and shall be governed 
 by the same rules in impaneling the jury. Said court may retain 
 such jury for all the jury trials of said term. The per diem and 
 mileage of said jurors shall be the same as they are for similar ser- 
 vices in the circuit court, to be paid out of the county treasury 
 upon the certificate of the county clerk: Provided, that in case the 
 sheriff, coroner or bailiff be interested in any jury case pending, or 
 in case any party interested, or any attorney, may object to any 
 sheriff, coroner or bailiff selecting the jury, if the court shall think 
 such objection reasonable, the court shall appoint an impartial 
 bailiff to summon such jury. 
 
 111. The court shall have the power to impanel a jury in any 
 case cognizable at the probate terms as well as at the law terms, 
 whenever it shall be necessary for the trial of any matter pending 
 before the court.
 
 JURISDICTION OF THE 
 
 Act of 1874. 
 
 112. The process, practice and pleadings in said court in com- 
 mon-law cases shall be the same as in the circuit court in similar 
 cases, and the process, orders and judgments of said court shall 
 have the same forms, force, lien and effect as in like cases in the 
 circuit court; and the clerk of said county court shall charge and 
 Collect like fees as the clerk of the circuit court for similar services. 
 Process in cases cognizable at the law terms of the county court 
 shall be made returnable at the law terms. 
 
 113. The sheriff, in person or by his deputy, shall attend the 
 sittings of the county court of his county, preserve order in the 
 same, and execute the legal commands and process thereof: Pro- 
 vided, that the sheriff shall receive pay for attending upon the 
 sittings of said court only when requested so to do by the court. 
 
 114. Whenever the county judge of any county is interested in 
 the estate of any diseased person, and the letters testamentary or 
 of administration shall be gran table in the county of such judge, 
 such facts shall be entered upon the records of such court and cer- 
 tified to the circuit court of such county : Provided, that in case 
 the judge is interested only as a creditor, no change need be made 
 except in relation to his claim. 
 
 115. Upon the filing of a copy of such certificate with the clerk 
 of the circuit court, such court shall have full and complete juris- 
 diction in all matters pertaining to such estate, and may make all 
 orders and take all proceedings therein which might have been 
 made or taken in the county court if the judge thereof had not 
 been interested. 
 
 J16. In all cases transferred to the circuit court under the two 
 preceding sections, the clerk of such court shall have the same 
 authority to grant citations and letters testamentary and of adminis- 
 tration in vacation as is given to clerks of the county courts. 
 
 117. All offenses cognizable in county courts shall be prose- 
 cuted by information of the State's attorney, attorney-general or 
 some other person, and when an information is presented by any 
 person other than the State's attorney or attorney-general, it shall 
 be verified by affidavit of such person that the same is true, or that 
 the same is true as he is informed and believes. Before an infor- 
 mation is filed by any person other than the State's attorney or 
 attorney-general, the judge of the court shall examine the informa- 
 tion, and may examine the person presenting the same, and require 
 other evidence and satisfy himself that there is probable cause for
 
 COUXTY COURTS. XV 
 
 Art of 1874, as amended. 
 
 filing the same and so indorse the same. Every information shall 
 set forth the offense with reasonable certainty, substantially as re- 
 quired in an indictment, and may be filed either in term time or in 
 vacation, and the proceedings thereon shall be the same, as near as 
 may be, as upon indictment in the circuit court, except as herein 
 otherwise provided. Nothing in this act shall be construed to affect 
 the jurisdiction of justices of the peace.* 
 
 118. The court in term time, or the judge in vacation, shall 
 fix the amount of bail to be required of the accused, and the clerk 
 shall indorse the same upon the capias, except that when the capias 
 is issued in term time the same may be made returnable forthwith 
 when it shall not be necessary to fix the amount of bail until the 
 accused is brought into court. 
 
 119. The court may receive the plea of guilty and pass judg- 
 ment, or if the accused will waive a jury and be tried by the court 
 without a jury, the court may, upon notice being first given to the 
 State's attorney, try the cause and pass judgment as well at a pro- 
 bate as a law term of said court. 
 
 120. When the grand jury of the circuit court shall indict for 
 offenses cognizable in the county court, such indictments may, in 
 the discretion of said circuit court, be certified under the seal thereof 
 to the county court for process and trial, which process shall be the 
 same as like process in the circuit court. 
 
 121. In certifying indictments from the circuit court to the 
 county court, the clerk of the circuit court may use the following 
 form, substantially : 
 
 STATE OF ILLINOIS,) 
 
 County of , ) * 
 
 " I, , clerk of the circuit court, in and for the county of , afore- 
 
 said, do certify that the within bill of indictment was on the day of , 
 
 duly presented in open court by the grand jury of said county, and being duly 
 examined by the said circuit court, it was ordered by the court that the same 
 be certified by the clerk of the circuit court to the county court for process and 
 trial, which is done accordingly." 
 
 Which certificate, when indorsed on the back of any indictment, 
 shall be sufficient to warrant a trial and conviction of any party 
 charged in any indictment so certified, and shall be deemed a suffi- 
 cient record to authorize the county court to try the party so 
 
 Judge McAllister holds this section to he unconstitutional, as in conflict with 5, 
 Art. II. and 29, Art. VI, Const. 1870. See The People ex rel. Smith v. Brown, 67 111. 
 435: Myers v. The Periple, 67 iy. 503.
 
 XVI e JURISDICTION OF THE 
 
 Act of 1874, as amended 
 
 indicted : Provided, either party may ask for and obtain a rule on 
 the clerk of the circuit court for a complete record, duly and 
 properly certified, of any cause pending in the county court having 
 been certified as aforesaid ; and it shall be the duty of the clerk of 
 the circuit court to obey any rule of the county court for the pur- 
 pose aforesaid, and when a complete record shall be so certified to 
 the county court, said court shall be governed thereby in all respects 
 in all its proceedings. 
 
 122. Appeals may be taken from the final orders, judgments 
 and decrees of the county courts to the circuit courts of their 
 respective counties in all matters except as provided in the follow- 
 ing section, upon the appellant giving bond and security in such 
 amount and upon such conditions as the court shall approve, except 
 as otherwise provided by law. Upon such appeal, the case shall be 
 tried de novo. 
 
 123. Appeals and writs of error may be taken and prosecuted 
 from the final orders, judgments and decrees of the county court to 
 the supreme court or appellate court, should such a court be estab- 
 lished by law, in proceedings for the sale of lands for taxes and 
 special assessments, and in all common law and attachment cases, 
 and cases of forcible detainer and forcible entry and detainer. 
 Such'appeals and writs of error shall, when not otherwise provided, 
 be taken and prosecuted in the same manner as appeals from and 
 writs of error to circuit courts. 
 
 In all appeals in criminal cases, the court shall fix the amount of 
 the recognizance, and when the same is executed, the defendant 
 shall be discharged from imprisonment until otherwise ordered by 
 the appellate court, on the dismissal or trial of the appeal; and the 
 securities may deliver their principal, and be subject to liabilities, 
 to be enforced as in other cases of recognizance. 
 
 124. The several county courts shall have the power to hear 
 and determine all causes pending in such courts at the time this act 
 shall take effect, and to enforce all judgments, orders and decrees 
 entered therein, or in any cause of which they may have had juris- 
 diction previous to the taking effect of this act. Appeals and writs 
 of error may be prosecuted from such judgments, orders and 
 decrees. 
 
 125. An act entitled "An act to increase the jurisdiction of 
 county courts," in force July 1, 1872, is hereby repealed : Provided, 
 that nothing herein contained shall be construed to affect any rights 
 or remedies that may have accrued under said act hereby repealed.
 
 PROBATE COURTS. XV11 
 
 Act of 1877. 
 
 JSior shall any suit or proceeding pending in the county court, under 
 the act hereby repealed, be abated by such repeal, and all such suits 
 or proceedings pending, when this act takes effect, shall stand con- 
 tinued to the first term of court to be held under the provisions of 
 this act. 
 
 SECTION 1. That the county judges of the several counties of 
 this State, with like privileges as the judges of the circuit courts of 
 this State, may interchange with each other, hold court for each 
 other, and perform each other's duties when they find it necessary 
 or convenient.* . 
 
 PROBATE COURTS, f 
 
 SECTION 1. Be it enacted ~by the People of the State of Illinois} 
 represented in the General Assembly: That there shall be estab- 
 lished in each county of this State, now created and organized, OP 
 which may be hereafter created and organized^ and which has a 
 population of one hundred thousand, or more, a court of record to 
 be styled, " The Probate Court of (name of) county." Such court 
 shall have a seal and may from time to time, as may be necessary, 
 renew or alter the same. The expense of such seal, and of renew- 
 ing and altering the same, shall be paid by the county. 
 
 2. Said courts shall be held in the court-houses of the respect- 
 ive counties in which they shall be established, or in the usual 
 places of holding courts, or in suitable rooms provided therefor at 
 the county seat. 
 
 3. The judge of said court in each county, in which such court 
 shall be established, shall be elected on the Tuesday next after the 
 first Monday in November, at the same election at which the county 
 judge is elected, and every fourth year thereafter, and shall enter 
 upon the duties of his office on the first Monday of December after 
 his election, and shall hold his office for a term of four years and 
 until his successor is elected and qualified, and shall be known as 
 the probate judge of (name of) county. 
 
 4. The probate judge of each county in which a probate court 
 shall be established shall, before entering upon the duties of his 
 
 * An act to authorize county judges to interchange, hold court for each other and 
 perform each other's duties. Approved May 31, 1879; in force July 1, 1879. 
 
 t An act to establish probate courts in all counties having a population of one hun- 
 dred thousand, or more, to define the jurisdiction thereof, and regulate the practice 
 therein, and to fix the time for holding the same. Approved April 27, and in force 
 July 1, 1877. Laws 1877, p. 79. Cothran's Ann'd Rev Stats., 424 et seq.
 
 XY111 PROBATE COURTS. 
 
 Act of 1877. 
 
 office, take and subscribe and file with the secretary of State the 
 oath required by the constitution. 
 
 5. Probate courts shall have original jurisdiction in all matters 
 of probate, the settlement of estates of deceased persons, the 
 appointment of guardians and conservators and settlement of their 
 accounts, and in all matters relating to apprentices, and in cases of the 
 sales of real estate of deceased persons for the payment of debts. And 
 as soon as such court is organized in any county, the county court 
 of such county shall turn over to the probate court all of its pro- 
 bate records, and all files, books and papers of every kind relating 
 to probate matters in such county court, and all records, files and 
 papers in matters of guardianship and conservators, and the clerk 
 of the probate court shall be authorized to demand and receive from 
 the county clerk all such records, files, books nnd documents, and 
 upon the receipt thereof, the probate court shall proceed to finish 
 and complete all unfinished business relating to probate, guardian- 
 ship and conservatory matters in the manner provided by law. 
 
 6. The terms of the probate court shall commence on the third 
 Monday of each month during the year, and shall be always open 
 for the granting of letters testamentary, letters of administration 
 and guardianship, and for the transaction of probate business and 
 all other matters of which it has jurisdiction, and shall continue 
 open, from day to day, until all business before it is disposed of. 
 
 7. The probate court shall have the power to impanel a jury, 
 for the trial of issues or matters of fact, in any matter or matters 
 pending before the court, and for such purpose the court may at 
 any time, when it becomes necessary to have a jury, direct the clerk 
 of said court to issue a venire for either six or twelve competent 
 jurors and deliver the same to the sheriff or coroner or any bailiff 
 of the court, who shall summon such jurors from the body of the 
 county to be and appear before said court at any term or day named 
 in such venire, and if by reason of non-attendance, challenge or 
 otherwise, said jury shall not be full, the panel may be filled by tales- 
 men. Said court shall have the same power to compel the attendance 
 of jurors and witnesses as the circuit court has, or may hereafter have, 
 and jurors to act as such in said court shall possess the same qualifi- 
 cations and be entitled to the same privileges of exemption and sub- 
 ject to the same rules of challenge, for cause or peremptorily, as ju- 
 rors in the circuit courts of the State. When such jury sha'l b^ 
 brought into said court the court may retain such jury during the
 
 PROBATE COURTS. XIX 
 
 Act of 1877. 
 
 t>rm, or any portion thereof, as may be necessary for the trial of any 
 matter or matters of fact which in the discretion of the court 
 requires a jury. The per diem and mileage of said jurors shall be 
 the same as they are for jurors in the circuit court, to be paid out 
 of the county treasury upon the presentation of a certificate of the 
 clerk of said court, issued to each juror at the time of thei discharge, 
 certifying to the number of days he may have attended court as a 
 juror and the amount of juror fees and mileage due him. 
 
 8. The process, practice and pleadings in said court shall be the 
 same as those now provided, or which may hereafter be provided, 
 for the probate practice in the county courts of the State, and all 
 laws now in force, or which may hereafter be enacted concerning wills, 
 or the administration of estates, shall govern and be applicable to 
 the practice in the probate courts of the State. 
 
 9. The sheriff, in person or by his deputy, shall attend the sit- 
 tings of the probate court of his county, preserve order in the same 
 and execute the legal commands and process thereof. 
 
 10. Whenever the probate judge of any county is interested in 
 the estate of any deceased person, and the letters testamentary or 
 of administration shall be gran table in the county of such judge, 
 such estate shall be probated in the county court of such county, 
 unless the county judge be also interested, in which event the 
 facts of such interest may be entered of record in the probate court 
 of the county, and certified to the circuit court of the county, and 
 upon the filing of such certificate with the clerk of the circuit 
 court, such court shall have full and complete jurisdiction in all 
 matters pertaining to such estate, under all laws of this State con- 
 cerning the administration of estates or the probate of wills; and in all 
 cases so transferred the clerk of said circuit court shall have the same 
 power in all matters of such estate, in term time or vacation, that 
 the clerk* of the probate or county court has : Provided, that, if the 
 probate judge is only interested as a creditor, no change may be 
 made, except in relation to his claim. 
 
 11. Appeals may be taken from the final orders, judgments and 
 decrees of the probate courts to the circuit courts of their respective 
 counties, in all matters except in proceedings on the application of 
 executors, administrators, guardians and conservators for the sale of 
 real estate, upon the appellant giving bond and security in such 
 amount and upon such condition as the court shall approve, and 
 upon such appeal the case shall be tried de novo.
 
 XX PROBATE COURTS. 
 
 Act of 1877. 
 
 12. Appeals and writs of error may be taken and prosecuted 
 from the final orders and decrees of the probate court to the supreme 
 court in proceedings on the application of executors, administra- 
 tors, guardians and conservators for the sale of real estate. Such 
 appeals and writs of error, vhen not otherwise provided, shall be 
 taken and prosecuted in the same manner as appeals from and writs 
 of error to the circuit court. 
 
 13. There shall be elected at the same time as the probate judge 
 is elected, a clerk of the probate court, who shall hold his office for 
 a term of four years and until his successor shall be elected and 
 qualified. Before entering upon the duties of his office he shnll 
 take and subscribe the oath required by the constitution of the 
 State. 
 
 14. Every such clerk shall, before entering upon the duties of 
 his office, give bond with two or more, sureties, to be approved by 
 the judge of the court of which he is clerk, which bond shall be in 
 such penalty, not less than five thousand dollars ($5,000), as may 
 be determined by such judge, payable to the People of the State of 
 Illinois, and conditioned for the faithful performance of the duties 
 of his office and to pay over all moneys that may come to his hands 
 by virtue of his office to the parties entitled thereto, and to deliver 
 up to his successor in office all moneys, papers, books, records and 
 other things appertaining to his office whole, safe and undefaced, 
 which bond shall be copied at large upon the records of the court 
 and then filed in the office of the secretary of State, upon which 
 such clerk shall be immediately commissioned by the governor and 
 enter upon the duties of his office. 
 
 15. Every such clerk shall attend in person to the duties of his 
 office when it is practicable so to do, and perform all the duties 
 thereof which can reasonably be performed by one person; Provid</l, 
 however, he may, when necessary, appoint deputies, who shall take 
 the same oath or affirmation as is required of the principal clerk, 
 which shall be entered at large upon the records of the court, and 
 the principal clerk shall, in all cases, be responsible for the acts or 
 omissions of his deputies. 
 
 16. Every such clerk shall attend the sessions of their respec- 
 tive courts, issue all process thereof, preserve all the files and papers 
 thereof, make, keep and preserve complete records of all the pro- 
 ceedings and determinations thereof, and do and perform all other 
 duties pertaining to their said offices as may be required by law or
 
 PROBATE COURTS. XXI 
 
 Act of 1877. 
 
 the rules and orders of their courts respectively, and shall enter of 
 record all judgments, decrees and orders of their respective courts 
 before the final adjournment of the respective terms thereof, or as 
 soon thereafter as practicable. 
 
 17. It shall be the duty of the county board of every county in 
 which there shall be established a probate court in pursuance of 
 this act, to provide the clerk thereof with all necessary blanks, 
 books, stationery, pens and ink for their respective offices, the same 
 to be paid for out of the county treasury, and in case such supplies 
 should not be so furnished, then the clerk of such court shall fur- 
 nish the same, from time to time, as may be necessary, the cost 
 thereof to be allowed by the county board and paid out of the 
 county treasury. 
 
 18. The necessary rooms, office and furniture, the proper vaults 
 or other safe means of keeping the archives of their respective 
 offices shall be provided for the clerks of the probate courts, in 
 their respective counties, by the county, and the cost thereof paid 
 out of the county treasury. 
 
 19. It shall be the duty of the probate clerk to deliver over to 
 his successor in office, and of his successor to demand and receive 
 from him, all the books, papers, records, and other things appertain- 
 ing to his office, or in his possession by virtue of his office, and 
 should he refuse or neglect to do so, the court shall have power to 
 use such compulsory process and take such measures as may be 
 necessary to compel the delivery as aforesaid, according to the true 
 intent and meaning hereof. 
 
 20. In all matters concerning the probate of the estates of de- 
 ceased persons, the granting of letters testamentary or of adminis- 
 tration, letters of guardianship, the manner of keeping the records 
 of said court, the form of docket entries, journals, fee books, memo- 
 randums, the form of process, the recording of papers and docu- 
 ments connected with any matter of which said court has juris- 
 diction, the clerk of said court shall be governed by and follow all 
 laws now in force, or which may hereafter be enacted, concerning 
 similar matters in the county courts of the State. 
 
 21. The clerk of the probate court shall charge and collect for 
 each official act the same fees as are allowed to clerks of the county 
 courts of the State in probate matters,* which fees shall be charged 
 
 * This section is amended by act of May 29, 1879. in force July 1, 1879, by which act a 
 complete schedule of fees was adopted. See Cothran's Ann'd Stats., 1880, p. 715, 
 55a; also see post, chapter Fees. 
 D
 
 XX11 PROBATE COURTS. 
 
 Act of 1877. 
 
 in accordance with the laws now in force or which may hereafter 
 be enacted concerning fees and salaries, and according to the class 
 to which the county belongs. Such clerk shall keep full, true and 
 correct accounts of all fees collected by him, and report the same in 
 accordance with said laws, for the keeping of which accounts no fees 
 shall be allowed such clerk, and the same shall be open for inspec- 
 tion by the county board, in accordance with said laws, and all fees 
 iu excess of the compensation allowed to such clerk, and necessary 
 clerk hire and other expenses, shall be paid into the county treasury 
 in accordance with said laws concerning fees and salaries. 
 
 22. Clerks of the probate court shall receive such compensation, 
 or salary, as shall be allowed them by the county board, together 
 with the amount of their necessary clerk hire, stationery, fuel and 
 other expenses, in accordance with the provisions of the constitu- 
 tion ; Provided, that in the county of Cook the probate clerk shall 
 receive, aside from clerk hire, necessary expenses for fuel and 
 stationery, the surn of three thousand dollars ($3,000) per annum 
 as his only compensation, to be paid out of the fees of his office. 
 
 23. Probate judges shall be allowed such salary as shall be fixed 
 by their respective county boards, to be paid out of the county 
 treasury. 
 
 24. When a vacancy shall occur in the office of judge of the 
 probate court of any county, the clerk of the court in which the va- 
 cancy exists shall notify the governor of such vacancy. If the 
 unexpired term of the office made vacant is less than one year, at the 
 time the vacancy occurs, the governor shall fill such vacancy by 
 appointment; but if the unexpired term exceeds one year, the 
 governor shall issue a writ of election as in other cases of vacancy 
 to be filled by election.
 
 PBOBATE 
 JURISDICTION AND PRACTICE. 
 
 CHAPTER I. 
 
 OF THE JURISDICTION AND PRACTICE GENERALLY. 
 
 SECTION I. Introduction. 
 
 II. County courts in probate. 
 
 SECTION I. INTRODUCTION. 
 
 1. Testate and intestate estates. 
 
 3. The probate of wills and execution of trusts thereby created, adminis- 
 tration of intestate estates, guardians, conservators, etc. 
 
 3. Subdivision and scope of the subject. 
 
 4. The high character of the trusts involved. 
 
 5. Care requisite in the development of the subject. 
 
 1. TESTATE AND INTESTATE ESTATES. The probate jurisdiction 
 pertains to testate or intestate estates. The person who makes a 
 will is a testator; one who has died is termed a decedent. If a 
 decedent leave a will, he dies testate ; his is a testate estate. The 
 decedent who leaves no will dies intestate and his is an intestate 
 estate. 
 
 2. THE PROBATE OF WILLS, and the due execution of the trusts 
 thereby created, and the administration of the estates of intestates, 
 embrace the entire jurisdiction proper, in probate. But the care 
 of estates of the insane, the inebriate or drunkard, the infant and 
 those otherwise incapacitated, and the care and custody of their 
 persons, are closely allied and akin to the conservation of the estates 
 of deceased persons and, too, is here confined to the county or 
 probate judge. 
 
 3. Hence, in the DEVELOPMENT OF OUR SUBJECT, we propose to 
 treat of : 
 
 I. The jurisdiction and practice generally. 
 II. The probate of wills and the execution of the trusts thereby created, 
 
 or the proper administration of testate estates. 
 HI. The proper administration of intestate estates. 
 IV. The proper care and custody of the persons and the conservation of 
 the estates of the incapacitated.
 
 OF THE JURISDICTION [CH. I. 
 
 Introduction. 
 
 V. The relation of guardian and ward. 
 VI. The disposition of personal property : 
 I. By executors. 
 II. By administrators. 
 
 III. By conservators. 
 
 IV. By guardians. 
 
 VII. The disposition of real property. 
 I. By executors. 
 II. By administrators. 
 
 III. By conservators. 
 
 IV. By guardians. 
 
 VIII. The payment of expenses, allowances, debts and legacies. 
 
 IX. The settlement of accounts. 
 X. The law of descent or inheritance. 
 
 XI. Costs and fees. 
 
 XII. Appeals. 
 XIII. Miscellaneous matters. 
 
 Naturally, divided thus into general subdivisions, it is our purpose 
 to display the subject-matter of this treatise, through the several 
 chapters, subdividing each into a convenient number of sections, 
 interspersing throughout the work the approved forms and pre- 
 cedents, supporting the whole by notes and references to the statutes 
 and adjudications of the courts. 
 
 4. THE HIGH CHARACTER OF THE TRUSTS INVOLVED. "We shall 
 
 endeavor to adapt our work to the intelligence of those who are 
 called upon to discharge the high trusts involved, and, at the same 
 time, furnish the practitioner as well as. the courts, in as concise 
 form as possible, an exposition of the entire course of procedure in 
 the several branches of our subject, which we have above suggested. 
 
 The trust relations here created are of the highest character known 
 to the law, and demand the unceasing vigilance of the courts in 
 order to preserve the property of those whom the law through this 
 jurisdiction seeks to protect. 
 
 Eecent statutes, carefully drawn and systematically arranged, aid 
 materially in the work before us, and furnish, almost without com- 
 ment, plain and concise rules of procedure. But the decisions of 
 the courts showing the development of these statutes are necessary 
 to a clear and full exposition of the law. To know what the law 
 is we must know its history. Therefore, hand in hand with the 
 statutes, we shall endeavor to give these decisions in substance as 
 they are to be found in the Illinois Reports.
 
 CH. I.] AND PRACTICE GENERALLY. 
 
 Introduction. 
 
 5. CARE REQUISITE IN DEVELOPING SUCH A SUBJECT. Great 
 care is necessary iii developing such a subject. The elaborate dis- 
 cussions to be found, however, in these reports, bearing directly 
 upon the questions involved, when properly applied, will furnish 
 the best guide in matters where good counsel is so often needed. 
 
 SECTION II. COUNTY AND PROBATE COURTS.* 
 
 1. They are courts of record. 
 
 2. They have general jurisdiction in probate. 
 
 3. Their judgments, final and conclusive, unless reversed. 
 
 4. Constitutional and statutory provisions. 
 
 5. Constitution of 1818. 
 
 (1) Courts of probate created in 1821. 
 
 (2) Probate court in 1845. 
 
 G. Constitution of 1848; county courts from 1849. 
 
 7. Constitution of 1870; original jurisdiction given to the county and pro- 
 
 bate courts. 
 
 8. This j urisdiction involves sacred trusts. 
 
 9. R. S. 1874, p. 339. 
 
 10. Terms for probate business. 
 
 11. County clerk, 
 
 12. The judgments, orders and decrees in probate, not to be collaterally 
 
 attacked ; the rule in the United States supreme court. 
 
 13. Decisions in Illinois. 
 
 (1) Incidental powers; no discretion in prescribed cases; exclusive 
 
 jurisdiction over personalty^ none over realty ; but see R. S. 
 1874, p. 121. 
 
 (2) Rules of practice. 
 
 14. Equitable jurisdiction over claims against intestate estates. 
 
 15. {Statutory provisions. 
 
 16. Scope of the subject. 
 
 17. Deceased persons, either testates or intestates; testate estates: intes- 
 
 tate estates. 
 
 18. Incapacitated persons persons not sui juris, etc. 
 
 ID. Executors, administrators, guardians, conservators, all officers of the 
 court. 
 
 20. The law of descent. 
 
 21. Appeals. 
 
 22. Method characteristic of the subject. 
 
 * The act of March 26, 1874, in force July 1, 1874, " to extend the jurisdiction of county 
 courts," etc., and "An act to establish probate courts in all counties having a popula- 
 tion of 100,000 or more," etc., passed April 27, in force July 1, 1877, with some subse- 
 quent amendments, contain a revision of all laws in relation to jurisdiction of these 
 courts. These are re-printed (amendments to July 1, 1879), ante, pp. siii etseq. See 
 Cothran's Ann'd Stats., 1880, pp. 416 ctseq.
 
 4 OF THE JURISDICTION [CH. I. 
 
 County Courts. 
 
 1. COUNTY AND PROBATE COURTS ARE COURTS OF RECORD. () 
 
 2. They have GENERAL JURISDICTION over a particular class of 
 cases. It is a limited but not au inferior jurisdiction. (5) When 
 these courts adjudicate upon the matters over which they have gen- 
 eral jurisdiction, as the administration of estates, as liberal intend- 
 ments will be indulged in their favor as to proceedings of circuit 
 courts.(c) 
 
 3. THEIR JUDGMENTS are final and conclusive as to all matters 
 within their jurisdiction and their decrees, within the sphere of 
 probate jurisdiction cannot be collaterally attacked, except for want 
 of jurisdiction, (d) Among these are included all the judicial powers 
 which, prior to the act of February 12, 1849(e), in this State hud 
 been vested in probate courts and probate justices of the peace, the 
 judicial officers of such courts, as they were for a time styled. (/) 
 
 4. CONSTITUTIONAL AND STATUTORY PROVISIONS. To arrive at 
 a clear understanding of the subject, it will be necessary to examine 
 the constitutional and statutory provisions, relating to this juris- 
 diction, which have, heretofore, existed in Illinois, and which, to a 
 great extent, yet remain in force under the constitution of 1870. 
 
 5. CONSTITUTION OF 1818. This constitution ordained that, 
 " the judicial power of this State shall be vested in one supreme 
 court, and such inferior courts as the general assembly shall, from 
 time to time, ordain and estabrish."(<jr) 
 
 (1) COURTS OF PROBATE. Under this limitation of power ( h) 
 the act of February 10, 1821, was passed to establish courts of pro- 
 bate and the manner of proceeding therein, (i) 
 
 (2) PROBATE COURT. To this act several amendments of no 
 present practical iuportance were made(y), from time to time, until 
 the general revision of 1845(&), in which ^the PROBATE COURT was 
 provided for.(Z) 
 
 6. CONSTITUTION OF 1848. The experience of thirty years, 
 
 (a) Ante, pp. xiii el seq. (j) Act, February 12, 1823, Laws 
 
 (b) Propst v. Meadows, 13 111. 157. 1823, p. 132 ; Act, January 12, 1825, 
 
 (c) Moffitt v. Moffitt, 69 111. 641 ; Laws 1825, p. 87 ; see Laws 1829, p. 
 Bostwick v. Skinner, 80 id. 147. 37 ; R. S. 1833, 145 ; 1 Laws 1837. 
 
 (d) Moffitt v. Moffitt, 69 111. 641. 176 ; 2 Laws 1837, 46 ; Laws 1839, p. 
 
 (e) Laws 1S49, p. 62. 39 ; Act, February 1, 1843, Laws 184:], 
 (/) R. S. 1845, ch. 85 ; Banna v. To- p. 185. 
 
 cum, 17 111. 387 ; Doe v. Hileman, 1 (k) See Gross' Index to Laws p. 27, 
 
 Scain. 323. c. Ixxxv, R. S. 1845. 
 
 (g) Const., 1818, Art. iv, 1. () R. S. 1845, pp. 42G-429, appendix 
 
 (h) The People v. Wilson, 15 111. 388. Nos. 21, 22. 
 
 (i) Laws 1821, #. 11.9; 2 Gilm. 657.
 
 CH. I.] AND PRACTICE GENERALLY. 5 
 
 In probate. 
 
 undoubtedly, taught the sovereign people oi' Illinois the necessity 
 of a more systematic organization in which to center such a juris- 
 diction. Hence(w), the COUNTY COURT was provided for with one 
 judge to be elected for a term of four years in each county, and 
 *clothed inter alia "with all probate and such other jurisdiction as 
 the general assembly may confer in civil cases." 
 
 But " the county commissioner's courts and the probate justices 
 of the several counties were continued " until the general assembly 
 acted.(w) According to the early decisions of the supreme court (0) 
 it seems that the first three sections of ch. 85 ( p) were superseded 
 by the act of February 12, 1849, the county judges taking the juris- 
 diction and place of probate justices of the peace, under the then 
 new constitution. (</) 
 
 7. CONSTITUTIONAL PROVISIONS. The constitution of 1870 (r) 
 confers upon county courts, for which it provides "original juris- 
 diction in all matters of probate, settlement of estates of deceased 
 persons, appointment of guardians and . conservators, and settle- 
 ments of their accounts, in all matters relating to apprentices," etc. 
 The same instrument provides as to probate courts, as follows : 
 " The general assembly may provide for the establishment of a pro- 
 bate court in each county having a population of over 50,000, and 
 for the election of a judge thereof, whose term of office shall be the 
 same as that of the county judge, and who shall be elected at the 
 same time and in the same manner. Said coiirts, when established, 
 shall have original jurisdiction of all probate matters, the settlement 
 of estates of deceased persons, the appointment of guardians and 
 conservators and settlement of their accounts, in all matters rela- 
 ting to apprentices; and, in cases of the sales of real estate of de- 
 ceased persons for the payment of debts. (s) 
 
 8. THIS JURISDICTION and the practice pertaining to it; involve 
 the sacred trusts over which the court of chancery exercises its 
 protecting power(^), and which are of paramount importance in 
 the administration of justice and the regulation of private affairs. 
 These trusts are reposed in the county or probate courts, as the 
 
 (m) In Art. v, 16-19. 4-21, appendix, Nos. 21, 22 ; R. Laws 
 
 (n) See 6, Schedule, Const. 1848; 1833, Scales' Comp., p. 656, 1. 
 
 Laws 1849, p. 62 ; 1 Gross' Comp. 526. (r) Art. vi, 8 18. 
 
 (o) Hanna v. Yocum, 17 111. 387. (*) Const. 1870, Art. 6, 20. 
 
 (p) P. 426, R. S. 1845. (t) See HILL'S CH. PR., Trusts, 431, 
 
 (q) Const. 1848, Art. v, g 16-20 : 432 ; Freeland v. Dazey, 25 111. 294. 
 
 schedule, 6 ; R. S. 1845, p. 426,
 
 6 OF THE JURISDICTION [CH. I. 
 
 County Courts. 
 
 case may be, in this State as to courts not of inferior but of special 
 and original jurisdiction, superior within their appropriate sphere 
 of action. They have no modes of procedure of practice, however, 
 excepting such as are derived from the statutes of their creation, (u)^ 
 
 9. The revision of the statutes of 1874, with some few amend- 
 ments, contains the existing law as respects the jurisdiction in 
 prpbate matters conferred upon county courts. The act of April 
 25, 1877, contains the same in regard to probate courts; both acts 
 considered together prescribe the process, practice and pleadings in 
 these courts. To these we shall refer in dealing with our subject(v) 
 
 10. TERMS for probate business are held on the third Monday of 
 every month, except as changed by statute.(w) 
 
 11. CLERKS. Being courts of record, both county and probate 
 courts have clerks. The county clerk acts in the former. In the 
 latter the position is filled by an officer thereto elected, (x) 
 
 12. DECREES, ETC., IN COLLATERAL ACTION OR SUIT. It has, in 
 some of the States, been held that the orders and decrees of judges 
 of probate and of county judges in probate proceedings, are not like 
 judgments of the common-law courts, conclusive until reversed; but 
 they may be attacked in collateral suits or proceedings. This, how- 
 ever, has been greatly limited as a general doctrine, either by statute 
 or adjudication. The leading case on this subject, and the firm 
 ground taken by the supreme judicial tribunal of the nation in 
 upholding the proceedings of such courts, and recognizing them as 
 having original jurisdiction of all matters confided to them, may be 
 taken as perhaps the best exposition of their power and jurisdiction, 
 and the extent to which their orders, judgments or decrees may be 
 collaterally questioned. The rule of the U. S. supreme court is: 
 
 Upon a proceeding in personam, where there are adverse parties, 
 the jurisdiction of the court depends upon its power over the subject- 
 matter and the parties ; where the proceeding is in rem,* the 
 
 (u) Piggott v. Ramey, 1 Scam. 145 ; (v) See p. xiii, supra. 
 
 Marston \. Wilcox, id. 60 ; Ferguson v. (w) Id. 
 
 Hunter, 2 Gilm. 657 ; Moody v. Moody, (x) Act April 27, 1877, 13, ante, p. 
 
 11 Me. 247; Fairfield v. Gulliver, 49 xxiv ; Cothrau's Ann. R. Stat.,p. 426. 
 id. 360; School Jnsp. v. People, 20 111. 
 525 ; Chicago v. Colby, id. 614. 
 
 * No case has received severer criticism than that of Orignon v. Astor, but the U. S. 
 supreme court adheres tenaciously to it. Comstock v. Crawford, 3 Wall. 396; 2 Hill's C. 
 L. 645. The cases in Illinois do not seem to conflict, for the reason that, as says Mr. 
 Justice SCOTT, "The proceedings under our statute to sell the real estate of an intes- 
 tate to pay debts Is not purely a proceeding ire rem. Parties in interest are necessary 
 thereto by the positive provisions of the law." Botsford v. 0' Conner, 57 111. 72. See 
 chapter vii, infra.
 
 CH. I.] AND PRACTICE GENERALLY. 7 
 
 In probate. 
 
 jurisdiction of the court depends upon its power over the thing, 
 the subject-matter before them, without regard to the persons who 
 may have an interest in it ; all the Avorld are parties. Of this nature 
 is a proceeding before a competent court to sell the real estate of an 
 indebted intestate; the administrator represents the land, all persons 
 claiming under the intestate are parties, the action of the court 
 operates on the estate, not on the heirs of the intestate, and the 
 purchaser obtains not their title but one paramount.(y) 
 
 13. THE RULE IN ILLINOIS. It was early decided in Illinois: 
 (1) That courts exercising probate jurisdiction, generally, may 
 exercise all powers necessary to the enforcement of their judgments 
 within the scope of that jurisdiction, and may exercise, as an inci- 
 dent of the power granted, such other powers as are necessary to 
 the execution of that which is specifically granted. Thus, these 
 courts have power to revoke letters of administration obtained 
 through fraud; the right to inquke of the fraud is necessarily inci- 
 dental to the power given by statute, to hear and determine the 
 right of administration ;(z) but the legislature having directed 
 these courts as to the mode of their procedure, they must proceed 
 conformably to the mode prescribed. Such a court could render 
 no judgment in favor of heirs or devisees against an executor or 
 administrator, for failing or refusing to pay over to such heirs or 
 devisees their distributive shares of the estate of the deceased. 
 The remedy would be by attachment for contempt, (a) As courts 
 of general and original jurisdiction in probate matters, they are 
 not inferior courts in the language of the common law, but they 
 are courts of limited or special jurisdiction, having cognizance only 
 of matters specially circumstanced. Their record setting forth the 
 facts or circumstances which give jurisdiction, and in that regard 
 leaving nothing to be inferred and containing nothing to raise a 
 doubt upon that subject, then they are not to be regarded as infe- 
 rior courts. The character of the court and its right to proceed 
 to act, the subject-matter of the record being exemplified, its 
 decrees, in a collateral proceeding, cannot be attacked. The juris- 
 diction only is subject to attack collaterally ; mere errors can only 
 be urged in a direct proceeding to reverse. 
 
 (y) Grignon v. Astor, 2 How. 319 ; 43 id. 348 ; Botsford v. O'Conner, 57 
 
 Banna v. Yocum, 17 111. 387 ; see 1 id. 72. 
 
 Hill's C. L. 42-56 ; The Tug Moniauk (z) Marston v. Wilcox, 1 Scam. 60. 
 Y. Walker, 47 111. 336 ; Hurd v Slaten, (a) Piggott v. Ramey, 1 Scam. 145.
 
 8 OF THE JURISDICTION [CH. I. 
 
 County Courts. 
 
 These courts have exclusive jurisdiction over the personalty.(J) 
 As to the realty their jurisdiction is limited, iii the- case of county 
 courts by the statute of March 26, 1874, to " proceedings by execu- 
 tors, administrators, guardians and conservators for the sale of real 
 estate for the purposes authorized by law," and, in the case of pro- 
 bate courts, by the constitution of 1870, to "cases of the sales 
 of real estate of deceased persons for the payment of debts." 
 
 (2) They may establish RULES OF PRACTICE (c) which should, 
 when made, be placed upon their records; such rules cannot rest in 
 parol, they should have reasonable publicity and not operate retro- 
 spectively, (d) 
 
 14. They have a sort of EQUITABLE JURISDICTION over claims 
 presented for allowance, (e) 
 
 The constitution of 1870, giving original jurisdiction to the 
 county and probate courts, where authorized to be established, in 
 probate and other matters, they may be considered in Illinois as 
 standing, so far as relates to the force and effect of their adjudica- 
 tions in such matters on an equal footing with circuit courts, to 
 the full extent of their special jurisdiction, as shown above. (/) 
 
 15. THE STATUTORY PROVISIONS. The statutes concerning ad- 
 ministration of estates; adoption of children; apprentices; descent; 
 dower; lunatics, idiots, drunkards and spendthrifts; guardian and 
 ward and wills, provide the mode of practice and procedure which 
 will be considered in order. 
 
 16. SCOPE OF THE SUBJECT. As the end and scope of the juris- 
 diction, now in review before us, is the proper administration not 
 only of the estates of the deceased, but also of the estates of the 
 incapacitated, it seems necessary, in order to an easy and natural 
 arrangement of our subject, that we should consider the procedure 
 and practice of the county courts, the means to this end, and 
 classify them, with reference to the persons whose estates thus 
 become the subject-matter for judicial action. 
 
 17. DECEASED PERSONS in probate are divided into two classes: 
 (1) Those who make wills and, therefore, die testate, and leave, 
 
 for probate jurisdiction, testate estates. 
 
 (6) But see act of February 12, 1849, (/) Botsford v. <? Conner, 57 111. 72; 
 
 Gross, 526, 527 ; Ferguson v. Hunter, Hanna v. Tocum, 17 id. 387 ; Clark v. 
 
 2 Gilm. 657. Thompson, 47 id. 25 ; Willoughby v. 
 
 (e) Holloway v. Freeman, 22 111. 197. Dewey, 54 id. 26; see 1 Hill's Com. 
 
 (d) Owens v. Ranstead, 22 111. 161. Law, 40-56 ; 2 id. 645. 
 
 () Hurd v. Slaten, 43 111. 348.
 
 CH. I.] AND PRACTICE GENERALLY. 9 
 
 In probate. 
 
 (2) Those who make no wills and, therefore, die intestate, and 
 leave, for such jurisdiction, intestate estates. 
 
 18. INCAPACITATED PERSONS, whose property is subjected to the 
 jurisdiction, may also be divided into two classes: 
 
 (1) Infants. 
 
 (2) Other incapacitated persons. 
 
 Hence, the subject-matter of this jurisdiction divides naturally 
 into 1. Testate estates; 2. Intestate estates; 3. Estates of infants; 
 4. Estates of the insane and other incapacitated persons. 
 
 19. EXECUTORS, ETC., OFFICERS OF THE COURT. All these estates 
 are made up of the two classes of property known to the law as per- 
 sonal and real, to which appertain as distinguishing characteristics 
 different rules of enjoyment and disposition. Testate estates are 
 managed by and through executors, the appointees of their testators; 
 intestate estates through administrators; estates of infants through 
 guardians and the estates of the incapacitated persons through 
 conservators, all appointees and officers of the court, subject to its 
 process, orders and decrees, and liable to account when required 
 not only to the court but to those interested as cestuu que trust in 
 these estates. The funds in hand are to be disposed of in the pay- 
 ment of expenses, allowances, debts, legacies, etc. 
 
 20. THE LAW OP DESCENT. In the distribution of these estates 
 finally, the law of descent furnishes well-defined rules. Costs and 
 fees accrue in the proceedings. 
 
 21. APPEALS are provided for. There are other matters pertain- 
 ing to the jurisdiction which it will be necessary to incidentally con- 
 sider. We shall close the volume with the inevitable appendix con- 
 taining, among other things, the concise and excellent rules of the 
 probate court of Cook county, with forms, etc. 
 
 22. METHOD. By thus subjecting the matters before us to 
 methodical arrangement under the rules of analysis, we are pre- 
 pared to discuss with greater satisfaction the important details and 
 admire the system and harmony which pervade the procedure and 
 practice in such matters. The highest trusts known to the law 
 pertain to testate estates, therefoi-e, we purpose to consider them 
 first, which brings us to another chapter. 
 
 2
 
 10 TESTATE ESTATES. [CH. II. 
 
 Wills. 
 
 CHAPTER II. 
 
 TESTATE ESTATES. 
 WILLS, THEIR PROBATE AND THEIR EXECUTION. 
 
 SECTION I. Wills. 
 
 II. Probate of wills. 
 III. Executors. 
 
 SECTION I. WILLS. 
 
 1. Definition. 6. Forms. 
 
 2. Who may make a will. (1) Of a will. 
 
 3. Requisites of a will. (2) Of a codicil. 
 
 4. Nuncupative will. (3) Of a nuncupative will. 
 
 5. Codicils. 7. Revocation. 
 
 8. Production of the will. 
 
 9. Construction of wills. 
 
 1. DEFINITION. A WILL is the legal declaration of a man's 
 intention respecting the manner in which he would have his prop- 
 erty, or estate, disposed of after his death. The terms will and 
 testament are synonymous. When the will operates upon personal 
 property, it is called a testament j when upon real estate, a devise. (a) 
 The more general and popular denomination of the instrument, 
 embracing equally real and personal estate, is that of last will and 
 testament. 
 
 2. ALL NATURAL PERSONS, unless restricted or incapacitated 
 may transmit their property to posterity by will. There are two 
 causes which prevent a person from the valid execution of such an 
 instrument. 
 
 1. Want of mind; 2. Inability by reason of want of age. 
 
 In this State the power of a testator of sound mind to dispose of 
 his estate is unlimited, both as to person and object, unless, indeed, 
 there be excepted the person of a witness to the instrument and its 
 execution. Any person subscribing as a witness and all claiming 
 under him are debarred from taking under the provisions of the 
 will he has so subscribed. As to him, all devises, legacies and 
 
 (a) 4 Kent's Com. 500 ; Bouv. L. D., Witt.
 
 CH. II.] TESTATE ESTATES. 11 
 
 Wills. 
 
 interests are void unless there be joined with him at least two other 
 credible and competent witnesses. Nevertheless, if such witness 
 would have been entitled to any share of testator's estate, were the 
 will not existing or established, he will be entitled to that propor- 
 tion of the estate he \vould have received from an intestate estate, 
 to the extent it does not exceed the special devise or bequest made 
 to him by the will; (b) he may pass by his own children, and he 
 may prescribe the time and mode in which the bounty shall be 
 enjoyed, provided he therein contravenes no principle of public 
 policy or rule of right. (6-) Every person aged twenty-one years, if 
 a male, or eighteen, if a female, being of sound mind and memory, 
 shall have power to devise real estate, or any interest they may have 
 in the same, and to dispose of personal estate of every description by 
 wilL(rf) 
 
 The law in force at the time of the death of the testator or intes- 
 tate controls his estate, but the will, though legally executed by a 
 competent person, is wholly inoperative to convey title and for most 
 other purposes till it has been probated. (e) 
 
 3. THE INDISPENSABLE REQUISITES OF A WILL are, that it must 
 be signed by the testator or by some one for him and in his name, 
 in his presence and by his direction, and be attested in his presence 
 by two or more witnesses. (/) 
 
 4. NUNCUPATIVE WILL. This is a will or testament orally made 
 or declared before witnesses and afterward reduced to writing. 
 Nuncupative wills have been abolished in England by statute 1 
 Viet. ch. 26, 9, with an exception in the case of soldiers in actual 
 military service, and mariners and seamen at sea. This is so, too, 
 in several of the States of the Union . The statute of wills of the 
 State of Illinois recognizes such wills, declaring they shall be good 
 and available in law for the conveyance of personal property, if 
 committed to writing within twenty days after the making thereof, 
 and proven before the court of probate by two or more credible, 
 disinterested witnesses, who were present at the speaking and 
 publishing thereof. They must testify that they were present, 
 
 (6) Coth. Ann'd. Rev. Stats., 1880, married women ; Hill's Chan. Pr. 433, 
 
 1537, 8. 610; Trish v. Newell, 62 111. 196. 
 
 (c) Rhoad* v. Rhoads, 43 111.239; (e) Paschcdl v. Hailmam, 4 Gilm. 285, 
 Heuser v. Harris, 42 id. 425. Hill's Chan. Pr. 56-70. 
 
 (d) 4 Kent's Com. 502 ; R. S. 1874, ch. (/) Eigg v. Wilton, 13 111. 15 ; R. S. 
 148, 1, p. 1104; Laws 1872, Myers' 1874, p. 1101; Flin v. Owen, 58 111.111; 
 ed., p. 131; Act of 1861, relating to Coth. Ann'd. Stats., 1534
 
 12 TESTATE ESTATES. [CH. II. 
 
 Wills. 
 
 heard the testator pronounce the words, believed him to be of sound 
 mind and memory, that testator desired those present to bear wit- 
 ness such was his will, and that at the time testator was in his last 
 sickness. Other two witnesses, equally disinterested, must prove 
 such will was committed to writing within ten days of the 
 death of testator. The court must also be satisfied there existed no 
 fraud, compulsion or other improper conduct operating on testator. 
 
 The supreme court of Illinois has seemed somewhat to change its 
 opinion in relation to these statutory requirements of a nuncupa- 
 tive will. In the case of Weir v. Chidester, 63 111. 453, it held that 
 a substantial but not a literal compliance with the statute is 
 required. That it was only necessary words should be used express- 
 ing a clear intention to give the estate to a certain person ; that 
 any form of expression which would indicate to those present that 
 testator desired them, or some of them, to bear witness to his dis- 
 position of his property, would be sufficient. In Morgan v. Stevens, 
 78 111. 287, the same court required the strictest compliance with 
 the statute. In this case, however, it appeared that the alleged 
 testator lived during some six days, being all the time in condition 
 to make a written will. It did, however, state, as a general propo- 
 sition, that the provisions of the statute must have a rigid and 
 strict construction and must be strictly enforced by the courts. 
 Later, in Herrington v. Stees, 82 111. 50, this was so far modified 
 as to hold that if a person in a sickness from which he afterward 
 died, being impressed with the probability of approaching death, 
 deliberately made his will according to the statute, it was not to be 
 rejected, because, as a fact, he may have had time to reduce it to 
 writing, as well as that no formal request of the testator to the 
 attesting witnesses is required ; that it is sufficient if his desire was 
 clearly manifested that they bear witness to the same. 
 
 5. A CODICIL is an addition or supplement to a will, and is a part 
 of it, the two making but one instrument ; it must be executed with 
 the same solemnities as a will. Its office is to explain the disposi- 
 tions made by the will, to add to or alter it. 
 
 There may be more than one codicil to a will. 
 
 A NUNCUPATIVE WILL, EEDUCED TO WRITING. 
 
 The following is the will of A B, mariner, soldier (as the case 
 may be), of , who being sick, and nigh unto death, which 
 occurred the day following at 6 o'clock, A. M., the same was made by
 
 CH. II.] TESTATE ESTATES. 13 
 
 Wills. 
 
 the said A B, in the presence of the persons whose names are 
 hereto subscribed, and who were specially requested by the said tes- 
 tator to take notice of the same as witnesses, and was in these 
 words : 
 
 I give my watch to A B, my silver spoons to C D (detailing each 
 particular] . All the rest I give to my wife, and she will carry this 
 out. She shall be the executrix. 
 
 Done in the sick chamber of said A B, on 18 , 
 
 at 9 o'clock, P. 31. 
 
 AB, ) 
 
 C D, [ Witnesses. 
 
 7. REVOCATION OF A AVILL. No will, testament or codicil shall 
 be revoked otherwise than by burning, canceling, tearing or obliter- 
 ating the same by the testator himself, or in his presence, by his 
 direction and consent, or by some other will, testament, or codicil, in 
 writing, declaring the same, sighed by the testator in the presence 
 of two witnesses, and by them attested in his presence. No words 
 spoken will avail to revoke or annul any will, testament, devise or 
 codicil in writing, executed in accordance with law. By statute 
 of April 9, 1872, in force July 1, 1872, (g] it is expressly enacted that 
 a marriage shall be deemed a revocation of a prior will ; that is 
 to say, this statute applies to marriages which have taken or shall 
 take place after the date of the act, and not to such as have been 
 had prior to its passage. (Jt) 
 
 Unless a will or codicil be revoked in some one of these modes, it 
 continues operative. The intention to revoke must be made appa- 
 rent, in the manner provided by the statute. If a will is burned, 
 canceled, torn or obliterated by accident, it is not thereby revoked, 
 for its contents in such case may be proved, (i) The revocation is 
 the voluntary, intelligent act of the person making the will. 
 
 By the English law, if a child of the testator should be born after 
 the execution of the will, and no provision be made for it in the will, 
 and the whole estate has been disposed of to its exclusion, it amounts 
 to a revocation of the will ; but our statute (j) expressly provides 
 that in such case the will shall not be revoked ; but unless it shall 
 appear by such will that it was the intention of the testator to dis- 
 inherit such child, the devises and legacies granted by such will 
 shall be abated in equal proportions, to raise a portion for such 
 
 (g) Coth.Annd. R. Stats. 1880,^. 543. (j) % 10, R. S. 1874, 319. Cotliran's 
 (h) In re Tuller, 79 111. 99. Annotated Rev. Statutes, p. 543. 
 
 (i) 4 Kent's Com. 521.
 
 14 TESTATE ESTATES. [CH. II. 
 
 Wills. 
 
 child equal to that which it would have been entitled to receive out 
 of such testator's estate, if he had died without making a will. 
 
 The statute enabling a woman, married or sole, to deal with her 
 separate estate, she may in either event execute and declare a will. 
 This will be subject, of course, to the statute, heretofore mentioned 
 as to the revocation of wills by marriage. The revocation of a will 
 must, when intended to be effectual, be made in the form pre- 
 scribed by statute. 
 
 8. PRODUCTION OF THE WILL. 
 
 (1.^ Venue. 
 
 (2.) Proceedings. 
 
 (3.) Petition for process to compel the same. 
 
 (4.) Order for process and the entry. 
 
 (5.) Attachment to compel the production of a will. 
 
 (6.) Jurisdiction, facts essential to, must appear, 
 
 (7.) The withholding the will. 
 
 (8.) Destruction or secretion, a felony. 
 
 (9.) Compulsory process. 
 (10.) Renunciation, how made and recorded. 
 (11.) Administrator with the will annexed. 
 
 (1.) VENUE. The proper county in which to proceed for the pro- 
 bate of a will, in case of a resident decedent, is the county of his 
 domicile or home.(?) In case of a non-resident decedent, and lands 
 be devised, in the county where the lands or some part of them 
 lie.(/) If there be no lands, then in the county where the testator 
 died or where the estate or the greater part of it is. 
 
 (2.) PROCEEDINGS. On the death of a testator or testatrix, it be- 
 comes the duty of the custodian to deliver up the will to the county 
 court of the proper county.(m) In case of failure or refusal on the 
 
 (k) In re TuOer, 79 111. 99. Stat. of Wills, R. S. 1845, 540 ; Hill's 
 
 (I) 8 11, R. S. 1874, p. 1103 ; 17 of Chan. Pr., Domicile, 50, 51. 
 
 (m) 12, R. S. 1874, p. 1104. 
 
 * The act of 1861 enables married women to exercise dominion over their separate 
 estate, and clothes them with the jus dixponendi as if they were sole, or unmarried. 
 Hill's Ch. Pr. 433, 610. See also act of March 30, 1874, in relation to husband and wife. 
 R. S 1874, ch. 86. p. 576. Cothran's Statutes, 1880. p. 1538.
 
 CH. II. J TESTATE ESTATES. 15 
 
 Wills. 
 
 part of such custodian so to do, an attachment to compel the pro- 
 duction of the will may be obtained at the instance of any person 
 interested in the matter. Any party desiring the production of the 
 will of a decedent, which he knows to be in the custody of any per- 
 son within the jurisdiction, may file a petition(w) or representation, 
 substantially in form as follows : 
 
 (3.) PETITION" FOE PEOCESS TO COMPEL THE PEODUCTION OF A 
 
 WILL. 
 
 ST F 
 
 Count F ^ LIN IS ' j ss : In the County Court of County. 
 
 To the Hon. , judge of said court : 
 
 The petition of A B respectfully showeth that he is a resident of 
 said county; that on the day of , A. D. 18 , C D, 
 
 who then resided in said county, died at , leaving a last 
 
 will and testament in the custody of E F, of said county ; that E. 
 F hath not as yet delivered up the said will to this honorable court, 
 according to the statute in such case made and provided. Where- 
 fore, your petitioner prays that the necessary process may be issued 
 to compel the production of said will. A B. 
 
 STATE OF ILLINOIS, ) 
 County of . j s ' 
 
 A B, being duly sworn, says, that he is the person whose name is 
 signed to the above and foregoing petition, and that all the facts 
 therein stated are true of his own knowledge. 
 
 AB. 
 
 Subscribed and 'sworn to before me, ) 
 this day of ' , A. D. 18 . J 
 
 Cleric (N. P. or J. P.) 
 
 (4.) OEDEE AND ENTEY. Upon such a representation, the court 
 will make the order, and the clerk an entry : 
 
 In the matter of the application ) 
 
 of A B for the production of > 
 
 the will of D, deceased. ) 
 
 It having been made to appear by the representation of A B that 
 on the day of , A. D. 18 , C D, who then resided in 
 
 said county, died at , leaving a last will and testament in the 
 
 custody of E F of said county, and that E F hath not as yet delivered 
 up the said last will to this court, according to the statute in such case 
 made and provided ; now, therefore, ordered that an attachment be 
 issued to compel the production of the said will to this court. 
 
 Then the clerk will issue the attachment in form as follows : 
 
 (ri) The representation of nearly all procedure, is made by means of a pe- 
 facts, upon which the action of the tition. See PROBATE RECORD, infra. 
 court is based, in the several causes of
 
 16 TESTATE ESTATES. [CH. IL 
 
 Wills. 
 
 (5.) ATTACHMENT TO COMPEL THE PKODUCTION OF A WILL. 
 STATE OF ILLINOIS, ) 
 County of . [ s< 
 
 The People of the State of Illinois : To the sheriff of said county, 
 greeting : 
 
 WHEKEAS, It is represented to the county court of said county, 
 that C D, deceased, caused his last will and testament to be placed 
 in the possession of E F, for safe-keeping (or that the same has 
 fallen into his possession, as the case may be), and that the said E F 
 fails and refuses to deliver up the said last will to the county court 
 of said county. We, therefore, command you to attach the body of 
 the said E F, and bring him before this court at the court-house at , 
 on the day of , next, to show cause, if any he can, why 
 
 he should not be fined and imprisoned for so failing and refusing to 
 deliver up said last will and testament of the said C D. And hereof 
 make return as the law directs. 
 
 Witness, , clerk of our said court, and the seal thereof, at 
 
 , aforesaid, this day of , A. D. 18 . 
 
 [L. s.] , Clerk. 
 
 (6.) JUKISDICTION. It is essential that it should appear in the 
 petition, that the court to which application is made is the proper 
 one,* in order to give the court jurisdiction. 
 
 (7). THE WITHHOLDING THE WILL subjects the custodian to a pen- 
 alty of $20 per month, in an action of debt. 
 
 (8.) THE DESTRUCTION OF A WILL, or its secretion for the space of 
 six months, is made tantamount to larceny, (o) 
 
 (9.) COMPULSORY PROCESS. On the production of the will, if the 
 court have jurisdiction, the court may, of its own motion, inaugurate 
 proceedings against the executor or executors named therein to com- 
 pel him or them to either accept or renounce the trust. ( p) 
 
 In case of refusal to accept the trust, the renunciation should be 
 made in writing and recorded. 
 
 (10.) RENUNCIATION BY EXECUTOR. In case an executor named 
 wishes to renounce, he should not, in any way, intermeddle with the 
 estate of the deceased, but, immediately on learning of his appoint- 
 ment, transmit or deliver to the county court of the proper county 
 
 his formal renunciation : 
 
 RENUNCIATION. 
 
 To Hon. , Judge of the County Court of county, in the 
 
 State of Illinois : 
 
 I, A B, do hereby renounce the appointment of executor, conferred 
 on me by the will of , deceased, late of , county of 
 
 (o) 12, Act of 1872. (p) Act March 20, 1872, 7, 18. 
 
 * See Venue, p. 14, supra.
 
 CH. II. J TESTATE ESTATES. 17 
 
 Wills. 
 
 , State of , and refuse to take any part in its probate, 
 
 and pray that you will duly file and enter of record this, my renun- 
 ciation ; and I further state that I have not, in any manner, inter- 
 meddled with the estate of said deceased. A B. 
 , 111., this day of , A. D. 18 . 
 
 (11.) ADMINISTRATOR WITH THE WILL ANNEXED. On entering the 
 renunciation of a sole executor, the estate is to be administered 
 according to the will. The court, on proper application or of its 
 own motion, will then proceed to the appointment of an adminis- 
 trator, cum testamento annexo, who becomes to all intents and 
 purposes the actual executor of the will.(g') 
 
 9. CONSTRUCTION OF WILLS.* Courts, in construing a will, are 
 bound to give effect to every clause in a will, if possible, and at the 
 same time, to the intention of the testator.(r) A husband died 
 testate, leaving a widow, but no ' children or lineal descendants, 
 and provided, in his will, that the income of one-half of his personal 
 estate should be paid to his widow during her life, and at her death 
 should be distributed among his collateral kindred, and bequeathed 
 the other half to various persons. The widow renounced the will, 
 and set up claim to the entire personal estate. Held, that in such 
 case the widow was only entitled to one-third of the personal prop- 
 erty remaining after the payment of debts, in addition to the award 
 of specific property.(s) By the widow's renunciation of the will, the 
 property of her husband is not thereby converted into an intestate 
 estate. The will remains, notwithstanding she declines its provis- 
 ions in her favor ; and in such case, the forty-sixth section of the 
 statute of wills, which applies only to intestate estates, has no appli- 
 cation. The phrase, " her share in the personal estate of her hus- 
 band," which occurs in the tenth section of the dower act, must be 
 understood as intending to give to the widow, in such case, only 
 such share of the personal estate as shall be equal to one-third part.(^) 
 A testator, in his will, bequeaths to his wife an annuity, together 
 with the use and occupation of the homestead during her natural 
 
 (q) See chapter iii, infra. (t) Id. But see 78, act April 1, 1872 ; 
 
 (r) Jones v. Doe, 1 Scam. 276. p. 219 infra. 
 
 () McMurphy v. Boyles, 49 111. 110. 
 
 *As this is a work of practice and not elementary, without attempting any arrange- 
 ment, we have, for convenient reference, added to this section most of the cases to be 
 found in the Illinois reports involving the construction of wills. The professional 
 reader would naturally consult these cases themselves, while the layman, of necessity, 
 must rely upon the legal adviser for counsel in such intricate matters, as the cases 
 will show. If, however, the reader desire to pursue this subject systematically and 
 thoroughly, the work of Hon. I. F. REDFIELD, LL. D., on wills, will be a valuable 
 assistant. See Hill's Chan. Pr. 56-70, for an intricate case and an able opinion as to 
 a will. See also ch. x, infra, and Markillie v. Ragland, 77 111. 98. 
 
 8
 
 18 TESTATE ESTATES. CH. II. 
 
 Wills. 
 
 life, or, in lieu of the homestead, bequeaths to her $1,000, to be paid 
 to her by his executors five years after testator's death, or sooner, if 
 she shall prefer to use it in the erection of a dwelling-house, upon a 
 lot given her for that purpose, if she so elects, together with certain 
 other town lots, to further aid and assist in the erection of such 
 dwelling-house. Held, that under such a will the widow could not 
 be barred in her election, between these provisions contained in the 
 will, prior to the expiration of the five years after the testators 
 death, or prior to a tender, by the executors of the will, of the alter- 
 native devise of $l,000.(w) 
 
 Where a testator devised land to his wife " to hold and dispose of 
 the same as she may see proper during her widowhood," the devisee 
 will not take an estate of inheritance which will pass to her heirs, 
 the language of the devise clearly limiting the extent of her inter- 
 est, (v) The construction to be given to the tenth and eleventh 
 sections of our statute of dower, in determining the share of the 
 widow in the personal estate of her deceased husband, where she has 
 renounced his will, is, that she is entitled to one-third of the personal 
 estate after the payment of debts. And the fact that there are 
 children in this case in nowise affects the question.(w) Where a will 
 empowered the executor to sell all of the testator's lands " outside of 
 St. Clair county," for the payment of his debts, this was an express 
 limitation upon the power of the executor, so far as it was derived 
 under the will, to sell the lands of the testator lying outside of that 
 county, (z) Where the power of the executor to sell lands for the 
 payment of debts is limited by the will to lands situate in certain 
 counties, and the proceeds of sales so permitted prove insufficient to 
 pay the debts, the executor may apply to the proper court and pro- 
 cure an order to sell so much of the lands reserved from sale in the 
 will as may be necessary to pay the residue of the debts. In no 
 other way can the executor obtain the authority to sell the lands 
 beyond that given by the will.(y) The rule is, if there be no words 
 in any part of the will to control, the words or terms used must be 
 interpreted according to their strict and technical import. So con- 
 struing them, the persons appointed by law to succeed to an estate, 
 as in case of intestacy, are the persons designated. An estate left in 
 
 (u) Gale v. Gale, 48 HI. 471. (x) Kinney v. Knoebd, 51 111. 113. 
 
 (v) Mulberry v. Mulberry, 50 111. 67. (y) Id. 
 (w) Skinner v. Neicberry, 51 111. 203.
 
 UH. II.] TESTATE ESTATES. 19 
 
 Wills. 
 
 such a condition as to the disposition of it, is, to all intents and 
 purposes, an intestate estate, (z) 
 
 A will containing no specific devises or bequests, but simply ap- 
 pointing the executors to administer the estate, and directing the 
 payment of the debts of the testator, provided as follows : " And the 
 remainder or balance of my interest, of every kind whatsoever, may 
 be distributed to my heirs at law, according to the statute of Illi- 
 nois, for such case made and provided." Held, that such a dirgction 
 is equivalent to a devise or bequest to those who would take 
 the estate under our statute of distributions if the estate were 
 intestate, (z) The owner in fee of a tract of land in this State 
 devised his property as follows : " I leave and bequeath all the prop- 
 erty, movable and immovable, of which I may die possessed, to my 
 said wife ; this legacy is made in usufruct, and during the life-time 
 of my said wife, and at her death the whole of which will revert to 
 the children which I have, or may have, from such marriage." 
 Held, that on the death of the testator, the widow took, under this 
 devise, a life estate in the land, a freehold, and, under our statute, 
 subject to execution. (a) A will provided as follows : "I give and 
 bequeath all of the rents and profits of my farm, that I now own, in 
 the town, county and State aforesaid, to my wife, Deliverance K. 
 Lester, and also all my personal property, consisting of live stock, and 
 also the interest on all moneys and credits due me at my death, so 
 long as she remains my widow, except hereafter devised ; and after 
 her death or marriage, I wish the property and real estate to be 
 equally divided between my children," etc. Held, this was not an 
 absolute gift of the personalty to the widow, but was intended as a 
 bequest to her, to be enjoyed during her life or widowhood, having 
 reference as well to the live stock, moneys and credits, as to the use 
 of the farm. They were not of that perishable character which for- 
 bade a life estate being created in them. It is a general principle, 
 that where an interest, short of absolute ownership, is given in the 
 general residue of personal estate, terms for years, and other perish- 
 able funds of property which may be consumed in the use are to be 
 converted or invested, so as to produce a permanent capital, and the 
 income thereof only is to go to the legatee for life. So in this case, 
 the tenant for life should convert the live stock into money, and 
 
 (z) Rawson v. Rawson, 52 EL 62 ; (a) Newman v. Willetts, 52 111. 99. 
 Hill's Chan. Pr. 62.
 
 TESTATE ESTATES. [CH. II. 
 
 Wills. 
 
 save the principal for those who were to come to its enjoyment on 
 her death or marriage. (b) 
 
 Where a life estate is created in personal property, with a limita- 
 tion over, a court of chancery may require the legatee for life 
 to give security to the remainder-man that the fund shall not be 
 wasted or misapplied. An exception to the rule that there may 
 be a life estate in chattels which are not of a perishable nature, and 
 a limitation over, is in case of a bequest of specific things, as corn, 
 hay and fruit, of which the use consists in the consumption. The 
 gift of such articles for life is, in most cases, of necessity, a gift of 
 the absolute property, for the use and the property cannot exist 
 separately.(S) The mere making of a bequest to a creditor of the 
 testator, of a sum of money equal to or greater than the debt, and 
 which might in the particular case be regarded as a satisfaction of 
 the debt, would not operate to defeat an allowance of the claim 
 against the estate, to be paid in due course of administration, with 
 other debts in the same degree. Such a legacy must be paid before 
 it can be set up as a discharge of the debt. When a creditor to 
 whom his debtor has made a bequest, equal to or greater than his 
 debt, obtains an allowance and payment of his claim, and after- 
 ward demands his legacy from the executor, the latter may then 
 raise the question whether it was intended as a gift, independently 
 of the payment of the debt, or merely as a satisfaction of the 
 debt.(c) M. devised and bequeathed by will all his estate to his 
 daughter R. ; but if she died before she became of age, then to 
 his friend G. S. ; R. died before she became of age, and G-. S. 
 died before R. It was held, that the devise to Gr. S. was a 
 good, executory devise, and that the estate passed to his heirs. (d) 
 A testator, after devising all his estate, real and personal, to his 
 wife, so long as she should remain his widow, proceeded: "Upon 
 the marriage or death of my wife, it is my will and desire that all 
 the property which I leave in her possession, or that may accrue 
 from it, may be equally divided between all my brothers and sisters' 
 children, giving each one an equal share, except J. J. R., my brother 
 Leonard Ross' oldest son, who I do not intend shall have any share 
 of my estate." This was. held a devise of after-acquired real estate, 
 and disherison of J. J. R.(e) If land be devised to a person for 
 
 (6) Burnett v. Lester, 53 111. 325. (d) Ackless v. Seekright, Breeae, 46. 
 
 (c) Malony v. Scarilan, 53 111. 122. (e) Willis v. Watson, 4 Scam. 64.
 
 CH. II.] TESTATE ESTATES. 21 
 
 Wills. 
 
 life, and " at her death* she may dispose of it as she pleases," an 
 estate for life only passes, and the devisee may dispose of the rever- 
 sion or inheritance by deed or by will.(/) "Where real estate is 
 devised, and by the conditions of the will is to be sold, and the 
 money distributed among the devisees, it must be treated as a 
 devise of money, and not of land. Though a devisee may elect 
 to take land instead of the money, yet the character of the devise 
 cannot be changed from money to land without the concurrence of 
 all the devisees. In such case, one devisee cannot convey a valid 
 title to any part of the land, neither can the interest of one of the 
 devisees be sold on execution. A purchaser at a sheriff's sale of 
 the interest of one of the devisees, in such case, is not entitled to 
 receive that portion of the money produced by the sale of the land 
 to which the devisee was entitled under the will, the devisee having 
 no interest in the land which could be levied upon under execution. 
 A femme couverte is competent to elect to take the land instead of 
 the money; but the same forms and solemnities are required for 
 that election as are by law necessary to enable her to convey her 
 fee.(^) Under the statute of wills, the real estate of the deceased 
 is liable for his debts and funeral expenses, as a secondary fund ; 
 and it would not be otherwise under a will, charging all debts and 
 legacies upon the realty, unless the intention to change the legal 
 order of liability was very clear. Where it was directed by will that 
 all debts and funeral expenses were to be paid out of the first 
 moneys that should come into the executor's hands, from any por- 
 tion of the estate, real or personal, and legacies were given in the 
 same will, and the lands were not devised to the executors, but a 
 power given them to sell generally, when they think proper, with- 
 out expressing any object for the sale, or directing any application 
 of the proceeds, and there is no proof that the personalty was not 
 sufficient to pay debts, funeral expenses and legacies, the lands will 
 descend to the heirs subject to be incumbered or sold at the execu- 
 tors' discretion. Such a power of sale is a naked power, and though 
 courts will uphold rights derived from its proper exercise, equity 
 will not compel its exercise.(A) If a testator disposes of property, in 
 which he has a limited interest, e. g., curtesy, it becomes a question 
 . of intention, to be decided from the terms of the instrument, how 
 
 (/) Fairman v. Beal, 14 111. 244. (h) Clinefelter v. Ayers, 16 HI. 329. 
 
 (g) Baker v. Copenbarger, 15 111. 103.
 
 22 TESTATE ESTATES. [CH. II. 
 
 Wills. 
 
 large an interest he meant to devise.(t) A clause in a will, be- 
 queathing " all real and personal estate, except as hereinafter indi- 
 cated," to certain devisees, necessarily includes lands out of the 
 State in which the will was made, which could pass by it ; and a 
 subsequent direction to executors to sell such land "or otherwise 
 as they shall deem proper," does not take the land out of the general 
 clause, but only empowers the executors to change its form.(y) 
 A testator devised real estate to his wife and two others, and to 
 the survivor or survivors, to hold the same until his youngest child 
 should, if a son, become twenty-one, and, if a daughter, eighteen 
 years old, in trust for all his surviving children, their heirs and 
 assigns, as tenants in common. Held, that all the testator's chil- 
 dren living at his death were his devisees, all taking a vested fee 
 simple estate (subject to the trust estate), which, so subject, could 
 be sold by them or on execution. (k) If the devisees would also be 
 heirs at law of the estate devised, they cannot be held to have for- 
 feited the estate, until it be shown that they committed the 
 breach of the condition with full knowledge both of the condi- 
 tions and its consequences. (I) Held, that the following words 
 of devise in a will gave the devisee an estate of inheritance: "I 
 will and bequeath to my oldest daughter, Margaret Jane Eliza- 
 beth Holliday, eighty acres of land where my house and well stand, 
 to her and heirs forever, never to be mortgaged nor sold forever."(w) 
 Where a will directed that the debts of the testator be paid out of 
 the avails of personal property, unless other arrangements could be 
 made ; that a house should be built ; that certain legacies should be 
 paid his children at their majority, and for that purpose his executors 
 might dispose of real estate ; that his wife should have the control 
 of all his property, until the youngest child should become of law- 
 ful age, for the support, education and maintenance of the children, 
 and directed how the property should be divided. It was held, that 
 after the payment of the debts, and the reservation of sufficient 
 estate to satisfy the specific legacies, the residuum should be under 
 the control of the wife, until the event should occur, when, under 
 the will, the remainder was to be distributed, and that the wife 
 received not in fee but as trustee. That the wife had not even a 
 
 (f) WObanks v. WiZbanks, 18 111. 17. (Z) Shackelford v. Hall, 19 111. 212. 
 (j) Hurt v. McCartney, 18 111. 129. (m) Holliday v. Dixon, 27 111. 33. 
 
 (K) Hempstead v. Dickson, 20 111. 193.
 
 CH. II.] TESTATE ESTATES. 23 
 
 Wills. 
 
 life-estate in the remainder, but only the power to control in the 
 interim, before distribution was required within the limit directed 
 by the will. That, should the wife attempt to abuse the trust, a 
 court of equity would restrain her, and compel a proper application 
 of the estate, (m) Under such a will, the wife was not to account 
 to the probate court, until the time fixed by the will for the distri- 
 bution of the estate; also, that the money received on the sale 
 of the land, after payment of the debts, and the specific legacies 
 due, after reserving enough for the other legacies, should be paid 
 to the widow.(w) Where A devised to his wife for life his home- 
 stead to use, as if fully her own, and on her death, part of the 
 same over, and the land not included in the above bequest to 
 his wife to dispose of at her death, and owned only the home- 
 stead, it was held, that a deed in fee by her took effect on her 
 death, and that she could not dispose of her life interest(o) A 
 devise to a wife of all testator's property, except such portion of 
 certain described lands as shall be necessary for the payment of 
 debts, to hold during widowhood, vests a life estate in the widow.(j) 
 A husband devised certain land to his wife, " to have and to hold 
 during her natural life, to occupy and use said land in the same way 
 as it would be lawful for her to do if the title were full and complete 
 in her * * * to dispose of at her death to any person she may 
 think best to live with her and take care of her." Held, that the 
 wife had no power to alien during her life.(<?) A devise was of all 
 the residue of the testator's estate, there was no limitation over. 
 Held, that, under the statute, the devisee took the fee of the realty.(r) 
 Where the owner of land devises the same, there being a growing 
 crop on the land at the time the title of the devisee vests, the crop 
 being owned by the testator and another as tenants in common 
 thereof, the portion of the crop which would have belonged to the 
 testator, had he lived until it matured, would pass with the land 
 itnder the devise, there being no reservation of the crop in the will.(s) 
 A testator devised to M. "so much of lots renumbered 1 and 2 
 in block No. 15, in the southern addition of Miller and others to 
 Bloomington, as is now inclosed by fence, including the house 
 where the widow C now lives." These lots were inclosed by an 
 
 (m) Holliday T. Dixon, 27 111. 33. (?) Christy v. Ogle's Ex'rs, 33 111. 295. 
 
 (n) Estate of Whitman, 22 111. 511. (r) McConnel v. Smith, 23 111. 611. 
 
 (d) Pulliam v. Christy, 19 111. 331. (s) Creel v. Kirkham, 47 111. 344; see, 
 
 (p) Batterton v. Toakum, 17 111. 288. also, Potcett v. Rich, 41 id. 466.
 
 TESTATE ESTATES. [CH. II. 
 
 Wills. 
 
 exterior fence, and there were also two interior fences running north 
 and south, so as to form three distinct inclosures. The house occu- 
 pied by the widow C was on the north-west corner of lot 2, and 
 was inclosed in the separate division formed by a portion of the 
 north and south exterior fences, and all of the outside western fence 
 and the interior fence equally dividing lot 2. The dwelling-house 
 of the testator was on lot 1. Held, that the western half of lot 2 
 alone passed by the devise, (t) A testator devised a portion of his 
 estate to the " children of his brother," giving the brother uncon- 
 trolled management and disposal of the same till the youngest child 
 should become of age. Held, that the brother took, thereby, a 
 particular estate which prevented the devise from .vesting in posses- 
 sion in the children till the youngest child became of age, and, 
 therefore, a child born after the death of the testator was included 
 in the devise.(w) A testator, by one clause in his will, gave his wife 
 $1,200 in money, and his household furniture "to her and her heirs 
 and assigns forever ; " and by the next clause gave her the balance 
 of all his personal property, of every description, etc., " to be at her 
 own disposal and for her own proper use and benefit during her 
 natural life." Held, that, under the last clause, she took only a life 
 interest in the residuary estate.(v) A will contained this clause : 
 " I give and bequeath to my beloved wife, Antonia, all my real and 
 personal estate, wherever situated, in fee simple, absolute forever ; 
 that is to say, that my said wife shall have all of the benefits thereof 
 until the expiration of her life, at which time my son Anton shall 
 be the only heir of real or personal estate that may be left." Held, 
 that the wife took only an estate for life in the real estate, and that 
 there was a remainder in fee to the son.(w) A testator gave to 
 his wife all his estate, to be disposed of in any way that would 
 best support her for life, but if his sons, John and Thomas, 
 should take care of their mother, they were to have certain lands, 
 but if they failed to support her, then she could sell the laud, 
 or any part of it, to support herself; but if the sons complied 
 with these conditions, they were to take immediate possession of 
 the land; there were bequests to other children. Held, that the 
 testator intended to charge his entire estate with the support of his 
 widow; that the question of support was a condition subsequent, 
 
 (t) Mason v. Ely, 38 111. 138. (v) Boyd v. Strahan, 36 111. 356. 
 
 (u) Handberry v. Doolittle, 38 111. 202. (w) Siegwald v. Sie.gwald, 37 111. 430.
 
 CH. II.] TESTATE ESTATES. 25 
 
 Wills. 
 
 the word " comply " being used in the sense of " assent," and when 
 John and Thomas assented, the estate passed to them, burdened 
 with the condition of the support of the mother; and that the 
 widow of John being his heir, and proffering to support the widow, 
 had a right to inherit and possess the estate, and could compel the 
 grantee of the widow to reconvey to her. (a;) Held, that the follow- 
 ing clause of a will intends a distribution per capita, and not per 
 stirpes: "The balance remaining of said fund, I hereby direct 
 shall be equally divided between the children of my late brother P., 
 and my brother-in-law B., of the city of Chicago, a large portion 
 of my property haying been received through his father, and the 
 father of my late wife."(y) A testator directed that part of the 
 proceeds of his estate should be invested, and that one of his 
 devisees should be entitled to it when he " became of the age of 
 twenty-one ; " adding, " should he die before he arrives at the age 
 of twenty-one, or die without heirs," then the estate shall go to 
 another devisee. Held, that the word "or" was to be construed 
 as " and," and that, on the devisee attaining his majority, although 
 without issue, the legacy vested absolutely in him.(z) A testator 
 directed his executor to sell all his real estate, and, after paying 
 his debts, to divide the proceeds equally among his four children, 
 and in case any of them died, " then to be divided among their 
 children; the child or children of each one taking their deceased 
 parent's portion among them." Held, that one of them, having died 
 intestate before the conversion of the estate into money, leaving 
 issue, his portion should be paid over to his administrator, to be 
 held in trust for his children, his widow being entitled to no interest 
 therein, (a) A testator directed, in his will, that his whole estate, 
 except a discretionary reservation by his executrix and executor for 
 the support of his widow and education of his youngest children, be 
 invested and re-invested in United States bonds, and that, " at the 
 end of fifteen years from and after his death, the trust thus created 
 shall cease, and all his estate then be distributed among his wife and 
 children in this manner, viz. : the sum of $10,000 to be paid to his 
 wife, to be held by her as her absolute property ; the remainder to 
 be divided among his children according to the laws of this State, 
 each one of the children to be charged with such sums as have been, 
 
 (x) Jennings v. Jennings, 27 111. 518. (z) Kindig v. Smith, 39 111. 300. 
 (y) Pitney v. Brown, 44 111. 363. (a) People v. Jennings, 44 111. 488. 
 
 4
 
 26 TESTATE ESTATES. [CH. II. 
 
 Wills. 
 
 or may be, charged against them as advancements." Five of the 
 children were adults. Held, that the testator had power so to dis- 
 pose of his estate, and the will was valid.(J) A husband devised to 
 his wife one-third of all his real estate, " to be used and occupied by 
 her, with the rents and profits thereof, for and during the term of 
 her natural life," with a remainder in trust for his children, with a 
 provision that, if they should permit any portion of the real estate 
 to be sold for taxes, and it should not be redeemed, they should for- 
 feit the unredeemed portion. Held, that the wife was not relieved 
 from paying the taxes accruing upon her estate. A testator, by the 
 terms of his will, required the division and payment of his property, 
 not otherwise bequeathed, to his two children when the younger 
 should attain twenty-one years, to be held by them during life, and, 
 in the event of the death of either, before arriving at the age of 
 twenty-one, without lawful heirs, his share to go to the survivor on 
 arriving at majority. And a condition was annexed that they should 
 not have the power to sell or incumber the fund, or subject it to 
 sale on legal process for their debts, and if any effort was made to 
 sell or incumber it, the party so attempting should forfeit his share, 
 and it should pass to the next person in remainder; and, in the 
 event of the death of the legatees, or a forfeiture of the property, if 
 they have lawful issue or descendants of such issue, the property to 
 vest in them, and if neither have issue, then the property to vest in 
 certain collateral relatives designated in the will. Held, that the 
 bequest was not void for perpetuity.(c) 
 
 AN ABSOLUTE PROHIBITION OF MARRIAGE, till twenty-one years 
 of age, in a devise, is reasonable and lawful, and is a good condition 
 subsequent, the violation of which may defeat a vested estate. (d) 
 Words of inheritance are not necessary to pass an estate in fee 
 simple, by will.(e) In this State, a testator may devise after-acquired 
 real estate.(/) If there be in a will two devises of the same prop- 
 erty to different persons, the first creating an estate of inheritance, 
 the second, without words of perpetuity, will not destroy the first, 
 and will create a life estate only, with reversion in the heirs of the 
 first devisee, (e) 
 
 "We have added the cases to be found in the Illinois reports on 
 
 (b) Rhoads v. Ehoads, 43 111. 239. (e) Jones v. Doe, 1 Scam. 276. 
 
 (e) Waldo v. Cummings, 45 111. 421. (f)WUlis v. Watson, 4 Scain. 64. 
 (<f) Shackleford v. Hall, 19 111. 212.
 
 CH. II.] TESTATE ESTATES. 27 
 
 Probate of wills. 
 
 this subject as collated under the subject of trusts in our work for 
 another jurisdiction. By consulting the text-books of Jarimin, 
 Wigram, Kedfield and Willard, the reader, if he desire to pursue 
 this subject further, will find ample room for investigation and 
 research. We now pass to the probate of wills, through which they 
 are put into execution. / 
 
 SECTION II. PKOBATE OF WILLS. 
 
 1. Definition. 3. Dedimus potestatem . 
 
 2. The probate record. 4. Instructions. 
 
 3. Duties of executoff 5. Proof of wills. 
 
 1. Before probate. 1. The decisions. 
 
 2. Before entering upon duty. 2. The Statute. 
 
 4. Practice. 9. Clerk's entries and forms of certifi- 
 
 5. Petition for letters. cate of proof. 
 
 6. Oath of executor. 10. The letters testamentary. 
 
 7. His bond. 11. Nuncupative will. 
 
 8. The hearing. 1. Citation to persons interested. 
 
 1. Subpoana to witnesses. 2. Notice to non-residents. 
 
 2. Attachment to compel attend- 12. Foreign will. 
 
 ance. 13. Lost will. 
 
 1. THE PKOBATE OF A WILL is the proof, made before an officer 
 or court, designated by law for such purpose, that the instrument 
 is the act of the person purporting to have executed it. The pro- 
 bate of a will is an absolute necessity of the law; the testator can- 
 not evade it.(j) 
 
 All proceedings before the county court, the same being a court 
 of record, produce, as at common law or in chancery, a record. 
 
 2. THE PEOBATE KECOED is as essential as the chancery or the 
 common-law record is, respectively, to such jurisdictions. And, 
 because these courts are of special jurisdiction, even greater care is 
 due to their preparation. It must never be forgotten that the 
 record must affirmatively show the jurisdictional facts that collateral 
 impeachment may be avoided. 
 
 A party seeking the probate of a will must file, in the office of 
 the county or probate clerk of the proper county, a verified petition, 
 and produce the will, if it be not lost or destroyed; upon this peti- 
 tion and the will the court immediately will act. 
 
 3. PEELIMINAEY DUTIES OF EXECUTOE. 
 
 (1.) BEFOEE PEOBATE. The executor must see that the will is 
 proved and recorded, within thirty days from the testator's death, 
 
 (f) Harris v. Douglas, 64 111. 466.
 
 28 TESTATE ESTATES. [CH. II. 
 
 Probate of wills. 
 
 in the proper county, or he may present the will and declare his 
 refusal to accept the execute rship; either of these under penalty of 
 a fine of twenty dollars per month after the expiration of the thirty 
 days allowed him, which fine may be recovered by any person in any 
 court of competent jurisdiction. Any person of the age of seven- 
 teen years, of sound mind and memory, may be an executor; but 
 the court controls the estate, in all cases, where the executor is 
 under twenty-one years of age, until he reaches his majority, (k) 
 It is a statutory duty of the court, in the event of the appointment 
 of a minor, one of unsound mind or one who is convicted of crime, 
 unless there be another executor, who accepts the trust, to grant, to 
 some competent person, administration with the will annexed, that 
 he may act until the minor becomes of full age or the disability of 
 the others be removed. 
 
 The power of the executor over the estate of the deceased, before 
 probate of the will and obtaining letters testamentary, extends to 
 the burial of the deceased, the payment of necessary funeral charges, 
 and the taking care of the estate. (I) 
 
 (2.) BEFORE ENTERING UPON HIS DUTIES, he must apply to the 
 court for letters testamentary, take the oath, and give a bond, with 
 
 food and sufficient security, in a sum double the value of the estate.(m) 
 ureties may be waived, when the testator leaves visible estate 
 more than sufficient to pay all his debts and shall so direct by his 
 will, unless the court sitting in probate shall see cause, from its own 
 knowledge or the suggestion of creditors or legatees, to suspect 
 the executor of fraud, or that the personal estate will not be suffi- 
 cient to satisfy all the debts. 
 
 4. PRACTICE; HOW TO BE APPOINTED EXECUTOR. Take the will 
 to the county court of the proper county; obtain from the clerk a 
 petition and a bond in blank; fill them out with care; write on the 
 back of the petition the names of two persons to serve as appraisers ; 
 file them with the clerk; pay his costs and fees; have two of the 
 subscribing witnesses to the will sworn, examined by the court and 
 their testimony reduced to writing and filed in court. Present the 
 bond signed and in a penalty of double the value of the estate to be 
 administered; get the bond approved, file it and take the oath of 
 office. These steps taken, the clerk will make the record, and issue 
 letters testamentary. The record is made up of the petition, the 
 bond, the oath, the orders, including the will and the testimony 
 reduced to writing. 
 
 (k) %% 2, 3, R. S. 1874, p. 104. (m) $% 6, 7, R. S. 1874, p. 105; Coth- 
 
 (0 4, id. ran's Statutes, 1880. p. 49.
 
 CH. II.] TESTATE ESTATES. 29 
 
 Probate of wills. 
 
 The following form is used in the probate court of Cook county 
 for the 
 
 5. PETITION FOR LETTERS TESTAMENTARY. 
 STATE OP 
 
 . In the county coupt of county 
 
 Of the Term, A. D. 18 . 
 
 To the Hon. , judge of said court : 
 
 The petition of respectfully shows that he is a resident of said 
 
 county : that on the day of , A. D. 18 , of 
 
 , in said county, departed this life at , leaving a last 
 
 will and testament, duly signed and attested as your petitioner believes, which 
 
 he now presents to your honor for probate. That said testator in said will 
 
 nominated your petitioner, , executor thereof. That said deceased 
 
 left property and effects as follows : (here state.) 
 
 That the value of the whole estate of said deceased does not exceed 
 dollars. That said deceased left him surviving , his only heirs at law. 
 
 That your petitioner resides at , and willing to accept and under- 
 
 take the trust confided to in said will, wherefore your petitioner prays 
 
 that the said will maybe admitted to probate, and letters testamentary thereon 
 may be issued to after proper hearing and proof, and that all other 
 
 necessary orders may be made. 
 
 STATE OP ILLINOIS, ) 
 County of . f ss 
 
 , being duly sworn, says that the foregoing petition by sub- 
 
 scribed is true. 
 
 Sworn to and subscribed before me, 
 clerk of the county court of county, 
 
 this day of , A. D. 18 . 
 
 , Clerk. 
 
 At the time of proving the will the executor will be required to 
 take and subscribe the oath as follows : 
 
 6. OATH OF EXECUTOR. 
 
 I do solemnly swear (or affirm), that this writing contains the true last 
 will and testament of the within-named A B, deceased, so far as I know or 
 believe ; and that I will well and truly execute the same, by paying first the 
 debts, and then the legacies mentioned therein, as far as his goods and chattels 
 will thereunto extend, and the law charge me ; and that I will make a true 
 and perfect inventory of all such goods and chattels, rights and credits, as 
 may come to my hands or knowledge, belonging to the estate of said deceased, 
 and render a fair and just account of my executorship, when thereunto required 
 by law, to the best of my knowledge and ability. So help me God.(wz-) 
 
 (Signed.) A B. 
 
 This oath must be attached to and form a part of the probate. 
 
 (TO) 6, R. S. 1874, p. 105.
 
 30 TESTATE ESTATES. [CH. II. 
 
 Probate of wills. 
 
 The bond is prescribed : 
 
 7. EXECUTOE'S BOND. 
 
 Know all men by these presents, that we, , of the county of 
 
 , and State of Illinois, are held and firmly bound unto The People 
 of the State of Illinois in the penal sum of dollars, current money of 
 
 the United States, which payment well and truly to be made and performed, 
 we, and each of us, bind ourselves, our heirs, executors and administrators, 
 jointly, severally and firmly by these presents. 
 
 Witness our hands and seals, this day of , A. D. 18 .* 
 
 The condition of the above obligation is such, that if the above bounden 
 , execut of the last will and testament of , deceased, 
 
 do make or cause to be made a true and perfect inventory of all and singular 
 the goods and chattels, rights and credits, lands, tenements and hereditaments, 
 and the rents and profits issuing out of the same, of the said deceased, which 
 have or shall come to the hands, possession or knowledge of the said , 
 
 or into the possession of any other person for , and the same so made 
 
 do exhibit in the county court for the said county of , as required by 
 
 law ; and also make and render a fair and just account of actings and 
 
 doings, as such execut , to said court, when thereunto lawfully required ; 
 
 and do well and truly fulfill the duties enjoined on in and by the said 
 
 will ; and shall, moreover, pay and deliver to the persons entitled thereto all 
 the legacies and bequests contained in said will, so far as the estate of the 
 said testator will thereunto extend, according to the value thereof, and as the 
 law shall charge , and shall, in general, do all other acts which may, 
 
 from time to time, be required of by law, then this obligation to be void, 
 
 otherwise to remain in full force and virtue. 
 
 [L. B.1 
 L. 8.1 
 [L. 8.] 
 
 The bond must be approved, i. e., the securities appear in person 
 before the court, are examined by the court touching their responsi- 
 bility, and, if approved, the approval is indorsed on the bond ; it is 
 then filed and recorded, (n) 
 
 8. THE HEAEING OE EXAMINATION. Excepting in the case of a 
 nuncupative will, it is not customary to give public notice of the 
 hearing or examination. The practice prescribed for contesting the 
 probate, is the bill in chancery, or an appeal.(o) The statute 
 provides, first, that " when any will, testament or codicil shall be 
 exhibited in the county court for probate thereof, as aforesaid, it 
 
 (n) 7, R . S . 1874, p . 105 . hence the propriety, if not the neces- 
 
 (o) R. S. 1874, p. 1102. Parties sity, of notice. Duncan v. Duncan, 23 
 
 in interest may contest in probate, as 111. 364. 
 
 well as in chancery, or on appeal,
 
 CH. II.] TESTATE ESTATES. 31 
 
 Probate of wills. 
 
 shall be the duty of the court to receive probate of the same without 
 delay, and to grant letters testamentary thereon to thB person or 
 persons entitled, and to do all other needful acts to enable the par- 
 ties concerned to make settlement of the estate at as early a day as 
 shall be consistent with the rights of the respective persons inter- 
 ested therein." 
 
 NOTICE. Although the statute prescribes no notice, yet notice 
 should be given by citation (p) to all parties interested in the estate, 
 of the time of the hearing ; and before proceeding to allow or dis- 
 allow the will, there should be ample opportunity for all to be heard. 
 Within three years after the date of the probate, a bill in chancery 
 may be filed to contest the validity of the will. An appeal may also 
 be taken, and a hearing de novo had in the circuit court.( p) Where 
 there is no contest, to satisfy the court and speed the proceedings, 
 waiver of notice may and should be given by indorsing a request 
 upon the application : 
 
 REQUEST AND WAIVER. 
 
 The undersigned, being all parties interested in the within petition, hereby 
 request that said will be probated without further notice. 
 
 Dated at , this day of , A. D. 18 
 
 A B. 
 C D. 
 E F. 
 
 In case the parties are numerous, non-resident or unknown, it 
 might be well to publish a citation, as prescribed under a nuncupa- 
 tive will.(g) 
 
 (1.) SUBSCRIBING WITNESSES. It is the duty of the subscribing 
 witnesses to appear under prescribed penalties, and testify concern- 
 ing the execution and validity of the will. The ordinarv process to 
 bring in these witnesses is the 
 
 SUBPCENA. 
 
 STATE OP ILLINOIS, ) 
 County of . f * 
 
 The People of the State of Illinois, to the sheriff of said county, greeting : 
 
 You are hereby commanded to summon O P, in your county, to appear be- 
 fore the county court of said county, at the court-house in said county, on the 
 day of , then and there to testify the truth of, and concerning the 
 
 execution and validity of, the last will and testament of A B, deceased, to 
 
 (p) See page 47, infra. (q) See page 51, infra.
 
 32 TESTATE ESTATES. [CH. IL. 
 
 Probate of wills. 
 
 which his name appears as a subscribing witness. And have you then and 
 there this writ. 
 
 Witness, , clerk of our said court, and the seal thereof, at ,. 
 
 this day of , A. D. 18 . , Clerk. 
 
 [SEAL.] 
 
 This may be served by any person sui juris, by reading it to the 
 witness. One day's attendance and mileage should be paid to the 
 witness. 
 
 If the witness fails or refuses to attend, on proof of the service by 
 affidavit : 
 
 PROOF OF SERVICE. 
 
 STATE OF ILLINOIS, ) . 
 Cook County. J 
 
 L M, being duly sworn, says that he served the within subpoena upon P 
 therein named, by reading to him the same and paying (or tendering to) him in 
 person, at , in said county, on the day of , A. D. 18 
 
 the sum of $ , for his attendance and mileage. L M. 
 
 Subscribed and sworn to before me, this ) 
 day of ,A. D. 18 . J 
 
 , Clerk. 
 The court would order an 
 
 (2.) ATTACHMENT. 
 
 (Caption.) 
 
 Whereas, the probate of a certain instrument, purporting to be the last will 
 and testament of C D, late of 0., in said county, deceased, is now pending in 
 the county court of county ; and whereas, it has been made to appear 
 
 that P, of O., in said county, has been duly summoned to appear before our 
 said court as a witness in said proceedings, and has been paid (or tendered) his 
 legal fees therefor, and that the said O P has not so appeared, and has thereby 
 committed a contempt of this court ; now, therefore, you are hereby com- 
 manded to take the body of the said O P (if he may be found in your county) 
 and bring him forthwith before our said court, to answer to the charge of con- 
 tempt, and also to give evidence of what he knows in relation to the execution 
 of said will. Hereof fail not, and make due return of this writ and the man- 
 ner in which you have executed the same. 
 
 [L. s.] (Teste.) 
 
 RETURN. 
 
 STATE OF ILLINOIS, j 
 County. | 
 
 I have this day arrested the within named P, and now have him before 
 the said court as within directed. T. M. B., Sheriff. 
 
 By G. S., Deputy.
 
 CH. II.] TESTATE ESTATES. 33 
 
 Probate of wills. 
 
 EXAMINATION" OF THE WITNESSES. On the day appointed or set 
 apart for the hearing, the witnesses being in attendance, the judge 
 or counsel for the person seeking probate of the will propounds the 
 usual interrogatories : What is your name ? Is this your signature ? 
 Where do you live ? Did you sec A B sign his name to this instru- 
 ment ? Did you hear him acknowledge this name to be his signa- 
 ture ? Did he know at that time the contents of this instrument 
 and declare it to be his last will and testament in your presence and 
 in the presence of all the persons who signed this instrument ? 
 Was he then of sound mind and memory ? Did you sign it in his 
 presence ? Did you sign it at his request or by his consent ? 
 About how old was A B when he signed or acknowledged said will? 
 
 It must satisfactorily appear, by the testimony of two or more 
 credible witnesses, declaring on oath or affirmation, in open court 
 (1) that they were present and saw the deceased sign the will or cod- 
 icil in their presence, or acknowledged the same to be his free act 
 and deed ; (2) that they believed the testator to be at that time of 
 sound mind and memory. The witnesses are not required to be in 
 the presence of each other when they sign their names ;(s) so, also, 
 if the witnesses to a will are, while signing their names to it, where 
 the testator can see them if he choose, they are practically in his 
 presence within the meaning of the statute, (t) 
 
 The will itself must be in writing, and signed either by the testa- 
 tor or by some person in the testator's presence, by the testator's 
 direction. It must be attested by two or more credible witnesses ; 
 i. e., two or more must subscribe it as witnesses. 
 
 These attesting witnesses are, if living, to be called to prove the 
 will, if they reside in the county where the will is to be proved ; if 
 they reside out of the county or State where the proceedings are 
 pending, then the court will, on the suggestion of such fact, issue 
 under its seal a 
 
 (3.) DEDIMUS. 
 STATE OP ILLINOIS, ) 
 
 County of . ) 
 
 The People of the State of Illinois, to 
 
 Whereas, it appears to us that , witness , attesting the will of 
 
 , deceased, the probate of which will is now depending in our county 
 
 court of county, in and for the county of , aforesaid, a*-d that the 
 
 said witness reside at , aforesaid, without the said State of Illinois. 
 
 and that person attendance cannot be procured at the probate of said 
 
 (*) Flinn v. Owen, 58 111. 111. () Ambre v. Weiskaar, 74 111. 109.
 
 34 TESTATE ESTATES. [CH. II. 
 
 Probate of wills. 
 
 will : Now, know ye, that we, in confidence of your prudence and fidelity, 
 have appointed you commissioner to examine the said witness , and do there- 
 fore authorize and require you to cause the said witness to come before you, 
 at such time and place as you may therefor designate and appoint, and dili- 
 gently to examine the said witness , on the oath or affirmation of the said 
 witness by you first duly in that behalf administered, and faithfully to take 
 and certify in due form of law the attestation of the said witness to said will, 
 which is herewith inclosed ; and the same, when thus taken, together with 
 this commission and the said will, to certify into our said county court of 
 
 county with the least possible delay. 
 
 Witness, , clerk of our said court, and seal'thereof at , in said 
 
 county, this day of , A. D. 18 
 
 , Clerk. 
 
 [SEAL.] 
 
 From the probate court of Cook county every dedimus is accom- 
 panied with specific instructions, as follows : 
 
 (4.) INSTRUCTIONS. 
 AS TO THE MODE OP TAKING, CERTIFYING AND RETURNING DEPOSITIONS 
 
 ACCORDING TO THE STATUTE LAWS OF ILLINOIS. 
 
 [1. Caption to the deposition.] 
 
 The attestation of , of the county of and State (or " Territory ") 
 
 of , a witness of lawful age, produced, sworn and examined, upon his 
 
 corporal oath, on the day of , in the year of our Lord one thousand 
 
 eight hundred and , at the office (or " house ") of , in the town (or 
 
 " city ") of , in the county of , and State (or " Territory ") aforesaid, 
 
 by me, , a commissioner (or " by us," if more than one commissioner, 
 
 inserting all the names of the commissioners) duly appointed by a dedim /. 
 potestatum or commission issued out of the clerk's office of the county court 
 of county, in the State of Illinois, bearing teste in the name of , 
 
 Esq., clerk of the said county court, with the seal of the said court affixed 
 thereto, and to me (or " us," if more than one) directed as such commissioner 
 (or " commissioners ") for the examination of the said , a witness to the 
 
 will of , deceased, the probate of which will is now pending and undeter- 
 
 mined in the said county court. 
 
 The said , being first duly sworn by me (or " by , one of the said 
 
 commissioners, if more than one) as a witness in the matter of the probate of 
 said will, previous to the commencement of his examination, to testify the 
 truth in relation to said will, so far as he knew, testified and deposed as 
 follows : 
 
 (Here insert the testimony of witness.) 
 
 After the deposition is taken, the testimony should be read over 
 to the witness, and if he assents to the truth of the testirnmy as
 
 <JH. II. J TESTATE ESTATES. 35 
 
 Probate of wills. 
 
 written down, the witness will then sign his name at the bottom of 
 the deposition, and swear to the truth of it before the commissioner 
 (or " before one of the commissioners," if more than one). This 
 oath is in addition to the preliminary oath which is administered 
 previous to the commencement of his examination. 
 
 The commissioner should then certify as to the time, place and 
 manner of taking the attestation, as follows : 
 
 I, , of the county of , and State (or Territory) of , a commis- 
 
 sioner duly appointed to take the attestation of the said , a witness, 
 
 whose name is subscribed to the foregoing attestation, do hereby certify that, 
 previous to the commencement of the examination of the said as a 
 
 witness in the matter of the. probate of the annexed will of , deceased, 
 
 he was duly sworn by me as such commissioner (or " by , one of said 
 
 commissioners," if more than one), to testify the truth in relation to the matter 
 of said will, so far as he knew concerning the same ; that the 1 said attestation 
 was taken at my office (or " at the house of "), in the city (or " town ") of 
 
 , in the county of , and State (or " Territory ") of , on the 
 
 day of , A. D. 18 ; and that after said attestation was taken by me (or 
 
 " us ") as aforesaid, the testimony of said witness, as written down, was read 
 over to the said witness ; and that thereupon the same was signed and sworn 
 to by the said witness , before me (or " us "), the oath being administered 
 
 by ; one of the said commissioners (where there are more than one), as 
 
 such commissioner, at the place and on the day and year last aforesaid. 
 
 (Signed) , Commissioner. 
 
 The foregoing certificate of the commission should be at the foot 
 or bottom of the attestation, immediately following the signature of 
 the witness. 
 
 The commissioner should then fold up the attestation as thus taken 
 and certified, together with the commission, and inclose the whole 
 in a suitable wrapper or envelope, and then seal up the same securely 
 with three seals, writing his name transversely across the middle seal ; 
 or, if two commissioners, they will each write their names, one on 
 each of the outside seals ; or, if three commissioners, then each one 
 will write his name across one of the seals in manner aforesaid. The 
 commissioner (or commissioners) will also indorse the proper title of 
 the proceeding transversely across one end of the package thus 
 sealed up, according to the proper title of the proceeding, thus: 
 "In matter of the probate of the will of , deceased," and 
 
 direct the same to the proper address of the clerk, who may have 
 issued the commission, and transmit the same by mail to the
 
 36 TESTATE ESTATES. [CH. II. 
 
 Probate of wills. 
 
 proper post-office. No person, or the attorneys or agents of any 
 person, at all interested in the event of the proceeding, are permitted 
 by law to dictate, write or draw up any part of the attestation required 
 to be taken as aforesaid. This commission issues in pursuance of 
 section 4 of the act of March 20, 1872, of the general assembly of 
 the State of Illinois, the directions and provisions of which are to be 
 followed in the execution of said commission, and is in the words and 
 figures following : 
 
 " When any will, testament or codicil shall be produced to the 
 county court for probate of the same, and any witness attesting such 
 will, testament or codicil shall reside without the limits of this State 
 or the county in which such will, testament or codicil is produced 
 for probate, or shall be unable to attend said court, it shall be lawful 
 for the county court to issue a dedimus potestatum or commission, 
 annexed to such will, testament or codicil, directed to some judge, 
 justice of the peace, mayor or other chief magistrate of the city, town, 
 corporation or county where such witness may be found, authorizing 
 the taking and certifying of his or her attestation in due form of law. 
 And if the person to whom any such commission shall be directed 
 shall certify, in the manner that such acts are usually authenticated, 
 that the witness personally appeared before him, and made oath or 
 affirmation that the testator or testatrix signed and published the 
 writing annexed to such commission, or acknowledge the execution 
 thereof, as his or her last will and testament, or that some other person 
 signed the testator's name by his or her direction ; that he or she 
 was of sound mind and memory, and that said witness subscribed his 
 or her name as a witness thereto, in the presence of the testator or 
 testatrix, and at his or her request, such oath or affirmation shall 
 have the same operation, and the will shall be admitted to probate in 
 like manner as if such oath or affirmation had been made in the court 
 from whence such commission issued." 
 
 N. B. It is important to the validity of the attestation that these 
 requirements and instructions should be strictly attended to. One 
 caption will answer for the attestations of several witnesses, where 
 they are all taken at the same time and place, to be read as evidence 
 in the same suit, by so modifying the form here given as to make it 
 applicable to the number of witnesses to be examined ; as, for instance, 
 at the commencement, say : " The attestations of A B, C D and 
 E F, of the county of and State of , witnesses of law-
 
 OH. II. J TESTATE ESTATES. 37 
 
 Probate of wills. 
 
 ful age, produced, sworn and examined on their respective corporal 
 oaths," etc., and then in the latter part of the caption say : " The 
 said A B, C D, and E F, being first duly sworn by me as witnesses 
 in the said matter/' etc. Then at the commencement of each attes- 
 tation say : " The said A B, a witness produced and sworn as aforesaid, 
 in the matter of the probate of the will of , deceased." 
 
 The attestation should then be read over to the witness, and signed 
 and sworn to by him before the next witness is examined. Then 
 proceed with the second and third witnesses in like manner to the 
 end. 
 
 One certificate as to the time, place and manner of taking such 
 attestation, and that each one was signed and sworn to by such wit- 
 nesses respectively, will be sufficient, provided due care be taken to 
 insert the names of ALL the witnesses, and the certificate in other 
 respects be in conformity with the form given in the first instance. 
 
 Great care should always be taken to attach such attestation 
 firmly together by means of tape or ribbon, and using wax or wafers 
 when necessary. 
 
 To WHOM THE DEDIMUS MAY ISSUE. This dedimus may issue to 
 some judge, justice of the peace, mayor or other chief magistrate of 
 the city, town or corporation or county where such witnesses may be 
 found. 
 
 How OBTAINED. File an affidavit in form substantially as fol- 
 fows: 
 
 N I8 :l S8; Bounty court of county. In probate. 
 
 In the matter of the probate of 1 
 the last will and testament of > 
 A B, deceased. ) 
 
 STATE OF ILLINOIS, ) 
 County of . f 8i 
 
 L M, being duly sworn, says that P, one of the subscribing witnesses to 
 the said will, now resides at the city of New York, in the State of New York. 
 (Jurat.) L M. 
 
 Under the statute of 1872, the dedimus is to be annexed to the 
 will, testament or codicil, directed as above to a judge or magistrate, 
 authorizing the taking and certifying of the attestation in due form 
 of law, 
 
 (<) 4, 7, R. S. 1874, p. 1102.
 
 38 TESTATE ESTATES. [CH. II. 
 
 Probate of wills. 
 
 Mr. Jones gives a short form for the dedimus(w), with the pre- 
 scribed certificates, as follows : 
 (Venue.) DEDIMTJS. 
 
 The People of the State of Illinois : To J. L., a Justice of the Peace in and for 
 county, State of , greeting : 
 
 Whereas, the annexed last will and testament has been produced to the 
 county court of said county for probate thereof ; and it is suggested that P, 
 one of the subscribing witnesses to the same, is to be found in county 
 
 and State of ; you are, therefore, hereby authorized to take and certify 
 
 the attestation of the said P, if to be found in your county, to the said last 
 will and testament in due form of law, and to make return thereof to this 
 court. 
 
 [L. s.] (Teste.) 
 
 The proof required by the foregoing dedimus must be in one of 
 the following forms, both of which should accompany the dedimus, 
 as an instruction to the commissioner. 
 
 The certificate may be as follows : 
 
 No. l. 
 
 STATE OP , ) 
 
 County of . f .* 
 
 In pursuance of the authority in me vested, by the annexed dedimus, I, this 
 day, caused personally to come before me, a justice of the peace of said 
 county, at , in said county, the said P, who, being duly sworn, on his 
 
 oath, did say, that the said A B signed and published the writing annexed to 
 said dedimus as his last will and testament ; that the said testator, at the time 
 of signing and publishing the same, was of sound mind and memory, and that 
 the said P subscribed his name as a witness thereto, in the presence of the 
 said testator, and at his request. J L. 
 
 Given under my hand and seal, this ) 
 day of ,18 . ) 
 
 AB. 
 
 Or as follows : 
 
 No. 2. 
 
 STATE OF , ) 
 
 County of ,f 
 
 In pursuance of the authority in me vested, by the annexed dedimus, I, this 
 day, caused personally to come before me, a justice of the peace of said 
 county, the said P, who, after being duly sworn, on his oath, did say that he 
 was present at the time when the writing annexed to said dedimus was 
 signed and published as the last will and testament of the said A B ; that Mr. 
 signed the name of the said A B thereto by the direction of the said A 
 B, and in the presence of the said O P ; that the said A B, at the time the same 
 
 () Jones' Forms, pp. 343, 344.
 
 OH. II. | TESTATE ESTATES. 39 
 
 Probate of wills. 
 
 was signed and published, was of sound mind and memory, and that the said 
 O P subscribed his name as a witness thereto, in the presence of the said tes- 
 tator, and at his request. J L. 
 (Jurat.) 
 
 Where subscribing witnesses' depositions are wanted, the short 
 forms of Mr. Jones are to the point and applicable. But in case 
 such subscribing witnesses, or any of them, die or remove to parts 
 unknown to the parties concerned, then it becomes necessary to use 
 the general form(^) which has obtained under the general tatute 
 of evidence. (w) 
 
 5. PKACTICE. Before admitting the will to probate, it should 
 affirmatively appear from the testimony and the record and files of 
 the court, as follows : 
 
 (1.) That the court is the proper court to receive the will. 
 
 (2.) That the testator is dead. 
 
 (3.) That the application or petition is in form, good in substance, 
 and properly verified. 
 
 (4.) That due notice of the hearing has been given, if notice has 
 been ordered and citations issued ; and proper proofs of service and 
 publication must be filed. The returns to the dedimus, if any, must 
 be in form, etc. 
 
 (5.) Then it must be proved beyond a doubt that the instrument 
 presented and under consideration is the last will and testament of 
 the decedent, according to the Statute of Wills. 
 
 The first two points are essential to jurisdiction, for if the court 
 be not the court of the proper county, or if the testator be not yet 
 dead, the court has no jurisdiction. (a;) The third and fourth points 
 relate to the practice, which we have endeavored to carefully detail 
 and display. If the petition be defective, it may, then, be amended 
 and cured ; if sufficient notice has not been given, the hearing should 
 be continued until proper notice has been given. If the depositions 
 are objectionable or insufficient, they may be retaken. In matters 
 of practice of this nature the court has, by the statute, a large dis- 
 cretion^?/) " To do all other needful acts " covers the broadest dis- 
 cretionary power. The constitution conferring, as we have seen, (2) 
 original jurisdiction, and the statute power to do all other needful 
 
 (0) See pp. 33-37, supra. (x) See VENTTK, page 14, supra, 
 
 (w') 2 Hill's C. L., Evidence, p. 294 ; (y) 7, R. S. 1874, p. 1102. 
 ^ 6, R. S. 1874, p. 1102. (z) See page 7, supra.
 
 TESTATE ESTATES. [CH. II. 
 
 Probate of wills. 
 
 acts, the scope of the jurisdiction is as broad as it could well be 
 made. Hence, we have added the resume of the decisions of the 
 supreme court, that from the highest stand-point known to our law, 
 the subject before us may be carefully studied, and the probate busi- 
 ness be continually held up to its proper place and dignity alongside 
 of the venerated systems of chancery and common law. The fifth 
 point is the all-important consideration. The issue is, whether or 
 not the instrument submitted be the last will and testament of the 
 decedent? If yea, the will should be received and probated. If 
 nay, it should be promptly rejected. 
 
 To test the instrument, the requisites of a will, generally, have 
 already been considered. (a) Now comes their application. The 
 following questions must all be answered by the testimony in the 
 affirmative, to prove the will : 
 
 (1.) Was the testator, at the time of making the alleged will, a 
 person of lawful age ? 
 
 , (2.) Was the testator, at the time of making the alleged will, "a 
 person of sound mind and memory ? " 
 
 (3.) Is the will " reduced to writing ? " 
 
 (4.) Was it signed either " by the testator or by some person in his 
 or her presence, and by his or her direction ? " 
 
 (5.) Was it attested in the presence of the testator by two or more 
 credible witnesses. 
 
 (6.) Had the testator, at the time of his decease, a mansion-house 
 or known place of residence in this county ? If nay, does he devise 
 lauds ? If yea, are they or any of them in this county ? If nay, 
 did he die in this county? If nay, is the estate, or a greater part 
 thereof, in this county ? 
 
 To solve these questions takes us through the whole range of 
 the probate of the will on the merits, brings us back to the point 
 of departure the jurisdiction, and requires a careful study of the 
 statute in the light of the decisions. We will now examine the 
 adjudicated cases. 
 
 (1.) PROOF OF WILLS. On an appeal from an order of the 
 court sitting in probate, admitting a will to record, a party 
 seeking to establish a will must prove the testator was of 
 disposing mind and memory at the time he made it, and 
 this cannot be shown merely by proof that he was so at 
 some anterior period. And in such case, the defendants having 
 
 (a) See page 17, supra.
 
 CH. II. J TESTATE ESTATES. 41 
 
 Probate of wills. 
 
 put in evidence the testimony of the subscribing witnesses to the 
 will, given when it was admitted to probate, it then devolved upon 
 the plaintiff to show the incompetency of the testator, by proof suf- 
 ficient to overcome the prima facie case made through the testimony 
 of the subscribing witnesses. It is no objection that the attesting 
 witnesses to a will were not present when it was signed by the testa- 
 tor ; provided he acknowledged it as his will and requested them to 
 sign as witnesses.(c) In this State a subscribing witness need not 
 know that he has been attesting the execution of a will, the statute 
 not requiring any declaration or publication. (d) A testator, after 
 signing his will, called the subscribing witnesses into the room, and 
 after causing the attestation clause to be read to them, handed them 
 a pen with which they signed in his presence. Held, that the 
 acknowledgment was sufficient, and the execution valid. Where 
 one of the subscribing witnesses to a will testified that he does not 
 know whether the testator was of sound mind or not, the proof of 
 the will is defective.(e) In this State evidence is admissible in pro- 
 bate of a will, by one of the subscribing witnesses that the testator 
 either signed the will in his presence or acknowledged his signature 
 to him, he could not remember which.(/) 
 
 By the ordinance of 1817, but two of the subscribing witnesses 
 to a will are required to prove it, and a will attested by three, one 
 to whom is a devisee in the will, is valid.(^) As with deeds, so 
 with wills, the parties making them cannot invalidate them by 
 their own parol declarations made previously or subsequently, and 
 evidence thereof is not admissible upon the issue of validity.(7i) A 
 will written on the same sheet as a codicil, or unmistakably referred 
 to in it, is proved by proof of the codicil, so far as the latter does not 
 revoke it. Under our statute, parties in interest may contest a will 
 in the probate court as well as in chancery, and, therefore, should be 
 allowed to cross-examine the attesting witnesses in the probate 
 court.(i) After detailing the facts on which an opinion is based, a 
 witness, not an expert, may express that opinion to the jury, as to 
 the soundness of mind of a testator.(/ ) 
 
 (c) Holloway v. Galloway, 51 111. 159. (h) Dickie v. Carter, 42 111. 376 ; 
 
 (d) Dickie v. Carter, 43 111. 376. Rutherford v. Morris, 77 111. 397. 
 
 (e) Allison v. Allison, 46 111. 61. (i) Duncan v. Duncan, 23 111. 364 ; 
 (/) Broicnfield v. Brownfield, 43 111. Wdfv. Bollinger, 63 111. 368. 
 
 147; Fiinn v. Owen, 58 111. 111. (j) Roe v. Taylor, 45 111. 485. 
 
 (g) Ackless v. Seekright, Breese, 46.
 
 42 TESTATE ESTATES. [CH. II. 
 
 Probate of wills. 
 
 The acquisition of lauds confers no fixed and permanent right 
 for au individual to devise them, according to the law, at the 
 time of the acquisition. (/) The statute of wills (Rev. Stats., 1845, 
 p. 536, 1) and conveyances (id., p. 102, 1), enables a testator to 
 convey by will after acquired lands without republication. The 
 only question is of intention, (in) Where the certificate to the pro- 
 bate of a will in a foreign State shows that it was executed and 
 proved according to the laws of that State, and such certificate is 
 in the mode required by our statute, it is admissible in evidence. 
 And it is no objection that the will was proved by only one of the 
 subscribing witnesses, when, by the laws of the State where such 
 will was made, but one witness was necessary to prove its execu- 
 tion.^) A will not properly authenticated is not admissible as 
 evidence for any purpose, (o) Where the certificate of the probate 
 of a will, made in another State, shows that the will was duly 
 executed and proved agreeably to the laws and usages of such State, 
 and such certificate is conformable to the statute of this State 
 (Rev. Stats., ch. 109, 8), the will is sufficiently proved. A will 
 executed and proved in another State need not be filed in the pro- 
 bate court of this State, (p) The act of taking proof of the execu- 
 tion of a will is a ministerial, and not a judicial act, and is not con- 
 clusive of the validity of the will ; and a will cannot be read in 
 evidence, in a suit of ejectment, which was admitted to probate 
 upon insufficient proof, (q) 
 
 Where a testator bequeaths a debt due him to a legatee, the lega- 
 tee cannot resort to a court of equity for its recovery.(r) Where a 
 will directs that the testator's real estate may be disposed of by his 
 executor, but omits to appoint any executor, an administrator with 
 the will annexed has no authority to sell such real estate under the 
 will.(s) Under the statute, on appeal from the decision of the 
 probate court, in relation to the probate of a will, it is proper for the 
 circuit court to direct the trial to be had before a jury, and on such 
 trial it is not competent for either party to introduce any testimony 
 in relation to the sanity of the testator, except that of the subscrib- 
 ing witnesses, who may be sworn and testify before a jury ; and 
 
 (Z) Sturgis v. Swing, 18 111. 176. (p) tihepTiard v. Carriel, 19 111. 313 ; 
 
 (m) Peters v. Spittman, 18 111. 370. and see 2 Hill's C. L. 403. 
 
 (ri) Gardner v. Ladue, 47 111.211; (q) Furguson v. Hunter, 2 Gilm. 657. 
 
 see 2 Hill's C. L. 403. (r) Doyle v. Murphy, 22 111. 502. 
 
 (o) Farrell v. Patterson, 43 111. 52. (s) Hall v. Irwin, 2 Gilm. 176.
 
 CH, II.] TESTATE ESTATES. 43 
 
 Probate of wills. 
 
 unless two of said witnesses concur in the belief that the testator 
 was of sound mind at the time of executing the will, it cannot be 
 admitted to probate. The belief of the witnesses may be formed not 
 only upon what transpired at the time of executing the will, but 
 also upon events which happened before ; and the jury need not 
 inquire into the foundation of the witnesses' belief, nor the circum- 
 stances under which, nor the time when, such belief was formed. 
 The trial in the circuit court should be de now ; and as to all the 
 questions, except the sanity of the testator, the parties are not 
 restricted to the testimony of the subscribing witnesses or the evi- 
 dence adduced before the court of probate, (t) The rule, however, 
 is different in the case of an appeal from an order denying the pro- 
 bate of a will. The party seeking its probate is not confined to the 
 two attesting witnesses to establish either the execution of the 
 will, or the sanity of the testator.(w) On the trial of an issue out 
 of chancery, arising under the Kevised Statutes, 1845, ch. 109, 
 section 6, the burden of proof is on the party affirming the 
 execution and validity of the will, and he has the right to open 
 and conclude the argument of the cause. Under such an issue, the 
 party holding the affirmative is bound to prove that the contested 
 paper is the last will and testament of the testator. (v) 
 
 On trial of an issue of fact under a bill to impeach a will, unless 
 objected to when offered, the original affidavit, required by the sta- 
 tute to be filed in the county court in proof of the execution of the 
 will, may be read to the jury in evidence instead of a certified copy 
 thereof, (w) Notwithstanding the probate, the issue is to be sub- 
 mitted to the jury as a new and original question, to be determined 
 exclusively upon the evidence introduced before them. The trial is 
 de novo, and without regard to the fact that the instrument has been 
 admitted to probate. (v) The certificate of the oaths of the attesting 
 witnesses, at the time of the probate, may be offered in evidence by 
 either party ; but it is to receive such weight only as the jury may 
 think it deserves, in connection with the other proof in the case. 
 On the question of the sanity of the testator, no particular quantum 
 of evidence is necessary in order to sustain the validity of the will, 
 upon the trial of an issue out of chancery, under the statute ; but 
 
 (t) Gale's Stat. H8;Walker v. Walker, (v) Rigg v. Wilton, 13 111. 15. 
 2 Scam. 291 ; 80 111. 469. (w) Potter v. Potter, 41 111. 80. 
 
 (u) Crowley v. Crowley, 80 111. 469.
 
 44 TESTATE ESTATES. [CH. II. 
 
 Probate of wills. 
 
 the jury should determine the facts upon the weight of evidence as 
 in other cases. It is not essential that the subscribing witnesses 
 should be called, or that, when called, they should concur in their 
 testimony ; other witnesses may be examined, even to contradict the 
 subscribing witnesses.(w) The omission to name a child in a last 
 will does not, of itself, prove that the testator was incapacitated, nor 
 will such omission destroy its validity.(z) The fact that a testator 
 had been insane some years prior to the execution of his last will, 
 does not create a presumption that insanity was present at the time 
 of the publication of it ; especially where it is shown that, after a 
 cure, no symptoms of a return of the malady were ever manifested.^) 
 A contestant of a will, on the ground of insanity, fraud or other 
 cause, has the burden of proof, (y) To invalidate a will on the 
 ground of fraud or compulsion, it must be of such a character as to 
 destroy the testator's free agency.(y) Mere honest argument or per- 
 suasion, and such influence as one person may properly obtain over 
 another, are insufficient to affect the validity of the will.(z) On a 
 bill seeking to set aside a will on the ground of undue influence, 
 evidence is inadmissible for the purpose of disproving the charge of 
 a previous will which has been canceled, the testamentary disposition 
 of which is totally variant from those made by the will in question. 
 On a bill seeking to set aside a will on the ground of undue influ- 
 ence, where a witness has expressed a decided opinion as to the 
 mental capacity of the testator, it is proper, on cross-examination, to 
 inquire as to business transactions with the testator, occurring at 
 about the time his opinion of the mental capacity of the testator had 
 reference to, and as to how the testator, at that time, conducted 
 himself. An understanding of the nature of the business about 
 which a testator is engaged, of the kind and value of the property 
 devised, and of the persons who are the natural objects of his bounty, 
 and of the manner in which he wished to dispose of his property, is 
 evidence of the possession of testamentary capacity, unless the tes- 
 tator is affected with some morbid or insane delusion as to some one 
 of those natural objects of his bounty.(z) See NOTE, p. 51. 
 
 (2.) THE ACTS OF 1872. We are now prepared to understandingly 
 recapitulate the statutory requirements. (a.) 
 
 (w) Rigg v. Wilton, 13 III. 15. (z) Eoe v. Taylor, 45 111. 485.. 
 
 (x) Snow v. Benton, 28 111. 306. (a) 1,2, R. S. 1874, p. 1101. 
 
 (y) Dickie v. Carter, 42 111. 376 ; Eoe 
 v. Taylor, 45 id. 485.
 
 CH. II.] TESTATE ESTATES. 45 
 
 Probate of wills. 
 
 OF LAWFUL AGE. A male, 21 ; female, 18. 
 
 OF SOUND MIND AND MEMOBY. This must be shown by the fact 
 that, when they saw the will made, they believed the testator to be of 
 sound mind and memory. If there be any doubt on this point, the 
 questions arising would require considerations involving much of 
 medical jurisprudence, to which we have room only to refer.(S) 
 
 SEDUCED TO WRITING. A will may be written or printed. If 
 written, the writing may be in ink or by pencil. (c) 
 
 SIGNED BY THE TESTATOE or by some person in his or her presence, 
 and by his or her direction. The signature may be by mark, and if 
 so, it will be presumed that the testator could not write his name in 
 fulL(rf) 
 
 If signed by some other person, it must have been in the name 
 and presence of the testator, at the express request of the testator, in 
 the presence of at least two of the subscribing witnesses ; a silent 
 assent of the testator is not sufficient, (e) 
 
 The court must, upon the whole, be satisfied that the testator was 
 fully apprised of its contents ; and knew and intended the instru- 
 ment to be his will.(e) 
 
 ATTESTED IN THE PRESENCE OF THE TESTATOK.(/) Credible wit- 
 nesses^), i. e., competent witnesses before a jury. 
 
 WHEN THE COUNTY JUDGE is A WITNESS; HIS TESTIMONY, HOW 
 
 TAKEN. 
 
 In all cases where a county judge, or such other person as may be 
 authorized by law to grant probate of wills and testaments, may and 
 shall have become a witness to any will or testament which is required 
 by law to be proved before him as such county judge or person 
 authorized to grant probate, as aforesaid, and the testimony of such 
 witness is necessary to the proof of the same, then, and in such case, 
 it shall be his duty to go before the circuit court of the county in 
 which such will is to be admitted to record, and make proof of the 
 execution of the same, in the same manner that probate of wills is 
 required to be made in other cases. And it shall be the duty of the 
 clerk of the circuit court aforesaid, forthwith to certify such will, 
 
 (&) 1 Redf . ch. 3, and cases and works (e) Id., 207 ; 42 111. 376 ; note (n), p. 
 
 tited. 47, infra, 
 
 (e) Id., p. 165. (/) 4 Kent's Com. 514 (6). 
 
 (d) Id., p. 205. 07) Jones v. Larrdbee, 47 Me. 474.
 
 46 TESTATE ESTATES. [CH. II 
 
 Probate of wills. 
 
 proven as aforesaid, to the county court of the county ; and said will 
 shall thereupon have the same force and effect that it would have 
 had if it had been proven by one credible witness before the county 
 court ; and, if there are other witnesses to said will, the county court 
 shall take their evidence in support of said will, as in other cases. (i) 
 
 ATTESTING CKEDITOK. If any lands, tenements or hereditaments 
 shall be charged with any debt or debts, by any will, testament or 
 codicil, and the creditor whose debt is so secured shall attest the 
 execution of the same, such creditor shall, notwithstanding, be 
 admitted as a witness to the execution thereof.(y) 
 
 We now turn to the record. 
 
 Mr. Jones gives forms for certificates of the proof of wills, which 
 seem eminently proper as certificates of evidence in such matters 
 when the will is proved in common form, i. e., not contested in 
 probate. (&) 
 STATE OF J^INOIS, j. gg County CQUrt of wurdy In proba ^ 
 
 In the matter of the last will and | 
 testament of A B, deceased. ) 
 
 At a regular term of said court for probate business, and on the day of 
 
 , A. D. 18 , personally appeared before me, J. S., judge of said court, 
 the above-named O. P. and G. R., two credible witnesses, who, being duly 
 sworn, on their oaths depose and say that * they were present and saw the 
 above-named A B sign the above last will and testament in their presence ; 
 that they believed, and still believe, that the said A B'was of sound mind and 
 memory at the time of signing the same ; and that they attested the signing 
 of said last will and testament, in the presence and by the request of the said 
 A B, and in presence of each other. 
 
 P -i In testimony whereof, I have hereunto set my hand and affixed the 
 seal of said court, this day of , A. D. 18 
 
 J. S., County judge, etc.(l) 
 
 If the will was not signed by the deceased himself, but by some 
 person for him, at his request, and acknowledged by him, then the 
 proof will be as follows : 
 
 (The certificate should 'be as before to the *, then as follows:) 
 they were present at the signing of the above will, and that the said A B 
 directed Mr. to sign the same for him ; and the same being signed in his 
 
 presence, was acknowledged by the said A B to be his own act and deed ; and 
 that they then believed, and still believe, that the said testator, at the time of 
 
 (i) 5, R. S. 1874, p. 1102. by the judge, and not the clerk, the 
 
 O)l20, R. S. 1874, p. 1105. probate being a j udicial act. (Compare 
 
 (A;) Jones' Forms, pp. 341, 343. Ferguson v. Hunter, 2 Gilm. 657, with 
 
 (0 This certificate should be signed 2, R. S. 1874, p. 1101.)
 
 CH. II. J 
 
 TESTATE ESTATES. 
 
 47 
 
 Probate of wills. 
 
 acknowledging the same, was of sound mind and memory ; and that they 
 attested the acknowledging of the said last will and testament, in the presence 
 and by the request of the said A B, and in the presence of each other. 
 
 ' [L. S.] 
 
 (Teste, as above.) 
 
 The certificate (or certificates if there be more than one) should 
 be attached to the will and recorded as a part of it.(m) These cer- 
 tificates are like the certificates of evidence used here in chancery, (n) 
 Whenever the subscribing witnesses appear in court, they may be 
 examined, and, if parties in interest desire, cross-examined, and their 
 testimony rebutted(w) and certificates made ; the hearing, however, 
 may take place at some subsequent time, upon this evidence and 
 
 (ra)|2,R. S. 1874, p. 1101. 
 
 (n) Hill's Ch. Pr., Hearing and De- 
 cree, p. 307. To entitle a will to pro- 
 bate four things must concur : 
 
 1. It must be in writing and signed 
 by the testator, or in his or her pres- 
 ence by some one under his or her 
 dictation. 
 
 2. It must be attested by two or 
 more credible witnesses. 
 
 3. Two witnesses must prove that 
 they saw the testator or testatrix sign 
 the will in their presence, or that he 
 or she acknowledged the same to be his 
 or her free act and deed ; and 
 
 4. They must swear that they be- 
 lieve the testator or testatrix to be of 
 sound mind and memory at the time 
 of signing and acknowledging the 
 same. Allison v. Allison 46 111. 61 ; 
 Dickie v. Carter, 42 id. 376; 80 id. 469. 
 
 In Dickie v. Carter, the heirs con- 
 tested the will in the county court, 
 and it was there rejected ; Carter ap- 
 pealed ; a jury trial was had, to whom 
 the question, " Is this the will of 
 
 (the testator), or not?" was sub- 
 mitted. The jury found in the affirm- 
 ative ; judgment was entered a.ccord- 
 ingly ; a writ of error was sued out 
 and the judgment was affirmed. See 
 3 Redf. Wills, 2d ed. pp. 40, 41. 
 
 The proviso of 2 of the act of 
 
 March, 1872 (R. S. 1874, p. 1101). pre- 
 scribes that the probate shall be good 
 and available in law for granting, con- 
 veying and assuring the lands, tene- 
 ments, hereditaments, annuities, rents, 
 goods and chattels therein and there- 
 by devised, granted and bequeathed." 
 But in Ferguson v. Hunter* 2 Gilm. 
 (5-17, where a will was proved in com- 
 mon form, i. e., without notice to the 
 parties interested, the probate was 
 held to be a ministerial act, and sub- 
 ject to inquiry in collateral action. 
 Ackless v. Seekright, Breese, 46. 
 
 In Duncan v. Duncan, 23 111. 364, it 
 was held that our statute (and it is not 
 in this respect changed by the acts of 
 1872) contemplated the contesting of 
 the will in the county court as well as 
 in chancery. We have already sug- 
 gested the propriety of notice to the 
 parties interested on the part of the 
 executor or others seeking the pro- 
 bate of the will. If the heirs have 
 the right to be heard they certainly 
 should be notified, especially where 
 titles to real property may be called 
 in question ; and the will thus, in the 
 first instance, be proved in solemn 
 form, i. e., on notice to the parties in- 
 terested. See Ferguson v. Hunter, 
 supra; 3 Redf. Wills, 27, 30.* 
 
 * We have read the case of Ferguson v. Hunter, again and again, and compared it 
 with recent statutes, and tried to reconcile it with the authorities. We are prone tc 
 think that the word ministerial was used without th'e consideration usually bestowed 
 by the learned judge who gives the opinion. Is not the probate of a will a judicial 
 act? See 2 Phil. Ev. 76.
 
 48 TESTATE ESTATES. [CH. II. 
 
 Probate of wills. 
 
 other proofs and the files of the court. The order is made in the 
 nature of a judgment. 
 
 If any of the proof should be taken under a dedimus, the county 
 judge may indorse upon the deposition a certificate : 
 
 Received in evidence this day of , A. D. 18 . J. S., 
 
 County judge, etc. 
 
 9. PROOF OF THE EXECUTION" OF A WILL, AND THE RECORD. 
 
 In the matter of the estate ) 
 of John Doe, deceased.(o) j 
 
 On this day comes A B, of said county, and produces to the court an instru- 
 ment in writing, purporting to be the last will and testament of John Doe, 
 deceased, and attested by C D, E F and J K, as witnesses ; and the said A B 
 prays that said instrument in writing be admitted to record as the last will and 
 testament of the said John Doe. 
 
 And it appearing to the court by the evidence of said A B, that said John 
 Doe, late of said county of , died on or about the day of , 18 > 
 
 at the said county, the court proceeded to hear the proof of the execution of 
 said instrument in writing. 
 
 And thereupon come C D and E F, two of the said attesting witnesses, who, 
 being first duly sworn, say, respectively, that they were well acquainted with 
 John Doe, late of said county, deceased, in his life-time. The instrument in 
 writing so produced by said A B, purporting to be the last will and testament 
 of said John Doe, being shown them, they each further say that they were 
 present at the execution of said will, and saw the said John Doe sign it on the 
 day of the date thereof, and heard said John Doe say then and there that said 
 instrument in writing was his last will and testament ; that they subscribed 
 their names as witnesses thereto, at the request of the said John Doe, in his 
 presence and in the presence of each other, and that they respectively be- 
 lieve that the said John Doe was then of sound mind and memory, and com- 
 petent to make a will. 
 
 (If the probate be in solemn form, or contested, add, " and the said wit- 
 nesses having also been cross-examined by X T, of counsel for C D, E F, 
 G H, parties interested in the estate of said A B, and proofs as follows : 
 (Here set out all testimony in rebuttal) by the said C D, E F and G H, having 
 also been adduced.") 
 
 And now the court being sufficiently advised by the evidence of said attest- 
 ing witnesses, of the proper and legal execution of the said will, it is 
 
 ORDERED and adjudged, That said instrument in writing be considered 
 proven, and be admitted to record as the last will and testament of said John 
 Doe, deceased. 
 
 This day also appears A B, named in said last will and testatemt of said Joha 
 
 (0) After the probate of the will, at page 37, supra ; see Probate Record, 
 this title should be used in all proceed- infra. 
 ings ; before this the title should be as
 
 CH. II. J TESTATE ESTATES. 49 
 
 Probate of wills. 
 
 Doe, deceased, as the executor thereof, and prays that the court issue to him 
 letters testamentary as said executor; and the court being now sufficiently 
 advised touching the same, it is 
 
 ORDERED, That letters testamentary issue to the said A B, as such executor, 
 upon his entering into bond in the penal sum of dollars, conditioned and 
 
 payable as the law requires. 
 
 And now again comes the said A B, and presents to the court his bond as 
 executor, etc., with L M and P as his securities thereon ; and the court being 
 advised concerning said bond and securities, it is 
 
 ORDERED, That the same be approved, which bond is in the words and fig- 
 ures as follows: (Here set out the bond in full.) And the said A B, having 
 taken his oath of office as such executor, which oath is in the words and fig- 
 ures as follows : (Here set out the oath in full.') it is 
 
 ORDERED, That letters testamentary do now issue to him, which letters are 
 in words and figures as follows : (Here set out the letters in futt) ; and it is 
 further 
 
 ORDERED, That (L M, P and Q R) be appointed appraisers of the said 
 estate. 
 
 This record is to be made by the clerk from time to time as the proceedings 
 are progressing. The first order is, that the will be admitted to record. If it 
 be rejected, the probate record, of course, is at an end. 
 
 When a will has been duly proved and allowed, the county court 
 shall issue letters testamentary thereon to the executor named in 
 such will, if he is legally competent and accepts the trust, and gives 
 bonds to discharge the same ; and when there is no executor named 
 in such will, or the executor named therein dies, refuses to act, or is 
 otherwise disqualified, the court shall commit the administration of 
 the estate unto the widow, surviving husband, next of kin or 
 creditor, the same as if the testator had died intestate. In all cases 
 copies of the will shall go out with the letters.(j^) 
 
 10. The form of the letters to be issued upon the probate is pre- 
 scribed as follows : 
 
 LETTERS TESTAMENTARY^^) 
 
 STATE OP ILLINOIS,) 
 County of . J M 
 
 The People of the State of Illinois, to all to whom these presents shall come, 
 greeting : 
 
 Know ye, that whereas , late of the county of , and State of 
 
 Illinois, died on or about the day of , A. D. 18 , as it is said, after 
 
 having duly made and published last will and testament, a copy whereof ia 
 
 (p) 1, R. S. 1874, p. 104. ( ? ) 10, R. S. 1874, p. 106. 
 
 7
 
 50 TESTATE ESTATES. [CH. II. 
 
 Probate of wills. 
 
 hereunto annexed, leaving at the time of death property in this State, 
 
 which may be lost, destroyed or diminished in value if speedy care be not 
 taken of the same ; and inasmuch as it appears that ha been appointed 
 
 execut in and by the said last will and testament, to execute the same ; and 
 to the end that the said property may be preserved for those who shall appear 
 to have legal right or interest therein, and that said will may be executed 
 according to the request of the said testa , we do hereby authorize , 
 
 the said , as such execut , to collect and secure all and singular the 
 
 goods and chattels, rights and credits which were of the said at the time 
 
 of decease, in whosesoever hands or possession the same may be found 
 
 in this State ; and well and truly to perform and fulfill all such duties as may 
 be enjoined upon by the said will, so far as there shall be property, and 
 
 the law charge , and, in general, to do and perform all other acts which 
 
 are now, or hereafter may be, required of by law. 
 
 Witness, , clerk of the county court of said county, and the seal thereof, 
 at the court-house, in the of , in said county, this day of , 
 
 A. D. 18 
 
 , Clerk. 
 
 They are usually certified : 
 
 CERTIFICATE OP THE CLERK. 
 
 STATE OP ILLINOIS, ) 
 
 County of . f ss 
 
 I, , clerk of the county court of county, in the State aforesaid, 
 
 do hereby certify that the within is a true and correct copy of the letters tes- 
 tamentary issued to , now in force, and now of record in my office. 
 
 In witness whereof I have hereunto set my hand, and the seal of said county 
 court, this day of , A. D. 18 . 
 
 [L. s.] , Clerk. 
 
 And competent evidence of the appointment and confirmation of the 
 executor. 
 
 This completes the record of the proceedings ; armed now with his 
 letters and a certified copy of the will and its probate, the executor 
 is prepared to study and learn his duties, and ascertain and exercise 
 his powers. 
 
 11. NUNCUPATIVE WILL. (1.) If the application be for letters tes- 
 tamentary upon the admission to probate of a nuncupative will, the 
 heirs and legal representatives of the testator must be cited if they 
 reside within the county, or notified if they live without, by adver- 
 tisement^) As the statute of wills does not prescribe the length 
 
 (r) Coth. Ann'd. Stats., 1539, 16.
 
 CH. II.] TESTATE ESTATES. 51 
 
 Probate of wills. 
 
 of time during which the notice be published, in the event that 
 publication is necessary, reference must be had to an act to revise 
 the law in relation to notices, passed February 13, 1874, and which 
 took effect July 1 of that year. By section 3 of that act it is 
 provided "whenever notice is required by law or order of court 
 and the number of publications is not specified, it shall be 
 intended that the same be published for three successive weeks.' 
 By section 4 the publication may be in a weekly newspaper, and, by sec- 
 tion 5, ;i proper newspaper is defined to be a secular newspaper of gen- 
 em! circulation, published in the city, town or county, or some paper 
 especially authorized to publish legal notices in the city, town or 
 county. The publication may be proved by producing the certifi- 
 cate of the publisher, by himself or his authorized agent, with a 
 written or printed copy of the notice annexed, stating the number 
 of times which the same shall have been published, and the dates 
 of the first and last papers containing the same, (s) 
 
 The following may be used as both a notice and a citation: 
 
 (2.) NOTICE TO HEIRS AND LEGAL REPRESENTATIVES OP TESTATOR, OR TESTA- 
 TRIX, OF THE ISSUING OF LETTERS TESTAMENTARY, ON A NUNCUPATIVE 
 WILL. 
 
 STATE OF ILLINOIS, ) In court of county, of the term, 
 
 County of . \ M A. D. 18 . 
 
 TJie People of the State of Illinois, to A B,G D, E F and G H, heirs and legal 
 representatives of J K, deceased: 
 
 Take notice that a nuncupative will of the said J K Las been duly proven 
 and recorded in said court, and that letters testamentary will be granted thereon 
 to It M, on. the day of , A. D. 18 , unless sufficient cause be shown to 
 the contrary. You, and each of you, are, therefore, hereby cited and notified 
 to appear before said court, to be holden on the day and year aforesaid, at the 
 court-house in , in said county, to show cause, if any you have, why 
 
 such letters should not be granted to the said L M. 
 
 [i, s.] 
 
 NOTE. 1. Old age and disease are not to be treated as an absence 
 of sanity. These are not of themselves sufficient to incapacitate 
 a party from making a valid disposition of his property by will, 
 when no undue influence is practiced. Even softening of the brain, 
 two years prior to the making of the will, will not invalidate it, it' 
 
 (*) Coth. Ann'd. Stats., 1009.
 
 52 TESTATE ESTATES. [CH. II. 
 
 Probate of \Vills. 
 
 the testator at the time of making it was capable of transacting his 
 ordinary affairs.(tf) It is not required that a person, to make a 
 valid will, shall possess a higher capacity than for the transaction 
 of the ordinary affairs of life.(w) The testator need not have suffi- 
 cient mental capacity to understand and know the extent of his 
 property, who his relations are and their claims on his bounty, and 
 how he wishes to dispose of his property, and also sufficient capacity 
 to hold all these things in his mind at the same time, (u) If the mind 
 and memory of the testator are sufficiently sound to enable him to 
 know and understand the business in which he is engaged at the 
 time of executing his will, then within the statute, he is of sound 
 mind and memory.(v) The rule is that a person who is capable of 
 transacting business is also capable of making a valid will; it is the 
 same in the case of a sale of property and its disposition by will- 
 The usual test is, that the party be capable of acting rationally in 
 the affairs of life. The derangement or imbecility that incapaci- 
 tates is of that character which renders him incapable of under- 
 standing the effect and consequences of his acts; it need not be a total 
 obliteration of the mental faculties which prevents a party from 
 reasoning correctly on all subjects, upon correct premises to arrive 
 at correct conclusions, but it is that want of capacity which pre- 
 vents a person reasoning correctly and from understanding the rela- 
 tion of cause and effect in ordinary business affairs.(w) 
 
 2. Fraud or undue influence, to avoid a will, must be directly 
 connected with its execution. The fact that a testator was influ- 
 enced by the devisee, in the ordinary affairs of life, does not show 
 that the latter used undue influence in procuring the execution of 
 a will subsequently made.(a;) It is not unlawful for a man, by 
 honest advice or persuasion, to induce a person to make a will, or to 
 influence the disposition of his property by will; such advice or 
 persuasion will not vitiate a will made freely.(y) The influence 
 exercised over a testator to avoid his will, must be of such a nature 
 as to deprive him of free agency and render his act more the off- 
 spring of the will of others than his own, and it must be specially 
 directed toward the object of procuring a will in favor of particular 
 parties, and must be still operating at the time the will is made. 
 
 (t) Rutherford v. Morris, 77 111. 397. (w) Meeker v. Meeker, 75 111. 269. 
 (u) Carpenter v. Calvert, 83 111. 63. (x) Rutherford v. Morris, 11 111. 397. 
 
 (v) yoe v. McCord, 74 111. 33. (y) Toe v. McCord, 74 111. 33.
 
 CH. II. J TESTATE ESTATES. 53 
 
 Executors. 
 
 Influence and persuasion may be fairly used, and a will procured by 
 honest means, by acts of kindness, attention and persuasion, which 
 delicate minds would shrink from, will not be set aside on that 
 ground alone. The influence, to vitiate the will, must not be the 
 influence of affection or attachment. (z) 
 
 12. LOST WILL. No provision is made in the statute for the 
 proof of a lost will in probate, but if known to exist the lost will 
 may be proved. The question is not only one of evidence but also 
 of jurisdiction. The proper jurisdiction, it seems, in such cases is 
 iii chancery, (a) The proceeding similar to that prescribed for the 
 restoration of lost deeds, by the statute of records. (b) 
 
 SECTION' III. EXECUTORS. 
 
 I. Competency and appointment. 
 II. Powers and duties. 
 III. Renunciation, resignation and removal. 
 
 I. COMPETENCY AND APPOINTMENT. 
 
 1. "Who may be executors. 
 
 2. Appointment of a debtor as executor. 
 
 3. Afemme couverte may be. 
 
 4. A corporation. 
 
 1. WHO MAY BE EXECUTORS. An executor is one appointed by a 
 testator (and whose appointment is confirmed by the proper court) 
 to execute his will and to represent him in his personal rights and 
 liabilities left at his death. Persons of the age of seventeen 
 years, of sound mind and memory, may be appointed executors; but 
 when a person appointed executor is, at the time of proving the will, 
 under the age of twenty-one years, or of unsound mind, or con- 
 victed of any crime rendering him infamous, administration with 
 the will annexed may be granted during his minority or other dis- 
 ability, unless there is another executor who accepts the trust, in 
 which case the estate shall be administered by such other executor 
 until the minor arrives at full age or the other disability is removed, 
 
 (z) Rutherford v. Morris, 77 111. 397; Redf. Wills, 6, 7 ; but see Duncan v. 
 Alimon v. Pigg, 82 111. 149. Duncan, 23 111. 364. 
 
 (a) See Hill's Chan. Pr , p. 646 ; 3 (6) Goth. Ann'd. Stats., 1202 et seq.
 
 54 TESTATE ESTATES. [CH. II. 
 
 Executors. 
 
 when, upon giving bond as in other cases, he may be admitted as 
 joint executor with the former. When a married woman is execu- 
 trix her husband may give bond with her for her faithful perform- 
 ance of the trust as in other cases, (c) 
 
 When a will has been duly proved and allosved, the county court 
 shall issue letters testamentary thereon to the executor named in 
 such will, if he is legally competent and accepts the trust, and gives 
 bond to discharge the same, unless by the request of testator and 
 approval of the court, the giving of surety be waived ; and when 
 there is no executor named in such will, or the executor named 
 therein dies, refuses to act, or is otherwise disqualified, the court 
 shall commit the administration of the estate unto the widow, sur- 
 viving husband, next of kin or creditor, the same as if the testator 
 had died intestate. In all cases copies of the will shall go out with 
 the letters.(d) 
 
 2. APPOINTMENT OF A DEBTOR AS EXECUTOR. In no case here- 
 after, within this State, where any testator or testatrix shall, by his 
 or her will, appoint his or her debtor to be his or her executor or 
 executrix, shall such appointment operate as a release or extinguish- 
 ment of any debt due from snch executor or executrix to such testa- 
 tor or testatrix ; unless the testator or testatrix shall, in such will, 
 expressly declare his or her intention to devise, bequeath or release 
 such debt ; nor even in that case, unless the estate of such testator 
 or testatrix is sufficient to discharge the whole of his or her just debts 
 over and above the debt due from such executor or executrix.(e) 
 
 3. A MARRIED WOMAN may be, if her husband consents, and 
 will unite with her in the bond, with securities for her faithful per- 
 formance as such, executrix.(/ ) 
 
 4. A CORPORATION AGGREGATE, it has been said, in England, (</) 
 may be entitled to be executor ; but the authorities are the other way 
 in America. Corporations can exercise only such powers as are 
 expressly conferred on them, and such implied powers as are neces- 
 sary to enable them to perform their prescribed duties ; they have 
 none of the elements of sovereignty and having no soul cannot com- 
 mit perjury. 
 
 Those who are not of sound mind and memory are incapable ; as 
 idiots, infants under the age of seventeen, and persons convicted 
 of any infamous crime. What are infamous crimes is declared by 
 section 279 of the Criminal Code.(A) 
 
 II. POWERS AND DUTIES. 
 
 1. The authority. 4. Their principal duties. 
 
 2. How appointed. 5. Distinction between their duties 
 
 3. Executor de son tort. and those of administrators. 
 
 (c) 3, R. S. 1874, p. 104. S. 1874, p. 104 ; 2 Bl. Com. 503. 
 
 (d) fc I, H. S. 1874, p. 104. (g) Tol. Ex. 3 ; 3 Bac. Abr. 5. 
 
 (e) 19, R. S. 1874, p. 1105. (h) 279, R. S. 1874, p. 394 ; Coth- 
 (0 Cothran's Stats., 48, a ; 3, R. ran's Statutes, p. 507.
 
 CH. II.] TESTATE ESTATES. 55 
 
 Executors. 
 
 1. THE AUTHORITY of an executor is grounded upon the will 
 and may be express or implied ; absolute or qualified ; exclusive, 
 or in common with others. 
 
 2. How APPOINTED. He may be expressly nominated, either 
 by a written or nuncupative will. He may be constructively ap- 
 pointed, merely by the testator's recommending or committing to 
 him the discharge of those duties which it is the province of an 
 executor to perform, only conferring on him those rights which 
 properly belong to the office, or any other means from which the 
 testator's intention to invest him with that character may be dis- 
 tinctly inferred. 
 
 His appointment is absolute, where he is constituted certainly, 
 immediately, and without any restriction or limitation ; it is quali- 
 fied where his duties are limited to a restricted time, or to certain 
 of the testator's property. 
 
 3. As EXECUTOR DE sox TORT (in his own wrong) is one who, 
 without lawful authority, undertakes to act as executor of a person 
 deceased. A very slight circumstance will render a man executor 
 de son tort, as where a man receives a debt of the deceased, or gives 
 an acquittance for it. He is liable to all the trouble of an executor- 
 ship, with none of the profit or advantage. Merely doing acts of 
 necessity or humanity, as locking up the goods or burying the 
 corpse of the deceased, will not amount to such an intermeddling 
 as will charge a man as executor of his own wrong.(t) 
 
 But where there is a rightful executor or administrator, there can 
 be no executor of this description. The doctrine relating to execu- 
 tors in their own wrong applies to chattels only. 
 
 4. DUTIES OF EXECUTORS. In the performance of his duties, he is 
 required to act in good faith, and to use due diligence. 
 
 His principal duties are the following : 
 
 First, To bury the testator in a manner suitable to the estate he 
 leaves behind him. 
 
 Second. To collect the goods of the deceased. 
 
 Third. To prove the will in a proper office, before the proper 
 officer appointed by law. 
 
 Fourth. To make an inventory of all the goods and chattels 
 which come to his hands and, under our statute, of the real estate 
 of the testator, and return the same into the county or probate 
 court which approved his appointment, within three months from 
 the date of his testamentary letters, as Avell as to make such 
 supplementary inventories, from time to time, as other assets or 
 liabilities of the testator may come to his knowledge. 
 
 Fifth. To ascertain the state of the debts and credits of the estate, 
 and endeavor to collect the claims with as little delay as possible, 
 consistently with the interest of the estate. 
 
 Sixth. To reduce all the goods not specifically bequeathed, into 
 
 (i) 1 Wms. on Exec. 210 et seq.
 
 5(j TESTATE ESTATES. [CH. II. 
 
 Executors. 
 
 Seventh. To pay the debts of the testator and the legacies be- 
 queathed by him, in the order required by law. 
 
 Under our statute of wills, the power of the executor over the 
 testator's estate, before the probate of the will, extends simply to the 
 burial of the deceased, the payment of necessary funeral expenses, 
 and the taking care and preservation of the estate, (d) 
 
 When the letters testamentary issue, the executor's authority over 
 the estate relates back to the death of the deceased. His right to 
 act generally, from the time of the testator's -decease, is suspended 
 until he complies with the law in producing the will, having it pro- 
 bated, and qualifies, (d) 
 
 He is to give bond, the same as an administrator, for the faithful 
 performance of his duties, unless the will itself dispense with 
 security; even then, if persons interested in the estate suspect fraud, 
 or the court see cause, or the estate be insolvent, he will be required 
 to give such bond. The suspicion of the creditors or legatees, under 
 such circumstances, should be reasonable, not mere caprice. 
 
 The duties of an executor, AFTEE LETTERS TESTAMENTARY have 
 been granted to him, are identical with those of an administrator, in 
 making the inventory, appraisement bill, account, setting apart to 
 the widow her specific property, and settling up the estate before 
 distribution. The law may be said to take possession of the goods, 
 chattels, rights and credits, and the real estate of a person, as soon 
 as he dies, whether he be testator or intestate, and to hold the estate 
 for the purpose of paying his debts ; hence, the mode of settling up 
 the estate, so far as the creditors are concerned, is the same, whether 
 the person invested with the trust for such purpose be nominated 
 executor by the will of the deceased, or appointed administrator by 
 the county court. No disposition that the testator may make of his 
 property by will can affect the rights of creditors. 
 
 5. THE DISTINCTION between the duties of an executor and an 
 administrator is this : After the administrator has made a complete 
 
 (d) POWEB BEFORE PROBATE. The qualifies, he shall not be liable as an 
 
 power of the executor over the testa- executor of his own wrong, unless 
 
 tor's estate, before probate of the will upon refusal to deliver up the estate 
 
 and obtaining letters testamentary, to the person authorized to receive the 
 
 shall extend to the burial of the de- same. Provided, that this section shall 
 
 ceased, the payment of necessary not be construed to exempt any person 
 
 funeral charges, and the taking care of claiming to be executor as aforesaid, 
 
 the estate ; but in all such cases, if the for any waste or misapplication of such 
 
 will is rejected when presented for pro- estate. Sec. 4, R. S. 1874, p. 104. 
 oate, and such executor thereby never
 
 CH. II.] TESTATE ESTATES. 57 
 
 Executors. 
 
 settlement of all the debts due creditors of the estate, the surplus of 
 the intestate's property is distributed among his heirs, according to 
 the laws of descent, while, under a will, it goes in the direction 
 desired by the testator. The executor looks to the will, the adminis- 
 trator to the law of descent, to ascertain his duties and powers. The 
 will is consulted in the one case, the statute in the other. 
 
 All the law, instructions and precedents, therefore, concerning 
 administrators, from the time of their appointment up to the time 
 of distribution, which will be given in the next chapter, are equally 
 applicable to executors. The forms there given may be used for an 
 executor, by substituting for the* words " administrator," etc., the 
 words " executor of the last will and testament of." By reference to 
 the synopsis of the statutes given in the appendix, the executor can 
 readily see where his duties and those of an administrator are iden- 
 tical. This chapter contains only such matters as are peculiarly or 
 exclusively applicable to executors. 
 
 III. RENUNCIATION, RESIGNATION AND REMOVAL. 
 
 1. Renunciation. 
 
 2. Form of. 
 
 3. Record of. 
 
 4. Resignation. 
 
 5. Removal. 
 
 6. Superseding, petition for. 
 
 7. Revocation of letters testamentary. 
 
 1. RENUNCIATION OF EXECUTORS. If a person named in a will 
 as executor be unwilling to act in that capacity, he may refuse by so 
 declaring in writing, and having the same filed in the proper court. 
 The following form may be used for this purpose : 
 
 2. FORM OF RENUNCIATION OF EXECUTORSHIP. 
 
 STATE OP ILLINOIS, ) County Court of County, 
 
 County. \ * Term, A. D. 18 . 
 
 To the Hon. , Judge of said Court : 
 
 The undersigned herewith presents to the court a paper writing, purporting 
 to be the last will and testament of , who died at the county aforesaid, 
 
 the same being his place of residence, on the day of last, in which 
 
 paid will the undersigned is nominated and appointed executor thereof. He 
 hereby wholly refuses to accept the executorship thereof, and renounces all 
 right and claim to the exercise of the duties of executor of the same. He 
 further states that he has not intermeddled with the effects of the testator 
 since his decease, nor in any manner acted as executor of the said will. 
 Dated , 18 . RICHARD ROE. 
 
 8
 
 58 TESTATE ESTATES. [CH. II. 
 
 Executors. 
 
 A verbal declaration is not sufficient, but, to. give validity to the 
 renunciation, it must be solemnly entered and recorded.(e) 
 
 3. THE FACT OF RENUNCIATION SHOULD APPEAK OF RECORD, in 
 order to give validity to the appointment of an administrator with 
 the will annexed. Such an appointment is, in the supposed cases, 
 based upon the renunciation. Taking possession and selling part of 
 the personal estate of the testator, and paying some of the debts, are 
 proof of his election to act, and renders a person chargeable as exec- 
 utor^/) 
 
 If there be several executors, they must all renounce before admin- 
 istration can be granted. If the administration be committed be- 
 fore refusal, it will be void.* If several executors are appointed 
 and one or more of them die before letters issue, or renounce or 
 become disqualified, letters issue to the survivor, willing to under- 
 take the trust. 
 
 4. RESIGNATION OF EXECUTORS. An executor may resign the 
 expcutorship in the same manner as an administrator. 
 
 5. REMOVAL OF EXECUTORS. If any person named as executor or 
 executrix in any last will and testament is, at the time when admin- 
 istration ought to be granted, under the age of seventeen years, or 
 of unsound mind, or convicted of any crime rendering him or her 
 infamous, or shall be a married woman, letters of administration or 
 testamentary (as the case may require) may be granted in the same 
 manner as if such person had not been named as executor in such 
 will ; unless, in the case of the married woman, her husband shall 
 give bond with her, etc.: Under such circumstances, the appoint- 
 ment under the will is superseded by an appointment of the court. 
 The person not being capable of the office, the nomination in the 
 will is, in effect, a blank. But the person named is presumed to 
 be competent until the contrary is made to appear ; therefore, there 
 should be some judicial proceedings before the person named is 
 superseded by an appointment of an administrator with the will 
 annexed. The court should be advised by competent evidence that 
 the person is disqualified from some cause mentioned in the statute, 
 and when so advised the consideration of the court thereon should be 
 made a matter of record, so that the subsequent appointment of an 
 administrator will be authorized and legal. The widow, next of kin, 
 
 (e) Toll. Ex. 40 : 3 Redf. on Wills, 11 (/) Van Horn v. Fonda, 5 Johns. 
 (n). Ch. 388. 
 
 *But see g 5, R. S. 1874, p. 10-5.
 
 CH. II.] TESTATE ESTATES. 59 
 
 Executors. 
 
 or other person interested in the estate should bring the question 
 before the court, by petition, affidavit or suggestion, and the person 
 represented to be disqualified should be cited to show cause why let- 
 ters of administration, with the will annexed, should not be granted. 
 The notice to the executor should be reasonable, so that he may 
 have an opportunity to contest the question of disqualification. 
 The petition may be in the following form : 
 
 6. PETITION TO SUPEESEDE THE APPOINTMENT OF AN EXECUTOE. 
 
 STATE OF , ) ' County Court of county. In Probate. 
 
 County. \ ss - 
 To Hon. D, Judge of said Court : 
 
 The petition of A B, of said county, respectfully represents, that she is the 
 widow of C B, late of said county, deceased. That said C B died on the 
 day of , 18 , having made and published his last will and testament. 
 
 That said C B died seized of a large estate, consisting of real and personal 
 property of the value of ten thousand dollars, as your petitioner believes, all of 
 which is disposed of by said last will and testament, after the payment of all 
 just debts of said testator. That the said estate is owing large sums of money 
 to divers persons, the amount of which your petitioner does not know, but 
 believes it to be two thousand dollars. 
 
 And your petitioner further represents, that in and by said last will and testa- 
 ment, one E F, of said county, is appointed executor thereof. That t,aid E F 
 was, at the term of the circuit court of said county, held in , A. D. 
 
 18 , convicted of the crime of burglary, and sentenced to imprisonment and 
 hard labor in the penitentiary for two years, and served the said term (or is of 
 unsound mind, stating how unsound, or is under the age of seventeen years, or 
 is a married woman, giving the name of her husband, as the case may be.) 
 Wherefore, your petitioner shows that the said E F is incapable of qualifying 
 as such executor. 
 
 Therefore, in consideration of the premises, your petitioner prays that she 
 may be appointed administratrix of the estate of said C B, with the will 
 annexed, and that a citation may issue herein, requiring said E F to appear 
 in this court at the next term thereof, and show cause, if any he has, why 
 
 such letters of administration should not be granted. 
 
 And your petitioner will ever pray, etc. A B. 
 
 Dated, this day of , A. D. 18 
 
 STATE OP J ., 
 
 County, \ S " 
 
 A B, the petitioner above named, being first duly sworn, says, that the mat 
 ters and things in the foregoing petition stated are true of her own knowledge 
 
 AB. 
 
 Subscribed and sworn to this first ) 
 day of , A. D. 18 . y 
 
 J K, County Clerk.
 
 6U TESTATE ESTATES. [CH. 1). 
 
 Executors. 
 
 The petition should specify the facts which show that the executor 
 named in the will is disqualified, in order that he may be advised 
 particularly of what is charged against him, so that he can, accord- 
 ingly, prepare his defense. It would be insufficient to say that 
 he was convicted of an infamous crime, without further stating what 
 such crime was, and when and where he was convicted. 
 
 The testator selects whom he desires to execute his will, and his 
 appointment should not be overruled, unless the person whom he 
 has selected be, in law, clearly incompetent. Therefore the evidence 
 should be certain and convincing before the court should disregard 
 the appointment of the testator. If, upon hearing the evidence, the 
 court consider the person named as executor in the will, disqualified, 
 it should be so entered of record, as a foundation for granting let- 
 ters of administration with the will annexed. 
 
 7. KEVOCATION. It is provided that the county court shall 
 have power to revoke all letters testamentary or of administration, 
 granted to persons who shall become insane, lunatic or of unsound 
 mind, habitual drunkards, who may be convicted of any infamous 
 crime, who waste or mismanage the estate, or who conduct them- 
 selves in such a manner as to endanger their co-executors or securi- 
 ties. The proceedings and precedents necessary under this section 
 to revoke the letters of an executor, are substantially the same as 
 those applicable to administrators, (h) 
 
 (h) See p. 100, infra.
 
 CH. III.J INTESTATE ESTATES. 61 
 
 Introduction. 
 
 CHAPTEK III. 
 
 INTESTATE ESTATES. 
 SECTION I. Introduction. 
 
 II. Appointment of administrators. 
 
 III. Their powers and duties generally. 
 
 IV. Resignation and removal. 
 
 SECTION I. INTRODUCTION. 
 
 1. Estates generally. 
 
 2. Priority of the rights of creditors. 
 
 3. Testate estates and intestate estates distinguished. 
 
 4. Administration of estates. 
 
 1. ESTATES consist of real and personal property.(a) 
 
 2. ALL JUST DEBTS AND CLAIMS() against estates left by deced- 
 ents, if enforced within a reasonable time, take precedence of lega- 
 cies,^) devises, and the rights of legatees, devisees or distributees(rf) 
 and their alienees or assigns. (e) 
 
 3. TESTATE ESTATES pass by will ; they are the estates of deceased 
 testators which we term testate estates. (/) 
 
 INTESTATE ESTATES consist of the real and personal property of 
 resident and non-resident proprietors dying intestate.(^) 
 
 THEY DESCEND and are distributed, while testate estates are dis- 
 posed of according to legacies and devises. All these estates fall, on 
 the death of their proprietors, under the administration of the 
 proper court in probate. For the purposes of administration of 
 testate estates, where there is no executor, the court appoints one, 
 and then the testate estate is in its management and control through 
 an administrator cum testamento annexo or de bonisnon, deemed an 
 intestate estate ; but the legacies, devises and provisions of the will 
 are paramount rules in their disposition. 
 
 THE LAW OF DESCENT(/i) may bo regarded as the PUBLIC WILL 
 for the distribution of estates, after paying all just debts and claims 
 of creditors, among the relatives of the decedent ; while the LAW OF 
 
 (a) Bl. Com. ; Washburn'a Real Prop.; (e) Meyer v. McDougal, 47 111. 278 ; 
 
 art in regard to descent of property ; 1, It. S. 1874, p. 417 ; Hill's Ch. Pr. 
 
 R. S. 1874, p. 417. 513. Cotliran's Statutes, p. 541. 
 
 (//) See page 215, infra. (/) See pp. 10-60, supra. 
 
 (c) See page 233, infra. (<7) See page 1. supra. 
 
 (d) See page 251, infra. (h) See chap, x, infra.
 
 INTESTATE ESTATES. 
 
 [CH. III. 
 
 Introduction. 
 
 WILLS provides for the disposition of his property, after death, by 
 the will of the proprietor, indicated, while living, in a formal man- 
 ner, in an instrument termed a will. 
 
 4. ADMINISTRATION OF ESTATES. Death comes to all. The 
 instant it comes to the proprietor of either real or personal property, 
 the probate jurisdiction begins;* the authority of the proper judge 
 
 *Acting upon this doctrine, the su- 
 preme court of the United States hold 
 all proceedings to sell lands of a de- 
 ceased person in probate to be solely 
 in rem. Qrignon v. Astor, 2 How. 
 319. The preliminaries to the sale 
 are not to be collaterally attacked. 
 The supreme court of Illinois hold 
 that such proceedings are partially in 
 rem and partially in personam. Bots- 
 ford v. 0' Conner, 57 111. 72. But if 
 the creditors have a prior lien upon 
 the estate in administration, how are 
 heirs or devisees to take the property 
 discharged of this lien ? Until credi- 
 tors are paid, the property is in custo- 
 dia legis by the statute, according to 
 innumerable decisions. 
 
 Then, if we assume that a proceed- 
 ing to subject the real property of an 
 intestate to the payment of his debts 
 is partly in personam and partly in 
 rem, are we not begging the question ? 
 For, does not the estate, at the death 
 of its proprietor, pass through the pro- 
 bate jurisdiction? Have not all the 
 world notice of the attaching and prov 
 ince of this jurisdiction, at the death 
 of the proprietor, ipso facto f Is it, 
 then, not the better doctrine that every 
 thing pertaining to the administration 
 is in rem, and that all contests relative 
 to the manner of administration should 
 take place in the jurisdiction already 
 attached, original and complete ? If 
 the doctrine which supports the case 
 of Ferguson v. Hunter, supra, be cor- 
 rect, the whole administration may be 
 impeached in the case of a will, or ac- 
 cording to that held in Botsford v. 
 0' Conner, supra, in case of intestacy 
 in ejectment. 
 
 On the decease of the ancestor or 
 benefactor, the heirs or beneficiaries 
 know that, before they can receive 
 their inheritance or devise, the estate 
 must be settled in probate. Is it un- 
 reasonable or unjust to ask them to 
 meet and settle all questions in pro- 
 bate or on appeal ? Is it unreasonable 
 
 or unjust to protect bona fide purchas- 
 ers at judicial sales against the un- 
 skillful exercise of the probate juris- 
 diction, by insisting that all who are 
 interested in it should be chargeable 
 with notice of the' attaching of the 
 jurisdiction, when all they ultimately 
 get comes directly through this very 
 jurisdiction to them in the first in- 
 stance? Is it just or reasonable that 
 they, thus benefited by such a juris- 
 diction, fully notified of it in fact, 
 should be treated as the owners of 
 property, yet in custodia legis and 
 brought in personam into the same 
 court where they must eventually 
 come to get their property ? Having 
 occasion to examine these questions 
 heretofore with great care in closely 
 litigated cases, we have taken the lib 
 erty of adding the points to show the 
 necessity of a skillful and careful ex- 
 ercise of the probate jurisdiction in 
 view of the cases Ferguson v. Hunter 
 and Boisf&rd v. 0' Conner, and their 
 kindred. The practitioner who would 
 examine the matter critically by start- 
 ing here and comparing them with 
 Qrignon v. Astor, and its kindred 
 cases, will see the issue involved. To 
 those who rely upon the former, and 
 as counsel for parties interested in es- 
 tates of the deceased, we would say, 
 beware of the latter, and to those who 
 rely upon the latter, and insist on orig- 
 inal, complete jurisdiction in probate, 
 we would say, beware of the former. 
 They may, in Illinois, be said to be 
 settled, but the questions involved, in 
 view of the new constitution and 
 . changes in our statutes, are subject to 
 re-examination. There is no position 
 to which jurists, wbo have adhered 
 to the doctrine that such proceedings 
 are in. rem, are more tenacious. They 
 see the jurisdiction attaching at the 
 decease of the proprietor. They start 
 there, with the probate jurisdiction 
 over all the estate, whether it be real 
 or personal. And when we consider
 
 OH. III.] INTESTATE ESTATES. 63 
 
 Introduction. 
 
 then attaches to the estate. The production and probate of the will 
 are the first things to do after the funeral of the deceased testator. (i) 
 Application for letters of administration is the first step to be taken 
 after the burial of the intestate. The statute (/) prescribes the 
 mode of procedure in such cases for the court and all concerned in 
 the administration of the estate which fortune or frugality may have 
 conferred upon the one who has now been laid in the grave- 
 Through the sorrow and anguish of death-bed scenes and funeral 
 rites and ceremonies, the probate power of the county court beams 
 forth to illumine the gloom, and well-drawn statutes now come in 
 to guide in the proper disposition of the estate, according to the law 
 of administration, and its distribution according to the will or the 
 law of descent. 
 
 We have, for the present, disposed of the law of wills and the 
 statute of administration, so far as relate exclusively to executors 
 and their appointment, powers and duties generally, and their 
 renunciation, resignation and removal. We now purpose to consider 
 the law of administration, so far as it relates exclusively to adminis- 
 trators, their appointment, powers and duties generally, and their 
 resignation and removal. 
 
 At the death of the intestate, as of the testator, the statute pro- 
 vides for the exigencies of the hour. Nothing should, however, be 
 
 () See page 14, supra. (j) 18, R. S. 1874, p. 107. 
 
 how far the policy of our law has been the whole controversy turns on the 
 to ignore the old distinctions between point of departure. If it be true that 
 real and personal property, and to as- real property passes at the death of 
 similate them; how earnestly and stren- the proprietor under the probate juri.s- 
 uously the State tribunals have strug- diction, then the exercise of such a 
 gled against, but sooner or later have jurisdiction ought not to be collaterally 
 succumbed to, the doctrine promul- questioned. It is in rem. If the real 
 gated by the United States supreme estate goes immediately to heirs or 
 court in Grignon v. Astor, we must devisees, thus to divest their title, 
 confess that we cannot regard such they must, according to well-settled 
 decisions as Ferguson v. Hunter and principles, be brought personally be- 
 Botsford v. O 'Conner as settling the fore the court by personal or construct- 
 law on this point even in the State of ive service. The jurisdiction is partly 
 Illinois. In view of them, it behooves in rem and partly in personam. This 
 the probate courts to be more careful brings us back to the point where we 
 of the exercise of their jurisdiction, started, and shows that the text needs 
 In view of the case of Grignon v. As- qualification when it is said that the 
 tor, it behooves heirs and devisees 10 probate jurisdiction attaches at the 
 be more careful in watching the exer- instant death comes to the proprietor 
 cise of probate jurisdiction over the of real estate in view of the cases 
 estates in which they are interested. Ferguson v. Hunter, and Botsford v. 
 Volumes might be written on the cases 0' Conner. We shall discuss the sub- 
 involving this issue. To our mind, ject further under chapter vii, infra.
 
 64 INTESTATE ESTATES. [CH. III. 
 
 Appointment of administrators. 
 
 done with unseemly haste. For sixty days(/f) the claims of credi- 
 tors are stayed. Their lien has attached, and if enforced within a 
 reasonable time, is paramount.(Z) Sixty days are allowed for the 
 grief of mourning relatives to abate.(w) Then, if the relatives 
 do not apply during the next fifteen days, the creditors become 
 entitled to letters of administration. If relatives and creditors 
 are wanting, the peculiar office of public administrator, with it* 
 powers and duties, intervenes ; if relatives are absent and creditors 
 lenient or neglectful, then the discretion is ample with the court in 
 granting letters of administration to suitable persons. If the right 
 of representation be contested, then a special administrator may be 
 empowered, so that every possible contingency is fully provided for. 
 Hence, we may consider the statute in hand as follows : 
 
 (1.) As it relates to the appointment, powers and duties, and the 
 removal of the public administrator. 
 
 (2.) As it provides for the appointment, powers and duties, and 
 the resignation and removal of an administrator to collect. 
 
 (3.) As it provides for the regular grant of administration to the 
 persons preferred and in the law entitled thereto; the powers and 
 duties of the administrator, and his resignation and removal. 
 
 (4.) As it relates to the recognition and exercise of the powers^ 
 rights and duties of an administrator appointed in another jurisdic- 
 tion, or the foreign administrator. 
 
 In doing this, we shall refer to the decisions and former statutes 
 as we proceed, and conclude the chapter with a resume of the decis- 
 ions and statutes involved not already discussed and delineated. 
 
 SECTION II. APPOINTMENT OF ADMINISTRATORS. 
 
 1. Administrators virtually executors. 
 
 2. Of several kinds, general and special. 
 
 3. An intestate 
 
 4. Special administrators. 
 
 5. Administrator de bo nix non. 
 
 6. Administrator pendents lite. 
 
 7. Letters of administration are a grant of power. 
 
 8. Intestacy and death of decedent must be proved. 
 
 9. How proved. 
 
 10. The English Statutes, and 
 
 (&). IS, R. S. 1874, p. 107. (m) 10. R. S. 1874, p. 108 ; Coth- 
 
 (t) Meyer v. McDouyal, 47 111. 278, ran's Annotated Statutes, p. 53. 
 R. S. 1874, p. 417.
 
 CH. III.] INTESTATE ESTATES. 65 
 
 Appointment of administrators. 
 
 11. Our statute compared. 
 
 12. The jus representation's. 
 
 13. Degrees of consanguinity according to the civil law. 
 
 14. The public administrator appointed by the governor, by and with the 
 
 consent of the senate. 
 
 15. When the estate may be committed to the public administrator. 
 
 16. His duties in general. 
 
 17. His expenses preferred. 
 
 18. Removal in special cases on appearance of parties entitled within six 
 
 months after his appointment. 
 
 19. To advertise on settlement, etc. 
 
 20. Administrator to collect. 
 
 21. Letters to collect. 
 
 22. Bond of administrator to collect. 
 
 23. His oath. 
 
 24. Who may be administrators generally. 
 
 (1.) They should be of lawful age and legally competent. 
 (2.) The preference conferred by statute. 
 (3.) Waiver of juris representationis. 
 
 (4.) Who to administer, on the death of surviving husband, as admin- 
 istrator de bonis non of his deceased wife's estate, quaere t 
 (5.) Next of kin the relatives generally. 
 (6.) Renunciation or relinquishment. 
 
 25. Venue proper county. 
 
 26. Practice how to be appointed administrator. 
 
 27. Petition for letters of administration. 
 
 28. Affidavit of death, intestacy, etc. 
 
 29. The administrator's bond. 
 
 30. And letters of administration. 
 
 31. The oath. 
 
 32. Form of bond by administrator with the will annexed. 
 
 33. Oath of. 
 
 34. Additional bond. 
 
 35. Decisions in Illinois. 
 
 36. Foreign executors and administrators, how, where and when they may 
 
 act ; limitations and restrictions. 
 
 1. AN ADMINISTRATOB is a person appointed or authorized to 
 manage and distribute the estate of the intestate, or of a testator 
 who has no executor(w) virtually an executor ; his duty is to 
 settle the estate of a deceased person, either where no will appears, 
 or if such appear, and for any reason there is no person to act as 
 executor of the duties imposed by the will. If there be no will, he 
 is simply an administrator to settle the estate according to the 
 
 (ri) Bouvier. 
 
 9
 
 66 INTESTATE ESTATES. [CH. III. 
 
 Appointment of administrators. 
 
 requirements of the law applicable to the case. He has, in all 
 respects, the same rights and duties, and is subject to the same 
 responsibilities, as an executor; except that, where the testator 
 directs that his executor t shall act without giving sureties for his 
 faithful administration, he cannot be required to do so unless, for 
 special cause shown, the county court should consider that the 
 rights of creditors and others make security indispensable to the 
 ends of justice, or where the statute requires such security. The 
 administrator, being an officer of the court, is required, in all cases, 
 to give security for the faithful performance of his duties. Regu- 
 larly, the administrator can do no act in regard to the estate before 
 his appointment by the court, except such necessary acts as are 
 indispensable to the preservation of the estate ; and, as to such, there 
 can be no question but they will be brought under the shield of a 
 subsequent appointment from the court, and that as .well in the case 
 of an administrator as of an executor.(o) 
 
 2. ADMINISTRATORS ARE OF SEVERAL KINDS : (1.) General admin- 
 istrators, or those who have the right to administer the whole of the 
 decedent's estate. (2.) Special administrators, or those who admin- 
 ister a part of an estate, or who act for a limited time or purpose. 
 
 General administrators are those who are appointed to administer 
 the estate of an intestate, or who are administrators cum testamento 
 annexo, with the will annexed. , 
 
 3. AN INTESTATE is one who dies leaving no will, and whose 
 assets are administered according to the law. On the death of a 
 person who has made no will, his real estate descends to his heirs, 
 subject to the payment of debts, after personal estate is exhausted, 
 while his personal estate is vested in such persons as may be legally 
 appointed by the proper officer or tribunal, in trust, to pay the 
 debts of the deceased, and distribute the surplus to those by law 
 entitled to it.(p) But such real estate is subject to the payment of 
 the debts of the intestate, in case the personal estate be insufficient 
 for that purpose. 
 
 Administration, cum testamento annexo, is granted when the de- 
 ceased has made a will and no executor is named in the same, or the 
 executor therein named shall die, refuse to act, or be otherwise dis- 
 qualified. In that case, letters of administration are granted to 
 some proper person, to which is attached a copy of the 
 
 (o) 3 Redf. 21-23. (p) 2 Bouv. Inst. 141. (q) Id. 144.
 
 CH. III.] INTESTATE ESTATES. 67 
 
 Appointment of administrators. 
 
 4. SPECIAL ADMINISTRATORS are also of several kinds; admin- 
 istrator de bonis non of goods not previously administered is 
 appointed when a former administrator has partially administered 
 and has died, or has not fully administered for any cause. His 
 duty is to complete the administration ; and, so far as the estate is 
 committed to him, he has all the power of a general administrator. 
 
 5. ADMINISTRATORS DE BONIS NON, cum testamento annexo, are 
 those who are appointed to complete the execution of a will when 
 the executor has commenced administering and dies, or otherwise 
 becomes incapable or is removed. 
 
 An administrator, durante minore aetate, acting during minority, 
 is appointed when the executor in a will is an infant and has not 
 legal capacity to execute the will. His authority is limited to the 
 time when the minor becomes capable, and is otherwise limited as to 
 his acts. 
 
 6. AN ADMINISTRATOR PENDENTS LITE, pending litigation, is one 
 appointed to do certain acts pending a contest in relation to the pro- 
 bate of a will, to the right of executorship, or the right to adminis- 
 ter, etc. Under the statute, he is called administrator to collect. 
 This administrator is but an officer of the court. His power ex- 
 tends to collecting and preserving the estate only. He may bring 
 suits.(r) 
 
 There are also administrators durante absentia, etc., during ab- 
 sence. The foregoing enumeration will be sufficient for the purpose 
 of this work.(s) 
 
 If the deceased leave no will, letters of administration will be 
 granted of his personal estate. 
 
 7. LETTERS OF ADMINISTRATION ARE A GRANT OF POWER, and 
 confer upon the grantee the qualified property in the personal estate 
 pertaining to the trust. They clothe the recipient with the absolute 
 title to this property. (t) 
 
 8. INTESTACY, PROOF OF, must be made before such a grant can 
 be made. Proof of the death of the intestate, too, must be pre- 
 sented, and these facts found to obtain the letters.(w) 
 
 Intestacy may be absolute or qualified. It is absolute where no 
 will is left ; qualified where the deceased has made a will as regards 
 
 (r) 11, R. S. 1874, p. 106. (t) See p. 83, infra, 
 
 (s) See Redf. on Wills, Administra- (u) %% 18, 20, R. S. 1Y4, p. 107. 
 tors.
 
 68 INTESTATE ESTATES. [CH. III. 
 
 Appointment of administrators. 
 
 his or her real estate only, (v) or has, by will, only disposed of his 
 foreign property.(w) 
 
 9. DEATH, proof of, may be by affidavit of a member of the family 
 generally, unless the point be contested ; and proof of intestacy in 
 the same manner.(a;) 
 
 10. THE ENGLISH STATUTES. The persons preferred under the 
 English statutes are " the next and most lawful friends of the de- 
 ceased " (y) " the widow of the same person deceased or to the next 
 of his kin, or both, as by the discretion of the same ordinary shall 
 be thought good."(z) 
 
 The husband oifemmes couverte, dying intestate, " may demand and 
 have administration of their rights, credits and other personal estate, 
 and recover and enjoy the same as they might have done before the 
 making of the 22 and 23 Car. II, ch. 10,"(a) and the relatives (not 
 next of kin) .having distributive shares, jure representation's under 
 the 22 and 23 Car. II, ch. 10, and 1 Jac. II, ch. 17, and also all per- 
 sons having a cognizable beneficial interest in the intestate's estate, 
 may become grantees on the relinquishment of the pot lores. 
 
 Our statute in this respect is founded on these English statutes, 
 and is as follows : 
 
 11. ADMINISTRATION shall be granted to THE HUSBAND upon the 
 goods and chattels of his wife, and to the widow or next of kin to 
 the intestate, or some of them, if they will accept the samfc and are 
 not disqualified ; but in all cases THE WIDOW SHALL HAVE PREFER- 
 ENCE ; and if no widow or other relative of the intestate applies 
 within sixty days from the death of the intestate, the county court 
 may grant administration to ANY CREDITOR who shall apply for the 
 same. If no creditor applies within fifteeen days next after the 
 lapse of sixty days, as aforesaid, administration may be granted to 
 ANY PERSON whom the county court may think will best manage 
 all the estate. In cases where the intestate is a non-resident, or 
 without a widow, next of kin or creditors in this State, but leaves 
 property within the estate, administration shall be granted to the 
 PUBLIC ADMINISTRATOR of the proper county; Provided, that no 
 administration shall, in any case, be granted until satisfactory proof 
 be made before the county court, to whom application, for that 
 
 () O'Dwyer v. Geare, 1 Swab. & (a;) See p. 76, infra. 
 
 Trist. 466 ; Jane Barden, I L. R., P. & (y) 31 Edw. Ill, ch. 11. 
 
 D. 325. (z) 21 Hen. VIII, cli. 5, 3. 
 
 nc) Coode, 1 L. R., P. & D. 449. (a) 29 Car. II, cli. 3, g 25.
 
 CH. III.] INTESTATE ESTATES. 69 
 
 Appointment of administrators. 
 
 purpose, is made, that the person in whose estate letters are requested 
 is dead and died intestate; And provided further, that no non-resi- 
 dent of this State shall be appointed administrator or allowed to act 
 as such.(J) 
 
 12. JDS REPRESENTATIONS. This right is oftentimes of great 
 importance, and may be discussed in view of the English authorities. 
 
 BACHELOR DECEASED, OR A WIDOWER without issue. His father 
 has this right exclusively, notwithstanding the deceased has left a 
 mother. The father would thus seem to be the sole next of kin of 
 the intestate. The jure mariti at common law and the statute 
 gives administration of his deceased wife's estate to THE HUSBAND. 
 
 If the intestate has left no widow, the intestate's children (if qual- 
 ified by age), or some or one of them, take the grant. They do so if 
 there be a widow and she relinquish, has died since the decease of 
 the intestate, or is excluded by the court as unworthy or disquali- 
 fied, or fails to act or qualify. 
 
 If the intestate has left neither widow, husband, father nor chil- 
 dren, the next of kin take administration. 
 
 Those persons only are to be ranked as next of kin of an intestate 
 who were such at the time of the intestate's death. 
 
 If the widow renounce, or has died since the decease of the intes- 
 tate, or is incapacitated or unworthy, administration will be granted 
 to the next of kin to the intestate. 
 
 If the husband renounce and consent, administration will be 
 granted to the next of kin to the intestate.(c) 
 
 If the intestate be a divorced woman, her next of kin take 
 administration. 
 
 The court will grant administration to a person nominated by all 
 the next of kin.(^) 
 
 Also to the husband of a sole next of kin, being the sole person 
 entitled to the estate, on her renouncing or being cited and not 
 appearing to the process.(e) 
 
 RECAPITULATION. It may be said that administration is granted 
 to: 
 
 (1.) Husband or wife ; 
 
 (2.) Child or children; 
 
 ('/) 18, R. S. 1874, p. 107. (e) Saynes v. Matthews, 1 Swab. & 
 
 (<.) Jnne Bett, 1 Swab. & Trist. 290. Trist. 462 ; Wenham v. Wenham, 6 
 
 (d) Farrett v. Browbill, 3 Swab. & Notes of Cases, 17. 
 Trist. 468.
 
 70 INTESTATE ESTATES. [CH. III. 
 
 Appointment of administrators. 
 
 (3.) Grandchild or grandchildren; 
 
 (4.) Great-grandchildren or other descendants; 
 
 (5.) Father; 
 
 (6.) Mother; 
 
 (7.) Brothers and sisters; 
 
 (8.) Grandfathers or grandmothers; 
 
 (9.) Nephews and nieces, uncles, aunts, great grandfathers or 
 great grandmothers. 
 
 (10.) Great nephews, great nieces, cousins german, great uncles, 
 great aunts, great grandfather's father, and so on, according to the 
 proximity of kindred ; all those in the same degree being equally 
 entitled.(/) 
 
 13. DEGREES OF CONSANGUINITY, ACCOKDING TO THE CIVIL LAW, 
 govern, except as modified by the law of descent, in these matters 
 and in the distribution. We give further on the tables made use of 
 frequently to illustrate the same,(/) 
 
 The granting of letters where there is a contest over the jure 
 representationis, under our statute may be aided, if not satisfactorily 
 settled, by reference to the English cases. No cases are to be found 
 in our reports where the right has been severely contested. (g) The 
 discretion of the court is broad, and its decision subject to review 
 only on appeal. (g) 
 
 14. THE PUBLIC ADMINISTRATOR, HOW APPOINTED. This func- 
 tionary is appointed by the governor of the State, by and with the 
 consent of the senate. He is to take an oath before entering upon 
 the duties of his office : 
 
 I do solemnly swear (or affirm & the case may be), that I will support the 
 constitution of the United States and of the State of Illinois, and that I will 
 faithfully discharge the duties of the office of public administrator of 
 county, according to the best of my ability. One is appointed for each 
 count 
 
 15. WHEN AN ESTATE MAT BE COMMITTED TO THE PUBLIC ADMIN- 
 ISTRATOR. Before the county court can obtain jurisdiction to com- 
 mit an estate to a public administrator it should affirmatively appear, 
 and be preserved of record, that there was not any relative or creditor 
 within the State to whom administration might be committed ; and 
 
 (/) See chap, x, infra. (h) 44, 45, R. S. 1874, p. 112 ; 
 
 (g) But see Schnell v. Chicago, 38 Cothran's Annotated Statutes,^. 60. 
 111. 382, and page 74, infra.
 
 CH. III.J INTESTATE ESTATES. 71 
 
 Appointment of administrators. 
 
 that the application was made by a party interested in the estate, (i) 
 The provisions of the first section of the act supplemental to the 
 statute of wills, of March 1, 1833, in relation to the appointment of 
 public administrators, is not restricted in its application to cases of 
 the death of resident proprietors of real estate, but embraces all 
 classes of persons, (j) A public administrator must give a bond and 
 take out letters of administration in each particular case, before he 
 can be invested with any control over an estate, (k) If the public 
 administrator neglect, for sixty days, to qualify after it becomes his 
 duty so to do, his office is thereby vacated and the governor is to fill, 
 the vacancy.* 
 
 16. GENERALLY the public administrator is to take such measures 
 as he may deem proper to protect and secure the effects of non-resi- 
 dent intestates, and resident intestates, who have neither relatives nor 
 creditors in the State, from waste and embezzlement until adminis- 
 tration is granted. (I) 
 
 17. THE EXPENSES of the public administrator are to be allowed 
 by the county court, and take preference of all other demands 
 against the estate, funeral expenses excepted.(Z) 
 
 He is to discharge the functions in particular cases in the same 
 manner and under the direction and supervision of the court as 
 any other administrator. 
 
 18. REMOVAL. The appearance within six months after grant of 
 letters to him, of the widow, next of kin or other persons entitled 
 thereto, is cause for the revocation of the grant to him and re-grant 
 to the persons entitled.(w) 
 
 19. He is to advertise after settlement for claims and demands, 
 and finally to pay over the balance as prescribed into the county 
 treasury, to be paid over whenever the persons entitled thereto shall 
 appear.(rc) 
 
 20. ADMINISTRATOR TO COLLECT. During any contest in relation 
 to the probate of any will, testament or codicil, before the same is 
 recorded, or until a will which may have once existed, but is 
 destroyed or concealed, is established, and the substance thereof com- 
 
 (t) 46, id.; Unknown Heirs of Lang- (1) 8 50, act April 1, 1872 
 
 worthy v. Baker, 23 111. 489 ; Schnett (m) 48, id. 
 
 v. Chicago, 28 id. 382. (n) See p. 278, infra. 
 
 (j) Bowies' Heirs v. Rouse, Adm'r, 3 * See act January 10, L. 1825, p. 70 ; 
 
 G'.lra. 409. R. S. 1833, p. 659 ; Laws 1843, p. 10 ; 
 
 '/.) Thomas, Adm'r, v. Adams. 5 56-62, R. S. 1845 act April 1 1872,^3 
 
 t.ilm. 319. 44-50. R. S. 1874, pp. 112, 113.
 
 72 INTESTATE ESTATES. [CH. III. 
 
 Appointment of administrators. 
 
 mitted to record, with proof thereupon taken, or during any contest 
 in regard to the right of executorship, or to administer the estate of 
 any person dying either testate or intestate, or whenever any other 
 contingency happens which is productive of great delay before letters 
 testamentary or of administration can be issued upon the estate of 
 such testator or intestate, to the person or persons having legal pref- 
 erence to the same, the county court may appoint any person or 
 persons as administrators, to collect and preserve the estate of any 
 such decedent, until probate of his will, or until administration of 
 his estate is granted, taking bond and security for the collection of 
 the estate, making an inventory thereof, and safe keeping and deliv- 
 ering up the same when thereunto required by the court, to the 
 proper executor or administrator, whenever they shall be admitted 
 and qualified as such.(o) 
 
 21. LETTERS TO COLLECT. The form of the letters to be granted 
 to the person Or persons so appointed to collect and preserve the 
 estate of the decedent, as aforesaid, shall be as follows, viz. : 
 
 The People of the State of Illinois, to att to whom these presents shall come, 
 greeting : 
 
 Know ye, that whereas A B, late of the county of , and State of Illinois, 
 deceased, as it is said, had, at his (or her) decease, personal property within 
 this State, the administration whereof cannot be immediately granted to the 
 persons by law entitled thereto, but which, if speedy care be not taken, may 
 be lost, destroyed or diminished ; to the end, therefore, that the same may be 
 preserved for those who shall appear to have a legal right or interest therein, 
 we do hereby request and authorize C D (and E F, if two shall be appointed), 
 of the county of , and State aforesaid, to collect and secure the said prop- 
 
 erty, wheresoever the same may be, in this State, whether it be goods, chattels, 
 debts or credits, and to make, or cause to be made, a true and perfect inventory 
 thereof, and to exhibit the same, with all convenient speed, to the county 
 court of the said county of , together with a reasonable account of his 
 
 collection, acts and doings in the premises aforesaid. 
 
 Witness, E F, clerk of the county court in and for said county of , and 
 
 the seal of said court, this day of , A. D. 18 
 
 E F, Clerk.(p) 
 
 22. BOND OF ADMINISTRATOR TO COLLECT. Before letters of 
 administration to collect shall be granted as aforesaid, the person or 
 persons so appointed shall give bond, with good and sufficient 
 security, to be approved by the court, in the following form, to wit : 
 
 (o) 11, R. S. 1874, p. 106. (p) 12, K. S. 16/4, p. 106.
 
 OH. III. ] INTESTATE ESTATES. 73 
 
 Appointment of administrators. 
 
 Know all men by these presents, that we, C D, E F and J K, of the county 
 of , and State of Illinois, are held and firmly bound unto the people of 
 
 the State of Illinois in the penal sum of dollars, current money of the 
 
 United States, for the payment of which, well and truly to be made and per- 
 formed, we bind ourselves, our heirs, executors and administrators, jointly, 
 severally and firmly, by these presents. 
 
 Witness our hands and seals, this day of , A. D. 18 
 
 The condition of the above obligation is such, that if the above-bounden C 
 D shall well and Lonestly discharge the duties appertaining to his appoint 
 ment as administrator, to collect of the estate of A B, late of the county of 
 deceased, shall make, or cause to be made, a true and perfect inventory of all 
 such goods, chattels, debts and credits of the said deceased, as shall come to 
 his or her possession or knowledge, and the same in due time return to the 
 county court of the proper county ; and shall also deliver to the person or per- 
 sons authorized by the said county court, as executors or administrators, to 
 receive the same, all such goods, chattels and personal estate as shall come to 
 his or her possession, as aforesaid, and shall, in general, perform such other 
 duties as shall be required of him (or them) by law, then the above obligation 
 to be void ; otherwise to remain in full force and virtue. 
 
 AVhich said bond shall be signed and sealed by such administrator 
 and his securities, and filed with the clerk of the county court and 
 spread upon the records. 
 
 23. OATH, ETC. Before any administrator to collect shall enter 
 upon the duties of his appointment he shall take and subscribe the 
 following oath or affirmation before the clerk of the county court, 
 to wit : 
 
 " I do solemnly swear (or affirm) that I will well and honestly discharge the 
 trust reposed in me as administrator to collect the estate of A B, deceased, 
 according to the tenor and effect of the letters granted to me by the county 
 court of the said county of , to the best of my knowledge and ability : so 
 
 help me God." 
 
 Which said oath shall be in writing, subscribed by the party 
 making it, and filed in the office of the clerk of the county court 
 before whom the same is taken.(r) 
 
 24. WHO MAY BE ADMINISTRATORS. 
 
 (1. ) The person appointed should be twenty-one years of age, and 
 iu all other respects legally competent. Infants and persons -non 
 compox mentis, of unsound minds, are incapable of executing the 
 trust. Until the enabling act of 1861, known as the married 
 woman's act, femmes convert were incapacitated. (/) 
 
 (/) Uul.i v. Buntin, 47 111. 396.
 
 74 INTESTAT15 ESTATES. [CH. Ill, 
 
 Appointment of administrators. 
 
 (2.) Of competent persons, the statute gives the following prefer- 
 ence over others : In case of the death of the wife, the husband has 
 the superior right to administer. In case of the death of the hus- 
 band, the widow has the preference; then the next of kin, after 
 whom creditors have the preference over those who are not relatives, 
 and also over the public administrator. When there are several 
 persons in the same degree, it is competent for the judge, in his 
 discretion, to select any one of them who will accept the appoint- 
 ment. If the widow or other relatives do not apply for letters within 
 sixty days after the intestate's death, any creditor applying may be 
 appointed administrator. If no such application be made by a 
 creditor within fifteen days after the lapse of the sixty days, then 
 administration may be granted by the court to such other person as 
 it may think will best manage the estate. The public administrator 
 has the exclusive right to administer when the intestate was a non- 
 resident of the State, and without a widow, next of kin, or creditor 
 in this State.* 
 
 (3.) WAIVEK. If the person having a prior right to letters of 
 administration does not avail himself of his preference within the 
 prescribed time, he is considered as having waived it, and the per- 
 sons next entitled may be appointed. A person having a preference 
 may renounce or waive it, which will have no different effect upon 
 others than to bring forward those who are next in order in law. 
 As the statute fixes the order of preference, the person first entitled 
 cannot renounce and introduce another in his or her place, to the 
 exclusion of those who have the next right to administration under 
 the statute. 
 
 (4.) Upon the death of the husband, who has survived his wife, 
 and partially administered upon her estate, his executor or adminis- 
 trator is entitled to be administrator de bonis non of unadminis- 
 tered goods of the wife, in preference to her next of kin. (s) But 
 qucsre, since the enabling act of 1861. 
 
 Granting letters of administration to the next of kin of the 
 deceased wife, where the husband has survived her and died, has 
 sometimes been done, but such administrator js regarded as the 
 trustee of the representatives of the husband. (t) The practice, 
 however, has been regretted by many judges,(w) and the practice 
 
 * See pp. 70, 71. supra. (t) Ettiott v. Collier, 3 Atk. o21. 
 
 (s) 4 Munf. Rep. 231. () Gill, in, etc., 1 Hagg. 341, 344.
 
 CH. III.] INTESTATE ESTATES. 75 
 
 Appointment of administrators. 
 
 seems finally abandoned, (i>) and administration is only granted to 
 the next of kin of the wife, when they were entitled to her effects 
 by settlement. (w) And a similar rule obtains in many of the 
 American States, (x) 
 
 (5.) By next of kin, is understood the nearest of blood. It is u 
 term applied, in the la\vs of descent and distribution, to the nearest 
 blood relatives of a deceased person, including only those who are 
 entitled to have, under the statute of distributions or descent. 
 
 (6.) RENUNCIATION OR RELINQUISHMENT. The person who has 
 the prior right to administer may renounce his or her claim. If 
 the person not specifically entitled to administer applies for letters 
 within seventy-five days after the decease of the intestate, he must 
 produce satisfactory evidence that the persons having the preference 
 (potiores) have relinquished or renounced it.(a) 
 
 RENUNCIATION. 
 
 STATE OF ILLINOIS, ) County court of County, 
 
 County. \ ss term, A. D. 18 . 
 
 To the Judge of said court : 
 
 I, A B, widow of C D, late of said county, deceased, do hereby relinquish 
 and renounce all right, claim and preference which I may have to administer 
 upon the estate of him, the said CD. A B. 
 
 Dated , 18 . 
 
 Witnesses : 
 
 As to whom letters of administration may be granted and 
 when.(i) 
 
 Personal property of a minor vests immediately in the next, of 
 kin, and there is no necessity of taking out letters of administra- 
 tion before instituting suit in equity against the sureties of a guar- 
 dian for a discovery and an account on the ground of mal-adminis- 
 'tration.(c) 
 
 Husband may administer on his wife's estate. (d) 
 
 (v) Fielder v. Hunger, 3 Hagg. 769 ; (a) % 19, R. S. 1874, p. 108. 
 1 Wms. Ex'rs, 360. (6) Schnell v. City of Chicago, 38 111. 
 
 (w) Bunchley v. Lynn, 9 Eng. L. & 382. 
 Eq. 583 ; S. C., 16 Jur. 292. (c) Lynch v. Eotan, 39 111. 15. 
 
 (x) Ward v. Thompson, 6 Gill. & J. (d) Townsend v. Radcliffe, 44 111. 446. 
 349 ; Sheldon v. Wright, 5 N. Y. 497 ; 
 Patterson v. High, 8 Ired. Eq. 52; 
 H'liiorn v. Hector, id. 55; Randall v. 
 trader, 17 Ala. 333.
 
 76 INTESTATE ESTATES. [CH. III. 
 
 Appointment of administrators. 
 
 Issue of a void marriage have no right to administer on the estate 
 of the deceased father, (e) 
 
 The lapse of seven years after the death of a decedent constitutes 
 a bar to granting letters of administration, but it may be removed 
 by showing circumstances which prevented an earlier application.(/) 
 
 Surviving partner of the intestate should not be appointed ad- 
 ministrator.^) Administration is not always necessary. (#) Although 
 letters of administration may be granted irregularly, yet the court 
 having jurisdiction, the person appointed is administrator de facto, 
 and the regularity of appointment cannot be questioned collater- 
 ally.^) 
 
 25. VENUE OR THE PROPER COUNTY. A grant of administration in 
 one country, confers on an administrator no title to the property of 
 the intestate situate in another country. He has no authority over, 
 nor is he responsible for, any effects of the estate that may be 
 beyond the jurisdiction appointing him. If he wishes to reach 
 property, or collect debts belonging to the estate in a foreign country, 
 he must there obtain letters of administration, and give such security 
 and become subject to such regulations as its laws may prescribe. (i) 
 
 THE PROPER COUNTY in which to take out letters of administra- 
 tion, in case of non-residents dying, leaving lands in this State, is 
 the county where such lands or a part of them lie.(/) 
 
 2C. PRACTICE HOW TO BE APPOINTED ADMINISTRATOR. Obtain 
 a petition and bond in blank from the clerk, fill them out, write on 
 the back of the petition the names of two persons to serve as 
 appraisers, file them with the clerk, pay his costs. Have at " least 
 two securities sworn, examined and accepted by the court. Present 
 the bond in a penalty of double the value of the estate to be admin- 
 istered, get it approved and take the oath of office. 
 
 Previous to the appointment of administrators, the proof of intes- 
 tacy should be made to the court. This proof may be made by any 
 person cognizant of the facts, usually by the person applying for 
 letters. This is indispensable to any action by the court. 
 
 (e) Myatt v. Myatt, 44 111. 473. (j) Bowies' Heirs v. Rouse, Adm'r, 4 
 
 (/) Fitzgerald v. Glancy, 49 111. 465. Gilrn. 409 ; see p. 14, supra. Where a 
 
 (g) Heward v. Slagle, 52 111. 336. court of probate of one county has ac 
 
 (A) Wight v. Wallbaum, 39 111. 555; quired a full jurisdiction of an estate, 
 
 Duffin v. Abbott, 48 id. 17. it retains that jurisdiction until the 
 
 (i) Judy v. Kelley, 11 111. 211; see estate shall be fully administered. 
 
 Harrison v. Nixon, % Peters, 483 ; 10 The People v. White, 11 111. 342. 
 
 id. 408 ; 4 How. 467, and Hid. ; Hill's 
 
 Oh. Pr. 23
 
 3H. III.J INTESTATE ESTATES. 77 
 
 Appointment of administrators. 
 
 It is the usual practice to present a petition to the court, praying 
 that letters be granted. The following form is in general use : 
 
 27. PETITION FOR LETTERS OF ADMINISTRATION. 
 
 In the matter of the estate of , ) p e /.vv on o f 
 
 deceased, for letters of administration, j 
 
 To the Hon. , Judge of the county court of county, in the State of 
 
 Illinois : 
 
 The petition of the undersigned respectfully represents that 
 
 late of the county of aforesaid, departed this life at , in said county 
 
 on or about the day of , A. D. 18 , leaving no last will and testa 
 
 ment, as far as your petitioners know or believe. 
 
 And this petitioner further shows that the said died seized and possessed 
 of real and personal estate, consisting chiefly of , all of said personal 
 
 estate being estimated to be worth about dollars ; that said deceased left him 
 surviving , his widow, and , his children, his only heirs ; that your 
 
 petitioner (being of said deceased, and) believing that the said estate 
 
 should be immediately administered, as well for the proper management of 
 said , as for prompt collection of assets by virtue of rights under 
 
 the statute, therefore pray that your honor will grant letters of administration 
 to , in the premises, upon taking the oath prescribed by the statute, 
 
 and entering into bond, in such sums and with securities as may be approved 
 by your honor. 
 
 28. PROOF OF INTESTACY.(& ) Before letters of administration 
 issue, the person applying must make and file an affidavit with the 
 proper county clerk, setting forth, as near as may be, the date of the 
 death of deceased, the probable amount of the personal estate, and 
 the names of the heirs and widow, if known.(Z) 
 
 AFFIDAVIT OF DEATH AND INTESTACY. 
 
 STATE OF ILLINOIS,) 
 
 County. [ * 
 
 , being duly sworn, deposeth and saith, That , late of , in 
 
 the county of , departed this life at , in said county, on or about 
 
 the day of , A. D. 18 , and that he died leaving no last will and 
 
 testament, to the best of knowledge and belief, and that deceased left 
 
 surviving him , his widow, and the following named children (as the case 
 
 may be) : 
 
 29. BOND. Upon this proof being made, the court appoints the 
 person, if entitled, administrator of the goods, chattels, rights, 
 credits and effects of the deceased, and requires him to enter into 
 
 (&) Laws of 1859, ^9, p. 95; 18, be made before the court; this may 
 20. R S. 1874, pp. 107, 108. be by affidavit. See Cothran's Aun'd 
 
 (I) The act of 1872 requires proof to Stats., 1880, p. 53.
 
 78 INTESTATE ESTATES. [CH. III. 
 
 Appointment of administrators. 
 
 bond in the sum of double the value of the estate, with good and 
 sufficient security, to be approved by the court. The judge is to 
 ascertain the value of the estate, in such manner as shall be satis- 
 factory to himself. If, at any time afterward, the court shall be 
 advised of the insufficiency of the bond, either as to the amount or 
 the security, the administrator may be summoned to show cause 
 why he should not give additional or other security ; and in case he 
 should refuse or fail to give such new bond, his letters may be 
 revoked, and administration granted to some other person, who will, 
 in effect, be administrator de bonis non. The form of the bond is 
 prescribed in the statute of wills, and must be substantially followed, 
 as near as the case will admit. The bond should be approved by 
 the judge, and filed in the clerk's office. The form of this bond is 
 as follows: 
 
 BOND BY ADMINISTRATOR. 
 
 KNOW ALL MEN BY THESE PRESENTS, that we, A B, C D and E F, of the 
 county of , and State of Illinois, are held and firmly bound unto the 
 
 people of the State of Illinois, in the penal sum of dojlars, current money 
 of the United States, which payment, well and truly to be made and performed, 
 we, and each of us, bind ourselves, our heirs, executors and administrators, 
 jointly, severally and firmly by these presents. 
 
 Witness our hands and seals, this day of , A. D. 18 
 
 The condition of the above obligation is such, that if the said A B, adminis- 
 trator of all and singular the goods and chattels, rights and credits of T K, 
 deceased, do make, or cause to be made, a true and perfect inventory of all and 
 singular the goods and chattels, rights and credits of the said deceased, which 
 shall come to the hands, possession or knowledge of him, the said A B, as 
 administrator, or to the hands of any person or persons for him ; and the same 
 so made, do exhibit, or cause to be exhibited, in the county court for the said 
 county of , agreeably to law ; and such goods and chattels, rights and 
 
 credits, do well and truly administer according to law, and all the rest of the 
 said goods and chattels, rights and credits, which shall be found remaining 
 upon the account of the said administrator, the same being first examined and 
 allowed by the court, shall deliver and pay unto such person or persons, re- 
 spectively, as may be legally entitled thereto ; and further, do make a just and 
 true account of all his actings and doings therein, when thereunto required by 
 the said court ; and if it shall appear that any last will and testament was 
 made by the deceased, and the same be proved in court, and letters testamen- 
 tary or of administration be obtained thereon, and the said A B do, in such 
 case, on being required thereto, render and deliver up the letters of adminis- 
 tration granted to him as aforesaid, and shall in general do and perform all 
 other acts which may at any time be required of him by law, then this obliga, 
 lion to be void ; otherwise to remain in full force and virtue.
 
 CH. 1IJ.J INTESTATE ESTATES. 79 
 
 Appointment of administrators. 
 
 This bond must be signed and sealed by the administrator and 
 his securities, and attested by the clerk and filed, (m) 
 
 30. LETTEKS OF ADMINISTRATION.* 
 
 STATE OP ILLINOIS, ) 
 County of . f ss 
 
 The People of the State of Illinois, to all to whom these presents shall come, 
 greeting : 
 
 Know ye, that whereas , late of the county of and State of Illi- 
 
 nois, died intestate, as it is said, on or about the day of , A. D. 18 , 
 
 having at the time of his decease duly made and published , personal 
 
 property in this State, which may be lost, destroyed or diminished in value, if 
 speedy care be not taken of the same ; to the end, therefore, that said property 
 may be collected and preserved for those who shall appear to have a legal 
 right or interest therein, we do hereby appoint , of the county of 
 
 and State of Illinois, administrator of all and singular the goods and chattels, 
 rights and credits, which were of the said at the time of h decease : 
 
 with full power and authority to secure and collect the said property and 
 debts wheresoever the same may be found in this State ; and in general to do 
 and perform all other acts, which now are or hereafter may be required of 
 by law. 
 
 Witness , clerk of the county court of said county, and the seal thereof, 
 at the of , in said county, this day of , A. D. 18 . 
 
 , Clerk. 
 STATE OF ILLINOIS, ) 
 
 County of . f 8 * 
 
 I, A B, clerk of the county court of county, in the State aforesaid, do 
 
 hereby certify that the within is a true and correct copy of the letters of admin- 
 istration, with will annexed, issued to , now in force, and properly on file 
 in my office. 
 
 In witness whereof, I have hereunto set my hand, and the seal of said 
 county court, this day of , A. D. 18 . 
 
 , Clerk. 
 
 31. THE OATH. The person appointed must take an oath to per- 
 form all acts required of him as administrator by law, public admin- 
 istrators excepted. It is as follows : 
 
 OATH OP ADMINISTRATOR. 
 
 I do solemnly swear (or affirm) that I will well and truly administer all and 
 singular the goods and chattels, rights, credits and effects of A B, deceased, 
 and pay all just claims and charges against his estate, so far as his goods., 
 chattels and effects shall extend, and the law charge me ; and that I will do and 
 perform all other acts required of me by law, to the best of my knowledge and 
 abilities.(Ti) 
 
 (m) See 23, R. S. 1874, p. 108. (n) See 22, id. 
 
 * These letters are to te arl anted mutatis mutnmli* to all cases of administration. 
 See 21, R. S. 1874, p. 108; Coihrau's Annotated R. S., p. 53.
 
 80 INTESTATE ESTATES. [CH. III. 
 
 Appointment of administrators. 
 
 Administrator with the will annexed, must enter into the required 
 bond: 
 
 32. BOND BY ADMINISTRATOR, WITH WILL ANNEXED. 
 
 KNOW ALL MEN BY THESE PRESENTS, that we, A B, C D, and E F, of the 
 county of , and State of Illinois, are held and firmly bound unto the peo- 
 
 ple of the State of Illinois, in the penal sum of dollars, current money of 
 
 the United States, which payment, well and truly to be made and performed, 
 we, and each of us, bind ourselves, our heirs, executors and administrators, 
 jointly, severally and firmly by these presents. 
 
 Witness our hands and seals, this day of , A. D. 18 . 
 
 The condition of the above obligation is such, that, if the above bounden A B, 
 executor of the last will and testament of G H, deceased (or administrator with 
 the will annexed, of G H, deceased, as the case may be), do make, or cause to be 
 made, a true and perfect inventory of all and singular the goods and chattels, 
 rights and credits, lands, tenements and hereditaments, and the rents and 
 profits issuing out of the same, of the said deceased, which have or shall come 
 to the hands, possession or knowledge of the said A B, or into the possession 
 of any other person for him, and the same so made do exhibit in the county 
 court for the said county of , as required by law ; and also make and 
 
 render a fair and just account of his actings and doings as such executor (or 
 administrator) to said court, when thereunto lawfully required ; and to well 
 and truly fulfill the duties enjoined on him in and by the said will ; and shall , 
 moreover, pay and deliver to the persons entitled thereto, all the legacies and 
 bequests contained in said will, so far aa the estate of the said testator will 
 thereunto extend, according to the value thereof, and as the law shall charge 
 him ; and shall, in general, do all other acts which may, from time to time, be 
 required of him by law, then this obligation to be void ; otherwise to remain 
 in full force and virtue.(o) 
 
 33. FORM OF OATH OF ADMINISTRATOR, WITH WILL ANNEXED. 
 
 I do solemnly swear (or affirm) that this writing contains the true last will 
 and testament of the within named A B, deceased, so far as I know or believe ; 
 and that I will well and truly execute the same, by paying first the debts and 
 then the legacies mentioned therein, as far as his goods and chattels will there- 
 unto extend, and the law charge me ; and that I will make a true and perfect 
 inventory of all such goods and chattels, rights and credits, as may come to my 
 hands or knowledge, belonging to the estate of the said deceased, and render a 
 fair and just account of my executorship, when thereunto required by law, to- 
 the best of my knowledge and abilities : so help me God.(^)) 
 
 34. ADDITIONAL BOND. Where a new bond is required to be 
 Efiven by the administrator, the formal part should be as prescribed 
 in other cases, with a condition thereto, in the form prescribed as 
 follows: (q) 
 
 (o) See 28. R. S. 1874. p. 108. (7) See 1, act 1879 ; Cothran's 
 
 (p) | 6, R. S. 1874, p. 105. Stats., p. 1016.
 
 CH. III.] INTESTATE ESTATES. til 
 
 Appointment of administrators. 
 
 The condition of the above obligation is such, that whereas the above 
 bounden A B, executor of the last will and testament of J K, deceased (or 
 administrator of the goods and chattels, rights and credits -of J K, deceased), 
 has heretofore executed a bond, payable to the people of the State of Illinois, 
 and conditioned for the discharge of his duties as executor (or administrator) 
 as aforesaid, which said bond bears date on the day of , A. D. 18 ; 
 
 and whereas, by an order of the county court, made on the day of , 
 
 A. D. 18 , other bond and security has been required of "the said executor (or 
 administrator). Now, therefore, if the said executor (or administrator) shall 
 well and truly have kept and performed, and shall well and truly keep and 
 perform, the condition of the bond first given as aforesaid, in all respects 
 according to law, and shall ill all respects have performed, and shall continue 
 to perform, the duties of his office as aforesaid, then this obligation to be void ; 
 otherwise to remain in full force and virtue. 
 
 Which bond must be signed, sealed, approved, filed and recorded 
 as above. 
 
 And in cases where the form prescribed by the statute does not 
 cover the particular state of facts, the statutory forms are to be 
 followed, so far as applicable, with such variations as will be adapted 
 to the particular case.(g') 
 
 35. DECISIONS RELATIVE TO SUCH BONDS. For a breach in 
 the condition of the bond of an executor, an action may be main- 
 tained against any one or more of the obligors of the bond. The 
 common law in this particular is changed by statute.(r) The 
 statute gives an action against the obligors in an executor's bond in 
 cases of neglect or refusal to comply with any of the provisions of 
 the law governing the conduct of the executor, as also in cases where 
 one or more of the covenants in his bond are violated.(r) For lia- 
 bility of security on administrator's bond, and for the conclusive 
 effect on security of an order of the probate court on the adminis- 
 trator to pay over moneys in his hands to the heir.(s) 
 
 MERGER. If a judgment has been entered on an executor's or 
 administrator's bond in the circuit court, it would merge the latter 
 in the former, and the judgment would stand as security for 
 any additional breaches of the bond. In such case, the remedy 
 would be to suggest a breach, and have damages assessed in that 
 court. (t) For effect of giving new bonds, or of revocation of the 
 letters of administration, on liabilities of securities to the old bond.(w) 
 
 (a) $ 34, R. S. 1874, p. 110. (f, People v. Summers, 16 111. 173. 
 
 (r) 'People v. Miller, 1 Scam. 83. (u) See The People v. Lott, 27 111..215 
 
 () See Ralston v. Wood, 15 111. 159. 
 
 11
 
 82 INTESTATE ESTATES. [CH. Ill, 
 
 Appointment of administrators. 
 
 36. FOREIGN EXECUTORS AND ADMINISTRATORS. When any per- 
 son has proved or may prove the last will and testament of any 
 deceased person, and taken on him the execution of said will, or has 
 obtained or may obtain administration of the estate of an intestate 
 m any State in the United States, or in any territory thereof, such 
 person shall be enabled to prosecute suits, to enforce claims of the 
 estate of the deceased, or to sell lands to pay debts, in any court in 
 this State, in the same manner as if letters testamentary or of 
 administration had been granted to him under the provisions of the 
 laws of this State ; Provided, that such person shall produce a copy 
 of the letters testamentary or of administration, authenticated in 
 the manner prescribed by the laws of congress of the United States 
 for authenticating the records of judicial acts in any one State, in 
 order to give them validity in other States; And provided, that said 
 executor or administrator shall give a bond for costs, as in oase of 
 other non-residents.(t>) 
 
 A CITIZEN OF ANOTHER STATE, in which administration has been 
 granted on an estate, may come to this State and cause administra- 
 tion to be taken out here, a claim to be allowed, and real estate sold 
 for its payment ; and, in such case, it is not necessary to show that 
 the personal estate in the other State has been exhausted.(w) 
 
 Nothing contained in the preceding section shall be so construed 
 as to apply to cases where administration is obtained upon the estate 
 of any intestate, nor where letters testamentary are granted in this 
 State ; and when, after any suit is commenced by any administrator 
 or executor, under the provisions of the preceding section, and 
 oefore final judgment thereon, administration is had, or execution 
 undertaken within this State, under the laws of the same, upon the 
 estate of any decedent, upon suggestion of such fact, entered of 
 record, the said resident, administrator or executor shall, upon 
 motion, be substituted as party to such suit ; and thereupon the 
 court shall proceed to hear and determine the same, as if it had been 
 originally instituted in the name of the said resident, executor or 
 administrator, and the benefits of the judgment, order or. decree- 
 shall inure to him, and be assets in his hands, (a;) 
 
 (o) % 42, act April 1, 1872; Reefer (w) Rosen thai v. Rerdck, 44 111. 202. 
 v. Mason, 36 111. 406; see page 294, (x) % 43, K. S. 1874, p. 112. 
 infra; Cothran's Stats., p. 59.
 
 OH. III. J INTESTATE ESTATES. 83 
 
 Powers and duties of administrators. 
 
 SECTION III. THE POWERS, DUTIES, EIGHTS AND LIABILITIES OF 
 ADMINISTRATORS. 
 
 1. The scope of the office of administrator. 
 
 2. Administrators are personal representatives of their intestates. 
 
 3. Decisions of the supreme court of the State of Illinois. 
 
 1. THE ADMINISTRATOR REPRESENTS THE PERSON of his intestate 
 in respect to his personal estate, the whole of which, generally speak- 
 ing, vests in the administrator on the grant of letters of adminis- 
 tration, and such grant has relation to the time of the intestate's 
 death, (y] 
 
 The interest which ihe administrator has in the personal estate is 
 only temporary, and qualified. He is intrusted merely with the 
 custody and distribution of the effects.^) 
 
 As the jurisdiction of the administrator extends only to the 
 " goods and chattels, rights and credits, which were of the person at 
 the time of his death," it may be important to know what the terms 
 " goods," " chattels, " " rights " and " credits " embrace. Goods 
 strictly consist of movable inanimate property, such as may attend 
 a man's person wherever he goes. The term chattels includes all 
 that is expressed by the word goods, and something more ; it in- 
 cludes all kinds of property, except the freehold or things which are 
 a parcel of it. (a) 
 
 RIGHTS AND CREDITS, as distinguished from chattels, are mostly 
 applicable to such matters as lie in action, as debts owing the intes- 
 tate, etc. The administrator succeeds to all such rights of action 
 against third persons as the intestate had at the time of his death, 
 or would have been entitled to if living. Some actions of a per- 
 sonal character die with the person, as slander, case for assault and 
 battery on the person of the intestate, false imprisonment, etc. By 
 actions for torts are meant actions on wrongs, not actions on con- 
 tract. 
 
 2. ADMINISTRATORS ARE THE REPRESENTATIVES OF THE PER 
 SONAL PROPERTY of the deceased, and not of his wrongs, except so 
 far as the tortious act complained of was beneficial to the estate. (b) 
 
 (y) Toller's Law of Ex'rs, 133. Com. (&) 2 Kent's Com. 416. See 1 Hill's 
 
 Dig. Adm., B. 10, 11; Coke Litt. 209. C. L., p. 899 ; 2 id., p. 228 ; 123. act 
 
 (z) Toller's Law of Ex'rs, 134. April 1, 1872 ; Smith v. Archer, 53 111. 
 
 (rt) 2 Bl. Com. 384 ; 1 Bouv. Inst ; see 241 ; 5$ 122, R. S. 1874, p. 126 ; Cotli- 
 
 chaps. vi and x, infra. rail's Anii'd Stats., 1880, p. 80.
 
 84- INTESTATE ESTATES. [CH. III. 
 
 Powers and duties of administrators. 
 3. DECISIONS OF THE SUPREME COURT OF THE STATE OF ILLINOIS. 
 
 These general principles are fully illustrated by exhaustive opinions 
 of the supreme court, to which we refer, and which we, assisted by 
 the digests, collate for the purpose of this work. 
 
 An administrator or an executor, so long as he retains his office, 
 is the sole representative of the personal estate of the deceased, (c) 
 
 THE ACTS OF AN EXECUTRIX, rightfully done in her official cha- 
 racter, are binding upon the estate which she represents. (d) 
 
 AN EXECUTOR, ADMINISTRATOR OR GUARDIAN may dispose of the 
 
 personal estate or assets of his testator, intestate or ward, to a bona 
 fide purchaser, for a valuable consideration, and the contract will be 
 obligatory, unless the purchaser knows, or has good reason to sus- 
 pect, that the sale is made with a design to misapply the funds, to 
 the prejudice of those interested in the estate ; and the purchaser is 
 not bound to see to the proper application of the money, (e) 
 
 MAY CALL UPON A FORMER ADMINISTRATOR TO ACCOUNT. Under 
 
 our statute, the authority of an administrator de bonis non to call 
 upon a former administrator, whose letters have been revoked, to 
 account fully for his administration of the estate, is clear and 
 unmistakable, (/ ) 
 
 AN ADMINISTRATOR DE BONIS NON, appointed to succeed an 
 administrator whose letters have been revoked, has authority to call 
 upon the removed administrator to account fully for his administra- 
 tion of the estate, and may maintain all necessary actions for the 
 purpose, and may, moreover, make him answer in damages for any 
 mal-administration of the estate. Aliter, where the former admin- 
 istrator dies.(<7) 
 
 AN ADMINISTRATOR DE BONIS NON has no authority to call on 
 the first administrator, or, in case of his decease, on his personal 
 representative, for an account of assets already administered. He 
 can only administer upon so much of the estate as remained unad- 
 ministered. The distributee or creditor of the first intestate should 
 prosecute the representatives of the first administrator for any waste 
 or misapplication of assets.(7i) 
 
 Whatever is honestly done by one acting in the character of an 
 
 (e) Gold v. Bailey, 44 111. 491. (g) Marsh v. The People, 15 111. 284 
 
 (d) Greene v. Grimshaw, 11 111. 389. (h) Rowan v. Kirkpatrick, 14 111. 1 ; 
 
 (e) McConnett v. Hod8on,2GtiIm. 640 ; Newhall v. Turney, id. 338; Marsh v. 
 Mnkepiece v. Moore 5 id. 474. The People, 15 id. 284. 
 
 (/) Duffin v. Abbott, 48 111. 17.
 
 CH. III.] INTESTATE ESTATES. 85 
 
 Powers and duties of administrators. 
 
 executor de son tort, and not contrary to law, is binding between the 
 parties. A settlement made in good faith with such an executor is 
 valid.(i) 
 
 In relation to covenants, the general rule is, that an administrator 
 has no power to charge the effects of his intestate by any contract 
 originating with himself ; and his contracts, in the course of his 
 administration, or for the debts of his intestate, render him liable de 
 bonis propriis.(j) 
 
 AN ADMHSTISTBATOR MAY ASSIGN a promissory note payable to 
 his intestate, so as to vest the legal interest in the assignee. (&) 
 
 TITLE TO PEBSONAL ESTATE. An administrator succeeds to the 
 legal title to the personal estate of his intestate ; and the title takes 
 effect by relation from the death of the latter, (k) 
 
 ASSIGNMENT OF A NOTE. One of several executors may assign a 
 promissory note made to the testator. (I) 
 
 Executors and administrators may assign notes made to the tes- 
 tator or intestate. And if an executor or administrator make or 
 indorse a note in his own name, adding thereto " as executor," " as 
 administrator," he would be personally responsible, (m) 
 
 An administrator may legally sell and transfer, at a discount, 
 negotiable paper, taken for the estate, before it falls due ; and allow- 
 ance to the assignee of such paper and payment thereof, within a 
 year of taking out letters, is good, provided all the transaction was 
 in good faith.(w) 
 
 If an administrator act honestly and prudently, though there be 
 a loss to, or a total diminution of, the intestate's estate, he will not 
 be liable.(o) 
 
 Where M., an administrator in Illinois, employed an agent in Vir- 
 ginia to collect a demand due the estate from a resident in Virginia, 
 and the agent collected the money and appropriated it to his own 
 use, and never accounted to M. for it. Held, that M. was not liable 
 for the loss of the money.(o) 
 
 A judgment cannot be rendered against an executor "to be 
 levied of the goods and chattels, rights and credits, lands and tene- 
 ments of the testator in the hands of the executor to be adminis- 
 tered." Judgment can only be rendered against the goods and 
 
 ({) Rttey v. Loughrey, 22 111. 99. (m)Walker v. Craig, 18 111. 125. 
 
 (j) Vincent v. Morrison, Breese, 175. (n) Id. 116. 
 
 (k) Makepeace v. Moore, 5 Gilm. 474. (o) Christy v. McBride, 1 Scam. 75. 
 (f) Dwighl v. Newell, 15 111. 333.
 
 86 INTESTATE ESTATES. [CH. III. 
 
 Powers and duties of administrators. 
 
 chattels of the testator, in the hands of the executor to be adminis- 
 tered. Neither the lands nor the credits of a deceased person can 
 be reached by execution.(^) 
 
 INTEBEST. An administrator is chargeable with interest whenever 
 he receives it, uses the money, or unreasonably retains it.( q) 
 
 DILIGENCE. Administrators who have acted in good faith in the 
 collection of debts due their intestates, exercising proper vigilance, 
 directed by a reasonable judgment, ought not to be charged with 
 debts they may have failed to collector) 
 
 One of several administrators is liable for the acts done by either, 
 while they all continue in office. This liability ceases to attach to 
 such of them as are removed from office for all acts done after the 
 removaL(s) 
 
 A person who is at the same time administrator and guardian, is 
 not allowed to apply the funds received in one capacity to the inter- 
 ests of the other. (t) 
 
 THEIE EIGHTS. An administrator has the legal title to the per- 
 sonal estate of the decedent, as a trustee and for a particular pur- 
 pose ; but when the debts are paid the residue of such estate belongs 
 to the heir.(w) 
 
 COMPKOMISE OF DEBTS. If an administrator settles a claim 
 against a debtor to the estate in good faith, his action cannot be 
 called in question by a subsequent administrator. (t?) 
 
 The administrator has power to compromise or stipulate for the 
 dismissal of a suit brought to recover damages for the death of 
 intestate, caused by negligence, (w) 
 
 THEIK DUTIES. It is the duty of administrators to interpose the 
 presumptions and positive limitations of law against claims pre- 
 sented, for allowance ; but their omission to do so will not entirely 
 debar others affected by the neglect from all protection, (z) 
 
 SALE MUST BE PUBLIC. An administrator has no power to sell 
 the personal property of his intestate at private sale.(y) 
 
 FOE PKOFITS. An administrator, like a trustee, must account to 
 the estate for any profits arising out of the use of its funds; and he 
 
 (p) Greenwood v. Spttler, 2 Scam. 502. (w) Henchey v. City of Chicago, 41 
 
 (q) Rowan v. Kirkpatrick, 14 111. 1. 111. 136. 
 
 (r) Id. 2. (a;) McCoy v. Morrow, 18 111. 519 ; 
 
 (*) Mnrnih v. The People, 15 111. 284. Unknown Heirs of Langworthy v. 
 
 (t) Stillman v. Young, 16 111. 318. Baker, 23 id. 484. 
 
 (u) Lewis v. Lyons, 13 111. 117. (y) Burnap v. Dennis, 3 Scam. 478. 
 
 (0) Short v. Johnson, 25 111. 489.
 
 UH. III.] INTESTATE ESTATES. 87 
 
 Powers and duties of administrators. 
 
 should satisfy claims with the smallest amount of assets, as by the 
 purchase of bank bills at a discount. And his reasonable labor and 
 expenses for that object, or interest upon the use of his own funds, 
 should be allowed against the estate, (z) 
 
 NEGLECT TO DEFEND SUKETIES LIABLE. If the administrator 
 has been guilty of laches in not defending a suit at law, the remedy 
 is on his bond.(a) 
 
 Foreign administrators cannot sue in the courts of this State, (b) 
 
 The law is now changed so as to allow foreign executors and ad- 
 ministrators to sue in the courts of this State.(c) 
 
 The act of the legislature giving foreign administrators the power 
 " to prosecute suits in any court in this State," includes the power 
 to sue out an execution on a judgment rendered in favor of the 
 intestate in his life-time. (d) 
 
 How MADE A PAKTY. For mode of procedure to make an execu- 
 tor or administrator a party on the death of plaintiff in an attach- 
 ment suit, see Singleton v. Wofford.(e) 
 
 PRACTICE. A claim against the estate of the decedent should be 
 presented either on the notice of his representative or of the claim- 
 ant ; and, if not allowed at the time fixed for hearing, should be 
 continued to a day certain or withdrawn, so that the claim shall 
 not be allowed against the estate without giving the executor or 
 administrator an opportunity to appear and contest. (/) 
 
 Administrators of the estate of persons who died before the act 
 of 1823, regulating administrations, etc., cannot be compelled to pay 
 claims against the estate according to that act, but they are gov- 
 erned by the law as it existed before that act, in respect to judg- 
 ments obtained against the person in his life-time, upon whose 
 estate they are administering, (g) 
 
 If one of two administrators loans the money of the estate, he 
 does it upon his own responsibility, and an action to recover it 
 should be brought in his own name alone. (//) 
 
 If an executor fail or refuse to comply with the order of the 
 court of probate, requiring him to pay over to the heirs and devi- 
 
 (z) Wingate v. Pool, 25 111. 118. (/) Propst v. Meadows, 13 111. 157 ; 
 
 (a) Gold v. Bailey, 44 111. 491. Reitzell v. Miller, 25 id. 67. 
 
 (6) The People v. Peck, 3 Scam. 118. (g) Jones' Adm'rs v. Bond, Breese, 
 
 (C) 42, act April 1, 1872. 223. 
 
 ((f) Keefer v. Mason, 36 111. 406. (K) Thornton v. Smiley, Breese, 13. 
 
 () 3 Scam. 577.
 
 88 INTESTATE ESTATES. [CH. III. 
 
 Powers and duties of administrators. 
 
 sees their distributive portions of the estate, the remedy is by 
 attachment for contempt of court.(i) 
 
 Notwithstanding the act of 1823, regulating the distribution of 
 an intestate's estate, a judgment obtained before that time against 
 the intestate in his life-time is entitled to preference in the payment 
 of his debts out of his personal estate, even if the estate be insol- 
 vent^ /) 
 
 APPEARANCE BY HEIRS. Heirs appearing before the county 
 court, by their guardian, to contest the validity of claims against 
 the estate of their ancestor, should defend in the name of the ad- 
 ministrator; and an appeal to the circuit court, if taken by the 
 opposite party, should bring the administrator only into that court, 
 and the heirs may equally contest there.(&) 
 
 Whatever defense an administrator may be allowed to make 
 against the claims or demands of creditors, may be made by any 
 person interested in the realty against an application of an adminis- 
 trator to sell such realty for the payment of the debts of the intes- 
 tate.^) 
 
 Heirs dissatisfied with the settlement of the estate by administra- 
 tors should proceed by bill in chancery.(w) 
 
 FOBUM. The creditor of an estate is not compelled to present his 
 claim to the probate court for allowance, but may resort to the cir- 
 cuit court in the first instance if that court has jurisdiction. (n) 
 
 KEMOVAL OF INCUMBRANCE. The administrator can apply for 
 an order to sell the real estate to pay debts, but he must take the 
 estate as he finds it; he cannot bring suit to remove an incum- 
 brance.(o) The act of 1857 does not change the law.(jp) 
 
 When a person renders service for the benefit of the estate of a 
 decedent, at the instance of the executrix thereof, his claim for com- 
 pensation is not a personal demand against the executrix ; but, on 
 the death of the executrix, may be enforced against the estate, for 
 the benefit of which the services were rendered.(y) 
 
 WARRANTY. If an administrator takes upon himself to warrant 
 personal property sold by him, the maker of the note given for 
 
 (t) Piggott v. Barney, 1 Scam. 145. (n) RosentJial v. Magee, 41 111. 370 ; 
 
 (j) Woodworth v. Paine's Adm'fs, Wells v. Miller, 45 id. 33. 
 
 Breese, 294. (o) PJielps v. FunkTtouser, 39 111. 401. 
 
 (k) Motsinger v. Wolf, 16 HI. 71. (p) Cutter v. Thompson, 51 111. 390 ; 
 
 (f) Dorman v. Lane, Adm'r, 1 id. 531 ; Gridley v. Watson, 53 id. 186. 
 
 Gilm. 143. ( q) Greene v. Grimshaw, 11 111. 389. 
 
 (m) Heward v. Slagle, 52 111. 336.
 
 CH. III.] INTESTATE ESTATES. 89 
 
 Powers and duties of administrators. 
 
 such property may 'show failure of consideration under the war- 
 ran ty.(r) 
 
 Cannot submit a claim against the estate to arbitration.(s) 
 
 PAROL CONTRACT WITH INTESTATE. In an action against the ad- 
 ministratrix on such a contract, plaintiff must show a readiness and 
 willingness on his part to perform, and also a demand on defendant 
 for the property contracted to be delivered.^) 
 
 DEVASTA VIT. A judgment cannot be rendered against a security 
 in an administration bond, nor is he liable to an action until a de- 
 vastavit by a suit has first been established against the administra- 
 tor^ u) 
 
 The statute authorizes several actions on an executor's bond.(v) 
 
 Where administrators have given several bonds, and there is a 
 complication of interests, resulting from the death of one of the 
 administrators, and of some of the sureties, whose legal representa- 
 tives cannot be made parties in a joint action at law upon the 
 bonds, a court of equity will entertain jurisdiction. (w) 
 
 [This rule is now changed by the act of 1829. Purples' Statutes, 
 p. 1218, 126; Scates' Comp., p. 1207.(z)) 
 
 It is not necessary to establish a devastavit previous to instituting 
 a suit on an executor's bond.(^) 
 
 In an action on a judgment against administrators, suggesting a 
 devastavit, a judgment by default admits the truth of the allega- 
 tions in the declaration, and a jury of inquiry is not necessary to 
 ascertain the damages, (z) 
 
 The time of the devastavit of an administrator is properly ascer- 
 tained from the return of nulla bona to the execution issued against 
 him in his representative character, (a) 
 
 EVIDENCE THEREOF. Where an administrator, on the sale of 
 property belonging to the estate, received the notes of the pur- 
 chasers with security, and it resulted that the principals and sureties 
 were insolvent, this will show, prima facie, that the administrator 
 had neglected his duty, and was guilty of a devastavit. (b) 
 
 (r) Welch, Adm'r, v. HoytM HI. 117. (w) The People v. Lott, 27 111. 215. 
 
 (*) Clark v. Hogle, 52 111. 427 ; Beit- (*) 25, R. S. 1874, p. 109. 
 
 zett v. Miller, 25 id. 67. (y) The People v. Miller, I Scam. 83. 
 
 (t) Pahlman v. King, 49 111. 266. (z) Greenup v. Woodworth, Breese, 
 
 (u) Biggs v. Postlewait, Breese, 154. 179. 
 
 (v) The People, use, v. Randolph, 24 (a) Greenup v. Brown, Breese, 193. 
 
 111. 324. (6) Gurry v. The People, 54 111. 263. 
 
 12
 
 90 1XTESTATE ESTATES. [CH. HI. 
 
 Powers and duties of administrators. 
 
 WHO MAY HAVE A REMEDY THEREFOR. Irt an action upon an 
 administrator's bond, at the instance of a creditor, a prima facie 
 right of recovery exists, if it appears that the person for whose use 
 the suit is brought holds a claim against the estate, and that the 
 administrator has been guilty of a devastavit to the extent of such 
 claim. It is not essential to such right of recovery that the creditor 
 shall prove there were no assets to which he could resort for the 
 satisfaction of his claim. (b) 
 
 LIMITATIONS. A claim was filed by a creditor on the day ap- 
 pointed by the administrator, and within two years after his letters 
 were granted. Held, a proper exhibition of the claim, and not 
 barred, though, after the lapse of two terms, it was dropped from the 
 docket for a period of three years before final adjudication.(c) 
 
 The running of the two years' limitation may still be prevented 
 by presenting the claim or account to the administrator, notwith- 
 standing the act of February 21, 1859.(d) 
 
 The claim having been presented to the administrator within two 
 years, the judgment should direct payment to be made in due 
 course of administration, though the suit was not commenced 
 within the two years.(e) 
 
 Where an administratrix, in that capacity, loans money belonging 
 to the estate to her husband by a subsequent marriage, for the use 
 and benefit of her children by the former husband, until the 
 youngest shall have reached majority, such children cannot main- 
 tain an action for the recovery of the money so loaned upon the 
 majority of the youngest until after an order for distribution has 
 been obtained.(/) 
 
 And after the order of distribution the action should be brought 
 against the administratrix.(/) 
 
 And the creditor can recover costs against the estate in the cir- 
 cuit court, after the term appointed for prosecuting claims in the 
 probate court, upon the expiration of a year from the taking out 
 letters of administration, if he prove a demand before the com- 
 mencement of suit.(#) 
 
 Delay of three years by a near relative in presenting a claim 
 
 (6) Curry v. The People, 54 111. 263. (e) Wells v. Miller, 45 111. 33. 
 (c} Barberov. Thurman,49IH.283. (f)Neubrecht v. Rantmeyer, 50 111. 
 
 (^Wells v. Miller, 45 111. 33 ; Mason 74. 
 v. Tiffany, id. 392. (g) Rosenthal v. Magee, 41 111. 370.
 
 CH. III.] INTESTATE ESTATES. 91 
 
 Powers and duties of administrators. 
 
 against an estate may, under certain circumstances, be considered 
 by the jury in determining the character of the claim. (h) 
 
 EEYIVAL OF JUDGMENT. It is erroneous, in reviving a judgment 
 against an administrator, to award an execution against the goods 
 and chattels, lands and tenements of the intestate. The proper 
 order would be to revive the judgment against the administrator, to 
 be paid in the due course of administration. (i) 
 
 An order of a probate court against an administrator, ordering 
 him to pay over money in his hands to an heir, is conclusive not 
 only on the administrator, but on his sureties, though the latter 
 were not parties to the proceedings. And if such order is not com- 
 plied with, the person in whose favor it is made may have an action 
 against the administrator and his sureties on their bond. Such suit 
 on the bond is a collateral action, founded as well upon the judg- 
 ment as the bond ; and, where such judgment is offered in evidence, 
 it cannot be inquired into except for fraud. It is as conclusive as 
 any other judgment.(y) 
 
 A judgment rendered in the courts of a sister State against an 
 administrator deriving his authority under and by force of the laws 
 of this State, who voluntarily entered his appearance to the action 
 in which such judgment was pronounced, cannot be enforced in our 
 courts against the estate represented by such administrator. A 
 judgment rendered under such circumstances is a nullity here, and 
 the creditor must resort to his action upon the original contract.(&) 
 
 JUDGMENT NOT AN ADMISSION OF ASSETS. A judgment in this 
 State against an administrator is not an admission of assets suffi- 
 cient to satisfy the debt ; its only effect is to establish a debt against 
 the estate, to be paid in due course of administration. (&) 
 
 But a prior judgment rendered on the claim in the probate court 
 is not affected by the void judgment rendered in the circuit court 
 on the award. (?) 
 
 Judgment against an administrator binds the personal estate.(m) 
 
 Judgment for costs not to be rendered against the administrator 
 personally.(w) 
 
 A judgment for costs cannot be rendered against an administra- 
 
 (h) O'Connor v. O'Connor, 52 111. 316. (J) Clark v. Hogle, 52 111. 427. 
 
 (i) lurney v. Gates, 12 111. 141. (m) Gold v. Bailey, 44 111. 491. 
 
 ( f) Ralston v. Wood, 15 111. 159. (ri) Hunter v. Bilyeu, 39 111. 368. 
 (*) Judy v. Kelley, 11 111. 211.
 
 92 INTESTATE ESTATES. [CH. IIL 
 
 Powers and duties of administrators. 
 
 tor iii his personal character, but must be rendered against him in 
 his representative character.(o) 
 
 The judgment against an administrator, upon foreclosure of a 
 mortgage, should be such a judgment as could have been rendered 
 against the mortgagor had he been living.( p) 
 
 A circuit court has no authority to render a judgment against the 
 lands of an intestate in a proceeding in personam against his ad- 
 ministrator, (q) 
 
 It is erroneous to award execution on a judgment against an 
 estate of one deceased, which is founded on a claim exhibited and 
 allowed against it. The proper judgment in such case is for the 
 amount of the debt, and costs to be paid in the due course of ad- 
 ministration.^) 
 
 SCIRE FACIAS. A creditor having a judgment against an admin 
 istrator cannot sue out a scire facias upon the judgment against an 
 heir, to make it chargeable upon the land.(s) 
 
 An appeal bond by an executor, conditioned that he shall pay the 
 debt in due course of administration, is good.(^) 
 
 ASSETS; WHAT ARE. The amount recovered in the statutory 
 action, where the death of a person is caused by the wrongful act, 
 default or neglect of another, is not to be treated as part of the 
 estate of the deceased ; creditors do not get any benefit from it. It 
 is to be distributed among those to whom the personal estate would 
 descend in the absence of a will according to the statute of de- 
 scent.^) 
 
 An administrator takes no estate, right, title or interest in realty. 
 He takes only a power.(v) 
 
 Accruing rent descends to the heirs, and the administrator has no 
 concern with it.(w) 
 
 Any saving or accumulations by the administrator, in the man- 
 agement of the estate, becomes assets, and liable to distribution.^) 
 
 For a full discussion of the rights of the widow, and the conse- 
 
 (0) Church v. Jewett, 1 Scam. 55 ; (s) Stone v. Wood, 16 111. 177. 
 Gfibbons v. Johnson, 3 id. 61. (t) Mason v. Johnson, 24 111. 159. 
 
 (p) Swiggart v. Harbor, 4 Scam. 864. (u) City of Chicago v. Major, 18 111 
 
 (q) McDowell v. Wight, 4 Scam. 349. 
 403. (v) Smith v. McConnell, 17 111. 135. 
 
 (r) Welch, Adm'r, v. Wallace, 3 Gilm. (w) Foltz v. Prouse, 17 111. 487. See 
 
 490 ; Peck, Adm'r, v. Stevens, 5 id. 127 ; 1 Hill's C. L. 463. 
 Judy v. Kelley, 11 111. 211. (x)Wingate v. Pool, 25 111. 118.
 
 CH. III.] INTESTATE ESTATES. 93 
 
 Powers and duties of administrators. 
 
 quences of her electing to take their value, instead of the specific 
 articles allowed by law, see Cruce v. Cruce.(y} 
 
 Where an administrator has purchased a CHATTEL REAL belonging 
 to his intestate in his life-time, and charged himself with the rents 
 and profits thereof, and treated it as assets of the estate, he will not 
 be allowed afterward to claim it as his own property, but must 
 account for it as assets, (z) 
 
 It is his duty to reduce the assets to money, and report the 
 same to the court, to be paid upon debts and distributed among the 
 parties entitled to receive it.(z) 
 
 If an executor loan the money of the estate without authority in 
 the will, it operates as a devastavit, and creditors, legatees or dis- 
 tributees may sue and recover on his bond.(z) 
 
 For necessary food and clothing furnished by an executor for the 
 support of minor heirs having no guardian, he should be allowed 
 to charge a reasonable compensation.(a) 
 
 ADMINISTRATOR OF DECEASED PARTNERS; SURVIVORS; RELA- 
 TIVE RIGHTS. Primarily, the administrator has nothing to do with 
 the firm assets and debts. The surviving partners take the exclu- 
 sive title to the former for the payment of the latter. If any 
 assets remain in their hands after the payment of liabilities, the 
 administrator takes the distributive share of the deceased.() 
 
 But if the survivors are guilty of delay or waste in the settle- 
 ment of the firm accounts, the administrator may interpose in 
 equity for an account and the appointment of a receiver to adjust 
 and settle the partnership matters.(#) 
 
 Rent falling due after lessor's death does not go to the executor 
 or administrator, but to the heir.(e) 
 
 Decedent, while taking lumber by river from Illinois to Tennes- 
 see, died on the Missouri shore. Held, that, as decedent's domicile 
 was in this State, and as he had no other assets in Missouri or 
 Tennessee, and that, as the persons alleged to have taken wrongful 
 possession of the lumber resided in this State, the administratrix of 
 decedent could sue such persons here.(^) 
 
 The personal assets of an estate become legally vested in the ad- 
 ministrator, and the heirs cannot maintain an action at law, in 
 
 (?/) 21 111. 46. (b) Miller v. Jones, 39 111. 54. 
 
 (z)Wittenborg v. Murphy, 36 111. 344. (c) Dixon v. Nicwlls, 39 111. 372. 
 (a) Johnston v. Maples, 49 111. 101. (d) Wells v. Miller, 45 111. 382.
 
 94 INTESTATE ESTATES. [CH. IIL 
 
 Powers and duties of administrators. 
 
 their own right, for any portion of such personal estate, until an 
 order of court for distribution has been obtained.(e) 
 
 PERSONAL ESTATE. Money due a testator at his decease, upon 
 contracts for the sale of real estate, made by him during his life, 
 no deed having been executed, are to be considered a part of his 
 personal estate, the same as other debts due the estate, and the fact 
 that some of the contracts were liable to forfeiture at the death of 
 the testator can make no difference, since the testator did not 
 assert such right. (/) 
 
 LIABILITY OF SURETIES. Money paid to an administrator by a 
 railroad company, upon whose road the intestate was killed, being 
 paid as compensation therefor, is not assets in the hands of the ad- 
 ministrator which he is bound to administer; and the sureties on the 
 administrator's bond are responsible for its proper distribution. (//) 
 
 An administrator cannot affect the title of the heirs to real estate, 
 descended to them from the intestate, except by a sale authorized by 
 an order of court. He has no power to admit away the title to real 
 estate which is held by heirs under the law of descent.(^) 
 
 As to limitation of the administrator's power over the real estate 
 of decedent. (i) 
 
 The administrator has no power, nor is he bound to protect the 
 realty in any manner, not even to the extent of paying the taxes. ( t /) 
 
 CHANCERY JURISDICTION. The thirty-fourth section of the con- 
 veyance act, which authorizes the executors, administrators or heirs 
 of any deceased person, who shall have made a contract in writing, 
 in his life-time, for the conveyance of land, to apply to a court of 
 chancery for a decree that the conveyance be made, embraces only 
 those cases where the purchase-money has been fully paid, and has 
 no reference to a case where the consideration remains wholly or in 
 part unpaid ; yet a court of chancery will entertain a bill at the suit 
 of the executors or administrators, and heirs or devisees of such 
 vendor, where the consideration has not been paid, for the twofold 
 purpose of enforcing the payment of the money and authorizing a 
 conveyance of the land.(&) 
 
 MISTAKE. An administrator has no authority to apply to a court 
 
 (e) Neubrecht v. Santmeyer, 50 111. (i) Phelps v. Fankhouser, 39 111. 401 ; 
 
 74. Gridley v. Watson, 53 id. 186; Shoe- 
 
 (/) Skinner v. Newberry, 51 111. 203. mate v. Lockridqe, id. 503. 
 (J7) Goltra v. The People, 53 111. 224. (j) Phelps v. Funkhouser, 39 111. 401 
 (K) Walbridge v. Day, 31 111. 379. (K) Burger v. Potter, 32 111. 66.
 
 CH. III.] INTESTATE ESTATES. 95 
 
 Powers and duties of administrators. 
 
 of chancery to reform a deed, made to his intestate in his life-time, 
 on the allegation that there was a mistake therein in the description 
 of the land intended to be conveyed.(Z) 
 
 VOLUNTARY DEED; FRAUD. An administrator cannot avoid a 
 voluntary deed of his intestate, nor can he take advantage of a 
 fraudulent conveyance made by his intestate.(ra) 
 
 An administrator cannot, in equity, obtain relief by the removal 
 of adverse apparent titles to the lands of his intestate, or convert 
 an equitable into a legal title.(%) 
 
 Where an administrator accepted from a debtor of the estate a 
 mortgage upon land of which the intestate died seized in fee simple, 
 and the title to which had fully vested in the heirs by descent, and 
 a foreclosure and sale of the premises was had under such mortgage : 
 Held, that these proceedings on the part of the administrator, while 
 they were an admission by him that the mortgagor had some title in 
 the premises, in nowise affected the title of the heirs, which they 
 took by inheritance. Nor would such proceedings on the part of 
 the administrator operate to estop a subsequent administrator of 
 the same estate from purchasing the title of the heirs to these prem- 
 ises, and holding it, at least against the right of purchasers derived 
 under such mortgage. (o) 
 
 By the statute of 1825, an executor or administrator was author- 
 ized to relinquish a part, and obtain a patent for the residue, of any 
 tract of land which might have been purchased by the testator or 
 intestate, and for which full payment might not have been made, 
 whenever that could be done under the acts of congress ; and the 
 executor or administrator was likewise authorized to sell and assign 
 a certificate of purchase of land partly paid for, when such sale 
 might be necessary in order to pay the debts of the deceased. (p) 
 
 A, being at the point of death, made his will, directing, among 
 other things, how his real estate should be disposed of, but omitted 
 to name an executor. B was duly appointed administrator with the 
 will annexed, who, supposing that he had authority, sold the land 
 and executed a deed with intent to convey the fee. In an action 
 of ejectment against the grantee, brought by the heirs of the testa- 
 tor, this deed was offered in evidence and excluded by the coiu't 
 
 (1) Shoemate v. Lockridge, 53 111. 503. Gridley v. Watson, 53 id. 186 ; Shoe- 
 
 (m) Ghoteau v. Jones, 11 111. 300 ; mate v. Lockridge, id. 503. 
 
 Alexander v. Tarns, 13 id. 221. (o) Walbridge v. Day, 31 111. 370. 
 
 \ji) Smith v. McConnell, 17 111. 135 ; (p) Prevo v. Walters, 4 Scam. 35.
 
 UO INTESTATE ESTATES. [CH. III. 
 
 Resignation and removal 
 
 Held, that, as the administrator had not the power to sell and con- 
 vey by virtue of the will, either at common law or hy the provisions 
 of our statute of wills, the deed was properly excluded.^) 
 
 PURCHASING AT THEIR OWN SALE. As to effect in law, also in 
 equity, (r) 
 
 As to acquiescence of the heirs in such a purchase by the admin- 
 istrator, and delay in setting the sale aside. (s) 
 
 A court of chancery will not compel an heir to pay over money 
 to an administrator when such administrator has no debts to pay, 
 nor any use to make of it connected with the estate. (t) 
 
 SECTION IV. RESIGNATION AND REMOVAL OF EXECUTORS AND AD- 
 MINISTRATORS. 
 
 1. The statute of 1872. 
 
 2. Petition. 
 
 3. Order. 
 
 4. Notice. 
 
 5. Resignation. 
 
 6. Record. 
 
 7. Notice to security. 
 
 8. Assent. 
 
 9. Removal and revocation, grounds of. 
 10. Petition. 
 
 1. THE STATUTE OF 1872. The repealed statute required a notice 
 to be published before presenting and asking for the acceptance of 
 a resignation by an executor or administrator. The act of 1872 (u) 
 provides " that the executor or administrator may, upon his peti- 
 tion, and upon giving such notice to the legatees, devisees or dis- 
 tributees as the court shall direct, be allowed to resign his trust 
 when it appears to the county court to be proper." 
 
 2. PETITION. 
 
 In the matter of the estate of) County court of county, 
 
 A B, deceased. y term, A. D. 18 . 
 
 To the Hon. , Judge of said court : 
 
 Your petitioner respectfully shows that he is about to remove from the 
 
 (q) Hall v. Irwin, 2 Gilm. 176. (*) Miles v. Wheeler, 43 111. 123. 
 
 (r) Lockwood v. Mills, 39 111. 603 ; (t) Lewis v. Lyons, 13 111. 117. 
 
 Miles v. Wheeler, 43 id. 123; Kruse v. (u) % 40, R. S. 1874, p. 111. 
 Steffens, 47 id. 112.
 
 CH. III.] INTESTATE ESTATES. 97 
 
 Of executors and administrators. 
 
 State, and is going to reside at San Francisco, in the State of California. He, 
 therefore, asks leave to resign his trust as administrator (or executor) of the 
 said estate (or of the last will and testament of said A B). C D. 
 
 Upon filing this petition, notice should be given as required by 
 the court, in an order to be entered. If the legatees, devisees and 
 distributees cannot be personally served, notice should be published 
 as required in chancery.(v) 
 
 3. ORDER. On reading and filing the petition of C D, adminis- 
 trator (or executor, etc.), showing that he is about to remove from 
 this State, and asking leave to resign, ordered, that notice of his 
 application be given to all the distributees (or legatees and devi- 
 sees) of said estate (here specify if the notice is to be published 
 how), and that said application be heard (here state when the hear- 
 ing is to be). 
 
 4. NOTICE OF RESIGNATION. 
 
 STATE OF ILLINOIS, ) 
 
 County, f * 
 
 To the term of county court of county, A. D. 18 : 
 
 " estate 
 
 To all persons concerned : 
 
 Take notice, that the undersigned, administrator of A B, deceased, will, at 
 the term of said court, holden at the court-house in the of , 
 
 in said county, on the first Monday of , 18 , present to said court, for 
 
 acceptance, his resignation of the office of administrator of A B, deceased, and 
 you are hereby notified and summoned to be and appear before said court on 
 the day of , A. D. 18 , to show cause, if any you have, why said res- 
 
 ignation should not be accepted, according to the statute in such case made 
 and provided. E F, 
 
 Clerk of said court. 
 Dated , 18 . 
 
 A copy of the ADVERTISEMENT, with the publisher's certificate of 
 the due publication thereof,(w) should be attached to, or presented 
 to the court with, the resignation. Before the acceptance of the 
 resignation, the administrator (or executor) must render a complete 
 settlement of all matters in his hands up to the time of his resig- 
 nation, and deliver into court all evidences of property, moneys, 
 etc., in his possession. The resignation must be in writing, and 
 may be in the following form :(x) 
 
 (v) See pp. 126-131, infra. (x) %% 4f 41, R. S. 1874, p. 111. 
 
 (w) See p. 51, supra. 
 
 13
 
 98 INTESTATE ESTATES. [CH. III. 
 
 Resignation and removal 
 
 5. KESIGNATION. 
 
 STATE OF ILLINOIS, ) County court of county. 
 
 County, j" term, A. D. 18 . 
 
 In the matter of the estate ) 
 of A B, deceased. J 
 
 To , Judge of said court : 
 
 The undersigned, administrator of A B, deceased, having given the notice 
 thereof required by order of court, as will appear by proof of the same here- 
 with filed, does hereby resign his office as administrator of the goods, chattels, 
 rights, credits and effects of said A B, deceased, and prays that this, his resig- 
 nation, be accepted, and that he be discharged from the further exercise of his 
 said office. C D, 
 
 Administrator of A B, deceased. 
 
 April 2, 18 . 
 
 6. THE ACCEPTANCE OF THE BESIGNATION may be entered in the 
 following form : 
 
 6Stat 1 *** of administrator. 
 On this day came C D, administrator of A B, deceased, and presents to the 
 court, for its acceptance, his resignation of the office of administrator of the 
 goods, chattels, effects, rights and credits of the said A B, deceased ; and, it 
 appearing to the court that due notice of the presentation of said resignation 
 has been given, and the said administrator having stated and adjusted with 
 said court an account of his actions and doings as such administrator, and paid 
 over all moneys, effects and choses in action, according to law, and the court 
 being sufficiently advised in the premises, it is ordered and adjudged that the 
 resignation of the said C D, as administrator of A B, deceased, be accepted, 
 and the said C D be discharged from further exercise of his said office. 
 
 7. NOTICE TO SECUEITY. 
 
 STATE OF ILLINOIS, ) 
 
 County, f * 
 
 County court of county, to term, 18 . 
 
 In the matter of the estate ) XT , . 
 of A B, deceased. Notlce of resignation. 
 
 To E F, security on the bond of D, administrator of A B , deceased : 
 
 Take notice, that the undersigned, administrator of A B, deceased, will, at 
 the term of said court, to be holden at the court-house in the of 
 
 , on the Monday of , 18 , tender to said court, for its accept- 
 
 ance, his resignation of the office of administrator of said A B, deceased. 
 
 CD, 
 Dated , 18 . Administrator of A B, deceased. 
 
 Copies of these notices should likewise be presented, and proof 
 of service made, as above.
 
 CH. III.J INTESTATE ESTATES. 99 
 
 Of executors and administrators. 
 
 8. Where one of several administrators desires to resign, lie may 
 do so upon complying with the directions of the court, and filing 
 
 the ASSENT OF HIS CO-ADMINISTKATOE. 
 
 8. FOEM OF ASSENT TO EESIGNATION. 
 
 STATE OF ILLINOIS, ) 
 
 County. <j 88 - 
 In the matter of the estate ) 
 of A B, deceased. ) 
 
 To J H, Judge of the county court of county : 
 
 We, J K, co-administrator, and Y Z, security of C D, administrator of A B, 
 deceased, do hereby assent to the resignation of C D as such administrator. 
 
 Witness our hands and seals this day of , A. D 18 . 
 
 [SEAL.] J K, 
 
 [SEAL.] Y Z. 
 
 9. KEMOVAL OF ADMINISTEATOES FEOM OFFICE. The letters of 
 administration being a grant of power, which alone invests this 
 officer with the right to act as administrator, if they be revoked or 
 repealed, his right to aot in such capacity is ended; and, conse- 
 quently, all acts done by him subsequently thereto are void, as 
 against the interests of others. If the administration be not abso- 
 lutely void, but only voidable, before the repeal of his letters,, his 
 acts regularly done under color of his office are valid, and the re- 
 peal does not, in such case, act retrospectively to affect them. 
 
 Letters of administration may be revoked and repealed for vari- 
 ous causes, among which may be named the following: The produc- 
 tion and probate of a will; the non-residence or removal from the 
 State of the administrator; removing intestate's property out of the 
 State, and his -refusal or neglect to render his account and make 
 settlement; or where the person to whom letters have been issued 
 shall become insane, lunatic or of unsound mind, or an habitual 
 drunkard, or be convicted of an infamous crime, or shall waste or 
 mismanage the estate, or conduct himself in such manner as to 
 endanger his co-administrator or securities, or has procured letters 
 upon the false and fraudulent pretense of being a creditor of the 
 estate, or upon any false pretense whatever, etc. 
 
 In the revocation and repeal of letters of administration, the 
 court generally acts upon the application of some interested party. 
 
 10. PETITION FOE EEVOCATION OF LETTEES OF ADMINISTEATION. 
 
 STATE OP ILLINOIS, ) . 
 Cook County. f ' County court of county, term, 18 . 
 
 1o Hon. , Judy e of said court : 
 
 The petition of John Doe, of said county, respectfully represents to your
 
 100 INTESTATE ESTATES. [CH. III. 
 
 Resignation and removal 
 
 honor that your petitioner is an heir at law (or, as the case may be), of Richard 
 Roe, late of said county, deceased, and, as such, is interested in the safe and 
 proper administration of said deceased's estate, and entitled to distribution 
 therein ; " that the security of A B, administrator of said Richard Roe, has 
 become insufficient ; that E F, his security, has not property of sufficient value 
 to secure the distributees and creditors of the estate against loss and damage 
 which may occur in the administration of the said estate." (In other cases, 
 omit all between the quotation points, and insert the particular facts of the case 
 upon which revocation is sought.) Wherefore, your petitioner prays, that the 
 said A B be required by this court to give other and sufficient security, and, 
 in default thereof, that the letters of administration so granted to him be 
 revoked and repealed, and administration be granted to some other person 
 entitled to the same. 
 
 And your petitioners will ever pray, etc. 
 
 Dated , 18 . JOHN DOE. 
 
 The petition should be verified by the oath of the person making 
 it. 
 
 Upon filing the petition, a citation will issue to the administra- 
 tor to show cause against the application. Upon the return of the 
 citation, the court, upon being satisfied of the insufficiency of the 
 security, will require the administrator to give a new bond by a 
 specified day, and, in case of default thereof, will order his removal. 
 
 GROUND OF REMOVAL. Where an administrator shows by his 
 report that he has given an unauthorized preference to creditors in 
 the payment of assets, it is sufficient to justify his removal, (z) 
 
 REVOCATION. The acceptance of the probate court of the resig- 
 nation of an administrator amounts to a revocation of his letters; 
 and if there are other administrators the burden of administration 
 is cast on them.(y) 
 
 The refusal of an administrator to perform the duties of his trust 
 is a sufficient cause for revoking his authority, (y) 
 
 REMOVAL OF ADMINISTRATOR FROM THE STATE. The act of 184? 
 on this subject, as reprinted in 1853, and as it appears in Scates' 
 Compilation, page 1238, is not correctly copied from the original 
 session laws, important words being omitted, (y] But the same is 
 correctly printed in Gross' Statutes, page 811; also in Cothran's 
 Statutes, page 56. A non-resident cannot legally be appointed ad- 
 ministrator of an estate in this State, not even on the estate of a 
 non-resident dying abroad and leaving effects in this State.(z) 
 
 (a;) Foltz v. Prouse, 17 111. 487. (z) Child v. Oratiot, 41 111. 357; 3 
 
 (y) Marsh v. The People, 15 111. 284. Cothran's Stats., p. 50.
 
 CH. III.] INTESTATE ESTATES. 101 
 
 Of executors and administrators. 
 
 Where a non-resident is so appointed, it is the duty of the pro- 
 bate court to revoke the appointment on proper application.(z) 
 
 THE HEARING. On filing the petition for the removal of an 
 executor or administrator for cause, as we have seen, process issues. 
 The time for hearing should be fixed and continued from time to 
 time until the executor or administrator is either actually or con- 
 structively served. No course of procedure is indicated, but the 
 Chancery Practice in such cases affords ample precedents, if we are 
 to consider the petition in the nature of a bill in chancery. 
 
 The decree should recite the facts upon which the same is made. 
 
 DECREE OF REMOVAL OF AN EXECUTOR OR ADMINISTRATOR. 
 
 THE PETITION of John Doe coming on this day to be hfeard, and it appearing 
 that A B, the aforesaid, has filed his answer herein, denying the facts 
 
 stated in said petition, and it appearing to the court from the testimony that A 
 B has mismanaged said estate as stated in said petition, and that all the facts 
 stated in said petition are true and have been fully proved to the satisfaction 
 of this court, and after argument by the respective counsel for said petitioner 
 and said , it is now here ORDERED, ADJUDGED AND DECREED, that said 
 
 accounts be forthwith closed ; that all the estate of the said 
 which has come to the hands of the said A B, as such , now remaining uu- 
 
 disposed of, be delivered over to another , to be by this court appointed, 
 
 ai \ that the letters heretofore issued to the said A B be, and hereby are, 
 
 revoked ; and that the said A B attend before this court from day to day until 
 this decree and the several orders herein are fully complied with, and until 
 the further order of court. 
 
 Dated , A. D. 18 . 
 
 Another executor or administrator is then to be appointed as 
 before, and the estate unadministered, turned over to him. 
 
 In case of a will, the appointee of the court is sometimes termed 
 " an administrator cum testamento annexo de bonis non " (with the 
 will annexed of the unadministered estate) ; in case of an intestate, 
 "administrator de bonis non" (of the unadministered estate). 
 
 () Child v. Gratiot, 41 111. 357.
 
 102 ESTATES OF MINORS. [CH. IV. 
 
 Infants or minors. 
 
 CHAPTER IV. 
 
 PERSONS AND ESTATES OF INFANTS OR MINORS. 
 
 SECTION I. Infants or minors. 
 
 II. Competency and appointment of guardians. 
 
 III. Their powers and duties. 
 
 IV. Resignation and removal of guardians. 
 
 SECTION I. INFANTS OR MINORS. 
 
 1. Females under eighteen years of age and males under the age of twenty- 
 
 one, in this State, are minors. 
 
 2. Validity or invalidity of their acts generally. 
 
 3. Ratification of a sale of land, right to hold property, etc. 
 4 Estoppel and laches, not applicable to infants, generally. 
 
 5. Of their property. 
 
 6. Actions by and against. 
 
 1. MALES AT TWENTY-ONE, FEMALES AT EIGHTEEN, ARE OF LAW- 
 FUL AGE. Males of the age of twenty-one, and females of the age 
 of eighteen years, are considered of full age for all purposes; and 
 until these ages are attained they are considered minors. (a) 
 
 2. VALIDITY OR INVALIDITY OF THEIR ACTS. An infant cannot 
 bind himself by bond,(Z>) but the implied contracts of an infant for 
 necessaries are binding upon him; (c) the appointment of an at- 
 torney by an infant is absolutely void.(c) 
 
 A minor contracted to work nine months, but worked six weeks 
 and quit; held, that he was not bound by the contract, and that he 
 could recover the value of the services rendered.(^) 
 
 Contracts by infants for the improvement of their property are 
 not binding upon them. Nor does the receipt of rents from the 
 improved property, after they attain majority, amount to H ratifica- 
 tion, (e) 
 
 Where a plaintiff relies on a new promise, made after the defend- 
 ant became of age, the original contract having been made during 
 infancy, he should declare on the new contract.(/) 
 
 (a) 1, R. S. 1874, p. 558 ; Steven- (c) Cole v. Pennoyer, 14 111. 158. 
 sou v. Westfall, 18 111. 209 ; Harrer v. (d) Ray v. Raines, 52 111. 485. 
 WaUner, 80 111. 197 ; Cothran's Stats., (e) McCarty v. Carter, 49 111. 53. 
 
 p. 766. (/) Bliss v. Ferryman, 1 Scam. 484. 
 
 (b) Bliss v. Ferryman, 1 Scam. 484.
 
 CH. IV.] ESTATES OF MINORS. 103 
 
 Infants or minors. 
 
 FRAUDS AND TORTS. For a discussion of the liability of infants 
 for frauds and torts, see Davidson v. Young, (g) 
 
 An infant is not to be charged with laches for failing to bring an 
 advancement into hotchpot. (A) 
 
 Conveyances made by an infant in person are voidable only, to be 
 confirmed or repudiated at his discretion after he arrives at ma- 
 jority^ h) So, if a minor contracts to sell real estate, the contract 
 cannot be enforced if he refuse after his majority to sanction it ;(&') 
 and, generally, a minor may revoke a conveyance within a reason- 
 able time after he becomes of age. In this State, under the seven 
 years' limitation act, if a conveyance by a minor is to be revoked by 
 him, he must commence proceedings within three years after the 
 disability is removed ;(/) and a conveyance by a minor of real estate 
 must be disaffirmed and repudiated within three years after his 
 majority, or it will be upheld. (&) 
 
 3. KATIFICATION. As to what is necessary to constitute a ratifi- 
 cation of a sale of lands.(Z) 
 
 If an infant conveys his land, and on attaining his majority rati- 
 fies the conveyance, and then conveys to another person for a valu- 
 able consideration, the last grantee, having notice of the deed made 
 in infancy, but no notice of the ratification, will hold the land.(w) 
 
 One has as perfect a legal right to purchase land which his 
 grantor has conveyed during infancy, as to purchase land that has 
 never been conveyed at all, and he is not to be denied the position 
 of an innocent purchaser because he has notice of the deed made 
 in infancy.(rc) 
 
 4. ESTOPPEL AND LACHES. Infants are not estopped by failure to 
 give notice or by acquiescence.(o) 
 
 5. THE PROPERTY OF INFANTS. SALE, ETC., OF REAL PROPERTY. 
 
 A obtained money from B to purchase certain land. The land was 
 purchased in the name of C, to secure B for the money loaned. A 
 died before the time for payment of the money to B, leaving an 
 infant son. Held, that the infant had an equitable estate in the 
 
 (g) 38 111. 145. (ri) Id. ; and Cadwett v. Sherman, 45 
 
 (h) Barnes v. Hazelton, 50 111. 429. 111. 348. See the case of Parmelee v. 
 
 (f) Walker v. Ellis, 12 111. 470. Smith, 21 111. 620, as to the right of a 
 
 (f) Cole v. Pennoyer, 14 111. 159. See minor to hold property as his own. 
 
 1 Hill's C. L., Limitations. (0) Kane County v. Herrinrjton, 50 
 
 (k) Blakenship v. Stout, 25 111. 132. 111. 282 ; Williams v. Wiggand, 53 id. 
 
 (0 Davidson v. Yovnq, 38 111. 145. 233 : C.,R. 1. & P. B. R. Co. v. Ken- 
 
 (m) Black v. Hills, 36 111. 373. nedy, 70 id. 350.
 
 104 ESTATES OF MINORS. [CH. IV. 
 
 Infants or minors. 
 
 land, and that a bill was properly filed to redeem the land; and that, 
 as the infant averred that he had no means of redeeming but 
 through this property, an account should be taken to determine the 
 amount of the incumbrances, and that the money be raised by a sale 
 or mortgage of the premises, or in such other appropriate way as 
 might be most for the interest of the infant, and applied to the ex- 
 tinguishment of the incumbrances.(^) 
 
 Where it appeared that notice of an application for the sale of 
 land, as recited in a decree pronounced thirty years since, was 
 served upon infants instead of their guardians, as the statute 
 required, no guardians ad litem having been appointed : Held, that 
 the circuit court had not jurisdiction.^) 
 
 As to how far infants are bound by sales of their real estate by 
 executors, administrators and guardians, see Gibson v. Roll.(r} 
 
 ESTOPPEL. For the facts necessary to estop a party from assert- 
 ing claim to lands sold by the administrator without due authority, 
 during the minority of such party.(s) 
 
 6. ACTIONS BY AND AGAINST. Neither a default nor a decree 
 pro confesso can be entered against an infant. "Where infants are 
 defendants in chancery proceedings, the proper and convenient prac- 
 tice is for the court to refer the matter which requires to be proved 
 to the master in chancery, that he may take the evidence and report 
 the facts to the court for its final determination.(tf) 
 
 Laches are not imputable to an infant.(w) 
 
 Where the complainant chooses to proceed against infants, under 
 the statute, without service of process, it is the duty of the court 
 to exact of the guardian a vigorous defense of their interests; and 
 it is wrong to take a bill for confessed against them under any cir- 
 cumstances, (v) 
 
 Nothing can be admitted, but every thing must be proved, against 
 an infant, (w) 
 
 The right of action for services rendered by a minor is in the 
 parent or guardian, (x) 
 
 (p) Smith v. Sackett, 5 Gilin. 534. (u) Smith v. Sackett, 5 Gilm. 534. 
 
 (q) Whitney v. Porter, 23 111. 445. (v) Sconce v. Whitney, 12 111. 150. 
 
 (r) 27 111. 90 ; Williams v. Wiggand, (w) Hitt v. Ormsbee, 12 111. 166 ; 
 
 53 id. 233. Hamilton v. Oilman, id. 260 ; Tuttle v. 
 
 (s) Davidson v. Young, 38 111. 145. Garrett, 16 id. 354 ; Reddick v. Pres. 
 
 (t) McClay, Adm'r, v. Norris, 4 Gilm. State Bank, 27 id. 148. 
 
 370 ; Enos v. Capps, 12 111. 255 ; Cost v. (x) Dufield v. Cross, 12 111. 397. 
 Rose, 17 id. 276; Chaffin v. Heirs of 
 Kimball, 23 id. 36.
 
 CH. TV.] ESTATES OF MINOKS. 105 
 
 Infants or minors. 
 
 An infant is not 'always bound to appear in a court of chancery 
 by guardian, although one may be in existence. The bill may be 
 filed by the next friend, and it rests in the sound discretion of the 
 court whether the suit shall so proceed or in the name of the guard- 
 ian, (y) 
 
 A party having a right of action against the ancestor is not to be 
 delayed in his remedy, whether legal or equitable, because of the 
 non-age of those on whom the law casts the liability, (z) 
 
 In all cases against infants, strict proof is required. The record 
 must furnish proof to sustain a decree against them, whether the 
 guardian ad litem answer or not. (a] 
 
 Where a special agreement has been made by a parent to pay the 
 board of a child, the creditor cannot collect the board from the 
 infant's estate, if the parent neglect to pay. (b) 
 
 A guardian ad litem must be appointed for infant defendants, or 
 all proceedings against them will be erroneous, (c) 
 
 A judgment or decree against a minor without a guardian, or an 
 appearance by attorney, is not void, but merely voidable, (d) 
 
 Such a judgment may be set aside in the court where it is ren- 
 dered on motion; and, where the judgment has been set aside, the 
 defendant may make any defense to which he may be entitled, (d) 
 
 It is error to permit a guardian ad litem to withdraw a plea and 
 allow a judgment by default to be entered against the infant, (e) 
 
 If heirs be brought into court by scire facias, under the statute, 
 to show cause why they should not be made parties to a judgment, 
 it will be necessary to prove up the case de novo against them. But 
 adults cannot demand that more shall be proved against them when 
 there are infant parties than if all were adults. (/) 
 
 A party who is under eighteen years of age at the time of com- 
 mitting a larceny should be punished by imprisonment in the 
 county jail, even though he is over eighteen when convicted, (g] 
 
 It is not every suit which has for its object to divest a minor of 
 his estate that is against his interest so that he must be made a 
 
 (y) Holmes v. Field, 12 111. 422. (c) McDaniel v. Corrett, 19 111. 226. 
 
 (z) Enos v. Capps, lo 111. 277. (d) Peak v. SJiasted, 21 111. 137. 
 
 (a) Masterson v. Wiswould, 18 111. 48 ; (e) Peak v. Pricer, 21 111. 164. 
 Carr v. Fidden, id. 77 ; Cost v. Rose, 17 (/) Cox v. Reed, 27 111. 434. 
 
 id. 276 ; Chaffin v. Heirs of Kimball, (g) Monoughan v. The People, 24 111. 
 23 id. 36 ; Tibbs v. Allen, 27 id. 119. 340. 
 
 (b) Sinklear v. Emert, 18 111. 64. 
 
 14
 
 106 ESTATES OF MIXORS. [CH. IV. 
 
 Infants or minors. 
 
 defendant, but only in those special cases arising under the stat- 
 ute, (h) 
 
 Where minors are defendants to a bill, a decree can only be ren- 
 dered against them on full proof. Nor can their natural or legal 
 guardians, by consent, waive this requirement, (i) 
 
 Where a decree has been rendered against a minor defendant, he 
 is entitled to his day in court, whether the right is expressly 
 reserved in the decree or not, and he may, even during his minority, 
 by his next friend or guardian, file an original bill to impeach the 
 decree either for fraud or for error appearing on its face. (/) 
 
 Delay after majority for the period which bars a writ of error 
 would bar such bill, (k) 
 
 They cannot be brought into court by' stipulation of attorneys. (I) 
 Nor by entry of appearance by guardian, (m) 
 
 Where there are adult and infant defendants, and the writ of 
 error is in fact prosecuted by the adults alone, they cannot assign 
 for error those proceedings which only affect the interests of the 
 infants, (n) 
 
 Decree against infants, without a guardian or an appearance, will 
 be set aside, (o) 
 
 Defaults and decrees pro confesso cannot be entered against 
 infants.(j9) 
 
 The decree against infants must show that the material allega- 
 tions of the bill were proved.(g') 
 
 A decree may be absolute in form in the first instance. The 
 statute protects the minor by giving him five years after his majority 
 to bring his writ of error.(r) 
 
 A day in court need not be given infants specifically in the de- 
 cree, (s) 
 
 An infant defendant in chancery cannot consent, nor can his 
 guardian ad litem for him, to the taking of testimony before a per- 
 son not properly authorized to take it. A guardian ad litem cannot 
 
 (h) Burger v. Potter, 32 111. 66. ([) McDermaid v. Resell, 41 111. 490. 
 
 v t) Waugh v. Bobbins, 33 111. 182 ; (m) Greenman v. Harvey, 53 111. 386, 
 
 Rhoads v. Rhoads, 43 id. 239 ; Quigley (n) Rhonda v. Rhoads, 48 111. 239. 
 
 v. Roberts, 44 id. 503 ; Barnes v. Hazle- (o) Hall v. Dams, 44 111. 494. 
 
 ton, 50 id. 429. (p) Quigley v. Roberts, 44 111. 503. 
 
 (j) Kucheribeiser v. Beckert, 41 111. (g) Preston v. Hodgen, 50 111. 56. 
 
 172 ; Hess v. Voss, 52 id. 472. (r) Barnes v. Hazleton, 50 111. 429. 
 
 (k) Kuchenbeiser v. Beckert, 41 111. (*) Hess v. Voss, 52 111. 472. 
 172.
 
 CH. IV.] ESTATES OF MINOKS. 107 
 
 Competency and appointment of guardians. 
 
 admit away any of the rights of an infant, or bind him by consent 
 to an action which may be prejudicial to the infant, (t) 
 
 In order that a decree shall affect infants, they must be made 
 parties to the bill, either complainants or defendants; and, if the 
 latter, they must be served with process, (u) 
 
 INFANCY is not, at common law, a dilatory plea.(v) 
 
 SECTION II. COMPETENCY AND APPOINTMENT OF GUAKDIANS. 
 
 1. Guardians, jurisdiction of the county courts to appoint. 
 
 2. Construction of the statute. 
 
 3. The court of chancery in cases of divorce, etc. 
 
 4. When a minor may nominate, and when and how guardians may be ap- 
 
 pointed by the county courts. 
 
 5. The application for appointment. 
 
 6. Petition to be appointed. 
 
 7. Citation to minors. 
 
 8. Petition of minors to be appointed. 
 
 9. The bond. 
 
 10. Suits on bonds. 
 
 11. Appointment of a guardian of a minor's estate when the father is living ; 
 
 petition. 
 
 12. Other cases. 
 
 13. Letters of guardianship. 
 
 14. Guardian ad litem for a minor in a justice court. 
 
 15. Guardian ad litem in a common-law cause, in the county or tircuit court, 
 
 or in chancery. 
 
 1. DEFINITIONS, ETC. A guardian is a person to whom is dele- 
 gated the authority to take care of a minor, or of his estate. The 
 minor in such case is termed the ward. 
 
 There are several kinds of guardians : First. Guardians ly 
 nature, being the father, or, on his death, the mother. This guard- 
 ianship only extends to the custody of the person, and terminates 
 when the child attains the age of twenty-one years, (w) 
 
 Second. Testamentary guardians are such as are appointed by a 
 will. Parents may dispose of the custody of their children by will. 
 Such guardians supersede the claim of any other, and their author- 
 ity extends over the person and estate of the child. 
 
 (t) Fisclier v. Fischer, 54 111. 231. See 2 Hill's C. L., Defenses. See Hill's 
 
 (u) Hickeribotham v. Blaekledge, 54 Chan. Pr. 599. 
 
 111. 316. (w) 3 Pick. 213 ; 7 Wend. 354. 
 (v) Oreer v. Wheeler, 1 Scam. 554.
 
 108 ESTATES OF MINORS. [CH. IV. 
 
 Competency and appointment of guardians. 
 
 Third. Guardians appointed by the court under some statutory 
 power. These are either guardians of the person or of the estate 
 of the ward or of both. 
 
 Fourth. Guardians ad liiem are such as are appointed by the 
 court, where an" infant is sued in a civil proceeding, to defend him 
 in the same. Every court, when an infant is sued therein, may 
 appoint a guardian of this character. His power and duty only 
 extends to the suit in which he is appointed. 
 
 As the person appointed guardian acts for the infant on the 
 account of his incapacity, such person should himself be capable. 
 Minors, persons non compos, and persons infamous, are incompe- 
 tent to act as guardians. Also such persons as have an interest in 
 the property adverse to the ward. 
 
 In general, the guardian stands in the place of the parent to the 
 ward, but not in all respects. He is bound to take care of the per- 
 son of the ward ; to represent him in all civil suits ; to lease the rea- 
 estate of the minor, and to perform all acts of simple administra- 
 tion ;(x) to put the money of the ward at interest ; under the direc- 
 tion of the court, to superintend the nurture and education of the 
 ward ; and generally to act for and in place of the minor for his 
 interest, and to render to the proper court an account of his admin- 
 istration. 
 
 When a guardian is appointed by a will, it is from that he derives 
 his power to act. On the probate of the will, he will be entitled to 
 letters of guardianship, which, in effect, amount to but an authen- 
 tication of his appointment. No particular set of words are neces- 
 sary in a will to constitute a guardian. Any language showing the 
 intention of the testator to confer on a person designated the cus- 
 tody of the person or management of the estate of the ward will 
 be sufficient. The will being the character of his authority, to that 
 he must look for the particular manner in which he is to act. 
 
 JURISDICTION . Courts in probate, in their respective counties, 
 may, when it appears necessary or convenient, appoint guardians to 
 minors, inhabitants of, or residents in the same county, and to such 
 as reside out of this State, and have an estate within the same, in 
 the county where the real estate or some part thereof may lie ; or, 
 if they have no real estate, then in any county where they may have 
 personal property, (y) 
 
 (x) 1 Bouv. Inst. 143. (y) 2, R. S. 1874, p. 558.
 
 OH. IV.] ESTATES OF MINORS. 109 
 
 Competency and appointment of guardians. 
 
 2. THE STATUTE, in relation to guardians, does not constitute a 
 complete code, but confers upon the county court power to appoint 
 guardians, and to regulate their conduct in accordance with their 
 duties at common law. Many of the powers and duties, rights and 
 liabilities, of guardians are not specifically defined by statute. It 
 contains such provisions as were necessary to define the nature of 
 the jurisdiction conferred, prescribe the manner of its exercise, and 
 correct some of the defects of the law as it then existed. In other 
 respects, the common law regulating the powers and duties, rights 
 and liabilities of guardians, is left in force. At common law, all 
 guardians were regarded as trustees, clothed with such powers and 
 rights as were necessary for the proper execution of the trusts 
 imposed upon them, and they were held accountable for the faith- 
 ful discharge of their duties. All except the guardian in chivalry 
 might be compelled, in a court of chancery, to render an account 
 before, as well as after, the guardianship terminated.(z) The guard- 
 ian was required to take possession of his ward's property, and he 
 was not only liable for such property as actually came into his pos- 
 session, but for such as he might have taken possession of by the 
 exercise of diligence and without any willful default on his part. 
 So, in regard to the rents and profits of the ward's lands and tene- 
 ments, and the income from every species of his property, the 
 guardian was chargeable with what he actually received, and with 
 what he might have received had he faithfully discharged his 
 duties, (z) 
 
 The guardian should render to the county court yearly accounts, 
 and, where he has used the money of his ward, he should charge 
 himself with interest from the time he received it. At such ren- 
 dering of an account, the interest should be made a part of the 
 principal, and interest computed on the balance in the guardian's 
 hands up to the next annual rendering of his account, (z) 
 
 Where the probate court appointed a guardian to two orphan 
 minors, under the age of fourteen years, for the full time, until 
 they should respectively attain the age of eighteen years: Held, 
 that the appointment was valid. And, also, in case the minors, 
 after they attained the age of fourteen years, neglected to choose 
 guardians for themselves, the guardian already appointed by the 
 
 (z) Bond v. Lockwood, 33 111. 212.
 
 110 ESTATES OF MINOBS. [CH. IV. 
 
 Competency and appointment of guardians, 
 
 probate court would continue to act in his office until the said 
 minors attained their majority.(a) 
 
 A, the testator, by his will, appointed his wife guardian to his 
 infant daughter " so long as she should remain Ms widow." After 
 his decease, his widow took out letters of guardianship for the 
 daughter from the probate court of the proper county. Held, that 
 the appointment of the probate court was void for want of jurisdic- 
 tion. The authority of the father to name a guardian for his 
 children is greater than that conferred upon the probate court ; and, 
 when the former has exercised the right, the latter cannot act.(J) 
 
 3. In determining the fitness of the person to whom the custody 
 of infants shall be given to act as guardian, the court of chancery 
 is not bound down by any particular form of proceeding. The best 
 interests of the child must be consulted, (c) 
 
 When the aid of a court of chancery is once invoked to provide 
 for the guardianship of infants, in case of separation of the parents, 
 such infants become the wards of the court, and it will not permit 
 them to be removed beyond its jurisdiction, or permit either parent 
 to alienate the affections of the infants from the other.(<?) 
 
 4. GUARDIANS. If a minor is under the age of fourteen years. 
 the county court may nominate and appoint his guardian. If he is 
 above that age, he may nominate his own guardian, who, if approved 
 by the court, shall be appointed accordingly ; if not approved by the 
 court, or if the minor reside out of the State, or if, after being 
 cited, he neglects to nominate a suitable person, the court may nom- 
 inate and appoint his guardian in the same manner as if he were 
 under the age of fourteen years.(e) 
 
 5. APPLICATION FOR APPOINTMENT. Upon application being 
 made for the appointment of a guardian, unless the proper persons 
 are before it, the court shall assign a day for the hearing thereof, 
 and shall direct such notice of the hearing to be given to the rela- 
 tives of the minor residing in the county as he shall, on due inquiry, 
 think reasonable. When any person shall, at the same time, be 
 appointed guardian for several minors, the court may, if the estate 
 
 (a) Young v. Lorain, 11 111. 625. (d) Miner v. Miner, 11 111. 43. 
 
 (b) Holmes v. Field, 12 111. 424. (e) % 3, R. S. 1874, p. 558 ; Cothran'8 
 
 (c) Cowls v. (Jowls, 3 Qilm. 435 ; Peti- Statutes, p. 766. 
 tion of Smith, 13111. 139.
 
 CH. IV.] ESTATES OF MINORS. Ill 
 
 Competency and appointment of guardians. 
 
 shall be so situated as to make it more convenient or advantageous 
 to the interest of the ward, include all in one bond. 
 
 How TO BE APPOINTED GUARDIAN. If the minors are over fourteen 
 years of age, bring them personally before the court to select their 
 guardian ; obtain petition and bond in blank from the clerk ; fill 
 them out ; then file them with the clerk ; pay his costs ; call 
 the court's attention to the petition ; have two securities sworn and 
 accepted by the court, and the bond approved. The penalty in 
 the bond should be in no case less than double the amount of the 
 minor's personal estate and six times the amount of the gross 
 annual income of the minor's real estate. If, however, such real 
 estate is improved, or is covered, in whole or in part, with timber, 
 or is improved in part and in part covered with timber, the penal 
 sum in said bond shall be increased by an amount at least double 
 the value of the said improvements 1 , or of said timber, or both, as 
 the case may be.(z) 
 
 The following forms may be used : 
 
 6. PETITION TO BE APPOINTED GUARDIAN OF MINORS. 
 
 STATE OF ILI/NOIS, ) In the Court of county, 
 
 County of , f sa term, A. D. 18 . 
 
 1o the Hon. , judge of said court : 
 
 Your petitioner, , who resides at No. street, , Illinois, respect- 
 
 fully represents that , late of , died, leaving his children, herein- 
 
 after named, who are all residents of said county, and now living with 
 
 , at No. street, ; that they are all infants under fourteen years 
 
 of age, to wit 
 
 , aged years, on the day of , A. D. 18 ; 
 
 that said infants have no guardian, and that the names and residences of their 
 relations are as follows : ; that they have real and personal estate, the 
 
 entire value of which does not exceed dollars ; that it is composed of the 
 
 following items : ; that the interest of each of said infants in said prop- 
 
 erty is one part. 
 
 Wherefore, your petitioner prays that your honor nominate and appoint 
 your petitioner (or such other person as to your honor shall seem proper) 
 guardian of the persons and estates of said infants, until they arrive at four- 
 teen years of age, and until another guardian shall be appointed, and that all 
 other orders necessary may be made. , Petitioner 
 
 STATE OF ILLINOIS,) 
 
 County of ,] 
 
 , being duly sworn, deposes and says, that he knows the contents of 
 the above petition, and that the statements therein are true. 
 
 Sworn to and subscribed before me 
 clerk of the county court of county, ! 
 
 this day of , A. D. 18 . 
 
 , Clerk. 
 
 The person making such representation may state any other facts 
 (z) Cothran's Stats., 768.
 
 112 ESTATES OF MINORS. [CH. IV. 
 
 Competency and appointment of guardians. 
 
 showing the necessity or propriety for the appointment of a guard- 
 ian, though the above form contains probably all that is required. 
 Upon filing such representation in court, a citation will issue to the 
 minor, and will be served upon him by the officer of the court. 
 
 7. CITATION TO A MINOR. 
 
 STATE OF ILLINOIS, ) 
 
 County. ) ** 
 
 The people of the State of Illinois to A B,0 D,E F, minors, etc. : 
 
 Whereas, it has been represented by to the county court of 
 
 county, at the last term thereof, that you, the said A B, C D, E F, are 
 
 orphan minors above the age of fourteen years respectively, and have no 
 guardian ; you are, therefore, hereby cited to appear before the said court, at 
 the next term thereof, to be holden at the court-house in said county on 
 
 the day of next, and choose a guardian ; in default whereof, the said 
 
 court will appoint one for you. 
 
 Witness my hand and the seal of said court, at , in said 
 
 [SEAL.] county, this day of , A. D. 18 
 
 E F, Clerk County Court. 
 
 This should be served by reading and leaving with each a copy. 
 The officer serving such notice should return to the county court 
 the original, with his return indorsed thereon. 
 
 On the return day, if the minor appear and make his choice, and 
 the court deem the person so chosen capable, the selection is con- 
 firmed, and letters of guardianship are issued upon his qualifying. 
 If the minor fail to appear, or, appearing, neglect to choose a guard- 
 ian, then the court will appoint one for him, the same as if such 
 minor were under fourteen years of age. 
 
 If the minor be under the age of fourteen, it is not necessary to 
 issue a notification. The person desiring the appointment of guard- 
 ian makes known to the court the fact that such minor is an 
 orphan, the father being dead, is under the age of fourteen years, 
 and is within the jurisdiction. 
 
 8. PETITION OF MINORS TO HAVE GUARDIAN APPOINTED. 
 
 STATE OF ILLINOIS, ) In the County Court of county, 
 
 County of . \ term, A. D. 18 . 
 
 To the Hon. , Judge of said court : 
 
 Tour petitioners respectfully represent, that , late of , died, leav- 
 
 ing your petitioners his children, who are all residents of said county.
 
 CH. IV.J ESTATES OF MINORS. 113 
 
 Competency and appointment of guardians. 
 
 and now living with , at No. street ; that they are all minors above 
 
 fourteen years of age, to wit : 
 
 years, on the day of , A. D. 18 ; 
 
 years, on the day of . A. D. 18 ; 
 
 years, on the day of , A. D. 18 ; 
 
 that your petitioners have no guardian, and that the names and residence of 
 their relations are as follows : . ; that they have real and personal estate, 
 the entire value of which does not exceed dollars ; that it is composed of 
 
 the following items : ; that the interest of each of your petitioners in said 
 
 property is one part. 
 
 That your petitioners do hereby make choice of , of No. , as 
 
 guardian of their persons and estates, subject to the approval of this honorable 
 court ; that he is a suitable person to be such guardian, and has consented to 
 act if appointed. Wherefore, your petitioners pray that your honor appoint 
 the said (or such other fit and proper person as your petitioners may here 
 
 after choose) guardian of the persons and estates of your petitioners during 
 their minority, and that all other orders necessary may be mnde. 
 
 AB, 
 
 C D, etc. 
 
 STATE OP ILLINOIS,) 
 County of . f 8S ' 
 
 , being duly sworn, deposes and says, that he knows the contents of 
 the above petition, and that the statements therein are true. 
 
 Sworn to and subscribed before me, 
 clerk of the county court of county, this ] 
 
 day of , A. D. 18 .' 
 
 , Clerk. 
 
 I', , the person named in the above petition, do hereby consent to 
 
 become the guardian of the above-mentioned minors, pursuant to the prayer 
 of the foregoing petition. L. A. H 
 
 9. GUARDIAN'S BOND. 
 
 Know all men by these presents, that we,(l) , of the county of 
 
 and State of Illinois, are held and firmly bound unto the people of the State 
 of Illinois, for the use of , minor , in the penal sum of dollars, cur- 
 
 rent money of the United States, which payment, well and truly to be made and 
 performed, we and each of us do hereby bind ourselves, our heirs, executors, 
 administrators and assigns, jointly, severally and firmly, by these presents. 
 
 Witness our hands and seals, this day of , A. D. 18 .(2). 
 
 The conditions of the bond are prescribed by statute. They are 
 as follows : 
 
 (1) 1. INSTRUCTIONS FOR FILLING UP THE BOND. Write the names of all parties men- 
 tioned in the bond in full. 
 
 2. There should be two securities in this bond, and it should be executed in the 
 presence of the court. All parties to it must be present. 
 
 15
 
 114 ESTATES OF MINORS. [CH. IV. 
 
 Competency and appointment of guardians. 
 
 " The condition of this obligation is such, that if the above bounden (name 
 of guardian), who has been appointed guardian of (name of infant), shall faith- 
 fully discharge the office and trust of such guardian according to law, and 
 shall make a true inventory of all the real and personal estate of the ward 
 that shall come to his possession or knowledge, and return the same unto the 
 court of county, at the time required by law, and manage and dis- 
 
 pose of all such estate according to law and for the best interest of said ward, 
 and faithfully discharge his trust in relation thereto, and to the custody, nur- 
 ture and education of said ward, and render an account, on oath, of the prop- 
 erty in his hands, 
 
 and of the management and disposition of all such estate within 
 one year after his appointment, and at such other time as shall be required by 
 law or directed by the court, and, upon removal from office, or at the expira- 
 tion of his trust, settle his accounts in said court, or with the ward or his legal 
 representatives, and pay over and deliver all the estate, title, papers and 
 effects remaining in his hands or due from him on such settlement to the per- 
 son or persons lawfully entitled thereto, then this obligation shall be void ; 
 otherwise, to remain in full force and virtue, "(g) 
 
 [SEAL.] 
 [SEAL.] 
 [SEAL.] 
 
 10. SUITS ON BONDS. Bonds may be put in suit in the name of 
 the people of the State of Illinois, to the use of any person enti- 
 tled to recover on a breach thereof, and damages assessed and pro- 
 ceedings had thereon as in other cases of penal bonds. (A) 
 
 11. APPOINTMENT OF A GUARDIAN OF A MINOR'S ESTATE WHEN 
 THE FATHER is LIVING. The proper mode of bringing such a case 
 before the court is by the petition of some friend of the minor, viz. : 
 
 FORM OP PETITION FOR APPOINTMENT OF GUARDIAN OF A MINOR'S ESTATE. 
 
 STATE OF ILLINOIS, J County Court of county, 
 
 County. )" ? term, A. D. 18 . 
 
 To the Hon. , judge of said court : 
 
 The undersigned, C D, respectfully represents that E F, of said county, is a 
 minor, of the age of fourteen years, and is the child of Q F, of said county, 
 now living ; that one D B, late of county, deceased, by his last will and 
 
 testament, which has been duly probated in said last-mentioned county, and a 
 certified copy of which is hereto attached, marked " Exhibit A," granted and 
 devised in fee to the said E F the following real estate, situate in the county 
 of aforesaid, to wit : (Here describe the property.) That the said real 
 
 estate is improved, and, unless it be properly managed, the improvements 
 thereon will become impaired, and the value of the property diminished. 
 
 And your petitioner further shows, that the said G F is not a proper per- 
 
 (g) Cothran's Anno. Statutes, 768, g 7. (h) 11, id.
 
 CH. IV. J ESTATES OF MIXOKS. 115 
 
 Competency and appointmen t of guardians. 
 
 son to have the charge and management of said estate, on account of drunken- 
 ness and vagrancy (or whatever may be the case) ; wherefore, your petitioner 
 prays that a guardian be appointed for said minor, to manage the said estate, 
 and that a citation issue to said G F, to show cause why such guardian should 
 not be appointed, returnable to the next term of this court. 
 
 And your petitioner will ever pray, etc. 
 
 Dated , 18 . CD. 
 
 On filing such petition, THE CITATION should be served and 
 returned as in other cases. 
 
 If good cause against the petition be not shown, and the charges 
 therein be supported, the court will order that a guardian be 
 appointed ; and, in case the minor be over fourteen years of age, it 
 will further order that a citation be issued to said minor, directing 
 him to appear before said court, at a time to be therein specified, 
 and choose a guardian. If he choose an unfit person, the court 
 will not confirm his choice, and, if he persists in such improper 
 choice, will treat it as a refusal or neglect to choose, and may pro- 
 ceed the same as if such minor had openly refused or wholly neg- 
 lected to make a choice. 
 
 The father of an infant, though his natural guardian, has no 
 power to lease his land, nor authority to demand and receive a 
 legacy. The guardian by nature, the father, or, in case of his death, 
 the mother, having no authority over the estate of his or her child, 
 but only control over its person, the appointment of a guardian is 
 necessary for the purpose of leasing lands or dealing on account of 
 such minor's estate. 
 
 12. THEKE AKE SOME OTHER CASES where it might be eminently 
 proper that a guardian should be appointed, especially while the 
 parents are yet living. By stating in plain, perspicuous language 
 the grounds on which any one deems it " necessary or convenient " 
 that a guardian of a minor should be appointed, in a petition simi- 
 lar in character and form to those already given, and verifying the 
 petition, the court has full original jurisdiction to act If the facts 
 stated are denied, the court may settle the disputed questions by 
 citing the interested parties before it, and taking testimony in a 
 summary manner. (i) 
 
 The bond, of course, should be quite like the form given in the 
 above cases. 
 
 (t) See p. 112, supra ; see p. 120, infra
 
 116 ESTATES OF MINORS. [CH. IV. 
 
 Competency and appointment of guardians. 
 
 Upon granting the application, letters of guardianship issue. 
 
 13. LETTERS OF GUARDIANSHIP. 
 
 STATE OP ILLINOIS, ) 
 County of . J * 
 
 The people of the State of Illinois to , of said county, greeting : 
 
 Whereas, you were, by the county court of said county, on the day of 
 , A. D. 18 , appointed guardian of the person and estate of : 
 
 , aged years, on the day of , A. D. 18 ; 
 
 , aged years, on the day of , A. D. 18 ; 
 
 minor of said county ; and whereas, you have complied with the condi- 
 
 tions of said appointment by giving bond, with two sureties, in the penal 
 sum of dollars, which bond has been approved by said court. 
 
 Now, therefore, know ye, to whom these presents shall come, that the said 
 is the duly constituted guardian of the person and estate of said 
 minor , and is authorized and required to have the care and custody of h 
 person and estate ; to present to said court, within three months from the 
 date hereof, a just and true inventory, under oath, of all the real and personal 
 estate belonging to said minor ; to lease the real estate of said minor, upon 
 such terms and for such time as said court shall, by its order, direct ; to render 
 an account of h guardianship to said court for adj ustment within one year 
 from the date hereof, and every year thereafter, until discharged by order of 
 said court ; to put to interest the money of said minor upon security to be 
 approved by said court ; to superintend, under the direction of said court, the 
 education and nurture of said minor, and for that purpose may pay out such 
 portion of said minors' money as the said court shall, from time to time, by 
 order, direct. 
 
 And also to do whatever else the law requires of a guarditn of the persons 
 and estates of minors. 
 
 Witness , clerk of said court, and the seal thereof, at the of , 
 
 in said county, this day of , A. D. 18 . , Clerk. 
 
 STATE OF ILLINOIS. 
 
 County of 
 
 I, , clerk of the county court of county, in the State aforesaid, do 
 
 hereby certify that the within is a true and correct copy of letters granted on 
 , to , as guardian of the person and estate of , minor, and the 
 
 same have not been revoked by this court. 
 
 In witness whereof, I have hereunto set my hand and the seal of the county 
 
 court, at , in the State aforesaid, this day of , 18 . 
 
 , Clerk. 
 
 STATE OP ILLINOIS, ) 
 County of . J ** 
 
 , being duly sworn, deposes and says, that he knows the contents of 
 the above petition, and that the statements therein are true. 
 
 Sworn to and subscribed before me, 
 clerk of the county court of , county,! 
 
 this day of , A. D. 18 
 
 , Clerk.
 
 CH. IV. 1 ESTATES OF MINORS. 11? 
 
 t 
 
 Competency and appointment of guardians. 
 
 I, , the person named in the above petition, do hereby consent to 
 
 become the guardian of the above-mentioned minors, pursuant to the prayer of 
 the foregoing petition. L. A. H. 
 
 14. GUARDIAN AD LITEM IN A JUSTICE COURT. Where an infant 
 is sued for necessaries in such a court, he cannot appear and defend; 
 a guardian ad litem should be appointed, or his guardian should be 
 sued if he have one of record, (j) 
 
 15. GUARDIAN AD LITEM AT COMMON LAW AND IN CHANCERY.(&) 
 On filing an affidavit, or pleading properly verified, showing the 
 infancy of a defendant, the court should appoint a guardian ad 
 litem for such infant defendant. 
 
 In chancery, the complainant must see to it that the infant 
 defendants are brought in by guardian ad litem, or that they appear 
 by next friend.(&) 
 
 AFFIDAVIT OF INFANCY. 
 
 ( Title of cause.) 
 ( Venue.) 
 
 C D, being duly sworn, says that he is the defendant named in the above 
 entitled cause, and is now but years old ; that he was born at , on 
 
 the day of , A. D. 18 , and is aged years and months. 
 
 (Jurat.) C D. 
 
 The clerk should enter this order. 
 
 ORDER OF APPOINTMENT. 
 
 It appearing to the court that C D, named as defendant in this cause, is an 
 infant, ordered, that E F, of , be, and hereby is, appointed guardian ad 
 
 litem for said C D, to appear and defend for him, the said C D, herein. 
 
 If the guardian ad litem then appear and plead, it is evidence of 
 his accepting the trust. In a justices' court, the guardian should 
 sign an acceptance on the docket. 
 
 ACCEPTANCE. 
 
 I hereby accept the appointment of guardian ad litem for C D in this cause 
 
 EF. 
 
 (j) 1 Chitty's PI. ; Stephen's PL ; (k) See Hill's Chancery Pr., Infants 
 18, act April 10, 1872. See appendix, infra.
 
 118 ESTATES OF MINORS.^ [CH. IV 
 
 Powers and duties of guardians. 
 
 SECTION III. THE POWEES AND DUTIES OF GUAKDIANS. 
 
 1. Generally. 
 
 2. A guardian cannot appoint an attorney in fact to execute a deed ; under 
 
 decree or order of court of chancery, he may make compromises ; the 
 power to mortgage the ward's land is limited. 
 
 3. He may, under a decree, sell real estate. 
 
 4. Guardians are not allowed to make gain to themselves. 
 
 5. Supervision of the trust. 
 
 6. The husband of a guardian cannot act without express authority from 
 
 the guardian. 
 
 7. Fraudulent proceedings instituted by a mother are open to attack, and how. 
 
 8. A third person, generally, cannot question the power and acts of the 
 
 guardian. A guardian has no power to sell the real estate of his ward 
 unless authorized by a court of competent jurisdiction, or by legislative 
 enactment. The power must be strictly pursued, it is a naked power. 
 
 9. Fraud ; caveat emptor, how applied. 
 
 10. To act for the ward generally. 
 
 11. Guardian ad litem. 
 
 12. Custody of child may be willed. 
 
 13. Removal from another State, and charge therefor. 
 
 14. Custody may be to one and guardianship to another. 
 
 15. Testamentary guardian. 
 
 16. Must be commissioned. 
 
 17. Frugally to manage the ward's estate. 
 
 18. And educate the ward. 
 
 19. If the guardian neglects to educate, the court may interfere. 
 
 20. To invest funds, or be chargeable with interest for neglect. 
 
 1. THE POWERS AND DUTIES OF GUARDIANS GENERALLY. The 
 
 guardian of a minor shall have, under the direction of the court, 
 the custody, nurture and tuition of his ward, and the care and 
 management of all his estate. But the father of the minor, if 
 living, and, in the case of his death, the mother, they being respect- 
 ively competent to transact their own business, and fit persons, shall 
 be entitled to the custody of the person of the minor and the care 
 of his education. In case the father and mother shall liye apart, 
 the court may, for good reason, award the custody and education of 
 the minor to the mother or other proper person, (a) 
 
 2. A guardian CANNOT APPOINT AN ATTORNEY to execute a 
 deed.(J) He may make compromises under the direction of a court 
 of chancery,(c) but he cannot make admissions to bind an infant.(d') 
 
 (a) 4, R. S. 1874, p, 559. (d) Cochran v. McDowell, 15 111. 10 ; 
 
 (b) Mason v. Wait, 4 Scam. 127. Reddick v. President State Bank, 27 id, 
 
 (c) King v. King, 15 111. 187. 148.
 
 CH. IV.] ESTATES OF MINORS. 119 
 
 Guardian and ward. 
 
 Power to mortgage the ward's land is limited, (e) He may, under 
 a decree, sell real estate. 
 
 3. The decree need not fix the precise day nor hour. It is suffi- 
 cient if the court fixes certain reasonable limits within which the 
 sale shall be held, and requiring the guardian to give due notice. 
 The guardian may exercise some discretion in a mode favorable to 
 the ward's interest. (/) And as to parties to sale, sufficiency of 
 notice of application to sell, and method of masters reporting evi- 
 dence^/) 
 
 It is not necessary that it should appear that the probate court 
 had, prior to the application to sell the land, ordered and directed 
 the guardian to provide for the support and education of his ward, 
 before the action of the probate court in the premises.^) 
 
 In proceedings by administrator to sell real estate of decedent, a 
 guardian cannot admit service of the summons for the minor 
 heirs, (h) 
 
 4. GUARDIANS ABE NOT ALLOWED TO MAKE GAIN TO THEMSELVES 
 
 of trust property in their hands. They are required to put on 
 interest the moneys of their wards upon mortgage security or in 
 U. S. securities when the sum loaned is over $100, for a time not 
 to exceed three years. In this State, the statute permits the 
 guardian to lease the real estate of the ward upon such terms and 
 for such length of time, not extending beyond the minority 
 of the ward, as the probate court shall approve. If a guardian 
 neglects his duty in this respect, he will be chargeable with 
 interest after a reasonable time has elapsed within which to 
 make an investment. Six months from the receipt of the money 
 has been deemed a reasonable time for that purpose. 
 
 5. SUPERVISION OF THE TRUST. It is a general rule of the com- 
 mon law that the expenses of an infant or ward shall be kept 
 within the income or produce of his estate, but the statute provides 
 that the court, sitting in probate, may order the sale of real estate 
 of the ward for his support and education, when necessary, or for 
 re-investment, (i) 
 
 6. The husband of a guardian has no right to possess or control 
 the estate of the ward, and a payment to him on account of such 
 
 (e) Merritt v. Simpson, 41 111. 391. (k) Clark v. Thompson, 47 HI. 25. 
 
 (/) Campbell v. Harmon, 43 111.18. (i) Davis, Adm'r, v. Harkness, 1 
 
 (g) Mulford v. Stalzenback, 46 111. Gilm. 173 ; Cummins v. Cummins, 15 
 
 303. 111. 33; Cothran's Statutes, 771, 28.
 
 ESTATES OF MINORS. [ CF - IV 
 
 Powers and duties of guardians. 
 
 estate is void, unless with the express sanction or direction of the 
 guardian.(&) 
 
 7. Where a mother, in conjunction with the guardian of infants, 
 presents a claim for their nurture, which is allowed, and proceeds 
 thereupon to have the estate of the deceased father sold, and par- 
 celed out to the mother, in fraud of the children, the whole proceed- 
 ing, even upon the motion of a stranger, may be set aside and held 
 void. It is the duty of the guardian to contest such a claim, and 
 he is an incompetent witness to establish it.(Z) 
 
 8. A third person cannot question the power and acts of a guard- 
 ian, except when such person's rights depend upon the existence 
 and due exercise of the powers of the guardian, (m) 
 
 A GUARDIAN" HAS NO POWER TO SELL THE REAL ESTATE OF HIS 
 
 "WARD, unless authorized by the court, or perhaps by the legisla- 
 ture. (m) 
 
 Such a power must be considered as a naked power, and be 
 strictly pursued, (m) 
 
 9. FRAUD. The principle of caveat emptor applies to a guardian's 
 sale; and a suppressio veri on the part of the guardian will not 
 invalidate the sale or enable the purchaser to rescind it. Aliter of 
 a suggestio falsi.(m) 
 
 10. To ACT FOR THE WARD GENERALLY. The guardian shall set- 
 tle all accounts of his ward, and demand and sue for, and receive in 
 his own name as guardian, all personal property of, and demands 
 due the ward, or, with the approbation of the court, compound for 
 the same, and give a discharge to the debtor upon receiving a fair 
 and just dividend of his estate and effects.(w) 
 
 11. AD LITEM. He shall appear for and represent his ward ix 
 ALL LEGAL SUITS AND PROCEEDINGS, unless another person is 
 appointed for that purpose, as guardian or next friend; but nothing 
 contained in this act shall impair or affect the power of any court 
 or justice of the peace to appoint a guardian to defend the interest 
 of a minor impleaded in such court or interested in a suit or matter 
 therein pending, nor their power to appoint or allow any person, as 
 next friend for a minor, to commence, prosecute or defend any suit 
 in his behalf.(o) 
 
 (*) Holmes v. Field, 12 111. 424. (n) 17, R. S. 1874, p. 560. 
 
 (0 Exparte Guernsey, 21 111. 443. (o) 18, id. 
 
 (m) Mason v. Wait, 4 Scam. 127.
 
 CH. IV.] ESTATES OF MINORS. 
 
 Guardian and ward. 
 
 12. CUSTODY OF CHILD MAY BE WILLED. The father, being of 
 sound mind and memory, of a child likely to be born, or of any 
 living child, being a minor and unmarried, may, by his last will, dis- 
 pose of the custody and tuition of such child, to continue during 
 its minority, or for a less time : Provided, no such will shall take 
 effect to deprive the mother, during her life, of the custody and 
 tuition of the child, without her consent, if she be a fit and compe- 
 tent person to have such custody and tuition. The mother being 
 of sound mind and memory, and being sole or surviving the father 
 of her child, may, in like manner, dispose of the custody and tuition 
 of such child, (p) 
 
 13. Where a testator appointed a person permanently residing in 
 another State guardian for his children, it will be inferred that he 
 expected the guardian would remove the children to that State, and 
 the expense of removing the children will be a proper charge 
 against the estate, (q) Although it is generally necessary that an 
 order should be obtained from the probate court before expendi- 
 tures are made for wards, yet the rule may be deviated from under 
 extraordinary circumstances.^) 
 
 14. CUSTODY MAY BE TO ONE AND GUARDIANSHIP TO ANOTHER. 
 The guardianship of the infant's estate may be appointed to' one 
 and the custody and tuition of the minor to another, (r) 
 
 15. A TESTAMENTARY GUARDIAN shall have the same powers and 
 perform the same duties within the scope of his appointment as a 
 guardian appointed by the county eourt.(s) 
 
 16. MUST BE COMMISSIONED. A testamentary guardian, except 
 for the custody and tuition of the minor, shall, before he can act, 
 be commissioned by the county qourt of the proper county, and give 
 the bond prescribed in section seven of this act, except that, Avhen 
 the testator has requested in his will that a bond be not required, it 
 shall not be required unless from a change in the situation or cir- 
 cumstances of the guardian, or for other sufficient cause the court 
 shall deem it necessary to require it.() 
 
 17. FRUGALLY TO MANAGE THE ESTATE. The guardian shall 
 manage the estate of his ward frugally and without waste, and 
 apply the income and profit thereof, so far as the same may be nec- 
 
 (p ) 5, R. S. 1874, p. 559. (*) 8, R. S. 1874, p. 559. 
 
 (g) Cummins v. (himmins, 29 111. 452. (t) 9 id. 
 r) 6, R. S. 1874, p. 559. 
 
 16
 
 122 ESTATES OF MINORS. [CH. IV. 
 
 Resignation and removal of guardians. 
 
 essary, to the comfort and suitable support and education of his 
 ward.(w) 
 
 18. He shall EDUCATE HIS WARD, and it is made the duty of all 
 ciyil officers to give information to the county court of any neglect 
 of the guardian to his ward.(v) 
 
 19. THE COURT MAY INTERFERE IF A GUARDIAN NEGLECTS TO ED- 
 UCATE HIS WARD. When there is not money of the ward sufficient 
 to teach him to read and write and the elementary rules of arithme- 
 tic, and the guardian fails or neglects to have him so educated, the 
 court shall have power to put out the ward to any other person for 
 the purpose of having him so educated.(w) 
 
 20. To INVEST FUNDS. It shall be the duty of the guardian to 
 put and keep his ward's money at interest, upon security, to be 
 approved by the court, or invest the same in United States bonds, or 
 other United States interest-bearing securities. Personal security 
 may be taken for loans not exceeding one hundred dollars. Loans 
 in large amounts shall be upon real estate security. No loan shall 
 be made for a longer time than three years, nor beyond the minority 
 of the ward: Provided, the same may be extended from year to 
 year without the approval of the court. The guardian shall be 
 chargeable with interest upon any money which he shall wrongfully 
 or negligently allow to remain in his hands uninvested after the 
 same might have been in vested. (#) 
 
 SECTION IV. RESIGNATION AND REMOVAL. 
 
 1. The court may permit a faithful guardian to resign. 
 
 2. Petition for permission to resign. 
 
 3. Settlement of accounts, surrender of estate, and acceptance of the resigna- 
 
 tion. 
 
 4. Guardians may be removed for cause. 
 
 5. Petition for removal ; its form ; petition to be verified and filed. 
 
 6. The summons ; alias, pluries. 
 
 7. Constructive service. 
 
 (1.) Non-resident guardian 
 
 (2.) Absent guardian. 
 
 (3.) Concealed guardian. 
 
 (4.) Residence of guardian unknown. 
 
 () 19, ) (*) 22, R. S. 1874, pp. 560, 561. 
 
 (o) 20, [ R. S. 1874, p. 560. See p. 119, supra, 
 
 (w) 21, \
 
 CH. IV.] ESTATES OF MINORS. 123 
 
 Resignation and removal of guardians. 
 
 8. The notice. 
 
 9. The publication. 
 
 10. Jurisdiction to appoint another guardian, and to enforce orders in such 
 
 matters. 
 
 11. The marriage of a female ward discharges her guardian as to custody and 
 
 education, but not as to property. 
 
 12. The hearing. 
 
 18. The decree revoking the letters of guardianship. 
 
 1. THE FAITHFUL GUARDIAN MAY RESIGN. When it appears 
 proper, the court may permit the guardian to resign his trust if he 
 first settles his accounts and delivers over the estate as by the court 
 directed, (y] 
 
 Prior to the passage of the act of the 13th of April, 1849, a guard- 
 ian could not, as a matter of right, resign his trust. Still, when, 
 previous to the passage of said act, a guardian tendered his resigna- 
 tion of his guardianship to the probate court, which resignation was 
 accepted by the court and his letters of guardianship revoked, and 
 another guardian appointed in his place : Held, that the validity of 
 such revocation, and the appointment of another guardian, could 
 not be collaterally called in question, (z) 
 
 Application showing the reasons for asking to resign must be 
 made by petition. 
 
 2. PETITION FOR PERMISSION TO RESIGN. 
 
 STATE OP ILLINOIS, ) In the County Court of county. 
 
 County, f * To the term, A. D. 18 . 
 
 In the matter of the estate } 
 
 of C D, an infant. J 
 
 Your petitioner shows that, by the order and appointment of this court, on 
 the day of , A. D. 18 , he was constituted guardian of C D, as by the 
 
 records and files of this court will more fully and at large appear ; that your 
 petitioner is about to go to the State of New York to reside and there make 
 his home, and leave the State of Illinois ; that your petitioner is prepared to 
 settle his accounts and deliver over the said estate now in his hands as thia 
 court shall direct. Whereupon, your petitioner here tenders his resignation 
 of the office of guardian as aforesaid, and prays that, for the reasons above 
 assigned, this court may accept said resignation and discharge your petitioner 
 from said trust. And your petitioner will ever pray, etc. A B, petitioner. 
 
 Add a verification and file the same. 
 (y) 39, R. S. 1874, p. 5G2. (z) Young v. Lorain, 11 111. 624.
 
 ESTATES OF MINORS. [CH. IV. 
 
 Resignation and removal of guardians. 
 
 3. SETTLEMENT MUST BE MADE. Upon filing this petition, all par- 
 ties interested, especially the ward and his relatives, should be sum- 
 moned, together with the securities. The accounts should be 
 examined and proved, and the estate turned (jver to a new guardian. 
 "When all is done to the satisfaction of the court, an order may be 
 entered : 
 
 ACCEPTANCE OP RESIGNATION. 
 
 A B, who was, on the day of , A. D. 18 , appointed guardian of C 
 
 D, a minor, being about to leave the State of Illinois, to make his home and 
 to reside elsewhere, and having settled his accounts and delivered over all the 
 estate that has come to his hands, and tendered his resignation as such guard- 
 ian, ordered, that the said resignation be and is hereby accepted, and the said 
 A B discharged from his said trust. 
 
 4. GUARDIANS MAY BE REMOVED FOR CAUSE. The county court 
 may remove a guardian for his failure to give bond or security, or 
 additional or counter security, when required, or for failure to make 
 inventory, or to account and make settlement, or support or educate 
 the ward, or when he shall have become insane, or have removed out 
 of the State, or become incapable or unsuitable for the discharge of 
 his duties, or for failure to discharge any duty required of him by 
 law or the order of the court, or for other good cause, (a) 
 
 It was early held that a court of chancery may remove all guard- 
 ians, whether appointed by the court itself, by the court of probate, 
 by testament, or even by express act of the legislature, whenever it 
 is satisfied that the guardian is abusing his trust, or the interests of 
 the ward require it. (b) 
 
 GUARDIAN TO BE SUMMONED. But before removing a guardian, 
 the court must summon him to show cause why he should not be 
 removed for the cause alleged. If the guardian has left the State, 
 or cannot be served with process, he may be notified in the same 
 manner as non-resident defendants in chancery. (c) 
 
 5. PETITION FOR REMOVAL OF GUARDIAN. 
 
 STATE OP ILLINOIS, ) In the County Court of county. 
 
 County. I term, A. D. 18 . 
 
 To Hon. A B, Judge of said court : 
 
 The petition of E F, of said county, respectfully represents and shows to 
 your honor that one J K, of said county, was, on the day of , A. D. 
 
 (a) 8 37, R. S. 1874, p. 562. and the next section inaugurates in 
 
 (6) Cowls v. Cowls, 3 Qilm. 435. Sec. such matters the chanceiy practice. 
 37 seems to cover the whole ground, (c) % 38, R. S. 1874, p. 562.
 
 CH. IV.] ESTATES OF MINCES. 125 
 
 Resignation and removal of guardians. 
 
 18 , appointed by this court guardian of one C D, a minor (then) of the age 
 of six years, as will appear by reference to the records of this court ; that 
 since his said appointment as such guardian, he has mismanaged the estate of 
 the said ward by cutting, carrying off, selling and wasting the timber upon the 
 land of the said minor, to the great injury in the value of the said laud, and 
 has, in other respects, mismanaged the estate of his said ward (or, in place of 
 this, insert, with a reasonable degree of certainty, the particular facts in the 
 case, on account of which it is desired to remove the guardian). 
 
 And your petitioner further states that he is the brother of the said ward. 
 
 Wherefore your petitioner prays that, on the final hearing hereof, the said 
 guardian be removed, and his letters revoked ; and that the guardianship of 
 said minor be committed to some other person, and that said J K be cited to 
 appear at the next term of this court, and show cause, if any he has, why he 
 should not be so removed. 
 
 And your petitioner will ever pray, etc. E F. 
 
 Dated , 18 . 
 
 To which add a verification of the facts stated in the petition by 
 the oath of the petitioner, and file it.(d) 
 
 Whenever any security of the guardian conceives himself in 
 danger of suffering by the mismanagement of the guardian, he 
 may petition the county court for relief, in writing, setting forth 
 the cause of such apprehension. The court will examine the peti- 
 tion, and if it adjudge the causes therein stated and set forth to be 
 sufficient, if true, to entitle such petitioner to relief, the guardian 
 will then be summoned to show cause against the petitioner. On 
 the hearing, the court may revoke the letters of guardianship, 
 release such security, and require other security, or dismiss the peti- 
 tion. The foregoing form of petition, with slight alteration, may 
 be used by the security. 
 
 THE SUMMONS or citation should be served upon the person a rea- 
 sonable time before the day for hearing the case, that he may have a 
 fair opportunity to make his defense. 
 
 6. SUMMONS TO GUARDIAN. 
 
 STATE OF ILLINOIS, ) oc 
 County. ] ss 
 
 The people of the State of Illinois, to the sheriff of said county, greeting : 
 
 Whereas, it has been represented to the county court of said county, by the 
 petition of C D, that J K, guardian of E F, a minor, has been guilty of mis- 
 managing and wasting the estate of his said ward: These are, therefore, to 
 command you to summon the said J K to appear before the county court of 
 the county of , at the next term thereof, to be holden at the court- 
 
 (d) See p. Ill, supra.
 
 126 ESTATES OF MINORS. [CH. IV. 
 
 Resignation and removal of guardians. 
 
 house in said county on the day of , A. D. 18 , and show cause, if 
 
 any he has, why he should not be removed from his office of guardian of said 
 E F, and his letters of guardianship be revoked. And you are to make return 
 hereof according to law. 
 
 Witness L 0, clerk of the county court of county, and the 
 
 [SEAL.] seal thereof, at his office in , in said county, this day 
 
 of , 18 . L 0, Clerk county court. 
 
 On the day stated in the summons, the court will proceed to hear 
 the evidence in support of the allegations in the petition, and such 
 proof as the guardian may offer to acquit himself thereof. If, upon 
 such hearing, the judge shall decide from the evidence that there 
 exist good and sufficient reason, he -will cause the same to be 
 entered upon the record, and an order removing the guardian, and 
 also an order that he deliver up to his successor, to be appointed, all 
 goods, chattels, moneys, title papers or other effects belonging to the 
 ward, or which may be in his possession or under his control. 
 
 It is the duty of all civil county officers to give information to 
 the court of the neglect of the guardian to educate his ward. 
 Others interested in the welfare of the minors are not denied the 
 privilege of doing this. If the guardian or other party be dissatis- 
 fied with the decision of the court, either may appeal to the circuit 
 court of the county by entering into bond the same as in appeals 
 from decisions of justices of the peace. 
 
 Guardians may be removed upon complaint of any person, in 
 behalf of the minor, made to the circuit court of the county where 
 such guardian may reside, on proof of malconduct or misbehavior 
 in the performance of their duties. The same form before given 
 may, with proper alterations, be used in the circuit court. 
 
 Upon the removal of the guardian, if the minor be above four- 
 teen years of age, he may choose a guardian in place of the one 
 removed. If he should neglect or refuse to do it, the court may 
 unquestionably appoint one for him the same as if he were under 
 fourteen years of age. 
 
 7. CONSTRUCTIVE SERVICE. Whenever any complainant or his 
 attorney shall file in the office of the clerk of the court in which 
 his suit is pending, an affidavit showing that any defendant resides 
 or hath gone out of this State, or on due inquiry cannot be found, 
 or is concealed within this State so that process cannot be served 
 upon him, and stating the place of residence of such defendant, if 
 known, or that, upon diligent inquiry, his place of residence cannot
 
 CH. IV.] ESTATES OF MINORS. 127 
 
 Resignation and removal of guardians. 
 
 be ascertained, the clerk shall cause publication to be made in some 
 newspaper printed in his county, and if there be no newspaper pub- 
 lished in his county, then in the nearest newspaper published in this 
 State, containing notice of the pendency of such suit, the names of 
 the parties thereto, the title of the court, and the time and place of 
 the return of summons in the case; and he shall also, within ten 
 days of the first publication of such notice, send a copy thereof by 
 mail, addressed to such defendant whose place of residence is stated 
 in such affidavit. The certificate of the clerk that he has sent such 
 notice, in pursuance of this section, shall be evidence.(e) 
 
 FOUR SUCCESSIVE WEEKS; FORTY DAYS. The notice required 
 in the preceding section may be given at any time after the com- 
 mencement of the suit, and shall be published at least once in 
 each week for four successive weeks, and no default or proceeding 
 shall be taken against any defendant not served with summons, or a 
 copy of the bill, and not appearing, unless forty days shall intervene 
 between the first publication as aforesaid, and the first day of the 
 term at which such default or proceeding is proposed to be taken.(/) 
 
 The above provisions of the statute regulating the publication of 
 notices in chancery are, perhaps, relevant to proceedings in probate 
 courts or county courts sitting for the transaction of probate busi- 
 ness, in so far as their equitable jurisdiction is called into action. 
 It is true, however, that in the ordinary affairs of probate, the 
 statute of 1874, in relation to notices, recited hereinbefore, has 
 more special reference, the majority of cases in which notice is 
 required to be given generally falling within the class of notices 
 required, by law, to be published in which the number of publica- 
 tions is not specified. In matters of final accounting and resigna- 
 tion of executor or administrator, the probate court of Cook county 
 has provided specific rules. (g) 
 
 PROCEEDINGS AT SUBSEQUENT TERM. If, for want of due publi- 
 cation or service, in time, the cause shall be continued, then the 
 same proceedings may be had at a subsequent term of the court as 
 might have been had at the term to which said summons is return- 
 able, (h) 
 
 (e) 12, Cothran's Stats., 185. (7t) 12, 13, Cothran's Stats,, 185, 
 
 (/) 13 > Cothran's Stats., 186. 186; Hill's Chan. Pr. 18, 19. 
 
 (g) Post, rules 8, 9.
 
 128 ESTATES OF MINORS. [CH. IV. 
 
 Resignation and removal of guardians. 
 
 ALIAS, PLURIES, ETC. If in any suit in chancery the process 
 shall not be returned executed on the return day thereof, the clerk, 
 if required, shall issue an alias, pluries or other process, without an 
 order of the court therefor, (i) 
 
 As between the parties to the suit and their privies, the summons 
 or the affidavit, and advertisement with certificate of publisher 
 must be in the record- to confer jurisdiction over parties. (/) By 
 the statute of 1845 the giving of notice or the making of construc- 
 tive service materially differed from the present process. Under 
 the then statute there was no provision made for mailing copy of 
 the publication to the party to be affected by it. It was, however, 
 provided that the proceeding to bring the party in by publication 
 should " not dispense with the usual exertion on the part of the 
 sheriff, to serve the summons." This clause of the law, the supreme 
 court so construed that the procedure could not be resorted to un- 
 til a return of non est inventus had been made by the sheriff. To 
 remedy the necessary delay, as well as to avoid the useless perform- 
 ance of searching for parties sworn to be non-resident, a cui'ative 
 act was passed February 12, 1857. This in its turn has given place 
 to the imposition of the duty, on the clerk of the court, of attempt- 
 ing to notify the non-resident, unless it be sworn that his place of 
 abode is not known.(&) 
 
 SERVICE BY PUBLICATION rests on (1) the affidavit, (2) the notice, 
 (3) the certificate of the printer or publisher (I), and (4) certificate 
 of mailing. Such enactments are strictly construed. 
 
 IT SEEMS that a defective notice or certificate may be cured by 
 the recitals of the decree, if not by the presumption omnia rite esse 
 acta, etc., which obtains in favor of courts of general jurisdiction, 
 especially in cases where the decrees and judgments are called col- 
 laterally in question, (m) But the affidavit, being the foundation of 
 this special proceeding, has always received most critical attention 
 in the courts, (ri) 
 
 (i) 11, page 19, Hill's Ch. Pr. fying Randall v. Songer, 16 id. 27 ; 
 
 (j) Compare Randall v. Songer, 16 and varien v . Edmonson, 5 Gilm . 272 . 
 
 111. 28 with Reddick v. Bank, 27 id. (m) Reddick v. Bank, 27 111. 148; 
 
 148; Smith v. Trimble, id. 153. Tibbs v. Allen, id. 125. 
 
 (k) Smith v. Trimble, 27 111. 153; (n) Tibbs v. Allen, 27 111. 125; 
 
 McDanielv. Correll, 19 id. 227. Jones' Forms, 281. 
 
 (I) Tibbs v. Allen, W 111. 125; modi-
 
 CH. IV.] ESTATES OF MINORS. 129 
 
 Resignation and removal of guardians. 
 
 A CAREFUL EXAMINATION of the authorities shows the requisites 
 of such affidavits to be, (1) A suit pending when they are made; 
 (2) Positive terms, not on information or belief; (3) They should 
 be correctly entitled in the proper court; (4) They should contain 
 facts, not conclusions of law; (5) They must be made by the party 
 himself, or his attorney, (o) 
 
 Affidavit of the non-residence of a guardian may be made after 
 the following precedent: 
 
 (1.) NON-RESIDENT GUARDIAN. 
 (Title of matter.) 
 
 STATE OP ILLINOIS, ) 
 
 County, y ** 
 
 A B, being duly sworn, upon his oath, says, that he is the petitioner, and that 
 E F, guardian of C D, herein named in the above-entitled matter, resides at 
 , in the county of , in the State of , and further 
 
 deponent saith not. 
 
 (Jurat.) A B. 
 
 The court as well as the clerk can, from such an affidavit and the 
 facts stated in it, draw the legal conclusion that B F resides out of 
 this State, and determine the propriety of publication. 
 
 In case of filing such an affidavit, no action on the part of the 
 sheriff, of course, could reach E F, and notice of publication may 
 now issue at once without a return, wow est inventus.(p) The inter- 
 vention of the sheriff being no longer essential to jurisdiction in 
 the court. 
 
 But in the four other cases: (1) Absence of a resident defendant, 
 or (2), his concealment, or (3), where his residence is unknown or 
 he cannot be found, and (4), where his name is unknown, or he is 
 unknown, such a return was held essential to the validity of the 
 notice of publication.^) The following forms are suggested: 
 
 (o) 24 111. 281; 1 Daniel's Ch. Pr., ch. (p) Laws of 1874, 199, 8 8. 
 22, 10; 8 Paige, 414; Campbell v. (q) 19 111. 227; 27 id. 153. 
 Morrison, 7 Paige, 157; 41 111., 49; 3 
 Qreenleaf's Evid., pp. 336, 342.
 
 130 ESTATES OF MINORS. [OH. IV. 
 
 Resignation and removal of guardians. 
 
 (2.) ABSENT GUARDIAN. 
 
 (Title of cause, venue, etc.) 
 
 A B, being duly sworn, says, that he is the petitioner ; that E F, guardian in 
 this matter of C D, who resided recently (or whose usual place of abode is) at 
 , in the county of , in this State, has departed from thence and gone 
 
 (with all his family) (on a journey to Europe) (or to the State of ) for the 
 
 time being (or is now out of this State, and that upon diligent inquiry his 
 place of residence cannot be ascertained), and further deponent saith not. 
 
 (Jurat.) A B. 
 
 From such facts, coupled with the sheriff's return on file, it 
 appears that ordinary service cannot be made on E F, although a 
 resident guardian, on account of temporary absence. 
 
 (3.) CONCEALED GUARDIAN. 
 
 (Title of proceeding.) 
 
 ( Venue.) 
 
 A B, being duly sworn, says, that he is the petitioner in this matter ; that E 
 F, guardian of C D herein, at the time of issuing of the summons herein, 
 resided at , in the county of , in this State, but on learning that C 
 
 D, the sheriff of said county, had such a summons, and was looking for said 
 E F, he, the said E F, concealed himself within this State, and so continues to 
 avoid the service of process herein, and that upon diligent inquiry his place 
 of residence cannot be ascertained, and further deponent saith not. 
 
 (Jurat.) A B. 
 
 (4.) RESIDENCE OF GUARDIAN UNKNOWN. 
 
 Another case is provided for, to wit: where a guardian on due 
 inquiry cannot be found, and where his residence is unknown and 
 cannot, upon diligent inquiry, be ascertained. In this case also, the 
 summons should be issued and returned "upon diligent search and 
 inquiry made and had, I cannot find the within-named guardian E 
 F in my county, nor can I learn where he is," etc. 
 
 Upon this return and an affidavit as follows : 
 
 (Title, venue, etc.) 
 
 A B, being duly sworn, says, that he is the petitioner in the above-entitled 
 proceeding, and that the residence of the guardian E F herein is unknown, 
 and cannot, upon diligent search and inquiry, which have been made, be ascer- 
 tained, and that the said E F cannot, on due inquiry, be found, and further 
 deponent saith not. 
 
 (Jurat.) A B. 
 
 The publication notice will issue. 
 
 But few decisions have been made on the requisites of such affida-
 
 CH. IV.] ESTATES OF MINORS, lol 
 
 Resignation and removal of guardians. 
 
 vits. The importance of their sufficiency is forcibly stated in 
 Campbell v. McCahan, 41 111. 49.(s) 
 
 The notice should be published immediately on filing the affi- 
 davit, and the affidavit must be filed as soon as it is made. Unrea- 
 sonable delay in either case would prove fatal to the jurisdiction 
 over the defendant.(^) 
 
 8. THE NOTICE. The form of a chancery notice, as used 
 generally throughout the State, in cases of non-resident defendants, 
 may be found at page 657, Hill's Chancery Practice, and in Jones' 
 Forms, No. 472, page 282. It may be varied to meet the exigencies 
 of any cause. 
 
 (1.) PUBLICATION" NOTICE. Where defendants have not been 
 served with process, the clerk may make publication of notice to 
 them without an order of the court under the statute, and it will 
 be sufficient(w) 
 
 (2.) "Where one of several defendants to a bill in chancery is a 
 non-resident, and the notice by publication is insufficient to charge 
 him, and the other defendants are personally served with notice, the 
 latter cannot raise objections to the insufficiency of the notice by 
 publication, (v) 
 
 KOTICB TO GUARDIAN. 
 
 STATE OP ILLINOIS, j In the County Court of county. 
 
 county, j term, 18 . 
 
 In the matter of the ) 
 guardianship of C D. ) 
 
 Affidavit of the non-residence of the guardian above named, having been 
 filed in the office of the clerk of said county court of county, notice is 
 
 hereby given to the said guardian that one E H filed his petition in said court, 
 on the day of , 18 , and that a summons thereupon issued out 
 
 of said court against said guardian , returnable on the Monday of 
 
 next (18 ), as is by law required. 
 
 Now, unless you, the said C D, shall personally be and appear before said 
 county court of county, on the first day of the next term thereof, to be 
 
 holden in in said county, on the third Monday of , 18 , and (w) 
 
 show cause against said petition, why you should not be removed from your 
 trust as guardian of the said C D, and answer such other matters as are in said 
 petition set forth, the same, and the matters and things therein charged and 
 
 (*) See Hill's Ch. Pr. 18. Laws 1827, p. 48 ; 1833, p. 63 ; R. S. 47, 
 
 (t) Campbell v. McCahan, 41 111. 45. P. 77 and 78, S. 81, Gross, 6. See p. 
 
 (u) Ayres v. Lusk, 1 Scam. 536. 51, supra, 
 (v) Fergut v. Tinkham, 38 111. 407 ; (w) See page 133, supra.
 
 132 ESTATES OF MINORS. [CH. IV. 
 
 Resignation and removal of guardians. 
 
 stated, will be taken as confessed, and a decree entered against you, ac- 
 cording to the prayer of said petition. 
 
 , Complainant's solicitor. , Clerk. 
 
 9. DAILY PAPER. If published in a daily paper, publication on 
 Sunday is forbidden by the policy of the law and prohibited by 
 statute, and no greater amount is chargeable for costs for publica- 
 tion fee than would be sufficient to publish the same notice in a 
 weekly paper. 
 
 In an adversary proceeding in the 'courts, the publication notices 
 and all matters pertaining to them being usually directory, no ques- 
 tions collaterally can be raised relative thereto, but it is otherwise in 
 special proceedings. In computation of time, Sunday is dies non 
 juridicus. (x) In computing the time of the publication, the day 
 of the publication should be excluded, and the day of the commence- 
 ment of the term of the court included. When certified by the 
 publisher or his agent and a copy of the notice filed with the certi- 
 ficate, these become a part of the record, (y) Proof of publication 
 may be made otherwise, however, than by the publisher. 
 
 In collateral proceedings the notice cannot be impeached. A cer- 
 tificate, declaring that an advertisement was published " for four 
 successive weeks, the first publication having been made on the 8th 
 day of March, 1850," will, in a chancery proceeding against an un- 
 known person, confer jurisdiction on the court, although the certi- 
 ficate proceeds to state, "and the last on the 26th of April, 18.50," 
 the inference being, that the certificate was published eight weeks ; 
 and, in a collateral proceeding, the presumption will be, that the 
 court had other evidence that publication was duly made, (z) 
 
 10. ANOTHER GUARDIAN APPOINTED. Upon the removal, resigna- 
 tion or death -of a guardian another may be appointed, who shall 
 give bond and security and perform the duties of the office. And 
 the court shall have power to compel the guardian so removed or 
 resigned, or the executor or administrator of a deceased guardian, 
 or the conservator of an insane person, or other person, to deliver 
 up to such successor all the goods, chattels, moneys, title papers, 
 and other effects in his custody or control, belonging to such minor ; 
 and upon failure to so deliver the same, to commit the person offend- 
 ing to jail until he shall comply with the order of the court.(a) 
 
 (x) Scammon v. Chicago, 40 111. 146 ; v. Wiltberger, id. 385 ; Botsford v. 
 
 12 id. 358. 0' Conner, 57 id. 72. 
 
 (y) Varien v. Edmonton. 5 GUm. 272; (z) Pile v. McSratney, 15 111. 314. 
 
 Harper v. Ely, 56 111. 179 ; Tompkins (a) % 40, R. S. 1874, p. 562.
 
 CH. IV.] ESTATES OF MINORS. 133 
 
 Resignation and removal of guardians. 
 
 11. THE MAREIAGE OF A FEMALE WARD shall discharge her guar- 
 dian from all right to her custody and education, but not to her 
 property. (5) 
 
 12. THE HEARING. On filing the petition for the removal of a 
 guardian for cause, as we have seen, process issues. The time for 
 hearing should be fixed and continued from time to time until the 
 guardian is either actually or constructively served. No course of 
 procedure is indicated, but the Chancery Practice in such cases 
 affords ample precedents, if we are to consider the petition in the 
 nature of a bill in chancery. 
 
 The decree should recite the facts upon which the same is made, (c) 
 
 13. DECREE OF REMOVAL OF GUARDIAN. 
 
 The petition of A B coming on this day to be heard, and it appearing that 
 C D, the guardian of E F aforesaid, has filed his answer herein, denying the 
 facts stated in said petition, and it appearing to the court from the testimony 
 that C D has mismanaged said estate as stated in said petition, and that all the 
 facts stated in said petition are true and have been fully proved to the satisfac- 
 tion of this court, and after argument by the respective counsel for said peti- 
 tioner and said guardian, it is nowhere ordered, adjudged and decreed, 
 that said guardian's accounts be forthwith closed ; that all the estate of the 
 said E F, which has come to the hands of the said C D, as such guardian, now 
 remaining undisposed of, be delivered over to another guardian to be by this 
 court appointed, and that the letters of guardianship heretofore issued to the 
 said C D be and hereby are revoked ; and that the said C D attend before this 
 court from day to day until this decree and the several orders herein are fully 
 complied with. 
 
 Dated , A. D. 18 . 
 
 Another guardian is then to be nominated and appointed as before 
 and the estate turned over to him. (d) 
 
 For further delineation of the law of guardian and ward, and the 
 jurisdiction and practice, the reader is referred to subsequent chapters 
 and to Hill's Chancery Practice, " Infants. " 
 
 (1.) GUARDIAN AD LITEM ; DECISIONS. An answer of a guardian 
 ad litem, if it admit the truth of the charges in the complainant's 
 bill; cannot affect the infant's rights ; but, with respect to him, all 
 allegations must be proved with the same strictness as if the answer 
 had interposed a direct and positive denial of their truth, (e) 
 
 (6) g 41. R. S. 1874, p. 562. (d) See page 111, supra. 
 
 (c) See Hill's Chan. Pr., Bill and De- (e) McGlay, Adm'r, v. Norris, 4 Gilm. 
 
 cree, Answer, Demurrer, Plea, etc., etc. 370 ; Chaffin v. Heirs of Kimball, 23 
 
 But see Bressler v. McCune. 56 111. 565. 111. 36.
 
 134 ESTATES OF MINORS. [CH. IV. 
 
 Resignation and removal of guardians. 
 
 (2.) WAIVER. A guardian ad litem cannot waive any of the rights 
 of the defendant whom he represents, and when incompetent and 
 illegal evidence is introduced without objection by the guardian, the 
 court is bound to notice and exclude such evidence. (/) 
 
 (3.) Upon an application to sell the real estate of a decedent for 
 the payment of debts, infant heirs, who have not guardians appear- 
 ing for them, must be represented by guardians ad litem. (g) 
 
 (4.) It is not necessary that there should be a guardian, or proclmn 
 ami, for a minor at the time of suing out process. If the rule were 
 otherwise, it should be taken advantage of by plea in abatement, or 
 by motion to quash, (h) 
 
 (5.) It is the duty of the court to appoint a guardian ad litem to 
 protect the interests of infant suitors, (i) 
 
 (6.) The failure of a guardian ad litem to answer for the infant 
 does not take away the jurisdiction of the court over the infant. (/) 
 
 (7.) Where infants are not in court, owing to the fact that notice 
 of publication is void, the appointment of a guardian ad litem is 
 void. (&) 
 
 (8.) The appointment of, for minor defendants, not naming them, 
 is inoperative, where the record likewise fails to show that any of 
 defendants are minors. (I) 
 
 (9.) APPOINTMENT OF. As to, by the court, sua sponte; and 
 whether and when on plaintiff's motion; need not be related to the 
 infants. Executor not necessarily the guardian, (m) 
 
 (10.) Answer not binding on infants, (m) 
 
 (11.) Court should require answer of, before entering final de- 
 cree, (m) 
 
 (12.) To vigorously defend the interest of the infants, (m) 
 
 (13.) A guardian ad litem must be appointed for infant defend- 
 ants, or the proceedings against them will be erroneous, (ri) 
 
 (14.) Jurisdiction is not conferred by answer of guardian ad litem, 
 where there has been no service, (o) 
 
 (15.) The appointment of " the clerk of the court " without nam- 
 ing him is sufficient, (p) 
 
 (/) Cartwright v. Wise, 14 HI. 417. (I) Sullivan v. Sullivan, 42 111. 315. 
 
 (g) Herdman v. Short, 18 111. 59. (m) Rhoads v. Rhoads, 43 111. 239. 
 
 (A) Stumps v. Kdly, 22 111. 140. (n) Hall v. Davis, 44 111. 494 ; Quig- 
 
 (t) Loyd v. Malone, 23 111. 43. ley v. Roberts, id. 503. 
 (j) Ooudy v. Hall, 36 111. 313. (o) Clark v. Thompson, 47 111. 25. 
 
 (k) McDermaid v. Russell, 41 111. 490. ( p) Hess v. Voss, 52 111. 472.
 
 CH. Y.J ESTATES AND PERSONS OF THE INCAPACITATED. 135 
 
 The insane, etc. ; decisions. 
 
 CHAPTER V. 
 
 SECTION I. The insane, etc. ; decisions. 
 
 II. Appointment of conservators their powers and duties restor- 
 ation and removal. 
 III. Commitment and detention of such persons. 
 
 SECTION I. THE INSANE, ETC.; DECISIONS. 
 
 1. Evidence aa to insanity, and presumptions as to sanity, onus probandi. 
 
 2. Lucid intervals, contracts, etc. 
 
 3. Questions relative to sanity and insanity, proper issues for a jury. 
 
 4. Facts indicating a disposing mind and eo converse. 
 
 5. Mere mental weakness insufficient to authorize equity to interfere in matters 
 
 of contract. 
 
 6. Drunkenness producing inability or insanity, however, is sufficient. 
 
 7. Idiots and lunatics ; conservators ; their appointment and discharge. 
 
 8. Insanity as a defense against a criminal charge. 
 
 1. It cannot be presumed, against proof, that a person was insane 
 merely because his mother had been so.(a) The law presumes every 
 man to be sane, but when insanity is once proved to have existed, 
 the law presumes it still to continue. (b) In questions of insanity, 
 the affirmative testimony of those best acquainted with the person 
 alleged to be insane should outweigh the testimony of those who 
 merely testify, from interviews at or about the time of the act 
 sought to be avoided for insanity, that they saw nothing indicating 
 an insane mind.(c) In cases involving questions of insanity, the 
 presumption is in favor of sanity, and the onus of proof is on the 
 party seeking to impeach an instrument executed by a person of 
 competent age and under no legal disabilities.(^) 
 
 2. A contract, entered into during the LUCID INTERVALS of one 
 who is a lunatic, is valid. (e) A deed executed several years before 
 the maker was, by inquest, found insane has the legal presumption 
 
 (a) Snow v. Benton, 28 111. 306. (<f) Myatt v. Walker, 44 111. 485. 
 
 (6) Menkim v. Lightner, 18 111. 282. (e) Lilly v. Waggoner, 27 111. 395. 
 (e) Emery r. Hoyt, 46 111. 258.
 
 136 ESTATES AND PERSONS OF THE INCAPACITATED. [OH. V. 
 
 The insane, etc. ; decisions. 
 
 of validity in its favor.(e) The evidence showing the insanity of a 
 party at the time of the execution of a deed must preponderate, or 
 the legal presumption in favor of sanity will sustain the act.(e) In 
 an action upon a promissory note, the defendant, who alleges insan- 
 ity when it was made, is not bound to overcome or pay any regard 
 to a finding of an inquest in the county court that he was sane on a 
 day prior to that on which the note was made.(/) When insanity 
 is established in the maker of a contract, at times both before and 
 after its execution, as a defense to an action to enforce the contract, 
 the burden is on the plaintiff to show that it was made in a lucid 
 interval. The fact that the consideration of the note was adequate 
 would not of itself justify the inference that the maker was sane 
 when he made it.(/) 
 
 3. Formerly the intervention of a jury was not an absolute 
 necessity in dealing with the insane.(^) It is otherwise now. 
 
 4. HOMICIDE, FOLLOWED BY SUICIDE, and a disposition of prop- 
 erty entirely at variance with long-declared intentions, and the exhi- 
 bition of unnatural malice toward a child, are not of themselves 
 sufficient to raise a presumption of insanity, and the want of a dis- 
 posing mind. (A) 
 
 The rule which permits EVIDENCE AS TO THE PECUNIARY CONDI- 
 TION, means and ability of the beneficiaries of a will, and of those 
 who might be benefited by overthrowing it, with a view of deter- 
 mining whether the testator appreciates his relation to them, and 
 exhibits a capable and disposing mind, has no application to the case 
 of a gift accompanied with delivery, (h) 
 
 5. MERE MENTAL WEAKNESS will not authorize a court of equity 
 to set aside an executed contract unless such weakness amounts to 
 inability to comprehend the contract, and is accompanied by evi- 
 dence of imposition or undue influence, (i) 
 
 6. The law will protect a party from the effects of his own acts 
 done in a state of insanity, even though the INSANITY is CAUSED BY 
 DKUNKENNESS.(y) Evidence of a sober interval, after a long period 
 of continued drunkenness and craziness, does not show that state of 
 rnind necessary to the validity of a contract.(y) 
 
 (e) Lilly v. Waggoner, 27 111. 395. (h) Crum, adm'r, v. Thornly, 47 111. 
 
 (/) Emery v. Hoyt, 46 111. 258. 192. 
 
 07) Myatt v. Walker, 44 111. 485. (i) Miller v. Craig, 36 111. 109. 
 
 (j) Menkins v. Lightner, 18 111. 282
 
 H. V.J ESTATES AND PEKSONS OF THE INCAPACITATED. 137 
 
 The insane, etc. ; decisions. 
 
 7. IDIOTS AND LUNATICS. Under the provisions of the Kevised 
 Statutes, concerning idiots and lunatics, application may be made 
 by one who has been declared a lunatic, and for whom a conservator 
 has been appointed, to the same court where the former proceedings 
 took place for the discharge of the conservator, and the restoration 
 of the property in his hands. (&) "Where a conservator to a lunatic 
 is sought to be appointed under the statute, the lunatic must have 
 reasonable notice, or the inquisition will be set aside. (I) 
 
 8. INSANITY AS A DEFENSE. The presumption is that all men 
 are of sufficient capacity to be responsible for crime; therefore, the 
 prisoner must establish his insanity.(m) It need not, however, be 
 established beyond a reasonable doubt; it is enough if the jury be 
 reasonably satisfied thereof by the weight or preponderance of the 
 evidence, (w) If the accused had, at the time of the offense, capacity 
 and reason sufficient to enable him to distinguish between right and 
 wrong, and understand the nature of the act, and his relation to the 
 party injured, the defense of insanity is not made out. (m) The 
 prosecution is not bound to prove the sanity of a defendant in a 
 criminal case ; but if evidence of insanity is introduced by the ac- 
 cused, and there is reasonable doubt of his sanity, he is entitled to 
 the benefit of the doubt.(w) When a defendant, who is being tried 
 upon a criminal charge, sets up insanity as an excuse for the act, 
 he does not thereby assume the burden of the proof upon that ques- 
 tion. Such a defense is only a denial of one of the essential allega- 
 tions against him.(o) And in sustaining such a defense it is not 
 necessary that the insanity of the accused be established, even by a 
 preponderance of proof ; but if, upon the whole evidence, the jury 
 entertain a reasonable doubt of his insanity, they must acquit.(o) 
 Where a party who is upon trial on an indictment for murder inter- 
 poses the defense of insanity, the rule in regard to the degree of in- 
 sanity which would demand an acquittal is, that whenever it shall 
 appear from the evidence that, at the time of doing the act charged, 
 the prisoner was affected with insanity, and such affection was the 
 efficient cause of the act, and that he would not have done the act 
 but for that affection, he ought to be . acquitted.(o) But- this 
 unsoundness of mind must be of such a degree as to create an un- 
 
 (k) Ayres v. Mussetter, 46 111. 472. (ri) Chase v. People, 40 111. 352. 
 
 (I) Eddy v. People, 15 111. 386. (tf) Hopps v. People, 31 111. 385. 
 (m) Fisher v. People, 23 111. 283. 
 
 18
 
 138 ESTATES AND PERSONS OF THE INCAPACITATED. [CH. V. 
 
 Conservators. 
 
 controllable impulse to do the act charged, by overriding the reason 
 and judgment, and obliterating the sense of right and wrong as to 
 the particular act done, and depriving the accused of the power of 
 choosing between them.(o) 
 
 SECTION II. APPOINTMENT OF CONSERVATORS; THEIB POWERS 
 
 AND DUTIES. 
 
 1. When a conservator may be appointed. 
 
 2. Summons to be issued. 
 
 3. Conservator to give bond. 
 
 4. Bonds may be put in suit. 
 
 5. Duties of conservator, generally. 
 
 6. To take charge of the estate of his ward, and return inventories. 
 
 7. Requisites of an inventory. 
 
 8. Conservator to settle his account at least annually. 
 
 9. On final settlement to deliver estate and title papers. 
 
 10. The final accounting. 
 
 11. Conservator to settle all accounts of his ward, and sue in his own name. 
 
 12. May with consent of court perform the personal contracts of the ward. 
 
 13. To appear and represent his ward in all suits and proceedings. 
 
 14. Contracts of a lunatic after finding of a jury, void as to the lunatic. 
 
 15. Contracts made before such finding, when may be avoided. 
 
 16. Trading, bartering or gaming with a lunatic, etc., prohibited. 
 
 17. Conservator to frugally manage the estate. 
 
 18. Investments to be made. 
 
 19. Conservator may lease his ward's estate. 
 
 20. He may by leave of the county court mortgage the same. 
 
 21. Petition for leave to be filed. 
 
 22. Strict foreclosure prohibited and redemption prescribed. 
 
 23. Sale of real estate may on petition of the conservator be ordered by the 
 
 county court. 
 
 24. The petition. 
 
 25. Notice of application. 
 
 26. Procedure as in chancery. 
 
 27. Notice of sale. 
 
 28. Report of sale and deed. 
 
 29. Account of proceeds. 
 
 30. Sureties of the conservator to be looked after and kept sufficient. 
 
 31. Conservator may be required to give counter security. 
 
 32. Conservator may be removed. 
 
 (o) Hopps v. The People, 31 111. 385.
 
 CH. Y.J ESTATES AND PEKSONS OF THE INCAPACITATED. 139 
 
 Conservators. 
 
 33. To be first summoned. 
 
 34. He may in a proper case resign. 
 
 35. Another conservator may be appointed. 
 
 36. Fees and compensation of the conservator to be reasonable and just. 
 
 37. Conservator may be discharged and the property restored to the owner on 
 
 his restoration to reason or reformation. 
 
 38. Notice of application to be given to the conservator. 
 
 39. Procedure on the application. 
 
 40. Appeals. 
 
 41. Conservator, guardian, curator, or committee of any non-resident idiot, 
 
 lunatic, insane or distracted person, spendthrift or drunkard, may collect 
 debts and recover property of ward in this State. 
 43. Application for sale of such ward's estate to be made to the circuit court. 
 
 43. Notice of application. 
 
 44. Bond may be required. 
 
 45. Bond for costs must be given. 
 
 46. Repeal of former laws. 
 
 1. Whenever any idiot, lunatic or distracted person has any estate, 
 real or personal ; or when any person by excessive drinking, gaming, 
 idleness or debauchery of any kind so spends, wastes or lessens his 
 estate as to expose himself or his family to want or suffering, or 
 any county, town, or incorporated city, town or village to any 
 charge or expense for the support of himself or his family, the 
 county court of the county in which such person lives shall, on the 
 application of any relative or creditor, or if there be neither relative 
 or creditor, then any person living in such county, order a jury to 
 be summoned to ascertain whether such person be idiot, lunatic or 
 distracted, a drunkard or such spendthrift; and if the jury return 
 in their verdict that such person is idiot, lunatic or distracted, or 
 drunkard, or so spends, wastes or lessens his estate, it shall be the 
 duty of the court to appoint some fit person to be the conservator 
 of such person. (p) This jurisdiction has not been conferred on 
 probate courts. 
 
 2. On an application for the appointment of a conservator of any 
 person being filed, summons shall be issued and served upon the 
 person for whom a conservator is sought to be appointed, in the 
 same manner as summons is issued and served in cases in chancery. 
 When the application is against an idiot or lunatic, the ck-rk of the 
 court in which the application is filed shall also give not less than 
 ten (10) days' notice thereof by at least one insertion in some news- 
 paper published in the county.(^) 
 
 (p) Cothran's Stats, 955, 1. (q) % 2, id.
 
 140 ESTATES AND PERSONS OF THE INCAPACITATED. [CH. V. 
 
 Conservators. 
 
 3. The conservator so appointed shall, before entering upon the 
 duties of his office, give bond payable to the people of the State of 
 Illinois, with at least two sufficient sureties, to be approved by the 
 court, in double the amount of his ward's real and personal estate, 
 with such condition as near as may be as provided in the case of the 
 bonds of guardians of infants. Additional bonds and counter 
 security may be required as hereinafter provided.(r) 
 
 4. Bonds given in pursuance of this act may be put in suit in the 
 name of the people of the State of Illinois, to the use of any per- 
 son entitled to recover on the breach thereof, and damages adjudged 
 on proceedings had thereon as in other cases of penal bonds.(s) 
 
 5. Such conservator shall have the care and management of the 
 real and personal estate of his ward, and the custody of his person 
 unless otherwise ordered by the court, and the custody and educa- 
 tion of his children, where no other guardian is appointed, unless 
 the court orders otherwise ; but this act shall not be so construed 
 as to deprive the mother of the custody and education of the 
 children without her consent, if she be a fit and competent person 
 to have such custody and education.(rf) 
 
 6. The conservator shall, immediately upon his appointment, 
 take charge of the estate of his ward, and within sixty days after 
 such appointment, or, if the court is not in session at the expiration 
 of that time, at the next term thereafter, return to the court a true 
 and perfect inventory of the real and personal estate of the ward, 
 signed by him and verified by his affidavit. As often as other estates 
 shall thereafter come to his knowledge he shall return an inventory 
 thereof within sixty days from the time the same shall come to his 
 knowledge.(w) 
 
 7. The inventory shall describe the real estate, its probable value 
 and rental, and state whether the same is incumbered, and if incum- 
 bered, how and for how much ; what amount of money is on hand, 
 and contain a list of all personal property, including annuities and 
 credits of the ward, designating them as "good," "doubtful/' or 
 " desperate," as the case may be.(v) 
 
 8. The conservator shall, at the expiration of a year from his 
 appointment, settle his accounts as conservator with the county 
 court, and at least once each one (1) year thereafter, and as much 
 oftener as the court may require.(w) 
 
 (r) 3, R. 8. 1874, p. 685. 
 () 4, id., p. 686. 
 (0 5, id.
 
 CH. V.] ESTATES AND PEKSONS OF THE INCAPACITATED. 141 
 
 Conservators. 
 
 9. Such conservator, at the expiration of his trust, shall pay and 
 deliver to those entitled thereto all the money, estate and title papers 
 in his hands as conservator, or with which he is chargeable as such, 
 in such manner as shall be directed by the order or decree of any 
 court having jurisdiction thereof.() 
 
 10. On every accounting or final settlement of a conservator, he 
 shall exhibit and file his account as such conservator, setting forth 
 specifically, in separate items, on what account expenditures were 
 made by him, and all sums received and paid out since his last 
 accounting, and on what account each was received and paid out, 
 and showing the true balance of money on hand, which account 
 shall be accompanied by the proper vouchers, and signed by him 
 and verified by his affidavit.^) 
 
 11. The conservator shall settle all accounts of his ward, and demand 
 and sue for and receive in his own name, as conservator, all personal 
 property of and demands due the ward, or with the approbation of 
 the court compound for the same, and give a discharge to the debtor 
 upon receiving a fair and just dividend of his estate and effects.(z) 
 
 12. The conservator, by permission and subject to the direction 
 of the court which appointed him, may perform the personal con- 
 tracts of his ward, made in good faith and legally subsisting at the 
 time of the commencement of his disability, and which may be 
 performed with advantage to the estate of the ward. (a) 
 
 13. He shall appear for and represent his ward in all suits and 
 proceedings, unless another person is appointed for that purpose as 
 conservator or next friend ; but nothing contained in this act shall 
 impair or affect the power of any court to appoint a conservator or 
 next friend, to defend the interest of said ward impleaded in such 
 court, or interested in a suit or matter therein pending, nor its 
 power to appoint or allow any person as next friend for such ward, 
 to commence, prosecute or defend any suit in his behalf, subject to 
 the direction of such court.(J) 
 
 14. Every note, bill, bond or other contract by an idiot, lunatic, 
 distracted person or spendthrift, made after the finding of the jury, 
 as provided in section one of this act, shall be void as against the 
 idiot, lunatic, distracted person, drunkard or spendthrift, and his 
 estate; but the person making any contract with such idiot, lunatic, 
 distracted person or spendthrift shall be bound thereby.(c) 
 
 (a;) 9, R. S. 1874, p. 686. (a) % 12, id. 
 
 (31) 1 10, id. (b) % 13, id, p. 687. 
 
 (z) 1 11, id. (c) $ 14, id.
 
 142 ESTATES AND PERSONS OF THE INCAPACITATED. [CH. V. 
 
 Conservators. 
 
 15. Every contract -made with an idiot, lunatic or distracted per- 
 son before such finding, or with a drunkard or spendthrift made 
 after the application for the appointment of a conservator, may be 
 avoided, except in favor of the person fraudulently making the 
 same.(rf) 
 
 16. Whoever, by trading with, bartering, gaming or any other 
 device, possesses himself of any property or valuable thing belong- 
 ing to any idiot, lunatic or notoriously distracted person, drunkard 
 or spendthrift, shall be deemed guilty of swindling, and upon con- 
 viction thereof be fined in a sum not exceeding two thousand dol- 
 lars, or confined in the county jail not exceeding one year, or 
 both.(e) 
 
 17. The conservator shall manage the estate of his ward frugally 
 and without waste, and apply the income and profit thereof, so far 
 as the same may be necessary, to the comfort and suitable support 
 of his ward and his family, and the education of his children. (/) 
 
 18. It shall be the duty of the conservator to put and keep his 
 ward's money at interest, upon security to be approved by the court, 
 or invest the same in United States bonds or other United States 
 interest-bearing securities. Personal security may be taken for 
 loans not exceeding one hundred dollars. Loans in larger amounts 
 shall be upon real-estate security. No loan shall be made for a 
 longer time than tliree years, unless authorized by the court : Pro- 
 vided, the same may be extended from year to year, without the 
 approval of the court(^) 
 
 19. The conservator may lease the real estate of the ward, upon 
 such terms and for such length of time as the county court shall 
 approve.(A) 
 
 20. The conservator may, by leave of the county court, mortgage 
 the real estate of the ward for a term of years, or in fee.( i ) 
 
 21. Before any mortgage shall be made, the conservator shall 
 petition the county court for an order authorizing such mortgage 
 to be made, in which petition shall be set out the condition of the 
 estate and the facts and circumstances on which the petition is 
 founded, and a description of the premises sought to be mortgaged.(y) 
 
 22. No decree of strict foreclosure shall be made upon any such 
 mortgage, but redemption shall be allowed, as is now provided by 
 
 (d) 15, R. S 1874, p. 687. (A) 19, id. 
 
 () 16, id. (0 20, id. 
 
 (/)|17, id. tf)31, id. 
 (3) 8 18, id.
 
 CH. V.] ESTATES AXD PERSONS OF THE INCAPACITATED. 143 
 
 Conservators. 
 
 law iu cases of sales under executions upon common-law judg- 
 ments.^) That is within twelve months. 
 
 23. On the petition of the conservator, the county court of the 
 county where the ward resides, or if the ward does not reside in the 
 State, of the county where the real estate or some part of it is situ- 
 ated, may order the sale of the real estate of the ward for his sup- 
 port and that of his family when the court shall deem it necessary, 
 or to invest the proceeds in other real estate, or for the purpose of 
 otherwise investing the same or for the purpose of paying the debts 
 of the ward or the education of the children of said ward.(Z) 
 
 24. The petition shall set forth the condition of the estate and 
 the facts and circumstances on which the petition is founded, and 
 shall be signed by the conservator and verified by his affidavit, and 
 shall be filed at least ten days before the commencement of the term 
 of court at which the application shall be made.(w) 
 
 25. Notice of such application shall be given to all, persons con- 
 cerned by publication in some newspaper published in the county 
 where the application is made at least once in each week for three 
 successive weeks, or if no newspaper is published in such county, by 
 .setting up written or printed notices in three of the most public places 
 in the county at least three weeks before the session of the court at 
 which such application shall be made. The ward shall be served 
 with a copy of such notice at least ten days before the hearing of 
 such application. Such service may be proved in the same manner 
 as the service of a copy of a bill in chancery. (n) 
 
 26. Such application shall be docketed as other causes, and the 
 petition may be amended, heard or continued for further notice or 
 for other cause. The practice in such cases shall be the same as in 
 other cases in chancery.(o) 
 
 27. The court shall direct notice of the time and place of sale to 
 be given, and may direct the sale to be made on reasonable credit, 
 and require such security of the conservator or purchaser as the 
 interest of the ward may require.( p) 
 
 28. It shall be the duty of the conservator making such sale, as 
 soon as may be, to make return of such sale to the court granting the 
 order, which, if approved, shall be recorded, and shall vest in the pur- 
 chaser or purchasers all the interest of the ward in the estate so sold.^) 
 
 (k) 22, R. S. 1874, p. 687. (o) 26, id. 
 
 (0 23, id. (p) 8 27, id. 
 
 (m) 24, id., p. 688. (?) 28, id. 
 () 25, id.
 
 144 ESTATES AND PERSONS OF THE INCAPACITATED. [cil. V. 
 
 Conservators. 
 
 29. An account of all moneys and securities received by any con- 
 servator for the sale of real estate of his ward, shall be returned oil 
 oath of such conservator to the county court of the county where 
 letters of conservatorship were obtained, and such money shall be 
 accounted for, and subject to the order of the county court in like 
 manner as other moneys belonging to such ward. In case of sale 
 for re-investment in this State, the money shall be re-invested under 
 the direction of the court(r) 
 
 30. It shall be the duty of the county court at each accounting 
 of the conservator to inquire into the sufficiency of his sureties, and 
 if at any time it has cause to believe that the sureties of a conservator 
 are insufficient or in failing circumstances, it shall, after summon- 
 ing the conservator if he be not before the court, require him to 
 give additional security, (s) 
 
 31. Upon the application of the surety of any conservator and 
 after summoning the conservator, the court may, if it believes him 
 to be insolvent or in doubtful circumstances, require him to give 
 counter security to his sureties.^) 
 
 32. The county court may remove a conservator for his failure to 
 give bond or security or additional or cou nter security when required ; 
 or for failure to make inventory or to account and make settlement, 
 or support the ward, or when he shall have become insane, or have 
 removed out of the State, or become incapable or unsuitable for the 
 discharge of his duties, or for failure to discharge any duty required 
 of him by law or the order of the court, or for other good cause.(w) 
 
 33. Before removing a conservator the court shall summon him 
 to show cause why he should not be removed for the cause alleged. 
 If the conservator has left the State or cannot be served with pro- 
 cess he may be notified in the same manner as non-resident defend- 
 ants in chancery, by publication, (v) 
 
 34. When it appears proper the court may permit the conservator 
 to resign his trust, if he first settles his accounts and delivers over 
 the estate as by the court directed, (w) 
 
 35. Upon the removal, resignation or death of a conservator 
 another may be appointed who shall give bond and security and per- 
 form the duties prescribed by this act. The court shall have power 
 to compel the conservator so removed or resigned, or the executor or 
 administrator of a deceased conservator, to deliver up to such suc- 
 
 (r) 8 29, R. S. 1874, p. 688. () S 32, id. 
 
 *) 1 30 id. () | 33, id. 
 
 it) $ 31 id. (w) 34, id., p. 689.
 
 CH. V.J ESTATES AND PEKSONS OF THE INCAPACITATED. 145 
 
 Conservators. 
 
 cessor all the goods, chattels, moneys, title papers and other effects 
 in his custody or control belonging to the ward ; and upon failure 
 to so deliver the same, to commit the person offending to jail until 
 he shall comply with the order of the court. (2) 
 
 36. Conservators on settlement shall be allowed such fees and 
 compensation for their services as shall seem reasonable and just to 
 the courtly) 
 
 37. When any person, for whom a conservator has been or may 
 be appointed under the provisions of this act, shall be restored to 
 his reason, or in case such drunkard or spendthrift shall have become 
 so reformed as to be a proper and safe person to have the care and 
 management of his estate, such person may apply to the county 
 court of the county in which such conservator was appointed to 
 have said conservator removed and the care and management of his 
 property, or so much thereof as shall remain restored to him.(z) 
 
 38. Notice of such intended application shall be given to the con- 
 servator ten days before the commencement of the term of the 
 court to which the application shall be made. (a) 
 
 39. It shall be the duty of the court to which any such applica- 
 tion, as provided in the foregoing section, is -made, on proof that 
 said conservator has been duly notified of such application, to cause 
 a jury to be summoned to try the question whether said applicant 
 is a fit person to have the care, custody and control of his or her 
 property, and if the said jury return in their verdict that such per- 
 son is a fit person to have the control of such property as aforesaid, 
 then the court shall enter an order fully restoring such person to all 
 the rights and privileges enjoyed before said conservator was 
 appointed : Provided, that such conservator, so removed, shall be 
 allowed a reasonable time to settle his accounts as such, and to pass 
 over the money or property in his hands, and such removal shall not 
 invalidate any contracts made in good faith by said conservator, 
 while acting as such : Provided, further, that no application shall 
 be entertained for the removal of any conservator appointed for any 
 person under the provisions of this act, within less than one year 
 from such appointment, unless for neglect of duty or mismanage- 
 ment of his trust.(i) 
 
 40. Appeals shall be allowed to the circuit court from any order 
 or judgment made or rendered under this act, upon the appellant 
 
 (x) 35, R. S. 1874, p. 689. (a) 38, id. 
 
 (y) 36, id. (6) 39, id. 
 
 (z) 37, id. 
 
 19
 
 146 ESTATES AHD PERSONS OF THE INCAPACITATED. [CH. V. 
 
 Conservators. 
 
 giving such bond and security as shall be directed by the court ; 
 but no appeal from an order removing a conservator shall in any 
 wise affect such order until the same be reversed, (c) 
 
 41. The conservator, guardian, curator, or committee of any non- 
 resident idiot, lunatic, insane or distracted person, spendthrift or 
 drunkard, appointed in any of the United States or territories, or 
 any foreign country, in pursuance of the laws of any such State, 
 territory, or country, may commence and prosecute in his name as 
 such conservator, guardian, curator or committee, suits for the 
 recovery of any real or personal property, or any interest therein in 
 this State, belonging to any such idiot, lunatic, insane or distracted 
 person, spendthrift or drunkard, or for any injury to any such prop- 
 erty, in any of the courts of record in this State having jurisdiction 
 in similar cases by persons in their own rights, and may collect, receive 
 and remove to his place of residence any personal estate of his ward.(^) 
 
 42. It shall be lawful for any such conservator, guardian, curator, 
 or committee of any non-resident idiot, lunatic, insane or distracted 
 person, spendthrift or drunkard, who shall obtain an order from the 
 proper court in the State., territory or country in which such con- 
 servator, guardian, curator or committee was appointed, authorizing 
 him to make application for the sale of his ward's real estate or per- 
 sonal property in this State, upon filing a certified copy of such 
 order for record in the office of the clerk of the circuit court of the 
 county in this State in which the property, or the major part thereof, 
 is situated, by petition to such court to obtain an order authorizing 
 such conservator, guardian, curator or committee to sell and transfer 
 any such property or interest therein, belonging to any such idiot, 
 lunatic, insane or distracted person, spendthrift or drunkard, and 
 to make deeds and conveyances thereof, which deeds and convey- 
 ances executed and acknowledged in pursuance of the laws of this 
 State, or of the State, territory or country in which such conserva- 
 tor, guardian, curator or committee was appointed, shall be effectual 
 in law and equity to pass to the grantee or grantees therein all the 
 right, title and interest of such idiot, lunatic, insane or distracted 
 person, spendthrift or drunkard therein. The court ordering the 
 sale may authorize any person to act as auctioneer of the property, 
 but the deed shall be executed by the conservator, guardian, curator 
 or committee.(e) 
 
 40, R. S. 1874, p. 689. (e) 42, id., p. 690. 
 
 i 41, id.
 
 CH. V. ] ESTATES AND PERSONS OF THE INCAPACITATED. 147 
 
 Conservators. 
 
 43. Notice of the time and place of presenting said petition to 
 said circuit court shall be given by publication in the nearest news- 
 paper, for four successive weeks, the first of which publication shall 
 be at least forty days before the time fixed for the presentation of 
 said petition, requesting all persons interested to show cause why 
 the prayer of said petition should not be granted.(/) 
 
 44. The said circuit court may, in its discretion, require such con- 
 servator, curator, guardian or committee to file a bond, with suffi- 
 cient securities, conditioned for the faithful application of the 
 money which may be received for any such property, for the benefit, 
 and to the use of such idiot, lunatic, insane or distracted person, 
 spendthrift or drunkard. (g) 
 
 45. In all suits by non-resident conservators, guardians, curators 
 or committees, they shall give a bond for costs as in cases of other 
 non-residents, (h) 
 
 46. Chapter fifty of the Eevised Statutes of 1845, entitled " Idiots 
 and Lunatics," and an act entitled "An act to provide for the sale 
 of the estates of insane persons," approved February 12, 1853, and 
 an act entitled " An act to amend chapter L of the Revised Stat- 
 utes of 1845," approved February 15, 1865, and an act entitled "An 
 act to amend chapter fifty of the Revised Statutes, entitled * Idiots 
 and Lunatics,' and to extend the provisions thereof to habitual 
 drunkards," approved April 19, 1869, and all other acts and parts of 
 acts inconsistent with the provisions of this act are hereby repealed, 
 except as herein re-enacted : Provided, that this section shall not 
 be so construed as to affect any rights existing or actions pending 
 at the time this act shall take effect.(t') 
 
 SECTION III. COMMITMENT AND DETENTION OF LUNATICS. 
 
 1. Jurisdiction of the county court may be invoked by petition. 
 
 2. Petition to be filed, process to issue, and be served and returned. 
 
 3. Subpo3nas may issue. 
 
 4. Jury, trial, continuance. 
 
 5. Verdict, its form. 
 
 6. Verdict to be recorded, order of commitment entered, and application for 
 
 admission of respondent to superintendent of a state hospital for the 
 insane to be made by the clerk. 
 
 (/) 43, R. S. 1874, p. 690. (h) 45, id. 
 
 (g) % 44, id. (i) % 46, act of March 21, 1874
 
 148 ESTATES AND PERSONS OF THE INCAPACITATED. \CH. V. 
 
 Commitment and detention of lunatics. 
 
 7. When commitment may be had. 
 
 8. Communication to be had between the clerk and superintendent relative 
 
 to the reception of the respondent. 
 
 9. Mittimus may, if necessary, be issued by the clerk ; its form. 
 
 10. Receipt to be given by the superintendent ; its form. 
 
 11. Diseased persons and idiots not to be received. 
 
 12. Respondent may by order of court, pending proceedings, be restrained of 
 
 his liberty. 
 
 13. Costs of the proceedings where respondent is not a pauper. 
 
 14. Costs where he is a pauper. 
 
 15. Bond to be given where he is not a pauper. 
 
 16. Clothing to be furnished each patient. 
 
 17. Clothing to be furnished where patient is a pauper by the county. 
 
 18. Patient to be removed when ordered to be discharged by the trustees. 
 
 19. Non-resident patient may be received. 
 
 20. Whenever reason is restored the patient may leave. 
 
 21. Insane pauper may be committed to a county hospital. 
 
 22. No one to be committed without a trial by jury. 
 
 23. Penalty for receiving or detaining any person not duly committed. 
 
 1. That when any person is supposed to be insane or distracted, 
 any near relative, or in case there be none, any respectable person 
 residing in the county may petition the judge of the county court 
 for proceedings to inquire into such alleged insanity or distraction. 
 For the hearing of such application and proceedings thereon, the 
 county court shall be considered as always open.( j )* 
 
 2. Upon the filing of such petition, the judge shall order the 
 clerk of the court to issue a writ directed to the sheriff or any con- 
 stable, or tins person having the custody or charge of the alleged 
 insane or distracted person, unless he shall be brought before the 
 court without such writ, requiring the alleged insane person to be 
 brought before him at a time and place to be appointed for the 
 hearing of the matter. It shall be the duty of the officer or per- 
 son to whom the writ is directed to execute and return the same, 
 and bring the alleged insane person before the court as directed 
 in the writ.(&) 
 
 3. The clerk shall also issue subpoenas for such witnesses as may 
 be desired on behalf of the petitioner, or of the person alleged to 
 be insane, to appear at the time fixed for the trial of the mat- 
 ter.^) 
 
 4. At the time fixed for the trial a jury of six persons, one of 
 
 0) 1 act March 21, 1874, in rela- * This jurisdiction does not extend 
 
 tion to the commitment and detention to probate courts, 
 of lunatics; Cothran's Ann'd Stats., (k) 2, Cothran's Stats., 950. 
 1, p. 950. (I) % 3, id. p. 951.
 
 CH. V.J ESTATES AND PEKSONS OF THE INCAPACITATED. 149 
 
 Lunatics. 
 
 whom shall be a physician, shall be impaneled to try the case. The 
 case shall be tried in the presence of the person alleged to be insane, 
 who shall have the right to be assisted by counsel^ and may chal- 
 lenge jurors as in civil cases. The court may, for good cause, con- 
 tinue the case from time to time.(w) 
 
 5. After hearing the evidence, the jury shall render their verdict 
 in writing, signed by them, which shall embody the substantial 
 facts shown by the evidence, which verdict may be substantially in 
 the following form : (n) 
 
 STATE OP ILLINOIS,) 
 
 County, ) 8t 
 
 " We, the undersigned jurors in the case of (naming the person alleged 
 
 to be insane), having heard the evidence in the case, are satisfied that said 
 is insane, and is a fit person to be sent to a state hospital for the insane ; 
 that he is a resident of the State of Illinois, and county of ; that his 
 
 age is ; that his disease is of duration ; that the cause is supposed 
 
 to be (or is unknown) ; that the disease is (or is not) with him hereditary ; 
 
 that he is not (or is) subject to epilepsy, and that he does (or does not) manifest 
 homicidal or suicidal tendencies. (If the person be a pauper, the fact shall 
 also be announced in the verdict.)"?!. 
 
 6. Upon the return of the verdict, the same shall be recorded at 
 large by the clerk, and if it appears that the person is insane, and 
 is a fit person to be sent to a state hospital for the insane, the 
 court shall enter an order that the insane person be committed 
 to a state hospital for the insane, and thereupon it shall be the 
 duty of the clerk of the court to make application to the superin- 
 tendent of some one of the state hospitals for the insane for the 
 admission of such insane persons.(o) 
 
 7. If such insane person is a pauper the application shall be first 
 made to the nearest hospital, but if he be not a pauper, application 
 shall be made to such one of the state hospitals for the insane as 
 the relatives or friends of the patient shall desire. In any case, if, 
 on account of the crowded condition of any one of the hospitals, 
 or for other good reason, the patient cannot be received therein, or 
 it is not desirable to commit him thereto, he may be committed to 
 any other of said hospitals. Upon receiving any such application, 
 the superintendent shall immediately inform the clerk whether the 
 patient can be received, and if so, at what time ; and if not, shall 
 state the reason why.(jo) 
 
 (m) % 4, R. S. 1874, p. 681. (o) 6, id., p. 682.
 
 150 ESTATES AND PERSONS OF THE INCAPACITATED. [CH. V. 
 
 Commitment and detention of lunatics. 
 
 8. Upon receiving notice at what time the patient will be received, 
 the clerk shall, in due season for the conveyance of the person to 
 the hospital by* the appointed time, issue a warrant directed to the 
 sheriff or any other suitable person, preferring some relative of the 
 insane person when desired, commanding him to arrest such insane 
 person and convey him to the hospital ; and if the clerk is satisfied 
 that it is necessary, he may authorize an assistant to be em- 
 ployed.(g) 
 
 9. The warrant may be substantially as follows : 
 
 STATE OP ILLINOIS, ) 
 
 County, ) 8S 
 
 " The People of the State of Illinois to 
 
 " You are hereby commanded forthwith to arrest , who has been de- 
 
 clared to be insane, and convey him to the Northern (or as the case may be) 
 Illinois Hospital for the Insane (and you are hereby authorized to take to your 
 aid an assistant, if deemed necessary), and of this warrant make due return to 
 this office after its execution. Witness my hand and the seal of the county 
 court of county, this day of , A. D. 
 
 [L. 8.] , Clerk of County Court County."(r) 
 
 10. Upon receiving the patient, the superintendent shall indorse 
 upon said warrant a receipt as follows : 
 
 " NOBTHEBN (or as the case may be) ILLINOIS HOSPITAL FOB THE INSANE. 
 " Received this day, A. D. , the patient named in the within 
 
 warrant. 
 
 , Superintendent." 
 
 This warrant, with a receipt thereon, shall be returned to the 
 clerk, to be filed by him with the other papers relating to the 
 case.(s) 
 
 11. No person having any contagious or infectious disease, and 
 no idiot, shall be admitted to either of the state hospitals. When 
 the trustees and superintendent shall find that an idiot has been 
 received into the hospital, they may discharge him.(^) 
 
 12. If the court shall deem it necessary, pending proceedings and 
 previous to verdict, or after verdict and pending admission to the 
 hospital, temporarily to restrain of his liberty the person alleged to 
 be insane, then the court shall make such order in that behalf aa 
 the case may require, and the same being entered of record, a copy 
 
 (q) % 8, R. S. 1874, p. 682. () 10, id. 
 
 (r) % 9, id. (t) 11, id.
 
 OH. V.J ESTATES AND PEKSONS OF THE INCAPACITATED. 151 
 
 Lunatics. 
 
 thereof certified by the clerk shall authorize such person to be tem- 
 porarily detained by the sheriff, jailer or other suitable person to 
 whom the same shall be directed, (w) 
 
 13. When a person not a pauper is alleged to be insane, and is 
 found by the jury not to be insane, the costs of the proceeding, 
 including the fees of the jury, shall be paid by the petitioner, and 
 judgment may be awarded against him therefor. If such person is 
 found to be insane, such costs shall be paid by his guardian, con- 
 servator or relatives, as the court may direct. If the person alleged 
 to be insane is a pauper, the costs of the proceeding, including the 
 fees of the jury, shall be paid out of the county treasury : Provided, 
 if such pauper is found not to be insane, the court may, in its dis- 
 cretion, award the costs against the petitioner.(v) 
 
 14. The expense of conveying a pauper to the hospital shall b 
 paid by the county in which he resides, and that of any other 
 patient by his guardian, conservator or relatives ; and in no case 
 shall any such expense be paid by the State, or out of any funds 
 for the insane. The fees of the sheriff for conveying any person to 
 a hospital shall be the same as for conveying convicts to the peni- 
 tentiary.^) 
 
 15. If the person be not a pauper, then one or more persons, 
 relatives or friends of the patient shall, upon his admission into the 
 hospital, become responsible to the trustees for finding the patient 
 in clothes, and removing him when required ; and shall execute a 
 bond conditioned as follows, viz. : 
 
 " Know all men by these presents, that we and , of the county 
 
 of , and State of Illinois, are held and firmly bound unto the trustees of 
 
 the Northern (or as the case may be) Illinois Hospital for the Insane, in the 
 sum of $100 (one hundred dollars) for the payment of which we jointly and 
 severally bind ourselves firmly by these presents. 
 
 " The condition of this obligation is, that whereas, insane person of 
 
 the county and State aforesaid, has been admitted as a patient into the said 
 hospital for the insane : Now, therefore, if we shall find said patient in suitable 
 and sufficient clothing whilst may remain in said institution, and shall 
 
 promptly pay for such articles of clothing, as it may be necessary to procure 
 for said at the hospital, and shall remove from said hospital when 
 
 required by the trustees to do so, then this obligation to be void, otherwise to 
 remain in full force. 
 
 " Witness our hands and seals, this day of , A. D. 
 
 " [SEAL.] 
 
 " [SEAL.] "(*) 
 
 () 12, R. S. 1874, p. 682. (w) 8 14, id. , p. 683. 
 
 (t>) 13, id. (x) 15, id.
 
 152 ESTATES AND PERSONS OF THE INCAPACITATED. [CH. V. 
 
 Lunatics. 
 
 16. The clothing to be furnished each patient upon being sent to 
 the hospital, shall not be less than the following : for a male, three 
 new shirts, a new and substantial coat, vest, and two pairs of 
 pantaloons of woolen cloth, three pairs of woolen socks, a black or 
 dark stock or cravat, a good hat or cap, and a pair of new shoes or 
 boots, and a pair of slippers to wear within doors. For a female, in 
 addition to the same quantity of under garments, shoes and stock- 
 ings, there shall be two woolen petticoats or skirts, three good 
 dresses, a cloak or shawl, and a decent bonnet. Unless such 
 clothing is delivered in good order to the superintendent, he shall 
 not be bound to receive the patient.(y) 
 
 17. If the insane person be a pauper, it shall be the duty of the 
 judge of the county court to see that he is furnished with the nec- 
 essary amount of substantial clothing at the time he is sent to the 
 hospital, and from time to time while he remains a patient in the 
 hospital, and that he be removed therefrom when required by the 
 trustees ; the expense of such clothing and removal shall be paid 
 out of the county treasury, upon the certificate of the judge of the 
 county court. (z) 
 
 18. Whenever the trustees shall order any patient discharged, 
 the superintendent shall at once notify the clerk of the county court 
 of the proper county thereof, if the patient is a pauper, and if not, 
 Bhall notify all the persons who signed the bond required in section 
 fifteen of this act, and request the removal of the patient. If such 
 patient be not removed within thirty days after such notice is 
 received, then the superintendent may return him to the place from 
 whence he came, and the reasonable expenses thereof may be re- 
 covered by suit on the bond, or in case of a pauper, shall be paid 
 by the proper county.(a) 
 
 19. Whenever application shall be made for a patient not residing 
 within the State, if the superintendent shall be of opinion that from 
 the character of the case it is probably curable, and if there be at 
 the time room in the hospital, the trustees may, in their discretion, 
 order the patient to be admitted, always taking a satisfactory bond 
 for the maintenance of the patient, and for his removal when re- 
 quired. The rate of maintenance in such cases shall be fixed by 
 the trustees, and two months' pay in advance shall be required. 
 
 (y) % 16, R. S. 1874, p, 683. (a) 18, id. 
 
 (8) 17, id.
 
 CH. V.] ESTATES AND PERSONS OF THE INCAPACITATED. 153 
 
 Lunatics. 
 
 But no such patieut shall be detained without the order of a court 
 of competent jurisdiction, or the verdict of a jury.(^) 
 
 20. When any patient shall be restored to reason, he shall have 
 the right to leave the hospital at any time, and if detained therein 
 contrary to his wishes after such restoration, shall have the privilege 
 of the writ of habeas corpus at all times, either on his own applica- 
 tion, or that of any other person in his behalf; if the patient is 
 discharged on such writ, and if it shall appear that the superintend- 
 ent has acted in bad faith or negligently, the superintendent shall 
 pay all the costs of the proceeding. Such superintendent shall 
 moreover be liable to a civil action for false imprisonment.(c) 
 
 21. This act shall not be construed to prevent the committing of 
 any insane pauper to the hospital for the insane of the county in 
 which he may reside, where such a hospital is provided.(t?) 
 
 22. No superintendent, or other officer or person connected with 
 either of the state hospitals for the insane, or with any hospital or 
 asylum for insane or distracted persons, in this State, shall receive, 
 detain or keep in custody, at such hospital or asylum, any person 
 who shall not have been declared insane by the verdict of a jury, 
 and authorized to be confined by the order of a court of competent 
 jurisdiction ; and no trial shall be had of the question of the sanity 
 or insanity of any person before any judge or court without the 
 presence of the person alleged to be insane, (e) 
 
 23. If any superintendent, or other officer or person connected 
 with either of the state hospitals for the insane, or with any hospital 
 or asylum for insane or distracted persons, in this State, whether 
 public or private, shall receive or detain any person who has not 
 been declared insane by the verdict of a jury, and whose confine- 
 ment is not authorized by the order of a court of competent juris- 
 diction, he shall be confined in the county jail not exceeding, one 
 year, or fined not exceeding five hundred dollars, or both, and be 
 liable civilly to the person injured for all damages which he may 
 have sustained; and if he be connected with either of the insane 
 hospitals of this State, he shall be discharged from service 
 therein. (/) 
 
 (&) 19, K. S. 1874, p. 683. () 22, id. 
 
 (c) | 20, id., p. 684. (/) 23, id. 
 
 (d) 21, id. 
 
 20
 
 154 ESTATES AND PERSONS OF THE INCAPACITATED. [CH. V. 
 
 Forms statement. 
 
 POEMS. 
 
 Proceedings may be commenced by petition, as follows : 
 
 STATEMENT OP INSANITY. 
 
 STATE OP ILLINOIS, 
 County of , 
 
 In the County Court of County. 
 
 To the Honorable , Judge of said court : 
 
 Your petitioner , respectfully represents that , of the county 
 
 of , and State of Illinois, is insane, and that for his benefit, and the 
 
 safety of the community, ought to be committed to the Illinois State 
 
 Hospital for the Insane. The facts in h case can be proven by , 
 
 county physician, and by , all of whom reside in said county. That 
 
 your petitioner believes the said to be absolutely non compos mentis, 
 
 and that is incapable of governing self. That your petitioner, after 
 careful inquiry, believes that said insane person has no property, and is a 
 pauper,* , wherefore, your petitioner , moved only by divers 
 
 good and humane considerations, does request the interposition of this court 
 in this behalf. Tour petitioner, therefore, prays this honorable court to cause 
 a writ to be issued, requiring the said to be brought before this court, 
 
 at a time to be fixed by the court, that a jury may be summoned to inquire 
 into the truth of the matters alleged in this petition ; that the said 
 may be adjudged non compos mentis, and that such orders and other proceed- 
 ings may be made and instituted as to this court may seem meet and proper. 
 
 STATE OP ILLINOIS, | 
 County of , \ ** 
 
 , being duly sworn, says that the foregoing petition, by him sub- 
 scribed, is true. 
 
 Sworn and subscribed before me, ^ 
 , clerk of the county court I 
 of county, this day of 
 
 , A.D. 18 . J 
 
 , Clerk. 
 
 "Whereupon a writ is issued to inquire into the facts alleged in 
 the petition, as follows : 
 
 WRIT OF INQUISITION. 
 STATE OP ILLINOIS, [ 
 County of , <j ss 
 
 The People of the State of Illinois to the sheriff of said county, greeting : 
 
 Whereas, it hath been represented to the Hon. , judge of the county 
 
 court of said county, by the petition of , under oath, and filed in said 
 
 * The complaint or petition or application in case of a person of substance, may be 
 made by a relative or creditor, and if there be neither in the county, then any person 
 living in the county may make it. Care should be taken to show a cause within the 
 Btatute. See p. 148, supra.
 
 CH. V.] ESTATES AND PEKSONS OF THE INCAPACITATED. 155 
 
 Forms venire. 
 
 court, that is insane, and that for benefit, and for the safety of 
 
 the community, he ought to be committed to the Hospital for the 
 
 Insane, and that a conservator ought to be appointed to take charge of 
 property ; and the said judge having fixed the time of the hearing of the mat- 
 ters alleged in said petition for the day of , A. D. 18 , at o'clock, 
 
 . M., and ordered that a writ issue out of said court, directing the sheriff of 
 said county to take and safely keep the said so that he have him on 
 
 said day last named at the court-house in said county, to answer said petition. 
 
 We do, therefore, hereby command you to take the body of the said , 
 
 if he shall be found in your county, and safely keep, so that he be and 
 
 appear before our county court of county, on said day of , 
 
 A. D. 18 , at o'clock, . M., at the court-house in , in said county, 
 
 to answer unto said petition and to abide by what may be adjudged thereon. 
 And have you then and there this writ, with an indorsement thereon in what 
 manner you shall have executed the same. 
 
 Witness , clerk of the county court of county, and the seal of 
 
 said court at , in said county, this day of , A. D. 18 . 
 
 , Clerk. 
 
 Before any person not legally pronounced insane is admitted to 
 the hospital as a patient alleged to be insane, the judge shall order 
 a trial by jury, consisting of six persons, one of whom shall be a 
 physician, to try the issue. 
 
 The following is the form of venire used : 
 
 VENIRE. 
 
 STATE OF ILLINOIS,) 
 County of , J 8S 
 
 The People of the State of Illinois to the sheriff of said county, greeting : 
 
 You are hereby commanded to summon six good and lawful men, one of 
 whom, at least, is to be a physician, to appear before our county court of said 
 county, on the day of , A. D. 18 , at o'clock, . M., to serve as a 
 
 jury in the case of , alleged to be insane ; hereof fail not to make due 
 
 service and return as the law directs. 
 
 Witness , clerk of our said court, and the seal thereof, at , 
 
 this day of , A. D. 18 . 
 
 , Clerk of the county court of said county. 
 
 County court of county, 
 
 In the matter of 
 
 (Indorsement.) 
 
 Inquisition of Insanity. 
 
 VENIRE. 
 
 Filed ,18 . 
 
 .Clerk. 
 Returnable , at o'clock, . M.
 
 156 ESTATES AND PERSONS OF THE INCAPACITATED. [CH. V. 
 
 Forms the record. 
 
 Served the within writ by summoning the following named persons, viz. : 
 . For service, $ . Mileage, $ . Return, $ 
 
 , Sheriff. 
 By , Deputy. 
 
 THE RECORD, WITH THE VERDICT AND CERTIFICATE. 
 
 STATE OP ILLINOIS, ) 
 County of , )** 
 
 Be it remembered, that on this day, to wit, on the day , A. D. 
 
 18 , the same being one of the davs of term, 18 , of the county court 
 
 of county. 
 
 Present thereat 
 
 Hon. , Judge, 
 
 ; - , Sheriff, 
 
 ' fl - , Clerk. 
 
 The following, among other proceedings, were by and before said court had 
 and entered of record, to wit : 
 
 In the matter of the alleged insanity of . Now comes , who 
 
 is alleged to be insane, in the custody of , sheriff of county, 
 
 also comes , at whose instance he was arrested, also comes a jury of 
 
 , good and lawful men, one of whom is a physician, to wit : , 
 
 doctor of medicine , who, after being impaneled and sworn, and after 
 
 hearing the evidence adduced and arguments of counsel, retire in charge of an 
 officer to consider their verdict, and on their return, in the presence of the 
 said rendered their verdict in the words and figures as follows, to 
 
 wit: 
 
 [See 5, p. 149, supra, for the form of verdict.] 
 
 Whereupon it is considered by the court that the said is an insane 
 
 person. And that the said be committed to and detained in a State 
 
 hospital for the insane (see 7, p. 149, supra, and 23, p. 153, supra), pursuant 
 to law. 
 
 STATE OF ILLINOIS, ) . 
 county, J 
 
 I, , clerk of the county court of county, in the State afore- 
 
 said, do hereby certify that the foregoing is a true and correct transcript of the 
 record of proceedings had and taken by and before said court, in the matter 
 therein set forth. 
 
 In testimony whereof, I have hereunto set my hand and affixed the seal of 
 eald county court, at , in said county, this day of , 18 . 
 
 , Clerk.
 
 CH. VI.] PERSONAL ESTATE IN ADMINISTRATION. 157 
 
 In the hands of the executor or administrator. 
 
 CHAPTEK VI. 
 
 PERSONAL ESTATE IN ADMINISTRATION.* 
 
 SECTION I. Collection and disposition of, by the executor or administrator. 
 II. In the hands of guardians or conservators. 
 
 SECTION I. COLLECTION AND DISPOSITION OF, BY THE EXECUTOR 
 OR ADMINISTRATOR. 
 
 1. The retrospect. 
 
 2. Personal property, in due course of administration, governed by the law of 
 
 domicile. 
 
 3. The title of the personal representative of a decedent to the personal 
 
 estate. 
 
 4. His trust. 
 
 5. The cestuis que trust, the widow, the children, the creditors, legatees, devi- 
 
 sees and distributees or heirs, their relation to the proceedings in admin- 
 istration. 
 
 6. Special proceedings requisite to divest the title of the devisees or heirs to 
 
 the real property. 
 
 7. Scope of this chapter. 
 
 8. The inventory to be made and returned within three months from the date 
 
 of letters testamentary or of administration ; how made ; failure to make, 
 subjects the delinquent to citation to make inventory and account. 
 
 0. Citation to exhibit inventory and account. 
 
 10. Form of inventory. 
 
 11. The appraisement, the warrant, the oath. 
 
 12. The bill of appraisement. 
 
 *PERSONAL PROPERTY ; ASSETS. 9. Contracts in general. 
 
 10. Contracts defined. 
 
 1. Things personal. 11. Consideration essential to. 
 
 2. Mercantile transactions. 12. Sale or exchange. 
 
 3. Insufficiency of assets. 13. Fraud annuls all contracts which 
 
 4. Distinctions between things per- it infects. 
 sonal and things reed. 14. Warranty. 
 
 5. Conversion of real property ; spe- 15. Caveat emptor. 
 
 cial proceedings necessary for the 16. Guaranty, statute of frauds, 
 
 purpose, against the property and 17. Bailment, pawn, 
 
 also against the heir. 18. Lien. 
 
 6. The practice in such cases gov- 19. Hiring and borrowing, 
 erned by the superior courts. 20. Debts. 
 
 7. The absolute title and qualified 21. Bonds. 
 
 right of the administrator or ex- 22. Bills of exchange. 
 
 ecutor to the assets of the dece- 23. Cheques. 
 
 dent. 24. Promissory notes. 
 
 8. The assets considered. 25. Insurance policies.
 
 158 
 
 PERSONAL ESTATE IN ADMINISTRATION. [OH. VI. 
 
 In the hands of the 
 
 13. Inventories and exemplifications thereof to be prima facie evidence. 
 
 14. Additional appraisement. 
 
 15. Care and diligence required of executors and administrators in getting in 
 
 the estates of their testates and intestates. 
 
 16. Appraisers' fees two dollars per day each. 
 
 17. Proceedings in case the assets do not exceed the amount of the widow's 
 
 allowance. 
 
 18. Collection and disposition of assets. 
 
 19. Sale of personal property. 
 
 26. Bottomry. 
 
 27. The care and judgment required in 
 the management of the assets. 
 
 1. PERSONAL PROPERTY. "THINGS 
 PERSONAL." Under this designation 
 are included all goods and chattels 
 terms equally applicable to interests 
 in lands less than a leasehold money 
 and other movables, and the rights 
 and profits issuing out of them. Be- 
 sides, all movables, shares in canals, 
 railways, banks and other similar in- 
 terests are, by various statutes, made 
 personal property. They are often- 
 times of an intangible or incorporeal 
 nature, such as copyrights, patent- 
 rights, trade-marks, etc. 
 
 2. MERCANTILE TRANSACTIONS. 
 Bonds, bills of exchange, checks or 
 cheques, promissory notes, bank notes, 
 coupons, insurance policies, mortgages, 
 trust deeds, and the like, all come un- 
 der the terms personal property, 
 things personal, and constitute assets 
 in the hands of the personal repre- 
 sentatives of a decedent ; while things 
 real, or real property (subject to the 
 just debts and charges of the dece- 
 dent and his personal representatives), 
 pass to the heirs or devisees. 
 
 3. INSUFFICIENCY OF ASSETS. If the 
 assets are insufficient to pay such 
 debts and charges, the real property is 
 to be converted, on special application 
 to the court and under its orders and 
 decrees, into cash, and thus become 
 assets.(a) 
 
 4. In administration, the broad dis- 
 tinction made between THINGS REAL 
 and THINGS PERSONAL consists in their 
 distribution, it being the general rule 
 
 (a) See p. 62, swpra ; pp. 159, 165, infra. 
 
 (b) See 22 and 23 Car. ii, ch. 10, ex- 
 plained by 29 Car. ii, cb. 3. 
 
 (c) See ch. x, infra. 
 
 (d) See Hill's Chancery, 610-638. 
 
 of the common law that the whole of 
 the real estate goes to the heir, while 
 things personal are distributed among 
 the next of kin. (b) 
 
 Our statute,(e) however, gives the 
 same direction to both real and per- 
 sonal property. 
 
 Then, again, the effect of the mar- 
 riage contract upon chattels real and 
 chattels personal (d) gave different 
 rules of enjoyment and disposition. 
 The statute both here and in England 
 (e) has, to a great extent, obliterated 
 these peculiar rules, so that to-day the 
 differences between real and personal 
 property in administration exist rather 
 in name than in fact. The old effects 
 of these differences still remain. 
 
 If we concede full jurisdiction over 
 the personalty, it is difficult to see why 
 the same should not be exercised over 
 the realty until the debts of the de- 
 ceased are paid. 
 
 5. CONVERSION OF REAL PROPERTY, 
 SPECIAL PROCEEDINGS NECESSARY. It 
 has, however, been so often held that 
 the real property by descent goes to 
 the heir, and that, in order to divest the 
 title of the heir, he must be personally 
 notified, that the county court, in deal- 
 ing with the realty, to acquire jurisdic- 
 tion over it, must also acquire jurisdic- 
 tion over the person of the heir.(/) To 
 convert the real property into assets to 
 pay debts, in Illinois, the probate j uris- 
 diction must proceed not only in rem 
 against the property, but in pemonam. 
 He must be proceeded against by sum- 
 mons, which must be served either 
 personally or constructively upon him 
 like a chancery summons.^) 
 
 The litigation, relative to the exer- 
 
 (e) Id. ; 33 and 34 Viet., ch 93. 
 
 (/) Ferguson v. Hunter, 2 Gilm. 657; 
 Botsford v. 0' Conner, 57 111. 72; Schnett 
 v. Chicago, 38 id. 382. 
 
 (g) See Hill's Chancery, Process.
 
 CH. VI.] PERSONAL ESTATE IN ADMINISTRATION. 
 
 159 
 
 Executor or administrator. 
 
 1. THE RETROSPECT. We have already become acquainted with 
 the jurisdiction of the county courts in the administration of the 
 estates left by persons who have deceased, and in matters concerning 
 the persons and property of those incapable of caring for themselves 
 and their substance. 
 
 We have carefully examined the means through which such courts 
 act, by appointing and controlling executors, administrators, guard- 
 ians and conservators. The powers, duties, rights and responsibili- 
 ties devolved upon these functionaries have, to some considerable 
 extent, been discussed in view of the statute law and in the light of 
 the authorities. We come now to the subject-matter of this con- 
 servative or administrative jurisdiction, the estates themselves. 
 
 else of this jurisdiction, in converting 
 real property into assets, lias mainly 
 arisen collaterally, i. e., the orders and 
 decrees of the probate court have been 
 attacked by the heir, either by bill in 
 chancery or ejectment. 
 
 The supreme court of the United 
 States in several cases (h) have 
 utterly refused to collaterally ques- 
 tion the probate jurisdiction. The 
 supreme court of Illinois still adhere 
 to the requirement that the heir must 
 be notified ; beyond this, collateral in- 
 quiry is, also, here denied.(i) 
 
 6. But all courts give the widest 
 latitude to DIRECT INQUIRY BY APPEAL 
 OR WRIT OP ERROR. Therefore, in the 
 exercise of probate jurisdiction, al- 
 though collateral inquiry is either de- 
 nied or limited, yet direct inquiry is 
 encouraged. Hence, the county courts 
 are held to close rules and a well de- 
 fined practice, by the superior courts, 
 in all matters in administration, but 
 particularly in the conversion of real 
 property into assets by the administra- 
 tor or executor. 
 
 7. After his qualification by giving 
 bond and taking the oath, the TITLE 
 
 TO THE PERSONAL PROPERTY of the 
 
 estate becomes ABSOLUTE, in the execu- 
 tor or administrator. He has a QUALI- 
 FIED RIGHT he holds an absolute title 
 against all the world, but it is in trust. 
 He should have a certified copy of his 
 appointment, that is to say, if he be an 
 executor, a complete exemplification, 
 certified by the clerk and presiding 
 
 (h) Orignon v. Astor, Comstock v. 
 Crawford. See 2 Hill's Com. Law, 645. 
 
 judge, of the probate, with a copy of the 
 will and letters testamentary ; if an 
 administrator, of his letters of admin- 
 istration, as the evidence of this title ; 
 after being clothed with the title and 
 the power, the first inquiry of the 
 executor or administrator is as to the 
 property in possession, and next as to 
 that in action. 
 
 8. GOODS AND CHATTELS. All kinds 
 of visible property in possession are too 
 well and generally known to require 
 mention even, but that class of things 
 personal, known to the law as chases in 
 action, including all kinds of contracts 
 and agreements, demands careful con- 
 sideration here, for the executor or ad- 
 ministrator usually finds a large por- 
 tion of the estate committed to his 
 charge invested or involved in these 
 chosen in action. They are assets in his 
 hands, and to liquidate the claims al- 
 lowed against the estate, it is necessary 
 and a part of his duty to convert such 
 assets into cash. He must get in the 
 estate, reduce it to possession, and col- 
 lect and convert into cash, not only the 
 goods and visible property, but he must 
 dispose of these choses in action ; a 
 large class of these, however, are mer- 
 cantile contracts, most of them sus- 
 ceptible of immediate conversion. 
 Those already mentioned^") comprise 
 this class. We will now more par- 
 ticularly describe contracts gener- 
 ally, and then consider mercantile con- 
 tracts. 
 
 9. CONTRACTS may be considered as 
 
 (i) Schnell v. Chicago, 38 111. 382. 
 (j) See p 158, infra.
 
 160 
 
 PERSONAL ESTATE IN ADMINISTRATION. [CH. VI. 
 
 Collection and disposition of 
 
 The distinctions between the two great classes of property, (a) 
 personal and real, and the different rules pertaining to them admon- 
 ish us to consider them separately as they come under this jurisdic- 
 tion for administration or conservation. Therefore, we shall discuss 
 in this chapter the personal estate in administration, and in the 
 succeeding chapter real property in administration. 
 
 2. PERSONAL PROPERTY, when viewed in this, the probate juris- 
 tion, appertains to the person, has no situs in the law other than the 
 domicile(Z>) of the proprietor ; it ebbs and flows, goes and comes with 
 him ; like his mind and will, it accompanies him where ever he 
 goes, is ambulatory till his death, when it rests in the place of his 
 
 (a) See chapter x, infra. cipal Officer, Domicile, Personal Prop- 
 
 (b) Hill's Ch. Pr. 56-70 ; Hill's Muni- erty. 
 
 one of the species of title to things per- 
 sonal. In its widest and most general 
 sense, the word " contract " signifies an 
 engagement, obligation or compact ; it 
 may be express or implied, executory or 
 executed; and there must be two or 
 more contracting parties of sufficient 
 ability to make a contract. 
 
 10. A CONTRACT is an agreement or 
 undertaking, upon sufficient consid- 
 eration to do, or not to do, a particular 
 thing. First, then it is an agreement, 
 a mutual bargain or convention, and, 
 therefore, there must be at least two 
 contracting parties of sufficient ability 
 to make a contract, as where A con- 
 tracts with B to pay him $100. A 
 thereby transfers a property in such 
 sum to B, which property, however, is 
 not in possession, but in action merely, 
 and recoverable by suit at law. 
 
 A contract or agreement may be 
 either express or implied. Express 
 contracts are where the terms of the 
 agreement are openly uttered and 
 avowed at the time of the making, as 
 to deliver an ox or ten loads of timber, 
 or to pay a stated price for certain 
 goods. Implied contracts are such as 
 reason and justice dictate, which, there- 
 fore, the law presumes that every man 
 undertakes to perform. As, if I em- 
 ploy a person to do any business for 
 me, or perform any work, the law im- 
 plies that I undertook, or contracted to 
 pay him as much as his labor deserves ; 
 and, if I do not make him amends, he 
 has a remedy for bringing his action 
 upon such implied promise, undertak- 
 ing or assumpsit. Or where a person 
 
 buys an article without stipulating for 
 the price, he is presumed to have under- 
 taken to pay its market value or its 
 worth. 
 
 A contract may be either executory 
 or executed. An executory contract is 
 one in which a party binds himself to 
 do or not to do a particular thing ; a 
 contract executed is one in which the 
 object of contract is performed. As if 
 A agrees to change horses with B and 
 they do it immediately, in which case 
 the possession and the right are trans- 
 ferred together. This is an executed 
 contract ; but if A and B agree to ex- 
 change horses next week, here the 
 right only vests, and their reciprocal 
 property in each other's horse is not in 
 possession ; a contract executory con- 
 veys only a chose in action, a thing in 
 course of transmutation. 
 
 11. Second. A SUFFICIENT CON- 
 SIDERATION is necessary to the valid- 
 ity of a contract. A nudum pactum 
 (bare promise), or agreement to do or 
 pay any thing on one side without any 
 consideration on the other, is totally 
 void in law, and a man cannot be com- 
 pelled to perform it ; as if one man 
 promises to give another $100 ; here 
 there is nothing contracted for or given 
 on the one side, and, therefore, there 
 is nothing binding on the other. Any 
 degree of reciprocity, however, which 
 is held in law to be a sufficient con- 
 sideration, will prevent the contract 
 from being void. 
 
 Ihird. The thing agreed to be 
 done or omitted. A contract is an 
 agreement upon sufficient considera-
 
 CH. VI.] PERSONAL ESTATE IN ADMINISTRATION". 
 
 161 
 
 By the executor or administrator. 
 
 domicile, (c) Then the lex loci distributes it, if he die testate, ac- 
 cording to the testatio mentis, manifested in the most formal man- 
 ner by written directions, which go to make his will ; if he die in- 
 testate, according to the course of the common law as modified by 
 statute ; in either case by due course of administration, (d) 
 
 3. Through the executor or administrator, as the case maybe, this 
 jurisdiction when death comes, at the place of his domicile (if he 
 have none, then where the property is), stepping as it were into the 
 shoes of the deceased, collects, cares for, inventories, and manages 
 the estate left by him. The executor or administrator to a certain 
 
 (c) 11, R. S. 1874, p. 1103. 
 
 (d) A last will is defined to be 
 the testatio mentis, or testament ; a 
 declaration, provision or direction of 
 a testator in that he would have to 
 be done with his estate, or how it 
 should go after his death, as the evi- 
 dence of his mind on the subject, 
 (Went, Off. Ex. 265 ; 8 L., Ill a, 322 b; 
 PI. 343 ; 1 Bulst. 223 ; Sheph. Touch. 
 399 ; Fitz. G. 239.) or the appointment 
 of a testamentary heir. Swinb. 3, 12. 
 The testator by the will has testified 
 his niind or intention. It contains his 
 direction and declaration, being a pro- 
 vision for the event in contemplation 
 of which it was made, which must be 
 carried into execution so far as its 
 
 meaning can be ascertained from the 
 words he uses, taken in connection 
 with the law which directs how papers 
 of the kind shall be expounded, and 
 the evidence in the case, to which the 
 law is to be applied according to such 
 circumstances as may bear on the 
 written declaration of intention. It is 
 an acknowledged principle, that wills 
 are to be construed according to the 
 intention of the testator ; which shall 
 be carried into full effect in all cases 
 which are not repugnant to the settled 
 law and rules of policy of the country 
 in which they are to be executed. The 
 laws of every country prescribe the 
 rules by which such intention is to be 
 ascertained. See chapter n, supra. 
 
 tion to " do or not to do a particular 
 thing." Among the kinds of contract 
 are: (1) Sale or exchange; (2) bail- 
 ment ; (3) hiring and borrowing. 
 
 12. SALE OR EXCHANGE is a trans- 
 mutation of property from one man to 
 another, in consideration of some price 
 or recompense in value ; for there is 
 no sale without a recompense ; there 
 must be quid pro quo. If it be a com- 
 mutation of goods for goods, it is an 
 exchange ; but if it be a transferring 
 of goods for money, it is called a sale. 
 
 If a man agrees with another for 
 goods at a certain price, he may not 
 carry them away before he has paid 
 for them ; for it is no sale without pay- 
 ment, unless the contrary be expressly 
 stipulated; and, therefore, if the ven- 
 dor says the price of a beast is $10, 
 and the vendee says he will give $10, 
 the bargain is struck, and neither of 
 them is at liberty to be off the bar- 
 gain, provided immediate possession 
 be tendered ; but if neither the money 
 21 
 
 be paid, nor the goods delivered, nor 
 tender made, nor any subsequent 
 agreement be entered into, it is no 
 contract, and the owner may dispose of 
 the goods as he pleases. If any part 
 of the price is paid down, if it be but 
 a penny, or any portion of the gooda 
 delivered by way of deposit, the prop- 
 erty in the goods absolutely passes, 
 and the vendee may recover the goods 
 by action, as well as the vendor may 
 the price of them. 
 
 If there be a sale of goods which 
 are to be sent by a carrier to the pur- 
 chaser, and the goods perish or sus- 
 tain damage while in transitu, in the 
 absence of special circumstances, the 
 rule of law applies ; that is, delivery 
 to the carrier is delivery to the con- 
 signee, who will, therefore, have to 
 bear the loss. But if the parties 
 agree that the vendor shall not merely 
 deliver the goods to the carrier, but 
 that they shall actually be delivered 
 at their destination, and express such
 
 162 
 
 PERSONAL ESTATE IN ADMINISTRATION. [CH. VI. 
 
 Collection and disposition of 
 
 extent becomes the owner of this property. It is not absolutely his. 
 He is an officer of the court ; the trustee of an express trust, (e) 
 
 4. He holds it for the incapacitated ; the widow and the orphan ; 
 for the creditors, for the friends and relatives ; the beneficiaries, lega- 
 tees, or distributees : all his cestuis que trust. His title to the per- 
 sonalty relates back to the date of the death of the decedent. For 
 them all, he must discharge his duties and exercise his powers. Over 
 the property in charge, he must ever exercise the same care and dili- 
 gence that the prudent are presumed to bestow about their business 
 and in the management of their property. The property is in court ; 
 he is, in and out of court, the personal representative of the deceased. 
 (e) Hill on Trustees ; Perry on Trusts ; Hill's Chan. Pr. ; Trusts. 
 
 intention, in such a case, if the goods 
 perish in the hands of the carrier, the 
 vendor is not only liable for the loss, 
 but for whatever damages may have 
 been sustained by the purchaser in 
 consequence of the breach of con- 
 tract to deliver at the place of desti- 
 nation. 
 
 General rules may be modified by 
 the expressed intentions of the par- 
 ties. Where an offer to sell goods is 
 made, and a letter accepting such offer, 
 without qualification, is put into the 
 post, the bargain is complete. 
 
 Where an unpaid vendor of goods 
 has put them into the hands of a car- 
 rier to be by him conveyed and deliv- 
 ered to the vendee, and the vendee or 
 consignee, before actual delivery to 
 him, becomes bankrupt or insolvent, 
 the vendor or consignor has a right to 
 resume possession of the goods by 
 stopping them in transitu; but his 
 right to do so will be defeated if the 
 vendee or consignee of the goods has 
 assigned his interest in them to a 
 bona fide purchaser. 
 
 13. FRAUD destroys a contract db 
 initio, so that a fraudulent seller is 
 precluded from insisting upon the 
 completion of the contract, and a 
 fraudulent purchaser gets no title. 
 
 Willful misrepresentation to induce 
 another to contract or to part with 
 goods, under the belief that such rep- 
 resentation was true, is not tolerated 
 by law, and such misrepresentation 
 may be alleged with a view to annul- 
 ling the contract, and to compelling res- 
 titution of property transferred or 
 noney paid in pu isuance of it. 
 
 14. WARRANTY. By the civil law 
 an implied warranty was annexed to 
 every sale in respect to the title of the 
 vendor; and so, too, in our law, a pur- 
 chaser of goods and chattels may have 
 a satisfaction from the vendor if he 
 sells them as his own and the title 
 proves deficient, without any express 
 warranty for that purpose. But, with 
 regard to the goodness of the wares so 
 purchased, the vendor is not bound to 
 answer, unless he expressly warrant? 
 them to be sound and good ; or unless 
 it is proved that he knew them to be 
 otherwise, and has used art to disguise 
 them ; or unless they turn out different 
 from what he represented them to the 
 buyer. Thus, if a man sells a horse, 
 and expresses by warranty that it is 
 sound, the contract is void if the horse 
 is proved to be otherwise. 
 
 15. Where goods may be inspected 
 by the buyer, and there is no fraud on 
 the part of the seller, the maxim 
 CAVEAT EMPTOR applies ; the pur- 
 chaser takes them, at his risk, even 
 though the defect which exists in them 
 is latent, and not discoverable on ex- 
 amination. 
 
 Where goods are bought by sample, 
 the law implies that the goods shall 
 reasonably answer the specified de- 
 scription. If the bulk does not reason- 
 ably answer the description in a com- 
 mercial point of view, the seller is 
 liable for the amount paid for the 
 goods. 
 
 16. A GUARANTY is a mercantile 
 instrument, which is usually evidenced 
 by writing, not under seal, whereby 
 one man contracts on behalf of another,
 
 CH. VI. J 
 
 PERSONAL ESTATE IIS" ADMINISTRATION. 
 
 163 
 
 By the executor or administrator. 
 
 5. ALLOWANCES may be made by the court to the widow and 
 children which shall take precedence of the claims of the creditors. 
 
 THE EXPENSES OE ADMINISTRATION first are to be paid. THE 
 CLAIMS OE THE CREDITORS are then paramount. Until all debts, 
 expenses and allowances are paid and satisfied, neither devisees, lega- 
 tees, nor heirs or distributees have any beneficial interest in the 
 estate, either real or personal. The title to the real property it is 
 true passes to the heirs, but to the creditors they must respond or 
 surrender the estate. (/) The legatees, devisees or distributees then 
 to protect their own interests, must come into the county court, with 
 the executor or administrator, unite with him in resisting the claims, 
 
 the supreme court against several 
 heirs, for the debt of their ancestor, 
 the court directed that neither of them 
 should be subjected to a greater liabil- 
 ity than to the extent of the amount 
 which came to him by descent. Van- 
 meter's Heirs v. Love's Heirs, 33 111. 
 260. 
 
 (/) EXTENT OF THEIR LIABILITY FOR 
 DEBTS OF THE ANCESTOR. The liabil- 
 ity of heirs for the debts of their an- 
 cestors, both at law and in equity, is 
 to the extent of the full amount which 
 came to them by descent. But it 
 seems an heir should not be made lia- 
 ble beyond the amount he has thus 
 received. So, in entering a decree in 
 
 an obligation to which he is made as 
 liable as the proper and primary party. 
 The Statute of Frauds enacts that no 
 action shall be brought whereby to 
 charge the defendant upon any special 
 promise to answer for the debt, de- 
 fault or miscarriages of another, unless 
 the agreement upon which action is 
 brought, or some memorandum or note 
 thereof, be in writing, signed by the 
 party to be charged therewith, or some 
 person thereunto by him lawfully 
 authorized, if verbal only, no action 
 shall be brought whereby to charge 
 the defendant thereupon. 1, R. S. 
 1874, p. 540. 
 
 17. Bailment, from the French bail- 
 ler, to deliver, is a delivery of goods in 
 trust, upon a contract expressed or 
 implied, that the trust shall be faith- 
 fully executed on the part of the 
 bailee ; as if cloth be delivered, or, 
 legally speaking, bailed to a tailor to 
 make a suit of clothes, he has it upon 
 an implied contract to render it again 
 when made up, and that in a workman- 
 like manner. Or, if money or goods be 
 delivered to a carrier, to be conveyed 
 from to L,he is under a contract in law 
 to pay, or carry them to the person ap- 
 pointed. Or if a debtor bail or pawn, 
 his goods to his creditor, the pawnee 
 has them on the condition of restoring 
 
 them on the debt being discharged. 
 Again, if a friend deliver any thing to 
 his friend to keep for him, the receiver 
 is bound to restore it on demand. 
 
 18. Bailees have in certain instances 
 that right which is technically called 
 a LIEN in respect of the goods com- 
 mitted to their charge ; that is, the 
 right of retaining the possession of a 
 chattel from the owner until all legal 
 claims upon it be satisfied. The rule 
 of law is, that every person to whom 
 a chattel has been delivered, for the 
 purpose of bestowing his labor upon 
 it, has a lien thereon, and may with- 
 hold it from the owner (in the absence, 
 at least, of any special agreement to 
 the contrary) until the price of the 
 labor is paid. The bailment of goods 
 to a common carrier is another class. 
 A common carrier is one who conveys 
 the goods of applicants from place to 
 place. If a man professes to be a car- 
 rier, the law creates for him a duty to 
 receive goods brought to him for car- 
 riage, and he is bound to deliver them 
 safely, and within a reasonable time, 
 " except when prevented by the act of 
 God or of the King's enemies." A car- 
 rier is not liable for damage arising 
 from any inherent defect in goods de- 
 livered to him for conveyance by im- 
 proper packing ; nor is he liable for
 
 164 
 
 PERSONAL ESTATE IK ADMINISTRATION. [CH. VI. 
 
 Collection and disposition of 
 
 for allowance, and of the creditors, and oppose his claims for expenses 
 and commissions, and in all things compel a proper administration 
 of the estate. After the allowance of expenses, award to the widow 
 and children and of claims, if the personal estate be insufficient to 
 pay the debts, then the executor or administrator is to proceed in rem 
 against the real estate and in personam against the devisees or heirs, 
 to whom the law gives the real property subject to the lien of the 
 creditors of the decedent, and convert the same or enough of it to 
 pay the debts and expenses of sale. The remainder of the estate 
 then becomes subject to the will, or the law of descent. 
 
 leakage. He must, however, exercise 
 due skill and care. 
 
 19. HIRING AND BORROWING are 
 also contracts by which a qualified 
 property may be transferred to the 
 hirer or borrower. They are both con- 
 tracts whereby the possession and a 
 transient property is transferred for a 
 particular time or use, on condition to 
 restore the goods so hired or borrowed 
 as soon as the time is expired or use 
 performed. The hirer or borrower 
 gains a temporary property in the 
 thing, with an implied condition " to 
 use it and not abuse it," and the owner 
 or lender retains a reversionary inter- 
 est in the same, and acquires a new 
 property in the price or reward. 
 
 20. THE SUBJECT OP DEBT is closely 
 connected with that of contract; a 
 debt being a legal relation which fre- 
 quently arises out of a contract. 
 
 A debt by simple contract is where 
 the contract upon which the obligation 
 arises is neither ascertained by matter 
 of record nor by deed or special in- 
 strument. 
 
 A debt by specialty is where a sum 
 of money becomes due by deed or in- 
 strument under seal ; that is, by cove- 
 nant, by deed of sale, or by bond or 
 obligation. . 
 
 A debt of record is a sum of money 
 due by the evidence of a court of 
 record, when any specific sum is ad- 
 judged to be due from the defendant 
 to the plaintiff in an action or suit at 
 law. 
 
 21. A BOND is a deed or instrument 
 under seal, where the party from 
 whom a security is intended to be 
 taken declares himself bound to pay 
 a certain sum of money to another on 
 
 the day specified ; but there is a condi- 
 tion added, that if the obligor does 
 some particular act the obligation 
 shall be void. 
 
 22. A BILL OF EXCHANGE is a nego- 
 tiable instrument or security used 
 among merchants and others for the 
 more easy remittance of money from 
 one country to another. It is in the 
 form of an open letter of request 
 from A to B, desiring B to pay a sum 
 named therein to a third person on A's 
 account, by which means a man at the 
 most distant part of the world may 
 have money remitted to him from any 
 trading country. Thus, if A lives in 
 Jamaica, and owes B, who lives in 
 New YorK, $1,000, if C be going from 
 New York to Jamaica, he may pay B 
 this $1,000, and take a bill of ex- 
 change, drawn by B in New York, 
 upon A in Jamaica, and receive it 
 when he comes thither. Thus, B re- 
 ceives his debt at any distance of 
 place, by transferring it to C, who car- 
 ries over his money in paper credit, 
 without danger of robbery or loss. 
 The person who makes the bill of ex- 
 change is called the drawer ; he to 
 whom it is written the drawee, and, 
 after acceptance by the person on 
 whom it is- drawn, the acceptor; and 
 the third person, to whom it is pay- 
 able, is called the payee ; and the 
 payee may indorse it to any other per- 
 son, who becomes the payee ; and thus 
 it may be transferred to twenty per- 
 sons or more before it arrives, as it is 
 called, at maturity. 
 
 When a bill of exchange has been 
 drawn, accepted and indorsed, the per- 
 son who accepted the bill is primarily 
 and absolutely liable to pay it; the
 
 CH. VI.] PERSONAL ESTATE IN ADMINISTRATION. 
 
 165 
 
 By the executor or administrator. 
 
 6. SPECIAL PROCEEDINGS. To divest the title of the devisees or 
 heirs, a special proceeding in the nature of a suit in chancery is pro- 
 vided for. (g) For the purposes of his trust either the guardian or 
 conservator also may need to apply for the sale of real property. A 
 similar proceeding is provided for each of them. These proceedings 
 will be disposed of in the next chapter. 
 
 7. SCOPE OF THE CHAPTER. The collecting, inventorying, ap- 
 praisement, sale and management of the personal estate pertain- 
 ing to their respective trusts by the executor, administrator, guard- 
 ian and conservator, are the subjects immediately before us. The 
 executor and administrator are in nearly all these matters, in the 
 
 (g) The personal representative, as a 
 general thing, has no control over the 
 real estate of the deceased,except where 
 it is made assets for the payment of 
 debts, and then only to the extent of 
 the excess of the debts above the 
 amount of personalty applicable to 
 their payment. Dnnkwater v. Drink- 
 water, 4 Mass. 354. But the only mode 
 by which the personal representative 
 can appropriate such real estate or the 
 income arising from it, is by pursuing 
 the mode pointed out in the statute, 
 and proceeding under an order of sale. 
 And the same rule obtains in most of 
 the American States. Botsford v. 
 O'Conner, 57 111. 72. 
 
 The personal representative may 
 always recover possession of all effects 
 in the hands of the deceased at the 
 time of his death, unless the defendant 
 is able to show a better title in some 
 other party, to whom he will be liable 
 to account for the same. Reeves v. 
 Matthews, 17 Yerg. 449 ; 1 Redfield, 
 p. 122. 
 
 Chattels real go to the executor and 
 
 administrator, and not to the heir, and 
 this includes terms for years. All 
 mortgage interests due to the estate 
 are regarded as mere personalty. See 
 Sc.ott v. Moore, 3 Scam. 319 ; Griffin v. 
 Marine Co., 52 111. 130; R. S. 1845,110, 
 39 ; id. 301, 1 ; also see pp. 158, 159, 
 supra. 
 
 As to the powers, liabilities and du- 
 ties of the administrator, the follow- 
 ing decisions in Illinois may be here 
 considered : 
 
 The court knows of no power in an 
 administrator, as such, to loan the 
 money of the estate. If he does, it is 
 on his own responsibility, and makes 
 him liable to the estate. Thornton v. 
 Smiley, Breese, 14. 
 
 The law of 1825 (R. L. 646) author- 
 ized him to sell and assign a certificate 
 of purchase of land made by deceased 
 from the United States, on which 
 partial payments were made, and 
 which was necessary to be sold to pay 
 debts. Prevo v. Walters, 4 Scam. 37. 
 
 One of two executors may assign a 
 note made payable to the testator, so 
 
 person who drew it is liable only upon 
 the contingencies of default being 
 made by the acceptor and of the holder, 
 to whom it may have been indorsed, 
 performing certain conditions prece- 
 dent to his right of suit being complete, 
 viz. : Presenting the bill, and giving 
 due notice to the drawer of the failure 
 of the acceptor to pay it upon present- 
 ment. Payment of the bill, when re- 
 fused, must be demanded of the drawer 
 without loss of time, as the holder 
 must give the drawer notice thereof ; 
 and if the bill has passed through 
 many hands and been indorsed by 
 
 them, the last holder, by giving notice 
 of dishonor without loss of time to the 
 indorsers, is at liberty to call on any 
 or all of them to make him satisfac- 
 tion, for each indorser is in the nature 
 of a new drawer, and is a warrantor 
 for the payment of the bill. 
 
 23. A cheque is a sort of an inland 
 bill of exchange drawn upon a banker, 
 and made payable to the bearer or order. 
 The banker is the depositary of the cus- 
 tomer's money, which he, in compliance 
 with usage, undertakes to pay out from 
 time to time to the customer's order, 
 evidenced by his cheque. The holder
 
 166 
 
 PERSONAL ESTATE IN ADMINISTRATION. [CH. VI. 
 
 Collection and disposition of 
 
 county court governed by the same rules and must take the same 
 steps in discharging their trusts. There are, however, some things 
 which we shall point out wherein the executor is governed by rules 
 which have no application to the administrator. In getting the 
 estate into their hands respectively, the same proceedings are pre- 
 scribed. 
 
 as to transfer the legal interest to the 
 assignee. Dwight v. Newell, 15 111. 
 335. So can an administrator. Make- 
 peace v. Moore, 5 Gilm. 476. 
 
 So a term of years passes by the as- 
 signment of one of several executors. 
 A sale of a chattel by one transfers the 
 title to a purchaser. Id. 335. 
 
 In absence of fraud, a purchaser at 
 an administrator's sale must not only 
 look out for the title, but the quality. 
 The administrator cannot warrant but 
 on his personal responsibility. Bay v. 
 Virgin, 12 111. 218 ; Burnap v. Dennis, 
 3 Scam. 482. 
 
 When an administrator placed notes 
 of his intestate, due in another State, 
 in the hands of an agent to collect, who 
 was a man of means at that time, but, 
 having used the money, failed : held, 
 the administrator was not liable ; he 
 had used proper diligence and ordi- 
 nary care. Christy v. McBride, 1 
 Scam. 78. The court, in that case, 
 
 doubted whether the administrator is 
 bound to collect in another State. 
 
 If the surviving partner fail to settle 
 the partnership promptly with the ad- 
 ministrator of the deceased partner , it is 
 the duty of the administrator to compel 
 settlement by bill in equity, enjoin 
 the surviving partner, receive the out- 
 standing debts, and have a receiver 
 appointed. People v. White, 11 111. 
 350. 
 
 An administrator is chargeable with 
 interest, on the rule that the trustee 
 shall take no advantage to himself out 
 of the trust fund ; the profits belong 
 to the cestui que trust. Rowan v. 
 Kirkpatrick, 14 111. 11. So, a guard- 
 ian who converts the funds of his 
 ward to his own use is chargeable with 
 compound interest. Id. 
 
 If an administrator, being ordered, 
 fail to pay over to an heir, an action 
 accrues on his bond. Ralston v. Wood, 
 15 111. 159. See pp. 80, 81, supra. 
 
 of the cheque is bound to present it for 
 payment on the day after that on 
 which he received it ; or if the cheque 
 be on a banker in a distant town, the 
 holder is bound to send it for present- 
 ment the following day. A party 
 holding the cheque over the time 
 specified, loses all claim against the 
 drawer, in the event of the failure of 
 the bank. 
 
 24. A PROMISSORY NOTE, or note of 
 hand, is a plain and direct engagement 
 in writing to pay a sum or thing speci- 
 fied at the time therein mentioned to a 
 person therein named, or to his order 
 or to bearer. There are but two 
 parties to such instrument, the maker 
 (drawer) and the payee. Like bills of 
 exchange in case of non-payment by 
 the maker, the last holder has the 
 same remedy upon the several indors- 
 ers, observing the rules of notice, as 
 stated in respect of bills of exchange. 
 
 An ordinary bank note is a promis- 
 
 sory note, payable to bearer on demand, 
 passes from hand to hand by delivery, 
 passes in currency like cash, and can- 
 not be impugned upon proof that the 
 note had, before coming for value into 
 his hands, been stolen from its right- 
 ful owner. R. S. 1874, pp., 718-720. 
 
 25. A POLICY OF INSURANCE is a con- 
 tract between A and B, that when A 
 pays a premium equivalent to the 
 hazard to be incurred, B will indem- 
 nify or insure him against a particular 
 event then expressed. These insur- 
 ances are either life policies, insur- 
 ances against fire, or marine insurances 
 against loss or damage by sea. As to 
 life policies, it is Yield that no in- 
 surance shall be made pn lives or any 
 other event wherein the party insured 
 hath no interest ; and that in all poli- 
 cies the name of such interested party 
 shall be inserted. Life insurances are 
 also made available for effecting va- 
 rious useful objects, such as making a 
 settlement upon marriage, or after-
 
 CH. VI.] PERSONAL ESTATE IK ADMINISTRATION. 167 
 
 By the executor or administrator. 
 
 8. INVENTORIES AND APPRAISEMENT. Whenever letters testamen- 
 tary, of administration, or of collection are granted, the executor or 
 administrator shall make out a full and perfect inventory of all such 
 real and personal estate, or the proceeds thereof, as are committed 
 to his superintendence and management, and as shall come to his 
 hands, possession or knowledge, describing the quantity, situation 
 and title of the real estate, and particularly specifying the nature 
 and amount of all annuities, rents, goods, chattels, rights and credits 
 and money on hand, and whether the credits are good, doubtful or 
 desperate ; which said inventory shall be returned to the office of 
 the clerk of the county court within three months from the date of 
 the letters testamentary or of administration, (h) 
 
 If, after making the first inventory, any other real or personal 
 estate of the deceased come to his possession or knowledge, he shall 
 file a similar additional inventory thereof, (i) 
 
 An inventory is a list, schedule or enumeration in writing, con- 
 taining, article by article, a description of all the real and personal 
 estate, rights and credits of the intestate, (j) In many instances, the 
 administrator cannot, from want of knowledge, make an inventory 
 
 (K) 51, R. S. 1874, p. 113. (j) Bouvier. 
 
 (i) 52, id. 
 
 ward insuring a provision for wife hands. In dealing with such property 
 
 and children. he has a broad, general discretion. 
 
 26. BOTTOMRY is in the nature of a He is to inventory it, cause it to be 
 mortgage on a ship, when the owner appraised, file the appraisement bill, 
 or commander borrows money to en- and do other needful acts, and report 
 able him to carry on his voyage. This to the court, as will be more fully ex- 
 security is called a bottomry bond. plained further on.(&) 
 
 We have not, in this note, cited the This discretion is that CAREFUL 
 authorities ; the principles stated un- JUDGMENT AND DISCRIMINATION OR 
 derlie the whole fabric of the law of CARE which a prudent business man 
 personal property. They are funda- is presumed to, and usually does, ex- 
 mental principles, a knowledge of ercise over like property in its man- 
 which is essential to a proper dis- agement and disposition, 
 charge of the trusts involved in the As soon as the personal estate is 
 administration of such property, and found to be insufficient to pay the 
 are stated here as they have for ages debts and charges, etc., application 
 been promulgated by the sages of the should be promptly made for an order 
 law. to sell the real property. This is 
 
 27. In the execution of his trust, treated of in the next chapter. The 
 the foregoing, which are the leading real property, or enough of it, will 
 principles of the law of contracts, then be under the direction of the 
 will afford the executor or administra- court, subjected to sale, and converted 
 tor, guardian or conservator, a general into assets for the purposes of the 
 knowledge of the personal estate or trust. 
 
 assets which may have come to his 
 
 (k) see pp. 169, 170, Infra,
 
 PEBSONAL ESTATE IN ADMINISTKATIOX. [cfi. VI. 
 
 Collection and disposition of 
 
 of all the property belonging to the deceased. But should he dis- 
 cover afterward any other property, he should make out an addi- 
 tional inventory or account. 
 
 Whether the intestate's title to the property be perfect or not, it 
 should all be mentioned, as the administrator cannot be the judge 
 of title. All real property to which the intestate had an apparent 
 claim should be included in the list, and the nature of such claim 
 carefully and fully stated. 
 
 It is also the duty of the administrator to inventory property 
 fraudulently concealed by the intestate ;(&) all mortgages or other 
 securities for the payment of money or property, bonds, notes, con- 
 tracts, judgments ; all debts on account or otherwise, stating whether 
 the claims be good, doubtful or desperate ; all property in the hands 
 of third persons, belonging to the estate, or in which the estate is 
 interested. Moneys, even in the hands of the wife, and carried by 
 her, or given to her by her husband before his death, are to be inven- 
 toried. (I) Where debts or claims for money are listed, the amount 
 and nature of the debt should be stated ; also the name of the per- 
 son indebted. He will be obliged to show good cause for not col- 
 lecting the debts mentioned to be due, unless he had precaution to 
 note them in the inventory as desperate or doubtful, (m) If he 
 mark a debt doubtful or desperate, it will devolve on the creditor or 
 distributee to show that the same was good and might have been 
 collected. In the inventory of real estate the administrator should 
 particularly describe the land, as stated in the deed or other evidence 
 of title or interest. If the land be held under bond, or contract, or 
 otherwise, it should be so stated. If a debt be secured by mortgage it 
 should be so stated, and the land or chattels described-mortgages, 
 leases, etc., should be inventoried. If a party administer without 
 making an inventory, the law will suppose him to have assets 
 for the payment of all the debts and legacies, unless he repel the 
 presumption. Whereas, if he make an inventory, he shall not be 
 presumed to have more effects of the deceased than are comprised in 
 it, and the proof of any omission is then thrown on the opposite 
 party, (n) Whether the presumption of assets, where no inventory 
 is made, would be held to be the law here, is an open question. The 
 statute requiring the inventory would lend many presumptions against 
 
 (k) Andrus v. Doolittle, 11 Conn. 283. (m) 2 Kent's Com. 415. 
 (1) Wdshhurn v. Hale, 10 Pick. 429 ; (n) Toler Law Ex'rs, 250; 3 Hair. & 
 Rowan v. Kirkpatrick, 14 111. 13. Johns. 373.
 
 CH. VI.] PERSONAL ESTATE IN" ADMINISTRATION". 169 
 
 By the executor or administrator. 
 
 the administrator should he fail to comply with the law in this 
 respect. 
 
 If an administrator fail to make out his inventory as required by 
 law, the judge may summon or cite him at the instance of a party 
 interested, or, it seems,(o) at his own discretion, to show cause why 
 he should not file his inventory, and may then be proceeded against 
 to the revocation of his letters of administration. If he do not 
 make out a proper inventory, he would also be liable upon his 
 bond.(j)) 
 
 9. CITATION TO EXHIBIT INVENTORY AND ACCOUNT. Any person 
 interested in an estate, whether as a next of kin, as being entitled in 
 distribution, or as a legatee or a creditor, may call upon the admin- 
 istrator or executor who has become the legal representative of the 
 deceased to exhibit an inventory of the estate and render an account 
 of his administration. 
 
 A second administrator may call upon the original administrator 
 to exhibit an inventory and account. 
 
 An inventory may be called for at any period after administration 
 is due, i. e. , after the expiration of three months. 
 
 In regard to the account after three months also, there does not 
 appear to be any time limited before which that may not be called 
 for. The citation cannot issue until an affidavit in verification of 
 the averments which it contains has been filed. Disobedience to the 
 citation is followed by attachment, (q) 
 
 APPLICATION FOR CITATION TO THE ADMINISTRATOR, TO MAKE AN INVENTORY. 
 
 STATE OF ILLINOIS, ) County Court of county, 
 
 Cook county. ) 8{ term, A. D. 18 . 
 
 To Hon. E F, Judge of said court : 
 
 The petition of E F, of said county, respectfully represents that your peti- 
 tioner is security on the bond of C D, administrator of A B, deceased, as by 
 reference to said administrator's bond will appear. That letters of administra- 
 tion were issued to said C D, on the' day of , A. D. 18 , and that said 
 C D has failed to make out and file in this court a full and perfect inventory of 
 the real and personal estate of the said intestate, within three months from thu 
 date of said letters of administration ; and your petitioner says that by reason 
 of said E F's neglect to file such inventory, your petitioner is in great danger 
 of being wronged thereby, wherefore he prays that said administrator may be 
 cited to show cause why he should not file such inventory in this court, if any 
 he has, and that such further proceedings be had thereon as may be consistent 
 
 (o) Toler Ex'rs, 249. (q) See p. 16, supra, 
 
 (p) 2 Kent's Com. 415. 
 22
 
 170 PERSONAL ESTATE IN ADMINISTRATION. [CH. VI. 
 
 Collection and disposition of 
 
 with law and the rights of your petitioner. And your petitioner will ever 
 pray, etc. 
 
 E F. 
 
 STATE OP ILLINOIS, ) 
 county. ) 
 
 E F, being sworn, says, that the matters and things in the foregoing petition 
 are true of his own knowledge in manner and form as therein stated. 
 (Jurat.) 
 
 When personal property of any kind, or assets, shall come to the 
 possession or knowledge of the administrator after the making out 
 of the inventory aforesaid, and the appraisement bill, an account or 
 inventory of the same is to be returned to the court, appraised as in 
 other cases, within three months after the discovery thereof, (r) 
 
 10. FORM OF INVENTORY. 
 
 The inventory of real and personal estate of A B, late of the county of 
 and State of , deceased, intestate : 
 
 REAL ESTATE. 
 
 North-west quarter section 6, township 10 north, 7 east, in 
 
 county, , 160 acres ; lot 2, block 1, in the city of , Illi- 
 nois, purchased of A Pease, homestead and farm of deceased, 
 improved ; value $5,000 00 
 
 Title bond or contract for deed, to south-half section 10, township 
 8 north, 3 east, county, , made by , of , 
 Illinois, to deceased, bearing date January 1, 18 ; payment of 
 $500 due on same January 1, 18 , when the deed is to be 
 made ; unimproved prairie land ; value 1,000 00 
 
 Lease of deceased with A B, for south-west quarter of south-east 
 quarter 15 north, 3 east, in county, , dated April 1, 
 1870, for two years, rent payable quarterly in advance ; accrued 
 due on lease since intestate died 50 00 
 
 PERSONAL ESTATE. 
 
 Money in hand 1,500 00 
 
 Judgment against Richard Roe, on docket of superior court, Cook 
 
 county, ^with interest from Jannary 1, 18 (doubtful) 560 00 
 
 Due on lease with A B (good) 150 00 
 
 NOTES, CONTRACTS AND ACCOUNTS (GOOD). 
 
 E F's note, dated September 1, 1872, due January 1, 18 1,000 00 
 
 G H, account 91 89 
 
 (r) % 52, R. S. 1874, p. 113 ; See p. 169, supra.
 
 CH. VI.] PEKSONAL ESTATE IX ADMINISTKATIOiT. 171 
 
 By executor or administrator. 
 
 NOTES, CONTRACTS AND ACCOUNTS (DOUBTFUL). 
 
 Note of J K, June 1, 18 , due on demand $2,100 00 
 
 Interest two years and two months (unpaid) 
 
 L M, on contract with said intestate, dated August 1, 18 160 00 
 
 NOTES, CONTKACTS AND ACCOUNTS (DESPERATE). 
 
 Note of N 0, dated August 1, 18 , payable January 1, 18 , with 
 interest ; indorsed by P Q 1,590 60 
 
 GOODS AND CHATTELS. 
 
 One bay horse ; one-third of twenty acres of corn growing on home farm. 
 The foregoing is a full and perfect inventory of all the real and personal 
 estate, or the proceeds thereof, belonging to the estate of the said A B, de- 
 ceased, that has come to the hands, possession or knowledge of C D, 
 
 Administrator of John Doe, deceased. 
 Dated August 8, 18 . 
 
 The above illustrates the form of the inventory, which maybe 
 varied to suit any state of facts; and, with little change, may be used 
 for an additional inventory if one should be requisite. (5) 
 
 11. THE APPKAISEMENT. On granting letters testamentary or of 
 administration, a warrant shall issue, under the seal of the county 
 court, authorizing three persons of discretion, not related to the 
 deceased, nor interested in the administration of the estate, to ap- 
 praise the goods, chattels and personal estate of the deceased, known 
 to them, or to be shown by the executor or administrator ; which 
 warrant shall be in the following form, to-wit: 
 
 ( Venue, title, etc.} 
 
 " The people of the State of Illinois to A B, G D and E F, of the county of 
 and State of Illinois, greeting : 
 
 " This is to authorize you, jointly, to appraise the goods, chattels and per- 
 sonal estate of J K, late of the county of and State of Illinois, deceased, 
 so far as the same shall come to your sight and knowledge ; each of you hav- 
 ing first taken the oath (or affirmation) hereto annexed ; a certificate whereof 
 you are to return, annexed to an appraisement bill of said goods, chattels and 
 personal estate by you appraised, in dollars and cents ; and in the said bill of 
 appraisement you are to set down in a column or columns, opposite to each 
 article appraised, the value thereof. 
 
 " Witness : A B, clerk of the county court of county, and the seal of 
 
 said court, this day of , 18 . 
 
 [L. s.] A B, Clerk. 
 
 And on the death, refusal to act, or neglect of any such appraiser, 
 another may be appointed in his place. (t) 
 
 (s) See p. 175. infra. (t) 53, R. S. 1874, p. 114.
 
 172 PERSONAL ESTATE IX ADMINISTRATION. [CH. VI. 
 
 Collection and disposition of 
 
 The appraisement is the valuation of the goods and chattels of 
 the deceased by persons appointed by the court for that' purpose. 
 
 The appraisers, before they proceed to the appraisement of the 
 estate, shall take and subscribe the following oath (or affirmation), 
 to be annexed or indorsed on the said warrant, before any person 
 authorized to administer an oath, viz. : 
 
 " We, and each of us, do solemnly swear (or affirm) that we will well and 
 truly, without partiality or prejudice, value and appraise the goods, chattels 
 and personal estate of J K, deceased, so far as the same shall come to our 
 sight and knowledge, and that we will, in all respects, perform our duties as 
 appraisers to the best of our skill and judgment." 
 
 After which, the said appraisers shall proceed, as soon as conven- 
 iently may be, to the discharge of their duty, and shall set down 
 each article, with the value thereof, in dollars and cents as afore- 
 said. All the valuations shall be set down on the right hand side of 
 the paper in one or more columns, in figures, opposite to the re- 
 spective articles of property, and the contents of each column shall 
 be cast up and set at the foot of the respective columns.(w) 
 
 Give a specific valuation to each article of property by itself. It would be 
 incorrect to set down in the bill two or more articles in one valuation, e. g., 
 " Wagon and harness, $100," because creditors and others have a right to 
 know what the wagon itself was valued at, independent of the harness. But 
 the following would be correct: "Ten hogs, at $5 each, $50," because such 
 would be a valuation of each hog as well as all. 
 
 There are no well defined rules to guide appraisers in fixing the just and 
 exact valuation of the property, save good, sound judgment, enlightened as to 
 the quality and market value of the kinds of articles to be appraised. The 
 law provides that disinterested persons of discretion shall be appointed ap- 
 praisers. A person of this description is presumed to be one who possesses 
 that discernment, united with caution, which enables him to judge critically 
 of what is correct and proper. 
 
 When the BILL OF APPRAISEMENT is completed, the appraisers shall 
 certify the same under their hands and seals ; and shall deliver the 
 same into the hands of the executor or administrator to be, by him. 
 returned into the office of the clerk of the county court, within 
 three months from the date of his letters.(v) 
 
 If the appraisers or any of them die, or neglect to act, another 
 warrant may issue forthwith for other appraisers. 
 
 (u) 54, R. S. 1874, p. 114. () 55, id.
 
 OH. VI.] PERSONAL ESTATE IN ADMINISTRATION. 173 
 
 By executor or administrator. 
 
 12. BILL OF APPRAISEMENT. 
 
 Bill of appraisement of the goods, chattels and personal estate of A B, late 
 of county, Illinois, deceased, intestate. 
 
 NO. ARTICLES APPRAISED. VALUATION. 
 
 1 Bay horse $100 00 
 
 1 Wagon 70 00 
 
 1 Harness 15 00 
 
 20 Shoats, at $1.25 each ' 25 00 
 
 Amount brought down $210 00 
 
 [On next page.] 
 
 NO. ARTICLES APPRAISED. VALUATION. 
 
 Amount brought over , $210 00 
 
 50 Bushels corn in crib, at 20 cents per bushel 10 00 
 
 Undivided one-third of 20 acres standing corn 60 00 
 
 Total valuation $280 00 
 
 CERTIFICATE. 
 
 We, the undersigned appraisers, appointed and sworn to appraise the goods, 
 chattels and personal estate of A B, deceased, do hereby certify that the fore- 
 going bill of appraisement is a true, correct appraisement of the several 
 articles of goods, chattels and personal estate of the said intestate, made by 
 us, that have come to our knowledge, and that we have valued the same 
 according to our best judgment. 
 Witness our hands and seals, this day of , A. D. 18 . 
 
 A B. [SEAL.] } 
 
 C D. [SEAL.] > Appraisers. 
 
 E F. [SEAL.] ) 
 
 (Here annex the certificate of the oath and the appraisers' warrant.) 
 All the appraisers should sign the appraisement bill and join in 
 making the appraisement. An appraisers' fee is fixed at $2 per 
 day.(w) 
 
 13. Inventories and bills of appraisement, and authenticated copies 
 thereof, may be given in evidence in any suit by or against the execu- 
 tor or administrator, but shall not be conclusive for or against him, 
 if any other testimony be given that the estate was really worth, or 
 was bonafide sold for more or less than the appraised value there- 
 ot(x) 
 
 14. ADDITIONAL APPRAISEMENT. "Whenever personal property of 
 any kind, or assets, shall come to the possession or knowledge of any 
 executor or administrator, which are not included in the first bill of 
 appraisement as aforesaid, the same shall be appraised and return 
 
 (w) 59, R. S. 1874. p. 114 ; see p. (a?) 56, id. 
 174, infra ; COSTS AND FEES, infra.
 
 174 PERSONAL ESTATE IN ADMINISTRATION. [CH. VL. 
 
 Collection and disposition of 
 
 thereof made to the office of the clerk of the county court, in like 
 manner, within three months after discovery of the same.(?/) 
 
 15. Executors and administrators shall be chargeable with so much 
 of the estate of the decedent, personal or real, as they, after due and 
 proper diligence, might or shall receive, (z) 
 
 16. Every appraiser appointed under this act shall be entitled to the 
 sum of two dollars per day for each day's necessary attendance in mak- 
 ing all such appraisements, to be allowed by the county court, and paid 
 upon its order by the executor or administrator. 
 
 17. If the administrator or executor of an estate discover, at any 
 time after the inventory and appraisement of the property is made, 
 that the personal property and assets of the estate do not exceed the 
 amount of the widow's allowance, after deducting the necessary ex- 
 penses incurred, such administrator or executor shall report the facts 
 to the court, and if the court find the report to be true, he shall order 
 said property and assets to be delivered to the widow by the adminis- 
 trator or executor, and discharge the executor or administrator from 
 further duty ; but such executor or administrator shall first pay out 
 of the property and assets the costs and expenses of administration. 
 After the court orders the delivery of such property and assets to the 
 widow, the clerk of said court shall make and deliver to her a certi- 
 fied copy of the order, under seal, which shall vest her with complete 
 title to said property and assets, and enable her to sue for and re- 
 cover the same in her own name and for her own use. Such widow 
 shall not be liable for any of decedent's debts or liabilities, excepting 
 the funeral expenses of the deceased. If, upon affidavit being filed 
 with the clerk of said court, that such administrator or executor fails 
 or refuses to report in any case provided for in this section, the court 
 may order a citation and attachment to issue as in other cases of a 
 failure of administrators to report. And on a discovery of new 
 assets, administration may be granted as in other cases, and charged 
 to the account of the estate, (a) 
 
 18. COLLECTION AND DISPOSITION OF ASSETS. If any executor or 
 administrator, or other person interested in any estate, shall state 
 upon oath to any county court that he believes that any person has 
 in possession, or has concealed or embezzled, any goods, chattels, 
 moneys or effects, books of account, papers, or any evidences of debt 
 
 (!/) 57, R. S. 1874, p. 114. () 59, id 
 
 (z) 58, id.
 
 CH. VI.] PERSONAL ESTATE IN ADMINISTRATION. 175 
 
 By executor or administrator. 
 
 whatever, or titles to lands, belonging to any deceased person (or 
 that he believes that any person has any knowledge or information 
 of or concerning any indebtedness or evidence of indebtedness, or 
 property titles or effects, belonging to any deceased person, which 
 knowledge or information is necessary to the recovery of the same, 
 by suit or otherwise, by the executor or administrator, of which the 
 executor or administrator is ignorant, and that such person refuses 
 to give to the executor or administrator such knowledge or informa- 
 tion), the court shall require such person to appear before it by cita- 
 tion, and may examine him on oath and hear the testimony of such 
 executor or administrator, and other evidence offered by either party, 
 and make such order in the premises as the case may require.(J) 
 
 If such person refuse to answer such proper interrogatories as 
 may be propounded to him, or refuse to deliver up such property or 
 effects, or in case the same has been converted, the proceeds or value 
 thereof, upon a requisition being made for that purpose by an order 
 of the said court, such court may commit such person to jail until 
 he shall comply with the order of the court therein.(c) 
 
 Upon suggestion made by an executor or administrator, to the 
 county court, that any claim, debt or demand whatever belonging to 
 the estate in his hands to be administered, and accruing in the life- 
 time of the decedent, is desperate on account of the insolvency or 
 doubtful solvency of the person or persons owing the same, or on 
 account of the debtor having availed himself of the bankrupt law 
 of the United States, or on account of some legal or equitable 
 defense which such person or persons may allege against the same, 
 or for the cause that the smallness of such claim, debt or demand, 
 and the difficulty of finding the debtors, owing to the remoteness of 
 their residence, or such executor's or administrator's ignorance of 
 the same, the said court may order such claim, debt or demand to be 
 compounded or sold, or to be filed in the said court for the benefit 
 of such of the heirs, devisees or creditors of such decedent as will 
 sue for and recover the same, giving the creditors the preference if 
 they or any of them apply for the same before the final settlement 
 of such estate: Provided, that no order for the sale or compound- 
 
 (6) 80, R S. 1874, pp. 118, 119. (c) % 81, id.
 
 176 PERSONAL ESTATE IN ADMINISTRATION. [OH. VL 
 
 Collection and disposition of 
 
 ing of any such debts, claims or demands, or any of them, shall be 
 made until two weeks' public notice* shall have been given to all 
 whom it may concern, of the time and place when the said order 
 will be applied for, which notice shall be given by the administrator 
 or executor in a newspaper published in the county where such ap- 
 plication is to be made; or if no such newspaper is published in 
 such county, then by posting up such notices in not less than three 
 public places in the county, of which one shall be at the office of 
 the clerk of the county court, which notice shall be so posted at 
 least two weeks previous to the time of said application. The exec- 
 utor or administrator shall report to the said county court, for its 
 approval, the terms upon which he has settled or disposed of any 
 such claim, debt or demanded) 
 
 And if such claim is compounded or sold, such executor or ad- 
 ministrator shall be chargeable with the avails of such compound- 
 ing, and if the same is taken by any of the creditors, heirs or devi- 
 sees, he or they may maintain an action for the recovery thereof, iii 
 the name of such executor or administrator, for the use hereinafter 
 mentioned ; and upon recovering the same, or any part thereof, he 
 or they shall be chargeable therewith, after deducting his claim or 
 distributive share, with reasonable compensation for collecting the 
 same ; and upon such suits the executor or administrator shall not 
 be liable for costs.(e) 
 
 COUNTY COURT MAT ORDER DEBTS COMPOUNDED. The county 
 court may order claims, debts and demands, due at so remote a pe- 
 riod as to prevent their collection within the time required for the 
 final settlement of estates, and the collection or disposition of which 
 
 (d) % 82, R. S. 1874, p. 119. () 83, id. 
 
 * FORM OF NOTICE OF APPLICATION TO SELL OR COMPOUND DESPERATE CLAIMS. 
 ADMINISTRATOR'S NOTICE. 
 
 To da whom it may concern : 
 
 Take notice, that the undersigned, administrator of the estate of C D, deceased, 
 will apply to the county court of county, in the State of Illinois, at the next 
 term thereof, to be holden in the court-house in , in paid county, on the third 
 Monday of next, for leave to compound or sell all the desperate claims, debts and 
 demands whatsoever due the estate of the said C D, deceased, which accrued in hig 
 life-time. A B, Adrn'r. 
 
 Dated, 
 
 Proof of the publication or posting of this notice should be made the same 
 as in other cases. See p. 51, supra, 182, infra. 
 
 Before such notice is given, the administrator should properly make the
 
 CH. VI. J PERSONAL ESTATE IN ADMINISTRATION. 177 
 
 By the executor or administrator. 
 
 is necessary to the payment of the debts against the estate, to be 
 compounded or sold in the same manner and upon like condition as 
 though such claims, debts or demands were desperate or doubtful : 
 Provided, that no such claims, debts or demands shall be sold or 
 compounded for less than ten per cent below the par value there- 
 
 No executor or administrator shall, without the order of the 
 court, remove any property wherewith he is charged, by virtue of 
 his letters, beyond the limits of this State. And in case any such 
 executor or administrator shall remove such property without such 
 order, the court shall, on notice, forthwith revoke his letters and 
 appoint a successor, and cause a suit to be instituted on his bond, 
 (/)84,R. 8.1874, p. 119. 
 
 suggestion to the court mentioned in the law, that the persons interested may 
 examine the schedule of such debts with a view of buying or otherwise. 
 Such suggestion may be in this form : 
 
 SUGGESTION OF DESPERATE DEBTS. 
 
 STATE OF ILLINOIS, I ., 
 County, f 88 ' 
 To A B, Judge of the county court of county, Illinois: 
 
 The undersigned, administrator of the estate of C D, deceased, suggests and makes 
 known to the court here that the following claims, debts and demands, belonging to 
 the estate of the said C D, deceased, and which accrued in his life-time, are desperate, 
 for the reasons here stated, to wit : 
 
 Note of E P, dated June 1, 1870, due on demand (debtor insolvent), for .......... $90 00 
 
 Account of J L (debtor absconded and gone to parts unknown), for ............. 20 00 
 
 Account of O P, due since 1850 (barred by statute of limitations, which the un- 
 dersigned is assured will be pleaded against it), for .............................. 36 20 
 
 And the undersigned states that he has made all necessary efforts to. collect said 
 demands, but believes legal proceedings would be unavailing, and that the interest of 
 the estate would be best promoted by compounding or selling them. 
 
 AB, 
 Administrator of C >, deceased. 
 
 This "suggestion" should particularize the demands, and state wherein 
 they are desperate, assigning some of the causes mentioned in the law. 
 
 At the time mentioned in the notice, the administrator should apply to the 
 court for an order to compound or sell the demands described in the sugges- 
 tion. He should first file the proof of the publication or posting of the 
 notices. The following short form may be used : 
 
 APPLICATION TO SELL OK COMPOUND DESPERATE DEMANDS. 
 
 STATE OF ILLINOIS, I County Court nf county. 
 
 County, f 88 ' term, A. D. 18 . 
 
 To Hon. , Judge of said court : 
 
 The undersigned, administrator of the estate of C D, late of said county, deceased, 
 shows to your honor that he has given notice of his inter ded application, to the court, 
 
 23
 
 178 PERSONAL ESTATE IN ADMINISTRATION. [CH. VI. 
 
 Collection and disposition of 
 
 against him and his security, for the use of the persons interested in 
 the estate ; and if it shall appear, upon the trial of such cause, that 
 the executor or administrator has so removed such property, judg- 
 ment shall be rendered against the offender and his securities for 
 the full value thereof, and such other damages as the parties inter- 
 ested may have sustained by reason thereof, (g] 
 
 PARTNERSHIP ESTATE. In case of the death of one partner, the 
 surviving partner or partners shall proceed .to make a full, true and 
 complete inventory of the estate of the copartnership within his 
 knowledge, and shall also make a full, true and complete list of all 
 the liabilities thereof at the time of the death of the deceased part- 
 ner. He or they shall cause the said estate to be appraised in like 
 manner as the individual property of a deceased person. (A) 
 
 (g) 85, R. S. 1874, pp. 119, 120. (A) g 86, id. 
 
 at this term, for an order to sell or compound all desperate claims, debts and demands 
 belonging to the estate of said C D, deceased, as will appear by the publication of said 
 notice, proof whereof is herewith filed. Wherefore, the administrator prays that all 
 the said debts, claims and demands, mentioned in the said schedule and "sugges- 
 tions," heretofore filed in this court, be sold according to the statute in such case 
 made and provided, except the said note of E F, which the undersigned prays leave 
 to compound with said E "F. A B, 
 
 Administrator of C D, deceased. 
 
 Upon this application, the court will order the compounding or sale of 
 the desperate claims, as the court, under the peculiar circumstances of the 
 case, may deem most beneficial to the estate. The statute is silent as to 
 the mode of selling, whether it be at private or public sale. An administrator 
 may pass the legal interest of a note belonging to the intestate's estate, by in- 
 dorsing the same as a person in his private capacity, and such transfer will 
 enable the holder of it to sue on the same in his own name. If the sale be a 
 public one, which would probably be the correct mode, the usual notice of the 
 time and place of such sale should be given, as in other cases, by posting. The 
 order of the court should direct the manner of sale. In compounding claims, the 
 administrator should exercise his discretion, and settle on the best terms he can 
 secure. If an administrator should return a collectible claim as desperate, and 
 corruptly compound the same with the debtor, he would undoubtedly be liable 
 to the amount of damages thereby done to the estate which he represents. He 
 should deal in the same way for those for whom he is acting, as a reasonable, 
 business-like man would do for himself, if he would exonerate himself from 
 all liability ; no other course would be honest or safe. 
 
 After the administrator has sold and compounded all such claims, he is re- 
 quired to report to the court, for approval, the terms upon which he has set- 
 tled or disposed of such claims, debts or demands.
 
 CH. VI. j PERSONAL ESTATE IN ADMINISTRATION. 179 
 
 By the executor or administrator. 
 
 He or they shall return, under oath, such inventory, list of liabil- 
 ities and appraisement, within sixty days after the death of the 
 copartner, to the county court of the county of which the deceased 
 was a resident or carried on the partnership business at the time of 
 his death ; if the deceased shall have been a non-resident, then such 
 return shall be made to the county court granting administration 
 upon the effects of the deceased. Upon neglect or refusal to make 
 such return, he shall, after citation, be liable to attachment, (i) 
 
 Such surviving partner or partners shall have the right to continue 
 in possession of the effects of the partnership, pay its debts out of 
 the same, and settle its business, but shall proceed thereto without 
 delay, and shall account with the executor or administrator, and pay 
 over such balances as may, from time to time, be payable to him in 
 the right of his testator or intestate. Upon the application of the 
 executor or administrator, the county court may, whenever it may 
 appear necessary, order such surviving partner to render an account to 
 (t)87, R. S. 1874, p. 120. 
 
 REPORT OF SALE OF DESPERATE CLAIMS. 
 
 STATE OF ILLINOIS, I . County Court of county, 
 
 County, f 88 term, 18 . 
 
 To the Honor-able the Judge of said court : 
 
 The undersigned, administrator of C D, deceased, respectfully submits the following 
 report of the sale and compounding of the desperate claims, debts and demands 
 belonging to the estate of said C D, made in pursuance of the order of this court at the 
 term thereof : 
 
 That he succeeded in settling with E "F, and obtained the amount on his 
 note upon discounting the interest of $7500 
 
 That after giving the notice required in said order (as per proof herewith 
 filed), he sold the following claims, as here stated : 
 
 Account of JL, $13.75, to L M, for 6 00 
 
 Account of O P, $36.20, to B C, for 20 00 
 
 Total amount received for desperate claims $100 00 
 
 That he could obtain no bid for I P's account of $28, and he herewith returns the 
 same into court. 
 
 A B, 
 
 Administrator of C D, deceased. 
 Dated ,18 . 
 
 If the court be satisfied with the report, it will order the same approved, and 
 charge the administrator with the amount so received by him. 
 
 If such claims are taken by the heirs or creditors, they are authorized by the 
 statute to sue on them, in the name of the administrator, for their use. If an 
 administrator sells an account or other indebtedness, not negotiable, it is pre- 
 sumed that the person buying may maintain an action for the recovery of the 
 amount due on the same.
 
 180 PERSONAL ESTATE IN ADMINISTRATION. [CH. VL 
 
 Collection and disposition of 
 
 said county court, and in case of neglect or refusal, may, after cita- 
 tion, compel the rendition of such account by attachment.(j) 
 
 Upon the committal of waste by the surviving partner or partners, 
 the court may, upon proper application, under oath, setting forth 
 specifically the facts and circumstances relied on, protect the estate 
 of the deceased partner, by citing forthwith the surviving partner or 
 partners to give security for the faithful settlement of the affairs of 
 the copartnership, and for his accounting for and paying over to the 
 executor or administrator of the deceased whatever shall be found to 
 be due, after paying partnership debts and costs of settlement, within 
 such time as shall be fixed by the court ; the giving of such security 
 may be enforced by attachment, or upon refusal to give such secur- 
 ity, the court may appoint a receiver of the partnership property 
 and effects, with like powers and duties of receivers in courts of 
 chancery ; the costs of proceedings under this section to be paid by 
 the executor or administrator, out of the estate of the deceased or 
 surviving partner, or partly by each, as the court may order. (&) 
 
 19. SALE OF PERSONAL PROPERTY. When it is necessary for the 
 proper administration of the estate, the executor or administrator 
 shall, as soon as convenient, after making the inventory and appraise- 
 ment, sell at public sale all the personal property, goods and chattels 
 of the decedent, when ordered to do so by the county court (not 
 reserved to the widow, or included in specific legacies and bequests, 
 when the sale of such legacies and bequests is not necessary to pay 
 debts), upon giving three weeks' notice* of the time and place of 
 such sale, by at least four advertisements, set up in the most public 
 places in the county where the sale is to be made, or by inserting an 
 advertisement in some newspaper published in the county where the 
 sale is to be made, at least four weeks successively, previous thereto. 
 The sale may be upon a credit of not less than six nor more than 
 twelve months' time, by taking notes with good security of the pur- 
 chasers at such sale. The sale may be for all cash, or part cash and 
 part on time. Provided, that any part or all of such personal prop- 
 erty may, where BO directed by the court, be sold at private sale.(/) 
 
 If any testator directs that his estate shall not be sold, the same 
 shall be preserved in kind, and distributed accordingly, unless such 
 
 88, R. S. 1874, p. 120. (I) % 90, id. ; act Feb. 9, 1874. 
 
 (j) % 
 (&) 
 
 * See note on page 181, infra.
 
 CH. VI.] PERSONAL ESTATE IN" ADMINISTRATION. 181 
 
 By the executor or administrator. 
 
 Bale become absolutely necessary for the payment of the debts and 
 charges against the estate of such testator, (m) 
 
 If the sale of the personal property be not necessary for the pay- 
 ment of debts, or legacies, or the proper distribution of the effects of 
 the estate, the court may order that the property be preserved and 
 distributed in kind.(w) 
 
 If any executor or administrator be of opinion that it would be of 
 advantage to the estate of the decedent to dispose of the crop 
 growing, and not devised at the time of his decease, the same shall 
 be inventoried, appraised and sold, in like manner as other personal 
 property ; but the executor or administrator may, if he believe it 
 would be of more advantage to the estate, cultivate such crop to 
 maturity, and the proceeds of such crop, after deducting all necessary 
 expenses for cultivating, gathering and making sale of the same, 
 shall be assets in his hands, and subject to the payment of debts and 
 legacies, and to distribution as aforesaid. (0) 
 
 In all public sales of such property, the executor or administrator 
 may employ necessary clerks, and a crier, who shall be allowed such 
 compensation, not exceeding three dollars per day, as the court may 
 deem reasonable, to be paid by such executor or administrator, and 
 charged to the estate. All such sales shall be made between the 
 hours of ten o'clock in the forenoon and five o'clock in the afternoon 
 of each day ; and any sale made before or after the time herein 
 limited shall be voidable at the instance of heirs, devisees or cred- 
 itors prejudiced thereby.* (p) 
 
 All executors and administrators shall, immediately after making 
 such sales, make, or cause to be made, a bill of the sales of said 
 estate, under oath, describing particularly each article of property 
 
 (m) 91, R. S. 1874, p. 121. (o) 93, id. 
 
 (ri) 92, id. (p) % 94, id. 
 
 * The first step is to give the notice required by law. The following form 
 may be used : 
 
 NOTICE or ADMINISTRATOR'S SAM. 
 Administrator's Sale. 
 
 Notice is hereby given that the undersigned, administrator of C D, deceased, will, on 
 the day of , A. D. 18 , between the hours of 10 o'clock, A. M., and 5 o'clock, 
 
 p. M., of said day, sell at public sale, on the premises lately occupied by said decedent, 
 in the town of , county of , all the personal property, goods and chattels 
 
 belonging to the estate of the said deceased, consisting of horses, hogs, etc. (the prop- 
 erty for sale should be specifically described), upon a credit of months ; purchasers 
 giving notes and approved security for all sums of five dollars and upwards ; cash in
 
 1854 *'RSONAL ESTATE 1ST ADMINISTRATION. L OH ' VL 
 
 Collection and disposition of 
 
 sold, to whom sold, and at what price ;(q) which sale bill, when thus 
 made and certified by the clerk of such sale and the crier thereof, if 
 any such were employed, as true and correct, shall be returned into 
 
 (y)95, R. S. 1874, p. 121. 
 
 (q) The sale being a public one, where all persons competent to make con- 
 tracts may become purchasers, each article by itself should be put up, and sold 
 to the highest bidder who can comply with the terms of the sale. All sales 
 made before 10 o'clock, A. M., and after 5 o'clock, p. M. , are voidable. The 
 crier is the agent of the administrator in selling, and also of the purchaser in 
 buying ; so, if the crier, in selling, make false and fraudulent representations, 
 they will be taken as the fraud of the administrator. 
 
 In an action on a note given for goods bought at an administrator's sale, it 
 was held that the purchaser may show, in defense to the note, that the admin- 
 istrator, knowing the contrary, fraudulently represented the goods to be sound. 
 lly v. Virgin, 12 111. 216. 
 
 The administrator cannot sell any of the property of the deceased at private 
 sale. Buniap v. Dennis, 3 Scam. 481. Nor can he delegate his power to sell; 
 he must himself be present to direct and control. Kellogg v. Wilson, 89 111. 357. 
 If an administrator purchases the goods of the deceased at a public sale at 
 
 hand for all sums under five dollars. No property to be removed until the terms of 
 the sale are complied with. 
 
 A B, 
 
 Administrator of , deceased. 
 
 Dated ,18 . 
 
 If posted, there must be at least four copies put up in the most public places 
 in the county. The administrator should keep a copy of the notice, upon 
 which should be indorsed his affidavit of posting, and returned with the sale 
 bill. The following form of an affidavit may be used for this purpose : 
 
 AFFIDAVIT OF POSTING NOTICES. 
 
 STATE OF ILLINOIS, I 
 
 County. f w 
 
 A B, administrator of , deceased, being sworn, says, that on the day of 
 
 , instant, he posted four notices, of which the within (or foregoing) is a copy, at 
 
 the following places, the same being the most public places in said county, viz. : one 
 
 at the court-house in , one at , in the town of , one at , in the town 
 
 of , and one at , in the town of 
 
 A B. 
 (Jurat.) 
 
 If the notice be published in a newspaper, the certificate of the publisher 
 that the same was inserted, stating the facts, attached to the notice, will be 
 sufficient evidence of publication. See p. 51, supra. 
 
 The advertisement is the process upon which the administrator makes the 
 sale of the intestate's property. It should specify the time, place and terms of 
 the sale, with legal certainty.
 
 CH. VI.J PERSONAL ESTATE IN ADMINISTRATION. 183 
 
 By the executor or administrator. 
 
 the office of the clerk of the county court in the like time as is 
 required in cases of inventories and appraisements.*(r) 
 (r) 95, R. S. 1874, p. 121. 
 
 a less price than their appraised value, he will be accountable for the differ- 
 ence. Q-riswold v. Chandler, 5 N. H. 492. 
 
 Public sale is one made by auction to the highest bidder, and is not in gen- 
 eral subject to all the rules of other sales; for example, there is no warranty 
 of title of personal property, either express or implied. Bouvier. 
 
 A bidding at an auction may be retracted before the hammer is down ; it is 
 not binding upon either party till assented to. 2 Kent's Com. 537. 
 
 The sale should be conducted fairly. The estate is not liable on a warranty 
 made by the administrator, in general, though the administrator may be per- 
 sonally liable. There is no implied warranty of title in sales made by ad- 
 ministrators. 2 Harr. & Gil. 176. 
 
 The rule of caveat emptor is strictly applicable to sales by administrators. 
 In the absence of fraud, the purchaser at such sales must not only look out for 
 the title of the property, but for the quality of the article which he purchases. 
 12 111. 216 ; 15 id. 294. A purchaser at the sale buys at his own risk as to title 
 and quality of property. 
 
 If there be no bidders (and perhaps on the sound discretion of the admin- 
 istrator), the sale may be postponed. The statute is silent in regard to such 
 postponement ; but it is presumed the law would admit of and justify it where 
 it is best for the interests of the estate. Notice of the postponed sale should 
 be co-extensive with the original notices as to the posting and publication. 
 
 Immediately after the sale, the administrator should make, or cause to be 
 made, a bill of the sales of said personal estate, the truth and correctness of 
 which is to be certified to by the clerk and crier. 
 
 *BILL OF SALE. 
 
 A bill of the sales of goods, chattels and personal estate of A B, late of the county 
 of , Illinois, deceased, made on the day of , A. D. 18 , in pursuance of 
 notice thereof, a copy of which is hereto attached. 
 
 NO. 
 
 ARTICLES SOLD. 
 
 TO WHOM SOLD. 
 
 FOB WHAT 
 PRICE. 
 
 1 
 
 Two-horse wagon 
 
 James Godard 
 
 $80 00 
 
 1 
 
 
 do do 
 
 10 00 
 
 90 
 
 Hogs, at $1.50 each 
 
 Joseph Farmer 
 
 30 00 
 
 10 
 
 Acres of wheat, standing 
 
 do do 
 
 3500 
 
 Total amount of sales $14500 
 
 We, the undersigned, clerk and crier at the said sale, do hereby certify that the 
 foregoing is a true and correct bill of the sales of the goods and chattels of the said 
 A B, made on the day and year first aforesaid. 
 Witness our hands and seals, the day of , A. D. 18 . 
 
 E F, Clerk, [SEAL.] 
 G H, Orier. [SEAL.! 
 
 In the sale bill, as in the appraisement bill, each article is to be specifically
 
 184 PERSONAL ESTATE IN ADMINISTRATION. [CH. VI. 
 
 In the hands of guardians or conservators. 
 
 SECTION II. IN THE HANDS OF GUARDIANS OR CONSERVATORS. 
 
 1. The guardian to return an inventory within sixty days after his appoint- 
 
 ment, and additional inventory. 
 
 2. Contents of inventory. 
 
 3. Form of inventory. 
 
 4. Conservators are required to do the like. 
 
 1. INVENTORY TO BE RETURNED. The guardian shall, within sixty 
 days after his appointment, or if the court is not in session at the 
 expiration of that time, at the next term thereafter, return to the 
 court a true and perfect inventory of the real and personal estate of 
 the ward, signed by him and verified by his affidavit. As often as 
 other estate shall thereafter come to his knowledge, he shall return 
 an inventory thereof, within sixty days from the time the same shall 
 come to his knowledge's) 
 
 2. CONTENTS OF INVENTORY. The inventory shall describe the 
 real estate, its probable value and rental, and state whether the same 
 is incumbered, and, if incumbered, how and for how much ; what 
 amount of money is on hand ; and contain a list of all personal 
 property including annuities and credits of the ward, designating 
 them as "good," "doubtful," or "desperate," as the case may be.(^) 
 
 () 12, R. S. 1874, p. 560. (t) % 13, id. 
 
 described, and not grouped with others, as, " a covered buggy and harness," 
 for the buggy is to be sold by itself, and the name of the person to whom sold, 
 and the price for which it sold, set opposite ; and so of the harness. Persons 
 interested in the estate have a right to know, from the sale bill, what each 
 individual article was sold for. It is questionable whether hogs can be sold in 
 a drove, even on a bid of so much for each hog, taking the lot. The whole of 
 the personal estate might, with equal propriety in law, be sold en masse, as 
 hogs by the drove. A field of growing wheat, consisting of ten acres, might, 
 with propriety, be sold as an entirety, while it would be doubtful whether 
 three distinct fields of wheat could be put up at once and included in one sale. 
 The interests of the creditors and heirs might be seriously affected by such 
 sales en masse. Each article of personal property should be put up, sold and 
 entered in the sale bill separately, unless one person should purchase several 
 of the same kind of articles in succession, then it might be convenient to 
 enter them as illustrated in the foregoing form of sale bill, as, " 20 hogs at 
 $1.50 each, to Joseph Farmer, $30." 
 
 When the bill of sale is made out as aforesaid, the notice, with affidavit of 
 posting (or proof of publication), should be attached to it, and returned within 
 three months to the court.
 
 CH. VI.] PERSONAL ESTATE IN ADMINISTRATION. 185 
 
 In the hands of guardians or conservators. 
 The following may be used as a form for such inventory : 
 3. GUARDIAN'S INVENTORY. 
 
 An inventory of the estate, real and personal, belonging to C A D, a minor of 
 the county of , and State of Illinois. 
 
 ARTICLES. VALUATION. 
 
 Money received of J K, administrator of T F D, deceased $500 00 
 
 4 Horses of the value of $100 each 400 00 
 
 1 Wagon, of the value of 80 00 
 
 160 acres of land, being N. E. qr. of sec. 10, T. 11 N., R 3. E., of the 
 
 value of 1,000 00 
 
 Undivided two-thirds of 80 acres of land, being S. hf. of N. W. qr. 
 
 of sec. 10, T. 11 N., R. 3 E., said share is worth 600 00 
 
 Amount due on lease of said first described land made by T F D in 
 
 his life-time, to R S. . 65 00 
 
 Total $2,645 00 
 
 STATE OP ILLINOIS, ) 
 
 County, y " 
 
 I, E B M, guardian of the said C A D, do certify that the foregoing is a true 
 and perfect inventory of all the real and personal estate, goods, chattels and 
 effects belonging to the said C A D, so far as the same have come to my pos- 
 session and knowledge, and that I believe the foregoing to be a fair and just 
 valuation of the same. 
 
 June 1, 187 . E B M, 
 
 Ghiardian of A D. 
 
 4. CONSERVATORS are to do the same thing in like manner.(w) 
 
 () See p. 138 supra. 
 24
 
 186 REAL ESTATE IN ADMINISTRATION. [CH. VII 
 
 Through the executor. 
 
 CHAPTER VII. 
 
 REAL ESTATE IN ADMINISTRATION. 
 
 SECTION I. Through the executor. 
 
 II. Through the administrator. 
 
 III. Through the guardian. 
 
 IV. Through the conservator. 
 
 SECTION I. ADMINISTRATION OVER REAL ESTATE THROUGH THE 
 
 EXECUTOR. 
 
 1. Power of executor to sell land valid, if given in the will. 
 
 2. Implied power of sale. 
 
 3. Power vests in those who qualify, where several are appointed and part 
 
 refuse. 
 
 4. Conveyance to a person as executor, his heirs, etc., conveys a fee. 
 
 5. Co-executor may call a co-executor to account in chancery. 
 
 6. Mortgages and leases by executors, on petition to the county court. 
 
 7. Foreclosure of such mortgages confined to the county court having j uris- 
 
 diction over the property, i. e., in the county where it is, or a greater part 
 of it is, situated. 
 
 8. Decree of strict foreclosure in such case prohibited, and redemption as upon 
 
 judgments at law prescribed. 
 
 9. Actions which survive, specified. 
 
 10. General directions ; practice indicated ; suggestions. 
 
 1. SALE or REAL ESTATE.* In all cases where power is given in 
 any will to sell and dispose of any real estate or interest therein, 
 
 * Says Chancellor KENT, in speaking great extent, in practice, if not in 
 of tenures, 4 Com. 3 : " The technical theory, lessened the necessity for the 
 language of the common law was too vast fabric of learning which sur- 
 deeply rooted in our usages and insti- rounds almost every thing connected 
 tutions to be materially affected by with either the acquisition or disposi- 
 legislative enactments." With the tion of real property. Personal prop- 
 other parts of the English jurispru- erty, on the death of the proprietor, 
 dence, the intricate doctrines and the passes to the executor or administra- 
 complex and multifarious learning con- tor, such being one of the qualities 
 nected with landed property, were which pertain to it. On the other 
 introduced into this country and sub- hand, real property passes at the death 
 sisted in force before the Revolution, of an intestate to the heir, subject only 
 Resort then, in order to acquire a proper to the debts of the deceased. Van- 
 and clear understanding of the subject, sycle v. Richardson, 13 111. 171. The 
 must be had to the text-books (Black- title, by the common law, vests in- 
 stone's Com. ; Kent's Com.; Bouv. Insti- stantly in the heir. The law casts the 
 tutes ; Washburne on Real Property), title of the realty upon the heir, at the 
 though modern legislation has, to a death of the ancestor, if intestate ;
 
 CH. VII.] 
 
 HEAL ESTATE 
 
 ADMINISTBATION. 
 
 187 
 
 Through the executor. 
 
 and the same is sold and disposed of in the manner and by the per- 
 sons appointed in such will, the sales shall be good and valid ; and 
 where one or more executors shall fail or refuse to qualify, or depart 
 this life before such sales are made, the survivor or survivors shall 
 have the same power, and their sales shall be as good and valid as if 
 they all joined in such sales.(a) 
 
 2. WILL ; POWEK OF EXECUTOES TO SELL LAND UNDEB. Where a 
 testator directed his land to be sold and the proceeds to be distrib- 
 uted among certain persons, without directing by whom such sale 
 (a)96,R. S. 1874, p. 121. 
 
 upon such estate the descent is then 
 cast. See chap, x, infra. So that, in 
 cases of intestacy, it is a familiar doc- 
 trine that the administrator has, as 
 such, nothing whatever to do with the 
 real property of the estate over which 
 he is appointed, while in cases of wills 
 unless power be given by the will, the 
 executor is equally powerless, taking 
 neither title nor power by virtue of the 
 law, except it be conferred by the will ; 
 although this may all be theoretically 
 true, yet, practically, both the executor 
 and administrator may have more or 
 less to do with the real property in 
 administration. But in doing this they 
 are exercising, strictly speaking, only a 
 power. In dealing with personal prop- 
 erty on the other hand, they have the 
 absolute dominion over it. Over real 
 property the law gives to the probate 
 jurisdiction ample power, but the title 
 which has descended to the heir as an 
 inherent quality of the estate one of 
 its incidents, must be divested before 
 this power can be brought to bear in 
 disposing of the real estate of the 
 decedent. The personal property prov- 
 ing insufficient for the purposes of 
 administration, a SPECIAL PROCEEDING, 
 of which the heir must be notified 
 either actually or constructively, is 
 to be instituted, in order to convert the 
 real estate, or enough of it, into assets 
 to complete the administration. Bots- 
 ford v. 0' Conner, 57 111. 72. 
 
 A license to sell the real property 
 must be applied for, the heir must be 
 made party defendant, and notified. It 
 must be made to appear that the per- 
 sonal property is insufficient. The 
 administrator in this represents the 
 creditors, and is oftentimes in open 
 antagonism to the heir. 
 
 The proceeding is in its nature very 
 much like a suit in chancery, the heir 
 may contest the matter from its incep- 
 tion to its close, in the probate court. 
 He then has the right of appeal. He 
 may collaterally attack the record so 
 far as to question the jurisdiction of 
 the probate court both over the estate 
 and his person, but no further. 57 
 111. 72 ; see pp. 6, 62, 63, supra. So, to 
 the conservator or guardian, the ap- 
 pointment gives no title to the real 
 property. They, too, are equally bound 
 to institute special proceedings in order 
 to reach the real estate of their wards. 
 These proceedings in form and in sub- 
 stance will be considered further on. 
 See chap, xiv, infra. But here we 
 must first study the nature of real 
 property, for it makes little difference 
 whether we are considering it as con- 
 trolled by and through a power or by 
 title, if we are to deal with it at all. 
 To learn what real property is becomes 
 now the all-important inquiry, and 
 which requires much learning and re- 
 search to fully comprehend. We, 
 therefore, endeavor briefly and as plain- 
 ly as possible for our present purpose, 
 to define real property and explain what 
 is, and what is not, real property : 
 
 REAL PROPERTY was early defined 
 to be something which may be held by 
 tenure, or that will pass to the heir of 
 the possessor at his death, instead of 
 his executor, including lands, tene- 
 ments, and hereditaments, whether 
 the latter be corporeal or incorporeal. 
 1 Atkinson Conv. In respect to prop- 
 erty, real and personal correspond very 
 nearly with immovables and movables 
 of the civil law. By the latter, " biens " 
 is a general term for property ; and 
 these are classified into movable and
 
 188 
 
 REAL ESTATE IN ADMINISTRATION. [CH. VII. 
 
 Through the executor. 
 
 was to be made, and appointed executors who qualified, and sold the 
 land at auction in good faith for a fair consideration, public notice 
 by advertisement being first given, held, that the will was to be 
 considered as a bequest of a fund distributable by the executors 
 among the legatees, and that the executors have power to sell the 
 land in order to raise the fund, without procuring a decree from a 
 court of chancery for that purpose. ( J) If a testator directs his 
 estate to be sold for certain purposes, without declaring by whom 
 the sale is to be made, if the proceeds are distributed by the execu- 
 tor, he takes the power to sell by implication. Money directed to 
 be employed in the purchase of land, and land directed to be sold 
 and turned into money, are to be considered as that species of 
 property into which they are directed to be con verted. (1)) 
 
 Where deeds conveying lands in this State are executed by execu- 
 tors, duly qualified in pursuance of the power vested in them by 
 will, executed and proved out of this State, the same shall be evi- 
 (b) Rankin v. Rankin, 36 111. 293. 
 
 immovable, and the latter are sub- 
 divided into corporeal and incorporeal. 
 Guyot, Repert. Biens. By immovables 
 the civil law intended property which 
 could not be removed at all, or not 
 without destroying the same, together 
 with such movables as are fixed to the 
 freehold, or have been so fixed and are 
 intended to be again united with it, 
 although at the time severed there- 
 from. Taylor's Civ. Law, 475. The 
 same distinction and rules of law as to 
 the nature and divisions of property 
 are adopted in Scotland, where, as by 
 the Roman law, another epithet is 
 applied to immovables. They are 
 called heritable, and go to the heir, as 
 distinguished from movables, which 
 go to executors or administrators. So 
 rights connected with or affecting 
 heritable property, such as tithes, 
 servitudes, and the like, are them- 
 selves heritable ; and in this it coin- 
 cides with the common law. Erskine's 
 Inst. 192. In another respect the 
 Scotch coincides with the common law, 
 in declaring growing crops of annual 
 planting and culture not to be herita- 
 ble, but to go to executors, etc., 
 although so far a part of the real 
 estate that they would pass by a con- 
 veyance of the land. Erskine's Inst. 
 193 ; Williams' Exec. 600. Though the 
 
 term real, as applied to property, in 
 distinction from personal,, is now so 
 familiar, it is one of a somewhat 
 recent introduction. While the feudal 
 law prevailed, the terms in use in its 
 stead were lands, tenements or here- 
 ditaments; and these acquired the epi- 
 thet of real from the nature of the 
 remedy applied by law for the recovery 
 of them, as distinguished from that 
 provided in case of injuries, contracts 
 broken, and the like. In the one case 
 the claimant or demandant recovered 
 the real thing sued for the laud itself 
 while, ordinarily, in the other he 
 could only recover recompense in the 
 form of pecuniary damages. The term, 
 as a means of designation, did not 
 come into general use until after the 
 feudal system had lost its hold, nor 
 till even as late as the commencement 
 of the seventeenth century. Wind v. 
 Jekyl, A. D. 1719, 1 P. Wms. Ch. 575; 
 Williams' Real Prop. 6, 7. 
 
 Under the term real property or 
 estate, so as to have heritability and 
 other incidents of lands, tenements or 
 hereditaments, it may be stated, in 
 general terms, that it includes land 
 and whatever is erected or growing 
 upon the same, with whatever is be- 
 neath or above the surface.
 
 CH. VII.] 
 
 REAL ESTATE IX ADMINISTRATION". 
 
 189 
 
 Through the executor. 
 
 dence of title in the vendee or grantee, to the same extent 
 as was vested in the testator at the time of his death ; unless at 
 the time of executing such deed, letters testamentary or of admini- 
 stration on the estate of decedent had been granted in this State 
 and remain unrevoked. (c) 
 
 3. Power vests in those executors who qualify to act, even if a 
 part refuse to qualify.(f/) 
 
 4. A conveyance to a person, who is an executrix, her heirs, as- 
 signs, and successors, passes to her the fee, and she may sell and dis- 
 pose of the land, although received in satisfaction of a debt due her 
 testator. The words " successors " and " executrix," as employed in 
 the deed, were held not to limit or control the estate conveyed.(e) 
 
 (c) Cothran's Statutes, 317, 34. 
 
 (d) CHnefelter v. Ay res, 16 111. 330 ; 
 Wardwell v. McDowell, 31 id. 364; 
 
 Wisdom v. Becker, 52 id. 342. See 
 Jurisdiction. 
 (e)Greer v. Walker, 42 111. 401. 
 
 This would, of course, include houses 
 standing and trees upon the land, and 
 would not embrace chattels like stock 
 upon a farm, or furniture in a house. 
 But not only may houses or growing 
 -ees acquire the character of personal, 
 ut various chattels, originally per- 
 sonal movables, may acquire that of 
 real property. Thus, if one erect a 
 dwelling-house upon the land of 
 another by his assent, it is the per- 
 sonal estate of the builder. 6 N. H. 
 555; 6 Me. 452; 8 Pick. (Mass.) 404. 
 So, if a nursery man plant trees, for the 
 purpose of growing them for the 
 marfcet, upon land hired by him, they 
 would be personal estate. 1 Mete. 
 (Mass.) 27 ; 4 Taunt. 316. 
 
 So crops, while growing, planted by 
 the owner of the land, are a part of the 
 real estate ; but if sold by him when 
 fit for harvesting, they become per- 
 sonal (5 Barnew. & C. 829) ; and a sale 
 of such crops, though not fit for har- 
 vest, as personal, has been held good. 
 4 Mees. & W. Exch. 343 ; 2 Dana (Ky.), 
 206 ; 2 Rawle (Penn.), 161. 
 
 So trees growing, though not in a 
 nursery, may be changed into the cate- 
 gory of personal estate, if sold to be 
 cut without any right to have them 
 stand to occupy the land. 4 Mete. 
 (Mass.) 584 ; 9 Barnew. & C. 561 ; 7 N. 
 H. 523. But if the owner of land in 
 fee grant the trees growing thereon to 
 another and his heirs, to be cut at his 
 pleasure, the property in the trees 
 
 would be real. 4 Mass. 266. The 
 same rule would apply to property in 
 fee in a dwelling-house, though the 
 owner only have a right to have it 
 stand upon the land of another. And 
 one may own a chamber in a house as 
 his separate real estate. ITerm, 701 ; 
 1 Mete. (Mass.) 541 ; 10 Conn. 318. 
 
 So a large class of articles originally 
 wholly movable, and which may be at 
 the time even disconnected with the 
 land, may be regarded as real prop- 
 erty, from having been fitted for and 
 actually applied to use in connection 
 with real estate, such as keys to locks 
 fastened upon doors, mill-stones and 
 irons, though taken out of the mill for 
 repairing, window blinds, though tem- 
 porarily removed from .the house, and 
 fragments of a dwelling-house de- 
 stroyed by a tempest. Williams' Exec. 
 613-615; 11 Coke, 50; 10 Paige's 
 Ch. 162: 30 Penn. St. 185. And a 
 conveyance of " a saw-mill " with the 
 land was held to pass iron bars and 
 chains then in it which had been fitted 
 for and used in operating it. 6 Me. 
 154. 
 
 In case of corporations, the same 
 property may assume the character 
 both of real and personal. Thus, if the 
 corporation hold real estate, such as a 
 mill or banking house, it would be in 
 the hands of the body corporate real 
 estate, but as constituting a part of the 
 property owned and represented in the 
 form of stock by the members consti-
 
 190 
 
 EEAL ESTATE IN ADMINISTKATIOX. 
 
 [CH. Vll. 
 
 Through the executor. 
 
 5. Where there axe two or more executors or administrators of an 
 estate, and any one of them takes all or a greater part of such estate 
 and refuses to pay the debts of the decedent, or refuses to account 
 with the other executor or administrator, in such case the executor 
 or administrator so aggrieved may have his action of account or suit 
 in equity against such delinquent executor or administrator, and 
 recover such proportionate share of said estate as shall belong to 
 him; and every executor being a residuary legatee may have an 
 action of account or suit in equity against his co-executor or co-exec- 
 utors, and recover his part of the estate in his or their hands. Any 
 other legatee may have the like remedy against the executors : Pro- 
 vided, that before any action shall be commenced for legacies as 
 aforesaid, the court shall order them to be paid.( /) 
 (/)118,R. S. 1874, p. 122. 
 
 tuting the body of the corporation, it 
 is personal. 3 Mees. & W. Exch. 422 ; 
 Angell & A. on Corp., 557. But the 
 shares in corporate property may be 
 real estate when declared to be so by 
 the charter creating it, or when the 
 corporation is merely constituted to 
 hold and manage lands, like proprie- 
 tors of common lands in the New Eng- 
 land States. 2 P. Wms. 127 ; 2 Conn. 
 567 ; 10 Mass. 150. 
 
 Manure made upon a farm in the 
 usual manner, by consumption of its 
 products, would be a part of the real 
 estate ; while if made from products 
 purchased and brought on to the land 
 by the tenant, as in case of a livery 
 stable, it would be personal (21 Pick. 
 [Mass.] 371 ; 3 N. H. 503 : 6 Me. 222 ; 2 N. 
 Chipm. [Vt.] 115 ; 11 Conn. 525); though 
 in England the out-going tenant may 
 claim compensation for manure left 
 upon the farm under such circum- 
 stances. 1 Cromp. & M. Exch. 809. 
 
 There is a large class of articles 
 known to the law as fixtures, which 
 are real or personal according to cir- 
 cumstances. Whatever is fitted for 
 and actually applied to real estate, if 
 of a permanent nature, is real estate, 
 and passes from the vendor to the 
 vendee as such. 2Q Wend. 368; 2 
 Smith's Lead. Cas. (Am. ed.) 168. 
 And the same rule applies between 
 mortgagor and mortgagee. 19 Barb. 
 317 ; 4 Mete. (Mass.) 311 ; 3 Edw. Ch. 
 241). The same is the rule as be- 
 tween heir and executor upon the 
 
 death of the ancestor, and between 
 debtor and creditor upon a levy made 
 by the latter upon the land of the 
 former. 10 Paige's Ch. 163 ; 7 Mass. 
 432. Whereas, such fixtures as be- 
 tween a tenant and a landlord are per- 
 sonal estate, and may be removed as 
 such, unless left attached to the realty 
 by the tenant at the close of his term, 
 in which case they become a part of 
 the realty. 2 Pet 143 ; 7 Cow. 319 ; 
 1 Wheat. 91 ; 17 Pick. (Mass.) 192. 
 
 The law of burials. 1. In this 
 country corpses and their burials are 
 not matters of ecclesiastical cogni- 
 zance. 2. The right to bury a corpse 
 or preserve it is a legal right, belong- 
 ing, in the absence of testamentary 
 disposition, exclusively to the next of 
 kin, and includes the right to select and 
 change at pleasure the place of sepul- 
 ture. 3. If the place of burial be taken 
 for public use, the next of kin may 
 claim indemnity for the expense of 
 removal and suitable re-interment. 
 Matter of Beekman Street, 4 Brad. 503. 
 532 ; Bogert v. Indianapolis, 13 Ind 
 134 , Matter of Brick Church, 3 Edw. 
 Ch. 155. 
 
 Pews in churches are sometimes real 
 and sometimes personal estate, depend- 
 ing, generally, upon local statutes ; 
 though in the absence of statute law it 
 would seem they were clearly interests 
 in real estate, and partake of the 
 character of such estate. 1 Pick. 
 (Mass.) 104; 16 Wend. 28; 5 Mete. 
 (Mass.) 132
 
 CH. VII.] EEAL ESTATE LN" ADMINISTKATION. 
 
 191 
 
 Through the executor. 
 
 6. MOETGAGE OF EEAL ESTATE BY EXECUTOKS. Eeal estate may 
 be mortgaged in fee or for a term of years, or leased by executors : 
 Provided, that the term of such lease, or the time of the maturity 
 of the indebtedness secured by such mortgage, shall not be extended 
 beyond the time when the heirs entitled to such estate shall attain 
 the age of twenty-one years, if a male, or eighteen years, if a 
 female: And provided also, that before any mortgage or lease shall 
 be made, the executors shall petition the county court for an order 
 authorizing such mortgage or lease to be made, and which the court 
 may grant if the interests of the estate may require it : Provided, 
 
 lute until after administration. He 
 takes a defeasible estate, liable to be 
 defeated by a sale made by the admin- 
 istrator in due course of administra- 
 tion. Vansyde v. Richardson, 13 111. 
 171 ; Meyer v. McDougal, 47 id. 278 ; 
 see chap, x, infra. But he must be 
 notified before his title can be divested. 
 Bottford v. O'Conner, 57 111. 72.. 
 
 It is necessary then for the adminis- 
 trator to know whether a lease-hold is 
 his, by an absolute title as with per- 
 sonalty, or whether he can reach it 
 only by a special proceeding through a 
 power as in case of a free-hold whether 
 the term goes to the heir or to the per- 
 sonal representative. 
 
 Whether our statute (R. S., ch. 57, 
 p. 301, 1 ; 3, R. S. 1874, p. 622 ; 
 2 Hill's C. L. 598), has gone so far as to 
 change the common law in this respect, 
 as to leasehold estates or terms, may 
 perhaps be doubted. For it would 
 seem that the conveyance act (R. S., 
 ch. 24, 39, p. 110 ; 38, R. S. 1874, 
 p. 280), set all doubts at rest on this 
 point were it not for the next sec- 
 tion ( 39, R. S., p. 110; 38, R. S. 
 174, p. 280), or exception, that the 
 act of conveyances shall not be con- 
 strued so as to embrace last wills 
 and testaments (as we read it) the 
 law pertaining to last wills and testa- 
 ments including the entire statute of 
 wills. If our reading be correct, the 
 common-law rule, relative to the dis- 
 position of terms at the death of the 
 termer or lessee, is still the rule in 
 Illinois. But see Griffin v. Marine Co., 
 52 111. 130; Scott v. Moore, 3 Scam. 
 306; Nicoll v. Mason, 49 111. 358; Nicoll 
 v. Ogden, 29 id. 323 ; Nicoll v. Miller, 
 37 id. 387 ; Vansyde v. Richardson, 13 
 id. 171 ; Cook v. Foster, 2 Gilm. 652. 
 
 Even money often has the character 
 of realty attached to it, so far as being 
 heritable, and the like, by equity, 
 where it is the proceeds of real estate 
 wrongfully converted into money, or 
 which ought to be converted into real 
 estate. 3 Wheat. 577 ; 1 Brown's Ch. 
 6,497 ; 13 Pick. (Mass.) 154. 
 
 Slaves, in some of the States, were 
 so far regarded as real estate as to 
 descend to heirs, instead of passing to 
 personal representatives. 2 Dana (Ky.), 
 43.' 
 
 There is one class of interests in 
 lands, etc., which, from relating to 
 lands which are real, and from being 
 governed as to succession by the rules 
 which apply to personal property, or, 
 as that is called, chattels, takes the 
 name of chattels real. Of this class 
 are terms for years in lands. Upon 
 the death of the tenant of such a term, 
 it goes to his personal representatives, 
 and not to his heirs. 2 Blackstone's 
 Com. 386. 
 
 There is a very large class of interests 
 in lands however, which, at common 
 law, at the death of the proprietor, goes 
 to the personal representative and not 
 the heir. (2 Bl. Com. 386.) These are 
 terms for years, termed lease-hold in- 
 terests, or real property held by virtue 
 of a lease ; without sufficient consider- 
 ation of the subject, in Vol. I Common 
 Law, at page 456, we said : " On the 
 death of lessee his interest descends to 
 his heirs ; " referring to the 453d page, 
 see 1 Hill's C. L., pp. 453, 456, and 52 
 111. 130. But see Scott v. Moore, 3 
 Scam. 319 ; 2 Bl. Com. 386. The im- 
 portance of this question, to the proper 
 administration of estates, is apparent 
 if we look at it as jurisdictional. The 
 title of the heir does not become abso-
 
 192 REAL ESTATE IN ADMINISTRATION. [CH. VIL 
 
 Through the administrator: 
 
 further, that the executor making application as aforesaid, upon 
 obtaining such order, shall enter into bond, with good security, 
 faithfully to apply the moneys to be raised upon such mortgage or 
 lease to the payment of the debts of the testator ; and all moneys so 
 raised shall be assets in the hands of such executor for the payment 
 of debts, and shall be subject to the order of the court in the same 
 manner as other assets, (g) 
 
 7. Foreclosures of such mortgages shall only be made by petition 
 to the county court of the county in which the premises, or a major 
 part thereof, are situated ; and any sale made by virtue of any order 
 or decree of foreclosure may, at any time before confirmation, be 
 set aside by the court for inadequacy of price or other good cause, 
 and shall not be binding upon the executor until confirmed by the 
 
 8. No decree of strict foreclosure shall be made upon any such 
 mortgage, but redemption shall be allowed as is provided by law in 
 cases of sales under executions issued upon common-law judg- 
 ments.^') 
 
 9. ACTIONS WHICH SURVIVE. In addition to the actions which 
 survive by the common law, the following shall also survive : Ac- 
 tions of replevin, actions to recover damages for an injury to the 
 person (except slander and libel), actions to recover damages for an 
 injury to real or personal property, or for the detention*or conver- 
 sion of personal property, and actions against officers for misfeas- 
 ance, malfeasance or nonf easance of themselves or their deputies ; 
 and all actions for fraud or deceit. (/) 
 
 10. General directions, the practice and suggestions will be given 
 further on.(&) 
 
 SECTION II. ADMINISTRATION OVER REAL ESTATE THROUGH THE 
 ADMINISTRATOR. 
 
 1. When realty may be sold. 
 
 2. Proceedings to be commenced by petition ; parties. 
 
 3. Requisites of the petition. 
 
 4. Cause to be prosecuted according to the practice in chancery. 
 
 5. Summons to issue, requisites of. 
 
 (g). 119, Cothran's Stats., 1880, 79. (j) 122, id., p. 80. 
 (/*) 120, id., p. 80. (k) See ch. xiv, infra. 
 
 (t) 121, id.
 
 CH. YII.] REAL ESTATE IX ADMINISTRATION. 193 
 
 Tlirough tlie administrator. 
 
 6. Service of summons. 
 
 7. Cases for constructive service ; affidavit of non-residence, etc. 
 
 8. Publication notice. 
 
 9. Guardian ad litem. 
 
 10. The hearing, order and decree of sale. 
 
 11. The sale to divest title of defendants. 
 
 12. Preliminaries and regulations for making sale, the notice, penalties, etc. 
 
 13. Proceeds of sale, assets in the hands of the administrator. 
 
 14. Equitable estates ; how sold or made legal estates and sold. 
 
 15. The practice indicated . 
 
 16. Forms for pleadings, affidavits, process, orders, decrees, etc., etc. 
 
 An administrator has no power over the real estate of a decedent, 
 other than to obtain a decree of court and sell the same thereunder, 
 to pay debts, when the personal property is insufficient. LeMoyne v. 
 Quimby, 70 111. 399 ; Walker v. Diehl, 79 id. 473. 
 
 1. WHEN SALE MAY BE HAD. When the executor or administra- 
 tor has made (1) a just and true account of the personal estate and 
 debts to the county court, and (2) it is ascertained that the personal 
 estate of a decedent is insufficient to pay the just claims against his 
 estate, and (3) there is real estate to which such decedent had claim 
 or title, such real estate, or such portion as may be necessary to satisfy 
 (1) the indebtedness of such decedent, and (2) the expenses of 
 administration, may be sold in the manner provided by statute. (I) 
 
 2. The mode of commencing the proceedings for the sale of real 
 estate in such cases shall be by the FILING OF A PETITION by the 
 executor or administrator, in the county court of the county where 
 letters testamentary or of administration were issued. The widow, 
 heirs or devisees of the testator or intestate, and the guardians of any 
 
 (I) 97, E, S. 1874, p. 121. For apply, in connection with the heir, for 
 
 discussion of all the sections of the an order to sell the realty. The parties 
 
 repealed statutes giving power to in such cases are not in privity ; the 
 
 the administrator to affect decedent's admissions of an administrator do not 
 
 real estate, see Phelps v. Funk- bind the heir, and the heir may con- 
 
 houser, 39 111. 401. A sale cannot be test an application for the sale of the 
 
 made under an act of the legislature, realty. Hopkins v. McCan, 19 111. 113. 
 
 without judicial inquiry as to the ex- Debts, how established. A judgment 
 
 istence of debts. Rozier v. Pagan, 46 against an administrator is prima facie 
 
 111. 404. There must be debts existing, evidence of the existence of a debt 
 
 An order to sell the real estate of a de- against the estate, as against an heir, 
 
 cedent will not be made unless it is Stone v. Wood, 16 111. 177. Probate of 
 
 shown that there are existing debts the claims. It is not sufficient to 
 
 against the estate. Dorman v. Yost, show that the claims exist or have 
 
 13 111. 127. Upon a deficiency of assets been allowed by the probate court in 
 to pay the debts of the estate, he may 
 25
 
 REAL ESTATE IN ADMINISTRATION. 
 
 [CH. VII. 
 
 Throvigh the administrator. 
 
 such as are minors, and the conservators of such as have conserva- 
 tors, and the actual occupants of the premises, where the same or 
 any part thereof are occupied, shall be made parties defendants. If 
 there are persons interested in the premises whose names are not 
 known, then they shall be made parties by the name of unknown 
 owners, (m) 
 
 3. THE PETITION SHALL SET FORTH THE FACTS AND CIRCUM- 
 STANCES on which the petition is founded, in which shall be stated 
 the amount of claims allowed, with an estimate of the amount of 
 just claims to be presented, and it shall also contain the amount of 
 personal estate which has come to his hands, and the manner in 
 which he has disposed of the same, with a statement of the amount 
 of claims paid. The petition shall be signed by the executor or 
 administrator, and verified by his affidavit, and shall be filed at least 
 ten days before the commencement of the term of court at which the 
 application shall be made.(w) 
 
 (m) % 98, R. S. 1874, p. 122. 
 
 () 99, id. Petition. The proceed- 
 ings will be reversed if the record does 
 not show any petition by the adminis- 
 trator. Monahon v. Vandyke, 27 111. 
 
 154. The petition should phow that 
 the contingency exists which author- 
 izes this proceeding. Hobson v. Payne, 
 45 111. 158. The petition need not give 
 the names of the heirs who are the 
 
 another State. Hobson v. Payne, 45 
 111. 158. Debts created by the admin- 
 istrator after the death of intestate 
 will not justify a proceeding to sell the 
 land. Fitzgerald v. Glancy, 49 111. 465. 
 A creditor cannot, by an allowance of 
 his claim, or by obtaining judgment 
 against an estate or an administrator, 
 thereby acquire any specific lien upon 
 the lands of the intestate, nor could 
 he enforce the collection of a judg- 
 ment by the levy of an execution upon 
 the land. Stttlman v. Young, 16 111. 
 318. Where the legislature passed a 
 special act, authorizing the adminis- 
 trator to sell the real estate of a party, 
 to pay debts, and reinvest the surplus, 
 with the approval of the probate j udge, 
 for the benefit of the widow and heir : 
 Held, that the power was conferred for 
 the purpose of paying debts, and could 
 not Da exercised until required for that 
 purpose. Davenport v. Young et ux., 
 16 111. 548. Where an administrator 
 applies for leave to sell the real estate 
 for the purpose of paying a judgment, 
 the judgment is not conclusive as 
 against an heir, and he may contest 
 the application, unless he has been 
 
 made a party to the judgment, by 
 joining in taking an appeal from it to 
 a superior court. Stone v. Wood, 16 
 111. 177 ; Hopkins v. McCan, 19 id. 113 ; 
 Moline Water Power & Manf. Co. v. 
 Webster, 26 id. 234. See contra, Gib- 
 son v. Boll, 27 id. 90. All real estate, 
 by statute, may be sold for the pay- 
 ment of the debts of intestates, but 
 administrators have no power to sell 
 or incumber without an order of court. 
 The lands descend to the heirs sub 
 modo, subject to this liability. Still- 
 man v. Young, 16 111. 318. Appraise- 
 ment bill. It is not essential that it 
 appear an appraisement bill was filed 
 by an administrator, to authorize the 
 court to grant his petition for an order 
 to sell land to pay debts. Shoemate v. 
 Lockridge, 53 111. 503. Held, on objec- 
 tion to a petition in the circuit court, 
 that the statement as to the personal 
 assets was incorrect ; that where the 
 judge of the probate court has prop- 
 erly certified the amount of assets and 
 claims, showing a deficiency of per- 
 sonal assets, such evidence will justify 
 an order of sale. Madden v. Cooper, 
 47 111. 359.
 
 <JH. VII.J 
 
 EEAL ESTATE IX ADMINISTRATION. 
 
 195 
 
 Through the ad ninistrator. 
 
 4. SUCH APPLICATION SHALL BE DOCKETED as other causes, and 
 the petition may be amended, heard or continued for notice, or for 
 other cause. The practice in such cases shall be the same as in cases 
 in chancery.(o) 
 
 o. Upon the filing of the petition, the clerk of the court where the 
 same may be filed shall issue a SUMMONS, directed to the sheriff of 
 the county in which the defendant resides, if the defendant is a resi- 
 dent of this State, requiring him to appear and answer the petition 
 on the return day of the summons ; and where there are several 
 defendants, residing in different counties, a separate summons shall 
 be issued to each county, including all the defendants residing 
 therein. Every summons shall be made returnable to the first term 
 of the county court after the date thereof, unless the petition is filed 
 within ten days immediately preceding any term, in which case the 
 summons shall be returnable to the next term thereafter. (p) 
 
 (o) 100, R. S. 1874, p. 122 ; see Hill's publication and the day of the term at 
 
 Chan. Pr. which application for an order to sell 
 
 (p)101,id. The intervention of six is made, is sufficient. Mpdden v. 
 
 weeks' notice between the first day of Cooper, 47111.359. After the expiration 
 
 owners of the land sought to be sold. 
 Gibson v.Roll,27Ul. 92 ; Stow v. Kim- 
 lall, 28 id . 98. But see 99, act 1872. 
 If the administrator files the petition 
 and dockets the cause at the term 
 named in the notice, it would be com- 
 petent for the court to continue the 
 cause to a subsequent term and then 
 grant an order to sell the real estate . 
 SchneU \.City of Chicago, 38 111. 383 ; 
 Shoemate v. Lockridge, 53 id. 503. In 
 a proceeding by an administrator for 
 leave to sell real estate, the petition, 
 notice of sale, and deed to the pur- 
 chaser, described the premises cor- 
 rectly, as being in section thirty-ihrec ; 
 the abstract from the county court, the 
 inventory, and the order of sale de- 
 scribed the land as being in section 
 twenty-three . Held, in a collateral pro- 
 ceeding, involving the title,- that the 
 misdescription was a mere clerical 
 error. , Shoemate^v. Lockridge, 53 111. 
 503. Requisites of petition. In a pro- 
 ceeding by an administrator, under the 
 act of 1857, for leave to sell real estate 
 to pay debts, the petition should allege, 
 in order to give the court jurisdiction 
 to order the sale, that an account of the 
 personal estate and debts had been 
 made, as mentioned in the act, or that 
 the decedent left no personal estate of 
 which an account could be made. Bree 
 v. Bree, 51 111. 367. And where the 
 
 petition alleges that the decedent left 
 no persona] estate, and the finding of 
 the court is,that all the material allega- 
 tions of the petition had been proved, 
 the court will, in the absence of any 
 thing in the record rebutting such find- 
 ing, presume that it was warranted by 
 the evidence. The evidence need not 
 all be preserved in the record. Bree v. 
 Bree, 51 111. 3G7 ; Shoemate v. Lock- 
 ridge, 53 id. 503. Not necessary to 
 show that the personal estate in 
 another State has been exhausted. 
 Eosenthal v. Renick, 44 111. 202. The 
 proper course to be pursued upon an 
 application to sell real estate for the 
 payment of debts indicated. Stoio v. 
 Kimball, 28 111. 93. A petition for the 
 sale of realty for the payment of debts 
 must clearly show that there are debts 
 of the estate existing and allowed, 
 and that the personalty is exhausted. 
 Moffi.it v. Mojfitt, 09 111. C41. It must 
 appear and be proved that such debts 
 are legally chargeable upon the estate 
 in order to support a decree of sale. 
 Walker v. DieM, 79 111. 473. In a case 
 where no assets came to the hands of 
 the administrator, but he paid of his 
 own money, taxes, insurance, court 
 costs, etc., it was held the decree for 
 the sale of land could not be sustained. 
 Walker v. Diehl, 79 111. 473.
 
 196 
 
 EEAL ESTATE 
 
 ADMINISTRATION. 
 
 [CH. VII. 
 
 Through the administrator. 
 
 6. THE SERVICE OF SUMMONS shall be made by reading thereof to 
 the defendant, or leaving a copy thereof at the usual place of abode, 
 with some member of the family of the age of ten years and upward, 
 and informing such person of the contents thereof, which service 
 shall be at least ten days before the return of such summons.(g) 
 
 7. Whenever any petitioner or his attorney shall file, in the office of 
 the clerk of the court in which his petition is pending, an affidavit 
 showing that any defendant resides or hath gone out of this State, 
 or on due inquiry cannot be found, or is concealed within this State, 
 so that process cannot be served upon him, and stating the place of 
 
 (q) % 102, R. S. 1874, p. 122. 
 
 of one year from the final settlement 
 of the account of an intestate in the 
 court of probate, by the administrator, 
 no application on the part of the ad- 
 ministrator to sell the real estate of the 
 intestate, to satisfy debts still due, will 
 be sustained, as a general rule. Dor- 
 man v. Lane, 1 Gilm. 143. Notice of 
 intention to apply. An administrator 
 may give a general notice by publica- 
 tion of his intention to apply for leave 
 to sell real estate for the payment of 
 decedent's debt, without naming par- 
 ticular persons as defendants, the 
 statute having regard to all persons 
 interested, whether defendants or not. 
 Bowies' Heirs v. Rouse, Adm'r, 8 Gilm. 
 409 ; Gibson v. Roll, 27 111. 89. Parties 
 interested are bound, after proper 
 notice, to appear and contest the ap- 
 plication to sell lands, on the day 
 specified ; but if the petition be not 
 then presented, they are not required 
 to wait from day to day to see whether 
 any move will be made in the case. 
 But after the presentation of the peti- 
 tion, the court may fix a subsequent 
 day for the hearing of proofs or other 
 action in the case. Gibson v. Roll, 80 
 id. 172. Want of service decree not 
 binding. If notice of such a proceed- 
 ing is not served or given to the heirs, 
 in some mode known to the law, a 
 decree licensing the executor or admin- 
 istrator to sell lands of the testator to 
 pay debts will be void, and may be 
 questioned in both direct and collateral 
 proceedings. Morris v. Hogle 37 111. 
 150 ; Schnett v. City of Chicago, 38 id. 
 383; Clark v. Thompson, 47 id. 25. 
 Statute must be followed. In a pro- 
 ceeding by an administrator to sell the 
 
 real estate of his decedent, unless the 
 mode pointed out by the statute for 
 bringing the parties interested before 
 the court is pursued, there will be 
 such a want of jurisdiction as will 
 vitiate the order for sale. Herdman, 
 v. Short, 18 111. 59 ; Gibson v. Roll, 27 
 id. 92 ; Bree v. Bree, 51 id. 267. Notice 
 by an administrator of an application 
 to sell lands must be published for 
 three successive weeks, the first publi- 
 cation to be at least six weeks before 
 the presenting of the petition. If this 
 be not done, parties are not bound to 
 take notice of such application. And 
 although a petition may not be pre- 
 sented in fact until a later day than 
 the one fixed by the notice, nor till 
 after the six weeks required by the 
 statute have expired, yet that fact does 
 not cure the defect. Gibson v. Roll, 30 
 111. 172. Where the statute requires 
 six weeks' notice, a publication of only 
 thirty days is a fatal error. Monahon 
 v. Vandyke, 27 111. 155. At the term 
 specified. The application must be 
 made at the term specified in the notice 
 published by the administrator. If 
 not made at that term, the proceeding 
 is abated, and the parties in interest 
 must be brought into court by another 
 notice. ' Turney v. Turney, 24 111. 625. 
 The notice given of such application 
 need not specify the day of term on 
 which the petition will be presented. 
 Id. ; Finch v. Sink, 46 111. 169 ; Mad- 
 den v. Cooper, 47 id. 359 ; Shoemate v. 
 Lockridge, 53 id. 503. An administra- 
 tor published notice in a newspaper 
 in Shelby county that he would pre- 
 sent a petition " at the next term of the 
 Shelby circuit court, to be holden in
 
 CH. VII.] KEAL ESTATE IX ADMINISTRATION. 197 
 
 Through the administrator. 
 
 residence of such defendant, if known ; or that, upon diligent 
 inquiry, his place of residence cannot be ascertained, the clerk shall 
 cause publication to be made in some newspaper printed in his 
 county, and if there is no newspaper published in his county, then 
 in the nearest newspaper published in this State, containing notice 
 of the filing of the petition, the names of the parties thereto, the 
 title of the court, and the time aud place of the return of summons 
 in the case, and a description of the premises described in the peti- 
 tion ; and he shall also, within ten days of the first publication of 
 such notice, send a copy thereof by mail, addressed to such defendant 
 whose place of residence is stated in such affidavit. The certificate 
 of the clerk that he has sent such notice in pursuance of this section 
 shall be evidence, (r) 
 
 8. The notice required in the preceding section may be given at 
 any time after the filing of the petition, and shall be published at 
 least once in each week for four successive weeks, and no default or 
 proceeding shall be taken against any defendant not served with 
 summons, and not appearing, unless forty days shall intervene 
 between the first publication, as aforesaid^ and the first day of the 
 term at which such default or proceeding is proposed to be taken, (s) 
 
 9. When it appears that any of the persons required to be made 
 parties defendant, who have been served with summons or notified 
 as aforesaid, are minors under the age of twenty-one years, if males, 
 or eighteen years if females, without a guardian resident in this 
 State, or are persons having conservators, or where such guardian, if 
 any, or conservator shall not be personally served with summons or 
 
 (r) % 103, R. S. 1874, p. 122. (s) 104, id. 
 
 the court-house in Shelbyville, on," the report and approval of the sale, a 
 
 etc. Objection was made that the supplemental petition without new 
 
 notice failed to show the county and notice cannot be entertained. Cromine 
 
 State where the application was to be v. Tharp, 42 111. 120. Leave to sell 
 
 made. The notice was held sufficient, real estate. Where an order of a county 
 
 Moore v. Neil, 39 111. 256. Where the court, rendered on a notice that the 
 
 notice specifies that the administrator executor would apply at the December 
 
 " will apply at the December term of term of the court for license to sell 
 
 the county court of the county of Mer- real estate, to pay debts, is not made 
 
 cer, State of Illinois, for an order," etc., at that time, but the application is 
 
 and the notice bears date " September made and the order rendered on a peti- 
 
 6, 1852," it will be presumed that the tion filed, without further notice, at the 
 
 application would be made at the next February term, it is not binding 
 
 December term, A. D. 1852. Finch v. on the heirs for want of notice. Morrit 
 
 Sink, 46 111. 169. Sale of additional v. Hogle, 37 111. 150. So also in appli- 
 
 land. Where the original proceeding cation of administrator to county court, 
 
 had terminated at a former term, by Schnell v. City of Ghicago, 38 111. 383.
 
 198 REAL ESTATE IN ADMINISTRATION. [CH. Tli. 
 
 Through the administrator. 
 
 shall not appear, the court shall appoint a guardian ad Utem, who 
 shall appear and defend in behalf of such minors, and be allowed 
 such compensation as may be fixed by the court.() 
 
 10. Upon hearing the cause upon the issues formed or taken, the 
 court shall hear and examine the allegations and proofs of the par- 
 ties and of all other persons interested in the estate who may appear 
 and become parties ; and if, upon due examination, the court shall 
 find that the executor or administrator has made a just and true 
 account of the condition of the estate, and that the personal estate 
 of the decedent is not sufficient to pay the debts against such estate. 
 the court shall ascertain, as nearly as can be, the amount of defi- 
 ciency, and how much of the real estate described in the petition it 
 is necessary to sell to pay such deficiency, with the expenses of ad- 
 ministration then due or to accrue, and make a decree for the sale 
 thereof: PrQvided, that where any houses and lots, or other real 
 estate, are so situated that a part thereof cannot be sold without 
 manifest prejudice to the heirs, devisees or owner, the court may 
 order the sale of the whole or such part as it may deem best ; and 
 the overplus arising from such sale shall be distributed among the 
 heirs and devisees, owners, or such other person as may be entitled 
 thereto. (?/) 
 
 In such proceedings, the court may order the lands to be sur- 
 veyed and subdivided, and a plat to be made of the same. The 
 costs are taxed. (Cothran's Annotated Statutes, p. 1088.) 
 
 () % 105, Coth. Stats., 75. Answer the estate. He should be licensed to 
 
 of guardian not sufficient. In an ap- sell as much as may be required to pay 
 
 plication for the sale of real estate to the debts of the estate. Morris v. 
 
 pay debts, the answer of the guardian Hogle, 37 111. 150. A decree on a 
 
 ad Utem is not a sufficient foundation petition by an administrator for the 
 
 for an order of sale. The record should sale of lands, directed the sale of 
 
 show, further, that the court heard the whole of the land, or so much 
 
 proof which satisfied it of the truth of thereof as would pay the debts. Held 
 
 the allegations of the petition. Frid- to be sufficient ; and further, that it 
 
 ley v. Murphy, 25 111. 146. was unnecessary to state therein the 
 
 () 106, id. When and how ordered, particular interest the deceased had in 
 
 The act of 1827 did not, like the act of the land ordered to be sold. Bowies' 
 
 1829, require that an application to sell Heirs v. Rouse, Adm'r., 3 Gilm. 409. 
 
 real estate by administrators should be Where an administrator de bonis non 
 
 made to the circuit court of the county dies after he obtained an order 
 
 in which administration was granted, to sell real estate, his successor 
 
 Under that act, an application to the should perfect the sale; and if his 
 
 circuit court of the county in which authority be doubted, or if he needs 
 
 the real estate was situated was suffi- advice, a court of equity, and not a 
 
 cieut. Smith v. Httemun, 1 Scam. 323. court of law, is the proper resort. 
 
 It is error for the court to license an Baktr v. Bradsby, 23 111. 632. Not in 
 
 executor to sell so much real estate as chancery. A proceeding by an adniiu- 
 
 he may deem for the best interest of istrator to sell real estate is not a
 
 CH. VII ] REAL ESTATE IX ADMINISTRATION. 
 
 199 
 
 Through the administrator. 
 
 11. All such sales of real estate shall be made and conveyances 
 executed for the same by the executor or administrator applying for 
 such order, and shall be valid and effectual against the heirs and 
 devisees of such decedent, and all other persons claiming by, 
 through or under him or them. In case of the death of the execu- 
 tor or administrator applying for an order of sale before conveyance 
 is made, the administrator de bonis non shall proceed in the premises 
 and make conveyance in the same manner as if he had originally 
 applied for such order, which conveyance shall be good and valid. 
 
 The statute does not require the approval of the sale as a 
 necessary step to vesting title in the purchaser, (v) 
 
 (0) Moffitt v. Moffitt, 69 111. 641. 
 
 chancery proceeding. Moline Water 
 Power & Manuf. Co. v. Webster, 26 111. 
 233 ; Slwemaie v. Lockridge, 53 id. 503. 
 Order credit. An order for the sale 
 of the real estate of the decedent must 
 specify whether it shall be sold for 
 cash or on a credit, and on what credit. 
 Shoemate v. Lockridge, 53 111. 503. 
 Administrator's sale what title passes. 
 A purchaser of laud at an administra- 
 tor's sale acquires only such title as 
 was then vested in the heirs of the 
 intestate. So, if the land was subject 
 to the lien of a prior judgment against 
 the grantor of the intestate, the pur- 
 chaser will take the title with that in- 
 firmity. Walden v. Gridley, 36 111. 523. 
 The doctrine of caveat emptor applies 
 to such sales, and the purchaser will 
 be presumed to have examined the 
 records in relation to the title, and if 
 he neglects to do so, he must abide the 
 consequences of his omission. Walden 
 v. Gridley, 36 111. 523 ; McConnell v. 
 Smith, 39 id. 279 ; Bingham v. Maxey, 
 15 id. 295. See Moore v. Neil, 39 
 id. 256 ; McConnell v. Smith, id. 279 ; 
 Shoemate v. Lockridge, 53 id. 503. 
 Sale must follow the order. Where 
 an order of court directs the manner of 
 sale of real estate of a deceased per- 
 son, it is the duty of the executor or 
 administrator to conform strictly to its 
 requirements. Reynolds \~. Wilson, 15 
 111. 394. May be on credit. A court 
 may, if deemed beneficial to the estate, 
 order the sale by an executor or admin- 
 istrator to be on credit. Reynolds v. 
 Wttson, 15 111. 394. Where an admin- 
 
 istrator made a bond, and subsequently 
 a conveyance, which did not recite the 
 power to sell, nor that the estate be- 
 longed to the decedent: Held, that the 
 deed did not operate to pass the title 
 of the decedent. Davenport v. Young 
 et ux., 16 111. 549. Report of sale 'is not 
 necessary to the validity thereof, as to 
 purchasers. Moore v. Neil, 39 111. 256. 
 What is a reasonable time within 
 which the heir should apply to set 
 aside the sale. Kruxe v. Steffens, 47 
 111. 112. For facts held to show a col- 
 lusion between administrator and pur- 
 chaser, and invalidating the title in the 
 hands of a party having notice. Lock- 
 wood v. Mitts, 39 111. 603. Proceeds. 
 Under ^proper circumstances, a court 
 of equity will provide for the admini- 
 stration of assets in cases of intestacy. 
 In doing so, the court should have all 
 the creditors before it, and make such 
 disposition of the property as is re- 
 quired by the statute respecting 
 estates. Vansycle v. Richardson, 13 111. 
 171. Conveyance. The court will al- 
 low and compel an administrator to 
 amend a defective deed. Thorp v. 
 McCullum, I Gilm. 614. Where a sale 
 has been regularly and fairly made by 
 an administrator, under an order of 
 court, for a valuable consideration, and 
 the deed executed by one administra- 
 tor only .where there are two, the court 
 will not permit advantage to be taken 
 of such defective execution of a power, 
 but will compel the co-administrator to 
 join in the execution of the power. If 
 it were a mere power, the court would
 
 200 REAL ESTATE IN ADMINISTRATION. [CH. VII. 
 
 Through the administrator. 
 
 12. No lauds or tenements shall be sold by virtue of any such 
 order of the county court unless such sale is at public vendue, and 
 between the hours of ten o'clock in the forenoon and five o'clock 
 of the afternoon of the same day ; nor unless the time, place and 
 terms of holding such sale were previously published for the space 
 of four weeks, by putting up notices thereof in at least four of the 
 most public places in the county where such real estate shall be 
 sold, and also by causing a similar notice thereof to be published four 
 successive weeks prior to the sale in some newspaper published in 
 such county, or, if there be no such newspaper, then in such other 
 newspaper in this State as the court shall direct; nor unless such real 
 estate shall be described with common certainty in such notices. 
 And if any executor or administrator, so ordered to make sale of 
 any real estate, shall sell the same Contrary to the provisions of this 
 act, he shall forfeit and pay the sum of five hundred dollars, to be 
 recovered by action of debt, in the name of THE PEOPLE OF THE 
 STATE OF ILLINOIS, for the use of any person interested, who may 
 prosecute for the same: Provided, that no such offense shall affect 
 the validity of such sale : And provided, further, that such execu- 
 tor or administrator may sell the same on a credit of not less than 
 six nor more than twelve months, by taking note, with good per- 
 sonal security and a mortgage, or sale mortgage on the premises 
 sold, to secure the payment of the purchase-money. It shall be 
 the duty of the executor or administrator making such sale, on or 
 before the first day of the next term of the court thereafter, to file 
 in the office of the clerk of said court a complete report of said sale, 
 giving a description of the premises sold, to whom, where and upon 
 what terms sold and a general statement of the manner in which 
 the terms of the decree were executed. Any person interested in 
 the premises sold, and any creditor of the estate, may file exceptions 
 to such report, and upon the hearing thereof the court may approve 
 such report and confirm the sale, or disapprove the same and order 
 the premises to be resold. 
 
 The power to sell cannot be delegated by the executor or admin- 
 istrator to another. If he be not present the sale will not meet 
 
 not ; but where there is a duty and decree of court, cannot be excluded as 
 
 trust to be performed by the poper evidence because the probate court 
 
 exercise of the power, the court will erred in granting him letters. Wight 
 
 compel it. Thorp v. McCullum, 1 v. Wallbaum, 39 111. 555; Schnell v. 
 
 Gilm. 614. In an action of ejectment, City of Chicago, 38 id. 383. 
 an administrator's deed, made under a
 
 CH. VII.] REAL ESTATE ADMINISTRATION. 201 
 
 Through the administrator. 
 
 judicial sanction. Chambers v. Jones, 72 111. 275 ; Sebastian \. 
 Johnson, id. 282 ; Kellogg v. Wilson, 89 id.357.(w) 
 
 13. When real estate is sold, the moneys arising from such sale 
 shall be received by the executor or administrator applying for the 
 order to sell, and shall be assets in his hands for the payment of 
 debts, and shall be applied in the same manner as assets arising from 
 the sale of personal property. (2) 
 
 14. In all cases where a decedent is seized of a legal or equitable 
 title to real estate, the payment whereof has not been completed, and 
 the estate of such decedent is unable to make complete payment 
 therefor, with advantage to such estate, the administrator or executor 
 may sell or dispose of such real estate upon the order of the county 
 court, and the money arising from such sales shall be assets in the 
 hands of such executor or administrator, as in other cases. But in 
 all cases where the estate of any such decedent shall be solvent, and 
 such lands as aforesaid may be paid for without prejudice to the 
 creditors, heirs- or devisees of the estate, the executor or adminis- 
 trator shall complete the payment for the same out of the proceeds 
 of the personal property, in the name of the heirs or legal represen- 
 tatives of the decedent entitled thereto ; and he shall be allowed a 
 credit for the amount of such payments, and all reasonable expenses 
 incurred in making the same, upon final settlement of such estate : 
 Provided, that the provisions of this section shall, in nowise, inter- 
 fere with the provisions of any last will or testament. (y) 
 
 15. THE PRACTICE. The proceeds of sale are declared to be assets 
 in the hands of the administrator. (z) The statute, in effect, reserves 
 a lien on the lands of an intestate, to secure the payment of any 
 sxcess of indebtedness beyond the proceeds of the personal estate. 
 This lien is to be enforced by the administrator for the benefit of 
 creditors generally.(a) The real estate descends to the heir with this 
 charge resting upon it. He cannot incumber or alien it, to the preju- 
 dice of the rights of creditors.(J) 
 
 Again, when special proceedings are authorized, by which the real 
 estate of one may be divested and transferred to another, every 
 material step in the course of the proceedings must be pursued. (c) 
 
 (ir) Cothran's Armo'd Stat. 76. 108. (6) Vansyde v. Richardson, 13 111. 
 
 (x) $ 109, id. 171 ; 4 Kent's Com. 419,421 ; Meyer 
 
 (y) 110. id., 77. v. McDougal, 47 111. 278. 
 
 (z) % 109, id., 76. (c) Reynolds v. Wilson, 15 111 394. 
 
 (a) See chap, x, infra. See Botsf&rd v. O 'Conner, 57 id. 72. 
 
 26
 
 202 REAL ESTATE IX ADMINISTRATION. [CH. VII. 
 
 Through the administrator. 
 
 A deficiency of assets to pay the indebtedness of the estate must 
 first exist, to authorize the sale. This deficiency should appear from 
 the records of the county court. The court to which the petition 
 for the sale is addressed should be advised, by the best evidence, of 
 the amount of indebtedness and assets, so as to determine how much 
 of the real estate should be subjected to sale. 
 
 This evidence is the just and true account of the personal estate 
 and debts, required by section ninety-eight to be made, by the execu- 
 tor or administrator, to the county court, and which must be filed 
 in that court. The following form of account may be used. 
 
 16. ACCOUNT OF PERSONAL ESTATE AND DEBTS. 
 
 A just and true account of the personal estate and debts of A B, late of 
 county, deceased. 
 
 PERSONAL ESTATE. 
 
 The undersigned, administrator of A B, deceased, charges himself as fol- 
 lows : 
 
 DB. 
 
 To amount of Sale Bill, all collected $500 00 
 
 " collected of A B on note 50 00 
 
 " of C D on account 90 00 
 
 " (and so on, specifying the amount of money received, from 
 
 whom received, etc.) 
 
 Total amount received from all sources $640 00 
 
 Contra. 
 
 The administrator credits himself with the following disbursements, made 
 pursuant to order of court, as appears by receipts herewith filed : 
 
 1872. Nov. 1. By cash paid to C. T. Dutton $75 00 
 
 " Nov. 16. " " J K, on his claim 475 00 
 
 " Dec. 2. " ". MJ, " 7800 
 
 " Dec. 2. " " J. J. S., clerk's fees 1300 
 
 Total amount paid out $640 00 
 
 Amount of Debts due said Estate, not collected. (See Inventory.) 
 
 Note of N (doubtful) $45 68 
 
 Account of C B (desperate) 70 00 
 
 Note of H Or, discovered after filing inventory, dated Oct. 1, 1872, 
 
 payable on demand (desperate) 25 00 
 
 Accountof X Y (desperate) 13 25 
 
 Total amount due the Estate, doubtful and desperate $153 93
 
 CH. VII.] KEAL ESTATE Ilf ADMINISTBATIOJST. 203 
 
 Througli the administrator. 
 
 Amount of Claims allowed aginst the Estate, as appears from the Records of the 
 
 County Court. 
 
 EH $690 00 
 
 L S . . 380 00 
 
 Amount forward $1,070 00 
 
 Brought forward $1,070 00 
 
 L K 890 00 
 
 L M 105 00 
 
 W C 100 00 
 
 JK 1,00000 
 
 M R (and so on, stating all claims, whether allowed or not). 
 
 Total amount of claims allowed $3,165 00 
 
 Estimated amount of liabilities of estate not yet allowed, but proba- 
 bly valid 800 00 
 
 Total indebtedness of estate $3,965 00 
 
 Deducting amount paid out 640 00 
 
 $3,325 00 
 
 Deduct probable amount that maybe collected or received on doubt- 
 ful and desperate debts 75 00 
 
 Leaving as deficit of assets $3,250 00 
 
 I, C D, administrator of the estate of A B, deceased, do certify that the fore- 
 going is a true and just account of the personal estate and the debts of said 
 deceased, as far as I have been able to discover. 
 
 C D, 
 
 Dee. 3, 18 . Administrator of A B. 
 
 The administrator must, before applying for a sale of the real 
 estate, file such an account in the county court, have it approved and 
 recorded. It then will be evidence a proper basis for a valid sale 
 of the real estate. A true account requires something more than a 
 general statement of the amount of assets and indebtedness of the 
 estate a statement of the particular debts and credits. 
 
 Before application to sell the real estate, the inventory, appraise- 
 ment bill and sale bill should also be filed in court, and all the avail- 
 able personal estate, or its proceeds, applied toward the payment of 
 the debts of the decedent. 
 
 The following then are the necessary proceedings preliminary to 
 an order of sale of real estate : 
 
 First. The filing of the inventory, appraisement bill, and sale bill.
 
 204 REAL ESTATE IN ADMINISTRATION. [CH. VII. 
 
 Through the administrator. 
 
 Second. Rendering a just and true account of the personal estate 
 and debts of the deceased. 
 
 Third. The petition and the evidence required. 
 
 Section 103, of the Statute of Wills, required a notice and was re- 
 pealed by the 12th section of the law of 1857. 
 
 The decision in Bowies' Heirs v. Rouse, Adm'r,(d) prepared the 
 way for the law of 1857,(e) substantially re-enacted in 1872.(/) 
 
 The following form of petition may be used : 
 
 PETITION FOB SALE OP REAL ESTATE. 
 
 STATE OP ILLINOIS, ) In the County Court of county, to 
 
 County, f ss term, 18 . 
 
 To the Hon. , the judge of said court : 
 
 The petition of C D, of said county of , administrator of the goods, 
 
 chattels and effects of A B, late of said county, deceased, intestate, respectfully 
 represents : 
 
 That your petitioner was, on the day of , A. D. 18 , appointed bj 
 
 the county court of county aforesaid, administrator of the goods and chat- 
 tels, rights and credits of said intestate, as will appear by letters of administra- 
 tion, ready here in court to be shown. 
 
 And your petitioner further shows that he has filed in the county court of 
 said county, as such administrator, his inventory, and the appraisement bill 
 and sale bill, of the estate of said intestate, as required by law, and has also 
 rendered to said court a j ust and true account of the personal estate and debts 
 of the said deceased, a certified copy of which account is hereto annexed, and 
 made part of this petition, market " Exhibit A." That the personal estate of 
 the said intestate is insufficient to pay the just claims against the said estate, 
 as will appear by reference to the said account, and also (here set forth any 
 other matter of import for the court to know in the case.} 
 
 And your petitioner shows, more particularly, that the amount of money 
 received by your petitioner as such administrator, from all sources, is six hun- 
 dred and forty dollars, as will appear from said account (Exhibit A), and 
 ; that he has paid out, by order of said court, on claims allowed, the sum 
 of six hundred and forty dollars, as will also appear from said exhibit ; that he 
 has faithfully applied such part of the personal estate and the proceeds thereof 
 as have come to his possession toward the payment of the debts of the said 
 deceased, which will more particularly and fully appear by reference to said 
 Exhibit A, and the said 
 
 And your petitioner further represents unto your Honor, that the claims 
 
 allowed against and the liabilities of the said estate amount to the sum of 
 
 dollars, as will also appear by said exhibit and , of which he has 
 
 paid six hundred and forty dollars ; that there are doubtful and desperate claims 
 
 in his hands in favor of said estate amounting to one Jiundred find forty-three 
 
 (d) 3 Gilm. 419. (/) 97-108, R. S. 1874. pp. 121- 
 
 (e) Gibson v. Roll, 27 111. 90. 124.
 
 CH. VII. j EEAL ESTATE IN" ADMINISTKATION. 205 
 
 Through the administrator. 
 
 dollars, of which he will probably collect or receive the sum of dollars, 
 
 after placing which as of the assets, there is a deficiency of personal property 
 to pay the debts of the deceased, all which will more fully and particularly 
 appear from said account marked " Exhibit A," and said 
 
 And your petitioner further represents, that the said intestate died seized in 
 fee of the following described real estate, situated in the said county of , 
 
 and State of Illinois, to wit : The north-east quarter of Section No. , in 
 
 Township No. , north of Range No. , east of the 4th principal 
 
 meridian ; that the said real estate is reasonably worth the sum of $ 
 
 And your petitioner further represents that the said intestate died, leaving 
 him surviving his widow J B, and the following named children (here insert 
 names of children), who are his only heirs at law ; that the said and are 
 minors under the age of twenty-one years, and have no guardians residing in 
 said county. (Here insert the names of minor children who have guardians, 
 
 naming such guardians ; also the names of devisees; also the names of actual 
 occupants, if known, if not known, then make them parties by the name of " un- 
 known parties " all of whom, to wit (naming widow, heirs, devisees, minors hav- 
 ing guardians, and guardians, and those not having such, and occupants), are 
 hereby made parties hereto, and are interested herein. 
 
 Wherefore, in consideration of the premises, your petitioner prays that the 
 said (here naming them again), may be summoned and required to answer all 
 the matters herein stated and charged, though not on oath, the necessity of an- 
 swer under oath being hereby expressly waived, and for the order and decree of 
 this honorable court, granting him leave to sell the said real estate, or so much 
 thereof as may be necessary to pay the debts of the said intestate, and that a 
 guardian ad litem be appointed for the said minor heirs, and for such other or 
 further order or decree in the premises as may be deemed necessary, pursuant 
 to the statute in such case made and provided, and the custom and practice of 
 this honorable court. 
 
 And your petitioner will ever pray, etc. 
 
 C D, 
 Administrator of A B, deceased. 
 
 The usual chancery summons, mutatis mutandis, will be sufficient, 
 stating the nature of the suit. 
 
 An affidavit is required to be made in three distinct cases : 
 
 (1.) Where a defendant is a non-resident of the State, or has gone 
 out of it, or, on due inquiry, cannot be found. 
 
 (2.) Where he is concealed within the State, so that process cannot 
 be served on him. 
 
 (3.) Where defendants are unknown. 
 
 On filing the necessary affidavit, a notice like the following may 
 be published, as directed :
 
 206 EEAL ESTATE IN ADMIXISTRATIOX. [CH. VII. 
 
 Through the administrator. 
 
 NOTICE OF PENDENCY OF SUIT. 
 
 STATE OF ILLINOIS,) In County Court. 
 
 County. J ** To the term, A. D. 18 . 
 
 C D } Petition for order of sale of real estate, to pay the 
 
 v. [ debts of the estate of A B, deceased, late of , in- 
 
 E F, Q H, IJ, etc. ) testate. 
 
 Public notice is hereby given to the said E F, of, etc., that a petition has 
 been filed in the office of the clerk of said court in the above-entitled cause, 
 by C D, administrator of, etc., against the defendants above named, praying for 
 sale of the real estate of said A B, deceased, which is described as follows : 
 (Here describe, with legal certainty, the lands to be affected), to pay debts, and that 
 an affidavit has been filed in said office, stating that you, the said E F, are a non- 
 resident of this State (or any of the grounds above stated), and was such non-res- 
 ident at the time of the commencement of this action, and that a summons has 
 been issued in this cause, returnable on the first day of the next term of said 
 court, to be holden at , on the third Monday of , A. D. 18 . Now, unless 
 you, the said E F, shall be and appear at said court, on the said first day of 
 the term thereof, to be holden as above, and plead to and answer said 
 
 petition, the said petition will be taken as confessed by you, the said E F, and 
 a decree for sale of said real estate as prayed will be entered for payment of 
 said debts. 
 
 PT -, Witness G H, clerk of, etc., and the seal of said court, this day 
 
 L 1 " 8> J of , A. D. 18 . 
 
 The proceedings in matters of process compelling appearance and 
 preparing the issues are prescribed to be according to the chancery 
 practice. 
 
 We shall give a complete record of an application contested at 
 every step further on under the PROBATE RECORD, (g) 
 
 Rules and orders may, after the parties are in court, be made with 
 great facility as occasion requires. 
 
 In these proceedings, from their inception to their close, the 
 advice or judgment of the county judge having jurisdiction should 
 be taken at every turn. He is the arbiter, the impartial conservator 
 of these estates. If the application be resisted, then notice of every 
 step in the cause should be given, unless in the minor matters of 
 the suit. 
 
 Counsel will be required, and the admirable decisions of our 
 supreme court in chancery and in administration and conservation 
 will guide to a correct course of procedure in such cases. (Ji) 
 
 The county judge sitting quite like a chancellor in cases involving 
 these high trusts, and the rights and property of the orphan, the 
 widow, the absent, the unknown, and the incapacitated those 
 
 (ff) See Hill's Chan. Pr., Process, (h) Hill's Chan. Pr. 6, 7. 
 Pleadings, etc.
 
 CH. VII.] KEAL ESTATE IX ADMINISTRATION. 207 
 
 Through the guardian. 
 
 incapable of protecting either themselves or their property, is an 
 exercise of administrative and judicial power, equal to any known to 
 the court of chancery. Such provisions indicate the wise statesman- 
 ship that prompted them, and the confidence in our lesser courts 
 which the integrity and ability of their learned judges, from the 
 earliest period of our judicial history, have inspired. 
 
 For our idea of the form which such proceedings should wear, 
 and the necessary steps to be taken throughout such a course, we 
 would respectfully refer the reader to the probate record further 
 on.(i) 
 
 From the filing of the petition for forms, see chapter xiv, infra. 
 
 SECTION" III. ADMINISTRATION OVER REAL ESTATE THROUGH THE 
 
 GUARDIAN. 
 
 1. The guardian may lease the ward's real estate with the approval of the 
 
 court. 
 
 2. He may by leave of court mortgage the same. 
 
 3. Petition for order must be filed however. 
 
 4. Foreclosure of such mortgages only to be made by petition to the court in 
 
 which letters of guardianship were granted. 
 
 5. Decree of strict foreclosure not to be entered, and redemption as in case of 
 
 judgments prescribed. 
 
 6. Proceedings prescribed for the sale of the ward's real estate ; petition ; 
 
 venue, etc., etc. 
 
 7. The petition ; its requisites, to be verified and filed. 
 
 8. Notice to be published and served. 
 
 9. Cause to be docketed and proceed as if a case in chancery. (See Hill's 
 
 Chan. Pr.) 
 
 10. The sale, notice of the time and place to be given ; sale may be on credit ; 
 
 credit how given, securities required. 
 
 11. Report of sale to be forthwith made and approved and recorded, and to 
 
 vest in the purchasers the title of the property. 
 
 12. Guardian to account for proceeds of sales of real estate on oath. 
 
 13. Duty of court to keep the securities of the guardian good. 
 
 14. Guardian, if insolvent or in doubtful circumstances, may be required ta 
 
 give to his securities counter-securities. 
 
 15. The practice indicated. 
 
 16. Forms for pleadings, affidavits, process, orders, decrees, etc., etc. 
 
 17. Foreign guardians may sell when. 
 
 18. And under like process and procedure. 
 
 (i) See chap, xiv, infra.
 
 HEAL ESTATE IN ADMINISTBATION. 
 
 Tlirougli the guardian. 
 
 19. Sales to invest purchasers with the title. 
 
 20. Foreign guardians must give security for costs, before commencing any 
 
 proceeding. 
 
 1. The guardian may lease the real estate of the ward upon such 
 terms and for such length of time, not extending beyond the mi- 
 nority of the ward, as the county court shall appro ve.(/) 
 
 2. The guardian may, by leave of the county court, mortgage the 
 real estate of the ward fora term of years not exceeding the minority 
 of the ward, or in fee ; but the time of the maturity of the indebted- 
 ness secured by such mortgage shall not be extended, beyond the 
 time of minority of the ward.(&) 
 
 3. Before any mortgage shall be made, the guardian shall petition 
 the county court for an order authorizing such mortgage to be 
 made, in which petition shall be set out the condition of the estate, 
 and the facts and circumstances on which the petition is founded, 
 and a description of the premises sought to be mortgaged. (I) 
 
 4. Foreclosures of mortgages authorized by this act shall only be 
 made by petition to the county court of the county where letters of 
 guardianship were granted, or in case of non-resident minors, in the 
 county in which the premises, or some part thereof, are situated, in 
 which proceeding the guardian and ward shall be made defendants ; 
 and any sale made by virtue of any order or decree of foreclosure of 
 such mortgage may, at anytime before confirmation, be set aside by 
 the court for inadequacy of price, or other good cause, and shall not 
 be binding upon the guardian or ward until confirmed by the 
 court.(w) 
 
 5. No decree of strict foreclosure shall be made upon any such 
 mortgage, but redemption shall be allowed as is new provided by 
 law in cases of sales under executions upon common-law judg- 
 ments,^) that is, within twelve months. 
 
 6. On the petition of the guardian, the county court of the county 
 where the ward .resides, or if the ward does not reside in the State, 
 of the county where the real estate, or some part of it, is situated, 
 may order the sale of the real estate of the ward, for his support 
 and education, when the court shall deem it necessary, or to invest 
 the proceeds in other real estate, or for the purpose of otherwise 
 investing the same, (o) Provided, the said county court shall make 
 
 (j) 23, R. S. 1874, p. 561. (n) % 27, id. 
 
 (k) % 24, id. (o) 28, as amended May 21, 1877 ; 
 
 (0 S 25, id. Cothran's Stats., 1880, 771. 
 
 (TO) g 26, R. S. 1874, p. 561.
 
 CH. VII.] EEAL ESTATE IN ADMINISTRATION. 209 
 
 Through the guardian. 
 
 no order fora sale, under said petition, until the said guardian shall 
 have executed and filed a bond, payable to the people of the State 
 of Illinois, with at least two sufficient sureties, to be approved by 
 the court, in double the value of the real estate by said petition 
 sought to be sold, conditioned for the due and faithful accounting 
 for and disposition of the proceeds of all real estate that may be 
 sold by him under such order, in the manner provided by law; 
 which bond may be put in suit, in the name of the people of the 
 State of Illinois, to the use of any person entitled to recover on a 
 breach thereof, and damages assessed and proceedings had thereon, 
 as in other cases of penal bonds. 
 
 7. The petition shall set forth the condition of the estate and the 
 facts and circumstances on which the petition is founded, and shal 
 be signed by the guardian and verified by his affidavit, and shall be 
 filed at least ten days before the commencement of the term of 
 court at which the application shall be made.(jo) 
 
 8. Notice of such application shall be given to all persons con- 
 cerned, by publication in some newspaper published in the county 
 where the application is made, at least once in each week for three 
 successive weeks, or by setting up written or printed notices in three 
 of the most public places in the county, at least three weeks before 
 the session of the court at which such application shall be made. 
 The ward shall be served with a copy of such notice at least ten 
 days before the hearing of such application, (q) 
 
 9. Such application shall be docketed as other causes, and the 
 petition may be amended, heard or continued for further notice, or 
 for other cause. The practice in such cases shall be the same as in 
 other cases of chancery.(r) 
 
 10. The court shall direct notice of the time and place of sale to 
 be given, and may direct the sale to be made on reasonable credit, 
 and require such security of the guardian or purchaser as the 
 interest of the ward may require. (s) 
 
 11. It shall be the duty of the guardian making such sale, as soon 
 as may be, to make return of such sale to the court granting the 
 order, which, if approved, shall be recorded, and shall vest in the 
 purchaser or purchasers all the interest of the ward in the estate so 
 
 (p) % 29, Cothran's Stats., 771. (s) 32, Cothran's Stats., 772. 
 
 (q) % 30, id. p. 772. (t) % 33, id. 
 
 (r) % 31, id.
 
 210 EEAL ESTATE IN ADMINISTRATION". [CH. VII. 
 
 Through the guardian. 
 
 12. An account of all moneys and securities received by any 
 guardian, for the sale of real estate of his ward, shall be returned 
 on oath of such guardian to the county court of the county where 
 letters of guardianship were obtained, and such money shall be 
 accounted for, and subject to the order of the county court, in like 
 manner as other moneys belonging to such minor. In case of sale 
 for re-investment in this State, the money shall be re-invested 
 under the direction of the court, (u) 
 
 13. It shall be the duty of the county court, at each accounting 
 of the guardian, to inquire into the sufficiency of his sureties, and if 
 at any time it has cause to believe that the sureties of a guardian are 
 insufficient or in failing circumstances, it shall, after summoning 
 the guardian if he be not before the court, require him to give 
 additional security.(v) 
 
 14. Upon the application of the surety of any guardian, and after 
 summoning the guardian, the court may, if it believes him to be 
 insolvent or in doubtful circumstances, require him to give counter 
 security to his sureties, (w) 
 
 15. THE PKACTICE INDICATED. See chapter xiv, infra. 
 
 16. FORMS, ETC. See chapter xiv, infra. 
 
 17. SALE OF REA.LTY BY FOREIGN GUARDIAN. "Where any person 
 residing in any other State of the United States, or any territory 
 thereof, shall have been or may hereafter be appointed guardian, in 
 the State or territory in which such person resides, of any infant or 
 other person owning real estate within this State, not having any 
 guardian in this State, it shall and may be lawful for every such 
 guardian to file his or her petition in the circuit court of the county 
 in which said real estate, or the major part thereof, may lie, for sale 
 of said real estate, for the purpose of educating and supporting such 
 infant, or other persons under guardianship, or for the purpose of 
 investing the proceeds of such real estate in such manner as the 
 court which appointed such guardian may order and direct; and the 
 said circuit court is hereby fully authorized and empowered to order 
 a sale of such real estate conformably to the prayer of said petition. 
 Provided, that every such guardian applying for such sale shall file 
 with his or her petition an authenticated copy of his or her letters 
 
 (u) | 34, R. S. 1874, p. 562. (w) % 36, R. S. 1874, p. 562. 
 
 () 35, id.
 
 CH. VII.] KEAL ESTATE IN ADMINISTRATION. 211 
 
 Through the guardian. 
 
 of guardianship. And provided, further, that the said circuit court 
 shall make no order for a sale under said petition until the said 
 guardian shall have executed and filed in the court which appointed 
 said guardian, a bond, with sufficient security, approved by said 
 last-mentioned court, for the due and faithful application of the 
 proceeds of every such sale, in such manner as the said last-men- 
 tioned court may direct; an authenticated copy of which said bond, 
 and the approval thereof, shall be deemed and taken by the circuit 
 court as sufficient evidence of the execution and filing of the same.(z) 
 
 18. Every guardian, applying for an order of sale under the fore- 
 going section, shall be required to give notice of his or her petition 
 in the same manner as is now required by law in cases of applica- 
 tion for sales of lands belonging to minors by resident guardians ; 
 and in every order for the sale of real estate under this act, it shall 
 be the duty of the court to prescribe the terms of said sale, and 
 the notice which shall be given thereof, and the place where such 
 sale shall be made.(y) 
 
 19. All sales of real estate, under the provisions of this act, are 
 thereby declared to be good and valid; and all deeds executed by 
 such guardian to the purchaser or purchasers under such sales shall 
 convey to and vest in such purchaser or purchasers all the estate, 
 right, title and interest, in law or equity, of said infant or others 
 in and to the land so sold.(2) If the court authorizing the sale 
 have jurisdiction, the sale will not be invalidated by the irregularity 
 of the proceedings of the guardian in executing the order of sale 
 The purchaser is not bound to see to the application of the funds, (a) 
 
 20. In all suits and petitions by non-resident guardians, they 
 shall give a bond for costs, as in cases of other non-residents.(J) 
 
 A subsequent deed, executed by a guardian for the purpose of 
 explaining a former deed, and correcting mistakes therein, made 
 some years after the first deed, is improper, as it amounts only to 
 the declarations of the guardian made when he could not, by such 
 declaration, affect the interest of his wards. The guardian's power 
 was exhausted when he had made the sale and the first conveyance, 
 and his acts were approved by the court, (c) 
 
 WHEN TITLE INURES; COVENANTS. Where a ward subsequently 
 
 (a;) 47, R. S. 1874, p. 563. (a) Mulford v. Beveridge, 78 111. 455 
 
 (y) 48, R. S. 1874, pp. 563, 564. (J) 50, R. S. 1874, pp. 563, 564. 
 
 (z) 49, id. (c) Yming v. Lorain, 11 111. 625.
 
 212 EEAL ESTATE IN ADMINISTRATION. [CH. VII. 
 
 Through the guardian. 
 
 acquires from the government of the United States a patent for the 
 premises which had been sold by his guardians, at a guardian's sale, 
 under the statute. Held, that his independent title, subsequently 
 acquired, did not inure to the benefit of a previous purchaser at a 
 guardian's sale ; nor was he estopped by the guardian's deed from 
 setting up such subsequent title. Held, also, that the guardian 
 could not insert any covenants in the deed which would be binding 
 on his ward. If the guardian chooses to insert covenants in the 
 deed, he may be held personally upon them, and to him alone must 
 the grantee look.(i) 
 
 Upon a sale of land by a guardian, the title is defective, unless 
 the guardian makes a report of his proceedings, and has the same 
 confirmed by the order of the court authorizing the sale, (c) As to 
 what stage of the case the report is to be made, the statute is 
 silent, (d) 
 
 For a case where the minors were held to be estopped from at- 
 tacking such an unconfirmed sale.(e) 
 
 CONFIRMING SALES. The discretion to be used by the court, in 
 confirming sales of guardians, must conform to established princi- 
 ples. (/) 
 
 The English practice of opening biddings at such sales is not a 
 sufficient cause for setting aside a sale.(/) 
 
 A sale by a guardian of his ward's land will not be sustained, un- 
 less it be shown that it was necessary for the infant's education and 
 support And applications by a guardian, for the sale of his ward's 
 real estate, must be made in the county where the ward resides, 
 although the estate may lie in a different county, and should state 
 affirmatively such residence. (g) 
 
 A guardian must follow the directions of the probate court; and 
 if, on an order being made, he finds he has no funds, he may then 
 make application for a sale of his ward's land.(</) . 
 
 Minors need not be made parties to a proceeding asking an order 
 of sale of their property for their support and education. Such an 
 application is for their benefit, and not adverse to them, (h) 
 
 (b) Young v. Lorain, 11 111. 625. (e) Penn v. Heisey, 19 111. 295. 
 
 (c) Young v. Eeogh, 11 111. 642; (/) Ayres v. Baumgarten,\5 111.444. 
 Ayres v. Baumgarten, 15 id. 444; (g) Loyd v. Malonel 23 111. 43. 
 Young v. Dowling, id. 481. (Defect (h) Fitzgibbon \ , Lake, 29 111. 165; 
 ive in equity.) Smith v. Race, 27 id. 387. 
 
 (d) Mulford v. Beveridge, 78 111. 455.
 
 CH. VII.] REAL ESTATE IN ADMINISTRATION. 213 
 
 Through the conservator. 
 
 Where the legislature authorizes a guardian to sell the land of 
 his ward, under the direction and sanction of the judge of probate, 
 a sale made without such sanction and direction is void.(t) 
 
 The jurisdiction of the circuit court, to order a sale of the real 
 estate of a ward, on the application of the guardian, cannot be 
 questioned collaterally where the contingency provided for by the 
 statute existed. And all objections taken to the notices of the sale, 
 posting them, and other matters involved in the adjudication of 
 the circuit court, either in granting the order of sale or in the final 
 order confirming the report of the guardian, can avail nothing in a 
 collateral action.(/) 
 
 Whether one or two guardians named in a will had authority to 
 apply for an order of sale, and whether the sale was regular, were 
 questions for the court to determine where the application was 
 made, and cannot be inquired into collaterally. (k) 
 
 An order entered by mistake, dismissing the proceeding after 
 decree, and before the confirmation of sale, would not vacate the 
 order of sale, nor revoke the authority of the guardian. (k) 
 
 The only power a guardian has over his ward's lauds is to lease 
 the same upon such terms and for such length of time as the 
 county court shall approve. He is not entitled, nor is it made his 
 duty, to take possession of the real estate of his ward.(Z) 
 
 DOWER. It is the duty of a guardian to institute proceedings 
 for the assignment of dower.(w) 
 
 It is equally his duty to lease such portion of the estate as is set 
 apart to the wards; and his estate is liable for whatever might have 
 been received by a faithful discharge of those duties.(m) 
 
 CONVERSION. If a guardian severs rails in a fence on the land 
 of his wards and the widow, and converts them to his own use, his 
 estate is answerable directly to the heirs for their value.(w) 
 
 SECTION iv. ADMINISTRATION OVER REAL ESTATE THROUGH THE 
 
 CONSERVATOR. 
 
 The law on this subject may be found at pp. 138, et seq., supra. 
 See Cothran's Annotated Statutes, 1880, p. 955. 
 
 ({) Mason v. Wait, 4 Scam. 127. (&) Fitzgibbon v. Lake, 29 111. 165. 
 
 (j) Young v. Lorain, 11 111. 625 ; (f) Mutter v. Benner, 69 111. 108. 
 Harvey v. Sweet, 16 id. 127. (m) Clark v. Bumside, 15 111. 62.
 
 CH. VIII.] EXPENSES, ALLOWANCES AND CLAIMS. 2 1 5 
 
 Demands classified. 
 
 CHAPTEE VIII. 
 
 EXPENSES, ALLOWANCES, CLAIMS AND LEGACIES. 
 
 SECTION I. Demands classified, the widow's award, funeral expenses, and 
 
 expenses of last illness. 
 II. Claims against estates. 
 III. Legacies. 
 
 SECTION I. DEMANDS CLASSIFIED, WIDOW'S AWABD, AND EXPEN- 
 SES. 
 
 1. Demands classified. 
 
 2. To be classed in order as prescribed, and paid class by class, when insuffi 
 
 cient, demands paid pro rota. 
 
 3. Demand of executor or administrator to be filed and defended against : 
 
 how. 
 . 4. Demands to be entered and classed, papers to be filed and preserved. 
 
 5. Award to the widow and children, or the " widow's award." 
 
 6. Duty of appraisers in making the award. 
 
 7. Renouncing or failing to renounce under the will by the widow, not tc 
 
 affect her award. 
 
 8. Award to be to the children if there be no widow when decedent was a 
 
 householder. 
 
 9. The widow or surviving husband may renounce in writing all benefit 
 
 under the will, and receive property as if the decedent had died intes- 
 tate. 
 
 10. Legacies and bequests, if diminished by renunciation, to be equalized. 
 
 11. Widow, when liable for waste. 
 
 12. Relinquishment of specified articles and further selection by the widow. 
 
 13. Statement thereof to the court. 
 
 14. Estimate of specific property. 
 
 15. Expenses attending the last illness. 
 
 1. DEMANDS CLASSIFIED. All demands against the estate of any 
 testator or intestate shall be divided into classes, in manner follow- 
 ing, to wit : 
 
 First. Funeral expenses. 
 
 Second. The widow's award, if there is a widow, or children, ii 
 there are children and no widow. 
 
 Third. Expenses attending the 'last illness, not including physi- 
 cian's bill.
 
 216 EXPENSES, ALLOWANCES AXD CLAIMS. [CH. VIII. 
 
 Demands classified. 
 
 Fourth. Debts due the common school or township fund. 
 
 Fifth. All expenses of proving the will, and taking out letters 
 testamentary or of administration, and settlement of the estate, 
 and the physician's bill in the last illness of the deceased. 
 
 Sixth. Where the decedent has received money in trust for any 
 purpose, his executor or administrator shall pay out of his estate 
 the amount thus received and not accounted for. 
 
 Seventh. All other debts and demands of whatsoever kind, with- 
 out regard to quality or dignity, which shall be exhibited to the 
 court within two years from the granting of letters as aforesaid: and 
 all demands not exhibited within two years as aforesaid, shall be 
 forever barred, unless the creditors shall find other estate of the 
 deceased, not inventoried or accounted for by the executor or admini- 
 strator, in which case their claims shall be paid pro rata out of 
 such subsequently discovered estate, saving, however, to femmes 
 couverte, infants, persons of unsound mind, or imprisoned, or without 
 the United States in the employment of the United States or of 
 this State, the term of two years after their respective disabilities 
 are removed to exhibit their claims, (a) Generally it is no part of 
 an administrator's duty to pay a claim against an estate before it is 
 allowed by the court. If he does so he must take the risk of its 
 proof and allowance. ( b) 
 
 2. All claims against estates, when allowed by the county 
 court, shall be classed and paid by the executor or administrator, in 
 the manner provided in this act, commencing with the first class ; 
 and when the estate is insufficient to pay the whole of the demands, 
 the demands in any one class shall be paid, pro rata, whether the 
 same are due by judgment, writing obligatory, or otherwise, except 
 as otherwise provided, (c) 
 
 3. When an executor or administrator has a demand against his 
 testator or intestate's estate, he shall file his demand as other per- 
 sons ; and the court shall appoint some discreet person to appear 
 and defend for the estate, and, upon the hearing, the court or jury 
 shall allow such demand, or such part thereof as is legally estab- 
 lished, or reject the same, as shall appear just. Should any execu- 
 tor or administrator appeal in such case, the court shall appoint 
 some person to defend as aforesaid. (c?) No allowance for burdens 
 voluntarily assumed by an administrator or executor, on behalf of 
 the estate, while under no duty to act or protect it, may be 
 allowed.(e) 
 
 4. The county court shall make an entry of all demands against 
 estates, classing the same as above provided, and file and preserve 
 the papers belonging to the same. If an executor or administrator 
 
 (a) 70, R S. 1874, p. 116. (d) 72, R. S. 1874, p. 117. 
 
 (d) Walker v. DieM, 79 111. 473. (e) Ex parte Allen, Adm'r., 89 111. 
 
 (c) 71, R. S. 1874, p. 117. 474.
 
 CH. VIII.J EXPENSES, ALLOWANCES AND CLAIMS. 217 
 
 Award to widow or children. 
 
 pays a claim before the same is allowed as aforesaid, said court shall 
 require such executor or administrator to establish the validity of 
 such claim by the like evidence as is required in other cases, before 
 the same is classed, and be credited therewith. (d) 
 
 Funeral expenses are too well known to require specification ; the 
 coffin, the shroud, the carriages, the sexton, etc., familiar to all. 
 
 5. AWARD TO WIDOW OR CHILDREN. The widow, residing in this 
 State, of a deceased husband whose estate is administered in this 
 State, whether her husband died testate or intestate, shall in all 
 cases, in exclusion of debts, claims, charges, legacies and bequests, 
 except funeral expenses, be allowed as her sole and exclusive prop- 
 erty forever, the following, to wit : 
 
 First. The family pictures and the wearing apparel, jewels and 
 ornaments of herself and her minor children. 
 
 Second. School books and family library of the value of one hun- 
 dred dollars. 
 
 Third. One sewing machine. 
 
 Fourth. Necessary beds, bedsteads and bedding for herself and 
 family. 
 
 Fifth. The stoves and pipes used in the family, with the necessary 
 cooking utensils ; or, in case they have none, fifty dollars in money. 
 
 Sixth. Household and kitchen furniture to the value of one hun- 
 
 
 
 dred dollars. 
 
 Seventh. One milch cow and calf for every four members of her 
 family. 
 
 Eighth. Two sheep for each member of her family, and the fleeces 
 taken from the same, and one horse, saddle and bridle. 
 
 Ninth. Provisions for herself and family for one year. 
 
 Tenth. Food for the stock above specified, for six months. 
 
 Eleventh. Fuel for herself and family for three months. 
 
 Twelfth. One hundred dollars worth of other property suited to 
 her condition in life to be selected by the widow. 
 
 Which shall be known as the widow's award, or the widow may, 
 if she elect, take and receive in lieu of the foregoing, the same per- 
 sonal property, or money in place thereof, as is or may be exempt 
 
 (d) 73, R. 8. 1874, p. 117. 
 28
 
 218 EXPENSES, ALLOWANCES AND CLAIMS. [CH. VIII. 
 
 Award to widow or children. 
 
 from execution or attachment against the head of a family residing 
 with the same.(e) 
 
 6. The appraisers shall make out and certify to the county court 
 an estimate of the value of each of the several items of property 
 allowed to the widow ; and it shall be lawful for the widow to elect 
 whether she will take the specific articles set apart to her, or take 
 the amount thereof out of other personal property at the appraised 
 value thereof, or whether she will take the amount thereof in money, 
 or she may take a part in property and a part in money, as she may 
 prefer ; and in all such cases it shall be the duty of the executor or 
 administrator to notify the widow as soon as such appraisement shall 
 be made, and to set apart to her such article or articles of property, 
 not exceeding the amount to which she may be entitled, and as she 
 may prefer or select, within thirty days after written application shall 
 be made for that purpose by such widow. And if such executor or 
 administrator shall neglect or refuse to comply with the above requi- 
 sition, when application shall be made for that purpose, he shall for- 
 feit and pay for the use of such widow the sum of twenty dollars per 
 month for each month's delay to set apart said property so selected, 
 after the said term of thirty days shall have elapsed, to be recovered in 
 the name of the People of the State of Illinois, for the use of such 
 widow, in any court having jurisdiction of the same. When there 
 is not property of the estate, of the kinds mentioned in the preceding 
 section, the appraisers may award the widow a gross sum in lieu 
 thereof, except for family pictures, jewels and ornaments.(/) 
 
 7. The right of a widow to her award shall in no case be affected 
 by her renouncing or failing to renounce the benefit of the provisions 
 made for her in the will of her husband, or otherwise.(^) 
 
 8. When the person dying is at the time of his death a house- 
 keeper, the head of a family, and leaves no widow, there shall be 
 allowed to the children of the deceased, residing with him at the time 
 
 () 74, R. S. 1874, p. 117. The (/) 75, R. S. 1874, p. 117. In Cruce 
 widow takes, in addition to dower in v. Cruce, 21 111., the court held that 
 the realty, one-third of the net person- where the intestate leaves no property 
 alty, after all claims are paid (Sisk v. of the kind specified in the statute, the 
 Smith, 1 Gilm. 503), also the specific widow shall be entitled to other prop- 
 allowance under this act where the erty of equal value, and that it is the 
 estate is solvent. If it is not solvent, duty of the administrator to set apart 
 then for any deficiency of the person- to her such property. See Tyson v. 
 alty to pay her separate allowance, she Postlethwaite, 13 111. 727. 
 ranks as a creditor of the estate. Cruce (g) 76, R. S. 1874, p. 118. 
 v. Cruce, 21 111.47. Chap, x, infra. See 
 chap. 52, R. S. 1874, p. 497.
 
 OH. VIII.J EXPENSES, ALLOWANCES AND CLAIMS. 
 
 219 
 
 Award to widow or children. 
 
 of his death (including all males under eighteen years of age, and al: 
 females), the same amount of property as is allowed to the widow 
 by this act. (A) 
 
 9. WIDOW OK SURVIVING HUSBAND MAY RENOUNCE THE WILL 
 
 The widow or surviving husband of a testate may, at any time within 
 one year from the time at which the will of her or his testate husband 
 or wife was admitted to probate, renouncing in writing all her or his 
 claim to the legacies and bequests made for her or him in such will, 
 in which case she or he shall be allowed the same property as if the 
 husband or wife had died intestate.(t) 
 
 10. In all cases where a widow or surviving husband shall renounce 
 all benefit under the will, and the legacies and bequests therein con- 
 
 (A) 77,R. S. 1874, p. 118. In the case 
 of Lesher v. Wirth, 14 111. 39, it ap- 
 peared, that on the 25th of September, 
 1840, one Henry Fox died intestate, 
 leaving Adelia Fox his widow, and a 
 number of children his heirs at law ; 
 that his estate was settled in due course 
 of administration, and his widow al- 
 lowed her separate provision under the 
 statute ; that she died September 25, 
 1848, leaving personal estate to the 
 amount of about $150 or $200 ; that 
 Lesher, a physician, attended her dur- 
 ing her last illness. The probate court 
 ordered the whole of the property to be 
 distributed among the children, under 
 the section in question. Appeal was 
 taken to the circuit court, and the j udg- 
 ment below affirmed. Lesher brought 
 writ of error against Wirth, the admin- 
 istrator. The court said, the only ques- 
 tion in this case is.whether the children, 
 where the intestate is a widow,who was 
 at the time of her death a householder, 
 and the head of a family, shall take 
 under the provisions of this section the 
 same as if the intestate had been a 
 widower. " To me," said the court, 
 CATON, J., " it seems exceedingly clear 
 that the children are entitled to take 
 the property left by a mother, the same 
 as if left by a father." Widow's claim 
 to the specific articles allowed her. 
 Immediately on the death of the hus- 
 band, the right of the widow accrues, 
 and if she die before she receives the 
 specific articles, and they not having 
 been set off to her administrator, their 
 value must be accounted for to him as 
 assets of her estate. York v. York, 38 
 111. 522. In Vide v. Koch it was held that 
 
 A was not a housekeeper within the 
 meaning of the fourth section of the 
 act entitled "An act to amend an act 
 relative to wills," etc., and that his 
 children could not receive the same 
 amount of property that would have 
 been allowed by law to his widow. 27 
 111. 129. A widow, whose husband 
 died intestate, leaving no children or 
 descendants, may recover in assumpsit 
 for the property of her deceased hus- 
 band, which she has sold, although 
 letters of administration have never 
 issued upon the estate. Cross v. Carey, 
 25 111. 562. The statute providing for 
 an allowance to a widow of such beds, 
 bedsteads, bedding, and household and 
 kitchen furniture as may be necessary 
 for herself and family, and provisions 
 for a year for herself and family, is to 
 be construed in reference to the cir- 
 cumstances of the parties ; and in fixing 
 such allowance, the appraisers should 
 take into view the condition and mode 
 of life in which the widow was left by 
 the death of her husband, and regard 
 as necessary that furniture which is 
 the ordinary and appropriate furni- 
 ture for such homesteads. Strawn v. 
 Straicn, 53 111. 263. The widow of a 
 person who dies intestate is entitled, 
 as her sole and separate property, to 
 certain specified articles of the intes- 
 tate's estate, or their value. The 
 children of a widow who dies intes- 
 tate, a housekeeper, and the head of a 
 family, take the same articles of 
 property that they would take if the 
 intestate were a widower. Lesher v. 
 Wirth, 14 111. 39. 
 (t) Coth. Rev. Stats., p. 550, g 10-12.
 
 220 EXPENSES, ALLOWANCES AND CLAIMS. [CH. VIII. 
 
 Award to widow or children. 
 
 tained, to other persons, shall, in consequence thereof, become dimin- 
 ished or increased in amount, quantity or value, it shall be the duty 
 of the court, upon settlement of such estate, to abate from or add to 
 such legacies and bequests in such manner as to equalize the loss 
 sustained or advantage derived thereby, in a corresponding ratio to 
 the several amounts of such legacies and bequests, according to the 
 amount or intrinsic value of each.( /) 
 
 11. If the widow commits waste in the lands and tenements, or the 
 personal estate of the deceased, she shall be liable to an action by the 
 heir or devisee, or his or her guardian, if of real estate, or by the 
 executor or administrator if of personal estate ; and if she marry a 
 subsequent husband, he shall be answerable with her in damages for 
 any waste committed by her, or by the husband himself, after such 
 marriage. (&) 
 
 12. If the widow (or children, as the case may be) elect to take 
 other articles than those specified in the statute, she (or they) should 
 RELINQUISH THE RIGHT to the specified articles, and signify to the 
 administrator what particular articles mentioned in the appraise- 
 ment bill she desires to retain in lieu thereof, and the articles relin- 
 quished are then to be sold as the other property of the deceased. 
 The following form will be found convenient for such relinquish- 
 ment and selection : 
 
 WIDOW'S (OR CHILDREN'S) RELINQUISHMENT OP SPECIFIC PROPERTY. 
 
 I, M B, widow of A B, deceased, do hereby relinquish all my claim to the 
 following articles, mentioned in the " estimate of specific property," allowed 
 me, viz. : 10 sheep, 1 cow, etc., the aggregate value of which, as estimated, is 
 $ ; and in lieu of the same I desire to retain the following articles, named 
 in the "appraisement bill of personal property" of said A B, deceased, viz. : 1 
 buggy, 1 harness, etc., the total value of which, as appraised, is $ , and 
 the balance I prefer to have in money. 
 
 Witness my hand and seal, this day of , A. D 18 . 
 
 [L. s.] M. B. 
 
 After such relinquishment and selection has been made known to 
 the administrator, he should proceed to set out such articles to her, 
 and withdraw from sale what she has selected, and sell what she has 
 relinquished. 
 
 He should file in court the relinquishment, and a statement of 
 the property actually taken by the widow (or children), with its 
 appraised value, which may be in the following form : 
 
 ( j ) 79, R. S. 1874, p. 118. (k) 80, R. S. 1874, p. 118.
 
 :'ll. V1II.J EXPENSES, ALLOWANCES AND CLAIMS. 221 
 
 Award to widow or children. 
 
 13. ARTICLES OF SPECIFIC PKOPEETT SET OFF TO M B, WIDOW OF 
 
 A B, DECEASED. 
 
 STATE OF ILLINOIS, ) In the County Court of county, 
 
 County, f s * term, 18 . 
 
 To the Judge of said court : 
 
 The undersigned, administrator of A B, deceased, would respectfully submit 
 the following report of specific property set off to M B, widow of A B, in 
 accordance with her relinquishment and selection, and pursuant to the statute 
 in such case made and provided, as follows : 
 
 ARTICLES. APPRAISED VALUE. 
 
 1 Buggy $50 00 
 
 1 Harness 15 00 
 
 1 Cow 30 00 
 
 Beds... 10 00 
 
 Total value $105 00 
 
 Value of specific property as estimated and allowed by law . . $500 00 
 
 Balance due said A B in money $ 
 
 CD, 
 Administrator of A B, deceased. 
 
 14. ESTIMATE OF SPECIFIC PROPERTY. 
 
 An estimate of the specific property allowed M B, widow (or E B and G B, 
 children) of A B, deceased. 
 
 NAMES OF ARTICLES. VALUATION. 
 
 2 Beds, at $5 each $10 00 
 
 2 Cows, at $30 each GO 00 
 
 2 Calves, at $5 each 10 00 
 
 1 Horse 40 00 
 
 (And so on through the list. The one hundred dollars' worth of other 
 property is not a subject for the estimation of value.) 
 
 Total value of specific property left by deceased $ 
 
 Value of articles named in the statute of which the said A B did not die 
 seized : 
 
 ARTICLES. ESTIMATION. 
 
 10 Sheep, at $2 per head $20 00 
 
 Necessary fuel for three months 15 00 
 
 Provisions for one year 200 00 
 
 Total $ 
 
 Total value of specific articles left by deceased brought down 
 
 Add $100 worth of other property 100 00 
 
 Total.
 
 222 EXPENSES, ALLOWANCES AND CLAIMS. [dl. VIII. 
 
 Claims against estates. 
 
 The undersigned, appraisers of the personal estate of A B, deceased, do 
 certify that the family of the deceased consists of the said widow and four 
 children ; that the foregoing is a complete schedule of all articles of per- 
 sonal property specified in the statute left by deceased, and a true estimate 
 of the value of the same respectively ; and that the articles named in said 
 statute not left by the deceased, suitable to the condition in life of the said 
 widow and her family, are of the value as above estimated. 
 
 Witness our hands and seals, this day of , A. D. 18 . 
 
 [L. s.] A B. 
 
 [L. s.] E S, 
 
 [L. s.] T W, 
 
 Appraisers. 
 
 15. THE EXPENSES ATTENDING THE LAST ILLNESS, NOT INCLUD- 
 ING THE PHYSICIAN'S BILL. These depend upon the length and 
 character of the illness, and the circumstances of each case. They 
 are the necessary and usual expenses in taking the steps to prolong 
 the life or soothe the pillow of the dying. 
 
 SECTION II. CLAIMS AGAINST ESTATES. 
 
 1. Notice of term fixed by executor or administrator for adjustment of; pro- 
 
 cedure prescribed; jury trial, etc. 
 
 2. When a creditor may file his claim, summons to issue to the executor or 
 
 administrator. 
 
 3. Return term, cause to be continued if summons be not 'served ten days 
 
 before. 
 
 4. Procedure prescribed. 
 
 5. Claimant may be compelled to make oath that his " claim is just and 
 
 unpaid." 
 
 6. Evidence. 
 
 7. Counter-claims. 
 
 8. Claims not yet due may be proven. 
 
 9. Appeal may be taken by either party to the circuit court. 
 
 10. Change of venue to circuit court if county judge be interested or a witness 
 
 in any case or matter pending in his court. 
 
 11. Adjudication of claims, instructions to executors or administrators. 
 
 12. Administrator's notice. 
 
 13. Creditor's rights, how enforced. 
 
 14. Time in which claims are to be presented. 
 
 15. The decisions collated. 
 
 1. CLAIMS AGAINST ESTATES. Every administrator or executor 
 shall fix upon a term of the court, within six months from the time
 
 CH. VIII.] EXPENSES, ALLOWANCES AND CLAIMS. 223 
 
 Claims against estates. 
 
 of his being qualified as such administrator or executor, for the 
 adjustment of all claims against such decedent, and shall publish a 
 notice thereof, for three successive weeks, in some public newspaper 
 published in the county, or if no newspaper is published in the 
 county, then in the nearest newspaper in this State, and also by 
 putting up a written or printed notice on the door of the court- 
 house, and in five other of the most public places in the county, no- 
 tifying and requesting all persons having claims against such estate 
 to attend at said term of the court for the purpose of having the 
 same adjusted (the first publication of said notice to be given at least 
 six weeks previous to said term), when and where such claimant 
 shall produce his claim, in writing ; and if no objection is made to 
 said claim by the executor, administrator, widow, heirs or others 
 interested in said estate, and the claimant swears that such claim is just 
 and unpaid, after allowing all just credits, the court may allow such 
 claim without further evidence, but if objection is made to such 
 claim, the same shall not be allowed without other sufficient evi- 
 dence. The court may allow either party further time to produce 
 evidence in his favor, and the case shall be tried and determined as 
 other suits at law. Either party may demand a jury of either six or 
 twelve men, to -try the issue, and it shall be the duty of the county 
 clerk, when a jury is demanded, to issue a venire to the sheriff of 
 the county to summon a jury, to be composed of the number 
 demanded. (I) 
 
 2. Whoever has a claim against an estate, and fails to present the 
 same for adjustment at the term of court selected by the executor or 
 administrator, may file a copy thereof with the clerk of the court ; 
 whereupon, unless the executor or administrator will waive the issu- 
 ing of process, the clerk shall issue a summons, directed to the sheriff 
 of the county, requiring such executor or administrator to appear 
 and defend such claim at a term of court therein specified, which 
 summons, when served, shall be sufficient notice to the executor or 
 administrator of the presentation of such claim, (m) 
 
 3. If the summons is not served ten days before the first day of 
 the term to which it is returnable, the cause shall be continued until 
 the next term of the court, unless the parties shall, by consent, pro- 
 ceed to trial at the return term, (n) 
 
 4. Upon the trial .of such cause, the same proceedings may be had 
 as if the claim had been presented at the time fixed for the adjust- 
 
 (1) 60, R. S. 1874, p. 115. (n) % 62, R. S. 1874, p. 115. 
 
 Cm) 61, id.
 
 22-i EXPENSES, ALLOWANCES AND CLAIMS. [CH. VIII. 
 
 Claims against estates. 
 
 ment of claims against the estate, but the estate shall not be answera- 
 ble for the costs of such proceeding : Provided, that when defense 
 is made the court may, if it shall deem just, order the whole or some 
 part of the costs occasioned by such defense to be paid out of the 
 estate.(o) 
 
 5. The court may, in its discretion in any case, before giving judg- 
 ment against any executor or administrator, require the claimant to 
 make oath that such claim is just and unpaid : Provided, that the 
 amount of such judgment shall not in such case be increased upon 
 the testimony of the claimant, (p) 
 
 6. A judgment regularly obtained, or a copy thereof duly certified 
 and filed with the court, shall be taken as duly proven ; and all 
 instruments in writing, signed by the testator or intestate, if the 
 handwriting is proven and nothing is shown to the contrary, shall 
 be deemed duly proved. ( q) 
 
 7. When a claim is filed or suit brought against an executor or 
 administrator, and it appears on trial that such claimant or plaintiff 
 is indebted to such executor or administrator, the court may give 
 judgment therefor, and execution may issue thereon in favor of the 
 executor or administrator.(r) 
 
 8. Any creditor, whose debt or claim against the estate is not due, 
 may, nevertheless, present the same for allowance and settlement, 
 and shall thereupon be considered as a creditor under this act, and 
 shall receive a dividend of the said decedent's estate, after deducting 
 a rebate of interest for what he shall receive on such debt, to be 
 computed from the time of the allowance thereof to the time such 
 debt would have become due, according to the tenor and effect' of 
 the contract.(s) (See Hall, Adm'r, v. Hoxsey, 84 111. 616.) 
 
 9. In all cases of the allowance or rejection of claims by the 
 county court, as provided in this act, either party may take an 
 appeal from the decision rendered to the circuit court of the same 
 county, in the same time and manner appeals are now taken from 
 justices of the peace to the circuit court, by appellant giving good 
 and sufficient bond with security to be approved by the county judge; 
 and such appeals shall be tried de novo in the circuit court, (t) 
 
 10. In all cases and matters pending in the county court, where 
 the judge of that court shall be interested in the same, or is a mate- 
 
 (o) 63, B. S. 1874, p. 116. (r) 66, R. S. 1874, p. 116. 
 
 (p)64, id. (*)$67,id. 
 
 (q) % 65, id. (*) 68, id.
 
 CH. VIII.] EXPENSES, ALLOWANCES AND CLAIMS. 225 
 
 Claims against estates. 
 
 rial and necessary witness, the case shall be transmitted to the circuit 
 court of the proper county, and there determined as in the county 
 court, and the papers, with the order or judgment of the cir- 
 cuit court thereon, shall be duly certified and filed in the county 
 court, and have the same effect as if determined in the county 
 court.(?<) It is further provided in the act giving jurisdiction to 
 county courts, which is a later act, whenever the county judge of 
 any county is interested in the estate of any deceased person, and the 
 letters testamentary or of administration shall be grantable in the 
 county of said judge, such facts shall be entered upon the records 
 of such court, and certified to the circuit court of such county. 
 Provided, that in case the judge is interested only as a creditor 
 no change need be made except in relation to his claim. 
 
 11. ADJUDICATION OF CLAIMS. The administrator or executor 
 should write on the back of all claims, before the same are called by 
 the court at the regular adjudication, " no objection," or " objected 
 to," and sign his name. Claims thus objected to are liable to be 
 dismissed, unless the claimant appears and moves the court to set 
 them down for trial. Claims, not so objected to, will be allowed in 
 the discretion of the court. 
 
 The general adjudication is brought on by the 
 
 12. ADMINISTRATOR'S NOTICE. 
 
 Public notice is hereby given, that on the first day of next, I shall 
 
 attend before the court of county, at , Illinois, at 10 o'clock 
 
 A. M. of said day, for the purpose of settling and adjusting all claims against 
 the estate of , late of said county, deceased, when and where all claim- 
 
 ants are notified and requested to attend, and present their claims in writing 
 against said estate for adjustment. All persons indebted to said estate are 
 also notified to make payment to the undersigned without delay. 
 
 , 18 . A B, Administrator.(o) 
 
 At the time mentioned in said notice, all persons having claims 
 against the estate may present them without giving notice to the 
 administrator, and such claims may be adjusted at that time, 
 though the administrator should actually be absent, for the law 
 presumes him to be in court.(w) The claim should be presented in 
 writing. If it be in a note or contract, or transcript of a judg- 
 ment, the filing of such note, etc., would be sufficient. 
 
 If the claim be presented at any other time than that mentioned 
 
 (M) 69, R. S. 1874, p. 116. (w) Propst v. Meadows, 13 111. 166. 
 
 (t?) See p. 51, supra. 
 29
 
 226 EXPENSES, ALLOWANCES AND CLAIMS. [CH. VIII. 
 
 Claims against estates. 
 
 in the administrator's notice, the administrator is to be notified of 
 the time in the mode prescribed when the claimant intends to 
 exhibit his demands. Ten days notice is to be given him before 
 the time, by summons. In computing the ten days, the day of ser- 
 vice is to be excluded. 
 
 The administrator may waive the service of notice or summons, 
 and appear without it, which would give the court jurisdiction. 
 The estate will not be liable for costs or claims filed after the time 
 fixed by the administrator for the general adjustment of accounts. 
 
 EVIDENCE REQUIRED TO ESTABLISH A CLAIM. If no objection be 
 made by the administrator, or any other person interested in the 
 estate, the claimant shall be permitted to swear that the claim is 
 just and unpaid. If objections be made, previous to the claim 
 being sworn to, the account shall be adjudicated as is now required 
 by law ; that is, it is to be established by legal evidence, the same as 
 similar matters in controversy in suits at law. 
 
 As estates of deceased persons are peculiarly exposed to imposi- 
 tion, and as the administrator is acting in a fiduciary capacity for 
 the heirs and creditors, and not dealing for himself, he should not 
 be too ready to admit the correctness of claims. Many claims, that 
 would never be presented against a person while living, are brought 
 forward against his estate when dead, because the ill-designing per- 
 sons who hold them are aware that the knowledge of facts which 
 would bar the claim is locked up in the grave of the deceased. 
 The administrator is rarely familiar with the complete history of 
 the accounts of the deceased, hence he should be satisfied, by proper 
 evidence, of the correctness of all claims. The admission of the 
 claimant as a witness to prove his own demand, where the adminis- 
 trator does not object, is a grant of discretion to the administrator, 
 that he should exercise only in cases where he has convincing evi- 
 dence to his own mind that the claim is just. He should not, in 
 justice to the estate he represents, waive his right to object, only 
 where he has personal knowledge or reliable assurance that the 
 claim is just, legal and unsatisfied. The court may, in its discre- 
 tion, in addition to the evidence heard on the claim, require the 
 claimant to make oath that such claim is just and unpaid. Pro- 
 vided, that the amount of such judgment shall not be increased 
 upon the testimony of the claimant. The law thus throws guards 
 around the estate to protect it from the unscrupulous rapacity of
 
 CTI. TIII.J EXPENSES, ALLOWANCES AND CLAIMS. 227 
 
 Claims against estates. 
 
 those who would despoil the widow and orphan by preying upon the 
 estate of the dead. 
 
 In the case mentioned in this section of the law, the court may, 
 after hearing the evidence produced by the claimant, which is not 
 unfrequently the testimony of those whom the plaintiff has sought 
 out as knowing but his side of the case, require the claimant him- 
 self to purge his conscience upon it. The undoubted spirit of the 
 law is, to exact of the claimant such proof of the merits of his 
 demand as would be required in case the suit were contested by the 
 deceased, if living; unless the administrator, in the exercise of a 
 sound discretion, should admit its legality, for the purpose of saving 
 the estate the costs of unsuccessful litigation. Certified copies of 
 unsatisfied judgments prove themselves, while the execution of 
 notes of hand and other instruments in writing, purporting to be 
 executed by the deceased, is to be proven ; that is, the handwriting 
 of the deceased is to be proved. The rule in this case differs from 
 the law, in ordinary suits between the living, where the execution of 
 a written instrument need not be proved, except the person denies 
 such execution under oath. The law here does not presume the 
 execution by the intestate, but throws the burden of its proof upon 
 the person claiming under it. 
 
 The supreme court, in the case of Propst v. Meadows,(y) in regard 
 to the presentation of claims against an estate, and their considera- 
 tion, says : " The various provisions of these sections (z) must be 
 considered together as regulating the practice of courts of probate, 
 when entertaining claims against estates and adjudicating thereon. 
 "When a claim is presented at a term of the court, as designated in 
 the notice given under the 95th section, the executor is presumed to 
 be present, and the claimant is, therefore, not required to notify 
 him of his intention to present his claim at that time. 
 
 " The adjudications of the court at that term upon claims must 
 therefore, be presumed to have been regular, and to have been made 
 upon the proper proofs in the presence of both parties. In that sec- 
 tion no express provision is made for the postponement of the con- 
 sideration of such claims to any subsequent term. If they are not 
 then finally disposed of, they must be continued, by an order of the 
 court, to some specified time, or be again presented under the 118th 
 
 (y) 13 111. 157. (z) Rev. Stat., ch. 109, 95, 116, 117, 
 
 118. See R. S. 1874, p. 115.
 
 228 EXPENSES, ALLOWANCES AND CLAIMS. [CH. VIII, 
 
 Claims against estates. 
 
 section. This section, it will be observed, requires the person in- 
 tending to present a claim to the court of probate against an execu- 
 tor or administrator, to give ten days' notice of the time that he 
 intends to present the same, when the court may allow or reject the 
 claim, or grant further time for either party to prepare for trial, 
 according to the exigencies of the case. This section provides an 
 intelligent and just practice for that court, and was, no doubt, in- 
 tended by the legislature to be pursued in all cases of claims against 
 estates, whether presented under a notice from the claimant or the 
 executor, or filed under the law. (a) There is as much reason 
 and propriety in allowing parties further time to prepare for the 
 investigation of claims presented to the court by producing the 
 necessary proofs, when the claim is presented in pursuance of the 
 notice given by the executors to all creditors, as when the claim is 
 presented under a notice from the creditor to the executor. It is 
 this notice which justifies the court in taking cognizance of claims, 
 and which requires the executor to appear and contest them. When 
 the parties are thus before the court, its adjudication is final and 
 conclusive upon them. What would constitute such final adjudica- 
 tion in all cases, it is not now necessary to determine. We are not 
 prepared to say that the omission of the court to make an order, 
 either disallowing the claim or continuing it for further investiga- 
 tion, would constitute such an adjudication as would bar the right 
 of the claimant to prosecute it further." 
 
 It is the duty of the administrator to interpose any defense to a 
 claim which exists, if he is aware of such defense. 
 
 Merely filing the claim is not sufficient. At final closing of his 
 account at the end of two years, the administrator will or ought to 
 have the claim, so filed, but not prosecuted, presented for allow- 
 ance. In that case, the administrator's duty is, under the statute, 
 to have such claim, if thus unprosecuted, dismissed. The safe 
 course is, if the claim has not been presented on adjustment day, to 
 file the same, or rather a copy, and have summons issued, and the 
 claim prosecuted to allowance. 
 
 13. A CREDITOR'S RIGHT to enforce the payment of a debt by 
 suit against the person determines at the latter's death, and his 
 only course is to follow the deceased person's property into the 
 
 (a) 116, R. S., ch. 109. See 61, 62, R. S. 1874, p. 115.
 
 CH. YIII.J EXPENSES, ALLOWANCES AND CLAIMS. 229 
 
 Claims against estates. 
 
 hands of his personal representatives. The administrator, upon his 
 appointment, takes the personal property of the deceased in trust 
 for the payment of his debts, and to pass the surplus to his heirs. 
 The proper mode, then, to seek the payment of a claim against a 
 deceased person, is to look to the administrator of his goods, chattels, 
 rights, credits and effects, or, rather, through him, to the property or 
 assets in his hands. Before the payment of claims against an estate, 
 they should be proved, in the mode pointed out by the statute. 
 Though the person administering may be satisfied in his own mind 
 that a claim is legal and just, yet he cannot safely pay it until such 
 claim is presented to the court, and there allowed, on proof of its 
 correctness. If an administrator should pay a claim before it is 
 allowed, he does it at his own risk, and himself assumes the respon- 
 sibility of proving the correctness of the claim in court. 
 
 14. THE TIME IN WHICH CLAIMS AEE TO BE PRESENTED. Credi- 
 tors are required to exhibit their demands within two years after the 
 grant of administration. Those free from disability, who neglect to 
 comply with this requisition of the statute, must rely for the satis- 
 faction of their debts on subsequently discovered estate, (b) The 
 time is computed from the date of the letters of administration. 
 The omission of the administrator to give notice of final settlement 
 does not relieve creditors from the necessity of presenting their 
 claims.(c) Femmes couverte, infants, persons of unsound mind, 
 imprisoned, or beyond seas, may present their claims at any time 
 within two years after their respective disabilities shall be removed. 
 This provision, however, has reference only to such demands as are 
 required to be exhibited to the court. It does not embrace the 
 widow's award, (d) 
 
 15. DECISIONS. Presentation of claim by copy to one S., at the 
 request of the administratrix, and again by giving the attorney of 
 the estate a copy, held a sufficient presentation. (<?) 
 
 PRESENTING AND REFERRING CLAIMS. An account was filed 
 against an estate after the expiration of two years from the time of 
 granting letters of administration upon the estate. Held, that the 
 creditor had the right to have his claim passed on, and a judgment 
 presently for the amount due, to be satisfied pro rata out of any 
 
 (7>) 15 111. 49 ; 11 id. 341; 5 Qilm. 26 ; (d) Miller v. Miller, 82 111. 463. 
 14 111. 9. (e) Wells v. Miller, 45 111. 382. 
 
 (c) 11 111. 216, 349.
 
 230 EXPENSES, ALLOWANCES AND CLAIMS. [CH. VIII. 
 
 Claims against estates. 
 
 estate that might afterward be found not inventoried or accounted 
 for by the adminisfcrator.(e) 
 
 The filing of a claim against an estate in the probate court does 
 not arrest the general statute of limitations.(/) 
 
 It is a sufficient exhibition of a claim against an estate to file the 
 same, or a copy thereof, with the probate court.(^) 
 
 Equitable claims against an estate may be allowed by the probate 
 court, (h) 
 
 PARTNERSHIP DEBTS, WHEN. No claim should be allowed against 
 an estate fora partnership debt till it is shown that all the partner- 
 ship assets have been exhausted, (h) 
 
 PARTNERSHIP DEBTS PAYMENT OF, BY ADMINISTRATOR. While 
 the individual creditors of an estate can insist on the full payment 
 of their debts, before the partnership creditors can receive anything 
 from the individual assets, yet, as to the heirs, the mere order of 
 payment is a matter of no moment, provided the partnership debts 
 and the individual debts together fairly absorb all the partnership 
 assets and the assets of the estate. (i) 
 
 An administrator's claim, if just, is as much entitled to payment 
 as that of any other creditor. (/) 
 
 MARSHALLING ASSETS. The personal estate is primarily liable 
 for the payment of the debts, and must be exhausted before resort 
 can be had to the real estate. (k) This is so whether the debt 
 claimed be secured or not, and the heirs and devisees have a right 
 to enforce this rule.(Z) 
 
 ARBITRATION. All claims against an estate must be presented 
 to the probate court, and be, there, adjusted before they can be 
 legally paid out of the assets of the estate. They cannot be sub- 
 mitted to arbitration by an executor or administrator, (m) 
 
 ALLOWANCE OF CLAIMS AGAINST ESTATES. The ninety-fifth sec- 
 tion of the statute of wills contemplates that the heirs are parties, or 
 
 (e) Thorn v. Watson, Adm'r, 5 Gilm. (j) Johnson v. GUlett, 52 HI. 358. 
 
 26. (*) Ryan v. Jones, 15 111. 1 . 
 
 (/) Reitzett v. Miller, 25 111. 67. (I) Sutherland v. Harrison, 86 111. 
 
 (g) The People v. White, 11 111. 342. 363. 
 
 (h) Moline Water Power & Manuf. (m) Reitzell v. Miller, 25 111. 67; Win- 
 Co, v. Webster, 26 111. 233. gate v. Pool, id. 118 ; Clark v. Hogle, 
 
 (t) The People v. Lott, 36 111. 447. 52 id. 427.
 
 CH. VIII.] EXPENSES, ALLOWANCES AND CLAIMS. 231 
 
 Claims against estates. 
 
 may become parties to the proceedings in the county court on the 
 presentation and allowance of claims against an estate. Under this 
 section, the heirs have a right to be present and contest the justice 
 of the claim. The heirs having this right to appear and resist the 
 allowance of the claim, the adjudication of the court in making the 
 allowance must be held prima facie binding upon them, though they 
 neglect to avail themselves of such right. But the allowance is con- 
 clusive upon the executor and administrator, and has the force and 
 effect of a judgment until it is reversed.(w) 
 
 LIMITATION. The time within which claims must be presented 
 against an estate is to be computed from the date of the letters of 
 administration, and not from the date of the notice requiring credi- 
 tors to exhibit them ; and those who fail to exhibit their claims 
 within two years after the grant of letters of administration are 
 precluded from all participation in the estate inventoried or ac- 
 counted for during that period.(o) 
 
 If an administrator does not return an inventory of the real estate 
 of the intestate within two years, a creditor who presents his claim 
 before the return of the inventory, but after the expiration of two 
 years from the granting of letters of administration, may share in 
 the proceeds of the inventory.(jo) 
 
 LACHES OF CKEDITOR. In determining the question whether a 
 creditor has waived his lien upon the property of an intestate, by 
 failing to pursue his remedy within a reasonable time, in the absence 
 of legislative rule, each case must be left to depend largely upon its 
 own circumstances.(g') 
 
 HEIRS LIMITATION. The failure of an administrator to plead 
 the limitation of two years on claims against the estate, will not pre- 
 clude the heirs from pleading it on settlement with the adminis- 
 trator, (r) 
 
 LIEN LIMITATION. A creditor will be considered to have waived 
 his lien upon the property of an intestate if he does not pursue his 
 remedy in a reasonable time. If prosecuted in a reasonable time, the 
 lien will be good/ against purchasers from heirs or devisees. By 
 
 (ri) Mason v. Bair. 33 111. 195. (q) Rosenthal v. Renick, 44 111. 202 ; 
 
 (o) The People v. White, 11 111. 342 ; Moore v. Ellsworth, 51 id. 308 ; Clarkv. 
 
 Stillman v. Young, 16 id. 318 ; Win- Hogle, 52 id. 427. 
 
 gate v. Pool, 25 id. 118. (r) Stillman v. Young, 16 111. 318. 
 
 (p) Sloo v. Pool, 15 111. 47.
 
 232 EXPENSES, ALLOWANCES AND CLAIMS. [CH. VIII. 
 
 Claims against estates. 
 
 analogies of the law, it would seem that seven years from the death 
 of the intestate should bar such liens, (s) 
 
 In a suit against an executor, after the expiration of two years 
 from the date of his letters testamentary, upon a demand which had 
 not been presented for allowance within that time, the judgment 
 should direct the levy to be made out of property belonging to the 
 estate which has not been inventoried, whether found previous or 
 subsequent to the judgment. () 
 
 Where a person died in Ohio, having devised all his real estate in 
 Ohio, Indiana and Illinois, to K., first to pay all his debts and then 
 to convey it to his son H., and subsequently such trustee and devisee, 
 died, the devisee H. leaving a will, and administrators with the will 
 annexed were appointed in each of the States of Ohio and Illinois. 
 Held, that the lien of a creditor upon the property of the testator 
 was not barred by the failure to pursue his remedy within seven 
 years after the death of the testator, it appearing that the property 
 against which the lien was sought to be enforced, and of which the 
 devisee H. died seized, had never been aliened by the devisee, nor any 
 improvements made thereon by Mm, and that the estate was still 
 unsettled in Ohio.(w) 
 
 LIMITATION. Where the plaintiff has failed to exhibit his demand 
 against the estate within the two years limited by the statute, he is, 
 nevertheless, entitled to a judgment against the administrator for 
 the amount found to be due him, to be satisfied out of such assets as 
 may thereafter be discovered, and which have not been inventoried 
 or accounted for by the administrator, (v] 
 
 As between the wards and the widows of an intestate, (w) 
 
 How the widow may lose her priority of preference, and to what 
 extent, (w) 
 
 (8) McCoy v. Morrow, 18 111. 519; (v) Judy v.KeUey, 11 111.211 ; Rowan 
 
 Unknown Heirs of Langworthy v. v. Kirkpatriek, 14 id. 1 ; Peacock v. 
 
 Baker, 23 id. 484 ' Haven, 22 id. 23. 
 
 (t) Bradford v. Jones, 17 111. 93. (w) Cruie v. Cruce, 21 111. 46. 
 
 () Rosenthal v. Renick, 44 HI. 202 ; 
 Moore v. Ellsworth, 51 id. 308.
 
 CH. VIII.] EXPENSES, ALLOWANCES AND CLAIMS. 233 
 
 SECTION III. LEGACIES. 
 
 1. Refunding bond to be given. 
 
 2. Duty of legatee to refund ; refusal on citation and demand deemed a breach 
 
 of the bond. 
 
 3. Payment of legacies. 
 
 4. The bond. 
 
 5. Decisions. 
 
 1. Whenever it shall appear that there are sufficient assets to satisfy 
 all demands against the estate, the court shall order the payment of 
 all legacies mentioned in the will of the testator, the specific lega- 
 cies being the first to be satisfied, (x) 
 
 Executors and administrators shall not be compelled to pay 
 legatees or distributees until bond and security is given by such 
 legatees or distributees to refund the due proportion of any debt 
 which may afterward appear against the estate, and the costs attend- 
 ing the recovery thereof; such bond shall be made payable to such 
 executor or administrator, and shall be for his indemnity and filed 
 in the court. (y} 
 
 2. When, at any time after the payment of legacies or distribu- 
 tive shares, it shall be necessary that the same or any part thereof 
 be refunded for the payment of debts, the county court, on applica- 
 tion made, shall apportion the same among the several legatees or 
 distributees according to the amount received by them, except the 
 specific legacies, which shall not be required to be refunded, unless 
 the residue is insufficient to satisfy such debts ; and if any distribu- 
 tee or legatee refuses to refund according to the order of the court, 
 within sixty days thereafter, and upon demand made, such refusal 
 shall be deemed a breach of his bond given to the executor or ad- 
 ministrator as aforesaid, and an action may be instituted thereon for 
 the use of the party entitled thereto ; and in all cases where there is 
 no bond, an action of debt may be maintained against such distrib- 
 utee or legatee, and the order of the court shall be evidence of the 
 amount due. (2) 
 
 3. PAYMENT OF LEGACIES. After the executor has paid all the 
 debts of the deceased, and settled the accounts of the estate, his 
 next duty is to execute the will of the testator by paying the lega- 
 i-ics of the will, and generally to fulfill the wishes of the testator. 
 
 (aj) 115, R. S. 1874, p. 125. (z) 117, R. S. 1874, p. 125. 
 
 (iO 116. id. 
 
 30
 
 EXPENSES, ALLOWANCES AND CLAIMS. [CH. VIII. 
 
 Legacies. 
 
 A legacy is a bequest or gift of personal property by will. It is 
 general or specific. General, where the legacy is not described, as 
 a particular fund or article of property; where it is so described, it 
 if specific. Although the courts are averse to construing legacies to 
 be specific, yet, if the words clearly indicate an intention to sepa- 
 rate the particular thing bequeathed from the general property of 
 the testator, they shall have that operation. 
 
 A legacy is sufficiently specific if the money or property is indi- 
 cated in such a way as to be identified as distinct from the general 
 funds or property. 
 
 The executors must be careful to pay the legacy into the hand 
 which has authority to receive it. 
 
 An executor cannot pay a legacy to a minor, to his parents, or 
 other relatives, without sanction of a court of equity, (a) 
 
 If a legacy be given to a married woman, it must not be paid to 
 her husband.(i) It is a general rule that a legacy given by a debtor 
 to his creditor, which is equal to or greater than the debt, shall be 
 considered a satisfaction of it, but on this point the intention of 
 the testator is the criterion, (c) 
 
 In case of a deficiency of assets to pay debts, specific legacies, 
 although not liable so long as there are other assets, abate in pro- 
 portion among themselves. (d) 
 
 An executor has no right to give himself the preference in regard 
 to a legacy. 
 
 4. BOND BY LEGATEE OR DISTRIBUTEE. 
 
 KNOW ALL MEN BY THESE PRESENTS, That we, A B and C D, of the county 
 of , in the State of , are held and firmly bound unto J K, executor 
 
 of the last will and testament of E F, deceased, in the penal sum of five hun- 
 dred dollars, for the payment of which well and truly to be made, we bind 
 ourselves, our heirs, executors and administrators, jointly and severally, firmly 
 by these presents. 
 
 Witness our hands and seals, this day of , 18 .* 
 
 The condition of the above obligation is such, that whereas the above boun- 
 den A B, as one of the legatees of the estate of E F, deceased, this day re- 
 ceived of the said J K, executor, of the last will and testament of said E F, 
 the legacy in the last will and testament of the said E F, deceased, bequeathed 
 to him the said A B, being the sum of . Now should the said A B, lega- 
 
 tee as aforesaid, well and truly refund his due proportion of any and all debts 
 
 (a) Toll. Ex. 319. (c) Toll. Ex. 335. 
 
 (6) Toll. Ex. 320. See Hill's Chan. (d) Toll. Ex. 340. 
 Pr. 610.
 
 CH. VIII.] EXPENSES, ALLOWANCES AND CLAIMS. 235 
 
 Legacies. 
 
 which may hereafter appear against the estate of the said E F, deceased, and 
 the costs attending the recovery thereof, to the said J K, executor as aforesaid, 
 well and truly refund his due proportion of any and all debts which may 
 hereafter appear against the estate of the said E F, deceased, and the costs 
 attending the recovery thereof, to the said J K, executor as aforesaid, well and 
 truly refund his due proportion of any and all debts which may hereafter 
 appear against the estate of the said E F, deceased, and the costs attending 
 the recovery thereof, to the said J K, executor as aforesaid, when thereunto 
 requested, then the above obligation to be void ; otherwise to be and remain in 
 full force and virtue. 
 
 A B, [SEAL.] 
 C D. L SEAL 
 
 5. DECISIONS THE ADMINISTKATOR IN POSSESSION. A grantee 
 or purchaser is liable to account for rents and profits in excess of 
 taxes, necessary repairs, debts of estate paid by him, and other proper 
 charges, (e) 
 
 A legacy payable to a minor on his attaining his majority, 
 goes to his administrator at the point of time at which, if living, 
 he would have become of age. (Ruffin v. Farmer, 72 111. 615.) 
 
 Pecuniary legacies must be paid from the personal property of 
 testator. In case of deficiency of personal property, the legatees 
 must abate unless by will the realty is charged with their payments. 
 (Heslop v. Qatton, 71 111. 528.) 
 
 EEFUNDING BOND DEMAND. Where an administrator died and 
 no administrator was appointed for him, the distributees alleged that 
 on final settlement the accounts of the administrator showed that 
 there was money in his hands belonging to the estate, that the 
 county court thereupon ordered him to pay the same to the heirs, 
 specifying the sum due to each, that the administrator was dead, and 
 the money unpaid ; the securities demurred. Held, that, as demand 
 on the administrator was rendered impossible, and as there was no 
 one in existence to whom the refunding bond could be given, neither 
 the proof of a demand nor the giving of such bond should be 
 required. (<?) 
 
 (e) Kruse v. Steffens, 47 111. 112. (g) The People v. Admire, 39 111. 253.
 
 236 EXPENSES, ALLOWANCES AND CLAIMS. [CH. VIII. 
 
 Legacies. 
 
 Acceptance of a draft drawn by distributee in such case, for his 
 share, binds the executor in his individual capacity only, (fi) 
 
 Payment of distributive share not enforced till after order made 
 by probate court, and execution of refunding bond if needed.(t) 
 
 In the distribution of the assets of deceased persons, judgment 
 creditors and simple contract creditors are placed upon an equal 
 footing ; and this rule applies to an administrator who is a judgment 
 creditor.(y) 
 
 Creditors and distributees, but not an administrator de bonis non, 
 may charge an antecedent administrator with a devastavit. An 
 administrator de bonis non can only administer upon such estate as 
 has not been administered upon by others.(&) 
 
 The husband administering on his wife's estate must distribute the 
 estate according to the statute of distribution. (I) 
 
 A creditor obtaining judgment after the lapse of the two years is not 
 to be confined to assets discovered after his judgment is rendered, but 
 is entitled to participate in assets discovered and inventoried after 
 the lapse of two years from the granting of letters of administra- 
 tion, (m) 
 
 EXHIBITING CLAIM NOT MATURED. A executed a bond of indem- 
 nity to B, the damages depending on a contingency that did not 
 happen until after lapse of two years from the granting of letters on 
 the estate of A, deceased. Held, no suit could be instituted within 
 the two years, and the claim was barred except as to future dis- 
 covered property, (m) 
 
 If a party having a claim against an estate is sued by the representa- 
 tive of it after two years from the granting of letters of administra- 
 tion, he can plead his claim by way of set-off ; and if any balance is 
 adjudged to him, it will be paid out of any estate thereafter dis- 
 covered and inventoried.(tt) 
 
 FINAL ACCOUNTINGS. "When an administrator's acts have been 
 approved, and his resignation accepted, and his discharge granted, 
 these matters become res ajudicata, and are binding until they shall 
 be set aside.(o) 
 
 (A) The People v. Admire, 39 111. 252. (t) Townsend v. Raddiffe, 44 111. 446. 
 
 () Wisdom v. Becker, 52 111. 342. (m) Stone v. Clarke's Adm'rs, 40 111. 
 
 (j) Paschall v. Hailman, 4 Gilm. 411. 
 
 285 ; Turney v. Gates, 12 111. 141. (n) Peacock v. Haven, 22 111. 23. 
 
 (k) Rowan v. Kirkpatrick, 14 111. 8 ; (o) Short v. Johnson, 25 111. 489. 
 Short v. Johnson, 25 id. 489 ; Stose v. 
 The People, id. 600.
 
 CH. VIII.J EXPENSES, ALLOWANCES AND CLAIMS. 237 
 
 Legacies. 
 
 Where the wife and the surviving partner of intestate were 
 appointed administrators, the estate not owing a dollar, and being a 
 large estate, no full account of their transactions having been 
 exhibited by the administrators, and upon their final report and 
 petition for a discharge, a mere pittance is shown to be left for the 
 heirs, the order approving the settlement will not be sustained.^) 
 
 ADMINISTRATOR PROOF REQUIRED TO SET ASIDE SETTLEMENT. 
 Before a court of equity will set aside as fraudulent or illegal a set- 
 tlement of his accounts, made by an administrator more than sixteen 
 years before the filing of the bill, and approved by the probate court, 
 it will require clear proof of the alleged fraud or illegality.^) 
 
 ORDERS OF PROBATE COURT EFFECT OF, AS PROOF. The allow- 
 ance against an estate, of partnership debts, must be considered as at 
 least prima facie proof that the firm assets were wholly insufficient 
 for their payment, and the approval by the court of an account 
 showing their payment as at least prima facie proof that the firm 
 assets had been exhausted.(g') 
 
 (p) Hewwd v. Slagle, 52 I1L 336. (q) The People v. Lott, 36 111. 447.
 
 238 * ACCOUNTS. [CH. IX. 
 
 By the executor or administrator. 
 
 CHAPTER IX. 
 
 ACCOUNTS. 
 
 SECTION I. By the executor or administrator. 
 II. By the guardian and conservator. 
 
 SECTION I. ACCOUNTS BY THE EXECUTOE OE ADMINISTEATOB. 
 
 1. General instructions to the executor or administrator. 
 
 2. Settlements to be made annually at least. 
 
 3. Apportionments to be made. 
 
 4. Settlement may be enforced. 
 
 5. Devastavit, etc. 
 
 6. Administrator's account. 
 
 7. Procedure for administrator or executor when cited to account. 
 
 8. Form of account. 
 
 1. INSTEUCTIONS TO THE EXECUTOE OE ADMINISTEATOE. (1) Pre- 
 sent to the court an inventory and appraisement of the estate within 
 three months from the date of your letters. 
 
 (2) Post notices, and publish for an adjudication of claims, 
 within six months from the date of your appointment, and be 
 present on the day named in the notice. 
 
 (3) Sell the personal property at public auction as soon as con- 
 venient after the inventory and appraisement are approved, unless 
 it is selected by the widow or specially bequeathed. 
 
 (4) Pay no claims that accrued during the life-time of the de- 
 ceased until they have been allowed by the court. 
 
 (5) Take and carefully keep receipts for all payments respectively. 
 
 (6) Make application for the sale of real estate as soon as you 
 find that the personal estate will not be sufficient to pay the claims 
 against the estate. 
 
 (7) At the end of one year from the date of your appointment, 
 render your account to the court, and every year thereafter, until the 
 estate is fully settled. 
 
 2. SETTLEMENT BY ADMINISTEATOES AND EXECUTOES. All exec- 
 utors and administrators shall exhibit accounts of their administra- 
 tion for settlement, to the county court from which the letters tes- 
 tamentary or of administration were obtained, at the first term
 
 CH. IX.J ACCOUNTS. 239 
 
 By the executor or administrator. 
 
 thereof after the expiration of one year after the date of their let- 
 ters; and in like manner every twelve months thereafter, or sooner, 
 if required, until the duties of their administration are fully com- 
 pleted. Provided, that no final settlement shall be made and ap- 
 proved by the court, unless the heirs of the decedent have been 
 notified thereof, in such manner as the court may direct, (a) 
 
 3. Upon every such settlement of the accounts of an executor or 
 administrator, the court shall ascertain the whole amount of moneys 
 and assets belonging to the estate of the deceased, which have come 
 into the hands of such executor or administrator, and the whole 
 amount of debts established against such estate; and if there is not 
 sufficient to pay the whole of the debts, the moneys aforesaid shall 
 be apportioned among the several creditors pro rata, according to 
 their several rights, as established by this act; and thereupon the 
 court shall order such executor or administrator to pay the claims 
 which have been allowed by the court, according to such apportion- 
 ments; and the court, upon every settlement, shall proceed in like 
 manner until all the debts due are paid, or the assets exhausted. (b) 
 
 4. The county courts of this State shall enforce the settlements of 
 estates within the time prescribed by law, and upon the failure of 
 an executor or administrator to make settlement at the next term of 
 the court after the expiration of said time, the court shall order a 
 citation to issue to the sheriff of the county where the executor or 
 administrator resides, or may be found, requiring said executor or 
 administrator to appear at the next term of the court and make 
 settlement of the estate, or show cause why the same is not done; 
 and, if an executor or administrator fails to appear at the time re- 
 quired by such citation, the court shall order an attachment requir- 
 ing the sheriff of the county where the executor or administrator 
 resides, or may be found, to bring the body of said executor or ad- 
 ministrator before the court ; and upon a failure of an administra- 
 tor or executor to make settlement, under the order of the court, 
 after having been so attached, he may be dealt with as for contempt, 
 and shall be forthwith removed by the court, and some discreet per- 
 son appointed in his stead ; the costs of such citation or attachment 
 to be paid by the delinquent executor or administrator, and the 
 court shall enter a judgment therefor, and a fee bill may issue 
 thereon. All moneys, bonds, notes and credits, which any adminis- 
 
 (a) 111, R. S. 1874, p. 124. (6) 112, R. S. 1874, p. 124.
 
 ACCOUNTS. [CH. IX. 
 
 By the executor or administrator. 
 
 trator or executor may have in his possession or control as property 
 or assets of the estate, at a period of two years and six months from 
 the date of his letters testamentary or of administration, shall bear 
 interest and the executor or administrator shall be charged interest 
 thereon from said period at the rate of ten per cent, or after two 
 years and six months from any subsequent time that he may have 
 discovered and received the same, unless good cause is shown to the 
 court why such should not be taxed.(c) 
 
 When any administrator or executor shall have made final settle- 
 ment with the court, it shall be the duty of the court to order said 
 administrator or executor to deposit with the county treasurer such 
 moneys as he may have belonging to any non-resident or unknown 
 heir or claimant, taking his receipt therefor, and have the same filed 
 at the office of the county or probate court where such settlement 
 has been made. The person or persons entitled to the same may, 
 at any time, apply to the court making said order and obtain the 
 same, upon making satisfactory proof to the court of his, her or 
 their right thereto. (Act of 1877, Cothran's Ann'd Stats., 82, 134. ) 
 
 5. If any executor or administrator shall fail or refuse to pay over 
 any moneys or dividend to any person entitled thereto, in pursuance 
 of the order of the county court, lawfully made, within thirty days 
 after demand made for such moneys or dividend, the court, upon 
 application, may attach such delinquent executor or administrator, 
 and may cause him to be imprisoned until he shall comply with the 
 order aforesaid, or until such delinquent is discharged by due 
 course of law; and, moreover, such failure or refusal on the part of 
 such executor or administrator shall be deemed and taken in law 
 to amount to a devastavit, and an action upon such executor's or 
 administrator's bond, and against his securities, may be forthwith 
 instituted and maintained; and the failure aforesaid to pay such 
 moneys or dividend shall be a sufficient breach to authorize a 
 recovery thereon, (d) 
 
 6. ADMINISTRATOR'S ACCOUNT. This embraces a statement of 
 the amount of moneys received from all sources, and the amount 
 paid out. 
 
 STATE OP ILLINOIS, ) 
 
 County, f* 
 
 To tlie Hon. , Judge of the court of county, Term, A. D. 18 
 
 The account of C D, administrator of the goods, chattels, rights and credits 
 of A B, late of the county of , and State of Illinois, deceased. 
 
 The said administrator charges himself as follows : 
 19 . Jan. 1. To all the personal property as per appraisement bill, $875 63 
 
 To excess of amount produced at the sale 90 00 
 
 Jan. 10. To cash collected of E F on note 6500 
 
 " To cash collected of G H on account 37 00 
 
 March 1. To cash received from sale of real estate as per re- 
 
 portof sale filed 965 00 
 
 (c) 113, R. S. 1874, p. 124. (d) S 114, R S. 1874, p. 125 : Goth- 
 
 ran's Stat., 1880. p. 78.
 
 OH. IX.] ACCOUNTS. 241 
 
 By the executor or administrator. 
 
 To amount of sale notes due Feb. 10, 1869, not collected, to wit : 
 
 E D's note $45 00 
 
 P K's note . . 34 65 
 
 Total amount of money received and collected $2,112 28 
 
 Contra. 
 
 By the following payments to creditors of deceased, to wit : 
 
 18 . Feb. 1. To John Doe, Voucher No. 1 $95 00 
 
 " 12. To Richard Roe, Voucher No. 2 4000 
 
 March 1. By cash paid clerk of court for his fees, as per Voucher 
 
 No. 3 25 00 
 
 March 1. By cash paid Chicago Journal, printers' fees, Voucher 
 
 No. 4 2 50 
 
 March 1. By cash paid J. V., Esq., attorney's fees, Voucher No. 5. . 40 00 
 
 $202 50 
 
 Recapitulation. 
 
 Total amount received and notes collected $2,112 28 
 
 Total amount disbursed . , 202 50 
 
 Balance on hand subject to the order of court $1,909 78 
 
 Amount of claims allowed against the estate unpaid, due as fol- 
 lows: 
 
 To L Q 95 00 
 
 ToP Q 876 00 
 
 ToRS 97500 
 
 To P. . 297 00 
 
 Total amount allowed against the estate up to this date $2,243 00 
 
 From which deduct amount of assets 1,909 78 
 
 Exhibiting a deficit of assets $333 22 
 
 All of which is respectfully submitted. 
 
 C D, 
 
 Administrator of A B, deceased. 
 March 3, 18 . 
 
 This account should specify particularly each sum of money 
 received or paid, from whom, and when received. 
 
 The administrator should always take a receipt from the person 
 to whom he pays money. He must file the receipts in cc urt when he 
 exhibits his account. 
 
 7. PROCEEDINGS ON CITATION TO ACCOUNT. Prepare your ac- 
 count by charging yourself in separate items with all the money you 
 31
 
 24:2 ACCOUNTS. ~CH. IX. 
 
 By the executor or administrator. 
 
 have received, giving dates and stating from whom and for what 
 the same was received. Credit yourself with all that you have paid 
 out, giving the items, but include no claim that existed in the life- 
 time of the deceased, until it has been allowed by the county court. 
 Number your vouchers. Draw up a report on a separate paper to 
 accompany* your account, in which give a brief history of the estate 
 from the date of your letters, or from your last accounting, as the 
 case may be, stating what accounts, if any, remain uncollected, and 
 why such accounts have not been collected ; the personal property 
 unsold, if any, and why it has not been disposed of. Answer the 
 citation in writing, under oath, stating why you have not presented 
 your account as required by the statute. 
 
 When you have thus prepared your papers, present them to the 
 county judge in open court. Obtain his approval of your account, 
 and your discharge from the citation. All of the above should be 
 done at or before the hour named in the citation. 
 
 8. Your account may be in the following form: 
 
 Oeo. Strong, Adm'r, in account with the estate of Henry Jones, Dr. 
 
 To all the personal property at its appraised value $800 00 
 
 To cash collected of John Smith, on note 400 00 
 
 To cash collected of Wm. Wilson, in full of ac't 150 00 
 
 To cash on hand at time of death. . 2,000 00 
 
 $3,350 00 
 
 Or. 
 
 By cash paid clerk for letters, voucher No. 1 $3 20 
 
 By cash paid to clerk for costs, vxmcher No. 2 2 00 
 
 All of the personal property taken by Jane Jones at the appraised 
 
 value, on her award, voucher No. 3 800 00 
 
 By cash paid Jane Jones, balance on her award, voucher No. 4 75 00 
 
 By cash paid claim of Dr. J. N. Banks, allowed, voucher No. 5 20 00 
 
 By cash paid claim of Wm. Smith, voucher No. 6 40 00 
 
 By cash paid appraisers, voucher No. 7 2 52 
 
 By cash paid for printing adjudication notice, voucher No. 9 10 00 
 
 By commissions on $3,350, at four per cent. 134 00 
 
 By balance in hands of administrator 2,263 28 
 
 $3,350 00 
 Give the date of each entry.
 
 OH. IX.] ACCOUNTS. 243 
 
 By the guardian and conservator. 
 
 SECTION II. ACCOUNTS BY THE GUARDIAN AND CONSERVATOB. 
 
 1. Guardian must account once every ytai. 
 
 2. He must pay over to those entitled at the expiration of his trust. 
 
 3. Accounts must be filed. 
 
 4. Instructions in general to guardians and conservators. 
 
 5. Accounts, how kept. 
 
 6. Form of report to the court in accounting. 
 
 7. Another form. 
 
 1. The guardian shall, at the expiration of a year from his ap- 
 pointment, SETTLE HIS ACCOUNTS as guardian* with the county 
 court, and at least once every three years thereafter, and as much 
 of tener as the court may require, (e) 
 
 2. GUARDIAN TO PAT OVER. At the expiration of his trust, he 
 shall pay and deliver to those entitled thereto all the money, estate 
 and title papers in his hands as guardian, or with which he is 
 chargeable as such. (/) 
 
 3. ACCOUNT TO BE FILED. On every accounting and final settle- 
 ment of guardian he shall exhibit and file his account as such 
 guardian, setting forth specifically, in separate items, on what ac- 
 count expenditures were made by him, and all sums received and 
 paid out since his last accounting, and on what account each was 
 received and paid out, and showing the true balance of money on 
 hand, which account shall be accompanied by proper vouchers, and 
 signed by him and verified by his affidavit, (g) 
 
 4. INSTRUCTIONS TO GUARDIANS AND CONSERVATORS. (1) Pre- 
 sen t to the court an inventory of the estate of your wards within 
 three months from .the date of your letters. 
 
 () 14, R. S. 1874, p. 560. (g) 16, R. S. 1874, p. 560. 
 
 * To ACT FOB WARD, GENERALLY. The guardian shall settle all accounts of his 
 ward, and demand and sue for, and receive in hta own name as guardian, all personal 
 property of and demands due the ward, or with the approbation of the court compound 
 for the same, and give a discharge to the debtor upon receiving a fair and just divi- 
 dend of his estate and effects. 17, Id. 
 
 AND IN SUITS. He shall appear for and represent his ward in all legal suits and 
 proceedings, unless another person is appointed for that purpose as guardian or next 
 friend ; but nothing contained in this act shall impair or affect the power of any court 
 or justice of the peace to appoint a guardian to defend the interest of a minor 1m- 
 pleaded in such court or interested in a suit or matter therein pending, nor their 
 power to appoint or allow any person as next friend for a minor to commence, prose- 
 cute or defend any suit in his behalf. 18, id.
 
 244 ACCOUNTS. [CH. IX. 
 
 By the guardian and conservator. 
 
 (2) Obtain an order of court to appropriate not to exceed a cer- 
 tain sum, for the nurture and education of your wards. 
 
 (3) Make no lease of the land of your wards, except under the 
 order of court. 
 
 (4) Before loaning any of the money of your wards, have the 
 security approved by the court. 
 
 (5) Procure an account book and enter therein an account of all 
 moneys expended and received with dates, and take a receipt for 
 all payments. 
 
 (6) At the end of one year from the date of your letters of guar- 
 dianship, render your account to the court, and every year there- 
 after until your wards become of age, and then obtain your dis- 
 charge. 
 
 5. How KEPT. The guardian is required to render an account and 
 should therefore keep one, containing debts and credits, or of his 
 receipts and disbursements, from whom received, and to whom paid 
 and on what account. If there be several wards a separate account 
 with each must be kept similar in form to the accounts kept by 
 business men, but, if possible, with more care. He should take a 
 voucher from every person to whom he pays the ward's money, to be 
 carefully numbered, filed, and with the account presented, that the 
 court may see that the money has been paid, and for articles suita- 
 ble and necessary to the condition in life of his ward. The court 
 has power to cite the guardian to make an inventory and account, 
 upon oath for adjustment, but without waiting to be cited, the 
 
 DUTIES OP GUARDIAN. The guardian shall manage the estate of his ward frugally 
 and without waste, and apply the income and profit thereof, so far as the same may be 
 necessary, to the comfort and suitable support and education of his ward. 19, K. 
 S. 1874, p. 560. 
 
 The guardian shall educate his ward, and it is made the duty of all civil officers to give 
 information to the county court of any neglect of the guardian to his ward. 20, id. 
 
 When there is not money of the ward sufficient to teach him to read and write, 
 and the elementary rules of arithmetic, and the guardian fails or neglects to have 
 him so educated, the court shall have pcwer to put out the ward to any other person 
 for the purpose of having him so educated. 21, id. 
 
 It shall be the duty of the guardian to put and keep his ward's money at inter- 
 est, upon security, to be approved by the court, or invest the same in United States 
 bonds, or other United States interest-bearing securities. Personal security may be 
 taken for loans not exceeding one hundred dollars. Loans in large amounts shall be 
 upon real estate security. No loan shall be made for a longer time than three years, 
 nor beyond the minority of the ward. Provided, the same may be extended from year 
 to year without the approval of the court. The guardian shall be chargeable with 
 Interest upon any money which he shall wrongfully or negligently allow to remain In 
 his hands uninvested after the same might have been invested. 22, id.
 
 CH. IX.] ACCOUNTS. 245 
 
 By the guardian and conservator. 
 
 inventory should be promptly made and accounts presented and 
 adjusted with the court, annually at least. 
 
 6. THE ACCOUNT may be substantially in the following form : 
 GUARDIAN'S ACCOUNT. 
 
 STATE OP ILLINOIS, j In the County Court of county, 
 
 County. ) " term, A. D. 18 . 
 
 To the Judge of said court : 
 
 The undersigned, guardian of C A D, would respectfully submit to the court 
 the following account of his guardianship, from his appointment to , 18 . 
 
 Account of E B M, Guardian of A D. 
 
 Dr. 
 
 Jan. 16, 1871. To cash received of L M, administrator of T F D. . . $500 00 
 Jan. 23, " To cash for rent of J B D, on lease of lot 10, bl. 19, 
 
 etc 300 00 
 
 Mar. 19, " To cash of W J B on his note 3500 
 
 $835 00 
 
 Or. 
 April 1, 1871. By cash paid Field, Leiter & Co., for merchandise 
 
 as per bill and receipt $95 96 
 
 May 16, " By cash paid V L H for medical attendance as per 
 
 bill and receipt 130 00 
 
 June 1, " By cash paid for U. S. government bond 500 00 
 
 By cash on hand 109 04 
 
 - 
 
 $835 00 
 
 STATE OP ILLINOIS, ) 
 
 County, y ** 
 
 E B M, guardian of C A D, being duly sworn, says that the foregoing is a just, 
 full and perfect account of all his dealings and transactions, and of all moneys 
 and effects received and paid out by him on account of the said minor, from 
 the time of his appointment to the day of , 18 . 
 
 EBM. 
 
 Subscribed and sworn to before me, this ) 
 day of , A. D. 18 . J 
 
 , Clerk. 
 
 7. Or in the following form : 
 
 EXPENSE ACCOUNT.* 
 
 William Page, Mary Page and John Page, Wards, 
 
 To Andrew H. Dalton, tJieir Guardian, Dr. 
 To cash paid John G. Gindele, Clerk of Court, for letters of guardian- 
 ship, voucher 1 $2 40 
 
 *The date of each entry in the account should be given.
 
 246 ACCOUNTS. [CH. IX. 
 By the guardian and conservator. 
 
 To cash paid U. S. stamps 60 
 
 To cash paid taxes on No. 12 Lake street, for 1868, voucher 2 $80 00 
 
 To cash paid insurance on No. 12 Lake street, for 1868, voucher 3 . . 40 00 
 
 To cash paid for attorney's fees, voucher 4 10 00 
 
 To cash paid repairing sidewalk, voucher 5 81 00 
 
 $214 00 
 
 H. DAMON, Guardian. 
 
 Andrew H. Dalton, in account with (his Ward), John Page, Dr. 
 
 To cash received of Joseph Page, Adm'r $1,000 00 
 
 To interest on same one year, at 10 per cent 100 00 
 
 To cash received for rent of house No. 12 Lake street, from 1st of 
 
 May, 1868, to 1st of May,1869 600 00 
 
 $1,700 00 
 
 Or. 
 By cash paid for board from 1st of May, 1868, to 1st of May, 1869, at 
 
 $2.00 per week, voucher 1 $104 00 
 
 By cash paid for 6 months' tuition, voucher 2 25 00 
 
 By cash paid for 1 coat, $15, 1 pr. boots, $5, voucher 3 20 00 
 
 By cash paid for 1 hat, voucher 4 5 00 
 
 By cash paid Dr. Banks for professional services, voucher 5 ....... 20 00 
 
 By commissions on $1,700, at 3 per cent, voucher 6 51 00 
 
 By one-tfcrd common expense account allowed 71 33 
 
 By balance in hands of guardian 1,403 67 
 
 $1,700 00 
 
 ANDKEW H. DALTON, Guardian. 
 
 Attach the usual affidavit. 
 
 If you are guardian but for one minor, or the items of yonr 
 expenses common to all your wards are few, the expense account 
 may be dispensed with, and an account, similar to the account last 
 given, kept with each ward, will alone be sufficient. Your account 
 should be accompanied with a written report. 
 
 CONSERVATOR'S ACCOUNTS should be made in the same way, using 
 the word conservator in lieu of guardian.(K) 
 
 A guardian is liable to account to his ward, although five years 
 may have elapsed after the ward became of age before the ward com- 
 menced proceedings, (i) Though the guardian may be out of office, 
 
 (h) See p. 138, supra. (i) Gilbert v. Guptill, 34 111. 112.
 
 CH. IX..] ACCOUNTS. 24:7 
 
 By the guardian and conservator. 
 
 he is still liable to account, and this liability continues so long as 
 his bond is in force. A guardian loaning money of ward on insuf- 
 ficient security is responsible for the amount with interest. He 
 should be charged with the moneys he received belonging to his 
 ward, and compound interest thereon, at six per cent from the day 
 he received it, until his ward became of age, and interest on the 
 amount from the day of demand by the administrator of the ward 
 to the time of entering the final order.(y) See 81 111. 103. 
 
 A guardian must testify before probate court, if required, as to 
 estate of ward.(j) 
 
 The powers of the county court, to compel guardians to render an 
 account of their guardianship from time to time, are co-extensive 
 with those of a court of chancery. The accounts are to be rendered 
 upon oath, and the court may require their settlement. The court 
 may allow or disallow an account in whole or in part, and for that 
 purpose may examine witnesses, may require the production of 
 vouchers, and do all other acts necessary to enable it to arrive at a 
 correct conclusion as to whether or not the account ought to be 
 allowed. When allowed, it is required to be entered of record. ( k) 
 
 The allowance of a guardian's account is a judicial act, and 
 although it is necessarily made during the minority of the ward, 
 still it is to be presumed the act was properly performed until the 
 contrary appears. It is prima facie evidence of the correctness of 
 the account allowed. The authority of the county court in this 
 regard is similar to that of a court of chancery. If an account has 
 been stated erroneously, the ward may have it restated correctly. 
 If the guardian has omitted to charge himself with any thing, or 
 with a proper sum, the ward may make additional charges of such 
 matters. If the guardian has obtained an allowance in his account 
 apparently regular upon its face, the ward should be required to 
 rebut the prima facie presumption of its regularity before the guard- 
 ian can be called upon to establish its correctness ; but, if it appears 
 from the face of the account that items were improperly allowed, 
 no such presumption will sustain them.( k) 
 
 Guardians are chargeable with waste committed or suffered by 
 them. In England it was considered waste to cut growing trees, or 
 to permit them to be cut. Any act or omission which diminished 
 the value of the estate or its income, or increased the burdens upon 
 
 (j) Gilbert v. Guptill, 34 111. 112. (K) Bond v. Lockwood, 33 111. 213.
 
 24:8 ACCOUNTS. [CH. IX. 
 
 By the guardian and conservator. 
 
 it, or impaired the evidence of title thereto, was considered waste. 
 Many acts which, in England, would be waste, are not such here, in 
 consequence of the difference in the condition of the two countries. 
 In this country, whether the cutting of any kind of tree is waste, 
 depends upon the question whether the act is such as a prudent 
 farmer would do, having regard to the land as an inheritance, and 
 whether the doing of it would diminish the value of the land as an 
 estate.(Z) 
 
 Where a trustee or guardian employs trust funds in a trade or 
 adventure of his own, whether he keeps them separate or mixes 
 them with his own private moneys, and notwithstanding difficulties 
 may arise in the latter case in taking the account, the cestui que 
 trust, if he prefers it, may insist upon having the profits made by, 
 instead of interest upon the amount of, the trust funds so employed. 
 It is sometimes impracticable, in applying this rule, to trace out and 
 apportion the profits derived by a trustee from the employment of 
 trust funds along with his own, and in such cases the court fixes 
 upon a rate of interest as the supposed measure or representative of 
 the profits, and assigns it to the trust fund.(Z) 
 
 In determining what expenditures are necessary or proper, courts 
 are exceedingly jealous of encroachments upon the principal of the 
 ward's estate; and in reference to them it has been repeatedly held 
 that they will not be allowed, except for necessaries, without an 
 order of court is procured before making the expenditure, unless 
 the guardian can show such a state of facts as would have entitled 
 him to the order had he applied for it at the proper time, and a 
 reasonable excuse for his neglect in that regard. (T) 
 
 Where a guardian has made a gift to his ward, and entered a 
 credit to the ward in his account therefor, the county court, in view 
 of it, may, with great propriety, allow larger expenditures in behalf 
 of the ward than it would otherwise do; and where such appears to 
 have been the case, it would be a gross fraud to allow the guardian 
 to recall the gift.(Z) 
 
 Commissions will not be allowed to a guardian for money of his 
 ward in his hands which he has employed in his own business. 
 Commissions are allowed to guardians for services rendered, and not 
 for neglect of their duties.(Z) 
 
 The statute directs the expenditure to be made by the guardian 
 (0 Bond v. Lockwood, 33 111. 213.
 
 CH. IX. J ACCOUNTS. 24:9 
 
 By the guardian and conservator. 
 
 tinder the order and direction of the court of probate, and requires 
 that the rents and profits arising from the ward's real estate, and 
 the interest on his money, should be first resorted to for his educa- 
 tion and maintenance, (m) 
 
 A died, leaving an estate, a widow and two children. The widow 
 administered, and afterward married B, who collected money belong- 
 ing to the estate of A, and died without accounting therefor. A's 
 children lived with B, and were supported by him until his death. 
 In a suit by the heirs of A against the administrator of B, for an 
 account, the court held that B had made himself liable as guardian, 
 by intruding on the children's estate. That as B had nurtured 
 and educated the children during his life, he should be allowed the 
 interest on the money collected by him during his life ; but as he 
 had failed in duty in not giving bond, his estate must be held ac- 
 countable for the principal sum collected by him, and interest 
 thereon since his death, (m) 
 
 Upon a settlement of his account, the guardian, by order of court, 
 gave his note for what was due the ward. The guardian paid part 
 of the note in money and part in lumber, which was received. Held, 
 that the payment in lumber should be allowed as a credit.(w) 
 
 Persons paying money to the guardian are not responsible for its 
 application.(w) 
 
 It is the duty of a guardian to procure an order of the proper 
 court before making expenditures; and that duty existed as well 
 before the passage of the statute imposing such obligation upon him 
 as afterward. A guardian may support his ward without any order 
 of court, and all payments which he can show were necessary for 
 that purpose will be allowed to him. Any one in the possession of 
 the ward's property, or a stranger, may do it and have a like allow- 
 ance; but it will only be made upon proof showing the necessity of 
 the expenditure, and for what it was made. Expenditures not 
 required for necessaries should be approved by the court before they 
 are made.(o) 
 
 If an administrator or guardian, in his representative capacity, 
 make a contract or covenant which he has no right to make, and 
 
 (m) Davis, Adm'r, v. Harkness, 1 (ri) Mortimer v. The People, 49 111. 
 Gilm. 173. 473. 
 
 (0) Bond v. Lockwood, 33 111. 213. 
 
 32
 
 250 ACCOUNTS. [CH. IX. 
 
 By the guardian and conservator. 
 
 which is not binding on the estate or ward, he is personally bound 
 to make it good, (p)* 
 
 A guardian, who converts money of his ward to his own use, is 
 chargeable with compound interest. (q) 
 
 To change a ward's property from personal to real is not ordinarily 
 permitted, (r) 
 
 Where a guardian, to preserve the estate unimpaired until the 
 heirs become of age, leases for a less sum than could be obtained 
 from ordinary yearly rents, first securing the approval of the pro- 
 bate court, and acts in manifest good faith, he is not liable for 
 having failed to secure a higher rent.(s) 
 
 A guardian cannot, by his own contract, bind the person or 
 estate of his ward, but, if he promises, on a sufficient consideration, 
 to pay the debt of his ward, he is personally bound by it, although 
 he expressly promises as guardian. He may indemnify himself out 
 of the ward's estate, or if discharged, may have an action against 
 the ward for money paid to his use.(^) 
 
 GUARDIAN'S BOND. If the guardian fail to account, his sureties 
 are liable. (u) 
 
 (p) Mason v. CaldweU, 5 Gilm. 196. (*) McElheny v. Mmick, 63 111. 328. 
 (q) Rowan v. Kirkpatrick, 14 111. 2. rt) Sperry v. Fanning, 80 111. 371. 
 (r) Altridge v. Billing, 57 111. 480. (u) Wann v. The People, 67 111. 202.
 
 CH. X.] DESCENT. 251 
 
 Estates of intestates to be distributed. 
 
 CHAPTER X. 
 
 DESCENT. 
 
 1. Estates both real and personal of intestates, after paying all just debts and 
 
 claims, descend and are to be distributed : 
 
 (1) To the children and their descendants, in equal parts ; descendants 
 
 of a deceased child taking the share of their parents in equal parts 
 among them. 
 
 (2) If there be no children, nor descendant of children, and no widow or 
 
 surviving husband, then to the parents, brothers and sisters of 
 the deceased, and their descendants, in equal parts, each parent 
 taking a child's part, or to surviving parent, if one only be living, 
 a double portion ; and if no parent be living, then to the brothers 
 and sisters of the intestate, and their descendants. 
 
 (3) If there be a widow or surviving husband, and no child or children, 
 
 or descendants of a child or children of the intestate, then one- 
 half of the real and the* whole of the personal estate shall descend 
 to the surviving consort in fee. 
 
 (4) If there be a widow or surviving husband, and a child or childreiii 
 
 or descendants of a child or children of the intestate, to the surviv- 
 ing consort one-third of all the personal estate. 
 
 (5) If there be no child or descendant of such child, no parent, brother 
 
 or sister, or descendant of them, and no surviving consort, then to 
 the next of kin to the intestate in equal degree, computing by the 
 rules of the civil law ; no representation among collaterals except 
 with the descendants of brothers and sisters of the intestate, and 
 no distinction between kindred of the whole or half blood. 
 
 (6) If there be a surviving consort and no kindred, then the estate- 
 
 descends to the survivor. 
 
 (7) If there be no surviving consort or kindred, then the estate escheats 
 
 to the State. 
 
 2. Illegitimate issue to inherit on the mother's side ; rules for specified cases. 
 
 3. Illegitimate issue may be legitimatized by subsequent marriage and 
 
 acknowledgment by the father. 
 4-9. Advancements and rules relating thereto. 
 
 10. Posthumous heirs placed on an equal footing with the other heirs. 
 
 11. Issue of deceased, devisee or legatee to inherit, and how. 
 
 12. Undevised and unbequeathed real and personal property of any testator to 
 
 be deemed and distributed as intestate estate ; administrator cum testa 
 mento annexo preferred in administration. 
 
 13. Repealed laws enumerated ; saving clause. 
 
 14. Computation of the civil law adopted. 
 
 15. Proof of heirship. 
 
 16. After accruing rent, an hereditament.
 
 252 DESCENT. [CH. X. 
 
 Estates of intestates to be distributed. 
 
 17. Husband and wife in no case next of kin to each othjer. 
 
 18. If the intestate die without issue leaving only a mother, the estate goes to 
 
 her. 
 
 19. The interest of a posthumous child not affected by a decree and sale to satisfy 
 
 debts of relatives, e. g., his mother and uncle. 
 
 20. A posthumous child takes directly from the parent. 
 
 21. Distribution of personal estate not known to the common law except under 
 
 the rules of the civil law. 
 
 22. Common-law rules as to the descent of real property, discussed in the light 
 
 of the authorities. 
 
 23. The word heir taken in a double sense: 1. Designating the person to take 
 
 the estate ; 2. Limiting the estate transmitted or conveyed ; title by de- 
 scent or purchase. 
 
 24. The custom of gavel-kind. 
 
 25. The rule in Shelley's case. 
 
 26. Common-law rules prevail unless the provisions of an act of the assembly 
 
 embrace the very case in controversy. 
 
 27. Heir at common law and statutory heir. 
 
 28. Distribution. 
 
 29. Proof of heirship before distribution. 
 
 30. Decisions in Illinois collated. 
 
 1. ESTATES, BOTH KEAL AND PERSONAL, or RESIDENT AND NON- 
 RESIDENT PROPRIETORS in this State dying intestate, or whose estates 
 or any part thereof shall be deemed and taken as intestate estate, 
 after all just debts and claims against such estate are fully paid, 
 shall descend to and be distributed in manner following, to wit : 
 
 (1) RULES OF DESCENT THEREOF. (a) To his or her children and 
 their descendants, in . equal parts ; the descendants of the deceased 
 
 (a) An act in regard to the descent universally abolished in this country, 
 
 of property, April 9, 1872.* DESCENT So with few exceptions has been the 
 
 hereditary succession. Title by descent distinctions between male and female 
 
 is the title by which one person, upon heirs. 2. The rules of descent at com- 
 
 the death of another, acquires the real mon law are applicable only to real 
 
 estate of the latter as his heir at law. estates of inheritance. Estates for the 
 
 2 Blackstone's Com. 201 ; Comyn's Dig. life of the deceased, of course, termi- 
 
 Descent. (A.) It was one of the prin- nate on his death ; estates for the life 
 
 ciples of the feudal system that on the of another are governed by peculiar 
 
 death of the tenant in fee, the land rules. Terms of years, and other 
 
 should descend and not ascend. Hence, estates less than freehold, are regarded 
 
 the title by inheritance is in all cases as personal estates, and on the death 
 
 called descent, although by statute of the owner vest in his executor or 
 
 law the title is sometimes made to administrator. Gilb's Dev. 156 ; Fitzg. 
 
 ascend. The English doctrine of 245. Our statute here opens by making 
 
 primogeniture, by which by the com- " estates, both real and personal," on 
 
 mon law the eldest son and his issue an equal footing in this respect, 
 take the whole real estate, has been 
 
 * See chap. 39, R. S. 1874. pp. 417-419.
 
 CH. X.] DESCENT. 253 
 
 Estates of intestates to be distributed. 
 
 child or grandchild taking the share of their deceased parents in 
 equal parts among them. 
 
 (2) When there is no child of the intestate, nor descendant of 
 snch child, and no widow or surviving husband, then to the parents, 
 brothers and sisters of the deceased, and their descendants, in equal 
 parts among them, allowing to each of the parents, if living, a child's 
 part, or to the survivor of them if one be dead, a double portion ; 
 and if there is no parent living, then to the brothers and sisters of 
 the intestate, and their descendants. 
 
 (3) When there is a widow or surviving husband, and no child or 
 children, or descendants of a child or children of the intestate, then 
 (after the payment of all just debts) one-half of the real estate and 
 the whole of the personal estate shall descend to such widow or sur- 
 viving husband as an absolute estate forever, and the other half of 
 the real estate shall descend as in other cases, where there is no 
 child or children, or descendants of a child or children. 
 
 (4) When there is a widow or a surviving husband, and also a 
 child or children, or descendants of such child or children of the 
 intestate, the widow or surviving husband shall receive as his or her 
 absolute personal estate, one-third of all the personal estate of the 
 intestate. 
 
 (5) If there is no child of the intestate, or descendant of such 
 child, and no parent, brother or sister, or descendant of such parent, 
 brother or sister, and no widow or surviving husband, then such 
 estate shall descend in equal parts to the next of kin to the intestate, 
 in equal degree (computing by the rules of the civil Iaw),(c7) and 
 there shall be no representation among collaterals, except with the 
 descendants of brothers and sisters of the intestate ; and in no case 
 shall there be any distinction between the kindred of the whole and 
 the half blood. 
 
 (6) If any intestate leaves a widow or surviving husband and no 
 kindred, his or her estate shall descend to such widow or surviving 
 husband. 
 
 (7) If the intestate leaves no kindred, and no widow or husband, 
 his or her estate shall escheat to and vest in the county in which 
 said real or personal estate or the greater portion thereof is situated. 
 
 2. An illegitimate child shall be heir of its mother and any 
 
 (d) Seep. 268, infra.
 
 254: DESCENT. . [CH. X, 
 
 Ulegitimate issue may be legitimatized. 
 
 maternal ancestor, and of any person from whom its mother might 
 have inherited, if living ; and the lawful issue of an illegitimate 
 person shall represent such person, and take, by descent, any estate 
 which the parent would have taken, if living. 
 
 (2) The estate, real and personal, of an illegitimate person shall 
 descend to and vest in the widow or surviving husband and children, 
 as the estate of other persons in like cases. 
 
 (3) In case of the death of an illegitimate intestate leaving no 
 child or descendant of a child, the whole estate, personal and real, 
 shall descend to and absolutely vest in the widow or surviving 
 husband. 
 
 (4) When there is no widow or surviving husband, and no child 
 or descendants of a child, the estate of such person shall descend to 
 and vest in the mother and her children, and their descendants 
 one-half to the mother, and the other half to be equally divided 
 between her children and their descendants the descendants of a 
 child taking the share of their deceased parent or ancestor. 
 
 (5) In case there is no heir as above provided, the estate of such 
 person shall descend to and vest in the next of kin to the mother of 
 such intestate, according to the rule of the civil law. 
 
 (6) When there are no heirs or kindred, the estate of such person 
 shall escheat to the State, and not otherwise. 
 
 3. An illegitimate child, whose parents have intermarried, and 
 whose father has acknowledged him or her as his child, shall be 
 considered legitimate. 
 
 4. Any real or personal estate given by an intestate in his life-time 
 as an advancement to any child or lineal descendant, shall be con- 
 sidered as part of the intestate's estate, so far as it regards the 
 divisions and distributions thereof among his issue, and shall be 
 taken by such child or other descendant toward his share of the 
 intestate's estate ; but he shall not be required to refund any part 
 thereof, although it exceeds his share. 
 
 5. If such advancement is made in real estate, and the value 
 thereof is expressed in the conveyance or in the charge thereof made 
 by the intestate, or in the written acknowledgment thereof by the 
 party receiving it, it shall be considered as of that value in the 
 divisions and distribution of the estate ; otherwise, it shall be esti- 
 mated according to its value when given. 
 
 6. If such advancement is made in personal estate of the intestate,
 
 UH. X.] DESCENT. 255 
 
 Issue of deceased to inherit. 
 
 the value thereof to be estimated the same as that of real estate ; and 
 if, in either case, it exceeds the share of real or personal estate, 
 respectively, that would have come to the heir so advanced, he shall 
 not refund any part of it, but shall receive so much less of the other 
 part of the intestate's estate as will make his whole share equal to 
 the shares of other heirs who are in the same degree with him. 
 
 7. No gift or grant shall be deemed to have been made in advance- 
 ment unless so expressed in writing, or charged in writing by the 
 intestate as an advancement, or acknowledged in writing by the child 
 or other descendant. 
 
 8. If a child, or other descendant so advanced, dies before the 
 intestate, leaving issue, the advancement shall be taken into considera- 
 tion in the division or distribution of the estate of the intestate, and 
 the amount thereof shall be allowed accordingly by the representa- 
 tives of the heirs so advanced, as so much received toward their 
 share of the estate, in like manner as if the advancement had been 
 made directly to them. 
 
 9. A posthumous child of an intestate shall receive its just propor- 
 tion of its ancestor's estate, in all respects as if it had been born in 
 the life-time of the father. 
 
 10. If, after making a last will and testament, a child shall be born 
 to any testator, and no provision be made in such will for such child, 
 the will shall not on that account be revoked ; but, unless it shall 
 appear by such will that it was the intention of the testator to 
 disinherit such child, the devises and legacies by such will granted 
 and given shall be abated in equal proportions to raise a portion for 
 such child equal to that which such child would have been entitled 
 to receive out of the estate of such testator if he had died intestate, 
 and a marriage shall be deemed a revocation of a prior will. 
 
 11. Whenever a devisee or legatee in any last will and testament, 
 being a child or grandchild of the testator, shall die before such 
 testator, and no provision shall be made for such contingency, the 
 issue, if any there be, of such devisee or legatee shall take the estate 
 devised or bequeathed as the devisee or legatee would have done had 
 he survived the testator, and if there be no such issue at the time 
 of the death of such testator, the estate disposed of by such devise 
 or legacy shall be considered and treated in all respects as intestate 
 estate. 
 
 12. All such estate, both real and personal, as ia not devised or
 
 256 DESCENT. [CH. X. 
 
 The interest of a posthumous child. 
 
 bequeathed in the last will and testament of any person, shall be 
 distributed in the same manner as the estate of an intestate ; but in 
 all such cases the executor or executors, administrator or adminis- 
 trators, with the will annexed, shall have the preference in adminis- 
 tering on the same. 
 
 13. EEPEAL. The following acts and parts of acts are hereby re- 
 pealed, to wit: Sections thirteen, fourteen, forty-six, forty-seven, fifty- 
 one, fifty-two, fifty-three, fifty-four and one hundred and twenty-eight, 
 of chapter one hundred and nine of theEevised Statutes of 1845 ; an 
 act entitled " An act to amend an act concerning ' Wills,' " approved 
 February 11, 1847; an act entitled "An act entitled 'An act con- 
 cerning the descent of property in this State,' " approved February 
 12, 1853 ; an act entitled " An act to amend an act concerning the 
 descent of real property in this State," approved February 12, 1853, 
 approved February 11, 1857 ; also all other acts inconsistent with 
 the provisions of this act : Provided, that nothing contained in this 
 section shall be so construed as to affect any suits that may be 
 pending, or any rights that have accrued at the time this act shall 
 take effect. 
 
 14. THE COMPUTATION OP THE CIVIL LAW is adopted in ascertain- 
 ing who are the next of kin to an intestate, (e) 
 
 15. PROOF that certain children are the only ones that survived 
 their father, does not establish their claim to be his only heirs, unless 
 it is also shown that none of those who died before their father left 
 children or husbands or wives. (/) 
 
 16. KENT ACCRUING our OF LAND, upon a lease granted by the 
 owner in fee, and which does not become due till after the death of 
 the lessor, is a chattel real, which descends to the heir as a part of the 
 inheritance, and does not go to the executors, (g) 
 
 17. THE NEXT OF KIN to a deceased intestate wife, who dies with- 
 out issue, take all her property except one-half of her real estate, 
 which goes to her husband. In no sense are husband and wife next 
 of kin to one another.(A) 
 
 18. Where a person dies without children or father, but leaving a 
 mother, and brothers and sisters, his whole estate goes to his 
 mother.(i) 
 
 (e) Hays v. Thomas, Breese, 136 ; see (k) Townsend v. Radcliffe, 44 111. 446. 
 
 p. 245, supra. (i) Hays v. Thomas, Breese, 136. But 
 
 (/) Skinner v. Fulton, 39 111. 484. see p. 245, supra, and p. 255, infra, 
 (g) Green v. Massie, 13 111. 363.
 
 CH. X.J DESCENT. 257 
 
 Common-law rules discussed. 
 
 19. The interest of a posthumous child in real estate is not 
 divested by a decree against his mother and uncle, under whicli a 
 sale was made to satisfy the debts of his relatives and ancestors. (_/) 
 
 20. A posthumous child takes directly from the parent, his estate 
 remaining meanwhile in abeyance, so that he is not bound by a 
 decree had against the other heirs before his birth.(&) 
 
 21. Until the enaction of statutory provisions at a comparatively 
 late period in the English law, THERE WAS NO MODE OF COMPELLING 
 THE DISTRIBUTION OF THE PERSONAL EFFECTS of a decedent among 
 his descendants or next of kin ; THE WHOLE SUBJECT WAS REGU- 
 LATED BY THE CIVIL LAW, according to which they became vested 
 in the ordinary, as the successor to an intestate, and the ordinary 
 appointed an administrator, who was his deputy. Where there was 
 a will, the property vested in the executor as completely as it had 
 been in the testator ;(/) he represents his person, " and the estate he 
 hath by his executorship is said to be in him, to the use of the 
 testator and his right, and that he doth, in the disposition of his 
 estate, is said to be in the right and to the use of the testator also." (m) 
 The will is the declaration of the uses, for which the effects are held 
 in trust by the executor, for the persons and purposes declared ; the 
 statute of distributions is a direction to the executor how to admin- 
 ister the assets.(w) As trustee the legal ownership is in the executor; 
 the next of kin have a right only by statute,(o) nor by the ciyil law 
 could even children claim them by right. After the payment of 
 debts and legacies, the executor held the surplus to his own use ; 
 when his trust was executed, he was the legal owner, bound to 
 account to no one. 
 
 22. THE REAL ESTATE of a person who dies intestate descends to 
 and vests, ACCORDING TO THE COURSE OF THE COMMON LAW, in the 
 person who, by the act of God, and in the right of blood, succeeds 
 to the estate of one who dies seized of an inheritable interest in 
 land. The course of descent is prescribed by definite rules' or canons 
 of the law, which designate the person who is nearest and worthiest 
 of blood to the deceased owner, as hares sanguinis ; who, by right 
 of inheritance, is heir to himself and estates of inheritance. The 
 person on whom this right devolves is the eldest son of the father 
 who dies seized ; or, if he dies without lineal descendants, his eldest 
 
 (j) Detrick v. Migatt, 19 111. 146. (m) Sh. To. 400-2 ; Went. 0. E. 95. 
 
 (*) McConnel v. Smith, 23 111. 611. (ri) 4 Burns' E. L. 58. 
 
 (I) Qilb's Dev. 156 ; Fitzg. 245. (o) Fitzg. 245. 
 33
 
 258 DESCENT. [CH. X. 
 
 The word " heir " taken in a double sense. 
 
 brother and their oldest sons, and their lineal descendants in per- 
 petual succession ; if males, to the oldest son ; if females, to them 
 equally as parceners, (p) 
 
 23. THE WORD " HEIR " is TAKEN IN A DOUBLE SENSE, as relates 
 to the person of the ancestor and to his estate. His personal heir is 
 the one who is nearest in blood to him, and descended from the same 
 ancestor on the side of the father, as the worthiest in blood. If a 
 male descendant, it is one person only who is his heir at common 
 law ; he is also heir to his estate, if it is held and descends according 
 to the course of the common law. But if the estate is in lands 
 which are held by any particular tenure, and descend according to 
 any local or customary law, the heir as to the land is the person to 
 whom it descends by the custom. The difference is very forcibly and 
 perspicuously exemplified by Lord HOBART, in Counden v. Clerke : 
 
 " Heir is sometimes taken absolutely or simply, or according to or 
 by accident ; sometimes in the abstract, standing naked by itself and 
 of itself; and sometimes in the concrete, clothed with land or 
 rent, in respect of which he may be heir, that is, not right 
 heir, as the word is here. For example, the younger son in 
 borough English is heir and all the sons in gavel-kind, whereof 
 the reason is, because the custom is, and so must be pleaded, 
 that the custom of those lands is, that they must descend to the 
 younger son or all the sons; so they are heirs secundum quid of. those 
 lands in point of descent, or where they descend, for then they are 
 within the custom that gives the inheritance. Sum demum sumus 
 cum per causas primus. But now make the limitation, even of land 
 of that nature, to heirs not in point of descent, and it will be 
 clearly otherwise. And, therefore, if I give land, in gavel -kind, or 
 borough English, to one for life, the remainder to the right heirs of 
 I. S., the true heirs shall take it, for that is out of the case of custom, 
 and so must run to the heir at common law. Note, also, that war- 
 ranties arid estoppels do always descend upon the right heirs general, 
 as being to simple heirs. If there be a warrantor who hath lands in 
 gavel-kind, the eldest son shall be vouched alone, but the tenant may 
 also vouch the others for the possession ; that the heir general shall 
 take such advantage of such warranty and none other."(g) 
 
 "Nay, more ; if I convey lands that I have on part of my mother 
 
 (p) L. 7, 6 ; L. 10 a., 18 6. ; G. Dev. (q) Hob. 31. 
 156.
 
 C1T. X.] DESCEOT. 259 
 
 The woi'd " heir" taken in a double sense. 
 
 or in borough English, and declare the use to me and my heirs, or 
 reserve a rent to me and my heirs, it shall go to my heirs at the com- 
 mon law, for it is not within the custom ; but it is a new thing 
 divided from the land itself, and that is the reason of another differ- 
 ence, that land by descent falling upon one shall be taken from him 
 by a nearer heir born. Not so of these purchases, (r) 
 
 The same distinction is taken by Lord COKE,(S) and illustrated by 
 Lord MANSFIELD in Doe ex dem. Lansing v. Long.(t) He says : 
 " Now the term ' heirs ' (in the plural), in the case of gavel-kind land, 
 answers to the term 'heir' (in the singular), in the common case of 
 lands which are not gavel-kind ; for the word ' heir ' (in the singular) 
 would not serve for gavel-kind lands, it must be heirs (in the plural). 
 Therefore, all the arguments and reasonings that are applicable to 
 the word * heir ' (in the singular) in the common case of lands not 
 being gavel-kind, hold with equal strength and propriety when 
 applied to the plural termination ' heirs,' when the lands are gavel- 
 kind." 
 
 24. THE CUSTOM OF GAVEL-KIND was peculiar to the county of 
 Kent ; where, by the custom and use, time out of mind, lands descend 
 to all the sons.(w) The people of this county made it a condition of 
 their submission to the conqueror, that this custom should continue 
 as the law of tenures and descent, notwithstanding the establishment 
 of the feudal system as the general law of the kingdom ; it remained, 
 therefore, an exception to that law, as it had before been an excep- 
 tion to the general rules of the common law, unless since disgaveled 
 by statute.(y) 
 
 There is no branch of the law in which the courts of England, 
 and many of the States of the Federal Union, have been more anx- 
 ious to adhere to established landmarks than in the meaning given 
 to the words " heir " and " heirs," and none on which the security of 
 titles so much depends. 
 
 Subtle as the distinctions on which some cases turn may be 
 thought to be, they will be found, on investigation, to be founded 
 in the strongest reasons of policy and good sense ; which have stood 
 the test of time, admired for their wisdom by all who will under- 
 stand them, and never departed from without the most pernicious 
 
 (r) Hob. 31. () Litt., 210, 1, 140, a, b. 
 
 (s) L. 10 a. (v) Litt., 210, 1, 140,6. 
 
 (f) 2 Burr., 1106, 10.
 
 260 DESCENT. [CH. X. 
 
 The word " heir " taken in a double sense. 
 
 consequences to the peace of society and the safe enjoyment of 
 estates. 
 
 The legal meaning of the word " heir " or " heirs " depends, at com- 
 mon law, on the intention of the party who uses them in a deed or 
 will. They are used in one of two senses, as words of limitation or 
 purchase. In the first sense, they denote the quantity of estate given 
 to the person named; in the other, the person designated to take 
 the estate; but they never operate in both ways. Where they oper- 
 ate by way of limitation, the whole estate vests in the first taker, 
 and on his death intestate, descends to his heir according to the 
 common law, as an estate descendible forever in fee, or in tail, 
 according to the form of the gift. In these cases the word " heir " is 
 nomen collectivum ; not as a name of numbers, but as a word de- 
 noting the continuance and succession of the estate in the heir by 
 inheritance from ancestor to heir, and from heir to heir, (w) Where 
 they are used as words of limitation, heir or heirs mean the same 
 thing.(a;) So is the term right " heir" or "heirs; " it means only one 
 person, who is right heir by the common law. So of the words 
 " heir at law," " heir at common law," " heir general " or " lawful 
 heir; " they mean the person who is heir jure hereditatis. These 
 words are prima facie words of limitation, unless the words are 
 express or have a different meaning, by necessary implication, from 
 the whole sense and tenor of the writing, (y) 
 
 The word "heir" cannot be a name of purchase unless the devisoi 
 parts with the whole estate which is in him, (z) nor when the heir 
 takes that, after the death of his ancestor, which the ancestor could 
 enjoy while living; for that is descent, and not purchase, (a) A 
 man cannot raise a fee simple to his own right heirs, by the name of 
 heir, as a purchase.(S) So of a devise to a person who is his next 
 heir, and his heirs ; it works by descent, (c) because he is simply heir 
 to the ancestor, and the devise does not break or alter the course of 
 descent, whatever mode of expression is adopted. If it denotes the 
 person who is to take by the term " heir " in the capacity of heir to an 
 ancestor, and not a person designated as the heir of some one, as a 
 
 (w) L. 145 ; 2 Dane's Ab. 556 ; 2 R. A. (z) L. 22 6 ; 2 R. A. 253. 
 253, H. pi. ; 1 Gil. D. 20 ; 1 Bulst. 219. (a) L. 13 6, 14 a ; 2 Dane, 557 ; Gilb. 
 
 (x) L. 22 6, denoting the estate ; 1 Dev. 113 ; 1 c 95, etc. 
 Bulst. 22, '3. (6) Hob. 30. 
 
 (y) Litt., 12 a; 2 Rawle, 33. (c) Hobart, 30.
 
 CH. X.J DESCENT. 261 
 
 The rule in Shelley's case. 
 
 term describing the person to take, he takes by descent. A strong 
 and clear illustration of this rule of the common law is in the prin- 
 cipal case, Counden v. Cler~ke,(d) which was a devise of socage 
 lands " unto the right heirs male and posterity of me and my name 
 forever. " The testator left a son, a daughter and brother ; the son 
 died without issue ; the daughter married and had issue, two daugh- 
 ters; so that the contest was between the brother and granddaugh- 
 ters of the testator. It was held that the brother could not take, 
 because he was not the heir; and the granddaughters could not take 
 because they were not heirs male of his name. 
 
 25. Adverting to THE RULE IN SHELLEY'S CASE,* as to the meaning 
 of the word " heir," and the innumerable cases which have arisen upon 
 it, it will suffice to take the remarks of Lord THURLOW, as a sum- 
 mary of the laws on this point :(e) 
 
 " I take that rule to be, that where the heir takes in the character 
 of heir, he must take in the quality of heir ; I take that question 
 always to have been as to the import of the word "heir'* in the pro- 
 posed case. I never heard it contended that the testator could vary 
 the sense of the law ; whether heirs general, heirs male, or heirs 
 female, are to take by those words, they must take in that quality ; 
 therefore, you must prove that the second taker was not intended to 
 take in that character but in some other."(/) " All heirs, taking as 
 heirs, must take by descent."(#) The word " heirs " must be intended 
 as a description of the persons to take by such " declaration plain," 
 as would overturn the legal constructions, or it must be adopted.(A) 
 
 There is no difference, in this respect, between wills and deeds, or 
 other writings, on questions of intention, except this : That where 
 the words relate to the quality of the estate, as whether it is for life, 
 
 (d) Hob. 29. (g) 1 Bl. Com. 219. 
 
 () 3 Binney, 154. (h) 1 id. 221, 224. 
 
 (/) 1 Bl. Com. 216. 
 
 * Shelley's case. The following is the rule established in this case : 
 
 " When the ancestor, by any gift or conveyance, taketh an estate of freehold, and in 
 the same gift or conveyance an estate is limited, either mediately or immediately, to 
 his heirs, in fee or in tail, the heirs are words of limitation of the estate, and not words 
 of purchase." 1 Coke, 104. 
 
 PURCHASE, in the law includes every mode of acquiring property known to the law, 
 except that by which an heir on the death of his ancestor becomes substituted in his 
 place as owner by operation of law. Washb. Real Prop. 401. 
 
 The acquisition of property, by a person, through a will or devise, is one of the modes 
 of title by purchase, by deed is another. 
 
 The other mode of acquiring property is by descent.
 
 262 DESCENT. [cn. x 
 
 The rule in Shelley's case. 
 
 or one of inheritance, certain words are necessary in a deed to carry 
 a fee, they must be such as to effect their object by their legal opera- 
 tion ; whereas, to have been designed by the testator, the intended 
 effect being the legal effect.(i) Where the words relate to the per- 
 son or persons who are to take under the limitation of the estate, in 
 a deed or will,(/) the rules of construction are the same ; the inten- 
 tion will be anxiously sought and faithfully asserted. The rule, as 
 adopted(&) by all the judges,(Z) is : " And here, first, I do exceed- 
 ingly commend the judges that are curious and almost subtle, 
 astute, to invent reasons and means to make acts according to the 
 just intent of the parties, and to avoid wrong and injury which, 
 by rigid rules, might be wrought out of the act.(??i) The case of 
 Moore v. Magrath is a strong but authoritative illustration of the prin- 
 ciple which the supreme court of the United States, in the case of 
 The United States v. Arredondo, have extracted from the law of con- 
 struction common to England and this country :(n) " The words of 
 a grant are always construed according to the intention of the parties 
 as manifested in the grant, by its terms, or by the reasonable and 
 necessary implication to be adduced from the situation of the 
 parties, and of the thing granted, its nature and use."(o) But, 
 while the court will take all these circumstances into their con- 
 sideration, it must be remembered that it is to carry the plainly 
 declared intention into effect, which must be apparent on the writ- 
 ten instrument ; when it is so, courts will be astute in effectuating it 
 from every source of information, and by the most liberal and benign 
 construction ; nay, more, they will sometimes give a subtle construc- 
 tion to the words, in order to carry into execution the manifest 
 object arid intention of the testator. This, however, can only be 
 done when there is some writing to construe ; the intention must 
 not be wholly dehors, it must appear on the instrument in some part 
 of it. The court will examine the whole ; the four corners as well 
 as the body.( p) If it is expressed, however defectively, the court will 
 aid it by extrinsic circumstances, and be astute in supplying 
 defects and curing all ambiguities which appear.(g') In the absence of 
 any apparent defect or inaccuracy of expression of any potent ambi- 
 
 (f) Sh. To. 437, 439. (<?) 6 Pet. 640, and cases cited. 
 
 (f) Fearne, 89. (p) Sh. To. 85 ; 2 J. & W. 89. 
 
 (k) From Hobart, 277. (?) Vide Sh. To. 86, et seq. ; Went. 
 
 (1) In Willes, 333. OS. Ex. 271 ; Sh. To. 434 ; Gil. Dev. 21, 
 
 (m) 6 Pet. 739. 112 ; Fitzg. 236. 
 
 (n) Cowp. 9, 10, etc.
 
 CH. X.] DESCENT. 
 
 Heir at common law and statutory heir. 
 
 guity or doubt, as to the legal or intended meaning of the words used, 
 they must be left to their legal meaning and effect ; when legal 
 words are used, without superadding words of intention which qualify 
 them, or denote an intent to use them in any other sense, the law deems 
 them to be so intended by the testator ; to this rule there are no ex- 
 ceptions, either in the construction of deeds, wills or other writings.(r) 
 Any other will would repeal the statute of wills, which requires them 
 to be in writing ; a will is, since the statute 34 and 35 Henry VIII, to 
 be taken as a written declaration of the mind, will, or intention of the 
 testator, as to what should become of his estate after his death. 
 Before the statute, it might be by parol as a declaration of uses 
 (Dy. 53, b; Sh. To. 399, 415 ; L. Ill), where land was devisable by 
 custom or tenure; but since then it must be by writing. So is the 
 statute law of Illinois.(s) 
 
 26. One of the first and most sacred principles of 4 the law is, that 
 " the common law hath no controller in any part of it, but the high 
 court of parliament ; and, if it be not altered or abrogated by parlia- 
 ment, it remains still ; particular customs must be proved.() The 
 same principle is the rule in Illinois and other States, in all cases to 
 which the common law had been applied by adoption ; and it remains 
 now the law of descent of both real and personal estate, if the provis- 
 ions of an act of assembly do not, in their words, embrace the very 
 case in controversy. (u) 
 
 27. There is then, it seems, an HEIR AT COMMON LAW, distinct from 
 the statutory heir, to whom the real estate of a person dying seized and 
 intestate shall descend by the general course of the law in right of 
 blood and* inheritance. That the common law of both countries is 
 the same, designating the same person, by the same rules and courses 
 of descent, as the heir to an ancestor in all cases, and the heir to his 
 estates of inheritance, unless, in the particular event which has 
 happened, an act of assembly has substituted some other person or 
 persons to take the place of the ancestor for its enjoyment. (v) 
 
 (r) Sh. To. 89, note ; Gilb. Dev. 143. this subject further, he is referred to 
 
 () See pp. 33, 44, supra. the learned opinion of Sir THOMAS 
 
 (t) L. 115, 6. 33, b. 58, b. 113, a. b. ; PLUMMEK. 2 Jac. & Walk. 65-132. A 
 
 Litt. 169. careful reading of this opinion will 
 
 (u)^ Johnson v. Haines, 4 Dall.64; throw much light upon our statutes of 
 
 Cresoe v. Laidley, 2 Binney, 279, 284. wills, descent and conveyances. 
 () If the reader desire to pursue
 
 264 DESCENT. [CH. X. 
 
 Proof of lieirship. 
 
 28. DISTEIBUTION.* If, on the final settlement of the administra- 
 tor's accounts, it appears he has satisfied all the claims allowed 
 against the estate, and all charges and costs of administration, and 
 that there remains in his hands a surplus, it shall be distributed 
 according to the law of descent. 
 
 29. PROOF OF HEIBSHIP. Proof of heirship is required in case of 
 an intestate estate before a distribution will be made to the heirs. This 
 may be done on the petition of any one interested in the fund to be 
 distributed, upon the testimony of two disinterested witnesses taken 
 in open court, reduced to writing and filed in the case. No estate 
 will be declared settled until the clerk's costs are paid.(w) 
 
 To those not conversant with the technicalities of law, our statutes 
 may appear ambiguous on some questions that naturally arise in the 
 distribution of property ; for instance, the third rule makes no pro- 
 visions for the distribution of the remaining estate, after giving the 
 widow one-half of the real, and all the personal estate, including 
 dower. This provision must be explained by the preceding one, 
 both being intended to apply in case there should be no children or 
 descendants of children of the intestate ; the third rule applying when 
 the intestate has left a widow, and the second when there is no widow, 
 which distributes the estate equally among the parents, brothers and 
 sisters of the intestate, in case there be no children or descendants of 
 children. Hence, we must conclude, that after the widow has taken 
 her one-half of the real, and all the personal estate, including dower, 
 the residue is divided equally among the parents, brothers and sisters. 
 
 This question has not been settled by the supreme court; it has, 
 however, frequently come up in practice in the circuit court, and 
 has been decided as suggested above. 
 
 The fourth rule provides, that if there be no children, parents, 
 brothers and sisters, and no widow, then the estate shall descend in 
 equal parts to the next of kin, in equal degree, computing by the 
 rules of the civil law, etc. The only question here presented is, 
 what are the rules of the civil law ? To explain the rules of de- 
 scent of the civil law would extend this book far beyond its proper 
 (w) See Costs and fees, infra. 
 
 * DISTRIBUTION is, in practice, the division by order of the court having jurisdic- 
 tion, among those entitled thereto, of the residue of the personal estate of an intestate 
 after payment of the debts and charges. 
 
 The law of the domicile of the decedent governs in this distribution. See Hill's 
 Chan. Pr., Domicile.
 
 CII. X.] DESCENT. 265 
 
 Proof of heirship. 
 
 limits, and we presume that there are few estates to which it will be 
 necessary to apply these rules; therefore, none but the general rule 
 for determining the next of kin will be given. 
 
 We must first take into consideration the distinction between 
 lineal and collateral heirs. Lineal are such as are in a direct line 
 from the intestate, either ascending, as the parents, grandparents, 
 etc., or descending, as children, grandchildren, their children, and so 
 on down in a direct line, always involving the relationship of parent 
 and child; while collateral include all other heirs, however remote, 
 as brother, sister, uncle, aunt, nephew, niece, cousin, etc., they not 
 being related to each other in a direct line, but are relations merely 
 because they have a common ancestor, by means of whom they 
 determine that they are relatives. 
 
 The rule for determining the next of kin in the lineal line is to 
 ascertain the number of degrees or generations between the intes- 
 tate and the heir or person to whom the estate descends, as from the 
 intestate to his son or father, one degree; grandfather or grandson, 
 two degrees, etc.; but the rule is more complicated in collateral rela- 
 tionship: First ascertain the degrees between one of the persons 
 related and the common ancestor; count, in like manner, the degrees 
 down to the other, which number of degrees or generations will 
 (according to the civil law) give the relationship existing between 
 them ; for instance, there are two degrees between brothers, count- 
 ing one to the father or common ancestor in the ascending line, and 
 one from the father to the other son in the descending line. From 
 this example the number of degrees or generations will be easily 
 determined, by searching out the common ancestor, and then ascer- 
 taining the number of degrees between him and the intestate, adding 
 to that the degrees between the ancestor and heir. But, in applying 
 these principles to this provision of the statute, we encounter a 
 question which seems to have been left open by the statute. The 
 great-grandparents, uncle and aunt, all being in the third degree 
 from the intestate, shall the preference be given to the great-grand- 
 parents who are lineal heirs, or shall they share equally with the 
 uncles and aunts of the intestate ? The words of the statute seem 
 to lean toward the latter conclusion, for it gives to the next 01 kin, 
 in equal degree, an equal share of the estate, and perhaps this would 
 be the construction given to the statute, and, in the absence of a 
 legal construction to the contrary, this, no doubt, would be the 
 34
 
 266 DESCENT. [CH. X. 
 
 Proof of lieirship. 
 
 proper course to pursue in all cases where the heirs are in equal 
 degree, except in such cases as are definitely provided for in the 
 statute. 
 
 There may other questions arise in distributing the estate, but we 
 know of no way by which this subject can be explained better than 
 by a practical illustration of all the leading principles relating to the 
 subject. For this purpose, we will suppose that A died, leaving 
 property (when the debts are paid) of the value of $30,000. This 
 sum is divided equally between his two sons, B and C, or, if C has 
 died, then one-half ($15,000) to B, to C's children, D and E, an 
 equal portion each of C's share ($15,000), which would be $7,500 to 
 each; and if both the sons (B and C) of the intestate have de- 
 ceased, B leaving three sons, F, Gr and H, then B's share ($15,000) 
 will be equally divided among his three sons, while G's share would 
 go to his sons, in the same manner as in the other case. But if A 
 leave no children or their descendants, then, if there be no widow, 
 the parents, brother and sister, four in all, will each take one-fourth 
 of the $30,000; but, if the widow is living, besides her dower, she is 
 entitled to one-half of the real, and all the personal, estate, the res- 
 idue being divided as in the other case. If there be none of the 
 above-mentioned heirs, then we must proceed according to the rules 
 of the civil law. The grandparents being in the next degree to the 
 intestate, the estate will ascend to them in equal shares. Here, it 
 will be remembered, that by our statute there is no representation 
 among collaterals, except with the descendants of brothers and sis- 
 ters of the intestate ; hence, in default of these, we must ascertain 
 who occupies the next degree (the third), which we find to be the 
 great-grandparents, uncles and aunts, who are to divide the estate 
 equally among them, and so on, according to the rules heretofore 
 mentioned. We might go back from generation to generation, but 
 it would be useless, for there are few estates that will require the 
 application of all the rules laid down. We will, therefore, close this 
 chapter by adding the table usually presented in kindred works in 
 England, with a brief explanation, concluding this interesting sub- 
 ject of descent with a resume of some of the apposite decisions of 
 the supreme court of Illinois, decisions which must ever command 
 the admiration and respect of the well-read lawyer for their firm 
 adherence to the ancient landmarks.
 
 Of 
 
 Y 
 
 According to the 
 C/VIL LAV/- 
 
 E . B M.YERS, 
 
 La-w P-u.~blT.sh.er, 
 CHICAGO, ILL.
 
 OH. X.] 
 
 DESCENT. 
 
 269 
 
 Explanation of the table. 
 
 EXPLANATION OP THE TABLE. 
 
 CONSANGUINITY, or kindred, is the 
 connection or relation of persons de- 
 scended from the same stock, or com- 
 mon, one and the same ancestor ; it is 
 either lineal or collateral. Lineal con- 
 sanguinity is the relation in a direct 
 line downward, as from the intestate 
 to his son, grandson, great-grandson; 
 or in a direct line upward, as from the 
 intestate to his father, grandfather, 
 great-grandfather, so that there are 
 lineals in the descending line and also 
 in the ascending line. Every genera- 
 tion, either way from the descent, con- 
 stitutes a degree, e. g. The father is 
 in the first degree in the ascending 
 line, while the son is in the first de- 
 gree in the descending line, so on, 
 either up or down, as designated in 
 the table. 
 
 Collateral kindred or collaterals (see 
 sub. 5, 1, act April 9, 1872) are such 
 as lineally spring from one and the 
 same ancestor, who is the stirps or 
 root, the stirpes, trunk or common stock, 
 whence these relations branch, e. g. 
 I have two sons who have each a nu- 
 merous progeny ; the issues are cous- 
 ins, collaterally related to each other, 
 because they are all descended from 
 me as the common ancestor ; all have 
 a portion of such a common ancestor's 
 blood flowing in their veins, which 
 gives them the name conxanguineos or 
 consanguinity. 
 
 Affinity, on the other hand, is rela- 
 tionship only by marriage. By the 
 same father there may be children by 
 different mothers, and from different 
 fathers there may be children by the 
 same mother; i. e., relatives a parte 
 pater na and relatives a parte materna, 
 both called relatives of the half blood, 
 while relatives descending from the 
 same father and mother are termed 
 relatives of the whole blood. Our 
 statute prescribes that, in no case, 
 shall there be any distinction between 
 
 the kindred of the whole and the hall 
 blood. Sub. 5, 1, act April 9, 1872. 
 
 The point was decided the same way 
 in the absence of a statutory provis- 
 ion in the case of the Hartleys and 
 the Harrisons who claimed under a 
 will the one a parte materna the other 
 a parte paterna, as the heir at law of 
 Matthias Aspden. See Hill's Chan 
 eery Practice, 64-68. 
 
 Our statute (id.) prohibits represen- 
 tation among collaterals, except with 
 the descendants of brothers and sis- 
 ters of the intestate. 
 
 By the aid of this table now, the 
 concise rules of the statute may be 
 applied to every case that can possibly 
 arise, e. g. First, suppose at your 
 death you are unmarried, and have 
 had no children, and you leave three 
 sisters, one brother and a niece (the 
 daughter of a deceased brother), sur- 
 viving relatives, your parents being 
 dead ; or suppose you leave three 
 daughters, one son and a granddaugh- 
 ter (child of your deceased child), in 
 either case your estate would be di- 
 vided into five equal parts, to be dis- 
 tributed, in the first case, one-fifth to 
 each sister, or three-fifths to your sis- 
 ters, one-fifth to your brother and one- 
 fifth to your niece. Supposing this 
 niece to have been dead, and to have 
 left three children, then of your estate 
 each of her children would take one 
 third of one-fifth, together taking 
 three-fifteenths, or the one-fifth that 
 would have descended to their mother 
 were she your survivor ; in the second 
 case, one-fifth would descend to each 
 child and one-fifth to the grandchild. 
 The other contingencies are quite spe- 
 cifically detailed, and to trace the cases 
 that might arise would be but permu- 
 tations of the numbers of the divis- 
 ions and subdivisions of the statute. 
 We leave further detail for the 
 learned and curious, for whom there 
 is ample scope to study either real or 
 imaginary cases of distribution, or 
 the application of the law of descent. 
 
 30. DECISIONS. 
 
 In the case of Deltzer v. Scheuster,(x) there was a deficiency of 
 personal assets to pay the widow's allowance. She, as a creditor, 
 applied to the court for sale of the real estate devised to the children 
 
 (x) 37 111. 301.
 
 270 DESCENT. [CH. X. 
 
 Decisions. 
 
 exclusive of that devised to herself . The supreme court, under 
 Cruce v. Cruce,(y) held she was a creditor, but that the fund de- 
 vised to her and the children, that is, the realty, was a common 
 fund, and that that part devised to the widow should bear a propor- 
 tion of the amount paid to her, and that for the residue the estate 
 devised to the children should be sold. Equity is equality. 
 
 The presumption of our law is, that a person dying intestate has 
 left heirs capable of succeeding to his estate ; and this presumption 
 is so violent that it can only be repelled by proof, (z) 
 
 Prima facie, the term " children " means lawful children, and 
 the statute of descents, by which property of an intestate is made 
 to descend to and among children and their descendants, has refer- 
 ence to lawful children only. () 
 
 NEXT OF KIN". The computation of the civilians is adopted to 
 ascertain who are next of kin to an intestate, (b) 
 
 Personal property of a minor vests immediately in the next of 
 kin, no necessity existing of taking out letters of administration 
 before instituting suit for the same.(c) 
 
 The title to the land of an intestate does not vest in his adminis- 
 trator as a trustee, but descends directly to the heirs. They hold 
 the title in their own right, and only subject to the payment of the 
 debts of their ancestor, in the modes prescribed by law, and not 
 subject to any other control of the admiriistrator.(^) Only, however, 
 to the extent of the ancestor's estate which they inherit. 
 
 The heir is owner of the lands of an intestate, and the rents and 
 profits derived therefrom, until divested by an order of sale or 
 decree, for the purpose of paying debts.(e) 
 
 Where real estate is conveyed to an attorney, to save him harmless 
 as against his liability as bail, without an intention to sell, an actual 
 sale by the attorney will not change the character of the proceeds ; 
 but these will descend to the heirs, and not go to the adminis- 
 trator^/) 
 
 Kent, accruing after death of a decedent, goes to the heirs.(^) 
 
 (y) 21 111. 46. (t) Smith v. McConneU,, 17 111. 135. 
 
 (z) Harvey v. Thornton, 14 111. 217. (/) Jennings \.McConnel, 17 111. 148. 
 
 (a) Blacklaws v. Milne, 82 111. 503. (g) Green v. Mount, 13 111. 363 ; 
 
 (6) Hayes v. Thomas, Breese, 136. Foltz v. Prouse, 17 id. 487 ; Dixon v. 
 
 (c) Lynch v. Rotan, 39 111. 15. Niccotts, 39 id. 372. 
 
 (d) WaUmdge v. Day, 31 111. 379.
 
 CH. X.] DESCENT. 271 
 
 Decisions. 
 
 Posthumous children take by descent with the antecedent children 
 or with other heirs.(7i) 
 
 A posthumous child will take directly from the parent, with the 
 same effect as if it had been born at the time of the decease of the 
 parent, (i) 
 
 A disclaimer by one or more of the heirs, in a chancery suit brought 
 by the heirs, does not vest the interest so disclaimed in the remain- 
 ing heirs.(/) 
 
 After the death of an heir, money, in which he was entitled to 
 an equitable interest, while living, was used in the purchase of land 
 after his death, field, that the heir did not have an estate of inherit- 
 ance iu such purchase that could pass by descent to his heirs.(y) 
 
 Under the word " heirs " are comprehended the heirs of heirs 
 ad infinitum. (Merrill v. Atkin, 59 111. 19.) 
 
 ORDER OF DESCENT. In this State, where a man dies intestate, 
 leaving a widow, but no descendants, the widow inherits, as heir of 
 the intestate, one-half of the real and all of the personal estate of 
 which her husband died seized, which shall remain after the payment 
 of his debts, and she is also entitled to her dower. (&) 
 
 In such case the property being all personal the widow takes the 
 whole. (I) 
 
 The one-half of land in fee allowed the widow by statute under 
 certain circumstances, in lieu of dower, embraces all classes of estates 
 in which dower is demandable, equitable as well as legal estates of 
 inheritance, limited, however, in this, that the husband must have 
 died seized. Lands conveyed by him in his life-time without joinder 
 by the wife are not embraced in the allowance. (?) 
 
 In such case she is entitled to the specific articles enumerated in 
 the statute, but not to dower in the other half of the real estate, nor 
 to the whole of the personal property. (n) 
 
 See distinction taken between widow of testate and widow of 
 intestate.(ri) 
 
 (K) Smith v. McConnett, 17 111. 135 ; (K) Tyson et ux. v. Postlethwaite, 13 
 
 Botsford v. O'Conner, 57 id. 72. 111. 728. 
 
 (i) Detrick v. Migatt, 19 111. 146 ; (1) Rawson v. Hawson, 52 111. 62. 
 
 McGonnel v. Smith, 23 id. 611. (m) Brown v. Pitney, 39 111. 469 , 
 
 (j) Kane County v. Herrington, 50 Lessley v. Lessley, 44 id. 527. 
 
 111. 332. (n) Lessley v. Lessley, 44 111. 527 
 
 McMurphy v. Boyles, 49 id. 110.
 
 272 APPEALS. [CH. XI. 
 
 Guardianship, etc. 
 
 CHAPTER XL 
 
 APPEALS. * 
 
 1. Appeals when allowed in the cases in the administration of estates. 
 
 2. In guardianship. 
 
 3. Praying appeal. 
 
 4. How prayed. 
 
 5. Bond on appeal. 
 
 6. Security for costs by non-residents. 
 
 7. The requisites of the bond. 
 
 8. The bill of exceptions. 
 
 9. In cases of wills. 
 
 1. APPEALS shall be allowed from all judgments, orders or decrees 
 of the county court in all matters arising under this act, to the cir- 
 cuit court, in favor of any person who may consider himself 
 aggrieved by any judgment, order or decree of such court and from 
 the circuit court to the supreme court, as in other cases, and bonds 
 with security to be fixed by the county or circuit court, as the case 
 may be.() 
 
 Appeals and writs of error may be taken and prosecuted from the 
 final orders, judgments and decrees of the county court to the 
 supreme [appellate] court in proceedings, * * on the application 
 of executors, administrators, guardians and conservators for the 
 sale of real estate. Such appeals and writs of error shall, when not 
 otherwise provided, be taken and prosecuted in the same manner 
 as appeals from and writs of error to circuit court. (b) 
 
 In all cases when an executor or administrator shall take an 
 appeal from the judgment, decree or order of any court or justice of 
 the peace to the county, circuit or supreme court, or when he may 
 prosecute writs of error or certiorari, the appeal, certiorari or super- 
 sedeas bond shall be conditioned to pay the judgment or decree, with 
 costs, in due course of administration ; in all other respects such 
 bonds shall be in the form prescribed by law in other cases, (c) 
 
 (a) Cothran's Stats.. 81, 123 ; R. S. (b) Rev. Stats., 1874, 344, 188. 
 1874, 126, 123. (c) 124, R. S. 1874, p. 126. 
 
 *This subject with the decisions may be found fully delineated and supported, with 
 the authorities In our volumes on common law and chancery practice. 2 Hill's 
 Common Law ; Hill's Chan. Pr.
 
 CH. XI.] APPEALS. 272 A. 
 
 Guardianship, etc. 
 
 2. APPEALS shall be allowed to the circuit court from any order or 
 judgment made or rendered under this act, upon the appellant 
 giving such bond and security as shall be directed by the court ; but 
 no appeal from an order removing a guardian shall in anywise affect 
 such order, until the same be reversed.(d)' 
 
 Appeals may be taken from the final orders, judgments and 
 decrees of the probate courts to the circuit courts of their respective 
 counties, in all matters, except in proceedings, on the application of 
 executors, administrators, guardians and conservators, for the sale 
 of real estate, upon the applicant giving bond and security in such 
 amount and upon such condition as the court shall approve, and upon 
 such appeal the case should be tried de novo. Appeals and writs 
 of error may be taken and prosecuted from the final orders and 
 decrees of the probate court to the supreme [appellate] court, in 
 proceedings on the application of executors, administrators, guard- 
 ians and conservators for the sale of real estate. Such appeals 
 and writs of error, when not otherwise provided, shall be taken and 
 prosecuted in the same manner as appeals from and writs of error 
 to the circuit court, (e) 
 
 The conflicting statutes above exhibited have not yet been sub- 
 mitted to the supreme court in such manner that a decision has 
 been rendered. As to county courts sitting in probate by the 68th 
 section of the statute regulating the administration of estates, it is 
 beyond doubt, the appeal will be taken to the circuit court, as from 
 a justice of the peace ; that is within twenty days from that on 
 which the judgment is rendered. This, of course, excludes the 
 day on which the judgment is rendered, and the bond must be 
 filed in apt time. (/) It would seem that appeals from the probate 
 courts must be perfected within the particular term of court at 
 which judgment is rendered. This was the result arrived at both 
 in the circuit court of Cook county (MCALLISTER, J.) and the 
 appellate court of the first district, in Falch v. Eigenmann, Ad/n'r, 
 etc., unreported. 
 
 In Fowler v. Perkins, 77 111. 271, the supreme court has held that 
 the statute of 1874, having relation to the perfecting of appeals 
 
 (d) An act in regard to guardians and (e) Act April 27. 1877 ; id. 426. 
 wards. Cotkran's Stats., 774, 43. (/) Darwin v. Jones, 82 111. 107.
 
 272B APPEALS. [CH. XI. 
 
 Guardianship, etc. 
 
 from final judgments of the county courts, in respect to taxes, is 
 not imperative, that such appeals may still be carried to the cir- 
 cuit court. This ruling would seem also to include the judgments 
 of such courts on the application of executors, administrators, 
 guardians and conservators, for the sale of real estate. The lan- 
 guage of the act is that they may be taken directly to the appellate 
 court, so it does not repeal, by implication, the provisions of the 
 original act. The appellant may elect the tribunal into which he 
 will carry his cause.(^) 
 
 In regard to probate courts, however, a different rule applies. 
 As to them it would seem, that the provision as to appeals must be 
 strictly followed, the act being specific as to the practice in that 
 court, and of a later date than any which have been referred to the 
 appellate tribunals. 
 
 In taking appeals to the circuit court, the ^practice is the 
 same as that in perfecting appeals to the supreme court, hence 
 exceptions must be taken and preserved by bill of exceptions and the 
 record perfected as in trials in the circuit courts. (Hulett v. Ames, 
 74 111. 253.) 
 
 Where an appeal lies to the circuit court, a further appeal lies 
 from its judgment to the appellate or supreme court, as the case 
 may be. ( U. S. Express Co. v. Merrits, 72 111. 293.) 
 
 An appeal may be taken from the court sitting in probate as to 
 any one item allowed an administrator in his account. Such 
 appeal does not bring before the appellate tribunal the whole ac- 
 count, but the trial, which is de novo, will be confined to the item 
 appealed from. (Morgan v. Morgan, 83 111. 196.) 
 
 A judgment of the circuit court reversing a judgment rendered 
 in the county court and remanding the cause is not a final judg- 
 ment from which an appeal will lie. (Phelps v. Dolan, 75 111. 90; 
 Wright v. Smith, 76 id. 216.) 
 
 3. THE APPEAL is prayed usually at the time of rendering the 
 
 (g) See Ashford v. The People, 82 111. 214.
 
 CH. XI.] APPEALS. 273 
 
 In probate. 
 
 adverse judgment order or decree, but it may be prayed at any time 
 during the term at which the judgment order or decree is rendered.(d') 
 
 4. How PEAYED. To pray an appeal, it is only necessary for the 
 party aggrieved, or his counsel, to suggest that " we pray an appeal, 
 if it please the' court, from the (here specify the judgment order or 
 decree appealed from), and ask your honor to fix the bond on 
 appeal." 
 
 The court will then fix the amount of the bond and the time with- 
 in which the appeal is to be perfected. At the same term, and within 
 the time fixed, take the bond properly executed with the securities 
 personally before the judge, or the court, if it be open, and they will 
 be examined, and if approved the bond will be filed and the appeal 
 perfected. The transcript from the record should be made and the 
 case certified into the appellate court.(e) 
 
 5. BOND ON APPEAL. 
 
 [As in form, supra, page 226, to asterisk, then continue thus :] 
 
 The condition of the above obligation is such, that whereas the said , 
 
 at the term of the county court, in and for the county of , to wit : 
 
 on day of , A. D. 18 , being one of the days of said term, recov- 
 
 ered an allowance against the estate of , deceased, for the sum of 
 
 dollars, which allowance was ordered by the court to be paid, in due course of 
 administration, from which allowance by an order of the court, the said 
 of the said estate has taken an appeal to the . Now, therefore, if the 
 
 said , aforesaid, shall prosecute said appeal with effect, and shall comply 
 
 with whatever judgment or order may be rendered by said appellate court, 
 upon dismissal or trial of said appeal, then the above obligation to be void, 
 otherwise to remain in full force and effect. 
 
 [SEAL.] 
 [SEAL.] 
 [SEAL.] 
 
 6. Non-resident executors, administrators, guardians and con- 
 servators or trustees, before commencing any proceedings in the 
 courts in Illinois, are required to give security for costs. (/) 
 
 The first step for a non-resident is to file such security.^) 
 
 AN APPEAL BOND by an executor, conditioned to pay the debt 
 " in due course of administration," is good.(7i) 
 
 WAIVEK. All irregularities in taking appeals from the county to 
 
 (d) Ballance v. Frisby, I Scam. 595 ; (/) See chap, xni, infra. 
 McMillen v. Bethold, 40 111. 34 ; Illinois (g) 2 Hill's Com. Law, 625-637. 
 Central R. B. Co. v. Johnson, 40 id. 35. (h) Mason v. John on, 24 111. 159. 
 
 (e) See 2 Hill's Common ~L&\v,Appeal ; 
 Hill's Chan. Pr., Appeal. 
 
 35
 
 274: APPEALS. [CH. XI. 
 
 Guardianship, Wills, etc. 
 
 the circuit court are waived by the appearance of the appellees, with- 
 out objection.(i) 
 
 Where a claim is filed in the probate court and carried up on 
 appeal, the claimant, if he supports his claim, is entitled to the 
 amount and interest, notwithstanding the judgment exceeds the 
 amount of the original claim. 
 
 8. The appellant, from the probate court to the circuit court, 
 who neglects to tender A BILL OF EXCEPTIONS, as required by law, 
 cannot himself object, in the supreme court for the first time, to 
 want of jurisdiction in the circuit court by reason of such neg- 
 lect.^) 
 
 Where a cause is appealed from the probate court to the circuit 
 court, and the parties agree that the case be tried there on its merits, 
 and it appears that the probate court had not jurisdiction of the 
 cause, but the circuit court had, the circuit court may try the cause 
 and render judgment as if the cause had been commenced there, 
 but cannot direct the probate court to issue execution on the judg- 
 ment.^) 
 
 9. APPEAL IN PROBATE OF WILLS, AND MODE OF TRIAL. Appeals 
 may be taken from the order of the county court, allowing or dis- 
 allowing any will to probate, to the circuit court of the same county, 
 by any person interested in such will, in the same time and manner 
 as appeals may be taken from justices of the peace, except that the 
 appeal bond and security may be approved by the clerk of the 
 county court : and the trial of such appeals shall be de novo. (I) 
 
 PROOF OF WILL ON APPEAL TO CIRCUIT COURT. When the pro- 
 bate of any will and testament shall have been refused by any 
 county court, and an appeal shall have been taken from the order or 
 decision of such court refusing to admit such will to probate, into 
 the circuit court of the proper county, as provided by law, it shall 
 be lawful for the party seeking probate of such will to support the 
 same on hearing in such circuit court, by any evidence competent to 
 establish a will in chancery ; and, in case probate of such will shall 
 be allowed on such appeal, it shall be admitted to probate, liable, 
 however, to be subsequently contested, as provided in the case of 
 wills admitted to probate in the first instance, (m) 
 
 (i) Mitchell v. Jacobs, 17 111. 235. See Hill's Com. Law, Appeals; Hill's 
 
 (j) Welch v. Wallace, 3 Gilm. 490. Chan. Pr., Appeals, 
 (k) Allen v. Belcher, 3 Gilm. 594. (f) 14, R. S. 1874, p. 1104. 
 
 (m) 13, id.
 
 CH. XII.J MISCELLANEOUS MATTERS. 275 
 
 Insolvent estates. 
 
 CHAPTER XII. 
 
 MISCELLANEOUS MATTERS. 
 
 1. The executor or administrator, or his security, not chargeable beyond the 
 
 assets of the testator or intestate. 
 
 2. Specific performance of the contracts made by decedent may be ordered. 
 
 3. The books of account of the decedent to be subject to the inspection of all 
 
 concerned. 
 
 4. Estate, if found insolvent after two years from the grant of administra- 
 
 tion, to be so entered. 
 
 5. The executor or administrator may be coerced to apply for an order to sell 
 
 real estate. 
 
 6. County courts to have power to enforce due observance of their process, 
 
 judgments, orders and decrees, the same as the circuit courts. 
 
 7. The sheriff to serve and execute all process, papers, etc. 
 
 8. Executors and administrators to receive compensation not to exceed six 
 
 per centum on amount of personal estate, nor more than three per 
 centum on amount of proceeds of the real estate sold, with allowances 
 for costs and charges in collecting the estate and defending claims. 
 
 9. Construction of the act relating to administration to be liberal, and to 
 
 apply equally to executors and administrators, etc. 
 10. Repeal of former laws with saving clause. 
 
 1. MISCELLANEOUS PROVISIONS. No executor or administrator, 
 or his security, shall be chargeable beyond the assets of the testator 
 or intestate by reason of any omission or mistake in pleading, or by 
 false pleading of such executor or administrator.(a) 
 
 2. All contracts made by the decedent may be performed by the 
 executor or administrator when so directed by the county court.(J) 
 
 3. The books of account of any deceased person shall be sub- 
 ject to the inspection of all persons interested therein.(c) 
 
 4. If, after the expiration of two years from the time adminis- 
 tration is granted on an estate, such estate is found to be insolvent, 
 it shall be so entered of record by the county court, and such order 
 made. No action shall be maintained against the executor or ad- 
 ministrator of such estate except at the costs of the party suing ; 
 but persons entitled thereto shall receive their proportions of such 
 estate as herein provided.(c?) 
 
 5. Whenever real estate is required to be sold for the payment of 
 
 (a) 125, R. S. 1874, p. 127. (c) 127, R. S. 1874, p. 127. 
 
 (6) 126, id. (d) % 128, id.
 
 276 MISCELLANEOUS MATTERS. [CH. Xil. 
 
 Compensation, etc. 
 
 debts, the court' may make all necessary orders to coerce the execu- 
 tor or administrator to make immediate application for an order to 
 sell such real estate, (e) 
 
 6. County courts shall have power to eftforce due observance 
 of all orders, decisions, judgments and decrees made by them in 
 discharge of their duties under this act ; and they may issue attach- 
 ments for contempt offered such courts or its process by any execu- 
 tor, administrator, witness or other person; and may fine and 
 imprison, or either, all such offenders, in like manner as the circuit 
 courts may do in similar cases.(/) 
 
 7. The sheriff shall, when required by the court, attend all ses- 
 sions of said court, either by himself or deputy, and shall preserve 
 good order in the court and execute all writs of attachment, sum- 
 monses, subpoenas, citations, notices and other processes which may, 
 at any time, be legally issued by such court, and make return 
 thereof. And such sheriff shall be entitled to the same fees as he is 
 allowed for similar services in the circuit court. (</) 
 
 8. Executors and administrators shall be allowed, as compen- 
 sation for their services, a sum not exceeding six per centum on 
 the amount of personal estate, and not exceeding three per centum 
 on the money arising from the sale of real estate, with such addi- 
 tional allowances for costs and charges in collecting and defending 
 the claims of the estate, and disposing of the same as shall be rea- 
 sonable.^) 
 
 9. All the provisions in this act relative to an executor or admin- 
 istrator shall apply and extend to an executrix or administratrix, or 
 executors or administrators, and vice versa, unless otherwise expressly 
 provided for ; and whenever the singular number of the masculine 
 gender is mentioned, the provisions shall apply to two or more, and 
 to the feminine gender, as the case may require ; and this act shall 
 be liberally construed so that its true intent and meaning may be 
 fully carried out.(i') 
 
 10. REPEAL OF FORMER LAWS. The following acts and parts of acta 
 are hereby repealed : Chapter 109 of the Eevised Statutes of 1845, 
 entitled "Wills," except sections one, two, three, four, five, six, 
 seven, eight, nine, ten, eleven, twelve, thirteen, fourteen, fifteen, six- 
 teen, seventeen, eighteen, forty-six, forty-seven, fifty-one, fifty-two, 
 
 (e) % 129, R. S. 1874, p. 127. (h) 132, R. S, 1874, p. 127. 
 
 (./) 130, id. (i) | 133, id. 
 
 (g) % 131, id.
 
 CH. XII.] MISCELLANEOUS MATTEBS. 277 
 
 Repeal of former laws. 
 
 fifty- three, fifty-four and one hundred and twenty-eight; an act 
 entitled "An act authorizing administrators and executors from 
 other States to prosecute suits in this State," approved March 3, 
 1845 ; an act entitled "An act to amend an act relative to wills and 
 testaments, executors and administrators, and the settlement of 
 estates," approved February 21, 1845 ; an act entitled " An act fur- 
 ther to define the duties of probate justices," approved February 19, 
 1847 ; an act entitled " An act to amend an act concerning wills," 
 approved February 11, 1847; an act entitled "An act authorizing 
 the resignation of certain officers," approved February 10, 1849 ; an 
 act entitled " An act to amend the laws in relation to the settlement 
 of estates," approved February 17, 1851; an act entitled "An act 
 respecting executors, administrators, guardians and their securities," 
 approved February 12, 1853 ; an act entitled " An act to regulate 
 appeals in certain cases," approved February 8, 1853 ; an act entitled 
 '' An act conferring additional power upon administrators de bonis 
 non, and for other purposes," approved February 14, 1855 ; an act 
 entitled " An act to provide for the manner of selling real estate of 
 deceased persons for the payment of debts," approved February 18, 
 1857; sections nine, ten and twelve of an act entitled "An act to 
 reform the probate system," approved February 21, 1859 ; an act 
 entitled " An act amending section four of the act entitled ' Wills,' " 
 approved February 24, 1859 ; an- act entitled " An act to amend 
 chapter one hundred and ten, Revised Statutes, entitled ' Wills,' " 
 approved March 7, 1867 ; an act entitled " An act to amend section 
 one hundred and thirty-four of chapter one hundred and nine of the 
 Revised Statutes of 1845," approved April 8, 1869 ; an act entitled 
 "An act to facilitate the settlement of partnership interest of 
 deceased persons' estates," approved March 26, 1869 ; an act entitled 
 " An act to amend chapter one hundred and nine of the Revised 
 Statutes, entitled 'Wills,'" approved March 31, 1869; and all other 
 acts and parts of acts inconsistent with the provisions of this act : 
 Provided, that this section shall not affect any suits that may be 
 pending, or any rights that have accrued when this act shall take 
 affect" (/) 
 
 (f) % 135, act April 1, 1372.
 
 278 MISCELLANEOUS MATTERS. [CH. Xli 
 
 Miscellaneous provisions of the act of April 1, 1872. 
 
 MISCELLANEOUS PROVISIONS OF THE ACT OF APRIL 1, 1872. 
 
 1. Power of administrator to collect. 
 
 2. When his appointment shall cease. 
 
 3. General provisions as to bonds of executors and administrators. 
 
 4. Causes for revocation of letters testamentary and of administration. 
 
 5. Causes for removal. 
 
 6. Surety on bond may apply to be released. 
 
 7. New appointment to be made if executor or administrator fail to give new 
 
 bond. 
 
 8. Letters cum testamento annexe. 
 
 9. Co-executor or co-administrator may be appointed. 
 
 10. Liability of administrator, who has been discharged, to his successor in 
 trust. 
 
 1. POWER OF ADMINISTRATOR TO COLLECT. Every collector so 
 appointed shall have the power to collect the goods, chattels and 
 debts of the said deceased, according to the tenor of the said letters, 
 and to secure the same at such reasonable and necessary expense as 
 shall be allowed by the court; and the said court may authorize 
 him, immediately after the inventory and appraisement of such 
 estate, to sell such as are perishable or may depreciate by delay, and 
 to account for the same; and for the whole trouble incurred by such 
 collector the court may allow such commission on the amount of 
 said personal estate as shall be actually collected and delivered to 
 the proper executor or administrator, as aforesaid, as said court may 
 deem just and reasonable. Provided, the same shall not exceed six 
 per cent on the amount stated in such inventory or bill of appraise- 
 ment.^) 
 
 MAY SUE, ETC. Every such collector may commence suits for 
 debts due to the decedent, and release the same on payment thereof ; 
 and no such suit shall abate by the revocation of his letters, but the 
 same may be prosecuted to a final decision, in the name of and by 
 the executor or administrator to whom letters testamentary or of 
 administration may be granted.(Z) 
 
 2. On the granting of letters testamentary or of administration, 
 the power of any such collector, so appointed, shall cease, and it 
 shall be his duty to deliver, on demand, all property and money of 
 the deceased, which shall have come to his hands or possession 
 
 (*) 15, R. S. 1874, p. 107. (0 16, R. S. 1874, p. 107.
 
 CH. XII.J 3IISCELLANEOUS MATTERS. 279 
 
 Miscellaneous provisions of the act of April 1, 1872. 
 
 (saving such commission as may be allowed by the court, as afore- 
 said), to the person or persons obtaining such letters ; and, in case 
 any such collector shall refuse or neglect to deliver over such prop- 
 erty or money to his successor, when legal demand is made therefor, 
 such person so neglecting or refusing shall be liable to pay twenty 
 per cent over and above the amount of all such properly or money 
 as comes to his hands by virtue of his administration, and is not 
 paid or delivered over as aforesaid, and shall forfeit all claim to any 
 commission for collecting and preserving the estate, which said 
 twenty per cent, together with all damages which may be sustained 
 by reason of the breach of any bond, which may at any time be 
 given by any such collector, may be sued for and recovered by the 
 person or persons to whom letters testamentary or of administration 
 may be granted, for the use of the estate of such decedeni(m) 
 
 3. GENERAL PROVISIONS IN REGARD TO BONDS OF EXECUTORS 
 AND ADMINISTRATORS. When two or more persons are appointed 
 executors or administrators of the same estate, the court may take 
 a separate bond, with sureties, from each, or a joint bond, with 
 sureties, from all.(w) 
 
 SUITS ON BONDS, ETC. All bonds which may at any time be 
 given by any executor or administrator, either with or without the 
 will annexed, or de bonis non, to collect, or public administrator, 
 may be put in suit and prosecuted against all or any one or more of 
 the obligors named therein, in the name of the people of the State 
 of Illinois, for the use of any person who may have been injured 
 by reason of the neglect or improper conduct of any such executor 
 or administrator, and such bond shall not become void on the first 
 recovery thereon, but may be sued upon, from time to time, until the 
 whole penalty shall be recovered. Provided, that the person for 
 whose use the same is prosecuted shall be liable for all costs which 
 may accrue in the prosecution of the same, in case the plaintiffs fail 
 in their suit; and certified copies of all such bonds, under the seal 
 of the clerk of the county court, shall be received as evidence tc 
 authorize such recovery in any court of law or equity of competent 
 jurisdiction.(o) 
 
 4. REVOKING LETTERS AND REQUIRING NEW BONDS. County 
 
 courts shall revoke letters of administration in all cases where the 
 
 (m) 17, R. S. 1874, p. 107. Allen, 86 111.166; Tucker v. People, 87 
 
 (>t) k 24, R. S. 1874, p. 109. 111. 76. 
 
 (o) 25, R. S. 1874, p.l09;Peopkv.
 
 280 MISCELLANEOUS MATTEES. [CH. XII. 
 
 Miscellaneous provisions of the act of April 1, 1872. 
 
 same were granted to any person upon the false and fraudulent pre- 
 tense of being a creditor of the estate upon which administration 
 is granted, or upon any other false pretense whatever. ( ;;) 
 
 FEAUD, ETC. When it appears that such letters were fraudulently 
 obtained by such administrator, the court revoking the same shall 
 give judgment against the administrator for all costs of suit.(</) 
 
 DISCOVEEY OF WILL TO EEVOKE. If, at any time after letters of 
 administration have been granted, a will of the deceased shall be 
 produced and probate thereof granted according to law, such letters 
 of administration shall be revoked, (r) 
 
 REVOCATION or LETTEES TESTAMENTAEY, ETC. In all cases where 
 a will, testament or codicil shall have been proved and letters granted 
 thereon, as aforesaid, and such will shall thereafter be set aside by 
 due course of law, the letters granted thereon shall be revoked.(s) 
 
 INCAPACITY or EXECUTOE OE ADMINISTEATOE; CAUSE FOE EEVO- 
 CATION. The county court may revoke all letters testamentary, or 
 of administration, granted to persons who become insane, lunatic or 
 of unsound mind, habitual drunkards, are convicted of infamous 
 crime, waste or mismanage the estate, or who conduct themselves in 
 such manner as to endanger their co-executors, co-administrators or 
 securities, in all which cases the court shall summon the person 
 charged to be in default or disqualified, as aforesaid, to show cause 
 why such revocation should not be made. "When revocation is made, 
 the reason therefor shall be stated at large upon the record, (t) 
 
 5. EEMOVAL OF EXECUTOE OE ADMINISTEATOE, CAUSE FOE, ETC. 
 When it shall come to the knowledge of the county court, by affi- 
 davit or otherwise, that any executor or administrator of an estate 
 is about to remove or has removed beyond the limits of this State. 
 it shall be the duty of such court to cause a notice to be published 
 in some newspaper in the county where letters testamentary or of 
 administration were granted, for four weeks successively; and if no 
 newspaper is published in said county, then by posting up a notice 
 at the court-house door, notifying the said executor or administrator 
 to appear before him within thirty days after the date of such 
 notice, and make a settlement of his accounts as required by law. If 
 the executor or administrator neglects or refuses to make such set 
 
 (p) 26, R. S. 1874, p. 109. (*) 29, id. ; see p. 99, supra, 
 
 (q) S 27, id. (t) 30, id. 
 
 (r) 28, id.
 
 CH. XII.] MISCELLANEOUS MATTERS. 281 
 
 Miscellaneous provisions of the act of April 1, 1872. 
 
 tlement, it shall be the duty of said county court to remove him 
 from office.(w) 
 
 ADDITIONAL SECURITY REQUIRED ; HOW AND WHEN. When any 
 court grants letters testamentary or of administration, of the estate 
 of any person deceased, without taking good security as aforesaid, 
 or when any security heretofore or hereafter taken becomes insuffi- 
 cient, the court may, on the application of any person entitled to 
 distribution, or otherwise interested in such estate, require such exec- 
 utor or administrator to give other and sufficient security ; and in 
 default thereof the letters testamentary or of administration shall 
 be revoked, and administration de bonis non granted; but all acts 
 done according to law by the executor or administrator so removed 
 prior to such revocation shall be valid.(v) 
 
 SURETY, HOW RELIEVED. When a surety for an executor or an 
 administrator, or his representatives, may conceive himself or them- 
 selves in danger of suffering by the mismanagement of such execu- 
 tor or administrator, and shall petition the county court for relief, 
 in writing, setting forth the cause of such apprehension, the said 
 court shall examine such petition, and, if the court shall deem the 
 cause therein set forth sufficient to entitle such petitioner or peti- 
 tioners to relief, if true, he shall summon such executor or adminis- 
 trator to show cause against such petition; and may dismiss the 
 same, or direct such executor or administrator either to give good 
 counter security to save such petitioner or petitioners harmless, or to 
 give a new bond in the like penalty as the first ; and, upon refusal or 
 neglect to give such counter security or new bond, the letters 
 granted to such executor or administrator may be revoked.(w) 
 
 6. SURETY MAY PETITION. Whenever any surety on the bond* 
 of any executor or administrator desires to be released from further 
 liability upon any such bond, he may petition the court in which 
 said bond is filed for that purpose, and upon notice being given to 
 the executors or administrators, as the court may direct, the court 
 shall compel such executor or administrator, within a reasonable 
 time, to be fixed by the court, to settle and adjust his accounts, and 
 pay over whatever balance may be found in his hands, and file in 
 such court a new bond in such penalty, and security, as may be ap- 
 
 (M) 81, R. S. 1874, p. 110. (to) % 33, id. 
 
 () 32, id. 
 
 * The bond relates back to the grant of administration. 34, R. S. 1874, p. 110. 
 
 36
 
 282 MISCELLANEOUS 3i ATT;:;;.-. [en. xn. 
 
 Miscellaneous provisions of the act of April 1, 1872. 
 
 proved by the court, which being done, the surety may be discharged 
 from all liability on such bond.(z) 
 
 7.- NEW APPOINTMENT, REVOCATION, ETC. If such executor or 
 administrator shall fail to comply with such order within the time 
 fixed by the court, the court shall order that such executor or ad- 
 ministrator be removed from his office, and shall appoint some other 
 fit person as administrator, with the will annexed, or de bonis non, 
 who shall give bond as required by law. And in case of the failure 
 of the former executor or administrator to settle his accounts and 
 to pay over to the person so appointed all moneys, effects or choses 
 in action in his hands by reason of his said office, then such suc- 
 cessor shall proceed to collect the same by suit against such execu- 
 tor or administrator, or by suit upon his bond ; and upon collection 
 thereof such surety shall be discharged, (y) 
 
 8. LETTERS CUM TESTAMENTO ANNEXO. When the sole or sur- 
 viving executor or administrator dies without having fully adminis- 
 tered the estate, if there is personal property not administered, or 
 are debts due from the estate, or is any thing remaining to be per- 
 formed in the execution of the will, the county court shall grant 
 letters of administration, with the will annexed, or otherwise, as the 
 case may require, to some suitable person, to administer the estate 
 of the deceased not already administered. Provided, that when 
 there is still a surviving executor or administrator, he may proceed 
 to administer the estate, unless otherwise provided, (z) 
 
 9. CO-EXECUTORS OR CO-ADMINISTRATORS MAY BE APPOINTED. 
 Where the letters of one of several executors or administrators are 
 revoked, or one or more of the executors or administrators die or 
 become disqualified, the court may join others in their place, and 
 require additional bonds from the new administrator or administra- 
 tors, or the survivor or survivors, or such as shall not have their 
 powers revoked, shall proceed to manage the estate. When the let- 
 ters of all of them are revoked, or all of such executors or adminis- 
 trators die before final settlement and distribution of the estate. 
 administration, with the will annexed, or de bonis non, shall be 
 granted to the persons next entitled there to. (a) 
 
 10. In all cases where any such executor or administrator shall 
 have his letters revoked, he shall be liable on his bond to such sub- 
 
 (x) % 35, R. S. 1874, p. 110. (z) 37, id. 
 
 (y) 36, R. S. 1874, p. 111. (a) 38, id.
 
 CH. XII.] MISCELLANEOUS MATTERS. 283 
 
 Miscellaneous statutes. 
 
 sequent administrator, or to any other person aggrieved, for any 
 mismanagement of the estate committed to his care; and the subse- 
 quent administrator may have and maintain actions against such 
 former executor or administrator for all such goods, chattels, debts 
 and credits as shall have come to his possession, and which are with- 
 held or have been wasted, embezzled or misapplied, and no satisfac- 
 tion made for the same.(J) 
 
 MISCELLANEOUS STATUTES. 
 
 1. Specific performance of contract in case of vendor's death, etc., how enforced. 
 
 2. Executor or administrator may, of record, discharge a mortgage or trust 
 
 deed. 
 
 3. Deposit of funds on final settlement belonging to unknown heirs or claim- 
 
 ants and non-residents. 
 
 4. Foreclosure or sci.fa. necessary in case of death of mortgagee or debtor 
 
 requisite. 
 
 5. When surety is released in case of death of the maker of a joint note. 
 
 6. Foreign guardian may receive the estate of his ward ; procedure prescribed. 
 
 7. Competency of parties as witnesses. 
 
 8. The law of evidence in probate unchanged. . 
 
 9. Miscellaneous decisions. 
 
 10. Proclamations by the sheriff in opening and closing, and at adjournment. 
 
 11. Oaths, witnesses, jurors, etc. 
 
 1. SPECIFIC PERFORMANCE OF CONTRACTS IN CASE OF VENDOR'S 
 
 DEATH, ETC. By section 31 of Ke vised Statutes, 1845, chapter 24, 
 " Conveyances," it was provided, that when any person or persons 
 have entered into any contract, bond or memorandum in writing, 
 to make a deed or title to land in this State, for a valuable consider- 
 ation, and shall depart this life, or have died heretofore without hav- 
 ing executed or delivered said deed, it shall and' may be lawful for 
 any court having chancery jurisdiction in the proper circuit in 
 which such case shall arise, to make decree compelling the executors 
 or administrators of such deceased person to execute and deliver 
 such deed to the party having such equitable right as aforesaid to 
 the same, or his heirs, according to the true intent and meaning of 
 said contract, bond or memorandum of the deceased ; and all such 
 deeds shall be good and valid in law. Chapter 29, E. S. 1874, p. 270. 
 gives a more comprehensive law. 
 
 (6) 39, R. S. 1874, p. 111.
 
 284 MISCELLANEOUS MATTEKS. [CH. XII. 
 
 Miscellaneous statutes. 
 
 The courts are prohibited from making such decree, except 
 upon the petition in writing of the person entitled to the benefit of 
 same, or his heirs, setting forth the contract, etc., and fully describing 
 the lands to be conveyed, nor until the parties so applying for such 
 title shall have given reasonable notice of the time and place of 
 such application to the executors, administrators and heirs of such 
 decedent, and shall have fully paid, etc., the consideration of such 
 contract, etc., according to the true intent, tenor and effect thereof. 
 Where minor heirs are interested in such proceeding, reasonable 
 notice of such application shall be given to the guardian or guard- 
 ians of such minors, and if there be no guardian, then the said 
 court (of chancery] shall appoint a guardian or guardians to litigate 
 and act in such case. 
 
 The executors, administrators or heirs of such decedent, etc., 
 who made such contract, etc., in his or her life-time, for such 
 conveyance, for a valuable consideration, when such consideration 
 has been paid, etc., to make application in writing (by petition it 
 is supposed), to obtain such decree, upon giving notice to the party 
 to whom such deed is intended to be made, and under the same con- 
 dition as provided in this chapter (by the sections above given ; see 
 act of 1873, as amended in 1873). 
 
 Section 6 of the new act provides that, in all cases where such ap- 
 plication shall be made, the court shall have power to continue the 
 same from term to term, to obtain such evidence as the case requires; 
 and no decree for such conveyance, upon such applications, shall be 
 made unless the said court (of chancery) shall be satisfied that decree 
 can be made without injustice to any heir or creditor of the de- 
 ceased, and that the same is just and equitable, and section 7 directs 
 that a complete record of such petition and proceedings thereon be 
 made, and that the court shall decree payment of costs as shall 
 appear right and equitable. (c) 
 
 There is little to be said under these statutes, except 
 
 1. That & petition in writing must be presented to the proper chan- 
 cery court in the proper circuit (this is, of course, the circuit court, 
 unless some local court have jurisdiction in chancery of the matter). 
 The proper circuit would be that of the county where the land lies, 
 unless the defendants, or the major part, reside in another county. 
 
 (c) See Rev. Stat., 1845, ch. 24, " Con- 163, Chancery Code ; Laws 1872, 293 ; 
 veyances," 31 to 36 inclusive ; id. 277-279 ; Laws 1873, 70. R. S. 1874, 
 Purple, pp. 160, 161 ; Scates, pp. 162, p. 270.
 
 CH. Xll.J MISCELLANEOUS MATTERS. 285 
 
 Miscellaneous statutes. 
 
 Ordinarily, however, it is in the circuit court of the county where 
 the decedent lived and died. 
 
 2. This petition must be in the ordinary chancery form. It may 
 be presented by the party interested in getting the deed, or it may 
 be presented by the executor, administrator or heir of the decedent. 
 
 3. The petition must set forth the contract, etc., sought to be 
 enforced, must fully describe the lands, should name the executor, 
 etc., and heirs, and ought to allege that the decree sought will work 
 no injustice to any heir or creditor of decedent, and show that it is 
 just and equitable. This, of course, will flow from the facts. It 
 should show that the consideration, etc., has been fully paid. 
 
 4. The notice required by the statute should be given in this 
 respect ; where any of the parties are non-resident, the usual publi- 
 cation should be made. This notice is not the usual summons ; it 
 is distinct, and should be given, as directed by the statute, by the 
 party interested, if petitioner, or by the executor, etc., if petitioner. 
 
 5. The court has power to appoint a guardian ad litem, or rather 
 one pendente lite,' where there is a* minor, and no guardian appointed. 
 It would seem that if the application be made by an heir, and he 
 have a guardian, the proceeding can be had by such guardian in the 
 name of the heir, but in no other case can the guardian institute 
 such proceedings. He can unite with the other heirs. 
 
 6. As to costs, if the delay in making the deed was by the neglect 
 of the decedent, his estate should pay the costs ; if not, then the 
 party benefited. But this is in the discretion of the court, so that 
 it be equitable in view of the facts. 
 
 7. It would seem that full power is given the court to act as in 
 other cases, by way of continuance, etc.(d) 
 
 3. A mortgage or trust deed of real or personal property may be 
 released by the executor or administrator, heir or assignee of record 
 of the mortgagee or trustee, and such instrument may be acknowl- 
 edged or proved in the same manner as deeds of conveyance of 
 lands, (e) 
 
 (cT> See 6, R. S. 1874, p. 270. (e) % 9, R. S. 1874, p. 712.
 
 286 MISCELLANEOUS MATTERS. [CH. XII. 
 
 Miscellaneous statutes. 
 
 4. The law of 1869, in force March 30, 1869, "An act to protect 
 widows and orphans from sacrifice of their property by sales upon 
 mortgages and trust deeds," provides, that in case of the death of 
 the grantor, in any mortgage or trust deed given for the security of 
 money, no sale shall be made by virtue of any power or sale con- 
 tained in such mortgage or trust deed, or given in relation thereto, 
 but the same may be foreclosed as a mortgage not having such power 
 may now be foreclosed at law, or in chancery (at law by scire facias, 
 in chancery by bill of complaint). (g) 
 
 By act of May 7, 1879, like provision is made as to all real estate 
 within this State, mortgaged or incumbered by trust deed or other 
 conveyance in the matter of a mortgage, executed after July 1, 1879. 
 
 5. Whenever the principal maker of any note, bond, bill or other 
 instrument in writing, shall die, if the creditor shall not, within 
 two years after the granting of letters testamentary or of admini- 
 stration, present the same to the proper court for allowance, the 
 sureties thereon shall be released from payment thereof to the 
 extent that the same might have'been collected of such estate if 
 presented in proper time, but this section shall not be construed to 
 prevent the holder from proceeding against the sureties within said 
 two years.(7i) 
 
 6. FOREIGN GUARDIAN. When there is no guardian in the State 
 of a non-resident minor, his guardian, appointed and qualified ac- 
 cording to the law of the place where the minor resides, having first 
 obtained the authority of the county court of the county in this 
 State where any of the personal estate of such minor may be, so to 
 do, may collect, by suit or otherwise, receive and remove to such 
 place of residence of the minor, any personal estate of such 
 minor, (i) 
 
 When there is a guardian in this State of a non-resident minor, 
 the court may authorize such guardian to pay over and transfer the 
 whole or any part of the ward's property to the non-resident guardian 
 of such ward, appointed and qualified according to the law of the 
 
 (g) 13, R. S. 1874, p. 713. (t) 44, R. S. 1874, p. 563 : Cotkran's 
 
 (h) 3, 4, R. S. 1874, p. 1049. Statutes, p. 774.
 
 CH. XII.] MISCELLANEOUS MATTERS. 287 
 
 Miscellaneous statutes. 
 
 place where the ward resides, upon such terms as shall be proper in 
 the premises, requiring receipts to be passed; and when the whole 
 estate in the hands of the resident guardian shall be so transferred, 
 may discharge him. (j ) 
 
 But the court shall not grant the authority mentioned in sec- 
 tions 44 and 45, except upon petitition of such foreign guardian, 
 signed by him and verified by his affidavit, and unless he shall 
 file with the court properly authenticated copies of his letters of 
 guardianship, and bond, with security in double the amount of 
 the value of the property and estate sought, which shall have been 
 executed and filed in the court which appointed such guardian. 
 And unless it shall appear to the court that a removal of such 
 estate will not conflict with the interest of the ward or the terms of 
 limitation attending the right by which the ward owns the same, or 
 the rights of creditors, the resident guardian shall have ten days' 
 previous notice of such application. (&) 
 
 7. COMPETENCY OF PAETIES AS WITNESSES. No party to any 
 civil action, suit or proceeding, or person directly interested in the 
 event thereof, shall be allowed to testify therein of his own motion, 
 or in his own behalf, by virtue of the foregoing section, when any 
 adverse party sues or defends as the trustee or conservator of any 
 idiot, habitual drunkard, lunatic or distracted person, or as the 
 executor, administrator, heir, legatee or devisee of any deceased person, 
 or as guardian or trustee of any such heir, legatee or devisee, unless 
 when called as a witness by such adverse party so suing or defend- 
 ing, and also except in the following cases, namely: 1. In any 
 such action, suit or proceeding, a party or interested person may 
 testify to facts occurring after the death of such deceased person, or 
 after the ward, heir, legatee or devisee shall have attained his or her 
 majority. 
 
 2. When in such action, suit or proceeding, any agent of any 
 deceased person shall, in behalf of any person or persons suing or 
 being sued, in either of the capacities above named, testify to any 
 conversation or transaction between such agent and the opposite 
 party or party in interest, such opposite party or party in interest 
 may testify concerning the same conversation or transaction. 
 
 3. Where, in any such action, suit or proceeding, any such party 
 
 0") 45, R. S. 1874, p. 568. (k) 46, id.
 
 MISCELLANEOUS MATTERS. [CH. XII. 
 
 Miscellaneous statutes. 
 
 suing or defending as aforesaid, or any person having a direct interest 
 in the event of such action, suit or proceeding, shall testify in behalf 
 of such party so suing or defending, to any conversation or transac- 
 tion with the opposite party or party in interest, then such opposite 
 party or party in interest shall also be permitted to testify as to the 
 same conversation or transaction. 
 
 4. Where, in any such action, suit or proceeding, any witness, not 
 a party to the record, or not a party in interest, or not an agent of 
 such deceased person, shall, in behalf of any party to such action, 
 suit or proceeding, testify to any conversation or admission by any 
 adverse party or party in interest, occurring before the death and in 
 the absence of such deceased person, such adverse party or party in 
 interest may also testify as to the same admission or conversation. 
 
 5. When in any such action, suit or proceeding, the deposition of 
 such deceased person shall be read in evidence at the trial, any 
 adverse party or party in interest may testify as to all matters and 
 things testified to in such deposition by such deceased person, and 
 not excluded for irrelevancy or incompetency.(Z) 
 
 8. The act relating to evidence (R. S. 1874, pp. 488-496) contains 
 this exception, "Nothing in this act (act of 1867, R. S. 1874, p. 4'ju. 
 8) contained shall in any manner affect the laws relating to the 
 settlement of the estates of deceased persons, infants, idiots, lunatics, 
 distracted persons, or habitual drunkards having conservators, or to 
 the acknowledgment or proof of deeds and other conveyances 
 relating to real estate to entitle the same to be recorded, or to the 
 attestation of the execution of last wills and testaments, or of any 
 other instrument required by law to be attested," which leaves the 
 law of evidence in probate matters where it stood in 1867. (m) 
 
 The repealing section of the revised act in relation to guardian 
 and ward is a resume" of the former laws on that subject.(w) 
 
 (0 See 2 Hill's C. L., Evidence. (ri) 51, act April 10, 1872. See p. 
 
 (m) Cothran's Statutes, 8, p. 665. 7, supra; appendix.
 
 OH. XII. J MISCELLANEOUS MATTERS. 289 
 
 Miscellaneous statutes. 
 
 9. MISCELLANEOUS DECISIONS. Under the Kevised Statutes, an 
 administrator cannot, by his admissions, bind the estate of his in- 
 testate.(w) 
 
 In an action in the name of the people for the use of an adminis- 
 trator upon the official bond of another administrator, upon a dis- 
 missal of the cause, judgment was entered against the plaintiff for 
 costs. This was erroneous, for if the people were plaintiffs, no 
 judgment of costs could be given against them ; if the administrator 
 for whose use the suit was brought, then the judgment should not 
 have been against him personally, but to be paid in due course of 
 adniinistration.(o) 
 
 Executors or administrators must all join, and cannot sue separ- 
 ately^ p) even though some of them have renounced, (q) But any 
 defect of parties on this account would be waived, if not pleaded, in 
 abatement.^) The statute also authorizes executors or adminis- 
 trators to maintain actions for wrongs committed to the property, 
 rights or interests of their testator or intestate, against the wrong- 
 doer, and after his death, against his executors or administrators. 
 The provision, however, does not extend to actions for slander and 
 libel ; assault and battery, false imprisonment, and actions on the 
 case for injuries to the person of the plaintiff and to the person of 
 the testator or intestate are included, (r) 
 
 The proceedings of a court of competent jurisdiction upon a peti- 
 tion of an administrator to sell lands of his intestate for the payment 
 of debts, cannot be attacked collaterally, (s) 
 
 The judgment of a covnty court against an administrator is only 
 prima facie evidence as against the heir of the existence of a debt 
 of the estate ; but when the administrator applies for leave to sell 
 real estate to pay such judgment, the heir, being neither a party 
 nor a privy to it, is not concluded from contesting such application ; 
 if he has joined in taking an appeal from such judgment, he would 
 be bound by the judgment on the appeal. (t) 
 
 (n) Marshall v. Adams, 11 111. 37. (r) 2 R. S., N. Y., 365, 1,2; see 
 
 (o) The People v. Cloud, 50 111. 439. Reed v. Railroad Co., 18 111. 403. 
 
 (p) Smith v. Archer, 53 111. 241 ; (*) Wimberly v. Hurst, 33 111. 166. 
 
 122, R. S. 1874, p. 126. (t) Stone v. Wood, 16 111. 177; see, 
 
 (q) 5 Wend. 313. also, Hopkins v. McCann, 19 id. 113. 
 
 37
 
 290 MISCELLANEOUS MATTERS. [CH. XII. 
 
 Miscellaneous statutes. 
 
 In an action to set aside an administrator's sale of land for a 
 defect in the certificate of publication of the notice of application 
 for leave to sell, in not stating the first and last days of publication, 
 the court will presume, from the recital in the decree of the probate 
 court, that due " notice was given according to law," that the probate 
 court received other and sufficient evidence of the dates of publica- 
 tion.^) 
 
 No particular form is required in the proceedings of an inferior 
 court to render its order a judgment. It is sufficient if it be final, 
 and the party may be injured, (v) 
 
 So where the order of a county court in respect to a claim pre- 
 sented against an estate was, after having taken the matter under 
 advisement, " the court this day after due deliberation rejects the 
 claim," this was held to be a sufficiently formal judgment from which 
 an appeal or certiorari would lie.(v) 
 
 A person, just before his death, delivered his money to be paid 
 over to his family, and the person who received the money was after- 
 ward sued by the administrator of the deceased, on the ground that 
 he had not accounted for all the money so received. Held, that it 
 was erroneous in the court to instruct the jury that "it was not 
 incumbent on the defendant to account for what the deceased did 
 with his money; " that it was for the jury to determine whether the 
 facts and circumstances in the case satisfied them that the deceased 
 had, at the time of his death, more money in his possession than 
 had been accounted for by the defendant, and whether or not there 
 was sufficient prima facie evidence in the case against the defendant, 
 to call upon him to explain how it was that he received no more 
 money from the deceased.(;) 
 
 An executor or administrator could in no case at common law 
 bring an action for a wrong done, either to the person or property 
 of his testator or intestate in his life-time. An action of trespass or 
 trover will, however, lie for an injury to, or the conversion of. the 
 personal property of such testator or intestate in the name of his 
 executor or administrator as plaintiff, though the injury was com- 
 mitted in the life-time of such testator or intestate. This is by a 
 particular statute giving in terms an action of trespass only to an 
 executor, etc., in such case.(a;) But the construction given to the 
 
 (u) Moore v. Neil, 39 111. 256. (w) Eames v. Blackhart, 12 111. 195. 
 
 () Johnson v. OiUett,52 111. 358 ; see (x) 1 Ch. PI. 67. 
 Jones' Forms, 395-402.
 
 CH. XII.] MISCELLANEOUS MATTERS. 291 
 
 Proclamation Oaths. 
 
 provisions of this statute has been very liberal, and its equity is now 
 understood to reach every injury to the personal property of the 
 deceased. Trover, replevin, case or debt, for an escape, or case for 
 removing goods under execution, without paying the year's rent, 
 etc., are accordingly held to lie in the right of the deceased.(y) 
 
 In all other cases, however, the action for a wrong dies with the 
 person. 
 
 10. PROCLAMATION BY SHERIFF OR DEPUTY. 
 
 OPENING AT THE BEGINNING OF THE TEBM. 
 
 Hear ye ! Hear ye ! ! Hear ye ! ! ! the honorable the county court of the county 
 of , and State of Illinois, is now opened and in session in course for the 
 
 term. 
 
 ADJOURNMENT. 
 
 Hear ye ! Hear ye ! ! Hear ye ! ! ! the honorable the county court of the county 
 of , and State of Illinois, is now adjourned, and will stand adjourned 
 
 until o'clock to-morrow morning (or as the case may be). 
 
 OPENING AFTER ADJOURNMENT. 
 
 Hear ye ! Hear ye ! ! Hear ye ! ! ! the honorable the county court of the county 
 of , and State of Illinois, is now open and in session pursuant to adjourn- 
 
 ment. 
 
 CLOSING AT THE END OF THE TERM. 
 
 Hear ye ! Hear ye ! ! the honorable the county court of the county of , 
 
 and State of Illinois, having closed its session in course for the present term, is 
 now adjourned, and from henceforth stands adjourned without day. 
 
 If the sheriff, or one of his deputies, be present, the court may be 
 opened and adjourned by proclamation, if not, the court opens or 
 adjourns by order, entered on the minutes of the clerk. It is more 
 formal and business like to open and close by proclamation all the 
 sessions of the court day by day, both forenoon and afternoon, and 
 at the beginning and close of the term. The sheriff or deputy should 
 always be in attendance, keep order and perform the duty of making 
 proclamation of opening and closing. 
 
 11. OATHS. 
 
 INTERPRETER'S OATH. 
 
 You do solemnly swear, by the ever-living God (or, you do solemnly, sincerely 
 and truly declare and afflrm), that you will well and truly interpret and trans- 
 
 (y) 1 Ch. PI. 67, 68 ; 2 Johns. 227.
 
 292 MISCELLANEOUS MATTERS. [CH. XII. 
 
 Oaths. 
 
 late the English language into (German) and the (German) into English, be- 
 tween the counsel, the witness, the court and the jury, relating to (the proceed- 
 ings now before this court) (or the issue joined between A B, plaintiff, and C D, 
 defendant) to the best of your ability. So help you God. 
 
 WITNESS' OATH.* 
 
 You do solemnly swear, by the ever-living God, that the testimony you shall 
 give in the matter now on hearing (or the cause now on trial) shall be the truth, 
 the whole truth and nothing but the truth. So help you God. 
 
 AFFIANT'S OATH. 
 
 Ton do solemnly swear, by the ever-living God, that this affidavit, by you 
 subscribed, is true. So help you God. 
 
 JURORS' OATHS. 
 Preliminary Oath. 
 
 You and each of you do solemnly swear, by the ever-living God, that you 
 will true answers make to all questions that shall be put to you, either by court 
 or counsel, touching your competency to sit as j urors in this cause. So help 
 you God. 
 
 TO TRY THE ISSUES. 
 
 You and each of you do solemnly swear, by the ever-living God, that you 
 will truly try the issues joined in this cause, now on hearing before the court, 
 wherein A B is plaintiff and C D is defendant, and a true verdict render accord- 
 ing to evidence. 
 
 TO TRY THE ISSUES AND ASSESS DAMAGES. 
 
 You and each of you do solemnly swear, by the ever-living God, that you 
 will well and truly try the issues joined in the cause now on hearing before 
 the court, between A B, plaintiff, and C D, defendant, and also well and truly 
 assess the damages of the said plaintiff against said defendant, and a true 
 verdict and assessment render according to evidence. So help you God. 
 
 JURY POLLED. 
 
 Question to be asked of the jurors severally. Was this, and is this now, 
 your verdict ? 
 
 OATH TO QUALIFY. 
 
 You do solemnly swear, by the ever-living God, that you will true answers 
 make to all questions put to you touching your qualifications as security on the 
 bond of A B, administrator of the estate of G D, deceased. So help you God. 
 
 OATH ON APPLICATION OF A JUROR TO BE EXCUSED. 
 
 You do solemnly swear, by the ever-living God, that you will true answers 
 make to such questions as shall be put to you touching your application to be 
 excused from serving as a petit juror at this court. So help you God. 
 
 * See chapter 76, R. S. 1845 ; chap. 101, R. 8. 1874, p. 725.
 
 CH. XII.] COSTS AND FEES. 293 
 
 Miscellaneous statutes. 
 
 OATH OF A PARTY OP THE LOSS OR DESTRUCTION OP A PAPER. 
 
 You do solemnly swear, by the ever-living God, that you will true answers 
 make to such questions as shall be put to you touching the loss or destruction 
 of any paper which would be proper evidence in this cause. So help you God. 
 
 OATH OP TRIERS UPON A CHALLENGE FOR FAVOR. 
 
 You do solemnly swear, by the ever-living God, that you will well and 
 truly try and find whether A B, the juror challenged, stands indifferent be- 
 tween E F, plaintiff, and C D, defendant, in the issue now about to be tried. So 
 help you God. 
 
 OATH OP A WITNESS ON A CHALLENGE. 
 
 You do solemnly swear, by the ever-living God, that you will true answers 
 make to such questions as shall be put to you touching the challenge of A B, 
 a juror, called in this cause, etc. 
 
 OATH OF OFFICER ATTENDING A JURY ON THEIR RETIREMENT. 
 
 You do solemnly swear, by the ever-living God, that you will, to the utmost 
 of your ability, keep the persons sworn as jurors on this trial in some private 
 and convenient place, without meat or drink, except water, unless ordered by 
 the court ; that you will not suffer any communication with them, orally or 
 otherwise, unless by order of the court, or to ask them if they have agreed 
 upon a verdict, until they shall be discharged, and that you will not, before 
 they render their verdict, communicate to any one the state of their deliber- 
 ations or the verdict they have agreed upon. So help you God, 
 
 OATH OF A PARTY TOUCHING HIS ABILITY TO PROCURE THE ATTENDANCE OP A 
 SUBSCRIBING WITNESS. 
 
 You do solemnly swear, by the ever-living God,* that you will true answers 
 make to such questions as shall be put to you touching your ability to procure 
 the attendance of X Y, a subscribing witness to the paper-writing now here 
 in question. So help you God. 
 
 Other oaths may be framed to suit the various occasions in practice. The 
 form is prescribed.(z) 
 
 IN CASE THE WITNESS OR PARTY TO BE SWORN WISHES TO affirm, COM- 
 MENCE THE affirmation. 
 
 You do solemnly, sincerely and truly declare and affirm (concluding as in 
 the oath above, after the *).() 
 
 (z) Ch. 76, R. S. 1845, 1, 2, 3, 4 ; R. (a) 2, id. 
 S. 1874, 725.
 
 COSTS AND FEES. [CH. XIII. 
 
 In case of appeal costs discretionary. 
 
 CHAPTEE XIII. 
 
 COSTS AND FEES. 
 
 1. The statute of costs and fees applies in probate matters. 
 
 2. In case of appeal in such matters, costs discretionary. 
 
 3. Actions and proceedings by non-residents and on office bonds ; security in 
 the first instance must be given, or suit on motion must be dismissed. 
 
 4. Form of preliminary security. 
 
 5. The motion to dismiss must, however, be made in apt time. 
 
 6. Security after suit brought. 
 
 7. Affidavits of parties. 
 
 8. Form of security to be given, when required after suit brought. 
 
 9. Non-residents cannot be executors or administrators, guardians or con- 
 servators ; foreign executors or administrators, guardians or conservators, how- 
 ever, may be empowered, but must always, before instituting proceedings, file 
 security for costs. 
 
 10. Non-resident creditors of an estate in probate must file preliminary 
 security, qiuere. 
 
 11. Appraisers' fees $2 per diem. 
 
 12. Fees of the officers of court. 
 
 13. Compensation of executors, etc. 
 
 14. Allowances to, for costs and disbursements. 
 
 15. After expiration of two years, claimants to pay costs in certain cases. 
 
 16. The applicant to be discharged on resignation as executor or administrator 
 must pay the costs of the application. 
 
 17. Suits on bonds ; the party for whose use suit is brought must give pre- 
 liminary security, and is liable to pay costs on failure to maintain his suit. 
 
 18. Delinquent executors and administrators cited or attached, must pay 
 costs. 
 
 19. In probate, as in chancery, costs are usually discretionary. 
 
 20. Witness' fees. 
 
 21. Commissioners' fees, etc. 
 
 1. The statute of costs and fees applies to all actions commenced 
 in the probate court on official bonds, for the use of any person ; but 
 when the opposite party omits to make a motion to dismiss the 
 action for that cause in the inferior court, he waives the objection 
 and cannot make it in the circuit court.(a) 
 
 2. IN ALL CASES OF APPEAL from the decision of a court of pro- 
 bate, the costs shall be in the discretion of the circuit court, (b) 
 
 (a) Robertson v. Co. Corns., 5 Gilm. Hill's Common Law, at pp. 625-637; 
 
 559 ; Yocum v. Waynesville, 39 111. 220. see, also, Hill's Ch. Pr., Costs; 21, R. 
 
 (6) 18, ch. 26, R. 8. 1845 ; the statute S. 1874, p. 300. 
 and decisions are given in full in 2
 
 CH. XIII.] COSTS AND FEES. 295 
 
 Security after suit brought. 
 
 3. IN ALL ACTONS ON OFFICE BONDS for the use of any person ; 
 actions on the bonds of executors, administrators or guardians ; qui 
 tarn actions ; actions on any penal statute ; and in all cases in law 
 or equity, where the plaintiff, or person for whose use an action is to 
 be commenced, shall NOT BE A RESIDENT OF THIS STATE, the plaintiff 
 or person for whose use the action is to be ' commenced, shall, before 
 he institutes such suit, file, or cause to be filed with the clerk of the 
 circuit or supreme court, in which the action is to be commenced, an 
 instrument in writing, of some responsible person, being a resident 
 of this State, to be approved by the clerk, whereby such person shall 
 acknowledge nimself bound to pay, or cause to be paid, all costs 
 which may accrae in such action, either to the opposite party, or to 
 any of the officers of such courts: 
 
 4. Which INSTRUMENT IN WRITING may be in THE FORM and pur- 
 port following, to wit: 
 
 A. B. ) 
 
 v. > Court. 
 
 C. D. j 
 
 I do hereby enter myself security for all costs which may accrue in the 
 above cause. 
 
 Dated this day of , A. D. 18 . 
 
 (Signed.) 
 
 E. F. 
 
 Before commencing proceedings for a non-resident party in any 
 court in Illinois, this statutory bond must be filed and approved by 
 the clerk. 
 
 5. It cannot be dispensed with. It may be waived, by steps taken 
 on the part of the adverse party, but if a motion to dismiss the pro- 
 ceeding for the want of preliminary security, where it is required, 
 be aptly made, the proceeding must be dismissed. The statute is 
 peremptory, viz.: If any such action shall be commenced without 
 filing such instrument, the court, on motion, shall dismiss the same, 
 and the attorney of the plaintiff shall pay all costs accruing there- 
 on, (c) 
 
 6. SECURITY AFTER SUIT BROUGHT. Again, if in any case the 
 court shall be satisfied that any plaintiff is unable to pay the costs 
 of suit, or that he is so unsettled as to endanger the officers of the 
 
 (c) People v. Cloud, 50 111. 439 ; 3, R. S. 1874, p. 297.
 
 296 COSTS AND FEES. [CH. XIII. 
 
 Non-resident creditors must file preliminary security. 
 
 court, with respect to their legal demands, it shall be the duty of the 
 court, ou motion of the defendant, or any officer of the court, to 
 rule the plaintiff on or before a day in such rule named, to give 
 security for the payment of costs in such suit ; if such plaintiff shall 
 neglect or refuse, on or before the day in such rule named, to file an 
 instrument of writing of some responsible person being a resident 
 of this State, whereby he shall bind himself to pay all costs which 
 have accrued, or may accrue in such action, the court shall, on motion, 
 dismiss the suit.(rf) 
 
 7. On application for security, under this section, the affidavits 
 of the parties may have equal weight.(e) The motion is addressed 
 to the discretion of the court ; its decision cannot be assigned for 
 error. (/) If the affidavit be insufficient, however, and the motion 
 be granted, the decision will, on error, be reviewed, (g) 
 
 8. When required, the instrument to be filed under section 2 may 
 be as follows: 
 
 (Title of suit) 
 
 I do hereby enter myself security for costs in this cause, and hereby bind 
 myself to pay all costs which have accrued or may accrue in such action, either 
 to the opposite party or to any of the officers of this court, in pursuance of the 
 laws of this State. E F. 
 
 Dated this day of , 18 . 
 
 9. No non-resident of this State can be appointed or allowed to 
 act as administrator.(A) But executors and administrators appointed 
 in any other State or territory of the United States may, under 
 certain restrictions, act.(t') And foreign executors or administrators 
 must give the preliminary bond for costs, as in case of non-resi- 
 dents.^') So with foreign guardians,(&) and so with foreign con- 
 servators or trustees. (Z) This security must be given to begin with 
 by such non-residents.(w) 
 
 10. Non-resident creditors of an estate of a decedent testate or 
 intestate who inaugurate proceedings against an executor or admin- 
 istrator under section 61, act of April 1, 1872, must file preliminary 
 security under section 1, chapter 26, Eevised Statutes, it would 
 seem. 
 
 (cf) 4, R. S. 1874, p. 297. ( j ) 43, id. 
 
 (e) Hamilton v. Dunn, 22 111. 259. (k) % 50, act of April 10, 1872. See 
 (/) Selby v. Hutchinson, 4 Gilm. 319 ; p. 68, supra. 
 
 Gesford v. Critzer, 2 Gilm. 698. (I) % 7, act of February 12, 1853 ; 
 
 (g) Ball v. Bruce, 27 111. 332. G. 333 ; P. 612 ; S. 828. 
 
 (A) 18, R. S. 1874, p. 107. (TO) C. 33, R. S. 1874, p. 297, p. 295, 
 
 (0 42, 43, R. S. 1874, p. 112. supra.
 
 CH. XII1.J COSTS AND FEES. 297 
 
 Fees of the officers of court. 
 
 On appeal by a non-resident from any order, decree or judgment 
 of the county court, security for costs must be filed in the first 
 instance. 
 
 Where appeal is prayed for, however, the bond for costs is given 
 by all, whether resident or non-resident, in order to perfect the 
 appeal.(w) 
 
 11. Appraisers are allowed two dollars per day each for actual 
 time spent in attendance upon and in the performance of their 
 duties.(o) 
 
 12. The fees of the officers of court are to be paid, from time to 
 time, as the services are rendered. 
 
 13. Executors and administrators are allowed, as compensation 
 for their services, to be fixed by the court, a sum not exceeding six 
 per centum on the amount of personal estate, and not exceeding 
 three per centum on the money arising from the sale of real estate. 
 
 There are two grounds upon which an executor or administrator 
 may be charged with interest. 1st. When he has been guilty of 
 negligence in laying out the money for the benefit of the estate. 
 2d. When he has made use of the money to his own profit and 
 advantage, or has committed some other malfeasance, (p) 
 
 As against administrators, the general rule is that he is charge- 
 able with interest whenever he receives interest, uses the money, or 
 retains it unreasonably.^) 
 
 14. Additional allowances are to be made for costs and charges in 
 collecting and defending the claims of the estate, and disposing of 
 the same, as may be reasonable.(r) As an executor is a trustee for 
 the estate he represents, he can receive no compensation for his 
 time and services expended in preparing the defense to a suit 
 against the estate, or a claim for dower, nor can he receive com- 
 pensation for professional services rendered, by him, as an attorney 
 at law, in defending such suit, for a trustee can make no profit out 
 of his office. The statute which provides that executors and 
 administrators may receive "such additional allowances for costs and 
 charges in collecting and defending the claims of the estate, and 
 
 (n) See Appeal, p. 272, supra. amount must be governed by the cir- 
 
 (0) 59, R. S. 1874, p. 114 ; Cothran's cumstances ot each particular case. 
 
 Statutes, p. 63. A reasonable compensation is all that 
 
 (p) Rowan v. Kirkpatrick, 14 111. 10. the law provides for. It is not ex- 
 
 (q) Id.; conservators' fees, see p. 141, pected he will speculate off the estate. 
 
 supra. And see Bassett, Adm'r, v. Willard, 
 
 (r) % 133, R. S. 1874, p. 127. The Adm'r, 27 111. 38, 39.
 
 298 COSTS AND FEES. [CH. XIII. 
 
 Delinquent executors and administrators. 
 
 disposing of the same, as shall be reasonable," does not proceed 
 further than to give such officers " money out of pocket," that is, 
 money actually paid by them to others in the discharge of their 
 duty. It is no AV arrant for an allowance for their own services, as 
 agent or attorney of the estate, (s) 
 
 15. The party suing after the expiration of two years from the 
 time of the grant of letters, and after the estate is found to be and 
 recorded as insolvent, must pay all costs.(^) 
 
 Guardians, on settlement, shall be allowed such fees and compen- 
 sation for their services as shall seem reasonable and just to the 
 court.(w) 
 
 An attorney employed by an executor may enforce the payment 
 of his fee against an administrator de bonis non of the sameestate.(v) 
 
 16. RESIGNATION. An executor or administrator on resigning 
 must pay all costs incurred on the application for his discharge; a 
 judgment may be entered therefor and collected on execution. (w) 
 
 17. SUITS ON BONDS. The party for whose use a suit may be 
 instituted on executors, administrator's, guardian's or conservator's 
 bonds must give security for costs, and in the first instance is made 
 liable therefor in case he fail in his suit.(z) 
 
 18. DELINQUENCY. An executor, or administrator, or guardian, 
 or conservator delinquent in his inventory or account, or in other 
 matters, is liable and must pay the costs of citation and attachment 
 when such proceedings become necessary, (y) 
 
 19. Inasmuch as the clerks of the several courts of record are of 
 their own motion to tax and enter the costs and fees in the procee- 
 dings which we are now considering, it is unnecessary to pursue the 
 subject further here. If the reader desire full information in the 
 matter of costs and fees, he would do well to read the chapters on 
 COSTS AND FEES in Hill's Chancery Practice, 2 Hill's Common 
 Law, and in the Municipal Officer. 
 
 When the fee bill is made up by the clerk, it will be regarded as 
 prima facie correct, and the debtor of costs can challenge it only 
 
 (s) Hough v. Harvey, 71 111. 72. (x) 1, ch, 26, R. S. 1845 ; 25, act 
 
 (t) $ 129, R. S. 1874, p. 127. April 1, 1872 ; R, S. 1874, p. 109 ; Coth- 
 
 () $ 42, R. S. 1874, p. 56. ran's Statutes, p. 54. 
 
 (v) Green v. Grimshaw, 11 111. (y) 114, R.S. 1874, p. 125 ; see pp.239, 
 
 389 240, supra; Cothran's Statutes, 1880, 
 
 (tr)40, R. S. 1874, p. 111. p. 78.
 
 CH. XIII.] COSTS AND FEES. 299 
 
 Commissioner's fees, etc. 
 
 in a direct proceeding, either by replevying the fee bill under the 
 26th section of the statute of costs (Cothran's Annotated Statutes, 
 354), or by a motion to re-tax costs. (z) 
 
 20. WITNESS PEE. The act of March 29, 1872 ( 49) fixes the 
 fees for each witness in probate matters at one dollar per day, if 
 the fee be claimed at the trial, which the clerk is to tax as costs, 
 when the fee is claimed, by affidavit of attendance filed. 
 
 21. DEPOSITIONS of resident witnesses may be taken before any 
 judge, justice of the peace, clerk of a court, master in chancery 
 or notary public, without a commission or filing interrogatories, 
 on giving ten days' notice of the time and place of taking the 
 same, and one day in addition thereto, Sundays inclusive, for every 
 fifty miles travel from the place of holding court to the place where 
 the deposition is to be taken. If the party entitled to notice and 
 his attorney reside in the county where the deposition is to be taken, 
 five days' notice will be sufficient. The depositions of non-resident 
 witnesses are to be taken upon commission directed to any compe- 
 tent and disinterested person, or any judge, master in chancery, 
 notary public or justice of the peace of the county or city in which 
 the witness resides, or if the witness be in military or naval ser- 
 vice of the United States, to any commissioned officer in such 
 service. In both cases a commissioner of deeds appointed for the 
 State may act to take the deposition. 
 
 In making return of a deposition, great care should be exercised. 
 Every provision of the statute regulating the mode of procedure 
 must be substantially complied with. It has been held that where 
 a note, professedly an exhibit referred to in a deposition, was not 
 attached or inclosed with the commission and interrogatories sealed 
 and sent to the clerk, but a part only of the papers were so sent by 
 the commissioner, but the note, interrogatories and commis- 
 sion and other papers were sent by him to the party's attorneys, 
 the deposition should have been suppressed on motion, (a) 
 
 (z) Parisher v. Waldo, 72 111. 71. R. S. 1874, p. 488 ; Cothran's Statutes, 
 
 () Edleman v. Byers & Gilmore, 75 p. 662. 
 HI. 367; See act March 29,1872. Ch. 51,
 
 CH. XIV.J THE PROBATE RECORD. 301 
 
 The forms. 
 
 CHAPTER XIV. 
 
 THE PROBATE RECORD. 
 
 The probate record, as a whole, comes now for examination before 
 as. The clerk keeps this record, but the litigants and the court do 
 each a share in making and perfecting the record in civil procedure, 
 either in probate, at common law, or in chancery. The integrity of 
 the record and its completion and perfection is, or should be closely 
 watched and firmly insisted on by the court, and constantly aimed 
 at by all the parties in a cause. 
 
 Having quite fully suggested the forms* of procedure, mainly as 
 we find them stereotyped on the records in the county courts of Illi- 
 nois, modeled after the forms of the civil law from point to point, 
 in developing the subject, so interesting, yet so delicate and impor- 
 tant, it is unnecessary now to do more than to indicate the stages of 
 the growth and development of THE RECORD in this jurisdiction. 
 Uniformity and systematic care in all the forms, simple and plain 
 though they be, are desirable, especially in matters pertaining to 
 landed property real estate. Much depends upon the competency 
 and fidelity of the clerk, the custodian of the records, for their neat- 
 ness, style and system ; more, upon the careful supervision of the 
 county judge. Passing, generation after generation, in one form or 
 another through the probate jurisdiction, as one by one their pro- 
 prietors leave " this bank and shoal of time," estates should be care- 
 fully administered and faithfully transmitted, unimpaired, either 
 
 * ALPHABETICAL LIST OP FOBMS IN THE PRECEDING PAGES: 
 
 Acceptance of appointment of Administrator's notice of settle- 
 guardian and guardian ad litem, 117 ment of claims 225 
 
 Acceptance of resignation of exec- Administrator's sale of personal 
 
 utor or administrator 98 estate , 181 
 
 Acceptance of resignation of a Administration, letters of 79 
 
 guardian 124 Administration, petition for revo- 
 
 Account, administrator's 240, 242 cation of letters of 99, 100 
 
 Account of personal estate and Administration, decree revoking 
 
 debts preliminary to sale of real letters of 101 
 
 estate 202 Advertisement, certificate of 51 
 
 Absence, affidavit of 130 Advertisement, notice to guard- 
 
 Adirflnistration, petition for letters ian 131 
 
 of 77 Affidavit of death and intestacy. . 77 
 
 Administrator, oath of 79 Affidavit of infancy 117 
 
 Administrator with the will an- Affidavit of absence 130 
 
 nexed, oath of 80 Affidavit of concealment 130 
 
 Administrator's account 240, 242 Affidavit of non-residence 129
 
 302 
 
 THE PROBATE RECORD. 
 
 [CH. XIV 
 
 The forms. 
 
 according to the law of descent or the will of their late owners, to 
 their kinsmen and beneficiaries. Whether, in a given cause, this has 
 been done is to be determined by the record. Although this can- 
 not be impeached if the court acquires jurisdiction, except on appeal 
 or in error, yet it is requisite that a high degree of care be exercised 
 in all matters in probate, that true and perfect records be made. 
 The integrity and honor of the trustees, whose functions and powers 
 it has been our province to consider, are involved in their records 
 here. Theirs are the most important and sacred trusts known to 
 the law, and can only be discharged through a perfect and complete 
 record in the probate court from which they derive their authority. 
 
 Affidavit of posting notices 182 
 
 Affidavit for a dedimus 37 
 
 Allowance to the widow and chil- 
 dren 221 
 
 Appointment of guardian ad litem, 117 
 
 Appraisement, warrant for 171 
 
 Appraisement bill 173 
 
 Assent to resignation of executor 
 
 or administrator 99 
 
 Attachment to compel the produc- 
 tion of a will 16 
 
 Attachment to compel the attend- 
 ance of witnesses 32 
 
 Award, widow's 221 
 
 Bond of administrator 78 
 
 Bond of administrator, with the 
 
 will annexed 80 
 
 Bond of executor 30 
 
 Bond of guardian 113 
 
 Bond by legatee or distributee . . . 234 
 
 Bill, the appraisement 178 
 
 Bill of sale 183 
 
 Certificate to appraisement bill . . 173 
 Certificate of publication, printer's 51 
 Certificate of the clerk to letters 
 
 testamentary 50 
 
 Certificates of proof under a dedi- 
 
 mus 38 
 
 Certificate of insanity 156 
 
 Citation to a minor 112 
 
 Citation notice and proof, of a nun- 
 cupative will 51 
 
 Claims, notice of settlement of . . . 225 
 
 Codicil 12 
 
 Concealment, affidavit of 130 
 
 Conservator, petition for 154 
 
 Conservator's inventory 185 
 
 Death, affidavit of 77 
 
 Debts, desperate 176-179 
 
 Decree for removal of guardian. . 133 
 Decree removing an executor or 
 
 administrator 101 
 
 Dedimus 33, 34 
 
 Dedimus (short form) 38 
 
 Dedimus, affidavit for 37 
 
 Desperate debts, suggestion of . . . ITT 
 Desperate debts, application to sell 
 
 and compound 177 
 
 Distributee, bond by 224 
 
 Entry of an order to compel the 
 
 production of a will 15 
 
 Executor's bond 30 
 
 Executor's oath 29 
 
 Executor, petition to remove an . . 59 
 
 Executorship, renunciation of. ... 16 
 
 Guardian's bond 113 
 
 Guardian's inventory 185 
 
 Guardian, petition of, for permis- 
 sion to resign 123, 124 
 
 Guardian, petition for the removal 
 
 of a 124, 125 
 
 Guardian, summons to a 125 
 
 Guardian, decree of removal of . . 133 
 Guardian (see constructive ser- 
 vice). 
 
 Guardian ad litem, order appoint- 
 ing a 117 
 
 Guardianship, petition for Ill 
 
 Guardianship, letters of 116 
 
 Infancy, affidavit of 117 
 
 Inquisition as to insanity 155 
 
 Insane, record of proceeding in 
 
 case of the 156 
 
 Insanity, inquisition as to 155 
 
 Insanity, statement of (peti- 
 tion) 154
 
 CH. XIV.J 
 
 THE PROBATE RECORD. 
 
 303 
 
 The fiduciary relation. 
 
 The jealousy with which these trustees are watched by the courts, 
 in the discharge of their trusts, is, perhaps, nowhere more fully illus- 
 trated than in the cases where they have attempted to so administer 
 the estates committed to their charge as to make gain for themselves, 
 beyond the compensation which the law gives them. The fiduciary 
 relation, especially in sales by agents and trustees, seems to have 
 been made use of more frequently for this purpose. But equity has 
 established an unbending rule to meet every exigency a rule of 
 disability. The rule involved is not only: (1.) That an agent 
 intrusted to sell property, or a trustee cannot purchase at his own 
 
 Instructions for taking a deposi- 
 tion 34, 35 
 
 Intestacy, affidavit of 77 
 
 Inventory of the estates of the de- 
 ceased 170 
 
 Inventory by the guardian and 
 conservator 185 
 
 Legatee, bond by 224 
 
 Letters of administration 79 
 
 Letters of administration, petition 
 
 for 77 
 
 Letters of guardianship 116 
 
 Letters testamentary, petition for, 29 
 
 Letters testamentary 49, 50 
 
 Letters testamentary and letters 
 
 of administration, petition for 
 
 revocation of 99, 100 
 
 Lunalico de inquirendo, writ 
 
 of 155 
 
 Minor, citation to a 112 
 
 Xon-residence, affidavit of 129 
 
 Notice and citation to heirs, etc., 
 
 of probate of nuncupative will, 51 
 Notice, publication, to guardian. . 131 
 Notice, administrator's sale of des- 
 perate claims 176, 177 
 
 Notice of administrator's sale of 
 
 personal estate 181 
 
 Notice, affidavit of posting 182 
 
 Notice, administrator's, of the 
 
 settlement of claims 225 
 
 Notice of petition to sell real estate, 206 
 Nuncupative will 13 
 
 Order on granting a petition to 
 compel the production of a will, 15 
 
 Order appointing a guardian ad 
 litem 117 
 
 Oath of executor 29 
 
 Oath of administrator. . 79 
 
 Oath of administrator with 
 will annexed . . 
 
 the 
 
 80 
 
 Pendency of suit to sell real estate, 206 
 
 Petition for guardianship Ill 
 
 Petition for a guardian by minors, 
 
 112, 113 
 Petition for a guardian by a third 
 
 party 114, 115 
 
 Petition of guardian for permis- 
 sion to resign 123, 124 
 
 Petition for the removal of a guar- 
 dian 124, 125 
 
 Petition for process to compel the 
 
 production of a will 15 
 
 Petition for letters of administra- 
 tion 77 
 
 Petition for letters testamentary . . 29 
 Petition to supersede the appoint- 
 ment of an executor 59 
 
 Petition for revocation of letters 
 testamentary or of administra- 
 tion 99, 100 
 
 Petition for conservator of an in- 
 sane person 154 
 
 Petition for the sale of real estate, 204 
 
 Posting, affidavit of 182 
 
 Printer's certificate 51 
 
 Production of a will, petition for 
 
 process to compel 15 
 
 Production of a will, order of entry, 15 
 
 Production of a will, attachment, 16 
 
 Proof of will (common form) .... 46 
 Proof of execution of a will, with 
 
 the record 48, 49 
 
 Publication notice to guardian. . . 131 
 
 Publication, printer's certificate of, 51 
 
 Publisher's certificate 51 
 
 Real estate, notice of application 
 
 to sell 206 
 
 Real estate, sale of, petition for, 194, 205 
 
 account preliminary to sale, 202
 
 304 
 
 THE PROBATE RECORD. 
 
 [CH. XIV. 
 
 The fiduciary relation. 
 
 sale ; but,(a) (2.) That he cannot purchase surreptitiously by inter- 
 posing a third party, or by connivance with another(J) at the time 
 of or during the very transaction for which his agency or trust was 
 established, or while his trust relation continues ; and, (3. ) It is 
 a rule of disability, up to the close of the sale, the conveyance and 
 the payment of the purchase-money ;(c) (4.) But an executor or 
 administrator or guardian or conservator cannot renounce his trust, 
 shake off his fiduciary relation, and purchase.(^) 
 
 And further, the wrongful receipt and conversion of trust prop- 
 erty place the receiver in the same situation as the trustee from 
 whom he received it, and he is subject to the same liability as the 
 trustee himself, (e) 
 
 In such cases a court of equity, with a broader jurisdiction, brancl- 
 
 (a) Currier v. Green, 2 N. H. 225. 
 
 (V)Kru8e v. Steffens, 47 111. 112; 
 Kerfoot v. Hyman, 52 id. 512 ; Bobbins 
 v. Butler, 24 id. 432 ; Lewis v. Hillman, 
 3 H. L. 607 ; Oliver v. Court 8, Price, 
 127, 164. 
 
 (e) Rosenberger^s Appeal, 26 Penn. 
 St. 67; Miles v. Wheeler, 43 111. 123; 
 Charter v. Trendy an, 11 Cl. & F. 714. 
 
 (d) Despard v. Ormsby, Colles' P. C. 
 
 459; Shelton v. Homer, 5 Mete. 468; 
 Thorp v. McCullum, 1 Gilm. 614 , Un- 
 derwood's Notes and cases cited,; see 
 HILL'S CHAN. PR. 394-402. 
 
 (e) Rolf e v. Gregory, 34 L. J. Ch. 274 ; 
 Moloney v. Kernan, 2 Dr. & W. 31 ; 
 Cumberland Coal Co. v. Sherman, 10 
 and 20 Md. ; Tyrrell v. Bank of Lon- 
 don, 10 H. L. 26 ; Rosenberger's Appeal, 
 26 Penn. St. 67. 
 
 Relinquishment of specific articles 
 by the widow or children 220 
 
 Removal of guardian, decree for. . 133 
 
 Renunciation of executorship. ... 16 
 
 Resignation, acceptance of a guar- 
 dian's 124 
 
 Resignation of executor or admin- 
 istrator 97, 98 
 
 Resignation of executor or admin- 
 istrator, notice of 97 
 
 Resignation of executor or admin- 
 istrator, acceptance of 98 
 
 Resignation of executor or admin- 
 istrator, assent to 99 
 
 Residence unknown, affidavit of. . 130 
 
 Return of cepi corpus on an at- 
 tachment 32 
 
 Revocation of letters testament- 
 ary, etc 101 
 
 Sale, administrator's sale of per- 
 sonal estate 181 
 
 Sale, bill of 183 
 
 Sale of desperate debts 176-179 
 
 Sale of real estate, preliminary 
 
 account 202 
 
 Sale of real estate, petition for, 204, 205 
 Service of a subpoena, proof of ... 32 
 
 Statement of insanity 154 
 
 Subpoena for subscribing witnesses 
 
 to a will 31, 32 
 
 Summons to a guardian 125 
 
 Testamentary, petition for letters, 29 
 
 Testamentary letters 49, 50 
 
 Testamentary, petition for revoca- 
 tion of letters 99, 100 
 
 Testamentary letters, decree of 
 
 revocation of 101 
 
 Unknown residence, affidavit of. . 130 
 
 Venire for a jury on a writ de luna- 
 
 tico inquirendo 1 56 
 
 Warrant for appraisement 171 
 
 Widow's award 221 
 
 Widow's relinquishment of spe- 
 cific articles 220 
 
 Will 11, 12 
 
 Will, nuncupative 13 
 
 Will, petition to compel the pro- 
 duction of a 15 
 
 Will, proof of (common form). ... 46 
 
 Witnesses, subpoena for 31, 32
 
 OH. XIV.] THE PEOBATE RECORD. 305 
 
 The forms. 
 
 ing the transactions as fraudulent, at once goes behind the record, 
 and with care and firmness compels an honest and faithful adminis- 
 tration; and nowhere else than in Illinois has the rule been more 
 promptly or persistently applied, as the cases already cited abun- 
 dantly attest. We now turn to the record. 
 
 At common law the making of the record, as well as in chancery, 
 has acquired the name of pleading. (/) 
 
 In probate, matters of guardianship and conservation, the general 
 rules of pleading are applicable to a certain extent. 
 
 The petition is the usual mode of making application in these 
 matters for the process, and the orders, judgments and decrees of 
 the court. 
 
 The summons, the citation and the attachment, the notice and 
 proofs of service by publication, and by the sheriff and his deputies, 
 are common to all these courts, at common law, in chancery as well 
 as in probate. 
 
 The chancery practice is prescribed in matters pertaining to the 
 exercise of this jurisdiction over real property. ( g) 
 
 Facts are to be presented and embodied in the record. An appli- 
 cant may, of his own knowledge, be cognizant of facts, or he may be 
 morally certain of their existence upon information, and from cir- 
 cumstances known to him which afford him conclusive proofs. But 
 in presenting such facts, he must be exceedingly careful to give the 
 court the same kind of information that he has, for the court, and 
 not the applicant or witness, is the arbiter. Facts of a certain kind, 
 like the days of the week; month or year, the times of holding 
 court, the incumbents of the county offices, are known to the court; 
 no allegation, no proof, is essential in such matters. But where a 
 witness was present and saw another die; saw a contract made; a 
 will executed, he knows he can speak of his own knowledge. The 
 rules of evidence are of equal force in all courts, (h) 
 
 Allegations or statements of facts, in a verified petition or affi- 
 davit, must be made in such a manner as to apprise the court upon 
 what evidence the petitioner or affiant speaks. 
 
 The solemnity and binding force of an oath are great, and require 
 that care should be exercised and discrimination used in detailing 
 facts for the purposes of judicial procedure. 
 
 (/) Bee 2 Hill's C. L. Pr., Pleading; (h) 2 Hill's C. L., Evidence; Green- 
 Hill's Chan. Pr., Pleading. leaf on Ev., etc. 
 ( g ) See p. 206, supra. 
 39
 
 306 THE PROBATE RECORD. [CH. XIV. 
 
 The forms. 
 
 The test of an affidavit is, that its statements are to be made in 
 such a positive and pointed manner that, if untrue in po.'nt of fact, 
 perjury may be predicated upon it. 
 
 The petition differs somewhat from an affidavit; it partakes of the 
 nature of a pleading, and oftentimes contains allegations of facts, 
 which are to be supported by proofs to be adduced on the hearing. 
 
 The affidavit is the evidence adduced in writing, and the basis of 
 the application. When verified, the petition oftentimes, however, 
 performs the office of the affidavit. So that, in putting statements 
 of facts material to any step in judicial proceedings into writing, 
 care must be used not to involve a petitioner, a pleader, an affiant, 
 a deponent or a witness in the crime of perjury. 
 
 Every person having taken a lawful oath, or made affirmation, in 
 any judicial proceeding, or in any other matter where by law an 
 oath or affirmation is required, who shall swear or affirm willfully, 
 corruptly and falsely, in any matter material to the issue or point 
 in question, or shall suborn any other person to swear or affirm as 
 aforesaid, shall be deemed guilty of perjury or subornation of per- 
 jury (as the case may be), and, upon conviction thereof, shall be 
 punished by confinement in the penitentiary for a term not less 
 than one year nor more than fourteen years, (i) 
 
 Truth is the basis of all judicial procedure, and to find the facts 
 and act upon them, as occasion requires, constitutes the business of 
 courts of judicature. 
 
 The affidavit, wherever used, is to be of one general form, and 
 tested by this general rule : 
 
 An affidavit should be entitled of the cause or proceeding; begin 
 with the venue, introduce the affiant, state the subject-matter known 
 positively to the affiant in direct and pointed language, and the 
 subject-matter which affiant believes, or has reason to believe, as 
 true upon information and belief, detailing the circumstances so as 
 to show that the belief is well founded, and conclude with the 
 jurat and signature. 
 
 A petition should be entitled of the cause ; begin with the address 
 to the court, introduce the petitioner, and in like manner state the 
 subject-matter. It should, if verified, conclude with an affidavit 
 that it is true of the knowledge, or information, and belief of the 
 petitioner. 
 
 (t)R. S. 1874, p. 387.
 
 OH. XIV.] THE PKOBATE EECORD. 307 
 
 The forms. 
 
 Before proceeding with the evolution of the probate record, it 
 may be well to consider the requisites of affidavits and verified 
 pleadings generally in the light of the authorities. 
 
 The petition is filed, and entered either in part or at large, upon 
 the record by the clerk; so with the other papers, such as process, 
 the affidavits, certificates and the like. The orders, decrees, and 
 judgments are recorded at full length upon the records of the court. 
 In every proceeding there are the files, and the entries, and the 
 records, but taken together they are usually called, in speaking of 
 any proceeding, THE KECORD. 
 
 The importance of recording in full all the papers which make 
 up this record, as well as the orders, decrees and judgments of the 
 county court, in probate and other matters involving titles to real 
 estate and the rights of the absent, the incapacitated, the widow and 
 the orphan, cannot be too strongly urged upon the clerks of these 
 courts. 
 
 One generation passeth away and another generation cometh, so 
 that every thirty years nearly all the real and personal property of 
 the county passes, in one form or another, under the administration 
 in probate. Uniformity in these records throughout the State is 
 also desirable. To attain this uniformity, very many of the forms 
 are prescribed as we have seen by the statute, while in matters 
 touching real estate, the well-known forms which have been so long 
 stereotyped, and so continually repeated, and so well settled by 'the 
 profession and the courts in Illinois as to make perhaps the most 
 admirable system to be found anywhere in civil procedure, are made 
 the means, the models, the practice in this jurisdiction. 
 
 Coming directly from the exalted jurisdiction of the chancellor,( ;') 
 we naturally feel a degree of pride in these ample forms, and shall 
 endeavor to delineate them for use in this equally important depart- 
 ment of our jurisprudence, and, if possible, with a higher degree of 
 care through this chapter of our undertaking. 
 
 In the former chapters we have considered the prescribed occasions 
 for the exercise of the administrative jurisdiction of what in some 
 States is called the orphan's court,(&) and carefully and critically 
 examined the successive steps necessary to be taken in caring for 
 the person and the estates of those who, in the law, are incapacitated, 
 incapable of caring for themselves, and in protecting the rights of 
 
 (j) See Hill's Chan. Pr. (k) e. g. Pennsylvania.
 
 308 THE PKOBATE KECOKD. [CH. XIV. 
 
 The forms. 
 
 creditors and the heirs of the deceased, according to the law of 
 descent and the executive powers of the county judge in supervising 
 the transmission of property according to this law, or the law of 
 wills from the dead to the living. We now come to the making of 
 the records for these several occasions, for the exercise of such im- 
 portant functions by these lesser but not inferior courts, through 
 well-settled forms. 
 
 The placita, or convening order of the court, is an essential recital 
 to the record, and first comes into view.(Z) 
 
 It should disclose (1) the venue, (2) the court, (3) the term of the 
 culmination of the record into an order, or judgment, or decree, and 
 (4) the names of the officers, the judge, the clerk and the sheriff con- 
 cerned in the production of the several parts of which the record is 
 made up. One general form may be given, so that by filling the 
 blanks in a given cause no error in this, the beginning of the record, 
 may be made. 
 
 THE PLACITA. 
 
 United States of America. 
 STATE OP ILLINOIS,) 
 
 County of . f * 
 
 Pleas(m) before the honorable , judge of the county court of county, 
 in the State of Illinois, and sole presiding judge of said court, and at a regular 
 term thereof, begun and held at the court-house in the of , in the 
 
 year of our Lord one thousand eight hundred and , and of the independ- 
 
 ence of the United States the ninety . Present, the honorable , 
 
 county judge of county, in the State of Illinois. 
 
 Attest : , Olerk. , STieriff said County. 
 
 , State's Attorney. 
 
 The placita should always be the beginning of a transcript of the 
 record in any of the proceedings for use in other courts and places, 
 for the reasons so clearly stated by Judge MCALLISTER.(>I) His 
 language is applied to the record at common law, but, if we mistake 
 not, it applies with equal force to the chancery or the probate record. 
 He says: "The experience and wisdom of ages have taught that 
 these forms are necessary to prevent legal proceedings from degen- 
 erating into such looseness and confusion as to render rights acquired 
 under them insecure." 
 
 Other forms are used frequently, but the above has long been the 
 accepted form at common law and in chancery, and we know of no 
 
 (0 2 Hill's C. L. 18. (n) 2 Hill's C. L. 1&-20. 
 
 (m) The record ; 2 C. L. 15.
 
 CH. XIV.] THE PROBATE EECOED. 309 
 
 The forms 
 
 reason why it should not be used here. It would be difficult to 
 make it less formal, or to abridge it. 
 Next comes the 
 
 PREAMBLE AND RECITAL. 
 
 Be it remembered that heretofore, to wit, on the day of , in the 
 
 year of our Lord one thousand eight hundred and seventy (or A. D. 187 -), 
 
 A B ( if by attorney, by C D, his attorney,) and filed in the office of the clerk of 
 this court, his certain petition, in writing, which is in words and figures follow- 
 ing : 
 
 (Here copy at length the petition, as at page 94, sujira.) 
 Together with the following exhibit thereto attached, which is in words and 
 figures following : 
 
 Here copy the will filed with the petition, and then complete the 
 record, as at page 48, supra, concluding with the record of the let- 
 ters testamentary, and of the bond and oath of the executor, (o) 
 
 For entries, the clerk may conveniently use the following : 
 
 PLACITA. 
 (To be used in Counties under lownship Organization.') 
 
 STATE OP ILLINOIS, | , , n . Q 
 
 County of . f** ; Term, A. D. 18 . 
 
 The county court of county, term, began and held at the court- 
 house, in the of , in said county, on Monday, day of , A. 
 D. 18 . Present, Hon. .Judge; , Clerk ; .Sheriff. Court 
 opened by proclamation. 
 
 PLACITA. 
 
 (To be used in Counties not under Township Organization.) 
 
 STATE OP ILLINOIS,) , A n 1Q 
 
 County of .\ ss : Term. A. D. IS . 
 
 The county court of county, sitting for the transaction of judicial busi- 
 
 ness, began and held at the court-house in the of , in said county, 
 
 on Monday, the day of , A. D. 18 . Present, Hon. , Judge ; 
 
 , Clerk ; and , Sheriff. Court opened by proclamation.* 
 
 PLACITA. 
 (For any day of the term after its commencement.) 
 
 STATE OF ILLINOIS,) -P . n 1Q 
 
 County of \\* : Term, A. D. 18 . 
 
 The county court of county, sitting for the transaction of official busi- 
 
 ness, Tuesday, the , A. D. 18 . Court opened pursuant to adjourn- 
 
 ment. Present, same as yesterday. 
 
 (o) See pp. 48, 50, supra. 
 
 * It Is not necessary that the sheriff should open the court.
 
 310 THE PROBATE RECORD. [cH. XIV. 
 
 The forms. 
 
 ENTRY OP GRANT OP ADMINISTRATION. 
 
 In the matter of the ) 
 
 estate of , de- >- Appointment of Administrator. 
 
 ceased. ) 
 
 This day appeared in open court, , and applied to the court for letters 
 
 of administration on the estate of , deceased, to issue to her and 
 
 And it appearing to the court by satisfactory evidence that the said . , late 
 
 of county, in the State of Illinois, died in the said county on or about the 
 
 day of , A. D. 18 , leaving at the time of his decease property and 
 
 effects in this State, which may be lost, destroyed, or diminished in value if ad- 
 ministration be not granted thereon ; but leaving no will and testament ; and 
 it further appearing to the court that said is the widow (or, as the case 
 
 may be) of said intestate, and is competent, and by law entitled, to administer 
 upon the estate of which the said died seized, and she desiring that the 
 
 said be associated with her in such administration ; and it further appear- 
 ing to the court that the value of the estate of which the said died seized 
 is about dollars ; it is thereupon 
 
 ORDERED and adjudged by the court, That administration on the estate, 
 goods, chattels and effects of the said , deceased, be granted to the 
 
 said and , upon their entering into bond in the penal 
 
 sum of (here insert double the value of the estate) dollars, conditioned and pay- 
 able according to the statute in such cases made and provided. 
 
 And now again come the said and , and present to 
 
 the court for approval their bond, in form as before by this court required, with 
 A B and C D as their securities thereon, and the court being now sufficiently 
 advised concerning the said bond and said security, it is 
 
 ORDERED and adjudged by the court, That the said bond be approved and 
 recorded. 
 
 And the said and , having respectively taken the oath 
 
 required of them by law, as such administratrix and administrator, it is 
 
 ORDERED, That letters of administration on said estate be issued to the said 
 and 
 
 If the person entitled to administer renounce, that fact should 
 be stated on the records. In short, in all cases the material facts, 
 upon which is founded any order of the court, should appear upon 
 the face of the records, so as to make the legality of the proceedings 
 of the court apparent. 
 
 ORDER APPOINTING APPRAISERS. 
 
 In the matter of the J 
 
 estate of , > Appointment of Appraisers. 
 
 deceased. ) 
 
 It is ORDERED by the court, That C D, E F and G H be authorized and 
 appointed to appraise the goods, chattels and personal estate of the said 
 deceased, and that a warrant therefor be issued to them.
 
 CH. XIV.] THE PKOBATE KECOKD. 311 
 
 The forms. 
 
 WHERE APPRAISERS DIE, NEGLECT OB REFUSE TO ACT. 
 
 In the matter of the ] 
 
 estate of , > Appointment of Appraisers. 
 
 deceased. ) 
 
 It appearing to the court that C D, one of the appraisers heretofore 
 appointed to appraise the goods, chattels and personal estate of the said , 
 
 deceased, refuses to act (or as the case may be), as such appraiser, it is, 
 therefore, 
 
 ORDERED, That J K be appointed in his place, to act in conjunction with 
 E F and Q H, heretofore appointed appraisers of said estate. 
 
 ORDER ON THE RETURN OP THE INVENTORY. 
 
 In the matter of the ) 
 
 estate of , [ Order on Inventory. 
 
 deceased. ) 
 
 On this day comes , administratrix of the said estate, and presents 
 
 to the court the inventory of the real and personal estate, and the proceeds 
 thereof, of the said , deceased, so far as the same have come to the 
 
 possession or knowledge of the said administratrix ; and now, the court having 
 inspected said inventory, and being sufficiently advised concerning the same, 
 it is 
 
 ORDERED, That the said inventory be approved and filed. 
 
 It is a good practice observed in some counties to record the 
 inventory, whether the law requires it or -not. 
 
 ORDER FOR A CITATION AGAINST AN ADMINISTRATOR OR EXECUTOR, TO 
 COMPEL AN INVENTORY. 
 
 In the matter of the } 
 
 estate of , [ Order for Citation. 
 
 deceased. ) 
 
 On this day comes C D, security on the bond of J K, executor (or admin- 
 istrator) of the estate of the said , deceased, and presents to the court 
 his petition for a citation to issue out of this court, against the said executor, 
 to show cause why he should not file in this court an inventory of the estate 
 of the said , deceased, and the court being now sufficiently advised 
 concerning the said petition, and the matters and things therein contained, 
 it is 
 
 ORDERED and adj udged, That a citation issue in accordance with the prayer 
 of said petition, returnable to the next term of this court, to which time it is 
 
 ORDERED, That the hearing of the said petition be continued. 
 
 ORDER TO FILE AN INVENTORY. 
 
 D v. J K, executor of) 
 
 the estate of ,[ Order to File Inventory. 
 
 deceased. ) 
 
 And now on this day again comes the said C D, as also the said J K, execu- 
 tor of the said estate; and the said petition heretofore filed by the said C D, 
 requiring the said J K to file an inventory of the said estate, coming on to
 
 312 THE PKOBATE KECOED. [CH. XIV. 
 
 The forms. 
 
 be heard, and the court being now advised touching the matters iii said petition 
 alleged against the said J K, and it appearing to the court that the said J K 
 has failed to file such inventory within three months from the date of his 
 letters testamentary, it is 
 
 ORDERED and adjudged, That the said J K make out and file in this court, 
 on or before the first day of the next regular term hereof, a full and perfect 
 inventory of the real and personal estate of the said , deceased, to 
 
 which time it is 
 
 ORDERED, That these proceedings stand continued. 
 
 If the executor or administrator do not appear at the return of 
 the citation, the order should be varied. 
 
 In the place of the words, " as also the said J K," insert " and 
 the said J K, though called, came not. And it appearing to the 
 court that the citation herein has been duly served upon the 
 said J K." 
 
 In case the executor does not appear, add " and that a copy of 
 this order be served on the said executor." 
 
 REVOCATION OP LETTERS TESTAMENTARY, OR OF ADMINISTRATION, OR OF 
 
 GUARDIANSHIP. 
 
 In the matter of the ) 
 
 estate of ,> Order of Revocation of Letters. 
 
 deceased. ) 
 
 And now on this day comes , who heretofore filed his petition in 
 
 this court, praying that the letters of administration granted to A B, admin- 
 istrator of the said estate, be revoked and repealed for the causes in such 
 petition set forth, and the said A B also comes, as well in person as by G L, 
 his solicitor. And now the said petition coming on to be heard, and it appear- 
 ing to the court that (here state the particular ground upon which revocation is 
 to be ordered}, and the court being now sufficiently advised touching the 
 premises, it is 
 
 ORDERED and adjudged, That the letters of administration (testamentary or 
 guardianship, as the case may be), granted to the said A B, by this court, <>n 
 the day of , A. D. 18 , be and the same are forever revoked and 
 
 repealed, and the said A B removed from his office as of the said 
 
 And it is further 
 
 ORDERED, That he pay the costs by the said in and about his 
 
 petition expended, which are taxed at dollars, and that execution issue 
 
 therefor, (p) 
 
 ORDER APPOINTING AN ADMINISTRATOR OR GUARDIAN, WHERE THE OFFICE 
 HAS BECOME VACANT. 
 
 In the matter of the ) 
 
 estate of ,j- Order Appointing Administrator. 
 
 deceased. ) 
 
 And now on this day comes , and applies to the court for letters of 
 
 (p) See p. 299, supra.
 
 CII. XIV.] THE PROBATE RECORD. 
 
 The forms. 
 
 administration on the estate of the said , deceased, to issue to him, 
 
 appointing him administrator in place of , late administratrix of said 
 
 , deceased, who was at the last term of this court removed, and the 
 letters granted to her repealed (or who resigned, or died, as the case may be). 
 And it appearing to the court that the said , late administratrix of 
 
 the estate of the said , deceased, was removed by this court on the 
 
 day of , A. D. 18 (or has resigned, as the case may be), not 
 
 having fully completed the administration of the said estate, and it also 
 appearing that the said is competent, and by law entitled, to admin- 
 
 ister upon said estate ; it is, therefore, 
 
 OKDERED and adjudged, That letters of administration of the goods and 
 chattels, rights and credits which were of the said , deceased, at the 
 
 time of his decease, not administered by the said , be granted to the 
 
 said , upon his entering into bond in the penal sum of dollars, 
 
 conditioned and payable as the law requires. 
 
 And now again comes the said , and presents to the court here, 
 
 for its approval, his bond as administrator of the estate of the said , 
 
 deceased, executed by said as principal, and as security, in 
 
 form and substance as by law and the order of this court required ; and the 
 court being now sufficiently advised touching the said bond and the said 
 security, it is 
 
 ORDERED and adjudged, That said bond and security be approved; and it 
 is further 
 
 ORDERED, That the said bond be filed and recorded in this court. 
 
 Slight verbal alterations would readily adapt the form to the 
 office of guardian. 
 
 The letters issued in such cases are to be varied from the original 
 to suit the facts of each particular case, (q) 
 
 ORDER ON RETURN OP THE APPRAISEMENT BILL. 
 
 In the matter of the ) 
 
 estate of , j- Order on Appraisement Bill. 
 
 deceased. ) 
 
 On this day comes , administrator of said estate, and presents to the 
 
 court the bill of the appraisement of the goods, chattels and personal estate, 
 which were of the said , deceased, at the time of his death, and the 
 
 court having examined the same, and being sufficiently advised concerning said 
 appraisement, it is 
 
 ORDERED by the court, That the said appraisement be approved ; and it is 
 further 
 
 ORDERED by the court, That the said bill of appraisement be filed (and 
 recorded). 
 
 (q) See p. 79, supra; 21, R. S. 1874, p. 108. 
 40
 
 314 THE PKOBATE KECORD. [CH. XIV. 
 
 The forms. 
 
 ENTRY ON ADJUSTMENT OP CLAIMS. 
 
 In the matter of the } 
 
 estate of , [ Adjustment of Claims. 
 
 deceased. ) 
 
 On this day comes , administrator of said estate (or executor of the 
 
 last will and testament, etc.), and files in court proof of the publication of 
 notice given by said administrator, appointing this day for the settlement and 
 adjustment of claims against said estate, whereupon the following described 
 claims were presented, and the court being advised by evidence that the siiun- 
 are respectively just and unpaid.it is 
 
 ORDERED, That the said claims be severally allowed, classified and paid, as 
 follows : 
 
 NAMES. 
 
 GLASS. 
 
 AMOUNT. 
 
 A B .. 
 
 First 
 
 $60 00 
 
 C D 
 
 Fourth 
 
 19 00 
 
 
 
 
 ENTRY WHEN ESTATE IS FOUND TO BE INSOLVENT. 
 
 In the matter of the ) 
 
 estate of , > Insolvency. 
 
 deceased. ) 
 
 And now on this day comes , administrator of said estate, and files in 
 
 court a statement, from which it appears that the claims allowed against said 
 estate and unpaid, amount to the sum of dollars, and that the whole 
 
 amount of property, rights and credits belonging to said estate is dol- 
 
 lars, and the court being now sufficiently advised concerning the condition of 
 said estate, and it appearing that the same is not solvent, and that there are 
 not sufficient assets with which to pay the just indebtedness thereof, it is 
 
 ORDERED, That the said estate be declared insolvent, and be so entered of 
 record. 
 
 ORDER TO COMPEL EXECUTOR OR ADMINISTRATOR TO SELL REAL ESTATE. 
 
 In the matter of the } 
 
 estate of , > Order to Compel the Sale of Real Estate. 
 
 deceased. ) 
 
 On this day comes , a creditor of said estate, and moves the court for 
 
 an order that , the administrator of said estate, make immediate appli- 
 
 cation to the circuit or county court, for the sale of the real estate of which the 
 said died seized, or so much thereof as will be sufficient to pay the just 
 
 debts of the said estate, and the court being now sufficiently advised concern- 
 ing said motion, and it appearing to the court that the personal property belong- 
 ing to said estate is insufficient to pay the debts thereof, it is 
 
 ORDERED, That the said administrator make immediate application to the 
 court for license to sell so much of the real estate of which said died 
 
 seized, as will be sufficient to pay the debts of said estate.
 
 CH. XIV.] THE PROBATE RECORD. 315 
 
 The forms. 
 
 DECREE FOB THE SALE OP REAL ESTATE. 
 
 A. B., Administrator of the estate of C. D., } 
 
 / In the County Court of County. 
 
 vs. V 
 
 M.B.,W.B.,C.B.,andD.B. ) Term, A.D. 18 . 
 
 This cause coming on to be heard upon the petition of A. B., administrator of the estate 
 of C. D., asking for leave to sell the real estate of said decedent described therein, or such 
 portion thereof as may be necessary to satisfy the indebtedness of said decedent and the 
 expenses of administration, as well as upon the answers of M. B., and W. B., and the replica- 
 tion of A. B., administrator as aforesaid, thereto. [If the facts require it, add the recitals 
 somewhat as follows : And it now appearing to the court that C. B. has been summoned and 
 failed to appear, and that D. B. is a non-resident of this State, and that publication has 
 been made in the , a newspaper published in said county, once in each week 
 
 for four successive weeks, containing a notice* of the filing of the petition, the names of the 
 parties thereto, the title of the court, and the time and place of the return of the summons 
 in the case, and a description of the premises described in said petition, the first publication 
 having been made in the paper dated the day of , A.D. 18 , and the last publi- 
 
 cation in the paper dated the day of , A.D. 18 , and that a copy of said notice 
 
 was, within ten days of the first publication of said notice, and on the day of , 
 
 A.D. 18 , sent by mail, addressed to the said D. B., at , his place of residence; and the 
 
 said C. B. and D. B. having failed to appear, and forty days having already intervened be- 
 tween the first publication as aforesaid and the first day of the term, A.D. 18 , of 
 this court, and defaults having at said term been taken against the said C. B. and D. B., and 
 decree pro confesso ordered against them herein respectively.] And upon the issues formed 
 or taken, the court having heard and examined the allegations and proofs of the parties 
 herein (and after argument by counsel for the respective parties) it further appearing to the 
 satisfaction of the court, upon due examination as aforesaid, that the said A. B., administrator 
 as aforesaid, has made a just and true account of the condition of the estate, and that the 
 personal estate of the decedent is not sufficient, as it now appears, by the sum of 
 dollars, to pay the debts against such estate; and it further appearing that all the allega- 
 tions of said petition are true in fact; now, therefore, it is hereby 
 
 DECREED, ORDERED and adjudged by the court, That the said administrator have leave, 
 and be authorized to sell the following described real estate, situate in the said county of 
 , and State of Illinois, to wit : , or BO much thereof as may be 
 
 necessary to pay the debts of the said estate; and it is further 
 
 ORDERED and adjudged by the court, That the said administrator sell the said land on the 
 day of next, at the hour of o'clock p. M. of said day, on the premises, the 
 
 said administrator having first given notice of such intended sale according to the require- 
 ments of the law, and that in case the said administrator should deem it best for the interest 
 of paid estate, he may postpone the said sale to such other day as he may appoirt, always 
 giving notice of such postponed ale the same as in the first instance ; and it is further 
 
 ORDERED, That said land be sold on the following terms : cash in hand, 
 
 in mouths, and the balance in months, each with interest, the purchaser to give 
 
 a mortgage on the premises, with approved personal security; and that said administrator 
 report his acts and doings herein to this court, and that this application be, for that purpose, 
 continued to the next term of this court. 
 
 ADMINISTRATOK'8 SALE. 
 
 In the estate of , deceased. By virtue of a decretal order of the county 
 
 court of county, Illinois, entered of record on the day of , 18 , 
 
 * This notice being jurisdictional, it is of the greatest importance that it be properly givec 
 and accurately recited. Sotxford v. 0' Conner, 57111. 72. Donlin v. Hettinger, id. 348. See 
 PI-. i>2, 63, 193-307, supra.
 
 316 THE PEOBATE EECOED. [CH. XIV. 
 
 The forms. 
 
 we will sell at public auction to the highest and best bidder, on the day 
 
 of , 18 , at the hour of o'clock A. M., on the premises designated 
 
 as, in the of , in said State, the following described real estate of said 
 
 deceased, to wit : , in the county of , and State of Illinois. Subject to 
 
 a mortgage of $ . Terms of sale, half cash, and half in months, with 
 
 approved security, with interest at 8 per cent per annum. 
 
 , Administratrix, and 
 , Administrator of deceased's estate. 
 Dated, 18 . 
 
 ORDER CONFIRMING SALE OF REAL ESTATE. 
 
 Title as in the ) 
 
 decree, Order Confirming Sale of Meal Estate. 
 
 p. 307, supra, j 
 
 And now on this day comes , administrator of the said estate, and 
 
 presents to the court a report of his acts and doings under the leave of this 
 court, to sell the real estate of which said died seized, and the court having 
 examined said report, and it appearing that said administrator caused proper 
 notice of the time and place of said sale to be published and posted, as by law 
 and the order of this court required ; that, in pursuance of said order and 
 notices he did, on the day of , A. D. 18 , at o'clock in the 
 
 afternoon of said day, on the premises, sell said real estate, in said order de- 
 scribed, at public sale to one C D, for the sum of dollars, and that said 
 C D did thereupon comply with the terms of said sale, and the said adminis- 
 trator having thereupon made a deed of conveyance of the said land to the said 
 C D, which is now shown to the court for approval, and the court being now 
 fully advised touching said sale, it is 
 
 ORDERED and adjudged by the court, That the said acts and doings of the 
 said administrator, in and about said sale be approved, and said sale confirmed, 
 and that the deed so made by him be approved, and that he deliver the same 
 to the said C D. 
 
 ORDER APPOINTING A GUARDIAN. 
 
 In the matter of ) 
 
 the guardian- v Appointment of Guardian. 
 
 ship of . ) 
 
 On this day comes , and represents to the court that , of 
 
 the said county of , is an orphan minor, of the age of years, has no 
 
 father living, arid is without a guardian in this State ; and prays the court that 
 he be appointed guardian of the said minor ; and it appearing to the court that 
 said is an orphan minor, as represented, and that said is the 
 
 of said minor, and a suitable person to have the custody, education and 
 maintenance of said minor, it is 
 
 ORDERED, That said be appointed guardian of the person and estate 
 
 of the said , upon his entering into bond, with security, as the law 
 
 directs, in the penal sum of dollars. 
 
 And now again comes the said , and presents to the court his bond
 
 3H. XIV.] THE PROBATE RECORD. 317 
 
 The forms. 
 
 as guardian of said , with A B and C D as his securities thereon ; 
 
 and the court being now sufficiently advised concerning said bond and the 
 said securities, it is 
 
 ORDERED, That the same be approved and filed ; and it is further 
 
 ORDERED, That letters of guardianship issue to said 
 
 Where the minor is fourteen years of age, or upward, omit " prays 
 the court that he may be appointed guardian," etc., and insert, 
 " and it appearing to the court that the said is of the age of 
 
 fourteen years and upward, and the said minor being present in open 
 court, chooses for his guardian the said ." 
 
 These forms and entries might be indefinitely extended, so as to 
 embrace the almost endless variety of cases that come before the 
 probate courts, but those already given will abundantly show the 
 manner in which such papers should be drawn, and how the record 
 is to be made. 
 
 PROOF OF DEATH OF TESTATOR. 
 
 STATE OF ILLINOIS,) 
 
 County. f w 
 
 , of said county, being first duly sworn, says that , late 
 
 of said county, died on or about the day of , A. D. 18 , at the said 
 
 county, leaving, at the time of his decease, property and effects therein, and 
 also an instrument in writing which affiant believes to be his last will and 
 testament, which paper writing he now produces to the court for probate. 
 
 , County Glerk. 
 
 Subscribed and sworn to before me, ) 
 this day of , A. D. 18 . ) 
 
 SUBPOENA TO WITNESSES TO PROVE EXECUTION OF A WILL. 
 
 STATE OF ILLINOIS,) 
 
 County. j * 
 
 The People of the State of Illinois to the Sheriff of said County, greeting : 
 
 You are hereby commanded to summon E F and Q H, if to be found in 
 your county, to be and appear before the county court of county, on the 
 
 Monday in the month of next, at o'clock A. M., of said day, to 
 
 testify the truth in a certain matter depending before the said court, touching 
 the proof, execution and validity of the last will and testament of 
 late of said county, deceased, and such other matters as shall then and there 
 be required of them, relating to the same ; and this they are not to omit under 
 penalty. And then and there return this writ. 
 
 r -, Witness , clerk of said court, and the seal thereof, 
 
 at , this day of , A. D. 18 . 
 
 , County Clerk.
 
 318 THE PROBATE EECOED. [CH. XIV. 
 
 The forms. 
 
 CLERK'S CERTIFICATE TO COPY OF WILL, LETTERS, ETC. 
 
 STATE OF ILLINOIS,! 
 
 County, f ss 
 
 I, , clerk of the county court of said county, the same being a court 
 
 of record, and having an official seal, and having exclusive original jurisdiction 
 of all matters, probate and testamentary, in said county, do hereby certify that 
 the foregoing annexed papers are a true, full and correct copy of the original 
 last will and testament of , late of said county, deceased, as the same 
 
 was admitted to probate by and recorded in said county court, and of the letters 
 testamentary issued thereon ; that the said will was duly proved and letters 
 thereon granted, in accordance with the laws of the State of Illinois, and that 
 said letters remain in full force. 
 
 [SEAL.] In testimony whereof, etc. 
 
 CITATION FOR ADMINISTRATORS, EXECUTORS AND GUARDIANS. 
 
 STATE OF ILLINOIS, ) 
 
 County, j s 
 
 The People of the State of Illinois, to the Sheriff of said County, greeting : 
 
 WHEREAS (here insert the particular state of facts upon which the citation was 
 awarded}. 
 
 You are therefore hereby commanded that you cite and give notice to the 
 said , as aforesaid, that he be and appear before our county court 
 
 of county, at a special term thereof, to be holden at the court-house. 
 
 or usual place of holding courts, in , on the day of , A. I). 
 
 18 , then and there to answer as such in the premises ; and further 
 
 to do and perform what shall then by our said court be required and adjudged. 
 And hereof make due service and return as the law directs. 
 
 Witness, , clerk of said county court for the county 
 
 [SEAL.] of , at his office in , this day of , 
 
 A. D. 18 
 
 County Clerk. 
 
 CITATION TO ADMINISTRATOR OR EXECUTOR. 
 
 STATE OF ILLINOIS,) 
 
 County. \ Si 
 
 The People of the State of Illinois, to , administrator of , 
 
 WHEREAS, complaint has been made to the county court of said county, by one 
 A B, because you have [failed to file an inventory of the estate of said , de- 
 
 ceased, within three months from the date of your letters of administration]: You, 
 the said administrator, are hereby cited to appear before the said county court of 
 county, at the next regular term thereof, to be holden at the court-house 
 in the city of in said county, on the Monday of , A. D. 18 
 
 [to show cause why you should not file such inventory.] 
 
 [SEAL.] In witness whereof, etc.
 
 CH. XIV.] THE PKOBATE RECOKD. 319 
 
 The forms. 
 
 A variety of citations may be constructed by omitting what is iu 
 brackets and inserting in lieu thereof whatever may be required for 
 any different state of facts. 
 
 WAIVER OF DOWER BY A WIDOW ACCEPTING A PROVISION IN THE WILL IN HER 
 
 BEHALF. 
 
 KNOW ALL MEN BY THESE PRESENTS, That whereas, my late husband, , 
 
 deceased, late of the county of , in the State of Illinois, in and by his 
 
 last will and testament probated in said county, provided as follows : (Here in- 
 sert a copy of the provision made in the will, which the widow may accept in lieu 
 of dower.} I, the said , in consideration thereof, accept the said provis- 
 
 ion, so made and expressed, to be in lieu of my dower in the real estate of which 
 the said died seized, and acknowledge the same now paid to me by 
 
 executor of the said last will and testament of said , deceased, to be in 
 
 full satisfaction of all my right and claim of dower, which I might otherwise 
 have been entitled to, in the real estate which was of the said , deceased, 
 
 during our coverture, and by these presents do release, renounce and discharge 
 all my right and claim of dower, of, in and to all such estate. 
 
 In witness whereof, I have hereunto set my hand and seal, this day of 
 
 , A. D. 18 . . [SEAL.] 
 
 RENUNCIATION OF PROVISION IN A WILL IN LIEU OF DOWER. 
 
 WHEREAS, , late of the county of , in the State of Illinois, in 
 
 and by his last will and testament, proved in the county court of said county, 
 made the following provision for the undersigned in lieu of dower, to wit : (Here 
 inxt-rt copy of such provision,) which said provision so made, I, , widow 
 
 of the said , deceased, of said county, do not accept in lieu of my dower 
 
 interest in the estate left by said , but hereby renounce the said provis- 
 
 ion, aud shall and do insist upon my right and claim of dower, in the estate of 
 the said , deceased, to which I may be legally and justly entitled, not- 
 
 withstanding any provision in the said will to the contrary ; and I desire that 
 this my renunciation be entered of record. 
 
 In witness whereof, I have hereunto set my hand and seal, this day 
 
 of , A. D. 
 
 . [SEAL.] 
 
 FORM OF APPRENTICE'S INDENTURE. 
 
 THIS INDENTURE, made this day of , A. D. 18 , WITNESSETH, 
 
 That , now of the age of , on the day of , A. D. 
 
 18 , hath put himself, and by these presents, by and with the approbation 
 of the judge of the county court of county, Illinois, doth voluntarily, 
 
 and of his own free will and accord, put himself apprentice to of the 
 
 county of , and after the manner of an apprentice to serve from the 
 
 day of the date hereof, for and during and until the end and term of 
 years, or until the day of , A. D. 18 
 
 During all of which time the said his master shall faithfully serve, 
 
 his secrets keep, and his lawful commands everywhere obey. He shall do no
 
 320 THE PROBATE EECOED. [CH. XIV. 
 
 The forms. 
 
 damage to his said master, nor see it done by others without giving notice thereof 
 to his said master ; he must not contract matrimony within the said term ; he 
 shall not waste his master's goods, nor lend them unlawfully to any ; at cards, 
 dice, or any unlawful game he shall not play, whereby his said master shall 
 have damage ; he shall not absent himself night or day without his leave, but 
 in all things behave himself as a faithful apprentice ought to do. 
 
 And the said master agrees, to the utmost of his power, to procure and pro- 
 vide for the said apprentice during said term of years, or until the said 
 shall attain the age of years. And shall cause said to 
 be taught to read and write, and the ground rules of arithmetic ; and shall also, 
 at the expiration of said term of service, give to said a new bible and 
 two new suits of complete wearing apparel, suitable to his condition in life ; 
 and shall also, during the continuance of said term of service, according to the 
 best of his endeavors, find his said apprentice with sufficient wearing apparel, 
 washing and mending, suitable and fit for an apprentice to wear. 
 
 And for the true performance of all and singular the covenants and agree- 
 ments aforesaid, the said binds himself unto the said firmly 
 by these presents. 
 
 In witness whereof, the said parties have hereunto set their hands and seals, 
 the day and year first above written. 
 
 Witness, , [SEAL.] 
 
 , [SEAL.] 
 
 LETTERS OF GUARDIANSHIP. 
 STATE OP ILLINOIS,) 
 
 County. J 8 * 
 
 The People of the State of Illinois, to , greeting : 
 
 WHEREAS, At the county court, holden in and for said county, at , on 
 
 the day of , A. D. 18 , you were duly appointed by said court guar- 
 
 dian for , minor , aged as follows : (Here insert ages.} 
 
 Trusting in your fidelity, therefore, the said court do by these presents 
 allow, constitute and appoint you, the said , to be guardian unto said 
 
 minor , and authorize and empower you to take and have the care of 
 person, and the custody and management of property, frugally, and 
 
 without waste or destruction, to improve and account for the same in all things 
 
 according to law. 
 
 In witness whereof, I have hereunto set my hand and affixed 
 [SEAL.] the seal of said county court, at my office in , this 
 
 day of , A. D. 18 . 
 
 , County Clerk . 
 
 EXECUTION FOR COSTS.* 
 
 B A ) 
 
 v. > Defendant's Costs. 
 
 C D. } 
 To amount of clerk's fees, as follows : (Here insert copy from fee book.) 
 
 I, A B, clerk of the county court of said county, do hereby certify that the 
 above is a true copy of defendant's costs, as appears on my fee book. 
 
 A B, County Clerk. 
 
 * See Whitehurst v. Coleen, 53 111. 247; 2 Hill's C. L. 635 ; Rowan v. Kirkpatrick, 14 111. 
 1 ; pp. 294-300, supra.
 
 CH. XIV.] THE PROBATE EECOED. 321 
 
 The forms. 
 
 STATE OF ILLINOIS,) 
 
 County. f 
 
 The People of the State of Illinois to the Sheriff of said County, greeting : 
 
 We command you that, if the above fee bill, amounting to dollars, shall 
 not be paid within thirty days after being by you demanded, you cause the 
 same to be made of the goods and chattels, lands and tenements of the said 
 , in your county, according to the statute in such case made and 
 provided, and make return hereof within ninety days, in what manner you 
 shall have executed the same. 
 
 Witness, A B, clerk of the county court of said county, and 
 [SEAL.] the geal thereof> at f thia day of , 18 . 
 
 A B, Clerk. 
 COMMISSION TO TAKE DEPOSITION OF NON-RESIDENT WITNESS. 
 
 STATE OF ILLINOIS,) 
 
 County. f " 
 
 The People of the State of Illinois to (here insert the name of person who is to 
 take the deposition). 
 
 WHEREAS, It has been represented to us that (here insert the names of the 
 witnesses) material witnesses in a certain cause now depending in our county 
 court, in and for the county of aforesaid, between , plaintiff, 
 
 and , defendant, (or touching the proof of the execution and validity 
 
 of the will of (as the case may be), and that the said witnesses reside 
 
 at aforesaid, without the said State of Illinois, and that per- 
 
 sonal attendance cannot be procured at the trial of the said cause. Now, 
 know ye, that we, in confidence of your prudence and fidelity, have appointed 
 you commissioner to examine the said witnesses, and do, therefore, authorize 
 and require you to cause the said witnesses to come before you, at such time 
 and place as you may therefor designate and appoint, and diligently to examine 
 the said witnesses, on the oath or affirmation of the said witnesses, by you first 
 duly in that behalf administered, and faithfully to take the deposition of the 
 said witnesses upon all interrogatories inclosed with or attached to these 
 presents, both on the part of the said plaintiff and of the said defendant, and 
 none others ; and the same, when thus taken, together with this commission, 
 and the said interrogatories, to certify into our said county court with the least 
 possible delay. 
 
 Witness, , clerk of our said court, and seal thereof, 
 
 at , in said county, this day of , A.D. 18 . 
 
 , Clerk. 
 
 Attach to the dedimus potestatum instructions as to the manner 
 of taking and returning depositions, (r) 
 
 When the sale is made, the purchaser is entitled to a deed from 
 the administrator ; and, if the land be sold on a credit, the pur- 
 
 (r) See p. 34, supra. 
 41
 
 322 THE PROBATE RECORD. [CH. XIV 
 
 The forms. 
 
 chaser is required to give bond (or note), with good security, and u 
 mortgage. on the premises sold. By " good security " is meant such 
 personal security as the administrator may, in a reasonable exercise 
 of his judgment, approve. If a person whose bid has been received 
 tender unquestionable security, and a proper mortgage on the prem- 
 ises, the administrator has no right to refuse it, out of mere caprice. 
 The deed may be as follows : 
 
 DEED BY AN ADMINISTRATOR, UNDER A DECREE OF COURT. 
 To All to whom these Presents shall come : 
 
 A B, of , in the county of , and State of Illinois, administrator of 
 
 the goods and estate which were of C D, late of the said county, deceased, 
 intestate, sends greeting : 
 
 WHEREAS, at the term of the circuit court of the said county of 
 
 and State aforesaid, in the year of our Lord one thousand eight hundred and 
 , in the matter of the petition of A B, administrator as aforesaid, for 
 leave to sell the following described real estate, situated in the county of 
 and State of Illinois, to wit : (here describe the land), it was ordered and decreed 
 by said court, in chancery sitting, in the words following, to wit : (here set 
 forth the order and decree at large) ; and whereas, in pursuance of said order 
 and decree, I did proceed to sell the premises aforesaid, after having given 
 the notice aforesaid, on the day and between the hours aforesaid, at the place 
 aforesaid, at public vendue, and the said premises were struck off to E F, of 
 said , he being the highest and best bidder therefor, for the sum of 
 
 dollars : 
 
 Now, therefore, know ye that I, the said A B, administrator as aforesaid, by 
 virtue of the order and decree aforesaid, and in consideration of the sum 
 of dollars, to me paid by the said E F, the receipt whereof I do 
 
 hereby acknowledge, do hereby grant, sell and convey unto the said E 
 F, his heirs and assigns, all that tract and parcel of land situated in the 
 county of , to wit : (here describe the land ) : To have and to hold 
 
 the said premises unto the said E F, his heirs and assigns, to his and 
 their behoof forever. And I, the said A B, administrator as aforesaid, do 
 hereby covenant with the said E F, his heirs and assigns, that I have in all 
 respects complied with the order and decree of said circuit court, and with the 
 directions of the law generally, in such case made and provided. 
 
 In witness whereof, I, the said A B, in my said capacity of administrator, 
 have hereunto set my hand and seal, this first day of , A. D. 18 . 
 
 A B. [L. s.] 
 
 Signed, sealed and delivered in ) 
 presence of \ 
 
 After completing the sale, the administrator should report to the 
 court and obtain a confirmation thereof.
 
 CH. XIV.] THE PEOBATE EECOED. 323 
 
 The forms. 
 
 REPORT. 
 
 STATE OF ILLINOIS,) County Court of County, 
 
 County. \ s& Term, IS . 
 
 To Hon. , Judge of said Court : 
 
 In the matter of the application of , administrator of , deceased, 
 
 to sell real estate. 
 
 The said administrator, charged with the execution of the order of sale 
 entered in said cause at the last term of this court, would respect- 
 
 fully submit the following report of his acts and doings under said order : 
 
 That in pursuance of said order of sale, he did, on the day of , 
 
 A. D. 18 , put up notices of the sale of said real estate, in said order directed 
 to be sold, in four of the most public places in the said county of , to wit : 
 
 one at the court-house, one at the post-office in , etc., a copy of which 
 
 notice, with proof of such posting, is hereto attached; that he caused a similar 
 notice to be published in the , a weekly paper, published at , in 
 
 said county, for four successive weeks prior to said sale, a copy of which adver- 
 tisement, with the publisher's certificate of the due publication thereof, is also 
 hereto attached. 
 
 That in pursuance of said order of sale, and the said notice, he did, at the 
 time and place mentioned in such notice, sell at public sale the said real estate 
 in the said order directed to be sold, to C D, of , aforesaid, for the sum of 
 
 four thousand dollars, his being the highest and best bid therefor, on a credit 
 of months. That thereupon the said C D having complied with the terms 
 
 of said sale, by giving his note, with good approved personal security, and a 
 mortgage upon the said premises, the undersigned executed to said C D a deed 
 of the said premises, and delivered the same to him. 
 
 All of which is respectfully submitted, and an order confirming all the said 
 acts and doings is hereby prayed for. 
 
 , Administrator of , deceased. 
 
 The lands affected are to be described in the notices with legal 
 certainty. 
 
 Notices should be posted up at least four weeks before the time of 
 sale, and a similar notice published in such newspapers four weeks 
 successively. Copies of the notices should be preserved by the per- 
 son posting them, and his affidavit of the time when and the places 
 where he posted them, indorsed upon each, and filed in the court 
 making the order. A copy of the newspaper notice, with the 
 publisher's certificate of publication, should likewise be filed, and 
 both attached to and returned to court with the report of the sale 
 made by the administrator for an order confirming the sale.* 
 
 NOTICE OF SALE. 
 
 Notice of Administrator's Sale. 
 By virtue of an order and decree of the court of county, Illinois, 
 
 * See page 200, supra. Also ch. 3, 109, K. 8., as amended April 7, 1875, Laws of 1875, 
 p. 1 . Cothran's Stats., p. 76 : Marshall v. Rose, Adm'x., 86 111. 374 ; Allen v. Shepard, 87 
 111. 31i ; KMovv v. Wilson, 89 111. 357.
 
 324: THE PROBATE RECORD. [CH. XIV. 
 
 The forms. 
 
 made on the petition of the undersigned, administrator of the estate of , 
 
 deceased, for leave to sell the real estate of said deceased, at the last December 
 term of said court, to wit, on the 3d day of December, 18 , I shall, on the 2d 
 day of April next, between the hours of 10 o'clock, A. M., and 4 o'clock, p. M., 
 of said day, sell at public sale, on the premises, the following described real 
 estate, situate in the county of , and State of Illinois, to wit : , more 
 
 or less, on a of months, the purchaser to give approved personal security, 
 and a mortgage on the premises sold, to secure the payment of the purchase- 
 money. 
 
 , Administrator of , deceased. 
 
 Dated , 18 . 
 
 The sale is to be public, i. e., at auction. If there are several tracts 
 of land to be sold, each is to be put up separately; a sale en masse 
 would not be authorized. A sale made before 10 o'clock, A. M., or 
 after 5 o'clock, p. M., of the day, would be void.* 
 
 The order should generally provide for, and the mode of, a post- 
 ponement of the sale; where it fails to do so, and fixes the day of 
 sale, if there be no bidders, or the administrator deem it best for 
 the interest of the estate, he may refuse to put it up, but cannot 
 continue it. He must again apply to the court for a new order, 
 fixing another day of sale. If an administrator sell the land contrary 
 to the provisions of the law, he is liable to forfeit and pay five hun- 
 dred dollars, for the use of any person interested. 
 
 RENUNCIATION 
 
 STATE OP ILLINOIS, ) In the County Court of Oounty, 
 
 County, \ ss of the term, A. D. 18 . 
 
 In the matter of the estate of \ 
 
 A B, deceased, leaving a last > 
 
 will and testament. ) 
 
 WHEREAS, A B, late of , deceased, died on tiie day of , 
 
 18 , at , having made and duly executed his last will and testament, 
 
 being the day of 18 , and thereof appointed me the under- 
 
 signed sole executor. 
 
 Now I, the said C D, do hereby declare that I have not intermeddled in the 
 personal estate and effects of the said testator, and will not hereafter inter- 
 meddle therein, and I do hereby renounce all my right and title to the probate 
 and execution of the said will. C D. 
 
 Signed by the said C D, this day of | 
 
 ,18 , in the presence of f 
 
 (Signed.) 
 
 RENUNCIATION OF THE RIGHT TO ADMINISTER. 
 
 STATE OF ILLINOIS, | In the County Court of County, 
 
 County, <j of the term, A. D. 18 . 
 
 In the matter of the estate of \_ 
 A B, deceased, intestate. ) 
 
 WHEREAS, A B, late of in the county of , deceased, died on the 
 
 * See page 200, supra. Also Cothran's Stats., p. 76, and cases cited.
 
 CH. XIV.] THE PKOBATE RECORD. 325 
 
 The forms. 
 
 day of , 18 , at , intestate, a widower ; and whereas, I, C D, am 
 
 his natural and lawful and only child. 
 
 Now, I, the said C D, do hereby renounce all my right and title to the letters 
 of administration of the personal estate and effects of the said A B, deceased. 
 Signed by the said C D, this day of ) CD. 
 
 , A. D., in the presence of . y 
 
 (Signed.) 
 
 The foregoing form, at page 226, supra, may be used by a distributee 
 by a slight alteration, substituting " administrator," etc., for " exec- 
 utor," etc., and " distributee " for " legatee." 
 
 "When a legacy is given to a married woman, the husband should 
 execute the bond for her, or with her, in addition to the security. 
 In case the legatee, after being ordered to refund, shall neglect to do 
 so within sixty days thereafter, it works a breach of the bond. In 
 case there is no bond taken, an action of debt may be maintained 
 against such legatee or distributee, for his share ordered to be 
 refunded. 
 
 DEED BY AN EXECUTOR UNDER AN AUTHORITY IN A WILL. 
 
 To all persons to wJiom these presents shall come : 
 
 A B, of the county of , and State of Illinois, executor of the last will 
 
 and testament of C D, late of said county, deceased, testate, sends greeting : 
 
 WHEREAS the said C D, in order to enable his said executor fully to carry 
 into effect his intentions, did, in and by his last will and testament, authorize 
 and empower his said executor (here set out the power, in the language of the 
 
 Now, THEREFORE, KNOW YE, That I, the said A B, executor as aforesaid, by 
 virtue of the authority to me given by the said C D in the said last will and 
 testament, and in consideration of dollars, to me paid by E F, of the 
 
 said county of , the receipt whereof I do hereby acknowledge, do 
 
 hereby grant, bargain, sell, and convey to the said E F, his heirs and assigns, 
 all that tract or parcel of land situate in the county of , and known 
 
 and described as follows, to wit : , containing acres of land, be 
 
 the same more or less. 
 
 To have and to hold the said premises, to him the said E F, his 
 heirs and assigns, to his and their use and behoof forever. And I, the said 
 A B, covenant with the said E F. his heirs and assigns, that I am lawfully 
 the executor of said last will and testament, and that I have not made or 
 suffered any incumbrance in said premises, since I was appointed executor of 
 the said C D ; and that I have, in all respects, in making this conveyance, 
 acted in strict pursuance of the authority granted to me in and by said last 
 will and testament of the said C D. 
 
 In witness whereof, I, the said A B, in my said capacity of executor of the
 
 326 THE PROBATE RECORD. [CH. XIV. 
 
 The forms. 
 
 said C D, have hereunto set my hand and seal, this day of , A. D 
 
 18 . 
 
 A B. [SEAL.] 
 
 Signed, sealed, and delivered ) 
 in presence of J 
 
 Upon discovering the insolvency of the estate it is the duty of the 
 administrator to take immediate steps to convert the real property into 
 assets for the benefit of the creditors. Should he neglect to do so, 
 the county court may coerce him to make such application. 
 
 The statute does not prescribe the mode of such coercion. The 
 usual practice in such cases is, a motion to the court, setting forth 
 the interest of the party applying to the court, the fact of insolvency, 
 and that there is real estate of the intestate, the neglect of the 
 administrator to take steps under the statute to have the real estate 
 sold, and reduced to assets for the payment of the debts. An affida- 
 vit is not required as the foundation of such motion, the facts are 
 matter of record in the court; yet if put in, it would present all the 
 necessary facts in a more tangible form. 
 
 The order of the court, compelling the executor or administrator 
 to sell real estate, has been given.(s) After the order is made, 
 the proceedings for sale by the executor or administrator are as 
 already given, in the case of his voluntary application to sell. 
 
 The court, by the " account and report," is advised of the extent 
 of the deficiency; it should also be advised of the value of the land 
 sought to be converted into assets to meet such deficit, so as to 
 determine whether it is necessary to sell the whole, or only a part of 
 it ; the situation of the estate should also be shown, that the court 
 may know whether it would be prejudicial to the interest of the 
 heirs to sell a part instead of the whole. This evidence is generally 
 the testimony of witnesses acquainted with the property. The 
 administrator may himself be a witness. 
 
 PROCEEDINGS SUBSEQUENT TO THE ORDER. After the order has 
 been obtained by the administrator to sell the real estate of the 
 deceased, he is first to give notice of the time and place of the sale. 
 The notice is to be " published for the space of six weeks successively, 
 by putting up notices in at least four of the most public places in 
 the county where such real estate is to be sold ; and also by causing 
 a similar notice thereof to be published in the nearest newspaper in 
 this State." 
 
 () See p. 314, also amended act as to sale, etc., Cothran's Stats., p. 76; 
 cases cited.
 
 CH. XIV.] THE PROBATE RECORD. 327 
 
 The forms. 
 
 The statute provides that whenever it shall be represented to the 
 court that any orphan minor above the age of fourteen years has 
 not a guardian, it shall be the duty of the court to issue a notification 
 to such minor to appear before the said court and choose a guardian. 
 
 This representation made to the court may or may not be in 
 writing ; but the best practice is to require it in writing. 
 
 The following short form may be used : 
 
 REPRESENTATION. 
 
 STATE OP ILLINOIS, ) County Court of County, 
 
 County. J Si term, A.D.1S . 
 
 To Hon. E F, Judge of said Court : 
 
 The undersigned respectively represents and shows to your honor, that one 
 A B, resident of said county, is an orphan minor above the age of fourteen 
 years, to wit, of the age of sixteen years, and has no guardian ; that the under- 
 signed verily believes that the interest and welfare of the said A B requires 
 the appointment of a guardian for him ; wherefore, the undersigned prays the 
 court to notify the said A B to appear in said court, at the next term 
 
 thereof, and choose a guardian ; and if he neglect so to do, that the court will 
 appoint a guardian for him. 
 
 Dated , 18 . CD. 
 
 NOTICE OP APPLICATION TO SELL REAL ESTATE. 
 
 Guardian's Notice. 
 
 STATE OF ILLINOIS, ) In the County Court of County, 
 
 County. \ s& term, A. D. 18 . 
 
 To all persons concerned : 
 
 Take Notice, That the undersigned, guardian of E F, a minor, will apply to 
 the circuit court of said county, at the next term thereof, to be holden at 
 the court-house in said county on the Monday in next, for an order to 
 
 sell the following described real estate, belonging to said minor, and situate in 
 the county of , and State of Illinois, to wit : (here describe the land), and 
 
 that the petition therefor is now on file in the office of the clerk of said court. 
 
 A B, Guardian of E F. 
 
 Dated , 18 . 
 
 The statute may not require the petition to be on file before the 
 sitting of the court, but such is a just practice, as it will afford those 
 interested an opportunity, which is due them, to examine the 
 grounds upon which the application is based. 
 
 The proof of publishing the notice is to be made as in other cases. 
 
 FOBM OF PETITION FOR SALE OF REAL ESTATE BY GUARDIAN. 
 
 STATE OF ILLINOIS, ) In the County Court of County 
 
 County. \ Si term, A. D. 18 . 
 
 To the Hon. B C, Judge of said Court : 
 The petition of A B, of the county of , and State of Illinois, guardian
 
 328 THE PROBATE RECORD. [ CH - 
 
 The forms. 
 
 of E F, a minor, respectfully represents and shows to your honor : That your 
 petitioner was, on the day of , A. D. 18 , appointed guardian of the 
 
 said E F, by the county court of county, as will appear on the hearing 
 
 hereof, by the production of his letters of guardianship in evidence. 
 
 And your petitioner further shows, that as such guardian he has faithfully 
 applied all the personal estate belonging to said minor, and has fully exhausted 
 the same, as will appear on the hearing hereof, by a certified copy of his 
 account rendered to the county court of county, aforesaid, at the last 
 
 term thereof, and the order of said court approving the same, which is hereto 
 attached, marked " Exhibit A." 
 
 And your petitioner further represents, that the said E F is the owner in fee 
 of the following described real estate, situate in the county of , and State 
 
 of Illinois, to wit : (here insert description of the land) ; that said land is 
 improved, and has upon it a dwelling-house and out-buildings ; that the said 
 buildings and the improvements on the said land are in a dilapidated condition, 
 and rapidly decaying ; that the dwelling-house is becoming untenantable, and 
 the fence insufficient to protect the fields ; that petitioner has no funds belonging 
 to said minor to put the said property in tenantable repair ; that said real estate 
 is deteriorating in value for the reasons aforesaid. 
 
 And your petitioner further shows, that funds are needed to maintain and 
 educate said minor in a proper manner. 
 
 And your petitioner further states, that said real estate is now worth 
 dollars, and that the interest of his said ward would be greatly promoted by a 
 sale of the said property, and an investment of the funds arising from the sale 
 thereof in wild land, after deducting such an amount as will be necessary for 
 the maintenance and education of said minor. 
 
 Wherefore, in consideration of the premises, your petitioner prays leave to sell 
 the said real estate, according to the statute in such case made and provided. 
 
 And your petitioner will ever pray, etc. A B, 
 
 Dated ,18 . Guardian of E F. 
 
 In the petition by a resident guardian for the sale of real estate. 
 it must appear that he has faithfully applied all the personal estate. 
 or if there was no personal estate, that fact must be distinct!}* set 
 out, to give the court jurisdiction. The court is authorized to order 
 the sale for two purposes, either for the support and education of 
 the ward, or that the proceeds maybe invested in other real estate.(tf) 
 
 The law in regard to non-resident guardians of infants, who own 
 real estate in Illinois, appears to dispense with the foregoing requi- 
 sition in regard to the application of all the personal estate. K"on- 
 resident guardians are entitled to an order for the sale of the real 
 estate of their wards, without other limitations than the filing with 
 the petition authenticated copies of their letters of guardianship, 
 (t) Young v. Lorain, 11 HI. 638.
 
 CH. XIV.] THE PROBATE RECORD. 329 
 
 The forms. 
 
 and the bond required by such act for the faithful application of 
 the proceeds of such sale, in such manner as the court appointing 
 the guardian may direct, and the approval thereof. The sale in such 
 a case is to be for the purpose of educating and supporting the ward, 
 or of investing the proceeds of the sale in such real estate as the 
 court appointing the guardian may direct. 
 
 In all other respects the proceedings on applications to sell real 
 estate by non-resident and resident guardians are the same. 
 
 The order will direct the terms, time and place of sale, and the 
 notice thereof to be given, which order must be strictly followed, to 
 render the sale legal. 
 
 NOTICE OP GUAKDIAN'S SALB. 
 Guardian's Sale. 
 
 STATE OF ILLINOIS,) 
 
 County, f w 
 
 By virtue of a decretal order of the county court of said county, entered at 
 the last term of said court, on the application of the undersigned, guar- 
 
 dian of E F, a minor, to sell the following described real estate belonging to 
 said minor, situate in the county of , and State of Illinois, to wit : (here 
 
 insert description of the land), I shall, on the day of next, between 
 
 the hours of 10 o'clock A. M., and 4 o'clock p. M., of said day, sell the said real 
 estate at public sale, on the premises, to the highest and best bidder. Terms 
 of sale as follows : one-half cash in hand, one -fourth in one year, and the bal- 
 ance in two years, with six per cent interest. Approved personal security, and 
 a mortgage oh the premises for the payment of the unpaid purchase-money, 
 will be required of the purchaser. Deed made to the purchaser on the day of 
 sale. 
 
 No bid will be received under dollars per acre. 
 
 AB, 
 
 Dated , 18 . Guardian of E. F. 
 
 The notice should follow the order of court, and be posted or 
 published in the manner required by the order. 
 
 After the sale, the guardian is required to report it and the con- 
 veyance to the county court, for its approval. 
 
 The following decisions have been made by the supreme court 
 upon this point. In case of Rawlings v. Bailey, 15 111. 178, the 
 court say: A guardian's deed is inoperative, unless the sale and 
 conveyance have been reported to, and approved by the circuit court. 
 The same principle is also laid down in 15 111. 433, 444, 481; 11 id. 
 642. 
 
 Where a statute provides that title to land may be transferred in 
 43
 
 330 THE PROBATE RECORD. [CH. XIV. 
 
 The forms. 
 
 a particular way, it must be done in the way prescribed, or it receives 
 no sanction from the statute, and is void. 15 111. 481. 
 
 REPORT OF GUARDIANS' SALE. 
 
 STATE OF ILLINOIS, ) In the County Circuit Court of County, 
 
 County. J Si term, A. D.18 . 
 
 In the matter of the application of ) 
 
 A B, guardian of E F, to sell real V Report of Guardian's Sale. 
 
 estate. % ) 
 
 The undersigned, guardian of E F, would respectfully submit the following 
 report of his acts and doings, under the decretal order of this court, entered in 
 said cause at the last term thereof, for the sale of the real estate in 
 
 said order described. 
 
 That in pursuance of said order and decree, the undersigned did, on the 
 day of , 18 , put up notices of the sale of said land in three of the 
 
 most public places in said county, to wit : (here name the places where posted) a 
 copy of which said notices is hereto attached and made a part of this report, 
 marked " Exhibit A." That said notices were posted more than weeks 
 
 before the sale of said land hereinafter mentioned. 
 
 I do further report, that on the said day of , A. D. 18 , and at 
 
 the hour of 12 o'clock meridian, I did expose and offer at public sale, on the 
 premises, the said tract of land, in said decree described, in pursuance of the 
 said decree and the said notice, when bid for the same the sum of 
 
 dollars, and he being the highest and best bidder for the said tract of land, it 
 was sold to him for the sum of dollars. And the said then and 
 
 there paid to me the sum of dollars in hand, and executed to me, as such 
 
 guardian, his promissory notes for the balance of said purchase-money ; one 
 for the sum of dollars, payable six months after date, and the other for 
 
 the sum of dollars, payable twelve months after date, each with interest. 
 
 Said also executed to the undersigned a mortgage on the premises, to 
 
 secure the payment of the said unpaid purchase-money, wuereupon I, the said 
 A B, as such guardian, executed to the said , a deed of conveyance in fee 
 
 of the said tract of land so sold, which said deed is here shown to the court 
 for approval. 
 
 All of which is respectfully submitted, and an approval and confirmation of 
 said acts and doings prayed for. 
 
 A B, 
 Guardian of E F. 
 
 ADVERTISEMENT OR NOTICE TO BE GIVEN BY EXECUTORS OR ADMINISTRA- 
 TORS, SO SOON AS THEY ARE QUALIFIED AS SUCH. 
 
 Public notice is hereby given, that the undersigned has taken out letters tes 
 tamentary of the last will and testament (or of administration of the goods
 
 CH. XIV.] THE PROBATE K2COKD. 331 
 
 The forms. 
 
 and chattels, rights and credits, as the case may be) of A B, deceased, and 
 qualified as such executor (or administrator). All persons having claims 
 against the estate of the deceased are hereby notified and required to exhibit 
 the same to me, or to the county court of the county of , for settle- 
 
 ment, within months from the date hereof. Dated at , this 
 
 day of , A. D. 18 . 
 
 C D, Executor, etc.. 
 
 CITATION TO RETURN INVENTORY *AND APPRAISEMENT. 
 
 STATE OP ILLINOIS,) 
 County of . ] 8 * 
 
 The People of the State of Illinois, to the Sheriff of said county, greeting : 
 
 WHEREAS, it appears to our county court of county, upon an inspection 
 
 of the records thereof, that more than three months have elapsed since the 
 grant of letters to , as administrator of the estate of , deceased, 
 
 and that the said , administrator, ha not returned an inventory and 
 
 appraisement of said estate, as required by statute, but fails and neglects so 
 to do. 
 
 We do, therefore, hereby command you to cite the said , administrator 
 
 as aforesaid, to be and appear before our county court of county, at the 
 
 court-house in , in said county, on the day of , A. D. 18 , at 
 
 o'clock M., then and there to answer for such neglect, and show cause 
 why he ha not exhibited an inventory and appraisement of the estate of 
 said decedent, and why he should not be removed for such neglect ; and 
 further to do and receive in this behalf as unto law and justice shall appertain 
 under pain of the law and contempt thereof. 
 
 And hereof make due service and return as the law directs. 
 
 Witness, , clerk of the county court of county, and the seal of 
 
 said court, at , in said county, this day of , A. D. 18 . 
 
 , Clerk. 
 
 AFFIDAVIT OF CLAIM AGAINST ESTATE OF DECEASED. 
 
 ' In the CoUnty C Urt f Unty - 
 
 , being duly sworn, deposes and says, that the annexed account against 
 the estate of , deceased, is just and unpaid, and this deponent verily 
 
 believes that all credits and offsets thereto have been allowed, and that he has 
 no other claim against said estate. 
 
 Sworn to and subscribed before me, ) 
 this day of , A. D. 18 . ) 
 
 , Clerk of the County Court. 
 
 claim of the estate , deceased, as the amount due on , 
 
 hereto annexed, over and above all credits and offsets, the sum of dollars 
 
 and cents, and interest on from , A. D. 18 , at per cent 
 
 per annum. 
 
 , Plaintiff.
 
 332 THE PROBATE EECOKD. [CH. XIV. 
 
 The forms. 
 
 CITATION TO ADJUDICATE. 
 
 STATE OF ILLINOIS, . 
 
 ~ S3 , 
 
 .is,) 
 County of . ) 
 
 The People of the State of Illinois, to the sheriff of said county, greeting : 
 
 WHEREAS, it appears to our county court of county, upon an inspection 
 
 of the records thereof, that more than six months have elapsed since the grant 
 of letters , and that the said ha not fixed upon a term of said 
 
 court for the settling and adjusting all claims against said decedent as 
 required by law, but fails and neglects so to do. 
 
 We do, therefore, hereby command you to cite the said , as aforesaid, 
 
 to be and appear before our county court of county, at the court-house 
 
 in , in said county, on the day of , A. D. 18 , at o'clock, 
 
 M., then and there to answer for such neglect, and show cause why he 
 should not be removed ; and further to do and receive in this behalf as unto 
 law and j ustice shall appertain, under pain of the law and contempt thereof. 
 
 And hereof make due service and return as the law directs. 
 
 Witness, , clerk of the county court of county, and the seal of 
 
 said court, at , in said county, this day of , A. D. 18 . 
 
 , Clerk. 
 
 INDENTURE OF APPRENTICESHIP OF A MINOR, WITH THE CONSENT OF FATHER, 
 MOTHER OR GUARDIAN. 
 
 This indenture, made and entered into this day of , A. D. 18 , 
 
 between A B, a minor, of his own free will and accord, and by and with the 
 consent and approbation of E F, his father, of the county of , and State 
 
 of Illinois (or mother or guardian, as the case may be), of the one part, and 
 Q H, of the same county and State, of the other part, witnesseth : That the 
 said A B does, by these presents, of his own free will and accord, and by and 
 with the consent of E F, his father (or mother or guardian), bind himself to the 
 said Gr H, as an apprentice, to learn the art (trade or mystery of merchant, 
 hatter, tanner or carpenter, or as the case may be), to dwell with and serve the 
 said G H, from the day of the date hereof until the day of , in the 
 
 year 18 , at which time the said A B will be twenty-one years of age. During 
 all of which time, or term, the said apprentice his said master well and faith- 
 fully shall serve, his secrets keep, and his lawful commands everywhere, at all 
 times, readily obey ; he shall do no damage to his said master, nor knowingly 
 suffer any to be done by others ; he shall not waste the goods of his said master, 
 nor lend them unlawfully to any ; at cards, dice, or any other unlawful game, 
 he shall not play ; matrimony he shall not contract during the said term ; 
 taverns, ale-houses, and places of gaming he shall not frequent or resort ; from 
 the service of his said master he shall not absent himself ; but in all things. 
 and at all times, he shall demean and conduct himself as a good apprentice 
 ought, during the whole term aforesaid. 
 
 And the said G H. on his part, does hereby covenant and agree to furnish the 
 said apprentice good and sufficient diet, clothing, lodging and other necessaries 
 convenient and useful for said apprentice during the term aforesaid, and also
 
 CH. XIV.] THE PEOBATE BECOED. 333 
 
 The forms. 
 
 shall cause said apprentice to be taught to read and write, and the ground 
 rules of arithmetic; and shall also give unto said apprentice a new Bible and 
 two new suits of clothes, suitable to his condition, at the expiration of his term 
 of service. 
 
 In testimony whereof, etc. 
 
 A B. [L. s.] 
 
 E F. [L. 8.] 
 
 G H. [L. s.] 
 
 INDENTURE OF APPRENTICESHIP, BY COUNT? JUDGE, TWO JUSTICES OP THE 
 PEACE, OR TWO OVERSEERS OP THE POOR. 
 
 This indenture, made and entered into this day of , A. D. , 
 
 between A B and C D, overseers of the poor (or justices of the peace, or county 
 judge), in and for the county of , and State of Illinois, of the one 
 
 part, and E F, of the same county and State, of the other part, witnesseth : 
 That the said overseers of the poor, by virtue of the law of the State of Illinois 
 in such cases made and provided, have placed, and by these presents do place 
 and bind out, as an apprentice, a poor child, named , son of , of said 
 
 county of , who is legally settled in and become chargeable to said 
 
 county, and who is proven to said overseers to be unable to maintain lain, the 
 said child, who is now of the age of years, to said E F, to learu the art, 
 
 trade or mystery of , of the said E F, after the manner of an apprentice, 
 
 to dwell with, and serve the said E F, from the day of the date hereof, until 
 the day of , A. D. ; at which time the said apprentice will be 
 
 twenty -one years of age. During all of which time or term, the said appren- 
 tice his master well and faithfully shall serve, his secrets keep, and his lawful 
 commands, everywhere and at all times, readily obey ; he shall do no damage 
 to his said master, nor knowingly suffer any to be done by others ; he shall 
 not waste the goods of his said master, nor lend them unlawfully to any ; at 
 cards, dice or any other unlawful games, he shall not play ; matrimony he shall 
 not contract during the said term ; taverns, ale-houses, or places of gaming he 
 shall not frequent or resort ; from the service of his said master he shall not 
 absent himself ; but in all things, and at all times, he shall demean and behave 
 himself as a good and faithful apprentice ought, during the whole term 
 aforesaid. 
 
 And the said E F binds himself to cause said apprentice to be taught to read 
 and write, and the ground rules of arithmetic; and shall also give unto said 
 apprentice a new Bible, and two suits of clothes, suitable to his condition, at 
 the expiration of his said term of service. 
 
 In testimony, etc.* 
 
 A B. [L. s.] 
 
 C D. [L. 8.] 
 
 E F. [L. s.] 
 
 "The above indenture, by the overseers of the poor, must be executed with the con- 
 sent of the county judge. It will be sufficient for him to indorse such consent on 
 the back of said indenture. In every case of binding a poor or orphan child, by any 
 of the authorized officers, a copy of the indenture must be filed with the county judge 
 for safe-keeping. E. S. 1874, p. 146. *
 
 334 THE PROBATE RECORD. [CH. XIV. 
 
 The forms. 
 
 , NOTICE TO MINORS. 
 
 WHEREAS, it is represented to the court of probate, that you, the said A B, 
 are an orphan minor, above the age of fourteen years, and entitled to some 
 estate (real or personal, as the case may be) of your deceased father, and that 
 you have no guardian ; you are, therefore, hereby notified to appear before the 
 court of probate, on the day of next, and choose a guardian ; and 
 
 if you shall neglect or refuse to appear and choose a guardian, the said court 
 will proceed to appoint one for you. 
 
 (Teste.) 
 
 The Chicago fire (October 8, 9, 1871), necessitated the Burnt 
 Eecords Bill.* The following section pertains to the probate juris- 
 diction : 
 
 " In case of the destruction by fire or otherwise of the records, or 
 any part thereof, of any county court having probate jurisdiction, 
 the judge of any such court may proceed, upon his own motion, or 
 upon the application, in writing, of any party in interest, to restore 
 the records, papers and proceedings of his court relating to the 
 estates of deceased persons, including recorded wills and wills pro- 
 bated or filed for probate in said court; and for the purpose of 
 restoring said records, wills, papers -or proceedings, or any part 
 thereof, may cause citations to be issued to any and all parties to be 
 designated by him, and may compel the attendance in court of any 
 and all witnesses whose testimony may be necessary to the estab- 
 lishment of any such record or part thereof, and the production of 
 any and all written or documentary evidence which may be by him 
 deemed necessary in determining the true import and effect of the 
 original record, will, paper or other document belonging to the files 
 of said court ; and may make such orders and decrees establishing 
 said original record, will, paper, document or proceeding, or the sub- 
 stance thereof, as to him shall seem just and proper; and such 
 judge may make all such rules and regulations governing the said 
 proceedings for the restoration of the record, will, paper, document 
 and proceeding pertaining to said court, as in his judgment will 
 best secure the rights and protect the interests of all parties con- 
 cerned." 
 
 * 3, act to provide for the restoration of court records which have been lost or de- 
 Btroyed. March 19, 1872. R. S. 18T4, p. 838.
 
 CH. XIV.] THE PKOBATE EECOKD. 335 
 
 The forms. 
 
 PETITION FOR THE RESTORATION OP A PROBATE RECORD. 
 
 STATE OF ILLINOIS, | In the County Court of County, 
 
 County. \ s& term, 18 . 
 
 In the matter of the restoration } 
 of the files and records in the > 
 estate of , deceased. ) 
 
 To the Honorable , Judge of said Court : 
 
 Your petitioner , respectfully showeth unto your honor : 
 
 GRANT OF ADMINISTRATION. That on the day of , 18 , filed 
 
 h petition for administration upon the estate of the said deceased in said 
 court, a copy of which petition is herewith presented, marked " Exhibit 
 ," That on said day last named said also filed in said court 
 
 h bond as such administrat in the penal sum of $ , with as 
 
 sureties, which bond was then and there approved by said court, a copy 
 
 of which is herewith presented, marked " Exhibit ," certified by said sure- 
 ties to be a true copy of the original bond ; that thereupon said court, on the 
 day last named, made the usual order granting letters of administration accord- 
 ing to the prayer of said petition, a copy of said letters of administration 
 is herewith presented, marked " Exhibit ." 
 
 That before receiving said letters, and on the day last named, said adminis 
 trat in open court subscribed and swore to the usual administrator's oath, 
 a copy of which is herewith presented, marked " Exhibit ." 
 
 t 
 
 INVENTORY. That on said day last named said administrat caused to be 
 filed in said court an inventory of the estate of said deceased, which was then 
 approved by said court, a copy of which is herewith presented, marked 
 " Exhibit 
 
 APPRAISEMENT. That were on said day last named appointed apprais- 
 
 ers of said estate, and a warrant was then issued to them, a copy of which 
 is herewith presented, marked " Exhibit ," to which is also appended a 
 copy of the oath taken by the appraisers ; the said appraisers, after taking and 
 signing the oath of office, made an appraisement of the personal estate of said 
 deceased, subject to appraisement, which was approved by said court on the 
 day of , 18 , a copy of which is herewith presented, marked 
 
 " Exhibit 
 
 WIDOW'S AWARD. That said appraisers made out and appraised the widow's 
 award, amounting to $ , which award was on the day last named approved 
 by said court, a copy of which is herewith presented, marked " Exhibit .'" 
 
 WIDOW'S SELECTION. That on the day of 18 , widow of said 
 
 deceased, filed her selection, amounting to $ , a copy of which is here- 
 with presented, marked " Exhibit ." 
 
 SALE OF PERSONAL PROPERTY. That said administrat on the day of 
 
 , 18 , sold the personal property of said deceased at public vendue, and 
 
 returned a sale's bill thereof amounting to $ to said court, which wag
 
 336 THE PROBATE RECORD. [CH. XIV. 
 
 The forms. 
 
 approved on the day of , 18 , a copy of the notices posted for 
 
 such sale, the affidavit of posting, and the sale's bill, are hereto attached, 
 marked "Exhibit ." 
 
 ADJUDICATION OF CLAIMS. That the administrat fixed upon the 
 term, 18 , of said court for the adjustment of all claims against the estate of 
 said deceased, and posted and published the notice for such adjudication as 
 required by the statute, a copy of such notice, together with the proof of 
 posting and certificate of publication, are herewith presented, marked " Exhibit 
 * ." That on the day of , 18 , the said court entered the usual order 
 of adjudication in said estate, and that the following is a true statement of all 
 claims allowed against said estate up to the day of , 18 , with the 
 
 amount and date of allowance : 
 
 Class allowed on the day of , 18 , for $ 
 
 Class allowed on the day of , 18 , for $ 
 
 Class allowed on the day of , 18 , for $ 
 
 Class allowed on the day of , 18 , for $ 
 
 ACCOUNTS. First Annual. That on the day of , 18 , said admin- 
 
 istrat presented h first annual account, showing receipts amounting to 
 $ , and disbursements amounting to $ , for approval, which on said day 
 last named was approved by said court, a copy of which is herewith pre- 
 sented, marked " Exhibit ." 
 
 Second Annual. That on the day of ,18 , said administrat 
 
 presented h second annual account, showing receipts amounting to $ , and 
 disbursements amounting to , for approval, which, on the day last named, 
 was approved by said court, a copy of which is herewith presented, 
 marked " Exhibit ." 
 
 Final. That on the day of , 18 , the said administrat pre- 
 
 sented to said court h final account, showing receipts amounting to $ 
 and disbursements amounting to $ , which, on said day last named, was 
 approved by said court, a copy of which is herewith presented, marked 
 " Exhibit 
 
 PROOF OF HEIRSHIP AND DISCHARGE. That on said day last named proof 
 of heirship was taken in open court and were found to be the only 
 
 heirs of said deceased, and the said administrat then producing the receipts 
 of all of said heirs for their distributive shares of the estate of said deceased, 
 the court then found that all the assets of said estate had been collected ; that 
 all claims against the same had been paid ; that more than two years had elapsed 
 since the appointment of said administrat , and ordered h discharge and 
 declared said estate settled, a copy of which order, together with a copy 
 of the testimony upon which it was founded, is herewith presented, marked 
 " Exhibit
 
 CH. XIV.] THE PROBATE. RECORD. 337 
 
 The forms. 
 
 That your petitioner believes the above to set forth substantially all the 
 orders of court made in the matter of the administration of the estate of =said 
 deceased, and the files upon which said orders were based ; that petitioner is 
 interested in said estate as . That the records of said court, and the files 
 
 relating to said estate were all destroyed by fire on the 9th of October, 1871, 
 wherefore your petitioner prays that your honor will- find the copies herewith 
 presented, as Exhibits, to be true copies of the originals so destroyed as afore- 
 said, and order them to be entered and recorded as such, and restore all orders 
 that have been made in the administration of said estate, and that all further 
 orders necessary may be entered. 
 
 , Attorney for Petitioner. 
 
 STATE OF ILLINOIS,) 
 County. 
 
 being duly sworn, doth depose and say that h has 
 
 read the above petition by h subscribed, and know the contents thereof, and 
 that the same is true of h own knowledge, except as to matters stated upon 
 information and belief, and as to these matters h believes it to be true. 
 
 Subscribed and sworn before me ] 
 this day of , 18 . 
 
 , Clerk. 
 
 1 
 
 INDORSEMENT. 
 
 County Court of County. Estate of , deceased. Petition of , for 
 
 the restoration of the flies and records of an intestate estate. 
 Filed this day of , 18 . 
 
 , Clerk. 
 43
 
 APPENDIX. 
 
 The act of April 1, 1872, entitled " An act in regard to the administration of 
 estates," is to be thoroughly understood by all who would successfully and 
 satisfactorily administer upon the estates of decedents in Illinois. Although 
 the several sections of this act are embodied (exactly as we find them on the 
 statute book) in the foregoing pages, to the proper exposition of the law, we 
 here add a logical summary, and in the index give an alphabetical synopsis of 
 the act. The other acts referred to at page 7 supra are sufficiently delineated 
 throughout the preceding pages and in the index. Consult STATUTES in the 
 index, infra. 
 
 LOGICAL SUMMARY OF THE ACT IN REGARD TO THE ADMINISTRATION OP 
 
 ESTATES. 
 
 TESTAMENTARY LETTERS may issue on probate of will, accepting the trust, 
 and giving bonds. 1, act April 1, Laws 1872, 77. See pp. 49, 53, 54, supra. 
 
 ADMINISTRATOR DE BONIS NON, if no executor be named in the will, if the 
 executor die, refuse to act, or become incapacitated or disqualified, may be 
 appointed as if for an intestate estate. Id. 
 
 EXECUTOR, IP NOT NAMED IN THE WILL, if he dies, refuses to act, or is other- 
 wise disqualified to act, administration cum testamento annexe to take place as 
 if testate had died intestate. Id. 
 
 LETTERS TESTAMENTARY may issue on probate of will, accepting the trust, 
 and giving bonds. Id. 
 WILL, COPY OF, in all cases must go out with the letters. Id. 
 
 APPEARANCE OP WIDOW OR NEXT OP KIN, or creditor of decedent. It be- 
 comes the duty of the court to revoke the letters given to the public admin- 
 istrator and grant the same to those entitled. 48, act April 1, Laws 1872, p. 
 89. See p. 71, supra. 
 
 Two or more appointed executors, if one or more die, refuse to act, 01 become 
 disqualified, the survivor or survivors may take the trust. 5, Laws 1872, p 
 78. See p. 282, supra. 
 
 Form of oath of executor or administrator cum testamento annexo. 6, id 
 See pp. 28, 29, 80, supra. 
 
 Oa th to be attached to and form a part of the record. Id. 
 
 Oath of executor or administrator cum testamento annexo. Id. 
 
 EXECUTOR'S BOH>D. Form of, must be filed and recorded. 7, id. See pp. 
 28, 30, supra. 
 
 Bond, in case of estate more than enough to pay debts, may direct that no
 
 34:0 APPENDIX. 
 
 security be required, but the court may, in its discretion, even then require 
 security. 8, id. See p. 56, supra. 
 
 REMOVAL OF EXECUTOR OK ADMINISTRATOR not to affect the jurisdiction 
 or power of the court first taking probate of the will. 9, id. 
 
 DIVISION OF A COUNTY, on, if letters have been granted to proceed notwith- 
 standing, or in removal of executor or administrator to another county. Id. 
 
 LETTERS TESTAMENTARY, FORM OF. 10, id. See p. 49, supra. 
 
 ADMINISTRATOR TO COLLECT. In case of any contingency causing great 
 delay in proof of will or granting letters, may be appointed. 11, id. See 
 pp. 67, 72, supra. Letters to, 12, id. See p. 72, supra. Bond of, 13, id. 
 See p. 77, supra. Oath of, 14, id. See p. 73, supra. Power of, 15, 16, 
 id. See p. 278, supra. Revocation of, 17, id. See p. 279, supra. 
 
 DEATH. Proof of death must be made before administration can be granted. 
 18, id. See pp. 64, 67, 77, supra. 
 
 INTESTACY. Proof of, must be made before granting administration. g 18, 
 20, id. 
 
 LETTERS OF ADMINISTRATION to widow or widower, next of kin, creditors 
 or discretionary. Widow or next of kin must apply within sixty days after death 
 of decedent, creditors within the next fifteen days, then the court may exer- 
 cise its discretion. Id. 
 
 PROOFS of death and intestacy must be made to obtain administration. 18, 
 20, id. 
 
 RELINQUISHMENT. Administration not to be granted within seventy-five 
 days after death of decedent, unless relinquishment be made by all those 
 entitled ; after seventy-five days, the court may act at its discretion. 19, id. 
 See pp. 64, 75, supra. 
 
 APPLICANT FOR LETTERS must file an affidavit, showing date of death and 
 probable amount of personal estate, and the names of heirs and widow or 
 widower, if known. 20, id. 
 
 LETTERS OF ADMINISTRATION. Form of, to be changed and applied mutatis 
 mutandis to all cases of administration. 21 , id. See p. 79, supra. 
 
 OATH OF ADMINISTRATOR. Form of, to be made and filed. 22, id. See p. 
 79, supra. 
 
 BOND OF ADMINISTRATOR. Form of, to be changed and applied to all cases 
 of administration mutatis mutandis. 23, id. See pp. 79, 80, supra. 
 
 Two OR MORE EXECUTORS may give joint or several bonds, as the court may 
 direct. 24, id. See p. 279, supra. 
 
 SUITS ON BONDS may be had in the name of the people of the State of Illi- 
 nois, for the use and at the cost of whom it may concern. 25, id. See p. 279 
 supra. 
 
 REVOKING LETTERS. If letters be obtained upon false or fraudulent repre- 
 sentations or pretense, the court must revoke them. 26, id? See p. 280, svpra. 
 
 COSTS TO BE PAID by party obtaining letters fraudulently, and on their revo- 
 cation. 27, id. See p. 280, supra.
 
 APPENDIX. 341 
 
 WILL, DISCOVERY AND PROBATE OP, to revoke letters of administration. 
 g 28, id. See p. 280, supra. 
 
 CANCELLATION OF A WILL in due course of law to revoke the letters testa- 
 mentary thereon. 29, id. See p. 280, supra. 
 
 ADMINISTRATOR de bonis non may be appointed. 37, id. See p. 282, supra. 
 
 ADDITIONAL BONDS, executors or administrators, etc., may be required to 
 give, or others appointed and empowered. 38, id. See p. 282, supra. 
 
 FORMER ADMINISTRATOR shall be liable for devastavit, etc. $ 39, id. See p. 
 283, supra . 
 
 RESIGNATION may be made by either executor or administrator, in the dis- 
 cretion of the court, on full settlement of accounts and surrendering estate. 
 40, id. See p. 96, supra. 
 
 FOREIGN EXECUTOR OR ADMINISTRATOR may file duly authenticated copy of 
 his letters in any court in this State and enforce claims and sell land to pay 
 debts ( 42, id.), if there be no executor or administrator in this State. 43, 
 id. See pp. 82, 96, supra, 
 
 FOREIGN ADMINISTRATOR'S OR EXECUTOR'S SUIT to inure to benefit of domestic 
 executor or administrator if one be appointed pendente lite. 43, id. See p. 82, 
 supra. 
 
 PUBLIC ADMINISTRATORS are to be appointed by the governor by and with 
 the advice and consent of the senate, one for each county whenever vacancy 
 may occur, who must take the oath prescribed. 44, id. See pp. 70, 71, supra. 
 
 INTESTATES LEAVING NO RELATIVES OR CREDITORS, possessed of real estate, 
 the same is to be, on the application of any person interested therein, com- 
 mitted to the public administrator. 46, id. See p. 71, supra. 
 
 COMMISSIONS AND EXPENSES EARNED AND INCURRED BY A PUBLIC ADMINIS- 
 TRATOR are not affected by a re-grant of administration to those entitled. 
 47, id. See p. 71, supra. 
 
 BOND OF PUBLIC ADMINISTRATOR to be required as in the other cases, failure 
 to give, for sixty days, a vacatur of his office, and upon certificate of the fact from 
 the county judge, the governor is to fill the vacancy. 47, id. See p. 71, sv,pra. 
 
 CARE, CUSTODY AND MANAGEMENT of the estate of intestates committed to 
 the public administrator. 49, id. See p. 71, supra. 
 
 DUTY OF PUBLIC ADMINISTRATOR to protect estates generally until adminis- 
 tration. 50, id. See p. 71, supra. 
 
 INVENTORY TO BE RETURNED within three months after letters are granted, 
 containing: 1. Description of quantity, situation and title of the real estate. 
 2. Specifying the nature and amount of all annuities, rents, goods, chattels, 
 rights, and credits, and money on hand, and whether the credits are good, 
 doubtful or desperate. 51, id. See p. 167, supra. 
 
 ADDITIONAL INVENTORY is to be returned whenever any other real or per- 
 sonal property becomes known to the administrator. 52, id. See p. 167, supra. 
 
 APPRAISERS, to be three disinterested persons, their warrant to issue with 
 the letters, their powers and duties, form of warrant, vacancy in number may 
 be filled. 53, id. See p. 171, supra.
 
 342 APPENDIX. 
 
 APPRAISERS TO TAKE AND SUBSCRIBE AN OATH to be indorsed upon or 
 annexed to the warrant ; form of oath. 54, id. See p. 172, supra. 
 
 METHOD OF MAKING APPRAISEMENT. To set down each article with the 
 value thereof in dollars and cents, in columns, as prescribed. Id. 
 
 BILL OP APPRAISEMENT to be certified by the appraisers, under their hands 
 and seals, to the executor or administrator, and by him to be returned within 
 three months after grant of letters. 55, id. See p. 172, supra. 
 
 INVENTORIES AND APPRAISEMENT bills, and authenticated copies thereof, 
 prima facie evidence only of their contents respectively. 56, id. See p. 173, 
 supra. 
 
 ADDITIONAL APPRAISEMENT to be made if other property be discovered, and 
 within three months after discovery. 57, id. See pp. 173, 174, supra. 
 
 EXECUTORS AND ADMINISTRATORS chargeable for all estate which may or 
 might after due and proper diligence be recovered. 58, id. See p. 174, 
 supra. Johnson v. Maples, 49 111. 101 ; Neubrecht v. Santmeyer, 50 id. 74. 
 
 APPRAISERS' FEES FIXED at two dollars per day for necessary attendance, 
 to be allowed by the court. 59, id. See p. 174, supra. 
 
 ASSETS. If, after appraisement, the assets do not exceed the widow's allow- 
 ance, the executor or administrator is to report, and the court, if it finds 
 the facts true, is to order the same transferred to her and close the adminis- 
 tration. Id. 
 
 DISCOVERT OF NEW ASSETS. In such cases administration may be granted 
 de novo. Id. 
 
 ATTACHMENT, CITATION. And on failure of executor or administrator to 
 report deficiency of assets, etc., for widows' allowance. Id. 
 
 CLAIMS against estates. 60-73, id. See pp. 215, 217, 222-225, supra. 
 
 Widows' award. 74-77. See pp. 209-212, supra. Renunciation. 
 78, 80, id. See pp. 219, 220, supra. Collection and disposition of assets. 81- 
 96, id. See pp. 174-183, supra. Sale of real estate. 97-111, id. See pp. 
 186-201, supra. Settlement by administrators and executors. 112-119. 
 See pp. 190, 233, 239, 240, supra. Mortgage of real estate. 120, 122, id. 
 See pp. 191, 192, supra. Actions. 123, id. See pp. 83, 192, supra. Appeals. 
 124, 125, id. See pp. 272, 273, supra. 
 
 DISQUALIFICATION OF COUNTY JUDGE, as a material or necessary witness, 
 or a party interested, transfers the case to the circuit court of the county ; case 
 to be certified to circuit court. 69, id . See pp. 224, 225, supra. 
 
 NONFEASANCE, MISFEASANCE OR MALFEASANCE of executor or administra- 
 tor not to create liability in certain cases, beyond assets of testate or intestate. 
 126, id. See p. 275, supra. 
 
 CONTRACTS OF DECEDENT may be performed by the executor or administra- 
 tor under the directions of the county court. 127, id. See p. 275, supra. 
 
 INSOLVENT ESTATES, after the expiration of two years from grant of 
 administration to be so reported and entered of record ; persons entitled to be 
 paid pro rata ; costs then to be paid by parties serving. 129, id. See p. 275, 
 supra.
 
 APPENDIX. 343 
 
 JUDGMENTS, DECREES AND ORDERS may be enforced. County courts shall 
 have power to enforce due observance of all orders, decisions, judgments and 
 decrees made by them in matters of administration, by process for contempt, 
 and may fine and imprison offenders as fully as the circuit court may do in 
 similar cases . 131, id. See p. 276, supra. 
 
 SERVICE, SHERIFF ; SUBPCENAS, citations, notices and other process to be 
 served and returned by the sheriff or his deputies. 132, id. See p. 276, supra. 
 
 FEES OF SHERIFF to be the same as for similar services in the circuit court . 
 132, id. See p. 276, supra. 
 
 FEES OF EXECUTORS AND ADMINISTRATORS to be not exceeding six per 
 centum on proceeds of real estate, and three per centum on proceeds of personal 
 estate with reasonable allowances for collection and enforcing claims. 133, 
 id. See p. 276, supra. 
 
 CONSTRUCTION OF THE STATUTE. Executor to mean administrator and 
 administrator to mean executor, his to mean her, one to mean two or more, etc., 
 whenever the same requires it in applying the law liberally . 134, id. See 
 p . 276, supra. 
 
 REPEALED ACTS, ENUMERATED. 135, id. See pp. 7, 277, supra. 
 
 SATING CLAUSE of repealing act, suits pending and rights accrued, not 
 affected by the repeal. Id. 
 
 An alphabetical synopsis of the act* in regard to the administration of 
 estates, will be found under STATUTES in the index. 
 
 LOGICAL SUMMARY of the " Act in regard to wills," or the " Act of March 20, 
 1872." See p. 7, supra, Laws 1872, pp. 775-781. 
 
 Persons competent to dispose of property by will enumerated. 1. See 
 pp. 11, 44, supra. 
 
 Requisites of a will. 2. See pp. 11, 44, 46, 47, supra. 
 
 Subscribing witnesses, their duty to appear and testify. 3. See pp. 38, 
 39, supra. 
 
 Testimony of non-resident witnesses ; dedimus. 4. See pp. 36, 37. 
 
 County judge a witness, procedure in the circuit court. 5. See pp. 45, 46. 
 supra. 
 
 Death or absence of a witness. 6. See pp. 30, 39, supra. 
 
 Probate of wills ; remedies. 7. See pp. 16, 43, supra. 
 
 Interested witnesses, how far excluded. 8. See pp. 38, 42, supra. 
 
 Executing wills without the State. 9. See p. 52, supra. 
 
 They are admissible to probate. 10. See p. 52, supra. 
 
 Venue or proper county to probate the will. 11. See p. 14, supra. 
 
 Custodian of the will to produce it ; penalty. 12. See pp. 14, 16, supra 
 
 Appeals, procedure. g 13, 14. See p. 274, supra. 
 
 Nuncupative wills, procedure. 15, 16. See pp. 11, 50, 51, supra. 
 
 Probate of nuncupative will. 16. See pp. 50, 51, supra. 
 
 Revocation of a will. 17. See p. 11, supra. 
 
 Record and preservation of wills. 18. See p. 17, supra. 
 
 * Act of April 1, 1872, Laws 1872.
 
 344 APPEHDIX. 
 
 Debtor as executor. 19. See p. 54, supra. 
 
 Attesting creditor competent. 20. See p. 46, supra. 
 
 REPEALING SECTION. The following acts and parts of acts are hereby re 
 pealed : 
 
 " Sections one, two, three, four, five, six, seven, eight, nine, ten, eleven, 
 twelve, fifteen, sixteen, seventeen and eighteen, of chapter one hundred and 
 nine, of the Revised Statutes of 1845, entitled ' Wills.' " 
 
 " An act entitled ' An act respecting the Probate of Wills,' approved Febru- 
 ary 25, 1845." 
 
 " An act entitled ' An act to amend the one hundred and ninth chapter of the 
 Revised Statutes, entitled ' Wills,' ' approved February 14, 1855," and all other 
 acts inconsistent with the provisions of this act. Provided, that nothing con- 
 tained in this section shall be so construed as to affect any suits that may be 
 pending, or any wills that may be existing, or any rights that may have ac- 
 crued when this act shall take effect. 21. See p. 7, supra. See STATUTES 
 in the index, infra. 
 
 The other acts mentioned at p. 7, supra, are given in full in the foregoing 
 pages. Id. 
 
 PERSONAL REPRESENTATIVES. The terms " personal representatives " and 
 " legal representatives " have given rise to considerable discussion, especially 
 in the construction of wills and statutes. 
 
 A careful examination of the decisions will, we think, show that these terms 
 are, if not quite, almost synonymous. 6 Madd. Ch. 159 ; 5 Ves. Ch. 402 ; 1 
 Madd. Ch. 108 ; 2 Jarm. on Wills, 28 ; 1 Beav. Rolls. 46; 1 Rugs. & M. Ch. 587 ; 
 3 Vesey's Ch. 486; 3 Brown's Ch. 224; 1 Teates, 213; 2 id. 585; 2 Dall. 205; 
 6 Serg. & R. 83 ; 3 Bradf. 45 ; 1 Anst. Exch. 128 ; 6 Eng. L. & E. 99. 
 
 The English cases are collated and commented upon, 2 Williams on Exec- 
 utors, 1049-1061. 
 
 In Cotton v. Cotton, 2 Beav. 67, the term " legal representatives " was held to 
 mean next of kin. 
 
 Chapter 93 of the 9th and 10th Victoria gives an action to " the executor or 
 administrator of the person deceased " in case of death caused by the wrong- 
 ful act, neglect or default of another. 1 Gross, 60 ; Laws 1853, 97 ; Chicago v. 
 Major, 18 111. 349 ; Railroad Co. v. Morris, 26 id. 400. 
 
 The learned judge who gave the opinion in 18 111. 349, at p. 358, says of the 
 term " personal representatives," as used in 2 of the act of 1853, " that is," 
 the suit must be brought " by the executors or administrators." 
 
 No point was made upon the construction of the term. It was there held 
 that the father of a minor might take out letters of administration upon the 
 deceased minor's estate, and, as administrator, proceed under the statute. 
 Railroad Co. v. Morris, 26 111. 400 ; Railroad Co. v. Shannon, 43 id. 338. But 
 was administration necessary for the purpose? 
 
 In Lynch v. Rotan, 39 111. 15, pp. 75, 270, supra, it was held that the per- 
 sonal property of a minor vests immediately in the next of kin, and there is 
 no necessity of taking out letters of administration before instituting suit in 
 equity against the sureties of a guardian for a discovery and an account on 
 the ground of maladministration. If not in equity, why at law ?
 
 APPENDIX. 34:5 
 
 Is it, then, necessary for the next of kin to take out letters of administra- 
 tion on a minor's estate in order to sue as in Major's case? Does not the term 
 personal representatives, in the second section of the act of 1853 (1 Gross, 60), 
 also include in such cases the next of kin ? 
 
 In Chicago v. Major, it was held that the object of section 2 of this stat- 
 ute is to exclude creditors from the benefit of the damages recovered under 
 it, and to prevent the same from becoming a part of the estate of the deceased, 
 and that the act is not limited to the case of those leaving widows. 
 
 In Railroad Co. v. Morris, it was established that there must be those for 
 whose benefit the action is brought, and that the existence of such persons 
 must be averred and proved. 1 Hill's C. L. 78. 
 
 It is difficult to see why the term " personal representatives " does not in- 
 clude the next of kin in cases where there is no necessity for administration 
 for other purposes, as in the case of a minor. 
 
 The cases brought under this statute rest exclusively upon its provisions. 
 26 111. 400. 
 
 The rule of damages in these actions is very close. 2 Hill's C. L. 498. 
 
 The amount recovered under this statute is not assets in the proper accep- 
 tation of that term. See note u, p. 92, supra. 
 
 The law requires no idle ceremonies ; then, was not the term personal repre- 
 sentatives inserted in this statute to cover just such cases including next of 
 kin ? Why the difference in this respect between our statute and chapter 93, 
 9th and 10th Victoria ? 1 Gross, 60. 
 
 We add the following cases, which are not inserted in the body of the work : 
 
 THE STATE AS A CREDITOR OP ESTATES OP DECEDENTS. The State is not 
 bound to wait until the estate of a deceased is administered, and then partici- 
 pate with other creditors in the proceeds, but may enforce payment, to the ex- 
 clusion of all other creditors. So of an insolvent estate in the hands of trus- 
 tees. Dunlap v. Gallatin Co., 15 111. 7. 
 
 VENDOR AND VENDEE. A purchaser of land gave his promissory note for 
 an unpaid balance of the purchase-money, the vendor covenanting " that, upon 
 the payment of said sum being made at the time and in the manner aforesaid," 
 he would convey. The vendor died without having made a conveyance. In 
 an action by his administrator upon the note, it was held that, as the title to 
 the land was the only consideration for the note, until that title was made, 
 which the administrator could not make without the aid of chancery, no right 
 of action accrued on the note. Hulshizer v. Lamoreux, Adm'x, 58 111. 72. 
 
 ADVANCEMENTS. Where the heir of an intestate has received property from 
 such intestate, in his life-time, and by an instrument in writing, whether un- 
 der seal or not, acknowledged the receipt thereof as his full share of the 
 estate, the property so received, not having been charged to him, and the 
 transaction being untainted with fraud, must be held to be in full payment 
 and satisfaction of his share of the estate, by express agreement. 
 
 The provisions of sections 63 and 164 of the statute of wills, bearing upon 
 the subject of advancements, have no application to a case of this character. 
 Bishop v. Davenport, 58 111. 105. 
 
 But in such case, if, at the time of the execution of the release, the person 
 giving it was &femme couverte.snch agreement ia void, or, jf a minor, it is not 
 44
 
 34:6 APPENDIX. 
 
 binding upon him. Nor will it avail any thing that such release was executed 
 by a married woman, jointly with her husband. The husband has no author- 
 ity to make an agreement of that character, which will bind his wife. Bishop 
 v. Davenport, 58 111. 105. 
 
 ATTESTATION OP "WILLS. The statute does not require that the attesting 
 witnesses to a will should be in the presence of each other when they sign it. 
 Flinn v. Owen, 58 111. 111. 
 
 CONSTRUCTION OF A PARTICTJLAK INSTRITMENT. B and H were partners in 
 business. H was taken sick, and made his will, by the terms of which it was 
 provided, that if B would deliver over to W, the executor named in the will, 
 certain notes which were held by the firm, for the benefit of H's daughter, 
 and would pay H's debts after his decease, B should have all the remainder of 
 H's estate, including the firm property. Before signing the will, H caused it 
 to be read to B, who thereupon verbally accepted the terms proposed, and it 
 was then executed. After H's decease, B demanded an appraisement of the 
 property, to see if he would accept of it under the terms proposed, which was 
 had, and he again accepted, and delivered over the notes to W, and retained 
 the remainder of the property belonging to the estate. B failed to pay the 
 debts, and they were proved up against the estate of H, and paid by W, the 
 executor. Afterward B and W died, and the administrator of W's estate filed 
 this claim against the estate of B, to which was pleaded the statute of limi- 
 tations and the statute of frauds. Held, that the statute of limitations con- 
 stituted no bar to the act ; that a direct trust was created by the express terms 
 of the will, and that B received the property under the conditions imposed, 
 and entered upon the discharge of his duties, and that the relation of trustee 
 and cestui que trust was thereby created between the parties, and not that of 
 debtor and creditor. Alhretch v. Wolf, 58 111. 186.
 
 RULES OF PRACTICE 
 
 PROBATE COURT OF COOK COUNTY. 
 
 Ordered, That the following rules of practice be, and they are, 
 hereby adopted in this court : 
 
 ADMINISTRATION. 
 
 PROOF OF WILL. 
 
 RULE 1. The testimony taken in the matter of the proof of any 
 last will and testament shall be reduced to writing, and filed with 
 the clerk of the court. 
 
 ORDER OF INVENTORY WIDOW'S SELECTION AND SALES BILL. 
 
 EULE 2. The inventory widow's selection and sales bill shall fol- 
 low the order in which the articles are set down in the bill of 
 appraisement. 
 
 ADJUSTMENT OF CLAIMS. 
 
 RULE 3. The proof of posting and publishing notices for the 
 adjustment of claims shall be filed with the clerk, on or before the 
 first day of the term to which claimants are notified and requested to 
 appear. The clerk shall keep a list of all such proofs of posting and 
 publishing adjustment notices each term, in the order filed, and the 
 court will take up and dispose of the same in the order of such 
 list. 
 
 MANNER OF PRESENTING CLAIMS. 
 
 RULE 4. Claims against estates shall be presented as follows : If 
 at or before the regular adjustment, by filing a bill of items of the 
 claim with the clerk. If after the adjustment term, by filing a 
 copy of the claim, together with a praBcipe for a summons to the 
 executor or administrator, or by filing with such claim the appear- 
 ance, in writing, of the executor or administrator.
 
 348 RULES OF THE 
 
 The heir, or any other person interested in the estate, wishing to 
 contest any claim filed, must enter an appearance, in writing, in 
 the matter of such claim. 
 
 CLAIM DOCKET AND TRIAL OF CLAIMS. 
 
 KULE 5. The clerk shall prepare a claim docket each term, and 
 the court will commence the call of such docket for the trial of 
 claims, on the fourth Monday of each term, and continue such call, 
 from day to day, until concluded. 
 
 DEFAULT OR NEGLECT OF EXECUTOR OR ADMINISTRATOR. 
 
 EULE 6. Upon the failure of any executor or administrator to 
 present his inventory and appraisement to the court within three 
 months, or cause an order ol adjustment of claims to be entered 
 within six months, or to present his account within thirteen months 
 from the date of his letters, and every year thereafter, until the 
 estate of his decedent is fully administered and settled, the court 
 will order a citation to issue, and if the executor or administrator 
 fail to appear as required by the citation, the court will order an 
 attachment against the executor or administrator, and enforce the 
 performance of such neglected duty. 
 
 NOTICE TO HEIRS OF FINAL ACCOUNT. 
 
 RULE 7. No executor or administrator shall be discharged from 
 the duties and responsibilities of his appointment, or have his final 
 account approved (where the heirs at law, residuary and unpaid 
 legatees, if any, do not enter their appearance in writing in such 
 final accounting), unless he shall give notice to the heirs at law, 
 residuary and unpaid legatees, if any, of the decedent, of the time 
 of his intended application to the court for the approval of such 
 final account, as follows : 
 
 When the heirs at law, residuary or unpaid legatees, if any, are 
 residents of Cook county, personal service of a copy of such notice 
 shall be made, and in the event of the temporary absence from Cook 
 county of such resident heirs at law, residuary or unpaid legatees, 
 if any, a copy of such notice shall be left at the usual place of 
 abode of such heirs, residuary or unpaid legatees, if any, with some 
 person of the family of the age of ten years or upwards, and inform- 
 ing such person of the contents thereof, such service to be at least 
 ten days before such application.
 
 PROBATE COURT OF COOK COUNTY. 349 
 
 "When such heirs at law, residuary or unpaid legatees, if any, 
 reside without the limits of Cook county, and in any of the United 
 States or Territories, a copy of such notice shall be published at 
 least once in some newspaper published in the city of Chicago, at 
 least thirty days before such application. When such heirs at law, 
 residuary or unpaid legatees, if any, reside without the limits of the 
 United States and Territories, or whose names and places of resi- 
 dence, either or both, are unknown to such executor or administra- 
 tor, such notice shall be published at least once in some newspaper 
 published in the city of Chicago, at least sixty days before such 
 application ; and where the heirs at law, residuary or unpaid 
 legatees, if any, or any of them, are not residents of Cook county, 
 such executor or administrator shall make and file with the clerk of 
 the court his, her or their affidavit, or the affidavit of some one of them, 
 setting forth the names and post-office address of such heirs at law, 
 residury or unpaid legatees, if any, or if the same be unknown, thus 
 stating the fact ; and where the names and post-office address are set 
 forth in such affidavit, such executor or administrator shall cause a 
 copy of such notice to be mailed, postage paid, to such heirs at law, 
 residuary or unpaid legatees, to such address by the clerk of this 
 court within five days after such publication, and a certificate of 
 such mailing to be made by the clerk and filed in the proper estate. 
 
 NOTICE OF RESIGNATION OF EXECUTOR OR ADMINISTRATOR. 
 
 KULE 8. Upon the petition of any executor or administrator to 
 resign his trust, notice thereof, and of the time of hearing, shall 
 be given to the legatees, devisees or distributees, and to his co- 
 executor or co-administrator, and the sureties on his bond, if any, 
 in the same manner as notice is required to be given to the heirs 
 at law, residuary and unpaid legatees, in case of final account, as 
 provided by rule seven, unless such legatees, devisees or distributees, 
 and co-executor or co-administrator, and the sureties on his bond 
 enter their appearance in writing in such matter. 
 
 PROOF OF HEIRSHIP. 
 
 EULE 9. Proof of heirship for the purpose of distribution and 
 final settlement of an estate shall be made by the testimony of 
 witnesses examined in open court, reduced to writing and filed, or 
 by testimony taken in pursuance of a dedimus potestatem, issued 
 for that purpose, or by a certified copy of a decree of a court of 
 record, finding the heirs at law of the decedent
 
 350 RULES OF THE 
 
 EXECUTOR AND ADMINISTRATOR'S REPORT. 
 
 RULE 10. Every executor and administrator's account shall be 
 accompanied with a written report, under oath, briefly stating the 
 condition of the estate, the amount of receipts and expenditures 
 and the balance, if any, and the present responsibility and suffi- 
 ciency of the sureties on the bond of such executor or administra- 
 tor. 
 
 GUARDIANSHIP. 
 
 APPOINTMENT OF GUARDIAN. 
 
 RULE 11. No application for the appointment of a guardian 
 (other than applications by the father, or by the mother, if he be 
 dead) will be entertained when the infant has a father or mother 
 living in this State, unless upon written notice of such intended 
 application to the father, or if the father be dead, to the mother, 
 and to both if they be living apart in this State, setting forth the 
 time when the same will be heard, which notice shall be given not 
 less than three days prior to such application, if the parent or 
 parents reside in Cook county, and not less than ten days if non- 
 residents of Cook county, provided that no such notice shall be 
 required when such parent or parents enter their appearance and 
 consent to an immediate hearing. 
 
 GUARDIAN'S INVENTORIES AND ACCOUNTS. 
 
 RULE 12. Upon the failure of any guardian to return to the 
 court, verified by the affidavit of the guardian, a true and perfect 
 inventory of the real and personal estate of the ward, including 
 therein a description of the real estate, its probable value and 
 rental, and whether incumbered. and, if so incumbered, how and 
 for how much ; what amount of money is on hand, all personal 
 property, including annuities and credits of the ward, designating 
 them as good, doubtful or desperate, as the case may be, within 
 sixty days after appointment, or at the expiration of one year from 
 his or her appointment, and at least once every three years there- 
 after, and as much oftener as the court may require, settle his or 
 her accounts with the court, such guardian will be cited by the 
 court, and the performance of such delinquent duty enforced.
 
 PROBATE COURT OF COOK COUNTY. 351 
 
 LEASING WARD'S REAL ESTATE. 
 
 EULE 13. The court will, upon petition of the guardian, order 
 that the guardian lease all the ward's real estate; but before deliv- 
 ering any lease or possession to the lessee, that the guardian obtain 
 the written approval of the judge of this court indorsed on the 
 lease; but no such approval will be given until testimony has been 
 taken in open court, showing the rental value of the real estate. 
 
 FINAL SETTLEMENT OF GUARDIAN WITH WARD. 
 
 RULE 14. No guardian shall be discharged from the duties of 
 his appointment on final settlement with his ward, linless such 
 ward appears before the court and acknowledges such settlement 
 in full in open court ; provided, where such facts are disclosed, by 
 affidavit filed with the clerk, as render the personal attendance of 
 the ward impracticable, and the court shall be satisfied, from evi- 
 dence produced in open court, that such final settlement is just 
 and equitable, and that the ward is in possession of all his or her 
 estate, such personal attendance of the ward may be waived by the 
 court. 
 
 GUARDIAN'S REPORT. 
 
 RULE 15. Every guardian's account shall be accompanied with 
 a Avritten report of the guardian, verified with his affidavit, setting 
 forth the manner in which any funds under his control belonging 
 to his ward are invested, the debts, credits, and effects of the 
 ward's estate, so iar as the same have come to his knowledge, and 
 the present responsibility and sufficiency of the sureties on his 
 bond, and if the guardianship be of the custody and tuition of 
 the minor, shall state the length of time the ward has attended 
 school, and where, since his appointment, or last report. 
 
 CONSERVATORS. 
 
 DEFAULT OR NEGLECT OF CONSERVATORS. 
 
 RULE 16. Upon the failure of any conservator to return to the 
 court, verified by the affidavit of such conservator, a true and per- 
 fect inventory of the real and personal estate of his ward, with a 
 description of the real estate, its probable value and rental, and 
 stating whether the same is incumbered, and if incumbered, how 
 and for how much, what amount of money is on hand, and also 
 containing a list of all personal property, including annuities and
 
 352 KULES OF THE PROBATE COURT OF COOK COUNTY. 
 
 credits of the ward, designating them as good, doubtful or despe- 
 rate, as the case may be, within sixty days after his appointment, or 
 at the expiration of one year from his appointment, and at least 
 once each year thereafter, and as much oftener as the court may 
 require, to "settle his accounts as conservator with the court, will 
 be cited by the court, and the performance of such delinquent duty 
 enforced. 
 
 LEASING BY CONSERVATOR. 
 
 RULE 17. The court will, upon the petition of the conservator, 
 order that the conservator lease all his ward's real estate, but be- 
 fore delivering any lease or possession to the lessee, that the conserva- 
 tor obtain the written approval of the judge of this court, indorsed 
 on the lease, but no such appoval will be given until testimony has 
 been taken in open court, showing the rental value of the real 
 estate. 
 
 MISCELLANEOUS. 
 
 PETITIONS AND MOTIONS. 
 
 RULE 18. Petitions and motions will be heard upon the coming 
 in of the court in the morning and afternoon, and all motions and 
 other applications to the court shall be made in writing and filed 
 with the clerk, and when not based on matters which appear of 
 record, the facts must be supported by affidavit. 
 
 APPEARANCE. 
 
 RULE 19. Whenever any heir at law, legatee, creditor, or other 
 person not a party to the record, desires to contest or be heard in 
 any matter before the court, such heir at law, legatee, creditor, or 
 other person, shall first enter an appearance in writing in such 
 matter, and file the same with the clerk. 
 
 RULE TO PLEAD. 
 
 RULE 20. In all cases (except citations and adjustment of claims) 
 commenced by summons, the defendant, if served ten days before 
 the return day of such summons, shall plead on or before the open- 
 ing of court, on the third day of the term to which such summons 
 is made returnable. 
 
 RULE 21. The clerk shall have the foregoing rules, and all 
 rules of this court, hereafter entered, carefully transcribed in a 
 book to be kept for that purpose, in the order of date in which 
 they shall be respectively entered.
 
 INDEX 
 
 A. 
 
 ABATEMENT AND REVIVAL, 
 
 administrator how made a party, 87, 289, 290. 
 ACCEPTANCE, 
 
 of trust by the executor, 49. 
 
 of resignation, equivalent to revocation of letters, 100. 
 ACCOUNT, 
 
 the books of, by the decedent, 275. 
 
 ACCOUNTS, 230. 
 
 I. By the executor or administrator, 238, 242. % 
 
 II. By the guardian and conservator, 243, 250. 
 
 I. BY THE EXECUTOR OR ADMINISTRATOR, 238, 242 
 
 1. General instructions to the executor or administrator, 238. 
 
 2. Settlements to be made annually at least, 238, 239. 
 
 3. Apportionments to be made, 239, 
 
 4. Settlement may be enforced, 239, 240. 
 
 5. Devastavit, etc., 240. 
 
 6. Administrator's account, 240, 241. 
 
 7. Procedure for administrator or executor when cited to account, 
 
 241, 242. 
 
 8. Form of account, 242. 
 
 II. BY .GUARDIAN AND CONSERVATOR, 243-250. 
 
 1. Guardian must account, 243. 
 
 2. He must pay over to those entitled at the expiration of his trust, 
 
 243. 
 
 3. Accounts must be filed, 243. 
 
 4. Instructions in general to guardians and conservators, 243, 244. 
 
 5. Accounts, how kept, 244, 245. 
 
 6. Form of report to the court in accounting, 245. 
 
 7. Another form, 245. 
 ACQUIESCENCE, 
 
 infants not affected by, 103. 
 
 See Laches. 
 ACQUISITION OF LANDS, 
 
 subsequently to the making of a will, effect of, 42. 
 ACT, 
 
 April 1, 1872, and other acts, 7. 
 See Appendix; Statutes. 
 45
 
 354 INDEX. 
 
 ACTION, 
 
 right of, in cases of death caused by negligence, etc., 344. 
 . See Appendix. 
 
 ACTIONS, 
 
 by executors and administrators, 275, 281, 283, 289. 
 by conservators, 141. 
 on administrators' bonds, 81, 289. 
 by and against minors, 104-107. 
 
 which survive ( 123, act of April 1, 1872), 192, 281, 282, 289, 290. 
 See Claims. 
 
 AD LITEM, GUARDIAN, 
 
 appointment, powers and duties of, 116, 117, 133, 134. 
 ADMINISTRATION, 
 
 not always necessary, 75, 76, 344. 
 
 the regular grant of, 68, 69. 
 
 grant of, to be preceded by proof of death and intestacy, 67, 68. 
 ADMINISTRATOR, 
 , the term defined, 65. 
 
 the personal representative of the deceased, 83, 162. 
 See Appendix. 
 
 how to be appointed, 76, 77. 
 
 de facto, the acts of, cannot be collaterally questioned, 76. 
 
 de bonis non, 84, 282, 283. 
 
 to collect, 71. 
 
 appointment and powers of, 71, 278. 
 
 the public, 70-72. 
 
 with the will annexed, 17. 
 
 ADMINISTRATOR'S BONDS, 
 actions on, 81. 
 See Forms. 
 
 ADMINISTRATORS, 
 
 purchasing at their own sale, guilty of fraud, per se, 96, 296, 303, 304. 
 appointment of, 64-82. 
 
 1. Administrators virtually executors, 65, 66. 
 
 2. Of several kinds, general and special, 66. 
 
 3. An intestate, 66. 
 
 4. Special administrators, 67. 
 
 5. Administrator de bonis non, 67. 
 
 6. Administrator pendente lite, 67. 
 
 7. Letters of administration are a grant of power, 67. 
 
 8. Intestacy and death of decedent must be proved, 67, 68. 
 
 9. How proved, 68. 
 
 10. The English Statutes and, 68, 69. 
 
 11. Our statute compared, 68, 69.
 
 INDEX. 355 
 
 ADMINISTRATORS Continued. 
 
 12. The jus representations, 69. 
 
 13. Degrees of consanguinity according to the civil law, 70, 268. 
 
 14. The public administrator appointed by the governor, by and with 
 
 the consent of the senate, 70. 
 
 15. When the estate may be committed to the public administrator, 
 70, 71. 
 
 16. His duties in general, 71. 
 
 17. His expenses preferred, 71. 
 
 18. Removal in special cases, on appearance of parties entitled, 
 within six months after his appointment 71. 
 
 19. To advertise on settlement, etc., 71. 
 
 20. Administrator to collect, 71, 72. 
 
 21. Letters to collect, 72. 
 
 22. Bond of administrator to collect, 72, 73. 
 
 23. His oath, 73 . 
 
 24. Who may be administrators generally, 73-76. 
 
 1. They should be of lawful age and legally competent, 73. 
 
 2. The preference conferred by statute, 74. 
 
 3. Waiver of juris representation^, 74. 
 
 4. Who to administer, on the death of the surviving husband, as 
 
 administrator de bonis non of his deceased wife's estate, 
 quaere? 74, 75. 
 
 5. Next to kin, the relatives generally, 75 . 
 
 6. Renunciation or relinquishment, 75, 76. 
 
 25. Venue, the proper county, 76. 
 
 26. Practice how to be appointed administrator, 76, 77. 
 
 27. Petition for letters of administration, 77. 
 
 28. Affidavit of death, intestacy, etc., 77. 
 
 29. The administrator's bond, 77, 78, 79. 
 
 30. And letters of administration, 79. 
 
 31. The oath, 79. 
 
 32. Form of bond by administrator with the will annexed, 80. 
 
 33. Oath of, 80. 
 
 34. Additional bond, 80, 81. 
 
 35. Decisions in Illinois, 81. 
 
 36. Foreign executors and administrators, how, where and when 
 they may act, limitations and restrictions, 82. 
 
 the powers, duties, rights and liabilities of, 83-96. 
 
 1. The scope of the office of administrator, 83. 
 
 2. Administrators are personal representatives of their intestates, 83. 
 
 3. Decisions of the supreme court of the State of Illinois, 84-96. 
 See Resignation. 
 
 ADVANCEMENTS, 103, 345. 
 See Descent.
 
 356 INDEX. 
 
 ADVERTISEMENT, 51, 290. 
 
 See Constructive Service ; Personal Estate ; Notice. 
 
 AFFIANT'S OATH, 292. 
 AFFIDAVIT, 
 
 for a dedimus, 37. 
 
 requisites o, 297. 
 
 See Probate Record; Forms. 
 
 AFFIRMATION, 
 form of, 293. 
 
 AGE, 
 
 males at 21, females at 18, are of lawful, 102. 
 
 AGREEMENTS, 160, 161. 
 See Contracts. 
 
 ALLEGATIONS, 
 
 of fact, how to be made, 305. 
 ALPHABETICAL LIST OF FORMS, 301. 
 
 See Forms. 
 APPEARANCE, 
 
 by heirs to contest claims should be in the name of the administrator, 88, 
 
 APPEAL, 
 
 may be taken from the order admitting a will to probate, 30. 
 
 APPEALS, 271J 273. 
 
 1. Appeals when allowed in cases in the administration of estates, 224, 
 
 271. 
 
 2. In guardianship, 271 . 
 
 3. Praying appeal, 271, 272. 
 
 4. How prayed, 272. 
 
 5. Bond on appeal, 272 . 
 
 6. Security for costs by non-residents, 272. 
 
 7. The requisites of the bond, 272, 273. 
 
 8. The bill of exceptions, 273. 
 
 9. In cases of wills, 273 . 
 APPENDIX, 339. 
 APPOINTMENT, 
 
 of an attorney by an infant absolutely void, 102. 
 
 letters testamentary as evidence of the, of the executor, 50. 
 
 See Petition. 
 
 APPRAISEMENT, THE, 172-174. 
 ARBITRATION, 
 
 administrator cannot submit a claim to, 89. 
 
 ASSETS, 
 
 what are, 92, 93, 94, 275.
 
 357 
 
 ASSETS Continued. 
 See 53 III. 224. 
 
 See Personal JSstate ; Real Estate. 
 personal property, 157-185. 
 
 1. Things personal, 158. 
 
 2. Mercantile transactions, 158. 
 
 3. Insufficiency of assets, 158. 
 
 4. Distinctions between things personal and things real, 158, 159. 
 
 5. Conversion of real property ; special proceedings necessary for 
 the purpose against the property and also against the heir, 
 158, 159. 
 
 6. The practice in such cases governed by the superior courts, 
 through the right of appeal, 159. 
 
 7. The absolute title and qualified right of the administrator or 
 executor to the assets of the decedent, 159. 
 
 8. The assets considered, 159. 
 
 9. Contract in general, 159, 160, 161. 
 
 10. Contracts defined, 160, 161. 
 
 11. Consideration essential to, 160. 
 
 12. Sale or exchange, 161, 162. 
 
 13. Fraud annuls all contracts which it infects, 162. 
 
 14. Warranty, 162. 
 
 15. Caveat emptor, 162. 
 
 16. Guaranty, statute of frauds, 162, 163. 
 
 17. Bailment, pawn, 163. 
 
 18. Lien, 163. 
 
 19. Hiring and borrowing, 164. 
 
 20. Debts, 164. 
 
 21. Bonds, 164. 
 
 22. Bills of exchange, 164, 165. 
 
 23. Cheques, 165, 166. 
 
 24. Promissory notes, 166. 
 
 25. Insurance policies, 166, 167. 
 
 26. Bottomry, 167. 
 
 27. The care and judgment required in the management of the 
 assets, 167. 
 
 insufficiency of, 158, 159-165. 
 ASTOR, GRIG-NON v., 2 How. 193. 
 
 discussed, 6, 62, 63. 
 ATTACHMENT, 32. 
 ATTENDANCE, 
 
 of the sheriff, 274. 
 
 to compel the production of a will, 16. 
 
 for a witness, 32. 
 
 for contempt, when the remedy to compel distribution, 87, 88.
 
 358 IXDEX. 
 
 ATTESTED, 
 
 a will must be, 40, 47, 346. 
 
 ATTESTING, 
 
 creditor may be a competent witness, 46. 
 ATTORNEY, 
 
 a minor cannot appoint an, 102. 
 
 rendering services for an executor acquires claim against the estate, 88. 
 AWARD, WIDOWS', 217, 218. 
 
 B. 
 
 BAILEES, 
 
 lien of, 163. 
 BAILMENT, 163. 
 BANK NOTE, 166. 
 BARGAIN, 
 
 when complete, 162. 
 BILL, BURNT RECORDS', 334. 
 BILL OF EXCEPTIONS, 334. 
 BILL OF EXCHANGE, 164. 
 BILL OF SALE, 183. 
 BOND, 164. 
 
 an infant connot bind himself by, 102. 
 
 executor's, how approved, 30. 
 
 to be filed and recorded, 30. 
 
 of the executor, the form prescribed, 30. 
 
 joint and several, 279. 
 See forms. 
 
 BOOKS OF ACCOUNT, 275. 
 BORROWING, HIRING AND, 164. 
 BOTTOMRY, 167. 
 BREACH, 
 
 of administrator's bond, joint or several action will lie on, 81. 
 BUILDINGS, 
 
 when personal estate, 189. 
 
 BURIALS, 
 
 the law of, 190. 
 
 BURNT RECORDS' BILL, 334. 
 
 CARE, 
 
 and judgment of the prudent and discreet, essential in administration, 167 
 CAPACITY, TESTAMENTARY, 
 
 must be shown, 43, 44, 45, 47.
 
 INDEX. 359 
 
 CA VEAT EM-PTOR, 162. 
 CERTIFICATE 
 
 of proof of a will, 46. 
 
 of the execution of a dedimus, 35-38. 
 
 to be indorsed on a deposition, 48. 
 
 of oaths of attesting witnesses, effect as evidence, 43. 
 
 of the clerk attached to letters testamentary, 49, 50. 
 
 of foreign will, as evidence, 42. 
 
 of publication, 51, 290. 
 
 See Forms. 
 CHAMBER 
 
 in a house may be separate real estate, 189. 
 
 CHANCERY, 
 
 the probate of the will may be contested by bill in, 30. 
 
 heirs should proceed by bill in, if dissatisfied with the settlement of 
 
 estate by the administrator, 88. 
 CHANCERY JURISDICTION, 94, 95, 96. 
 34 of the conveyance act, construed, 94. 
 specific performance, etc., 94, 95. 
 
 See SRWs Chancery, p. 283-286. 
 CHANGE OF VENUE, 224, 225. 
 
 CHATTELS, GOODS AND, 159. 
 defined, 83, 160, 161. 
 See Personal Estate. 
 
 CHATTELS REAL, 165, 191. 
 CHECK OR CHEQUE, 165, 166. 
 
 CIRCUIT COURT, 
 
 creditors of an intestate may sue in the, in the first instance, 88. 
 See Appeals. 
 
 CITIZEN, 
 
 of another State may come in and cause administration to be granted, 
 
 when and how, 82. 
 See Foreign Executor, etc. 
 
 CITATION, 
 
 and notice to heirs and legal representatives, 50, 51. 
 See Forms. 
 
 CIVIL LAW, 
 
 degrees of consanguinity by the, 70, 257, 278. 
 See Descent. 
 
 CLAIMS, 
 
 practice in presenting, 87. 
 
 heirs may appear in name of administrator and contest, 88.
 
 360 LffDEX. 
 
 CLAIMS Continued. 
 
 defenses to, may be defenses to application to sell real estate, 88. 
 desperate, 176, 177, 178, 179. 
 against estates, 222-232.- 
 
 1. Notice of term fixed by executor or administrator for adjust- 
 
 ment of; procedure prescribed ; jury trial, etc., 222, 223. 
 
 2. When a creditor may file his claim, summons to issue to the 
 
 executor or administrator, 223. 
 
 3. Return terms, cause to be continued if summons be not served 
 
 ten days before, 223. 
 
 4. Procedure prescribed, 223, 224. 
 
 5. Claimant may be compelled to make oath that his " claim is just 
 
 and unpaid," 224. 
 
 6. Evidence, 224. 
 
 7. Counter-claim, 224, 236. 
 
 8. Claims not yet due may be proven, 224, 236. 
 
 9. Appeal may be taken by either party to the circuit court, 224. 
 
 10. Change of venue to circuit court if county judge be interested, 
 
 or a witness in any case or matter pending in his court, 224, 
 225. 
 
 11. Adjudication of claims, instructions to executors or administra- 
 
 tors, 225. 
 
 12. Administrator's notice, 225-228. 
 
 13. Creditor's rights, how enforced, 228, 229. 
 
 14. Time in which claims are to be presented, 229. 
 
 15. The decision collated, 229-232. 
 
 CLERK'S ENTRIES, 
 
 in probating a will, 48. 
 
 See Forms. 
 CLOSING, OPENING AND, 
 
 of terms and sessions of court, 291. 
 
 CO-EXECUTORS OR ADMINISTRATORS, 
 
 several may be appointed, 282. 
 
 COMMON LAW, 
 
 the, deeply rooted in our usages and institutions, 186. 
 See Descent. 
 
 COMPETENCY, 
 
 of attesting creditor, 46. 
 See Witnesses, 287, 288. 
 
 COMPROMISE, 
 
 of debts, administrator may make, 86. 
 
 CONSANGUINITY, 
 
 degrees of, as affecting the /us representationis, 70. 
 degrees of, 268.
 
 ISTDEX. 361 
 
 CONSERVATORS, 139-147. 
 
 1. When a conservator may be appointed, 139. 
 
 2. Summons to be issued, 139. 
 
 3. Conservator to give bond, 140. 
 
 4. Bonds may be put in suit, 140. 
 
 5. Duties of conservator, generally, 140. 
 
 6. To take charge of the estate of his ward, and return inventories, 140. 
 
 7. Requisites of an inventory, 140. 
 
 8. Conservator to settle his account at least annually, 140. 
 
 9. On final settlement to deliver estate and title papers, 141. 
 
 10. The final accounting, 141. 
 
 11. Conservator to settle all accounts of his ward, and sue in his own 
 name, 141. 
 
 12. May with consent of court perform the personal contracts of his ward, 
 
 141. 
 
 13. To appear and represent his ward in all suits and proceedings, 141. 
 
 14. Contracts of a lunatic after finding of a jury, void as to the lunatic, 141. 
 
 15. Contracts made before such finding, when may be avoided, 142. 
 
 16. Trading, bartering or gaming with a lunatic, etc., prohibited, 142. 
 
 17. Conservator to frugally manage the estate, 142. 
 
 18. Investments to be made, 142. 
 
 19. Conservator may lease his ward's estate, 142. 
 
 20. He may by leave of the county court mortgage the same, 142. 
 
 21. Petition for leave to be filed, 142. 
 
 22. Strict foreclosure prohibited and redemption prescribed, 142, 143. 
 
 23. Sale of real estate may on petition of the conservator be ordered by 
 the county court, 143. 
 
 24. The petition, 143. 
 
 25. Notice of application, 143. 
 
 26. Procedure as in chancery, 143. 
 
 27. Notice of sale, 143. 
 
 28. Report of sale and deed, 143. 
 
 29. Account of proceeds, 144. 
 
 30. Sureties of the conservator to be looked after and kept sufficient, 144. 
 
 31. Conservator may be required to give counter security, 144. 
 
 32. Conservator may be removed, 144. 
 
 33. To be first summoned, 144. 
 
 34. He may in a proper case resign, 144. 
 
 35. Another conservator may be appointed, 144, 145. 
 
 36. Fees and compensation of the conservator to be reasonable and just, 
 145. 
 
 37. Conservator may be discharged and the property restored to the 
 owner on his restoration to reason or reformation, 145. 
 
 38. Notice of application to be given to the conservator, 145. 
 
 39. Procedure on the application, 145. 
 
 46
 
 362 INDEX. 
 
 CONSERVATORS Continued. 
 
 40. Appeals, 145, 146. 
 
 41. Conservator, guardian, curator, or committee of any non-resident 
 idiot, lunatic, insane or distracted person, spendthrift or drunkard, 
 may collect debts and recover property of ward in this state, 146. 
 
 42. Application for sale of such ward's estate to be made to the circuit 
 court, 146. 
 
 43. Notice of application, 147. 
 
 44. Bond may be required, 147. 
 
 45. Bond for costs may be given, 147. 
 
 46. Repeal of former laws, 147. 
 CONSTRUCTION, 
 
 of the statute of administration, 276. 
 CONSTRUCTIVE SERVICE, 126-132. 
 
 CONTEMPT, 
 
 attachment for ; when the remedy to compel distribution, 87, 88. 
 
 CONTEST OF ISSUE OF VALIDITY OF A WILL, 
 
 may be in probate, on appeal and in chancery, 41. 
 
 CONTEST OF THE PROBATE, 
 
 may be had in the county court, on appeal or in chancery, 30. 
 
 CONTRACT, 
 
 parol with the intestate, how enforced, 89, 275. 
 
 CONTRACTS, 
 
 defined and specified, 160-167. 
 of infants considered, 102. 
 of the decedent, 275. 
 See Specific Performance. 
 
 CONVERSION OF REAL PROPERTY, 158, 159, 186-214. 
 
 CONVEYANCES, 
 
 by infants, voidable only, 103. 
 See Forms. 
 
 CONVICTED CRIMINAL, 
 not to be executor, 54. 
 
 COPY, 
 
 of will to accompany the letters testamentary, 49, 298. 
 
 CORPORATE PROPERTY, 189. 
 CORPSES AND THEIR BURIALS, 190. 
 
 COSTS, 
 
 when recoverable by the creditor, 90. 
 claimants, after expiration of two years, to pay, 275. 
 See Costs and Fees.
 
 INDEX. 363 
 
 COSTS AND FEES, 294-300. 
 
 1. The statute of costs and fees applies in probate matters, 294. 
 
 2. In case of appeal in such matters, costs discretionary, 294. 
 
 3. Actions and proceedings by non-residents and on office bonds; 
 
 security in the first instance must be given, or suit on motion must 
 be dismissed, 295. 
 
 4. Form of preliminary security, 295. 
 
 5. The motion to dismiss must however be made in apt time, 295. 
 
 6. Security after suit brought, 295, 296. 
 
 7. Affidavits of parties, 296. 
 
 8. Form of security to be given, when required after suit brought, 296. 
 
 9. Non-residents cannot be executors or administrators, guardians or 
 
 conservators ; foreign executors or administrators, guardians or con- 
 servators, however, may be empowered, but must always, before 
 instituting proceedings, file security for costs, 296. 
 
 10. Non-resident creditors of an estate in probate must file preliminary 
 
 security, qucere, 296, 297. 
 
 11. Appraisers' fees $2 per diem, 297. 
 
 12. Fees of the officers of court, 297, 298. 
 
 13. Compensation of executors, etc., 299. 
 
 14. Allowances to, for costs and disbursements, 299. 
 
 15. After expiration of two years, claimants to pay costs in certain 
 
 cases, 299. 
 
 16. The applicant to be discharged on resignation as executor or adminis- 
 
 trator must pay the costs of the application, 299. 
 
 17. Suits on bonds ; the party for whose use suit is brought must gre 
 
 preliminary security, and is liable to pay costs on failure to main- 
 tain his suit, 299. 
 
 18. Delinquent executors and administrators cited or attached, must |ay 
 
 costs, 299, 300. 
 
 19. In probate, as in chancery, costs are usually discretionary, 300. 
 
 20. Witness fees, 309. 
 
 21. Commissioner's fees, etc., 300. 
 
 sheriff" 's fees, 274. 
 
 COUNTY, 
 
 the proper, or the venue, 76, 339. 
 
 COURT, 
 
 power of, to compel obedience to orders, 274. 
 
 of its own motion may institute proceedings to compel the pioductioc 
 
 of a will, 16. 
 must be the proper one in which to proceed, 39. 
 
 See Jurisdiction ; Practice, 274. 
 
 
 
 COVENANTS, 
 
 doctrine of, when made by the administrator, 85.
 
 364 INDEX. 
 
 CREDIBILITY, 
 
 of witnesses to a will, 40, 45, 47. 
 
 See Witnesses. 
 CREDITOR, 
 
 attesting rendered competent, 46. 
 
 laches of, what may be, 90, 91. 
 
 lien of the, paramount to the rights of heirs, legatees and devisees, 64. 
 CREDITORS, 
 
 unauthorized preference to, ground for removal, 100. 
 
 rights, how enforced, 228, 229. 
 See Claims. 
 
 CREDITS, RIGHTS AND, 83. 
 
 See Personal Estate. 
 CRIMINAL, 
 
 convicted, not to be an executor, 54. 
 
 CROPS, 
 
 when real and when personal estate, 189. 
 
 r>. 
 
 DEATH, 
 
 the common lot of all, 62. 
 
 at, the probate jurisdiction begins, 63. 
 
 suit for negligence causing, 344. 
 
 See Appendix. 
 proof of, essential to jurisdiction, 67. 
 
 DEBT, 
 
 as a legal relation arising out of a contract, 164. 
 
 by specialty, 164. 
 
 by record. 164. 
 DEBTS, 
 
 must exist in order to warrant a sale of real property, 193 
 
 DECEASED PERSONS, 
 
 either testates or intestates, 1, 8. 
 DECEDENT, 
 
 one who has died, 1. 
 
 there must be a, to give probate jurisdiction, 39. 
 DECREE, 
 
 the hearing and, on the probate of a will, need not be formal, to be 
 
 valid, 47. 
 DEDIMUS, 
 
 for the examination of witnesses, 33, 34. 
 
 short form of, with certificates of the execution thereof, 38, 39. 
 
 must be annexed to the will, 37. 
 
 and instructions, 33-37. 
 
 to whom it may issue, 37.
 
 INDEX. 365 
 
 DE FACTO, ADMINISTRATOR, 76. 
 
 DEFENSES, 
 
 against claims and against applications to sell real estate to pay debts, 88. 
 
 DEFINITION, 
 
 of a will, 10, 181. 
 of administrator, 65. 
 of executor, 28. 
 of contract, 160. 
 of distribution, 264. 
 of descent, 251. 
 
 DEGREES OF CONSANGUINITY, 268. 
 
 DEMANDS, 215-237. 
 See Claims. 
 
 DEPOSITIONS, 300. 
 
 See Dedimus. 
 
 DESCENT, 251-270. 
 
 1. Estates both real and personal of intestates, after paying all just debts 
 and claims, descend and are to be distributed, 252, 253. 
 
 1. To the children and their descendants, in equal parts ; descend- 
 
 ants of a deceased child taking the share of their parents in 
 equal parts among them, 252, 253. 
 
 2. If there be no children, nor descendant of children, and no 
 
 widow or surviving husband, then to the parents, brothers and 
 sisters of the deceased, and their descendants, in equal parts, 
 each parent taking a child's part, or to surviving parent, if one 
 only be living, a double portion ; and if no parent be living, 
 then to the brothers and sisters of the intestate, and their 
 descendants, 253. 
 
 3. If there be a widow or surviving husband, and no child or chil- 
 
 dren, or descendants of a child or children of the intestate, then 
 one-half of the real and the whole of the personal estate shall 
 descend to the surviving consort in fee, 253. 
 
 4. If there be a widow or surviving husband, and a child or children, 
 
 or descendants of a child or children of the intestate, to the 
 surviving consort one-third of all the personal estate, 253. 
 
 5. If there be no child or descendant of such child, no parent, 
 
 brother or sister, or descendant of them, and no surviving con- 
 sort, then to the next of kin to the intestate in equal degree, 
 computing by the rules of the civil law ; no representation 
 among collaterals except with the descendants of brothers and 
 sisters of the intestate, and no distinction between kindred of 
 the whole or half blood, 253.
 
 366 INDEX. 
 
 DESCENT Continued. 
 
 6. If there be a surviving consort and no kindred, then the estate 
 
 descends to the survivor, 253. 
 
 7. If there be no surviving consort or kindred, then the estate 
 
 escheats to the State, 253. 
 
 2. Illegitimate issue to inherit on the mother's side ; rules for specified 
 
 cases, 252, 253. 
 
 3. Illegitimate issue may be legitimatized by subsequent marriage and 
 
 acknowledgment by the father, 254. 
 4-9. Advancement and rules relating thereto, 254, 255. 
 
 10. Posthumous heirs placed on an equal footing with the other 
 
 heirs, 255. 
 
 11. Issue of deceased devisee or legatee to inherit, and how, 255. 
 
 12. Undevised and unbequeathed real and personal property of any tes- 
 
 tator to be deemed and distributed as intestate; administrator 
 cum testamento annexo preferred in administration, 255, 256. 
 
 13. Repealed laws enumerated ; saving clause, 256. 
 
 14. Computation of the civil law adopted, 256, 268. 
 
 15. Proof of heirship, 256. 
 
 16. After accruing rent, an hereditament, 256. 
 
 17. Husband and wife' in no case next of kin to each other, 256. 
 
 18. If the intestate die without issue, leaving only a mother, the estate 
 
 goes to her, 256. 
 
 19. The interest of a posthumous child not affected by a decree and sale 
 
 to satisfy debts of relatives, e. g., his mother and uncle, 256, 257. 
 
 20. A posthumous child takes directly from the parent, 257. 
 
 21. Distribution of personal estate not known to the common law except 
 
 under the rules of the civil law, 257. 
 
 22. Common-law rules as to the descent of real property, discussed in 
 
 the light of the authorities, 257, 258. 
 
 23. The word heir taken in a double sense; 1. Designating the person 
 
 to take the estate ; 2. Limiting the estate transmitted or conveyed ; 
 title by descent or purchase, 258, 259. 
 
 24. The custom of gavel-kind, 259-261. 
 
 25. The rule in Shelley's case, 261-263. 
 
 26. Common-law rules prevail unless the provisions of an act of the 
 
 assembly embrace the very case in controversy, 263. 
 
 27. Heir at common law and statutory heir, 263. 
 
 28. Distribution, 264. 
 
 29. Proof of heirship before distribution, 264. 
 
 30. Decisions in Illinois collated, 264-271. 
 
 DESTRUCTION OF A WILL, 
 
 or secretion thereof, tantamount to larceny, 16. 
 
 DEVASTA VIT, 
 
 evidence of, etc., 89.
 
 INDEX. 367 
 
 DISTINCTION, 
 
 between personal and real property, 150. 
 See Descent. 
 
 DISPOSING MIND AND MEMOEY, 40, 41, 47. 
 DISTRIBUTION, 264. 
 See Descent. 
 
 attachment for contempt, when the process to compel, 87, 88. 
 DIVISION OF A COUNTY, 
 
 venue in case of, 339. 
 DOMICILE, 
 
 the law of, governs in the distribution of personalty, 160. 
 
 or home of decedent, as fixing the venue for probate procedure, 14. 
 
 DOWER, 
 
 See Hill's Chan. Pr.; 1 Gross, 230; Jones' Forms; also, see Forms; 
 Wills, infra. 
 
 DRUNKARD, 
 
 guardian may be appointed for the habitual, 134. 
 
 DUE COURSE 0.1? ADMINISTRATION, 161, 273. 
 See Bond. 
 
 DUTIES, 
 
 the importance of a faithful discharge of, by executors, etc., 2. 
 
 preliminary by the "executor, 28. 
 
 the principal, of the executor, 55. 
 
 the principal, of the administrator, 56. 
 
 of the administrator to interpose defenses to claims, 86. 
 
 E 
 
 EMINENT DOMAIN, 
 
 when the place of burial is taken by right of, for public use, next of kin 
 to claim indemnity, 190. 
 
 ENGLISH STATUTES, 
 
 1 Jac. II, ch. 17, 22 and 23. Oar. II, ch. 10, etc., 68. 
 See Statutes. 
 
 ENTRY, 
 
 order and, on presentation of a petition for process to compel the pro- 
 duction of a will, 15, 16. 
 See Forms. 
 
 ESTATES, TESTATE AND INTESTATE, 1. 
 ESTATES, TESTATE, 10-16. 
 
 See Wills/ Testate Estates; Executors; Intestate Estates; Administrators; 
 Estates of Infants or Minors; Infants; Gwrdians; Estates of the 
 Incapacitated; Idiots; Insane; Conservators; Personal Estate; Real 
 Estate, etc.
 
 368 INDEX. 
 
 ESTATES, INTESTATE, 61-101. 
 
 ESTATES OF THE INCAPACITATED, 107-156. 
 
 ESTATES OF MINORS, 102-134. 
 
 ESTOPPEL, 
 
 infants not effected by, 103. 
 
 EVIDENCE, 
 
 by proper certificate of a foreign will, 42. 
 letters testamentary as, 49, 50. 
 See Witnesses; Death; Intestacy. 
 
 EXAMINATION, 
 
 of witnesses ore temis and by dedirmis, 32, 33. 
 
 of the witnesses in probating a will, 33. 
 EXCHANGE, BILL OF, 164. 
 
 EXCHANGE, SALE OR, 181. 
 
 EXECUTOR, 
 
 renunciation by, 16, 17. 
 preliminary duties of the, 28 
 the principal duties of, 55. 
 instruction to the, 28. 
 his bond, 30. 
 his oath, 29. 
 criminal not to be, 54. 
 de son tort, 85. 
 power of, 85. 
 
 EXECUTORS, 53-60. 
 
 I. Competency and appointment, 53, 54. 
 II. Powers and duties, 54-57. 
 III. Renunciation, resignation and removal, 57-61. 
 
 I. COMPETENCY AND APPOINTMENT, 53, 54. 
 
 1. Who may be executors, 53. 
 
 2. Appointment of a debtor as executor, 54. 
 
 3. A femme couverte may be, 54. 
 
 4. A corporation, 54. 
 
 II. POWERS AND DUTIES, 54-57. 
 
 1. The authority, 54, 55. 
 
 2. How appointed, 55. 
 
 3. Executor de son tort, 55. 
 
 4. Their principal duties, 55, 56. 
 
 5. Distinction between their duties and those of administrators, 56, 57.
 
 INDEX. 369 
 
 EXECUTORS Continued. 
 
 III. RENUNCIATION, RESIGNATION, AND REMOVAL, 57-60. 
 
 1. Renunciation, 57. , 
 
 2. Form of, 57, 58. 
 
 3. Record of, 58. 
 
 4. Resignation, 58. 
 
 5. Removal, 58, 59. 
 
 6. Superseding, petition for, 59. 
 
 7. Revocation of letters testamentary, 60. 
 
 EXECUTRIX, 
 
 the acts of an, bind the estate, 84. 
 
 EXPENSES, ALLOWANCES, CLAIMS AND LEGACIES, 215-237. 
 
 I. Demands classified, the widow's award, funeral expenses, *nd 
 
 expenses of last illness, 215-222. 
 II. Claims against estates, 222-232. 
 III. Legacies, 233-237. 
 
 I. DEMANDS CLASSIFIED, WIDOW'S AWARD, AND EXPENSES, 215-237. 
 
 1. Demands classified, 215, 216. 
 
 2. To be classed in order as prescribed, and paid class by class, when 
 
 insufficient, demands paid pro rata, 216. 
 
 3. Demand of executor or administrator to be filed and defended 
 
 against; how, 216. 
 
 4. Demands to be entered arid classed, papers to be filed and preserved, 
 
 216, 217. 
 
 5. Award to the widow and children, or the ''widow's award," 217, 218. 
 
 6. Duty of appraisers in making the award, 218. 
 
 7. Renouncing or failing to renounce under the will by the widow, not 
 
 to affect her award, 218. 
 
 8. Award to be to the children, if there be no widow when decedent 
 
 was a householder, 218, 219. 
 
 9. The widow or surviving husband may renounce in writing all benefit 
 
 under the will, and receive property as if the decedent had died 
 intestate, 219. 
 
 10. Legacies and bequests, if diminished by renunciation, to be equal- 
 
 ized, 219, 220. 
 
 11. Widow, when liable for waste, 220. 
 
 12. Relinquishment of specified articles and further selection by the 
 
 widow, 220. 
 
 13. Statement thereof to the court, 221. 
 
 14. Estimate of specific property, 221, 222. 
 
 15. Expenses attending the last illness, 222. 
 See Claims and Legacies. 
 
 47
 
 370 INDEX. 
 
 F. 
 
 FAILURE OF CONSIDERATION, 
 
 a warranty made by an administrator if basis of negotiable paper may 
 be set up as, 89. 
 
 FEES, 
 
 the sheriff to have the same as if in the circuit court, 274. 
 See Costs and Fees. 
 
 FERGUSON v. HUNTER, 
 the case discussed, 47. 
 
 FIDUCIARY RELATION, THE, 303, 304. 
 FIXTURES, 189, 190. 
 
 FOREIGN ADMINISTRATORS, 
 empowered to sue, 87. 
 
 FOREIGN EXECUTORS OR ADMINISTRATORS, 
 may act, when and how, 82. 
 
 FOREIGN GUARDIAN, 
 
 when may sue and act, 286, 287. 
 
 FOREIGN WILL, 
 how evidenced, 42. 
 may be probated, evidence of, 52. 
 
 FORM, 
 
 and effect of judgment against personal representatives, 91, 92. 
 
 FORMS OR PRECEDENTS, 
 adjudicate, citation to, 332 . 
 
 acceptance of appointment of guardian and guardian ad litem, 117. 
 acceptance of resignation as executor or administrator, 98. 
 acceptance of resignation of a guardian, 124. 
 account, administrator's, 240-242. 
 account of personal estate and debts, preliminary to sale of real 
 
 estate, 202. 
 
 absence, affidavit of, 130. 
 administration, petition for letters of, 77. 
 administrator, oath of, 79. 
 
 administrator with the will annexed, oath of, 80. 
 administrator's account, 240, 242. 
 administrator's notice of settlement of claims, 225, 230. 
 administrator's sale of personal estate, 181. 
 administrator's notice of sale of real estate, 324. 
 administrator's deed, 322. 
 administration, entry of grant of, 310. 
 administration, letters of, 79.
 
 ItfDEX. 371 
 
 FORMS OR PRECEDENTS Continued. 
 
 administration, petition for revocation of letters of, 99, 100. 
 
 administration, decree revoking letters of, 101 . 
 
 advertisement, certificate of, 51. 
 
 advertisement, notice to guardian, 131. 
 
 affidavit of death and intestacy, 77. 
 
 affidavit of infancy, 117. 
 
 affidavit of absence, 130. 
 
 affidavit of concealment, 139. 
 
 affidavit of non-residence, 129. 
 
 affidavit of a claim against an estate of a decedent, 331 . 
 
 affidavit of posting notices, 182. 
 
 affidavit for a dedimus, 37. 
 
 allowance to the widow and children, 221. 
 
 appointment of guardian ad litem, 117. 
 
 appointment of appraiser to fill vacancy, 311. 
 
 appraisers, order appointing, 310. 
 
 appraisement, warrant for, 171. 
 
 appraisement bill, 173. 
 
 appraisement, citation to return inventory and, 331. 
 
 apprentice, indenture of, 319, 320. 
 
 apprenticeship, indentures of, 332, 334. 
 
 assent to resignation of executor or administrator, 99. 
 
 attachment to compel the production of a will, 16. 
 
 attachment to compel the attendance of witnesses, 32. 
 
 award, widow's, 221. 
 
 bond of administrator, 78. 
 
 bond of administrator, with the will annexed, 80. 
 
 bond of executor, 30. 
 
 bond of guardian, 113. 
 
 bond by legatee or distributee, 334. 
 
 bill, the appraisement, 173. 
 
 bill of sale, 183. 
 
 certificate to appraisement bill, 173. 
 
 certificate of publication, printer's, 51, 290. 
 
 certificate of the clerk to letters testamentary, 50. 
 
 certificates of proof under a dedimus, 38. 
 
 certificate of insanity, 156. 
 
 citation to a minor, 112. 
 
 citation, notice and proof of a nuncupative will, 51. 
 
 citation to adjudicate, 331. 
 
 citation to return inventory and appraisement, 331. 
 
 citations, common forms for, 318, 319. 
 
 claims, notice of settlement of, 225. 
 
 claims, entry on the adjustment of, 314. 
 
 codicil 12.
 
 372 INDEX. 
 
 FORMS OR PRECEDENTS Continued. 
 concealment, affidavit of, 130. 
 conservator, petition for, 154. 
 conservator's inventory, 185. 
 commission to take deposition, 33, 34, 321. 
 
 See Dedimus. 
 costs, execution for, 320. 
 death, affidavit of, 77. 
 debts, desperate, 176-179. 
 decree for removal of guardian, 133. 
 decree removing an executor or administrator, 101. 
 dedimus, 33, 34, 321. 
 dedimus (short form), 38. 
 dedimus, affidavit for, 37. 
 deed, administrator's, 322. 
 deed, executor's, 325. 
 
 deposition, commission to take, 33, 34, 321. 
 desperate debts, suggestion of, 177. 
 desperate debts, application to sell and compound, 177. 
 distributee, bond by, 234. 
 dower, claim for, 319. 
 
 waiver of, 319. 
 
 entry of grant of administration, 310. 
 entry of adjustment of claims, 314. 
 
 entry of an order to compel the production of a will, 15. 
 executor's bond, 30. 
 executor's oath, 29. 
 executor, petition to remove an, 59. 
 executor's deed, 325. 
 executorship, renunciation of, 16. 
 execution for costs, 320. 
 guardian's bond, 113, 334. 
 guardian's inventory, 185. 
 
 guardian, petition of, for permission to resign, 123, 124. 
 guardian, petition for a removal of a, 124, 125. 
 guardian, summons to a, 125. 
 guardian, decree of removal of, 133. 
 
 See Constructive Service. 
 guardian ad litem, order appointing, 117. 
 guardianship, petition for, 111. 
 guardianship, letters of, 116, 320. 
 guardian's sale, report of, 330. 
 indentures of apprentice, 319, 320, 332, 333. 
 infancy, affidavit of, 117. 
 inquisition as to insanity, 155. 
 insane, record of proceeding in case of the, 156.
 
 IXDEX. 373 
 
 FORMS OR PRECEDENTS Continued. 
 insanity, inquisition as to, 155. 
 insanity, statement of (petition), 154. 
 instruction for taking a deposition, 34, 35. 
 intestacy, affidavit of, 77. 
 inventory of the estates of the deceased, 170. 
 inventory by the guardian and conservator, 185. 
 inventory, citation to return, 331. 
 legatee, bond by, 234. 
 letters of administration, 79. 
 letters of administration, petition for, 77. 
 letters of guardianship, 116, 320. 
 letters testamentary, petition for, 29. 
 letters testamentary, 49, 50. 
 letters testamentary and letters of administration, petition for revocation 
 
 of, 99, 100. 
 
 lunatico de inquirendo, writ of, 155. 
 minor, citation to a, 112. 
 non-residence, affidavit of, 129. 
 
 notice and citation to heirs, etc., of probate of nuncupative will, 51. 
 notice, publication, to guardian, 131. 
 
 notice, administrator's sale of desperate claims, 176, 177, 329. 
 notice of administrator's sale of personal estate, 181. 
 notice, affidavit of posting, 182. 
 
 notice, administrator's, of the settlement of claims, 225. 
 notice of petition to sell real estate, 206. 
 notice of application by guardian to sell real estate, 327. 
 notices of sale of real estate by administrator, 315, 316, 324. 
 notices of sale of real estate by guardian, 329. 
 nuncupative will, 13. 
 oath of executor, 29. 
 oath of administrator, 79. 
 
 oath of administrator with the will annexed, 80. 
 oaths, 291, 294. 
 
 order on granting a petition to compel the production of a will, 15. 
 order appointing appraisers, 310. 
 order on the return of the appraisement bill, 313. 
 order on return of the inventory, 311. 
 order for citation to compel an inventory, 311. 
 order to file an inventory, 311. 
 order for the sale of real estate, 315. 
 order to compel sale of real estate, 314, 315. 
 order appointing a guardian, 316. 
 order of confirmation of sale of real estate, 316. 
 order revoking letters, 312. 
 order appointing administrator de bonis non, 312.
 
 374 INDEX. 
 
 FORMS OR PRECEDENTS Continued. 
 pendency of suit to sell real estate, 206. 
 petition for guardianship, 111. 
 order appointing a guardian ad litem, 117. 
 petition for a guardian by minors, 112, 113. 
 petition for a guardian by a third party, 114, 115. 
 petition of guardian for permission to resign, 123, 124. 
 petition for the removal of a guardian, 124, 125. 
 petition for process to compel the production of a will, 15. 
 petition for letters of administration, 77. 
 petition for letters testamentary, 29. 
 petition to supersede the appointment of an executor, 59. 
 petition for revocation of letters testamentary or of administration, 
 
 99, 100. 
 
 petition for conservator of an insane person, 154. 
 petition for the sale of real estate, 204. 
 petition for sale of real estate by the guardian, 327. 
 petition for restoration of a probate record, 334, 337 
 placita, 308. 309. 
 posting, affidavit of, 182 . 
 preamble and recital, 309. 
 printer's certificate, 51. 
 
 production of a will, petition for process to compel, 15. 
 production of a will, order of entry, 15. 
 production of a will, attachment, 16 . 
 proof of death of a testator, 317. 
 proof of will (common form), 46. 
 proof of execution of a will with the record, 48, 49. 
 publication of notice to guardian, 131. 
 publication, printer's certificate of, 51. 
 publisher's certificate, 51 . 
 real estate, notice of application to sell, 206 . 
 real estate, sale of, petition for, 204, 205. 
 real estate, account preliminary to sale, 202. 
 recital, preamble and, 309. 
 
 relinquishment of specific articles by the widow or children, 220. 
 removal of guardian, decree for, 133. 
 renunciation of executorship, 16. 
 renunciation, forms of, 324. 
 report of administrator's sale of real estate, 323. 
 report of guardian's sale, 330. 
 
 representation of a party to procure appointment of a guardian, 327. 
 resignation, acceptance of a guardian's, 124. 
 resignation of executor or administrator, 97, 98. 
 resignation of executor or administrator, notice of, 97. 
 resignation of executor or administrator, acceptance of, 98.
 
 INDEX. 375 
 
 FORMS OR PRECEDENTS Continued. 
 
 resignation of executor or administrator, assent to, 99. 
 
 residence unknown, affidavit of, 130. 
 
 restoration of a burnt record, the petition for, 334, 337. 
 
 return of cepi corpus on an attachment, 32. 
 
 revocation of letters testamentary, etc., 101. 
 
 sale, administrator's, of personal estate, 181. 
 
 sale, bill of, 183. 
 
 sale of desperate debts, 176, 179. 
 
 sale of real estate, preliminary account, 202. 
 
 sale of real estate, petition for, 204, 205. 
 
 sale, report of guardian's, 330. 
 
 service of a subpoena, proof of, 32. 
 
 statement of insanity, 154. 
 
 subptena for subscribing witnesses to a will, 31, 32, 317. 
 
 summons to a guardian, 125. 
 
 testamentary, petition for letters, 29. 
 
 testamentary, letters, 49, 50. 
 
 testamentary, petition for revocation of letters, 99, 100. 
 
 testamentary letters, decree of revocation of, 101. 
 
 unknown" residence, affidavit of, 130. 
 
 venire for a jury on a writ de lunatico inquirendo, 156. 
 
 waiver of dower, 319. 
 
 waiver of provisions in a will, and assertion of claim of dower, 319. 
 
 warrant for appraisement, 171. 
 
 widow's award, 221. 
 
 widow's relinquishment of specific articles, 220. 
 
 will, 11, 12. 
 
 will, nuncupative, 13. 
 
 will, petition to compel the production of a, 15. 
 
 will, proof of (common form), 46. 
 
 witnesses, subpoena for, 31, 32. 
 
 FORUM, 
 
 creditors may sue in the circuit court in the first instance, 88. 
 See Jurisdiction; Practice. 
 
 FRAUD, 
 
 vitiates every contract which it pervades, 120, 162. 
 presumptive and constructive trust, 96. 
 
 FRAUDS AND TORTS OF INFANTS, 103. 
 
 t 
 GK 
 
 GOODS AND CHATTELS, 
 defined, 83, 159, 160, 161. 
 
 See Assets.
 
 370 INDEX. 
 
 GRANT OF ADMINISTRATION, 
 the regular, 68, 69. 
 
 to be preceded by proof of death and intestacy, 67, 68. 
 See Administrators. 
 
 GRIGNON v. ASTOR, 
 
 2 How. 319, discussed, 6, 61. 63. 
 
 GUARDIAN AD LITEM, 
 
 appointment, powers and duties of, 133. 
 GUARDIAN, FOREIGN, 286, 287. 
 GUARDIANS, 107-117. 
 
 I. COMPETENCY AND APPOINTMENT OF, 107-117. 
 
 1. Guardians, jurisdiction of the county courts to appoint, 107, 108. 
 
 2. Construction of the statute, 109, 110. 
 
 3. The court of chancery in cases of divorce, etc., 110. 
 
 4. When a minor may nominate, and when and how guardians may be 
 
 appointed by the county courts, 110. 
 
 5. The application for appointment, 110, 111. 
 
 6. Petition to be appointed, 111, 112. 
 
 7. Citation to minors, 112. 
 
 8. Petition of minors for a guardian, 112, 113. 
 
 9. The bond, 113, 114. 
 
 10. Suits on bonds, 114. 
 
 11. Appointment of a guardian of a minor's estate when the father is 
 
 living; petition, 114, 115. 
 
 12. Other cases, 115. 
 
 13. Letters of guardianship, 116. 
 
 14. Guardian ad litem for a minor in a justice's court, 117. 
 
 15. Guardian ad litem in a common-lav* cause, in the county or circuit 
 
 court, or in chancery, 117. 
 
 II. THE POWERS AND DUTIES OF, 118-122. 
 
 1. Generally, 118. 
 
 2. A guardian cannot appoint an attorney in fact to execute a deed ; 
 
 under decree or order of court of chancery he may make compro- 
 mises; the power to mortgage the ward's land is limited, 118, 119. 
 
 3. He may, under a decree, sell real estate, 119. 
 
 4. Guardians are not allowed to make gain to themselves, 119, 303, 304. 
 
 5. Supervision of the trust, 119. 
 
 6. The husband of a guardian cannot act without express authority 
 
 from the guardian, 119, 120. 
 
 7. Fraudulent proceedings instituted by a mother are open to attack, 
 
 and how, 120. 
 
 8. A third person, generally, cannot question the power and acts of the 
 
 guardian. A guardian has no power to sell the real estate of his
 
 INDEX. 37? 
 
 GUARDIANS Continued. 
 
 ward, unless authorized by a court of competent jurisdiction, or 
 by legislative enactment. The power must be strictly pursued, it 
 is a naked power, 120. 
 9. Fraud ; caveat emptor, how applied, 120. 
 
 10. To act for the ward generally, 120. 
 
 11. Guardian ad litem, 117, 120. 
 
 12. Custody of child may be willed, 121. 
 
 13. Eemoval from another State, and charge therefor, 121. 
 
 14. Custody may be to one and guardianship to another, 121. 
 
 15. Testamentary guardian, 121 . 
 
 16. Must be commissioned, 121. 
 
 17. Frugally to manage the ward's estate, 121. 122. 
 
 18. And educate the ward, 122. 
 
 19. If the guardian neglects to educate, the court may interfere, 122. 
 
 20. To invest funds, or be chargeable with interest for neglect, 122. 
 
 III. RESIGNATION AND REMOVAL OF, 122. 
 
 1. The court may permit a faithful guardian to resign, 123. 
 
 2. Petition for permission to resign, 123. 
 
 3. Settlement of accounts, surrender of estate, and acceptance of the 
 
 resignation, 124. 
 
 4. Guardians may be removed for cause, 125 . 
 
 5. Petition for removal; its form; petition to be verified and filed, 
 
 124, 125. 
 
 6. The summons ; alias, pluries, 125, 126. 
 
 7. Constructive service, 126-132. 
 
 1. Non-resident guardian, 129. 
 
 2. Absent guardian, 130. 
 
 3. Concealed guardian, 130. 
 
 4. Residence of guardian unknown, 130, 131. 
 
 8. The notice, 131. 
 
 9. The publication, 132. 
 
 10. Jurisdiction to appoint another guardian, and to enforce orders in 
 
 such matters, 132. 
 
 11. The marriage of a female ward discharges her guardian as to custody 
 
 and education, but not as to property, 133. 
 
 12. The hearing, 133. 
 
 13. The decree revoking letters of guardianship, 133. 
 
 GUARANTY, 163. 
 
 H. 
 
 HEARING, 
 
 and decree in the probate of a will, 47. 
 in examination in probate of a will, 35. 
 48
 
 378 
 
 HEIR AND HEIRS, 
 
 distinguished, 258, 259. 
 
 not liable, except for debts, etc., 96. 
 
 HEIRS, 
 
 should proceed by bill in chancery, if dissatisfied with the settlement of 
 the administrator, 88. 
 
 appearance by, to contest claims, to be in the name of the adminis- 
 trator, 88. 
 
 HEIRSHIP, 
 
 to be proved before distribution, 264. 
 
 HEREDITAMENT, 
 
 accruing rent is a, 92, 93. 
 
 HEREDITAMENTS, 
 chattels real as, 197. 
 
 HIRING AND BORROWING, 164. 
 
 HONEST, 
 
 and prudent administration, if it result in loss, not to prejudice the per- 
 sonal representative, 85. 
 
 HOTCHPOT, 103. 
 
 HUSBAND, 
 
 may administer on his wife's estate, 75. 
 
 I. 
 
 IDIOTS, 
 
 lunatics and other incapacitated persons and their estates, 135-156. 
 
 I. The insane, etc.; decisions, 135-137. 
 
 II. Appointment of conservators, 138. 
 
 III. Their powers and duties, 139-156. 
 
 IV. Restoration and removal, 144. 
 
 See Conservators. 
 
 INCUMBRANCE, 
 
 administrator cannot sue to remove an, 88. 
 
 INDORSEMENT, 
 
 of judge on a deposition, 48 . 
 
 by executor, 85. 
 INFANTS OR MINORS, 
 
 persons and estates of, 102. 
 
 I. Infants or minors, 102-107. 
 
 II. Competency and appointment of guardians, 107-117. 
 
 III. Their powers and duties, 118-122. 
 
 TV. Resignation and removal of guardians, 122. 
 See Guardians.
 
 INDEX. 379 
 
 INFANTS OR MINORS Continued. 
 
 I. INFANTS OR MINORS, 102-107. 
 
 1. Females under eighteen years of age and males under the age of 
 
 twenty-one in this State are minors. 102. 
 
 2. Validity or invalidity of their acts generally, 102, 103. 
 
 3. Ratification of a sale of land, right to hold property, etc., 104. 
 
 4. Estoppel and laches, not applicable to infants generally, 104. 
 
 5. Of their property, 104, 105. 
 
 6. Actions by and against, 105-107. 
 
 See Guardians. 
 
 INSANE, THE, 
 
 1. Evidence as to insanity, and presumptions as to sanity, onus pro- 
 
 landi, 135. 
 
 2. Lucid intervals, contracts, etc., 135, 136. 
 
 3. Questions relative to sanity and insanity, proper issues for a jury, 136. 
 
 4. Facts indicating a disposing mind and eo converso, 136. 
 
 5. Mere mental weakness insufficient to authorize equity to interfere in 
 
 matters of contract, 136. 
 
 6. Drunkenness producing inability or insanity, however, is sufficient, 
 
 136. 
 
 7. Idiots and lunatics ; conservators ; their appointment and discharge 
 
 137. 
 
 8. Insanity as a defense against a criminal charge, 137, 138. 
 See Conservators ; Lunatics. 
 
 INSOLVENT ESTATES, 275. 
 
 INSTRUCTIONS, 
 
 to accompany the dedimus, 34, 37. 
 
 to administrators, 76, 77, 238. 
 INSURANCE POLICY, 166. 
 INTEREST, 
 
 qualified, of the testator, 83. 
 
 when an administrator is liable to pay, 86. 
 
 when guardian must pay, 86. 
 
 INTENTION, 
 
 to revoke a will, how to be manifested, 13. 
 INTERMENT AND RE-INTERMENT, 190. 
 
 INTERPRETER'S OATH, 291. 
 
 INTESTACY, 
 
 proof of death to be made prior to grant of administration, 67. 
 
 INTESTATE ESTATES, 61-102. 
 I. Introduction, 61-64. 
 II. Appointment of administrators, 64-82.
 
 380 INDEX. 
 
 INTESTATE ESTATES Continued. 
 
 III. Their powers and duties generally, 82-96. 
 
 IV. Resignation and removal, 96-102. 
 introduction, 61-64. 
 
 1. Estates generally, 61. 
 
 2. Priority of the rights of creditors, 61. 
 
 3. Testate estates and intestate estates distinguished, 61, 62. 
 
 4. Administration of estates, 62, 64. 
 
 See Administrators. 
 
 ISSUE, 
 
 of a void marriage, have no right to administer, when, 76. 
 
 ISSUE IN CHANCERY, 
 
 relative to wills, 43, 44, 47. 
 
 question for the jury, new and original, 43. 
 
 J. 
 
 JUDGE, 
 
 county, when the, is a witness, procedure to be in the circuit court, 45. 
 
 JUDGMENT, 
 
 against the administrator, form and effect of, 91. 92. 
 against the executor or administrator, to be against the goods and 
 chattels in due course of administration, 85, 86. 
 
 JURISDICTION, 
 
 in one country, not extended to estate in another country, 76. 
 
 the proper county, 76. 
 
 as between the counties, 76. 
 
 and practice, the importance of a well-settled, in probate, 39, 40. 
 
 should appear in the petition, 16. 
 
 the court must have, points essential to, 39. 
 
 the chancery, specific performance, etc., 94, 95. 
 
 of probate, pertains to the estates of decedents, 1. 
 
 JURISDICTION AND PRACTICE IN PROBATE GENERALLY, 1-9. 
 
 I. Introduction, 1-3. 
 II. County courts in probate, 3-9. 
 
 I. INTRODUCTION, 1-3. 
 
 1. Testate and intestate estates, 1. 
 
 2. The probate of wills and execution of trusts thereby created, admin- 
 
 istration of intestate estates, guardians, conservators, etc., 1. 
 
 3. Subdivision and scope of the subject, 1. 
 
 4. The high character of the trusts involved, 2. 
 
 5. Care requisite in the development of the subject, 3.
 
 INDEX. 381 
 
 JURISDICTION AND PRACTICE IN PROBATE, ETC. Continued. 
 II. COUNTY COURTS IN PROBATE, 3-9. 
 
 1. They are courts of record, 4. 
 
 2. They have general jurisdiction in probate, 4. 
 
 3. Their judgments, final and conclusive, unless reversed, 4. 
 
 4. Constitutional and statutory provisions, 4. 
 
 5. Constitution of 1818, 4. 
 
 1. Courts of probate .created in 1821, 4. 
 
 2. Probate court in 1845, 4. 
 
 6. Constitution of 1848; county courts from 1849, 4, 5. 
 
 7. Constitution of 1870 ; original jurisdiction given to the county courts, 
 
 in probate, 5. 
 
 8. This jurisdiction involves sacred trusts, 5. 
 
 9. Chapter 85. R. S. 1845, and amendments, 5 . 
 
 10. Terms for probate business on the third Monday of every month, 5. 
 See Act 1873, Laws 1873, p. 87. 
 
 11. County clerk, 5. 
 
 12. The judgments, orders and decrees in probate, not to be collaterally 
 
 attacked ; the rule in the United States supreme court, 6. 
 
 13. Decisions in Illinois, 6-9. 
 
 1. Incidental powers ; no discretion in prescribed cases ; exclusive 
 jurisdiction over personalty; none over realty; but, see Act 
 of February 12, 1849, 13, 6, 7. 
 2. Rules of practice, 7. 
 
 14. Equitable jurisdiction over claims against intestate estate, 7. 
 
 15. Statutory provisions, 7. 
 
 16. Scope of the subject, 8. 
 
 17. Deceased persons, either testates or intestates ; testate estates ; in- 
 
 testate estates, 8. 
 
 18. Incapacitated persons infants and other persons not sui juris, 
 
 etc., 8. 
 
 19. Executors, administrators, guardians, conservators, all officers of the 
 
 court, 8. 
 
 20. The law of descent, 9 (see chap. X), 252. 
 
 21. Appeals, 9. 
 
 22. Method characteristic of the subject, 9. 
 
 JURORS' OATHS, 284. 
 
 JURY, 
 
 trial by, the question of the sanity of a testator may be submitted to, 
 43-47. 
 
 JUS REPRESENTA TWNIS, THE, 69. 
 waiver of, 31.
 
 382 INDEX. 
 
 K. 
 
 KINDS, 
 
 of administrators, specified, 66. 
 KIN, NEXT OF, 
 who are, 75. 
 
 personal property of a minor vests immediately in, 75. 
 See Appendix. 
 
 L. 
 
 LACHES, 
 
 not attributable to minors, 103-107. 
 
 of a creditor, 90, 91. 
 
 the lapse of seven years usually a bar to the grant of administration, 76. 
 
 LAW, CIVIL. 
 
 degrees of consanguinity according to the, 268. 
 LAWFUL AGE, 
 
 males at 21, females at 18 years, are of, 102. 
 See Jus Disponendi. 
 
 LEASEHOLD INTERESTS, 
 
 pass to the personal representative, 191. 
 
 LEGACIES, 233-237. 
 
 1. Refunding bond to be given, 233. 
 
 2. Duty of legatee to refund ; refusal on citation and demand, deemed a 
 
 breach of the bond, 233. 
 
 3. Payment of legacies, 233, 234. 
 
 4. The bond, 234, 235. 
 
 5. Decisions, 235, 237. 
 
 LEGAL REPRESENTATIVES, 
 who are, 83. 
 
 See Appendix. 
 
 LETTERS TESTAMENTARY, 49, 50. 
 petition for, 29. 
 revocation of, 279, 280. 
 See Forms. 
 
 LIABILITY, 
 
 of heirs to ancestor's debts, stated, 163. 
 LICENSE, 
 
 to sell real estate must be obtained on notice, 187. 
 LIEN, 163. 
 
 of creditors, paramount to the rights of heirs, legatees and devisees, 64. 
 
 of bailees, 163. 
 LIMITATION, 
 
 lapse of seven years usually a bar to the grant of administration, 76.
 
 IXDEX. 383 
 
 LIMITATIONS, 
 
 the statute of, applicable to minors and their acts, 103. 
 the statute of, against claims, 90. 
 
 LOSS OF A PAPER, 
 oath of, 293. 
 
 LOST WILL, 
 
 how and where proved, 53. 
 
 LUNATICS, COMMITMENT AND DETENTION OF, 147-156. 
 
 1. Jurisdiction of the county court may be invoked by petition, 148. 
 
 2. Petition to be filed, process to issue, and be served and returned, 148. 
 
 3. Subpoenas may issue, 148. 
 
 4. Jury trial, continuance, 148, 149. 
 
 5. Verdict, its form, 149. 
 
 6. Verdict to be recorded, order of commitment entered, and application 
 for admission of respondent to superintendent of a state hospital for 
 the insane to be made by the clerk, 149. 
 
 7. When commitment may be had, 149. 
 
 8. Communication to be had between the clerk and superintendent 
 relative to the reception of the respondent, 150. 
 
 9. Mittimus may, if necessary, be issued by the clerk; its form, 150. 
 
 10. Receipt to be given by the superintendent; its form, 150. 
 
 11. Diseased persons and idiots not to be received, 150. 
 
 12. Respondent may by order of court, pending proceedings, be restrained 
 
 of his liberty, 150. 
 
 13. Costs of the proceedings where respondent is not a pauper, 151. 
 
 14. Costs where he is a pauper, 151. 
 
 15. Bond to be given where he is not a pauper, 151. 
 
 16. Clothing to be furnished each patient, 152. 
 
 17. Clothing to be furnished where patient is a pauper by the county, 
 
 152. 
 
 18. Patient to be removed when ordered to be discharged by the trus- 
 tees, 152. 
 
 19. Non-resident patient may be received, 152. 
 
 20. Whenever reason is restored the patient may leave, 153. 
 
 21. Insane pauper may be committed to a county hospital, 153. 
 
 22. No one to be committed without a trial by jury, 153. 
 
 23. Penalty for receiving or detaining any person not duly com 
 
 mitted, 153. 
 
 24. Forms, 154-156. 
 
 M. 
 
 MANURE, 
 
 sometimes realty, sometimes personalty. 190.
 
 384 INDEX. 
 
 MARRIAG-E, 
 
 issue of a void, have no right to administer on the estate of a deceased 
 father, 76. 
 
 formerly worked a revocation of a prior will in certain cases, 42. 
 MARRIED WOMEN, 
 
 may make wills, 14. 
 
 husband may administer on his wife's estate, 75. 
 
 can a wife administer without her husband's consent ? 75. 
 MEMORY, 
 
 disposing mind and, 40, 41-47. 
 MERCANTILE TRANSACTIONS, 158. 
 MISCELLANEOUS MATTERS, 275-293. 
 
 1. The executor or administrator, or his security, not chargeable beyond 
 
 the assets of the testator or intestate, 275. 
 
 2. Specific performance of the contracts made by decedent may be 
 
 ordered, 275. 
 
 3. The books of account of the decedent to be subject to the inspection 
 
 of all concerned, 275. 
 
 4. Estate, if found insolvent after two years from the grant of adminis- 
 
 tration, to be so entered, 275. 
 
 5. The executor or administrator may be coerced to apply for an order 
 
 to sell real estate, 275, 276. 
 
 6. County courts to have power to enforce due observance of its process. 
 
 judgment, orders and decrees, the same as the circuit courts, 276. 
 
 7. The sheriff to serve and execute all process papers, 276. 
 
 8. Executors and administrators to receive compensation not to exceed 
 
 six per centum on amount of personal estate, nor more than three 
 per centum on amount of proceeds of the real estate sold, with 
 allowances for costs and charges in collecting the estate and defend- 
 ing claims, 276. 
 
 9. Construction of the act relating to administration to be liberal, and 
 
 to apply equally to executors and administrators, etc., 276. 
 10. Repeal of former laws with saving clause, 276, 277. 
 MISCELLANEOUS PROVISIONS OF THE ACT OF APRIL 1, 1872. 
 
 1 . Power of administrator to collect, 278. 
 
 2. When his appointment shall cease. 
 
 3. General provisions as to bonds of executors and administrators, 279. 
 
 4. Causes for revocation of letters testamentary and of administration, 
 
 279, 280. 
 
 5. Causes for removal, 280, 281. 
 
 6. Surety on bond may apply to be released, 281, 282. 
 
 7. New appointment to be made if executor or administrator fail to 
 
 give new bond, 282. 
 
 8. Letters cum testamento annexo, 282.
 
 INDEX. 385 
 
 MISCELLANEOUS PROVISIONS OF THE ACT, ETC. Continued. 
 9. Co-executor or co-administrator may be appointed, 282. 
 10. Liability of administrator, who has been discharged, to his successor 
 in trust, 282, 283. 
 
 MISCELLANEOUS STATUTES AND DECISIONS, 283,293. 
 
 1. Specific performance of contract in case of vendor's death, how 
 
 enforced, 283-285. 
 
 2. Executor or administrator may of record discharge a mortgage or 
 
 trust deed, 285. 
 
 3. Deposit of funds on final settlement belonging to unknown heirs or 
 
 claimants and non-residents, 285, 286. 
 
 4. Foreclosure or sci. fa. necessary in case of death of mortgagee or 
 
 debtor requisite, 286. 
 
 5. When surety is released in case of death of the maker of a joint 
 
 note, 286. 
 
 6. Foreign guardian may receive the estate of his ward; procedure 
 
 prescribed, 286, 287. 
 
 7. Competency of parties as witnesses, 287, 288. 
 
 8. Repealing clause of act of April 10, 1872 (guardian and ward), 
 
 288, 289. 
 
 9. Miscellaneous decisions, 290, 291. 
 
 10. Proclamations by the sheriff in opening and closing court, and at 
 
 adjournment, 291. 
 
 11. Oaths, witnesses, jurors, etc., 291-293. 
 MIND, 
 
 disposing, and memory, 40, 41-47. 
 MINISTERIAL, 
 
 act of taking proof of a will, quaere, 42, 47. 
 
 MINOR, 
 
 personal property of, vests immediately in the next of kin, 75. 
 
 MISTAKE, 
 
 the administrator has no authority to apply for the correctio: of, in a 
 
 deed to his intestate, 94, 95. 
 MONEY, 
 
 may indeed partake of the character of realty, 191. 
 
 N. 
 
 NECESSITY OF ADMINISTRATION, 
 there is not always, 75, 76. 
 
 NEGLIGENCE, 
 
 of another causing death, action 344. 
 
 See Appendix. 
 NEGOTIABLE PAPER, 
 
 power of executors and administrators over, 85. 
 49
 
 386 INDEX. 
 
 NEW PEOMISE, 
 
 by infant, action should be upon, 102. 
 
 NEXT OF KIN, 
 who are, 75. 
 are they included in the term Personal Representative? 344. 
 
 See Appendix. 
 action on behalf of, in name of personal representative, for negligence 
 
 causing death, 344. 
 See Appendix. 
 
 their rights as to corpses and sepulture, 190. 
 to have indemnity in case of disturbance, 190. 
 
 NEWSPAPERS, 
 
 dates of first and last publication to be given, 51. 
 
 NON-RESIDENT EXECUTORS, ADMINISTRATORS AND GUARD- 
 
 IANS, 
 to give security for costs, 273. 
 
 NON-RESIDENT GUARDIANS, 328, 329. 
 
 NON-RESIDENTS, 
 
 cannot legally be appointed administrators, 100, 101. 
 NOTE, 
 
 the promissory, 166. 
 
 of hand, 16(3. 
 
 assignment of a, by executors, etc., 85. 
 
 NOTICE, 
 
 the propriety of, of the hearing before probating a will, 31. 
 and citation to heirs and legal representatives, 51. 
 proof of, by publication, 51. 
 claim to be presented on notice, 87. 
 
 to the heirs, of application to sell real estate, essential to jurisdiction, 18" 
 See Service. 
 
 NUNCUPATIVE WILL, 50-53. 
 form of, 13. 
 See Forms. 
 
 NUDUM PACTUM, 160. 
 
 o. 
 
 OATH, 
 
 the solemnity of an, 305. 
 to executor, 29. 
 See Forms. 
 
 OATHS, 
 
 of witnesses, jurors, etc.,- 291. 
 See Forms.
 
 LN'DEX. 387 
 
 ONUS PROBANDI, 
 
 on a trial in chancery relative to a will, 43. 
 OEDER, 
 
 on presentation of a petition for process to compel the production of a 
 
 will, 15, 16. 
 
 admitting will to probate, 48. 
 approving bond of executor, 49. 
 for letters testamentary to issue, 49. 
 appointing appraisers, 49. 
 
 See Forms. 
 
 ORDERS, 
 
 the usual entries of, in probate of will, 48, 49. 
 See Forms; Probate Record. 
 
 PAPER, NEGOTIABLE, 
 
 power of personal representatives over, 85. 
 
 PAPERS, NEWS, 
 
 date of first and last, m wmcn a notice has been published must appear, 
 51. 
 
 PAROL CONTRACT, 
 
 with the intestate, how enforced, 89. 
 
 PARTIES, 
 
 one of two administrators loaning money of the estate has the right of 
 
 action to recover it, 87. 
 heir a necessary party, in Illinois, to the disposition of real property, 
 
 6, 187. 
 as witnesses, 287, 288. 
 
 See Notice. 
 
 PARTNER, 
 
 surviving not entitled to administer, 76. 
 
 PARTNERSHIP, 93. 
 
 PARTNERSHIP ESTATE, 166, 178. 
 
 duty of surviving partner, 166. 
 PERJURY, - 
 
 the crime of, 306. 
 
 PERSONAL ESTATE IN ADMINISTRATION, 157-185. 
 
 I. Collection and disposition of by the executor or administrator, 
 157-183. 
 
 II. In the hands of guardians or conservators, 183-185.
 
 388 IXDEX. 
 
 PERSONAL ESTATE IN ADMINISTRATION Continued. 
 
 I. COLLECTION AND DISPOSITION OF, BY THE EXECUTOR OR ADMINISTRATOR, 
 
 157-183. 
 
 1. The retrospect, 159, 160. 
 
 2. Personal property in due course of administration, governed by the 
 lex domicilis, 160, 161. 
 
 3. The title of the personal representative of a decedent to the personal 
 estate, 161. 
 
 4. His trust, 162. 
 
 5. The cestuis que trust, the widow, the children, the creditors, legatees, 
 devisees and distributees, of heirs, their relation to the proceedings 
 in administration, 163, 164. 
 
 6. Special proceedings requisite to divest the title of the devisees or 
 heirs to the real property, 165. 
 
 7. Scope of this chapter, 165, 166. 
 
 8. The inventory to be made and returned within three months from 
 the date of letters testamentary or of administration ; how made ; 
 failure to make, subjects the delinquent to citation to make inventory 
 and account, 167-169. 
 
 9. Citation to exhibit inventory and account, 169, 170. 
 
 10. Form of inventory, 170, 171. 
 
 11. The appraisement, the warrant, the oath, 171, 172. 
 
 12. The bill of appraisement, 173. 
 
 13. Inventories and exemplifications thereof to be prima facie evidence, 
 
 173. 
 
 14. Additional appraisement, 173, 174. 
 
 15. Care and diligence required of executors and administrators in get- 
 ting in the estates of their testates and intestates, 174. 
 
 16. Appraisers' fees two dollars per day each, 174. 
 
 17. Proceedings in case the assets do not exceed the amount of the 
 widow's allowance, 174. 
 
 18. Collection and disposition of assets, 174-180. 
 
 19. Sale of personal property, 180-183. 
 
 II. IN THE HANDS OF GUARDIANS OR CONSERVATORS, 184, 185. 
 1 The guardian to return an inventory within sixty days after his ap- 
 pointment, and additional inventory, 184. 
 
 2. Contents of inventory, 184. 
 
 3. Form of inventory, 185. 
 
 4. Conservators are required to do the like, 185. 
 PERSONAL PROPERTY, 
 
 of a minor vests immediately in the next of kin, 75. 
 PERSONAL REPRESENTATIVES, 
 who are, 83. 
 See Appendix.
 
 INDEX. 389 
 
 PERSONAM, IN, 
 
 sale of real estate partly, and partly in r&m, 62. 
 PETITION, 
 
 the usual form of application or representation to the court, 15. 
 
 should show jurisdiction, 16. 
 
 requisites of, 286, 287. 
 
 for process to compel the production of a will, 15. 
 
 for letters testamentary, 29. 
 
 surety may file, to be released, 281. 
 See Forms. 
 
 PEWS, 
 
 in churches, sometimes real estate, and sometimes personal estate, 190. 
 PLEADING, 287. 
 
 POINTS, 
 
 to be proved to probate a will, 39. 
 POLICIES OF INSURANCE, 166. 
 
 POWER, 
 
 of executor before probate, 56. 
 
 over realty, may be given by a will, it is not conferred by appointment 
 or as administrator, etc., 186, 187. 
 
 administrator takes only a power over real estate, 92. 
 
 of administrator over the real estate, discussed, 94. 
 PRACTICE, 
 
 for the executor on death of the testator, 28, 48. 
 
 for the court in probating a will, 39, 48. 
 
 how to be appointed administrator, 76, 77. 
 
 the petition, 77. 
 
 how to be appointed guardian, 111. 
 
 to obtain a dedimus, 37. 
 
 See Jurisdiction; Jurisdiction and Practice generally ; Wills; Executors; 
 Wills ; Testate Estates ; A dministrators ; Intestate Estates ; Estates of 
 Infants or Minors ; Guardians ; Infants ; Insane ; Conservators ; 
 Estates of the Incapacitated; Drunkard; Probate of Wills ; Personal 
 Estate ; Real Estate, etc. 
 
 PRECEDENTS, FORMS OR, 
 
 See Forms; Probate Record ; Wills. ' 
 
 PREFRENCE, 
 
 v/here an unauthorized is given by an administrator, it is ground for his 
 
 removal, 100. 
 PRESENCE, 
 
 of the witnesses at the time of the signature not essential, if the testator 
 acknowledges the will, etc., 41.
 
 390 INDEX. 
 
 PRINTER'S 
 
 certificate, its office as evidence of notice, 51 . 
 
 PRIORITY 
 
 of judgments over claims of distributees, 88. 
 
 PRIVITY, 
 
 there is none between the administrator and the heir, when, 193. 
 
 PROBATE, 
 
 jurisdiction defined, 1-3. 
 of wills, 27-53. 
 
 1. Definition, 27. 
 
 2. The probate record, 27. 
 
 3. Preliminary duties of the executor, 28. 
 
 1. Before probate, 28. 
 
 2. Before entering upon his duties, 28. 
 
 4. Practice, 28. 
 
 5.' Petition for letters testamentary, 29. 
 
 6. Oath of executor, 29. 
 
 7. His bond, 30. 
 
 8. The hearing or examination, 30-39. 
 
 1. Subprena ad testificandum to subscribing witnesses, 31, 32. 
 
 2. Capias or attachment to compel attendance, 32, 33. 
 
 3. Dedimus potestatum, 33, 34. 
 
 4. Instructions as to its execution and return, 34-39. 
 
 5. Proof of wills, 39-48. 
 
 1. The decisions, 39-44. 
 
 2. The statute of 1872 (act March 20), 44-48. 
 
 9 . Clerk's entries and forms of certificate of proof, 48, 49. 
 
 10. The letters testamentary, 49, 50. 
 
 11. Noncupative will, 50, 52. 
 
 1. Citation to persons interested, 51. 
 
 2. Notice by advertisement to residents of other counties, 51, 
 
 12. Foreign will, 52. 
 
 13. Lost will, 33. 
 record, 27, 301-337. 
 record of a will, 48. 
 
 PRODUCTION OF THE WILL, 14-17. 
 PROMISSORY NOTE, 166. 
 
 PROOF, 
 
 certificate of, of a will, 46. 
 of wills, evidence, the law of relating to, 40-47. 
 
 of death and intestacy to be made prior to grant of administration, 67. 
 See Evidence; Witnesses.
 
 INDEX. 39 J 
 
 PROFITS, 
 
 when an administrator is to account for, if made by the use of the trust 
 fund, 86, 87. 
 See Fraud. 
 
 PROPERTY, 
 
 of infants ; sale of their realty, etc., 103, 104. 
 personal, defined, 158. 
 See Assets; Real Estate. 
 
 PUBLIC, 
 
 sale of personal estate to be, 86. 
 public administrator, 70-72. 
 
 PUBLICATION, 51. 
 
 See Constructive Service; Advertisement. 
 
 Q. 
 
 QUALIFICATIONS, 
 
 requisite for an administrator, 73, 74. 
 
 QUALIFIED INTEREST, 
 
 of the administrator and absolute title to the personal estate, 83. 
 See Personal Estate. 
 
 R. 
 
 RATIFICATION, 
 
 of contracts, what essential to, by infants, 103. 
 See Infants or Minors. 
 
 REAL CHATTELS, 
 
 as hereditaments go to the personal representatives, 191. 
 REAL ESTATE, 
 defined, 187. 
 REAL ESTATE IN ADMINISTRATION, 186. 
 
 I. Through the executor, 186-192. 
 II. Through the administrator, 192-207. 
 III. Through the guardian, 207-213. 
 IY. Through the conservator, 142, 146. 
 
 I. ADMINISTRATION OVER REAL ESTATE THROUGH THE EXECUTOR, 186-192. 
 
 1. Power of executor to sell land valid, if given in the will, 186, 187. 
 
 2. Implied power of sale, 187, 188. 
 
 3. Power vests in those who qualify, where several are appointed and 
 
 part refuse, 189. 
 
 4. Conveyance to a person as executor, his heirs, ,etc., conveys a 
 
 fee, 189. 
 
 5. Co-executor may call a co-executor to account in chancery, 190.
 
 392 INDEX. 
 
 REAL ESTATE IN ADMINISTRATION Continued. 
 
 6. Mortgages and leases by executors, on petition to the county court, 
 
 191, 192. 
 
 7. Foreclosure of such mortgages confined to the county court having 
 
 jurisdiction over the property, i. e., in the county where it, or 
 a greater part of it, is situated, 192. 
 
 8. Decree of strict foreclosure in such case prohibited, and redemption 
 
 as upon judgments at law prescribed, 192. 
 
 9. Actions which survive, specified, 192. 
 
 10. General directions ; practice indicated ; suggestions, 192. 
 
 IL ADMINISTRATION OVER REAL ESTATE THROUGH THE ADMINISTRATOR, 192. 
 
 1. After making a just and true account of the personal estate and the 
 
 debts to the court, and it is ascertained that the personal estate of 
 the decedent is insufficient to pay the just claims against his estate. 
 enough of the real estate, if there be any held either by legal or 
 equitable title, to pay the debts and expenses of administration, 
 may be sold, 193. 
 
 2. Proceedings to be commenced by petition ; parties, 194. 
 
 3. Requisites of the petition, 194. 
 
 4. Cause to be docketed and prosecuted according to the practice in 
 
 cases in chancery, 195. 
 See HiWs Chan. Pr. 
 
 5. Summons to issue, requisites of, 195. 
 
 6. Service of summons, 196. 
 
 7. Cases for constructive service ; affidavit of non-residence, etc., 
 
 196, 197. 
 
 8. Publication notice, 197. 
 
 9. Guardian ad litem, 197, 198. 
 
 10. The hearing, order and decree of sale, 198. 
 
 11. The sale to divest title of defendants, 199. 
 
 12. Preliminaries and regulations for making sale, the notice, penalties, 
 
 etc., 200. 
 
 13. Proceeds of sale to become assets in the hands of the administrator, 
 
 for payment of debts, 201. 
 
 14. Equitable estates ; how sold or made legal estates and sold, 201. 
 
 15. The practice indicated, 201, 202. 
 
 16. Forms for pleadings, affidavits, process, orders, decrees, etc., etc , 
 
 202-207. 
 See Appendix; Forms. 
 
 III. ADMINISTRATION OVER REAL ESTATE THROUGH THE GUARDIAN, 207-213. 
 1. The guardian may lease the ward's real estate with the approval of 
 the court, 208.
 
 INDEX. 393 
 
 REAL ESTATE IN ADMINISTRATION Continued. 
 
 2. He may by leave of court mortgage the same, 208. 
 
 3. Petition for order must be filed, however, 208. 
 
 4. Foreclosure of such mortgages only to be made by petition to the 
 court in which letters of guardianship were granted, 208. 
 
 5. Decree of strict foreclosure not to be entered, and redemption as in 
 case of judgments prescribed, 208. 
 
 6. Proceedings prescribed for the sale of the ward's real estate ; 
 petition, etc., etc., 208. 
 
 7. The petition; its requisites to be verified and filed, 209. 
 
 8. Notice to be published and served, 209. 
 
 9. Cause to be docketed, and proceed as if a case in chancery, 209. 
 
 See Hill's Chan. Pr. 
 
 10. The sale, notice of the time and place to be given ; sale may be on 
 credit; credit, how given, securities required, 209. 
 
 11. Eeport of sale to be forthwith made and approved and recorded, and 
 
 to vest in the purchasers the title of the property, 209. 
 
 12. Guardian to account for proceeds of sales of real estate on oath, 209. 
 
 13. Duty of court to keep the securities of the guardian good, 209, 210. 
 
 14. Guardian, if insolvent or in doubtful circumstances, may be required 
 
 to give to his securities counter-securities, 210. 
 
 15. The practice indicated, 210. 
 
 16. Forms for pleadings, affidavits, process, orders, decrees, etc., etc., 210. 
 
 17. Foreign guardians may sell when, 210. 
 
 18. And under like process and procedure, 210, 211. 
 
 19. Sales to invest purchasers with the title, 211. 
 
 20. Foreign guardians must give security for costs before commencing 
 any proceeding, 211. 
 
 IV. ADMINISTRATION OVER REAL ESTATE THROUGH THE CONSERVATOR. 142, 146. 
 
 Cases where an application will lie to sell the real estate of an 
 idiot, lunatic or distracted person, specified, 143, 146. 
 
 The petition, its requisities; parties, 143. 
 
 Notice to be issued and served, as in cases in chancery, 143. 
 
 Guardian ad litem, 143. 
 
 The hearing and the decree or order of sale, 143. 
 
 Orders of sale, requisites of, 143. 
 
 Foreign conservator may apply, 146. 
 
 Proceedings in case of, 146. 
 
 Practice indicated, 146. 
 
 Forms for petition, affidavits, process, etc., etc., 146, 147. 
 sale of, in administration, a proceeding partly in rem and partly inper- 
 
 sonam, 62. 
 
 only reached by a special proceeding partly in rem and partly in per- 
 sonam, 186, 187. 
 
 50
 
 394 IXDEX. 
 
 RECEIPT, 
 
 for rents by minor, not a ratification, 102. 
 RECORD, 
 
 the probate, 27, 293-329. 
 
 form of record of the proof of a will, 48, 49. 
 
 See Forms. 
 REJECTED, 
 
 case where a will was, 47. 
 RELATION, 
 
 . of the administrator's title back to the death of the intestate, 162. 
 
 of the appointment of administrator back to the death of the intestate, 83 
 
 REM, IN, 
 
 a sale of real estate in administration, a proceeding partly, and partly in 
 
 personam, 62. 
 REMOVAL, 
 
 of public administrator, 71. 
 
 See Executors ; Administrators ; Guardians ; Conservators ; Resigna- 
 tion ; Renunciation. 
 
 RENUNCIATION, 
 
 by an executor ; he is not to intermeddle before, with the goods, 16. 
 form of, 16, 17. 
 RENT, 
 
 accruing, a hereditament, 92, 93. 
 See Chattels, Real ; Real Estate. 
 REPRESENTATION, 
 
 of facts usually made by petition, 15, 16, 301. 
 
 See Petition ; Forms ; Practice; Jurisdiction, etc. 
 REPRESENTATIVE, 
 
 administrator the legal or personal of the intestate, 84. 
 
 See Appendix, 344, 345. 
 REPUBLICATION, 344, 345. 
 
 not necessary to involve subsequently acquired lands, 42. 
 
 REQUEST, 
 
 and waiver of the jus representationis i 31 
 See denunciation. 
 
 RETURN, 
 
 on a writ of attachment for a delinquent witness, 32. 
 
 RESIGNATION, 
 
 and removal of executors and administrators. 96-102. 
 
 1. The statute of 1872, 96. 
 
 2. Petition, 96, 97. 
 
 3. Order, 97. 
 
 4. Notice. 97.
 
 INDEX. 395 
 
 RESIGNATION Continued. 
 
 5. Resignation, 98. 
 
 6. Record, 98. 
 
 7. Notice to security, 98. 
 
 8. Assent, 99. 
 
 9. Removal and revocation, grounds of, 99. 
 10. Petition. 90, 100-102. 
 
 See Guardians ; Conservators; Practice, etc. 
 REVIVAL, ABATEMENT AND. 87. 
 
 administrator of a deceased party, now brought in, 87. 
 See Abatement; also 2 Hill's 0. L. 209. 
 
 REVOCATION, 
 of a will, 13. 
 
 REVOCATION OP A WILL, 
 
 by a subsequent marriage, 41, 42. 
 See Resignation; Renunciation. 
 RIGHT, THE, 
 
 of the administrator over the personal estate, 86. 
 RIGHTS AND CREDITS, 83. 
 See Personal Estate. 
 
 s. 
 
 SALE OR EXCHANGE, 151. 
 
 SALE OP PERSONAL PROPERTY, 180-183. 
 
 SALE, 
 
 bill of, 183. 
 
 to be public, 86. 
 SALE OF REAL ESTATE, 
 
 in administration, a proceeding partly in rem and partly in personam, 62. 
 SALES, 
 
 of personal property by executor, administrator of guardian, if bonafide 
 
 to be upheld, 84. 
 SAMPLE, 
 
 buying and selling by, 162. 
 
 SCIRE FACIAS, 
 
 will not lie against the heir upon a judgment against an administrator, 92. 
 
 SEPULTURE, 
 
 the right of, the property of the next of kin, 190. 
 SERVICE, 
 
 of a subpoena, proof of, 32. 
 
 constructive, 126-132. 
 See Sheriff; Process. 
 
 SEVEN YEARS, 
 
 the lapse of, usually a bar to the grant of administration, 76.
 
 396 INDEX. 
 
 SHARES, 
 
 incorporations, 190. 
 
 SHELLEY'S CASE, 
 
 the rule in. 261-263. 
 SHERIFF, 
 
 See Process; Statutes, 132, 178. 
 SPECIAL PROCEEDING, 
 
 necessary to divest the title of realty, which descends, 187 
 STATUTE OF LIMITATIONS, 70. 
 
 See Laches. 
 STATUTE OF FRAUDS, THE, 163. 
 
 STATUTES, 
 
 the English (1 Joe. II, ch. 17, 22, 23; Car. II, oh. 10), 68. 
 
 the statute of wills, etc., 7. 
 
 an act to provide for the appointment of guardians of habitual drunkards, 
 
 and prescribing the duties of such guardians, February 10, 1872. 
 Summary of act of March 20, 1872 (R. S. 1874, pp. 1101-1105). 
 absence of a witness by death or removal, 30, 39. 
 appeals, 274. 
 
 attesting creditor competent, 46. 
 circuit court, if the county judge be disqualified, procedure to be in 
 
 the, 45, 46. 
 
 custodian, to produce the will, 14, 16. 
 
 county judge, if a witness, procedure to be had in the circuit court, 
 . 45, 46. 
 
 death, or a removal of a witness, 30, 39. 
 debtor as executor, 54. 
 execution of wills out of the State, 52. 
 
 See Requisites of a Will, 11, 44, 46, 47. 
 interested witnesses excluded, 38, 42. 
 
 See Evidence. 
 
 judge, county, if a witness, 45, 46. 
 nuncupative wills, 15, 16. 
 
 probate of, 50, 51. 
 
 persons competent to dispose of property by will enumerated, 11, 44. 
 probate of wills, 16, 43, 50. 
 
 See Probate. 
 
 record and preservation of wills, 17. 
 repeal of former laws, 7, 336. 
 
 See Statutes. 
 
 requisites of a will, 11, 44, 46, 47. 
 revocation of wills, 11. 
 subscribing witnesses, their duty to appear and testify, 38, 39.
 
 INDEX. 397 
 
 STATUTES Continued. 
 
 testimony of subscribing witnesses, 38, 39. 
 
 if they be non-residents, 36, 37. 
 
 See Dedimus. 
 
 venue or proper county in which to prove the will, 14. 
 witnesses, the subscribing, 30, 36, 37, 38, 39, 42. 
 
 See Dedimus; Evidence; Certificate; Record; Appendias. 
 
 AOT APRIL 1, 1872 (ADMINISTRATION), CHAP. 3, R. S. 1874, pp. 103-127. 
 
 SUMMARY, ACT APRIL 1, 1872 (ADMINISTRATION) . 
 
 account, books of, 128; 274. 
 
 accounts, 112-115; 239, 240. 
 
 actions which survive, 123 ; 83, 192. 
 See Claims. 
 
 additional appraisement to be made if other property be dis- 
 covered, and within three months after discovery, 57 ; 
 173, 174. 
 
 additional bonds, executors or administrators, etc., may be required 
 
 to give, 38 ; 282. 
 additional inventory is to be returned whenever any other real 
 
 or personal property becomes known to the administrator, 
 
 52; 171. 
 administrator, bond of, form, to be made applicable to all cases, 
 
 mutatis mutandis, 23 : 79, 80. 
 
 administrator de bonis non, may be appointed, 37 ; 282. 
 administrator's oath, form of, to be made and filed, 22 ; 79. 
 administrator, de bonis non, if no executor be named in the will, 
 
 if the executor named therein die, refuse to act or become in- 
 capacitated or disqualified, may be appointed as if for an intestate 
 , estate, 1; 49, 53, 54. 
 administrator to collect, 11 ; 67, 72. 
 
 letters to, 12 ; 72. 
 
 bond of, 13 ; 77. 
 
 oath of, 14; 73. 
 
 power of, 15, 16 ; 278. 
 
 revocation of, 17 ; 279. 
 affidavit of applicant for letters, must first be filed showing names 
 
 of heirs, and widow or widower, and probable amount of personal 
 
 estate, 20 ; 64, 75. 
 allowance to executors and administrators may be made for costs 
 
 and charges in collecting and enforcing claims, 133; 276. 
 allowance to widow, when assets do not exceed property to be trans- 
 ferred to her and administration closed, 59; 174. 
 
 appeal, 124, 125; 272.
 
 398 IXDEX. 
 
 STATUTES Continued. 
 
 SUMMARY, AOT APRIL 1, 1872 (ADMINISTRATION). 
 
 applicant for letters must file an affidavit, showing date of death and 
 probable amount of personal estate, and the names of heirs, and 
 widow or widower, if known, 20 ; 64, 75. 
 
 appraisers, to be three disinterested persons, their warrant to issue 
 with the letters, their powers and duties, form of warrant, vacancy 
 in number may be filled, 53 ; 172. 
 appraisers to take and subscribe an oath to be indorsed upon or 
 
 annexed to the warrant ; form of oath. 54 ; 172. 
 appraiser's fees, fixed at two dollars per day for necessary attend- 
 ance, to be allowed by the court, 59; 174. 
 assets, collection of, 81-96; 174-182. 
 See Personal Estate. 
 
 if, after appraisement, the assets do not exceed the widow's 
 allowance, the executor or administrator is to report, and the 
 court, if it find the facts true, is to order the same to be 
 transferred to her and close the administration, 59; 174. 
 neither executor, administrator nor security shall be chargeable 
 beyond the assets of the testate or intestate for omission, mis- 
 feasance, or malfeasance in pleading, 126 ; 275. 
 attachment, citation, and on failure of executor or administrator to 
 report deficiency of assets, etc., for widow's allowance, 59; 174. 
 attachment, summons, subpoenas, citations, notices and other pro- 
 cess to be served and returned by the sheriff or his deputies, 
 132; 276, 
 
 award, widows', 74-77; 217, 218. 
 
 bill of appraisement, to be certified by the appraisers under their 
 hands and seals to the executor or administrator, and by 
 him to be returned within three months after grant of letters, 
 55; 172. 
 bond of administrator, form of, 23 ; 79, 80. 
 
 to be changed and applied to all cases of administration mutatis 
 mutandis, 23 ; 79, 80. 
 
 bond in case of estate more than enough to pay debts, testator 
 may direct that no security be required, but the court may, in its 
 discretion, even then require security, 8; 56. 
 bond of executor, form of, must be filed and recorded. 6, 24; 28, 
 
 29, 80. 
 
 bond of public administrator to be required as in other cases, fail- 
 ure to give for sixty days, a vacatur of his office, and upon certifi- 
 cate of the fact from the county judge, the governor is to fill 
 the vacancy, 47 ; 71. 
 bond, suits on, may be instituted, and how, 25 ; 278.
 
 INDEX. 399 
 
 STATUTES Continued. 
 
 SUMMARY, ACT APRIL 1, 1872 (ADMINISTRATION). 
 
 books of account of decedent, 128; 274. 
 
 cancellation of a will in due course of law to revoke the letters 
 testamentary thereon, 29 ; 99, 280. 
 
 care, custody and management of the estate of intestates com- 
 mitted to the public administrator, 49; 71. 
 
 claims, 60-73, 215, 216, 222, 223, 224. 
 
 commission and expenses earned and incurred by a public admin- 
 istrator are not affected by a re-grant of administration to 
 those entitled, 47; 71. 
 
 construction of the statute, executor to mean administrator, and 
 administrator to mean executor, his to mean her, and one to 
 mean two or more, etc., whenever the sense requires it in apply- 
 ing the law, liberally construed, 134; 276. 
 
 contracts of decedent may be performed by the executor or 
 administrator, under the direction of the county court, 127 ; 
 275. 
 
 costs and charges in collecting and enforcing claims as may be 
 reasonable, may be allowed, 133 ; 276. 
 
 costs and fees, appraisers', $2 per diem, 59 ; 174. 
 
 costs to be paid by party obtaining letters fraudulently, and on their 
 revocation, 27 ; 280. 
 See Costs and fees. 
 
 death, proof of, must be made before administration can be 
 granted, 18, 20 ; 64, 67, 77. 
 
 decrees, orders, etc., may be enforced ; county courts shall have 
 power to enforce due observance of all orders, decisions, judg- 
 ments and decrees made by them in matters of administration 
 by process for contempt, and may fine and imprison offenders 
 as fully as the circuit court may do in similar cases, 131 ; 276. 
 
 diligence; executors and administrators chargeable with due and 
 proper diligence in getting in the estate, 58; 174. 
 
 discovery of new assets; in such cases administration may be 
 granted de novo, 59 ; 174. 
 
 division of a county, on, if letters have been granted to proceed, 
 notwithstanding, or on removal of executor or administrator tc 
 another county, 9; 339. 
 
 disqualification of county judge, as a material or necessary 
 witness, or a party interested, transfers the case to the circuit 
 court of the county, case to be certified ro circuit court, 69 ; 
 224, 225. 
 
 duty of public administrator to protect estates generally, until 
 administration, 50 ; 71.
 
 400 INDEX. 
 
 STATUTES Continued. 
 
 SUMMARY, ACT APRIL 1, 1872 (ADMINISTRATION). 
 
 executors and administrators chargeable for all estate which may 
 or might after due and proper diligence be received, 58, 174. 
 
 executor's bond, form of, 7 ; 28, 30. 
 must be filed and recorded, 7 ; 28, 30. 
 
 executor, if not named in the will, if he die, refuse to act or 
 is otherwise disqualified, administration cum testamento annexo, 
 to take place as if testate had died intestate, 1 ; 49, 53, 54. 
 
 expenses incurred and commissions earned by a public adminis- 
 trator not to be affected by the revocation of his letters, on re- 
 grant of same to those entitled, 47; 71. 
 
 fees of executors and administrators to be not exceeding six per 
 centum on proceeds of real estate, and three per centum on 
 proceeds of personal estate, with reasonable allowances for col- 
 lecting and enforcing claims, 133 ; 276. 
 
 fees of sheriff to be the same as for similar services in the circuit 
 court, 132; 276. 
 See Costs and Fees. 
 
 foreclosure, 120-122; 191, 192. 
 
 foreign administrator's or executor's suit to insure a benefit of 
 domestic executor or administrator, if one be appointed pendents 
 lite, 43; 82. 
 
 foreign executor or administrator may file duly authenticated 
 copy of his letters in court in the State, and enforce claims and 
 sell land to pay debts, 42 ; 82. 
 
 if there be no executor or administrator in this State, 43 ; 
 82. 
 
 former administrator shall be liable for devastuvit, etc., 39 ; 
 282, 283. 
 
 form of oath of executor or administrator cum testamento annexo, 
 6 ; 28, 29, 80. 
 
 oath to be attached to, and form a part of the record, 6 ; 28, 
 29, 80. 
 
 fraudulent pretenses in obtaining letters to work revocation at 
 the cost of the administrator, 27 ; 280. 
 
 insolvent estates, after the expiration of two years from grant of 
 administration, to be so reported and entered of record, persons 
 entitled to be paid pro rata, coste then to be paid by party suing, 
 129. 
 
 intestacy, proof of, must be made before granting administration, 
 18,20; 274. 
 
 intestates leaving no relatives or creditors, personal or real estate, 
 the same is to be, on the application of any person interested 
 therein, committed to the public administrator, 47 ; 71.
 
 INDEX. 401 
 
 STATUTES Continued. 
 
 SUMMARY, ACT APRIL 1, 1872 (ADMINISTRATION). 
 
 inventories and appraisement bills and authenticated copies 
 thereof, prt'ma fade evidence only of their several contents 
 respectively, 51, 56 ; 167, 173. 
 
 inventory to be returned within three months after letters are 
 granted containing, 1. Description of quantity, situation, and 
 title of the real estate. 2. Specifying the nature and amount 
 of all annuities, rents, goods, chattels, rights and credits, and 
 money on hand, and whether the credits are good, doubtful or 
 desperate, 51 ; 174. 
 legacies, 116-119 ; 190, 233. 
 
 letters of administration, to collect, 11, 12 ; 67, 72. 
 bond, under, 13 ; 77. 
 oath, under, 14; 73. 
 power, under, 15, 16 ; 278. 
 revocation, 17; 279. 
 letters of administration, form of, 21 ; 79. 
 
 to be changed and applied mutatis mutandis to all cases of 
 
 administration, 21 ; 79. 
 
 letters of administration to widow or widower, next of kin, or in 
 discretion ; widow or next of kin must apply within sixty 
 days after death of decedent ; creditors within the next fifteen 
 days, then the court may exercise its discretion, 18, 19, 20 ; 
 64, 67, 75, 77. 
 letters testamentary, form of, 10 ; 49. 
 
 may issue on probate of will, accepting the trust and giving 
 
 bonds, 1 ; 49, 53, 54. 
 method of making appraisement, 54; 172. 
 
 to set down each article with the value thereof in dollars 
 
 and cents in columns as prescribed, 54; 172. 
 mortgage and foreclosure, 120-122; 191, 192. 
 nonfeasance, misfeasance or malfeasance of executor or adminis- 
 trator not to create liability in certain cases, beyond assets of 
 testate or in testate, 126; 275. 
 oath of administrator, 22 ; 79. 
 form of, 22 ; 79. 
 to be made and filed, 22 ; 79. 
 oath of executor or administrator, cum testamenfo annexo, 6; 
 
 28, 39, 80. 
 order to sell real estate may be compelled, 130 ; 276. 
 
 form of, 314. 
 
 process, notices, etc., to be served and returned by the sheriff or 
 his deputy, 132 ; 276. 
 
 51
 
 402 INDEX. 
 
 STATUTES Continued. 
 
 SUMMARY, ACT APRIL 1, 1872 (ADMINISTRATION). 
 
 proofs of death and intestacy must be made to obtain administra- 
 tion, 18, 20; 64, 67, 75, 77. 
 
 public administrators are to be appointed by the governor, by and 
 with the consent of the senate, one for each county whenever 
 vacancy may occur, who must take the oath prescribed, 
 44; 71. 
 
 public administrator entitled, if the widow, next of kin and cred- 
 itors are all non-residents, 18 ; 64, 67, 77. 
 
 real estate, sale of, etc., 47; 111, 186, 201. 
 
 relinquishment ; administration not to be granted within seventy- 
 five days after death of decedent, unless relinquishment be 
 made by all those entitled; after seventy-five days court may 
 act at its discretion, 19 ; 64, 75. 
 
 removal of executor or administrator not to affect the jurisdiction 
 or power of the court first taking probate of the will, 9 ; 339. 
 generally, 31-36; 80, 81, 279, 281, 282. 
 
 repealed acts enumerated, 135 ; 7, 276, 277, 343. 
 
 resignation may be made by either executor or administrator in 
 the discretion of the court, in full settlement of accounts and 
 surrendering estate, 40, 41 ; 96. 
 
 revocation, discovery of will and probate thereof to work, 28 ; 
 280. 
 
 revocation of letters testamentary by cancellation of the will in 
 due course of law, 29; 99, 280. 
 
 revoking letters. If letters be obtained upon false or fraudulent 
 representations or pretense, the court must revoke them, 26 ; 
 179, 280. 
 
 saving clause of repealing act, suits pending and rights accrued, 
 not affected by the repeal, 135 ; 7, 276, 277, 343. 
 
 sheriff or deputies to enforce order, serve process and execute 
 writs, etc.; fees of, to be the same as in similar cases in circuit 
 court, 132 ; 276. 
 
 suits on bonds may be had in the name of The People of the 
 State of Elinois for the use and at the cost of whom it may 
 concern, 25; 279. 
 
 testamentary letters, form of, 10; 49. 
 
 two or more appointed executors, if one or more die, refuse tc 
 act or become disqualified, the survivor or survivors may take 
 the trust, 5; 28. 
 See Wills. 
 
 wills, 2, 3 ; 28, 53, 54. 
 
 widow, her award, 74-77 ; 217-219. 
 may renounce, 78-80; 219, 220.
 
 INDEX. 4U3 
 
 STATUTORY REQUIREMENTS, 
 
 to the validity of a will, recapitulated, 45. 
 SUBJECT-MATTER, 
 
 of probate jurisdiction and c f this treatise stated, 1. 
 
 See Preface; Estates. 
 SUBPCENA, 
 
 for the subscribing witnesses to a will, 31. 
 service of, 32. 
 
 See Sheriff ' ; Process. 
 
 SUBSCRIBING WITNESSES, 
 
 to a will to appear, subpoena for, etc., 31. 
 
 SUITS, 
 
 for negligence causing death, 86. 
 See Appendix. 
 
 SURETIES, 
 
 extent of liabilities of, 94. * 
 
 may petition to be relieved, 281. 
 
 SURVIVING- PARTNER, 
 
 of a deceased person not to be appointed to administer, 76. 
 
 T. 
 
 TESTATE ESTATES, 10-60. 
 I. Wills, 10-27. 
 II. Probate of wills, 27-53. 
 III. Executors, 53-60. 
 
 TESTATE AND INTESTATE ESTATES, 1. 
 See Estates; Jurisdiction; Descent. 
 
 TESTAMENTARY, 
 
 petition for letters, 29. 
 TESTAMENTARY CAPACITY, 
 
 must be shown, 40, 44, 45, 47. 
 TESTAMENTARY LETTERS, 49, 50. 
 
 See Practice ; Executors; Wills. 
 
 TESTATOR, 
 
 one who makes a will, 1. 
 
 must be of lawful age, of sound mind and memory, 40, 47. 
 
 TESTS, 
 
 of an instrument, as a will, 40-47. 
 
 TITLE, 
 
 of administrator to personal estate absolute ; interest, however, qualified. 
 
 83, 84. 
 and right of the administrator to personal estate, 159.
 
 404 INDEX. 
 
 TITLE Continued. 
 
 to real property not conferred by appointment as executor, adminis 
 trator, guardian or conservator, 187. 
 
 See Descent. 
 TORTS, 
 
 the right of action for, how far transmitted to the administrator, 83, 84. 
 
 TORTS, FRAUDS AND, 
 of infants, 103. 
 
 See Actions (which survive). 
 
 TREES, 
 
 when personal estate, and when real estate, 189. 
 TRUST RELATION, THE, 
 
 of the administrator, 162. 
 
 TRUSTS, 
 
 the due execution of, the peculiar province of the probate jurisdiction, 1. 
 the high character of those involved in probate, 3, 4. 
 
 V. 
 
 VENDOR AND VENDEE, 345. 
 
 VENUE, 
 
 or proper county, 14, 76, 339. 
 on division of a county, 339. 
 
 w. 
 
 WARRANTY, 162. 
 
 by administrator not good, failure of consideration. 88, 89. 
 
 WILL, 
 
 defined, 161. 
 
 must be reduced to writing, 40, 47 . 
 
 must be attested, 40, 47. 
 
 nuncupative, form of, 13. 
 
 nuncupative, 50-53. 
 
 lost, how .and where probated, 53. 
 
 foreign, evidence of, 42. 
 
 revocation of, 13. 
 
 production of the, 14. 
 
 attachment to compel the production of a, 15, 16. 
 
 copies of the, to go with the letters testamentary, 49. 
 
 WILLS, 
 
 foreign, may be probated, 52. 
 evidence of, 52. 
 married women may make, 14. 
 See Married Women.
 
 INDEX. 405 
 
 WILLS Continued. 
 generally, 10-27. 
 
 1. Definition, 10, 151. 
 
 2. Who may make a will, 10, 11. 
 
 3. Requisites of a will, 11. 
 
 4. Nuncupative will, 11. 
 
 5. Codicils, 11. 
 
 6. Forms, 11. 
 
 1. Of a will, 11. 
 
 2. Of a codicil, 12. 
 
 3. Of a nuncupative will, 13. 
 
 7. Revocation, 13, 14. 
 
 8. Production of the will, 14-17. 
 
 1. Venue, 14. 
 
 2. Proceedings, 14, 15. 
 
 3. Petition for process to compel the same, 15. 
 
 4. Order for process and the entry, 15. 
 
 5. Attachment to compel the production of a will, 16. 
 
 6. Jurisdiction, facts essential to, must appear, 16. 
 
 7. The withholding the will, 16. 
 
 8. Destruction or secretion, a felony, 16. 
 
 9. Compulsory process, 16. 
 
 10. Renunciation, how made and recorded, 16, 17. 
 
 11. Administrator with the will annexed, 17. 
 
 9. Construction of wills, 17-27. 
 
 absolute prohibition of marriage until 21 years of age, in a will, good, 2S 
 
 annuity, homestead election of widow, 17, 18. 
 
 application to sell lands by executor when necessary, 18. 
 
 bequest to a creditor, and his claim in view of it, 20. 
 
 children, their existence does not affect the widow's right to one-third 
 
 of the personal estate, 18. 
 claim of the widow to the personal estate, 17. 
 courts give effect, if possible, to every clause in a will, 17. 
 creditor as a legatee, 20. 
 
 devise "during her widowhood" does not pass an estate of inheritance, 18. 
 devise and bequest to ''heirs at law," 19. 
 devise to " G-. S." good in the heirs of Gr. S., 20. 
 devise for life, with the jus disponendi, 20, 21. 
 devise of lands to be sold and proceeds distributed, 21. 
 disherison, words of, 20. 
 dower act, construed, 17. 
 fee simple estate devised, 22. 
 
 fee simple estate subjected to a trust and liable to execution, 22. 
 election by widow, annuity, homestead, 17, 18.
 
 406 INDEX. 
 
 WILLS Continued. 
 
 execution, a life estate under a will is subject to, 19. 
 
 executor, power limited, application to sell lands then necessary, 18. 
 
 homestead, annuity, election by the widow, 17, 18. 
 
 lands out of the State, when included, 22. 
 
 life estate under a will, held subject to execution, 19. 
 
 limited interest in realty, question of intention, as to a devise of, 21, 22 
 
 .limited and absolute estates. 22, 23, 24, 25, 26. 
 
 limited estate, only created by the term " during her widowhood," 18. 
 
 marriage may be prohibited in a will, when, 26. 
 
 married woman may elect to take land or money under a will, 21. 
 
 personal estate, qualified interest in, bequeathed, 19, 20. 
 
 personal estate, claim of the widow to the, 17. 
 
 perpetuity, a bequest not void for, in a certain case, 26. 
 
 power to sell lands by executor, limitation of, to certain lands, 18. 
 
 qualified estate in personalty under a will, 19, 20. 
 
 real estate, power of executor limited to sale of certain lauds, 18. 
 
 real estate liable as a secondary fund to testator's debts and funeral 
 
 expenses, 21. 
 
 renunciation of will by the widow, 17. 
 
 renunciation by widow of the provisions of a will, case of, 18. 
 terms in a will, when interpreted according to their strict legal import, 
 
 18. 
 
 " widowhood, during her," a term of limitation, 18. 
 widow's allowance, in case of renunciation of a will, 17. 
 
 See Descent; Jurisdiction; Probate; Shelley's Case, etc. 
 
 WITHHOLDING, 
 
 the will subjects the custodian to a penalty of $20 per month, 16. 
 WITNESS, 
 
 credible, 40, 45, 47. 
 
 when the county judge is, proceedings to be had at the circuit, 45, 46. 
 
 attachment for, 32. 
 
 service of subpoena on, 32. 
 WITNESSES, 
 
 the subscribing, to a will, 31. 
 
 examination of the, in probating the will, 33. 
 
 effect of certificate of, as evidence, 43. 
 
 parties as, 287. 
 WOMEN, MARRIED, 
 
 may make wills, 14. 
 See Husband. 
 
 WRITING, 
 
 a will must be in, 40-47, 263. 
 See Forms ; Process.
 
 INDEX. 407 
 
 WRIT OF ERROR. 
 
 See Appendix ; Appeals. 
 
 WRONGS, 
 
 of decedent, actions for, how far transmitted to the administrator, 83. 
 See Actions (which survive), 123, Act April 1, 1872.
 
 LAW LIBRARY 
 
 UNIVERSITY. OF CALIFORNIA 
 LOS ANGELES 
 
 SFP 6 1952
 
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